Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:15 PM Conversation Contents DMR Ongoing Litigation Monthly Report for December 2017 Attachments: /1. DMR Ongoing Litigation Monthly Report for December 2017/1.1 2017.12 (December) Report.pdf "Hawbecker, Karen" From: Sent: To: "Hawbecker, Karen" Fri Jan 19 2018 16:35:10 GMT-0700 (MST) Joseph Balash , Alfred Elser , Ann M DeBlasi , Ann Navaro , Art Kleven , Brian Amme , Brian Steed , Catherine Cook , "Donald (Don) Buhler" , Edward T Keable , Edwin Roberson , Elaine Guenaga , Eric Shepard , Gary Torres , Glenda Owens , Jack Haugrud , Jamie Connell , Janna Simonsen , Jerome Perez , Jill Moran , John Kalish , John Ruhs , Jon Raby , "Joseph (Gene) Seidlitz" , Jully McQuilliams , Karen Mouritsen , Katharine Macgregor , Kathleen Benedetto , Keith Saxe , Kelly Orr , Kemba Anderson , Khalia Boyd , Kit Muller , Kristen Guerriero , Kristin Bail , Linda Smith , Loraine Dawkins , "Lucas J. Lucero" , Marc Smith , Mary Jo Rugwell , Matthew McKeown , Michael Nedd , Michael Stiewig , Mitchell Leverette , Monica Glenn , Peter Mali , Raymond Suazo , SOL-Division of Land Resources , SOL-Division Of Mineral Resources , Stephen Fusilier , Stephen Mahoney , Sterling Rideout , Steven Wells , Suzanne Mehlhoff , Terri Debin Subject: Attachments: , "Thomas D. Tom Shope" , Thomas Lillie , Timothy Murphy , Timothy Spisak , Walter Cruickshank , Wright Frank , Aden Seidlitz , Erica Niebauer DMR Ongoing Litigation Monthly Report for December 2017 2017.12 (December) Report.pdf The Division of Mineral Resources prepares this report for the Assistant Secretary, Land and Minerals Management, about ongoing litigation related to BLM (minerals), BOEM, BSEE and OSMRE. I have attached for your reference the monthly report for the month of December 2017. New updates are in bold. Please note that this report is subject to attorney-client privilege. Please do not forward this report. If there are other people in your office who should appropriately receive this report, please let me know and I will add them to the mailing list. If you would rather not receive this monthly report, please let me know. Thank you. Karen Hawbecker Associate Solicitor Division of Mineral Resources Office of the Solicitor U.S. Department of the Interior 1849 C Street N.W. MS 5358 Washington, D.C. 20240 Office: (202) 208-4146 karen.hawbecker@sol.doi.gov Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:15 PM Conversation Contents DMR Friday List Attachments: /2. DMR Friday List/1.1 2018.01.12 DMR Friday List.docx "Bovard, Thomas" From: Sent: To: CC: Subject: Attachments: "Bovard, Thomas" Fri Jan 12 2018 15:16:15 GMT-0700 (MST) "Haugrud, Jack" "Hawbecker, Karen" , Dennis Daugherty , Richard McNeer DMR Friday List 2018.01.12 DMR Friday List.docx Hi Jack, attached is this week's Friday list. Have a great weekend! Thanks. Tom Thomas A. Bovard Assistant Solicitor Branch of Surface Mining Division of Mineral Resources Office of the Solicitor United States Department of the Interior 1849 C Street NW Washington, DC 20240 Phone: 202.208.5730 Fax: 202.219.1789 Tom.Bovard@sol.doi.gov "Haugrud, Kevin" From: Sent: To: CC: Subject: "Haugrud, Kevin" Fri Jan 12 2018 15:22:58 GMT-0700 (MST) "Bovard, Thomas" "Hawbecker, Karen" , Dennis Daugherty , Richard McNeer Re: DMR Friday List Thanks Tom. Hope you all do too. On Fri, Jan 12, 2018 at 5:16 PM, Bovard, Thomas wrote: Hi Jack, attached is this week's Friday list. Have a great weekend! Thanks. Tom Thomas A. Bovard Assistant Solicitor Branch of Surface Mining Division of Mineral Resources Office of the Solicitor United States Department of the Interior 1849 C Street NW Washington, DC 20240 Phone: 202.208.5730 Fax: 202.219.1789 Tom.Bovard@sol.doi.gov Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:15 PM Conversation Contents Twin Metals: Draft BLM Letter to Forest Service Attachments: /3. Twin Metals: Draft BLM Letter to Forest Service/1.1 2018.01.10 Draft Letter to FS re. M37049.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Wed Jan 10 2018 11:39:29 GMT-0700 (MST) Jack Haugrud Briana Collier , Richard McNeer Twin Metals: Draft BLM Letter to Forest Service 2018.01.10 Draft Letter to FS re. M37049.docx Jack, Here are the BLM Eastern States edits on the draft BLM letter to the Forest Service. Please let us know if you're okay with these changes. If so, we'll send it to Mitch and ask him to upload it in DTS for surnaming in preparation for Brian's signature. Thank you. --Karen "Haugrud, Kevin" From: Sent: To: CC: Subject: "Haugrud, Kevin" Thu Jan 11 2018 07:21:41 GMT-0700 (MST) "Hawbecker, Karen" Briana Collier , Richard McNeer Re: Twin Metals: Draft BLM Letter to Forest Service I'm fine with the letter. On Wed, Jan 10, 2018 at 1:39 PM, Hawbecker, Karen wrote: Jack, Here are the BLM Eastern States edits on the draft BLM letter to the Forest Service. Please let us know if you're okay with these changes. If so, we'll send it to Mitch and ask him to upload it in DTS for surnaming in preparation for Brian's signature. Thank you. --Karen "Hawbecker, Karen" From: Sent: To: "Hawbecker, Karen" Thu Jan 11 2018 10:51:43 GMT-0700 (MST) "Haugrud, Kevin" CC: Subject: Briana Collier , Richard McNeer Re: Twin Metals: Draft BLM Letter to Forest Service Thanks, Jack. We'll send it along to BLM to put into DTS. --Karen On Thu, Jan 11, 2018 at 9:21 AM, Haugrud, Kevin wrote: I'm fine with the letter. On Wed, Jan 10, 2018 at 1:39 PM, Hawbecker, Karen wrote: Jack, Here are the BLM Eastern States edits on the draft BLM letter to the Forest Service. Please let us know if you're okay with these changes. If so, we'll send it to Mitch and ask him to upload it in DTS for surnaming in preparation for Brian's signature. Thank you. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:16 PM Conversation Contents U.S. Department of the Interior News Briefing for Thursday, January 11, 2018 Bulletin Intelligence From: Bulletin Intelligence Sent: Thu Jan 11 2018 04:00:01 GMT-0700 (MST) To: U.S. Department of the Interior News Briefing for Thursday, January 11: 2018 Mobile version and searchable archives available here. Please click here to subscribe. Department of the Interior - I I -CIsioN v-K. ., News Briefing DATE: THURSDAY, JANUARY 11, 2018 6:00 AM EST Today's Table Of Contents DOI In The News 0 Washington Post: Interior Plans To Move Thousands Of Workers In The Biggest Reorganization In Its History. 0 New York Times: Florida Is Exempted From Coastal Drilling. Other States Ask, ?Why Not Us?? 0 Sierra (CA) Sun Times: Department Of The Interior Announces Paul Daniel (Dan) Smith As New National Park Service Deputy Director. 0 Newsweek: Interior Secretary Ryan Zinke Could Face Investigation Over Helicopter Rides. 0 Scienti?c American: Climate Webpages Erased And Obscured Under Trump. 0 Newsweek: Trump Calls Alaska's Wildlife Refuge, Where Hundreds Of Spectacular Animals Live, ?One Of The Great Oil Sites'. 0 Los Angeles Times: As Trump?s Fossil-Fuel ?Energy Dominance? Plan Founders, A Crucial Solar Energy Decision Nears. Bureau Of Indian Affairs 0 Trump Signs Land Bill For Oregon Tribes. Bureau Of Indian Education 0 Tesuque Pueblo Breaks Ground On New Casino. Bureau Of Land Management 0 Washington Times: Cliven Bundy May Sue Federal Government For Malicious Prosecution, Civil-Rights Abuses. 0 Associated Press: Oil And Gas Leases Sold Beneath Montana Coal Mine. 0 Associated Press: Terra Energy Partners Proposes 63 Wells In Western Colorado. 0 KTVQ-TV Billings (MT): Land That Carries Oil, Gas Potential Near Livingston Under Consideration For Lease. • Southwest Colorado Journal: Bureau Of Land Management Approves Expansion Of Phil’s World. • Alamosa (CO) Valley Courier: BLM Releases Strategy For Old Spanish Trail. • Associated Press: Entrance Fees For Red Rock Canyon Increasing Next Month. Bureau Of Reclamation • Day Use Fees Waived At New Melones Lake For All Visitors On Monday, January 15, 2018. Fish And Wildlife Service • Associated Press: Court OKs Killing A Type Of Owl To See Effect On Other Owls. • Courthouse News: Piping Plovers Say ‘No Thanks’ To Human Sandbars. • WKBT-TV La Crosse (WI): Genoa Fish Hatchery Builds New Interpretive Center. • Monroe (MI) Evening News: Hartig Retiring As Wildlife Refuge Manager. • Associated Press: Conservationists Line Up Against Ending Wolf Management. National Park Service • Atlanta Journal-Constitution: National Park Service Reopens Second Floor Of MLK Birth Home. • Associated Press: Lawyers: Alaska Hovercraft Suit Could Have Nationwide Impact. • St. Louis Post-Dispatch: More Than 150 Jobs Up For Grabs At Gateway Arch. • Panama City (FL) News Herald: National Seashore Exerting Crab Island Jurisdiction. • Daily Inter Lake (MT): No Deal — Historic Wright Building To Be Destroyed. • WANE-TV Fort Wayne (IN): Lakeside Historic District Now On National Register Of Historic Places. Office Of Insular Affairs • Guam Daily Post: Guam, Hawaii, Northern Marianas Lawmakers Seek More Funding For Immigrant Costs. • Australian Associated Press: Minister Attacks Chinese Aid To Pacific. • Daily Mail: Massive 7.6 Magnitude Earthquake Strikes In The Caribbean. • New York Times: Power Is Restored To Most Of U.S. • St. Thomas Source: Mapp Appoints Bloomberg LP Co-Founder To Hurricane Recovery Committee. • Guam Daily Post: FBI ‘Prepared To Investigate’ Hagåtña Detainee’s Death. US Geological Survey • USA Today: How Fire, Wind And Rain Combined To Create The Deadly Mudslide In California. Opinion Pieces • Cramer: North Dakota Finds Partner In Zinke. • Excluding Florida From A New Offshore Drilling Plan Sure Looks Partisan. • Drilling In Alaska Is Good For The Earth. • Leaving Fossil Fuels Like Oil And Natural Gas Underground Makes No Sense. • Nothing Conservative About Rob Bishop’s Public Lands Agenda. • Why Conservatives Should Oppose Shrinking National Monuments. • Tribune Editorial: Cliven Bundy Is Right. • Additional Reading. Top National News • ABC: Trump: Mueller Interview “Seems Unlikely,” But “We’ll See What Happens.” • Fox News: Trump Stresses That Border Wall Must Be Part Of Any DACA Deal. • The Hill: Lawmakers “Scrambling” To Avoid Government Shutdown. • Reuters: Trump: US “Could Conceivably” Re-Join Paris Climate Agreement. • Washington Post: Moon Credits Trump With Bringing North Korea To The Table. Editorial Wrap-Up • New York Times. - “Is Mr. Trump Nuts?” - “When Mercy Collides With The Law.” - “Who Will Listen To Democrats’ Warning On Russia?” • Washington Post. - “Take A Deal For The Dreamers. Build The Wall.” - “Blake Farenthold Has Got To Go.” • Wall Street Journal. - “The Fusion Transparency Rap.” - “More Libel Law Bluster.” - “Children’s Healthcare Myths.” Big Picture • Headlines From Today’s Front Pages. Washington Schedule • Today’s Events In Washington. Last Laughs • Late Night Political Humor. DOI In The News Interior Plans To Move Thousands Of Workers In The Biggest Reorganization In Its History. The Washington Post (1/10, Eilperin, Fears) reports that Interior Secretary Ryan Zinke “launched an unprecedented effort Wednesday to undertake the largest reorganization in the department’s 168-year history, moving to shift tens of thousands of workers to new locations and change the way the federal government manages more than 500 million acres of land and water across the country.” The plan would “divide the United States into 13 regions and centralize authority for different parts of Interior within those boundaries.” Under the proposal, “the regions would be defined by watersheds and geographic basins, rather than individual states and the current boundaries that now guide Interior’s operations.” The reorganization would be “accompanied by a dramatic shift in location of the headquarters of major bureaus within Interior, such as the Bureau of Land Management and the Bureau of Reclamation.” E&E Publishing (1/10, Streater, Doyle) reports that “a separate director would oversee each region, and state directors and field managers from the various Interior bureaus inside each region would report to that director, sources said.” According to sources, “the regional directors would serve two-year terms, and the position would rotate between the individual bureaus in the region.” The maps were shared on Wednesday with Interior Senior Executive Service career employees at a meeting titled “Department of the Interior Leadership Summit: Planning for the Next 100 Years.” Zinke spoke at the meeting “for more than an hour to agency employees gathered in the department’s first-floor auditorium.” The Hill (1/10, Greenwood) reports that “because moving so many Interior Department employees would require congressional approval, Zinke said the agency plans to negotiate the reorganization with lawmakers in the upcoming budget approval.” Zinke “consulted with 150 Senior Executive Service staffers this week on the reorganization.” According to the article, “those staffers were charged with coming up with ways to streamline the Interior Department’s agencies and identifying new cities that department employees could be based in.” Additional coverage was provided by the Westerner (1/10, DuBois). Florida Is Exempted From Coastal Drilling. Other States Ask, ‘Why Not Us?’ The New York Times (1/10, Davenport) reports that within hours of Interior Secretary Ryan Zinke’s tweet announcing Flordia’s exemption from “a new Trump administration plan to open up most of the nation’s coastline to offshore oil drilling,” governors from other coastal states started demanding their own drilling exemptions. Deputy White House press secretary Hogan Gidley said, “The Secretary is currently in the process of speaking to stakeholders, like Governor Scott yesterday, to determine the most responsible and environmentally sound path forward. ... All states have different concerns and needs, which is why this is an ongoing process with a built-in 60 day comment period.” The Washington Examiner (1/10, Siegel) reports Zinke is planning to meet with every governor whose state would be affected by the offshore drilling proposal, saying the public engagement process would take at least a year. Zinke said, “I will no doubt talk to every governor. It doesn’t matter to me whether you’re Republican or Democrat. This is going to be a long process. This is going to be at least a year with public comment. We have to get it right, look at the geology, look at the science.” The Hill (1/10, Cama) reports Zinke may have placed himself in a political and legal corner by excluding Florida from drilling. If the Trump Administration extends the same rationale to the rest of the country, its energy dominance plan could be in jeopardy. States and legal experts say Zinke created a precedent that should apply to any state that wants it, while any other action could give opponents legal standing to sue the Administration over its drilling plan. The Huffington Post (1/10, D'Angelo) reports Zinke received a quick political backlash from the Florida decision, as he has not yet engaged leaders from Democratic states. The Wall Street Journal (1/10, Puko) reports that Interior spokeswoman Heather Swift said, “The Secretary is happy to meet with governors whose offices submit meeting requests.” However, USA Today (1/10, King) reports Swift also said, “It’s not appropriate to transfer his comments on Florida to other states.” The AP (1/10) provides a complete list of the coastal states and the position of their governors on offshore drilling. The state governors listed as supporting the plan include Maine, Mississippi, Alabama, Texas and Alaska. Georgia is undecided, with a spokeswoman saying Gov. Nathan Deal generally supports drilling, but “has some concerns regarding opening up Georgia’s pristine coast.” Louisiana’s governor supports offshore drilling but has not spoken publicly about the plan. The states opposing the plan include New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Delaware, Maryland, Virginia, North and South Carolina, Florida, California, Oregon and Washington. Also reporting are the Washington Post (1/10), the Washington Examiner (1/10, Siegel), the Washington Examiner (1/10, Siegel), U.S. News & World Report (1/10, Lardieri), U.S. News & World Report (1/10, Daly), CNN (1/10, Watkins), Fox News (1/10, Rivera), NPR (1/10, Domonoske), MSNBC (1/10, Benen), Bloomberg News (1/10, Dlouhy), Forbes (1/10, Blackmon), Newsweek (1/10, Goodkind), the Huffington Post (1/10, Bobic, D'Angelo), Reuters (1/10, Valdmanis), and the Financial Times (1/10, Crooks). Additional coverage was provided by the Sacramento (CA) Bee (1/10, Dumain, Pugh), the Charleston (SC) Post and Courier (1/10, Petersen), the Tampa Bay (FL) Times (1/10, Leary), the Tampa Bay (FL) Times (1/10, Sampson), the Sacramento (CA) Bee (1/10, Ashton, Hart), the San Francisco Chronicle (1/11, Egelko), Newsday (NY) (1/10, Brune), the Daily Intelligencer (NY) (1/10, Levitz), the Houston Chronicle (1/10, Dlouhy, Bloomberg), the Donaldsonville (LA) Chief (1/10, Doughty), the Savannah (GA) Morning News (1/10, Landers), the Anacortes (WA) American (1/10, Allison), the Cape May County (NJ) Herald (1/11), the Hampton Roads (VA) Virginian-Pilot (1/10, Bartel), Breitbart (1/10, Starr), Business Insider (1/10, Bryan), Business Insider (1/10), the Middle East North Africa Financial Network (1/10), BBC News (UK) (1/10), The Guardian (UK) (1/10, Milman), the Daily Mail (1/10, Earle), Newsmax (1/10, Rodack), Governing (1/10, VOCK), Oil Price (1/10, Slav), RT (1/10), Vox (1/10, Irfan), and Axios (1/10, Geman). Florida’s Exemption Draws Political Backlash. NBC News (1/10, Todd, Murray, Dann) reports the decision to remove Florida has raised questions over whether the Trump Administration is favoring certain states. Political factors at play include the fact that Florida is a state that Trump won in 2016 and is hoping to recapture in 2020, Governor Scott is likely to be a Senate candidate this year, and Trump owns coastal property in California. The decision to exempt Florida is raising the possibility that other coastal states could sue if the same kind of exemption is not applied. The Washington Post (1/10, Weigel, Wagner) reports governors from both parties have taken to the media to ask “why not us.” The decision also presents another challenge for Republicans this year for the midterm elections. Nine of the 11 states that oppose offshore drilling have gubernatorial contests this year, and some of the most competitive House races are in coastline districts. State attorneys general and environmental groups immediately suggested that Zinke’s order could undermine the entire drilling proposal. Sierra Club executive director Michael Brune said, “The Administrative Procedure Act requires there to be a reasonable rationale behind agency decisions, and that they can’t be arbitrary and capricious. ... So, saying Florida is exempt because Rick Scott is straightforward and trustworthy? That Florida’s coastlines are unique? That seems to be the definition of arbitrary and capricious.” UPI (1/10, Graeber) reports Vicky Wyatt, campaign director for Greenpeace, said, “Clearly, Trump and Zinke’s ‘energy dominance’ just means political convenience.” CNN (1/10, Merica) reports it is unclear if the Interior will apply the same standards for all the other states. Trump and senior aides in the White House have said both publicly and privately that Scott’s campaign for Senate could help prevent a wave of Democratic victories in 2018. Trump has said, “I hope this man right here, Rick Scott, runs for the Senate.” Sen. Nelson decried the maneuver, saying, “I have spent my entire life fighting to keep oil rigs away from our coasts. ... This is a political stunt orchestrated by the Trump administration to help Rick Scott who has wanted to drill off Florida’s coast his entire career.” The Washington Post (1/10, Bump) reports Zinke’s decision served as proof of the importance of personal relationships with the White House. Before announcing the decision, Zinke declared that Scott “is a straightforward leader that can be trusted.” Several Democratic leaders were quick to question why other states dependent on tourism revenue were not similarly excluded. The AP (1/10, Daly) reports Democrats are saying the Trump Administration is trying to punish blue states. Rep. Adam Schiff said on Twitter, that California “like Florida, has hundreds of miles of beautiful coastline and a governor who wants to keep it that way. Or is that not enough for blue states?” Sen. Tim Kaine accused Zinke of being hypocritical in claiming that “local voices matter,” saying “Is it because the governor of Florida is a Republican and the Virginia governor is a Democrat?” The Washington Post (1/10, Fears) reports House Minority Whip Steny Hoyer said, “What’s good for the goose is good for the gander. The bottom line is that that order is very, very controversial. ... It’s going to be I think a very, very political, patently political, swamp political, to do something for the governor of Florida – who’s a Republican – and not do something for governors who have similar concerns.” The Hill (1/10, Shelbourne) reports South Carolina Rep. Mark Sanford called the decision “self-serving” because Florida houses the Mar-a-Lago resort. Sanford said, “I would also say this, it smacks of what we never want to see in politics, which is, is it only self-serving? .... I mean, you can’t say ‘I don’t want to see an oil rig from Mar-a-Lago as I look out from the waters of Palm Beach, but it’s okay to look at an oil rig out from Hilton Head of Charleston, S.C.’” Sanford went on to say, “The president ran on the idea of draining the swamp: no more politics as usual. If this is not a sign of politics as usual, I don’t know what is.” The Hill (1/10, Beavers) reports former White House ethics chief Walter Shaub blasted Zinke’s decision, saying it looks to be a conflict of interest to protect the state that houses President Trump’s luxury resort. Shaub said, “So you are exempting the state that is home to the festering cankerous conflict of interest that the administration likes to call the ‘Winter White House’ and none of the other affected states?” The Newport News (VA) Daily Press (1/10, Dietrich) reports that Sen. Time Kaine “blasted the Trump administration Wednesday for exempting Florida from offshore drilling because of risks to its coastal resources and economy while ignoring Virginia and other coastal states with the same concerns.” The Wilmington (NC) Star News (1/10, Wagner) reports that North Carolina Gov. Roy Cooper has requested a meeting with Interior Secretary Ryan Zinke to discuss the potential impact of offshore drilling on coastal communities. In North Carolina, more than 30 municipalities have already “opposed seismic testing or offshore testing.” Roll Call (DC) (1/10, Dillon) and The Daily Caller (1/10, White) also provided coverage. Trump Energy Team Draws Blowback On Florida Drilling Exemption. Politico (1/10, Lefebvre, Adragna) reports that in a statement, “the powerful American Petroleum Institute” said Tuesday’s decision to remove Florida’s coastal waters from the plan was “premature,” and it said “the administration and policymakers should follow the established process before making any decisions or conclusions that would undermine our nation’s energy security.’” The Washington Examiner (1/10, Siegel) quoted API President and CEO Jack Gerard as saying, “The Gulf of Mexico is the backbone of our nation’s offshore energy production, and restricting access to the eastern Gulf puts hundreds of thousands of jobs at risk across the country and along the Gulf Coast, particularly in Florida, Alabama, Louisiana, Texas, and Mississippi.” Christie Wants Trump Admin To Exempt N.J. From Offshore Drilling. The Hill (1/10, Bowden) reports that “New Jersey Gov. Chris Christie (R) on Wednesday announced his intention to request an exemption from the Trump administration’s expansion of offshore drilling rights, similar to the one granted to the state of Florida.” Additional coverage was provided by Law360 (1/10, Greene) and WHYY-TV Philadelphia (1/10, Auciello). Lawmakers Urge Gov. Baker To Condemn Offshore Drilling Plan. The AP (1/10) reports Massachusetts’ congressional delegation is asking Governor Charlie Baker to take a tougher stance in opposing the offshore drilling plan. Rep. Seth Moulton and Sen. Edward Markey sent a letter to Baker urging him to join other governors in denouncing the plan. A Baker spokesman responded by referencing a letter the governor sent to the Interior Department in June opposing offshore drilling. Additional coverage was provided by the Springfield (MA) Republican (1/10, Young). Kate Brown Blasts Trump Admin’s Offshore Drilling Proposals In CNN Interview. The Oregonian (1/10, Campuzano) reports Oregon Governor Kate Brown appeared on CNN (1/11) saying the White House has failed to return her phone calls. Brown blasted Zinke for claiming Florida’s coast was unique, saying, “In what universe would this be okay? Our coastal beaches are really important to Oregonians. ... They’re very important to who we are and very important to our economy.” Brown said, “What can I think otherwise? Is it about the governor wanting to run for the U.S. Senate or is it about the president wanting to protect Mar-a-Lago?” Additional coverage was provided by KGW-TV Portland, OR (1/11, Hanson) and KPTV-TV Portland, OR (1/11). South Carolina Governor Calls On Trump Admin To Remove State From Drilling Plan. The Hill (1/10, Carter) reports South Carolina Governor Henry McMaster is planning to ask the Trump Administration for a drilling exemption similar to Florida’s. McMaster said, “We cannot afford to take a chance with the beauty, the majesty and the economic value and vitality of our wonderful coastline.” The AP (1/10, Kinnard) reports McMaster said the state cannot afford the risks of drilling, as South Carolina relies on the coastline for its $20 billion tourism industry. Additional coverage was provided by the AP (1/11, Daly) and McClatchy (1/10, Dumain, Pugh). Offshore Drilling: Roy Cooper Asks For Exemption To New Drilling Plan. The Charlotte (NC) Observer (1/10, Murphy) reports North Carolina Governor Roy Moore wants his state to be treated like Florida. Cooper requested that the state be exempted from the Interior’s offshore drilling proposal. He said, “The Trump Administration, through their decision on Florida, has admitted that offshore drilling is a threat to coastal economies and tourism. ... Offshore drilling holds the same risks for North Carolina as it does for Florida and North Carolina deserves the same exemption.” However, North Carolina’s leaders are not presenting a united front, as many members of the GOP congressional delegation have come out in support of offshore drilling or exploration. Supporters include: Sens. Richard Burr and Thom Tillis, Reps. George Holding, David Rouzer, Ted Budd, Robert Pittenger, Richard Hudson, and Mark Walker. Additional coverage was provided by the Charlotte (NC) Observer (1/10, Murphy) and the Wilmington (NC) Star News (1/10, Wagner). Trump Offshore Oil Proposal Could Unlock 65 Billion Boe: Rystad. Reuters (1/10, Bhattacharjee) reports Rystad Energy estimates the Trump Administration’s proposal to open US waters to offshore drilling could unlock up to 65 billion boe, bringing in billions of dollars in investment. Rystad senior analyst Sonia Passos said, “Looking purely at areas that are potentially going to come out of restriction, we are talking about something closer to 65 billion boe. ... The resource potential in the basins in the direct proximity to Florida, together may hold about 1 billion boe to 1.5 billion boe, so excluding those will not change the overall picture dramatically.” Department Of The Interior Announces Paul Daniel (Dan) Smith As New National Park Service Deputy Director. The Sierra (CA) Sun Times (1/10) reports that the Interior Department “on Tuesday announced Paul Daniel (Dan) Smith as a new Deputy Director of the National Park Service (NPS).” Interior Secretary Ryan Zinke said, “Dan has a strong record of leadership in the National Park Service both in Washington and on the front lines as a superintendent of a park that tells the stories of some of the most consequential moments in American history. I can think of no one better equipped to help lead our efforts to ensure that the National Park Service is on firm footing to preserve and protect the most spectacular places in the United States for future generations.” Interior Secretary Ryan Zinke Could Face Investigation Over Helicopter Rides. Newsweek (1/10, Katz) reports that Sen. Ron Wyden is asking the Interior Department’s inspector general “to look into whether Interior Secretary Ryan Zinke wrongly tapped into a wildfire-fighting fund to take a helicopter tour of Nevada last year.” The request comes after “a Newsweek investigation that discovered how the Department of the Interior had discussed billing a wildfire preparedness fund for Zinke’s use of a chartered helicopter on a trip that did not take Zinke to a wildfire zone, but did include a press conference.” Wyden on Wednesday wrote to Interior Inspector General Mary Kendall, “and criticized Zinke’s trip and the attempt to use wildfire funds.” Additional coverage was provided by Ashland (OR) Jefferson Public Radio (1/10, Harnik). Climate Webpages Erased And Obscured Under Trump. Scientific American (1/10, Waldman) reports “thousands of webpages with climate change information have been removed or buried at agencies including U.S. EPA, the Interior and Energy departments and elsewhere across the government, according to a new report” from the Environmental Data & Governance Initiative watchdog group. The group “tracked a year of editing of government websites and has found a drastic overhaul of public information on climate change during the Trump Administration.” The Hill (1/10, Cama) reports the group stated in the report, “Our examination of changes across many federal agencies over the first year of the Trump administration demonstrates a systematic reduction in access to climate information and content. ... Links have been cut from pages or rendered useless, language has been changed to alter emphasis and drop mentions of climate-change-related topics, and entire climate websites have been removed and made significantly less accessible.” Additional coverage was provided by CNN (1/10, Wallace) and Newsweek (1/10, Sinclair). Trump Calls Alaska’s Wildlife Refuge, Where Hundreds Of Spectacular Animals Live, ‘One Of The Great Oil Sites’. Newsweek (1/10, Pereira) reports that President Trump on Wednesday at his first Cabinet meeting in 2018 called the Arctic National Wildlife Refuge “one of the great oil sites.” Trump said, “So, in addition to the largest tax cut and reform in history, we have one of the great oil sites that’s now been approved. They’ve been trying to approve ANWR – I don’t know if people know this – for over 40 years. Ronald Reagan tried to get it approved for exploration and for drilling. And for 40 years, they’ve been trying to get it approved. That was in the bill – an individual mandate in the bill.” As Trump’s Fossil-Fuel ‘Energy Dominance’ Plan Founders, A Crucial Solar Energy Decision Nears. The Los Angeles Times (1/10, Schneider) says President Trump’s plan to achieve “energy dominance” floundered last week after the FERC rejected a proposal to provide coal and nuclear power “resiliency” payments and Interior Secretary Ryan Zinke excepted Florida “from his mammoth offshore oil drilling plan.” According to the article, an upcoming decision to possibly enact tariffs on foreign solar panel exporters, however, “marks a clearly defined pivot point...one defined by powerful and converging trends in economics and the environment that the president has resisted.” Bureau Of Indian Affairs Trump Signs Land Bill For Oregon Tribes. Law360 (1/10, Lidgett) reports that President Trump “approved a bill to take thousands of acres of land into trust for two federally recognized tribes in Oregon and change how another tribe’s forests in the state are managed.” Bureau Of Indian Education Tesuque Pueblo Breaks Ground On New Casino. The Albuquerque (NM) Journal (1/10, Carrillo) reports that a groundbreaking ceremony was held Wednesday for a new casino for Tesuque Pueblo. Gov. Frederick Vigil “told the crowd – which included Santa Fe Mayor Javier Gonzales, City Councilors Signe Lindell and Ron Trujillo and District Attorney Marco Serna – that revenue generated by the casino will go toward funding the Te Tsu Geh Oweenge Day School, providing scholarships for college students and investing in bringing tribal members with degrees to work for the pueblo.” After the ceremony, Vigil said, “That’s the future. I have several of my granddaughters and grandsons dancing and going to the small community school, run by the Bureau of Indian Education, and it’s one of the biggest facilities that we have since back in the 1950s, so we want to look at the enhancement of it.” Bureau Of Land Management Cliven Bundy May Sue Federal Government For Malicious Prosecution, Civil-Rights Abuses. The Washington Times (1/10, Richardson) reports that Cliven Bundy “no longer faces federal charges in the 2014 Nevada standoff, but that doesn’t mean his legal fight with the Justice Department is over.” Attorney Larry Klayman says Bundy is “considering filing lawsuits for malicious prosecution and civil-rights violations stemming from the court battle that ended Monday with a federal judge dismissing all charges against him over ‘flagrant prosecutorial misconduct.’” In addition, Klayman “said the newly freed 71-yearold rancher may also file ethics complaints against federal prosecutors.” Linda Tirado of the Daily Beast (1/10, Tirado) notes that “prosecutors in this latest Bundy trial screwed up the case so badly that the judge dismissed the case with prejudice, which makes a new trial unlikely. Prosecutors failed to turn over exculpatory evidence to the defense and hid the extent of surveillance cameras and snipers in use by federal agencies during the standoff in Bunkerville in 2014.” Also reporting are NBC News (1/10, Helsel), NPR (1/11), and the AP (1/10, Ritter). Oil And Gas Leases Sold Beneath Montana Coal Mine. The AP (1/10) reports Hoover & Stacy Inc. entered into leases worth $23,000 to explore “909 acres beneath the boundaries of the Spring Creek Mine near Decker.” Bureau of Land Management spokesperson Al Nash said Hoover will need a permit to start exploring beneath the mine. Cloud Peak Energy owns the coal mine and submitted an objection “to the lease sale after a public comment period already had closed.” Additional coverage was provided by the Billings (MT) Gazette (1/10, Lutey). Terra Energy Partners Proposes 63 Wells In Western Colorado. The AP (1/10) reports that Terra Energy Partners is “proposing to drill 63 natural gas wells on Roan Plateau oil and gas lease acreage for its second phase of development in western Colorado.” The Bureau of Land Management is seeking public input “on the company’s Balzac Gulch plan that calls for drilling the wells over the next two years at the base of the plateau north of Rulison.” The BLM “approved the company’s first phase in September, and the company has drilled 26 of the 66 planned wells.” Land That Carries Oil, Gas Potential Near Livingston Under Consideration For Lease. KTVQ-TV Billings, MT (1/10, Klemann) reports that “more than 1,400 acres are being considered for lease in the Livingston area for possible oil and gas extraction.” Al Nash, chief of communications for the Bureau of Land Management, said, “We had somebody who came to us after looking at that plan and nominated these parcels for inclusion on an upcoming sale.” Nash did not identify who nominated the parcels of land. Bureau Of Land Management Approves Expansion Of Phil’s World. The Southwest Colorado Journal (1/10, Mimiaga) reports that “the Bureau of Land Management’s Tres Rios Field Office released a decision Wednesday to expand Phil’s World, a nationally recognized mountain bike trail system six miles east of Cortez.” The move “includes adding 22.5 miles of sustainable single track, non-motorized trails and adding two new trailheads and parking areas.” Connie Clementson, Tres Rios Field manager, said, “Phil’s World is one of the top 20 mountain biking destinations on BLMmanaged lands. Its proximity to Cortez also makes it an ideal place to implement the BLM Recreation Strategy, which emphasizes connecting communities while facilitating access to America’s backyard.” BLM Releases Strategy For Old Spanish Trail. The Alamosa (CO) Valley Courier (1/10) reports that the Bureau of Land Management and the National Park Service have released a Comprehensive Administrative Strategy for the Old Spanish Trail. BLM-Utah State Director and OSNHT Co-Administrator Ed Roberson said, “This Comprehensive Administrative Strategy is the result of years of dedicated collaboration between BLM and NPS, with significant input from tribes, the Old Spanish Trail Association and its numerous local chapters, and other stakeholders. This strategy serves American communities by identifying opportunities to improve recreational access and collaborative educational efforts at many important historic sites on public lands.” Entrance Fees For Red Rock Canyon Increasing Next Month. The AP (1/10) reports that entrance fees at the Red Rock Canyon National Conservation Area will increase on Feb. 20. The Bureau of Land Management “says the increase will support the growing number of visitors and improve service to the public.” Bureau Of Reclamation Day Use Fees Waived At New Melones Lake For All Visitors On Monday, January 15, 2018. The Sierra (CA) Sun Times (1/10) reports that “on Martin Luther King, Jr. Day, Monday, Jan. 15, 2018, the Bureau of Reclamation’s Mid-Pacific Region, Central California Area Office, will waive day use fees at New Melones Lake for all visitors in observance of the civil rights leader’s birthday.” However, “other fees, such as for overnight camping and boat launching, will still apply.” Fish And Wildlife Service Court OKs Killing A Type Of Owl To See Effect On Other Owls. The AP (1/10) reports that the 9th U.S. Circuit Court of Appeals has “upheld a plan by wildlife officials to kill one type of owl to study its effect on another type of owl.” The court “said Wednesday that the experiment by the U.S. Fish and Wildlife Service didn’t violate a federal law aimed at protecting migratory birds.” The court held “that law doesn’t prevent killing one species to advance the scientific understanding of another.” Additional coverage was provided by Courthouse News (1/10, Brown). Piping Plovers Say ‘No Thanks’ To Human Sandbars. Courthouse News (1/10, Duffy) reports that “for threatened piping plovers, engineered sandbars do not offer the same benefits as natural ones, a new study finds.” The study, “published Wednesday in the journal The Condor: Ornithological Applications, examines whether engineered sandbars built along the Missouri River are effective substitutes for natural sandbars, the creation of which has been reduced along the river by the Gavins Point Dam on the Nebraska-South Dakota border.” Co-author Anne Hecht, piping plover recovery coordinator for the U.S. Fish and Wildlife Service, said, “This paper presents a clear contrast in demographic rates of piping plovers in naturally created and humanrestored habitats that can be used to compare and refine conservation strategies.” She added, “Although it focuses on Missouri River sandbars, it has important implications for conservation of piping plover habitat range-wide, as well as for other species experiencing disruption of habitat formation processes.” Genoa Fish Hatchery Builds New Interpretive Center. WKBT-TV La Crosse, WI (1/10, Fremstad) reports that the Genoa National Fish Hatchery has a new information facility. The Great River Road Interpretive Center was “funded by the National Scenic Byways Program as well as the U.S Fish and Wildlife Service.” According to the article, “the $3.75 million project features exhibits about the history of the Mississippi River Valley, including the famous Battle of Bad Axe that ended the Black Hawk War in 1832.” Hartig Retiring As Wildlife Refuge Manager. The Monroe (MI) Evening News (1/9, Cousino) reports that “John Hartig, manager of the Detroit River International Wildlife Refuge for the past 14 years, is retiring this month after accepting a Fulbright Scholarship to study the effectiveness of decades-long conservation efforts to restore the ecological health of the Great Lakes.” His last day will be Jan. 19. An open house will be held Jan. 23 honoring Hartig. Conservationists Line Up Against Ending Wolf Management. The AP (1/10, Richmond) reports that “conservationists pushed back Wednesday against a bill that would end state wolf management efforts and bar state police from investigating wolf poaching, saying the measure will open the door to indiscriminate wolf hunts and won’t help get the animals off the federal endangered species list.” The legislation will “create a perception that hunting wolves is permissible even though the practice would remain illegal under both state and federal law, they said during an Assembly natural resources committee hearing.” Also, “they warned that wolf advocacy groups will seize on the legislation to argue to Congress that Wisconsin can’t manage wolves and the animals should remain on the endangered species list.” National Park Service National Park Service Reopens Second Floor Of MLK Birth Home. The Atlanta Journal-Constitution (1/10, Miller) reports that the repairs on the second floor of the birth home of the Rev. Martin Luther King Jr. are “complete and the National Park Service will re-open it to the public on Jan. 15, the Martin Luther King Jr. National Holiday.” Superintendent Judy Forte said, “We are thrilled that the second floor of the Auburn Avenue historic home will be reopened in time for the King Holiday, visitors will be able to view the room that Dr. King was born in 89 years ago. We are also excited that a full condition assessment of the entire home has been completed to ensure the preservation and protection of this national treasure for future generations.” Lawyers: Alaska Hovercraft Suit Could Have Nationwide Impact. The AP (1/11) reports that “Alaska resident John Sturgeon has been fighting to get his hovercraft back on the Yukon-Charley Rivers National Preserve ever since the National Park Service told him in 2007 that he no longer could operate his amphibious vehicle there.” Sturgeon’s attorneys “say their most recent lawsuit has broad ramifications for American federalism and the basic rules of land and water ownership nationwide.” His lawyers have “petitioned for the U.S. Supreme Court to take the case for a second time.” More Than 150 Jobs Up For Grabs At Gateway Arch. The St. Louis Post-Dispatch (1/10, Thorsen) reports that “a newly renovated Gateway Arch will mean more than 150 mostly seasonal jobs to handle expected visitor demand.” Available position include “tour guides, sales associates in the store, National Park Service security guards and a full-time ticket sales supervisor.” The National Parks Service is “filling 46 part-time, full-time and seasonal federal government positions, including $17.34-an-hour jobs as gardeners and laborers.” National Seashore Exerting Crab Island Jurisdiction. The Panama City (FL) News Herald (1/10, Judnich) reports that a workshop was held on Monday on Crab Island issues. Dan Brown, superintendent for Gulf Islands National Seashore, was joined at the workshop by Destin, Okaloosa County and state officials, “as well as more than 40 members of the public, including many Crab Island business vendors.” According to the article, “much of the discussion revolved around public safety and public health at the island, and whether it should face more regulations.” No Deal — Historic Wright Building To Be Destroyed. The Daily Inter Lake (MT) (1/10, Hintze) reports that “efforts to save the historic Frank Lloyd Wright Building in downtown Whitefish came to an abrupt end late Wednesday, and crews were preparing for the demolition of the brick building designed by the famous architect.” The building owner “had set a Jan. 10 deadline for preservation groups to raise $1.7 million in cash to buy the building that is listed on the National Register of Historic Places.” But the Frank Lloyd Wright Building Conservancy “issued a press release late Wednesday, saying a buyer to put up the full $1.7 million cash required by the owner could not be found by the deadline.” Lakeside Historic District Now On National Register Of Historic Places. WANE-TV Fort Wayne, IN (1/10) reports that “more than 400 homes in the Lakeside area of the Northside Neighborhood” has been added to the National Register of Historic Places. Office Of Insular Affairs Guam, Hawaii, Northern Marianas Lawmakers Seek More Funding For Immigrant Costs. The Guam Daily Post (1/10) reports that “Guam Delegate Madeleine Bordallo and her counterparts from Hawaii and the Northern Marianas are urging for additional federal funding as hosts to the uncontrolled entry of immigrants through the Compact of Free Association.” Hawaii Reps. Colleen Hanabusa and Tulsi Gabbard and Northern Marianas Del. Gregorio Sablan co-authored the legislation, which was reintroduced in Congress on Wednesday. Additional coverage was provided by the Big Island (HI) Now (1/10). Minister Attacks Chinese Aid To Pacific. The Australian Associated Press (1/9) reports “the minister in charge of Australia’s aid program has hit out at China’s assistance to tiny Pacific island nations for building ‘white elephants’ and ‘roads to nowhere.’” International Development Minister Concetta Fierravanti-Wells also raised “concerns about the sustainability of China’s loan arrangements with Pacific islands nations.” Fierravanti-Wells said, “Burdensome debt can divert scarce public resources from more important needs such as health and education.” Massive 7.6 Magnitude Earthquake Strikes In The Caribbean. The Daily Mail (1/9, Crane) reports that “a massive 7.6 magnitude earthquake has struck the Caribbean Sea, prompting a tsunami warning for nearby islands including the US Virgin Islands, Puerto Rico and Jamaica.” The quake, “one of the largest to hit the Caribbean in recorded history, struck on Tuesday night at about 9.51pm just over 25 miles from the coast of Great Swan Island, belonging to Honduras.” The Pacific Tsunami Warning Center “said a tsunami advisory was put in place for hurricane-hit Puerto Rico and the US Virgin Islands and warned of possible waves up to three feet above tide level.” Power Is Restored To Most Of U.S. Virgin Islands After Hurricanes, Officials Say. The New York Times (1/9, Mazzei) reports that “months after two Category 5 hurricanes pummeled the United States Virgin Islands, officials said Tuesday that power has been restored to 92 percent of customers, a significant improvement from even a month ago, when about half of them remained in the dark.” Bringing electricity “back up may help speed recovery in other areas that require basic infrastructure to operate, experts say, even as Gov. Kenneth E. Mapp estimated Tuesday that there was a long way to go after Hurricanes Irma and Maria.” On the Virgin Islands, “folks are getting properties more open, in terms of some hotel rooms, villas, condominiums that are used as Airbnb, and winter homes, in terms of people renting them out,” Mapp said. He added, “It’s an integral part of the recovery process, but by no means does it mean half of the recovery is over.” Mapp Appoints Bloomberg LP Co-Founder To Hurricane Recovery Committee. The St. Thomas Source (1/10) reports that Gov. Kenneth Mapp “appointed Bloomberg L.P. co-founder Tom Secunda as a member of his hurricane recovery advisory committee, helping set the course for recovery of the U.S. Virgin Islands, Government House announced Tuesday.” Secunda is “a long-time St. John resident, according to Government House.” Mapp said in a statement, “There is no question how deeply Tom cares about our territory. Our task force will benefit greatly from diverse minds like his and from Tom’s vast environmental knowledge and business acumen.” FBI ‘Prepared To Investigate’ Hagåtña Detainee’s Death. The Guam Daily Post (1/9, O'Connor) reports that the FBI is “working closely with the Guam Police Department and the Department of Corrections in connection with the recent beating death of a detainee.” Local officials announced they requested the FBI’s assistance, “following Chief Medical Examiner Dr. Aurelio Espinola’s statements that the jail cell where the detainee died was cleaned up and the victim had been dead for hours before authorities were notified.” Michele Ernst, with the Guam Resident Agency of the FBI Honolulu Field Office, said, “We will access the facts and if there is evidence of a federal violation, the FBI is prepared to investigate.” US Geological Survey How Fire, Wind And Rain Combined To Create The Deadly Mudslide In California. USA Today (1/10, Bacon) reports that “a perfect storm of land development, fire, wind and then rain conspired to create the deadly avalanche of mud and debris that leveled homes in Southern California this week.” The region was “recently ravaged by winddriven wildfires that included the Thomas Fire, the state’s biggest on record, that left hillsides in places like Montecito vulnerable for the destruction brought by the first downpours of the region’s rainy season.” The U.S. Geological Survey, “in a study of wildfires and debris flows in Southern California, notes that post-fire debris flows are most common within two years of a fire and are usually triggered by heavy rainfall.” Opinion Pieces Cramer: North Dakota Finds Partner In Zinke. In an op-ed for the Grand Forks (ND) Herald (1/10, Cramer), North Dakota US Rep. Kevin Cramer writes that Interior Secretary Ryan Zinke has proven his commitment to working with the state of North Dakota by showing a high level of attentiveness, which has been “undemonstrated for years, or even decades, by previous Interior officials.” Under Zinke, the Interior Department has enacted policies that are consistent with commonsense and has removed unnecessary regulations such as “the senseless federal coal moratorium and BLM hydraulic fracturing rule imposed under the Obama Administration.” Additionally, Zinke met with “state and community stakeholders...personally...in his office” over the Garrison Diversion Project. Cramer states, “I thank the Secretary for his commitment and dedication to making our state a better place and I look forward to a successful 2018 under his leadership.” Excluding Florida From A New Offshore Drilling Plan Sure Looks Partisan. The Washington Post (1/10) editorializes, “Cynicism always been a part of politics, but rarely are politicians so brazen and self-serving” as President Trump and Interior Secretary Ryan Zinke have been regarding the Florida exception from the offshore drilling plan. Additional commentary appeared in The Hill (1/10, Ebell), CNN (1/10, Weaver), U.S. News & World Report (1/10, Livermore, Hein), the Los Angeles Times (1/10), the Los Angeles Times (1/10), the Los Angeles Times (1/10), the San Francisco Chronicle (1/11), the Orlando (FL) Sentinel (1/10), the Palm Beach (FL) Post (1/10), the Tideland News (NC) (1/10, Ball), the Tampa Bay (FL) Times (1/10), the Tampa Bay (FL) Times (1/10, McNeill), the Tampa (FL) Tribune (1/9, Ruth), the Berkeley (SC) Independent (1/10), and the Idaho Mountain Express (1/10). Drilling In Alaska Is Good For The Earth. In a Wall Street Journal (1/10) op-ed, Thomas Landstreet of N3L Capital Management argues in favor of drilling in the Arctic National Wildlife Refuge, stating that it is actually more environmentally sound than offshore drilling or fracking. Landstreet suggests that by increasing oil production from onshore resources, such as ANWR, there will be less of a price incentive for oil companies to drill offshore or utilize hazardous hydraulic fracturing techniques. Leaving Fossil Fuels Like Oil And Natural Gas Underground Makes No Sense. In an op-ed for U.S. News World Report (1/10, Perry), The American Enterprise Institute and the University of Michigan professor of economics Mark Perry states if the ?climateer? campaign to keep fossil fuels in the ground is successful, the results could be tragic as ?we could experience an upheaval in energy markets similar to what happened during the embargo of the 19705.? According to the Energy Information Administration, wind and solar energy together supply roughly three percent of American energy. Perry argues that natural gas will be essential to the increased use of wind and solar power since it will serve as a backup and ?that the U.S. is a world leader in the reduction of greenhouse-gas emissions due to the increased use of natural gas.? The EIA has estimated ?that solar and wind power together will provide less than 10 percent of America?s energy in 2050? while oil and natural gas will be supplying two thirds of the country?s energy through 2050. Nothing Conservative About Rob Bishop?s Public Lands Agenda. In an op-ed for the Washington Examiner (1/11, Jenkins), David Jenkins, President of Conservatives for Responsible Stewardship, and a member of the American Monuments Alliance, writes that Rep. Rob Bishop, in a Dec. 26 interview with the Washington Examiner, ?made a number of statements that reveal just how radical and short-sighted his public lands agenda is.? Jenkins posits, ?It is bad enough they are upending the Theodore Roosevelt conservation ethic that has guided our leaders for more than a century, but since when do Republicans ignore the pleas of local small businesses?" Jenkins says that ?no matter how Bishop and the administration try to spin it, their zeal to undo protections for these special places represents special interest ?swamp? politics at its worst.? He concludes: ?There is nothing conservative about dismantling America?s national monuments. It is contrary to local economic needs, it is not what the vast majority of Americans want, and it betrays that moral obligation President Reagan reminded us of so eloquently.? Why Conservatives Should Oppose Shrinking National Monuments. In an op-ed for the Washington Post (1/10, Shirley), Craig Shirley argues why conservatives like himself should be opposed to the Trump Administration?s move to shrink national monuments. He notes that ?protecting natural beauty has long been a conservative priority.? Furthermore, he points to a recent poll by the GOP firm of McLaughlin and Associates, which found that ?85 percent of Republicans want ?more? monuments or wanted to keep them ?as is,? while ?only 15 percent support reduction.? Tribune Editorial: Cliven Bundy Is Right. We?re Not Done With This. The Salt Lake (UT) Tribune in an editorial on the Bundy trial, says the U.S. Attorney?s Office for Nevada ?had been caught in a serious violation of legal ethics.? The Tribune adds, ?the maddening fact is that, by holding to the standards of a decent and lawful society, the federal government managed to hand a victory to people who have no such respect.? Additional Reading. 0 Monument Sizes Need To Be Reined In: Plilf. Reno (NV) Gazette-Journal (1/10, P?lf). 0 [Support Our State?s Treasures. Waynesville (NC) Smoky Mountain News (1/10, Burr). 0 Environmental Concerns Cross Party Lines. Delmarva (MD) Daily Times (1/10, Field). 0 NCAI Supports Bears Ears Coalition And Affected Tribes. Alaska Native News 10). 0 Jay Evensen: The Irony Of The Cliven Bundy Case. Deseret UT) News 10, Evensen). 0 Twin Metals Decision Part Of A Much Broader Initiative. Cook-Orr 1 MN) Timbeg?ay (1/10, Helmberger). 0 What Abbey?s ?Desert Solitaire? Means In These Trying Times. Hiqh Countrv (CO) News (1/10, Buckley). 0 Get Busy, Reno (NV) News Review 0 A New Documentary Seeks To Capture The Plight Of America ?5 Wild Horses. New Yorker (1/10, Kormann). 0 Supreme Court Will Decide The Fate Of An Endangered Frog In A Regulatory Swamp. Washington Examiner (1/11, Miller). A Coastline Precaution. Newoort News (VA) Daily Press Top National News Trump: Mueller Interview ?Seems Unlikely,? But ?We?ll See What Happens.? Coverage of President Trump?s assertion that an interview with Special Counsel Robert Mueller ?seems unlikely? given that there was ?no collusion? with Russia is generally covered in brief, straightforward accounts of the President?s words, though ABC reported that the President once had a different position. ABC World News Tonight? (1/10, story 3, 2:50, Muir) reported, ?After telling our correspondent he would ?100%? be willing to answer questions under oath, today, when asked if he would speak with? Mueller, Trump?s ?answer was much different.? Jonathan Karl: ?It's a key pledge President Trump has made again and again, that he is willing to be interviewed by Special Counsel Robert Mueller. But today at the White House, he seemed to backtrack.? Trump: ?We?ll see what happens. I mean, certainly, I?ll see what happens. But when they have no collusion, and nobody has found any collusion at any level, it seems unlikely that you?d even have an interview.? Karl: ?But ABC News has confirmed that Mueller has told the President's lawyers he is likely to request an interview with the President. And in June, the President told us he would do it. Would you be willing to speak under oath to give your version of those events?? Trump: Karl: ?So if Robert Mueller wanted to speak with you about that.? Trump: ?I'd be glad to tell him exactly what I just told you, Jon.? The CBS Evening News? (1/10, story 6, 1:55, Glor) reported, ?The President suggested today there is not much chance he?ll agree to be interviewed in the Russia investigation.? Major Garrett: ?He did point to a precedent for potential interview, comparing his situation to the Hillary Clinton email investigation.? Trump: ?Hillary Clinton had an interview where she wasn't sworn in. She wasn?t given the oath. They didn?t take notes. They didn?t record. And it was done on the Fourth of July weekend.? Garrett: ?Clinton?s interview with FBI occurred July 2, 2016, and lasted 3.5 hours. Investigators did take notes, despite Mr. Trump?s claim.? NBC Newsit (1/10, story 2, 2:10, Holt) reported that Trump is ?now casting doubt over whether he would submit to an interview." The (1/10, Jalonick) reports, ?The comments come after Trump had already lashed out at the investigations on Twitter Wednesday morning, urging Republicans to take control of the inquiries and repeating his claim that they are on a ?witch hunt.?? The President tweeted, ?The single greatest Witch Hunt in American history continues. There was no collusion, everybody including the Dems knows there was no collusion, yet on and on it goes. Russia the world is laughing at the stupidity they are witnessing. Republicans should finally take control!? Bush Administration ethics counsel Richard Painter tweeted in response, ?Sit down with Robert Mueller and tell him this. He'll have some questions and will expect truthful answers.? USA Today (1/10, Jackson) reports that Trump's ?legal team is in early talks? with investigators ?about a possible interview with the it could take weeks for both sides to agree on the scope of the interview and the logistics.? The Washington Post (1/10, Dawsey) reports, ?Muller has interviewed a number of Trump?s senior aides and associates in recent months,? including Jared Kushner, ex-chief of staff Reince Priebus, Communications Director Hope Hicks, and White House Counsel Donald McGahn. Trump said, ?For 11 months they?ve had this phony cloud over this Administration, over our government. It?s a Democrat hoax.? Kellyanne Conway said on Cuomo Prime Timeit was the campaign manager for the winning part of the campaign and the idea that we would have to look any further than Hillary Clinton to beat Hillary Clinton itself is a fantasy. I didn?t need to talk to anybody in Moscow. There?s no reason to have gone anywhere outside of Hillary Clinton and how unattractive her policies were. So many people can?t get over the election results.? Rep. Adam Schiff (D-CA), ranking member on the House Intelligence Committee, said on Anderson Cooper 360 it ?The President seems to repeat this as a mantra: ?no collusion, no collusion, no collusion.? We found scores of meetings that the Trump campaign said they never had. We?ve had Trump official after Trump official lie about those meetings, two already plead guilty to lying about those meetings, and, of course, a pivotal meeting in Trump Tower with three of the top campaign people that was undertaken with the promise of obtaining dirt from the Russians on Hillary Clinton as part of what was described as the Russian effort to help the Trump campaign.? Sen. Richard Blumenthal tweeted, ?Pres. Trump?s statement about potentially avoiding a Special Counsel interview seems to disregard both fact and law.? Rep. Ted Lieu (D-CA) tweeted, ?What makes America great is that @realDonaldTrump doesn?t get to decide if he or others committed crimes. Robert Mueller and our judicial system decide. Congress can also make a determination of whether violated the law. That was the whole point of Watergate.? Charles Blow of the New York Times tweeted, ?Thing #1,345,927 that bothers me: Every time Trump speaks now he says it have been proven that there is no collusion. That?s a lie. No one knows what Mueller has. But, tv airs Trump?s statement without rebutting. Not responsible.? University of Alabama law professor and legal commentator Joyce White Vance tweeted, ?Ultimately, Trump has to agree to an interview with Mueller. The alternative is a grand jury subpoena a witness can?t take his lawyer in with him. Look for Trump's team to be willing to compromise to keep a lawyer alongside him during the interview with prosecutors.? The Washington Times (1/10, Boyer), Washington Examiner (1/10, Kasperowicz), Politico (1/10, Lima), and The Hill (1/10, Fabian, Kamisar) also have brief reports on the President?s comments. Trump Slams "Sneaky" Feinstein Over Release Of Fusion GPS Testimony. The Washington Post (1/10, Dawsey) reports, ?President Trump labeled Sen. Dianne Feinstein as ?Sneaky? in a Twitter attack Wednesday morning and urged Republicans to ?take control? of the sprawling? Russia investigation. The New York Post (1/10, Fredericks) reports that Trump accused Feinstein ?of being ?underhanded and a disgrace? for disclosing details of a dossier of allegations about his ties to Russia during the campaign.? Trump tweeted, ?The fact that Sneaky Dianne Feinstein, who has on numerous occasions stated that collusion between Trump/Russia has not been found, would release testimony in such an underhanded and possibly illegal way, totally without authorization, is a disgrace. Must have tough Primary!? The Wall Street Journal (1/10) says in an editorial that Feinstein?s unilateral action should be followed up with the release of all documents related to the probe. The Journal says that Democrats appear to be interested only in releasing information that makes Trump and the Administration look bad, and if the FBI has any evidence of collusion, it should be made public. The Hill (1/10, Samuels) reports that Sen. Lindsey Graham and Rep. Mark Meadows (R-NC) ?intensified their attacks? on the dossier compiled by Fusion GPS. Graham tweeted, want the entire story regarding Fusion GPS, the Dossier, and the Department of Justice to be revealed.? Meadows ?listed multiple questions about the dossier he still wants answered, including whether? President Obama?s Justice Department ?used it to target the Trump campaign.? Senate Foreign Relations Committee Democrats Release Report On Russian Interference. Brian Todd reported on Situation Room? (1/10) that a new report from Democrats on the Senate Foreign Relations Committee says Russia is improving its foreign interference tactics and has set its sights on ?disrupting the 2018 midterms and 2020 presidential election.? The report comes after Sen. Ben Cardin and his investigators spent months talking to European officials about the Kremlin?s efforts to interfere in their elections, ?nding that the US ?is not as good as its European allies in countering the threat,? and ?won?t be prepared? for the upcoming elections. CNN showed Cardin saying, ?Never before has a US president so clearly ignored such a grave threat and a growing threat to US national security.? Sen. Chris Murphy said on Situation Room?t don?t think the President understands how serious the Russians are about manipulating democracies and democratic elections.? The New York Times (1/10, Fandos) reports that the Democrats? report ?is one of the most extensive to date on foreign interference" by Russia and President Vladimir Putin. It ?tracks Russian efforts in 19 countries, chronicling misinformation campaigns, the funding of far-right political causes and the manipulation of energy supplies long before 2016 in an attempt to glean lessons for American of?cials considering how to counteract similar efforts here.? Cardin writes in a Washington Post (1/10) op-ed, ?Trump must provide unequivocal presidential leadership to mobilize our own government and the American people.? The US must also ?embark on an effort to build more resilience here at home and in democratic institutions across Europe the best defense against Russian interference. Third, the United States and our allies should go on the offense and expose and freeze Kremlin-linked dirty money, placing Moscow under a preemptive and escalatory sanctions regime as a deterrent to future attacks on democratic institutions." Finally, the US ?should work with social-media companies and hold them accountable for their role in allowing the Kremlin's disinformation campaigns to spread unchecked.? The New York Times (1/10) editorializes, ?In the face of complacency from Republicans fearful of what attention to these intrigues might reveal about the Trump campaign?s dealings with Russia, Democrats on the Senate Foreign Relations Committee have issued a report that appears to be the most comprehensive public accounting of Russia?s war on the West. It drives home the point that the 2016 part of a pattern in which Mr. Putin has worked to erode Western institutions and undermine faith in democratic practices." Mueller Adds ?Veteran Cyber Prosecutor? To Team. The Washington Post 10, Zapotosky) reports that Mueller has added ?veteran cyber prosecutor? Ryan Dickey to his team, ?filling what has long been a gap in expertise and potentially signaling a recent focus on computer crimes.? McCabe Urged FBI Staff To ?Hang In There?After Comey Firing. The Washington Examiner (1/10, Cohen) reports, Deputy Director Andrew McCabe tried to keep up the morale at the FBI after it was revealed that Director James Comey was ?red, according to a letter McCabe wrote then that was released Wednesday.? McCabe wrote, ?Thank you for continuing to do the great work of this organization. So please - hang in there. As men and women of the FBI, we are at our best when times are tough. Please stay focused on the mission, keep doing great work, be good to each other and we will get through this together.? Twitter Misses Senate Intelligence Committee Information Deadline. The Washington Times (1/10, Blake) reports, ?Twitter has missed a deadline to provide the Senate Intelligence Committee with answers involving certain Russian-linked accounts requested by lawmakers.? Senate Intelligence Vice Chairman Mark Warner ?blasted Twitter after a Monday deadline came and went this week without his committee receiving further information about the Internet Research Agency, a Kremlin-linked ?troll farm? accused of exploiting social media platforms.? FBI Will Alert Companies And Public About Russian Social Media Manipulation. Bloomberg News (1/10, Strohm) reports that the FBI will begin alerting ?companies and the public about efforts by Russia or other nations to use disinformation and social media manipulation to interfere in upcoming elections.? FBI official Jeffrey Tricoli said, ?We?ve been reluctant in some instances to share the amount of information of what we know about what?s happening. Going forward there?s going to be opportunities for us to share information in better ways.? Russian Billionaire Sues Manafort. The Wall Street Journal (1/10, Patterson) reports that Russian billionaire Oleg Deripaska sued ex-Trump campaign chairman Paul Manafort on Wednesday, alleging he and a partner misappropriated at least $18.9 million that Deripaska had invested. Street Outside Russian Embassy Renamed For Slain Opposition Figure. The Washington Times (1/10, Boylan) reports, ?The District of Columbia's city council has voted to rename the street outside the Russian Embassy? after Russian opposition figure Boris Nemtsov, ?who was assassinated near the Kremlin in 2015.? Trump Stresses That Border Wall Must Be Part Of Any DACA Deal. During a press conference at the White House on Wednesday, President Trump reiterated his position that he would not sign a deal to protect Dreamers that does not include funding for a wall along the US-Mexico border. Trump?s comments came as his claim during a White House meeting with lawmakers on Tuesday that he would sign an immigration bill that did not include everything he wanted drew criticism from the right. For example, Laura Ingraham said on Fox News? Ingraham Angle? ?Maybe the President realized he?s never going to get a wall unless he does a DACA amnesty. Maybe he thinks he just can?t end chain migration unless he gives legal status to those 800,000 illegals. That is a hard pill for many of his most loyal supporters to swallow.? Ingraham added, ?The President has to remain loyal to his supporters and to his agenda, the one he ran on, the one that won all that applause and rave reviews? and ?he has to be willing to walk away yes, walk away from a bad deal just the way Reagan walked away from a bad deal with the Soviets at Reykjavik. I?m going to wait to see what the final DACA proposal looks like, but if it does not include a wall a real wall, not a see- through wall expect a political revolt from the base which means losing the House and maybe even losing the Senate." The Washington Times (1/10, Dinan, Miller) reports that Senate Democrats have ?backed off their red line over? the wall, ?saying they saw a deal in sight that could include permission to build more fencing as part of a broad agreement to legalize illegal immigrant ?Dreamers.?? For his part, Trump ?is seeking a much less dramatic wall than the ?sea-to-sea? version he touted during the 2016,? but he ?remains adamant that the wall be included in the current negotiations over how to legalize Dreamers.? Peter Alexander said on NBC News?t (1/10, story 2, 2:10, Holt) that Trump ?reaffirm[ed] his desire to resolve the legal jeopardy faced? by Dreamers, but he ?show[ed] no willingness to budge on his top demand." Nancy Cordes said on the Evening Newsit (1/10, story 4, 2: 10, Glor) that while Trump ?appeared to side with Democrats? about how to address the Dreamers, by Wednesday he ?was back on the same page.? In a separate story, the Washington Times (1/10, Boyer) says Trump ?reiterated? that ?any immigration bill approved by Congress must include funding for his proposed border wall.? USA Today (1/10, Korte, Jackson) says that while building the wall ?was a central tenet of his campaign for president,? Trump ?thrust that commitment into doubt briefly on Tuesday when he appeared to he would deal with the so-called first and come back to the wall later.? Similarly, Breitbart (1/10, Spiering) says Trump ?seemed to contradict what he told members of Congress during the meeting: that he would sign a bill, even if it did not have everything that he wanted.? The Hill (1/10, Fabian, Hagen) says Trump ?sought to clarify? those comments, and Bloomberg News (1/10, Olorunnipa) says he ?appear[ed] to walk back" the remarks, saying, ?It?s got to include the wall. Security is number one, so the answer is you have to have the wall.? The Daily Caller (1/10, Enjeti) also reports on Trump?s comments Wednesday under the headline, ?Trump Draws A Red Line On Wall Funding For DACA Fix.? Mary Bruce said on ABC World News Tonight?t (1/10, story 4, 2:10, Muir) that ?Republicans insist they?ll deliver some sort of a wall." Rep. Raul Labrador (R-ID) said on Fox News? Tucker Carlson Tonightit (1/10) that ?we do not need to do a DACA bill. Some people in our leadership believe that is a priority of the Republican conference. It shouldn?t be. The to secure the border, to end chain migration.? Sen. David Perdue said on Fox News' Fox Friendsit think yesterday was a watershed date. I think this president is an outsider. He is a business guy. He just wants to get results on this issue just like he did on tax. What we did yesterday is agreed on two things. One, we agreed on the scope of this current negotiation. We are not trying to solve all the immigration problems here. What we want to do is solve the DACA issue, bring border security to our borders. Second thing or third thing is eliminate chain migration and this archaic diversity visa lottery. The second thing the President did yesterday was establish a sense of urgency. That's something rare here in Washington.? Nielsen: Wall Is More Than A Physical Barrier. The Washington Times 10, Persons) reports that DHS Secretary Nielsen told Fox News? America?s Newsroom? (1/10) Wednesday that the wall ?is more than just a physical barrier.? Nielsen said, ?The wall system is not just the infrastructure, but it's the technology and personnel we need to make that aspect of border security functions effectively." Asked about the claim that addressing the Dreamers should be a ?bill of love,? Nielsen said, ?He wants to find a permanent fix, but he?s also very clear that the way to do that is we must increase border security, and close loopholes so that we don?t end up here again in two, three years with another population that we're concerned about.? WPost: Democrats Should Agree To Wall To Protect Dreamers. The Washington Post (1/10) says in an editorial that if the deal to protect Dreamers is ?up to $33 billion in border-security measures, including Mr. Trump's ?beautiful? wall,? and it is not ?freighted with a laundry list of other items on the GOP wish list,? Democrats ?should take it.? The Post argues that while the wall ?is a dumb idea,? it is rare ?that a dumb idea in Congress actually buys something smart in return.? Gohmert: If Republicans Pass Amnesty Without Building Wall, They Will Lose House. In an op-ed for the Daily Caller Rep. Louie Gohmert (R-TX) warns that if Republicans ?again help pass an amnesty bill,? without ?securing the border and building a wall where it is needed,? they will lose their majority in the House, after which House Minority Leader Pelosi will be elected speaker and her ??rst order of be an impeachment vote regarding President Donald J. Trump.? Gohmert argues that anyone who offers legislation ?that gives any legal status to groups who are not here legally before the wall is built will be the proximate cause of betraying the determined voters who elected Donald J. Trump as president.? Trump, White House Lash Out After Judge?s Ruling On DA CA Cancellation. In the wake of US District Court Judge William Alsup?s decision blocking President Trump's effort to cancel the DACA program, the President lashed out on Twitter, calling the court system ?broken and unfair,? Politico (1/10, Weaver) reports. Trump tweeted, ?It just shows everyone how broken and unfair our Court System is when the opposing side in a case (such as DACA) always runs to the 9th Circuit and almost always wins before being reversed by higher courts." White House press secretary Sarah Sanders also attacked Alsup?s decision Wednesday, saying in a statement, ?We ?nd this decision to be outrageous, especially in light of the President?s successful bipartisan meeting with House and Senate members at the White House on the same day.? The New York Times (1/10, Sullivan) reports that Sanders said Congress should address the fate of the program. Said Sanders, ?President Trump is committed to the rule of law, and will work with members of both parties to reach a permanent solution that corrects the unconstitutional actions taken by the last administration.? Politico (1/10, Morin) reports that in an interview with Fox News? The Storvit (1/10) on Wednesday, Vice President Pence ?echoed? the President?s criticisms of the ruling. Pence said, ?We believe that decision was wrongly decided. Once again, another West Coast judge has rendered a decision that if it would go to Supreme Court, we?re sure it would be overturned.? Pence also stressed ?that a wall must be part of any DACA approval,? saying, ?As the President said last weekend at Camp David, there?s no DACA fix without a wall. We're going to build a wall and we?re going to end chain migration or we're going to end the Visa Lottery Program, and we're going to deal with DACA. But we're going to do it in a way that will meet the expectation of the American people.? Reuters (1/10) reports that a statement from the Justice Department said it ?looks forward to vindicating its position in further litigation.? However, the Administration ?did not immediately appeal the decision.? Cordes also said on the CBS Evening Newsit (1/10, story 4, 2:10, Glor) that it is unclear how DHS ?plans to handle the judge?s ruling, whether and when it will start accepting DACA applications again.? The New York Times (1/10, Yee, Dickerson, Stolberg) says the of?ces of immigration lawyers were ?deluged on Wednesday morning with clients eager to take advantage of the court-ordered reinstatement." The Wall Street Journal (1/10, Radnofsky, Caldwell) reports that Democrats said the ruling did not change their efforts to pass legislation providing protection for Dreamers. The Washington Post (1/10, Sacchetti) quotes a tweet from Senate Minority Leader Schumer which said, ?Let me be VERY clear: this ruling last night in no way diminishes the urgency of resolving the DACA issue. On this, we agree with @WhiteHouse, who says the ruling doesn?t do anything to reduce Congress? obligation.? In appearances on cable Wednesday, Democrats appeared uni?ed in their position. Sen. Elizabeth Warren said on Morning Joein ?America made a promise to more than 800,000 young people, and we said if you come out of the shadows and get vetted, then you can go to school, you can get jobs, you can join the military, you can become a full part of America. And then Donald Trump broke that promise. He said nope, we?re going to deport these young people. That threw the ball over to Congress and said the only way that they are going to be able to stay is if Congress acts. And so now, we?ve got a clean Dream Act that we have proposed to say these young people can stay here in America and that America honors its promises.? Sen. Mark Warner said on Morning Joeit (1/10) that ?this is a crisis created that was unnecessary because President Trump decided to end this program arbitrarily. The good news is, from the meeting yesterday, it appeared that he was leaning in on being open to solutions and suggestions. I think there are the votes already for a bipartisan clean Dream Act as long as he doesn't try to put preconditions around it. So you never know with this president, whether yesterday's position will stay the same position for today. But at least this morning, we're both cautiously optimistic.? Sen. Chris Coons said on Morning Joeit ?The proof will be in the pudding. We?ll see in a matter of days whether what happened yesterday was simply a publicity stunt that allowed the President to once again change the narrative so that today everything we?re talking about on television this morning is about this promising start to bipartisan conversation around DACA and immigration reform rather than the President?s fitness for office. Is he just trying to change the conversation for a day, or is he trying to demonstrate real leadership?" Sen. Chris Murphy said on Situation Room ?t ?The idea that the President is so enthusiastic about holding these kids hostage to a border wall that only he wants is hard for a lot of Americans to swallow. The fact of the matter is, who knows what the President wants? Some days he says he wants a concrete barrier from the Gulf of Mexico to the Pacific Ocean. Other days he seems as if he wants border fencing and technology. At some points during that meeting this week, he suggested he was fine with a Dreamer bill going by itself and dealing with border security later. So every day we get a different set of demands from the White House, which makes it really hard for Congress to write a bill.? Rep. Luis Gutierrez (D-IL) said on CNN's The Lead it have been reluctant, but I am ready. So when Chuck Schumer and Nancy Pelosi walked out of the meeting with the President in September after Labor Day and then they had Chinese food a week later, the deal was more border security, we would get a Dream Act. In other words, the ransom for taking the Dream kids hostage was more border security. Okay, we're there. But then they changed the goal posts and say no, no, no, there is more ransom. Now we want to take family reunification, which is really what it is. Chain migration is a term coined by extremists, anti-immigrants.? Rep. Beto O?Rourke (D-TX), who sponsored legislation that would provide illegal immigrants with healthcare and free legal assistance to fight deportation, was asked on Fox News? Tucker Carlson Tonightia (1/10) why US taxpayers should fund such legal assistance. O?Rourke replied, think it?s keeping true to who we are. When you have asylum seekers from some of the most violently brutal countries in the world like El Salvador, who are young kids or young families, I want to make sure that they have every opportunity to apply for asylum in this country? so they ?aren?t returned to a country where they face, in some cases, certain death.? Meanwhile, Newsweek (1/10, Dupuy) reports that a memo from the ?liberal-leaning advocacy group? the Center for American Progress Action Fund, which warned Democrats that they could lose in the 2018 midterms if they can?t reach a deal to protect Dreamers, ?has conservatives accusing the party of playing politics with the lives of migrants.? The memo from Jennifer Palmieri ?called on Democrats to make the ?ght for DACA recipients a ?moral imperative? or else risk jeopardizing their chances in 2018,? prompting conservatives ?to claim based on the memo that Democrats are only helping Dreamers for political gain.? Milbank: Immigration Meeting Showed Trump Merely Echoes The Last Thing He Hears. Dana Milbank, in his Washington Post (1/10) column, cites Trump?s ?propensity to agree with the last thing he hears,? and questions whether he is ?actually internalizing the views, or is he merely echoing?? Milbank writes that this week?s Cabinet Room meeting on immigration ?gave the world a glimpse of Trump?s agree-with-the-last-speaker tendency we?ve heard described,? and ?clearly? he is ?merely echoing, not embracing, the words he hears. No mind could possibly assimilate as many diametrically opposed ideas as Trump?s appeared to in those 55 minutes.? Milbank adds that Trump may not have cared that, ?in his reflexive echoing of each speaker, he had contradicted himself repeatedly,? but it is ?more likely he didn?t even notice.? Dionne: Far Right Forces Common-Sense Solutions Off The Table. E.J. Dionne writes in the Washington Post (1/10) that the televised White House meeting on immigration made it ?abundantly clear? that ?bipartisan government is so hard these days? because ?what were once widely seen as moderate, common-sense solutions are pushed off the table by a far right that defines compromise as acquiescence to its agenda.? Dionne says a ?newly gracious Trump was pummeled by parts of his right-wing base for embracing the view of former Florida governor Jeb Bush, whom he had derided in 2016 for calling on us to love our immigrant brothers and sisters.? House GOP Bill Calls For Tougher Enforcement In Exchange For Protecting Dreamers. The Hill (1/10, Zanona) reports that a bill from a group of House Republicans and backed by House Judiciary Chairman Bob Goodlatte and House Homeland Security Chairman Michael McCaul ?would call for more aggressive enforcement measures in exchange for addressing" the Dreamers. Bill supporters hope to ?rally GOP support in the coming days, seizing on the concerns of their House colleagues that they could find themselves stuck with a more narrow immigration deal from the Senate that doesn?t address as many conservative priorities as their own plan.? However, the measure ?has run into some resistance within the GOP, underscoring the challenge for Republican leadership in protecting thousands of young undocumented immigrants in a way that pleases their own ranks.? The New York Times (1/10, Kaplan, Stolberg) says the measure ?clashed fiercely with President Trump?s recent overtures of bipartisanship and highlighted how difficult it will be for Congress and the president to reach accord in the coming weeks." The Times says that it is unclear ?if the proposal would ever come up for a vote in the House, especially after Tuesday?s White House meeting established the parameters for a bipartisan deal.? CEOs Urge Congress To Provide Relief For Dreamers. The Washington Post 10, O'Keefe) reports that a letter from more than 100 corporate leaders calls on Congress ?to act immediately to provide legal relief for hundreds of thousands of young immigrants.? The letter states, ?We write to urge Congress to act immediately and pass a permanent bipartisan legislative solution to enable Dreamers who are currently living, working, and contributing to our communities to continue doing so. The imminent termination of the DACA program is creating an impending crisis for workforces across the country.” The Post says the push from business leaders “could pay dividends in the closing days of the high-stakes negotiations that party leaders believe could lead to an agreement soon.” Lawmakers “Scrambling” To Avoid Government Shutdown. The Hill (1/10, Carney) reports that lawmakers lack “a clear path forward” as the Jan. 19 funding deadline approaches, and says they are “scrambling to avoid a government shutdown.” GOP leaders “are expected to offer a short-term stopgap measure,” but they are “remaining tightlipped about their plan,” with Senate Majority Leader McConnell and House Speaker Ryan “declining to outline their next steps” before the deadline. Likewise, if Republicans do offer a stopgap measure, Democrats “are tightlipped about whether they’ll go along with the plan.” Because Republicans need their votes to keep the government open, Democrats “believe they have leverage to quickly get a deal” on DACA. However, GOP leaders are “skeptical that Democrats would ultimately force a shutdown over the issue before a midterm election in which 10 senators are up for reelection in states won by President Trump.” Trump: US “Could Conceivably” Re-Join Paris Climate Agreement. Reuters (1/10, Mason) reports President Trump said Wednesday that “his primary concern with the Paris climate accord was that it treated the United States unfairly and that if a better deal could be reached, Washington might be persuaded to rejoin the agreement.” Speaking to reporters with Norwegian Prime Minister Erna Solberg, Trump “said he had no problem with agreeing to a climate deal but the Paris accord was ‘a bad deal. So we could conceivably go back in.’” USA Today (1/10, Korte, Jackson) reports the President said the US could re-enter the pact, “but it would have to be under terms that don’t punish the country for its wealth of fossil fuels.” Politico (1/10, Weaver) quotes Trump as saying, “The Paris accord really would have taken away our competitive edge. And we are not going to let this happen. I’m not going to let that happen.” Moon Credits Trump With Bringing North Korea To The Table. The Washington Post (1/10, Fifield) reports that one day after talks with North Korea, South Korean President Moon Jae-in on Wednesday “very diplomatically [gave] much of the credit” to President Trump. Speaking to reporters in Seoul, Moon said, “I give President Trump huge credit for bringing about the inter-Korean talks and I’d like to thank him for that.” In response to a question about Trump’s Saturday tweet that the talks were taking place because he was “firm, strong and willing to commit our total ‘might’ against the North,” Moon “said that the fact North Korea returned to talks...could be the result of American-led sanctions and pressure.” The New York Times (1/10, Choe) quotes Moon as saying, “I am giving a lot of credit to President Trump. I am expressing my gratitude.” The Times says his comment “reflected a tactful maneuver for Mr. Moon: stroking the ego of the American leader, who has claimed credit for the inter-Korean dialogue, while easing fears in Washington and among his conservative critics at home that in his eagerness for dialogue, he may be too accomodating” to North Korean leader Kim Jong-Un. The Washington Times (1/10, Boyer) reports Trump told Moon in a phone call “that he is open to talking with North Korea, the South’s presidential office said.” The White House, meanwhile, said the two leaders “underscored the importance of continuing the maximum pressure campaign against North Korea.” Bloomberg News (1/10, Jacobs, Kong) reports Trump himself on Wednesday “brushed aside fears of an armed conflict” with North Korea at a White House news conference with Norwegian Prime Minister Erna Solberg. Asked by a Norwegian reporter about Marine Corps Commandant General Robert Neller’s remarks to Marines in Norway last month that “there’s a war coming,” Trump said, “Maybe he knows something that I don’t. No, I don’t expect that.” According to Reuters (1/10), the President also said the US would be willing to speak to North Korea “under the right circumstances.” He said this week’s talks between the Koreas went well, and added: “Hopefully it will lead to success for the world, not just for our country, but for the world. And we’ll be seeing over the next number of weeks and months what happens.” With the remarks, the AP (1/10, Pennington, Thomas) says Trump “threw his weight behind the Olympics-inspired diplomatic opening with North Korea.” NYTimes Analysis: Businesswoman’s Fate “A Test Of China’s Resolve On North Korea.” The New York Times (1/10, Myers) reports that “not long ago, Ma Xiaohong was the public face of China’s trade with North Korea.” Ma “built a commercial empire accounting for a fifth of trade between the Communist neighbors.” Now, Ma’s fate “has become a test of China’s willingness to support President Trump’s efforts to throttle North Korea’s nuclear ambitions.” Last year, US prosecutors indicted Ma on charges of “using her companies to help North Korea evade international sanctions.” China then announced its own investigation into Ma, but later said it found no evidence to support the US charges. Editorial Wrap-Up New York Times. “Is Mr. Trump Nuts?” The New York Times (1/10) editorializes that President Trump’s “behavior in office – impulsive, erratic, dishonest, childish, crude – is so alarming, and so far from what Americans expect in their chief executive, that it cries out for a deeper explanation. ... So what’s the right way to deal with Mr. Trump’s evident unfitness? Not the 25th Amendment. ... Impeachment would be a more direct and fitting approach.” However, that “path is...obstructed by Republicans in Congress.” The Times adds, “The best solution is the simplest: Vote, and organize others to register and to vote. ... In November, you can help elect members of Congress who will fight Mr. Trump’s most dangerous behaviors. If that fails, there’s always 2020.” “When Mercy Collides With The Law.” The New York Times (1/10) editorializes that the case of a man who sheltered up to 10 homeless people in his basement on cold nights and city officials in Elgin, Illinois, who shut down the sleepovers “on grounds that they violated a fistful of municipal regulations,” demonstrates conflict “between a human instinct that many people would deem admirable and government codes that many of the same people would regard as sensible.” The man hosting the sleepovers, Greg Schiller, abandoned plans to sue the city after discussing “ways in which the city might work harder to shelter all the homeless on the coldest nights” with officials, which the Times opines is unfortunate in a way. The publication suggests that “a court case might help clarify how far the sanctity of one’s castle extends.” “Who Will Listen To Democrats’ Warning On Russia?” The New York Times (1/10) editorializes, “In the face of complacency from Republicans fearful of what attention to these intrigues might reveal about the Trump campaign’s dealings with Russia, Democrats on the Senate Foreign Relations Committee have issued a report that appears to be the most comprehensive public accounting of Russia’s war on the West. It drives home the point that the 2016 election...is part of a pattern in which Mr. Putin has worked to erode Western institutions and undermine faith in democratic practices.” Washington Post. “Take A Deal For The Dreamers. Build The Wall.” The Washington Post (1/10) says in an editorial that if the deal to protect Dreamers is “up to $33 billion in border-security measures, including Mr. Trump’s ‘beautiful’ wall,” and it is not “freighted with a laundry list of other items on the GOP wish list.” Democrats “should take it.” The Post argues that while the wall “is a dumb idea,” it is rare “that a dumb idea in Congress actually buys something smart in return.” “Blake Farenthold Has Got To Go.” In an editorial, Washington Post (1/10) argues that Rep. Blake Farenthold (R-TX), who has failed to make good on his promise to repay the $84,000 “made in a settlement to a former aide who had accused him of sexual harassment and other improper conduct,” should “keep the money, but...resign immediately.” The Post writes that Farenthold’s “continued service is an embarrassment and discredits the claims of Republican leaders that they won’t tolerate sexual harassment,” in contrast to Democratic leaders, “who properly signaled in the case of now-former Rep. John Conyers Jr. that no tolerance for sexual harassment means no tolerance.” Wall Street Journal. “The Fusion Transparency Rap.” The Wall Street Journal (1/10) says in an editorial that Sen. Dianne Feinstein’s unilateral action in releasing the testimony of Fusion GPS founder Glenn Simpson should be followed up with the release of all documents related to the probe. The Journal says that Democrats appear to be interested only in releasing information that makes Trump and the Administration look bad, and if the FBI has any evidence of collusion, it should be made public. “More Libel Law Bluster.” In an editorial, the Wall Street Journal (1/10) dismisses President Trump’s remarks on libel laws, saying he has no power to change them. “Children’s Healthcare Myths.” In an editorial, the Wall Street Journal (1/10) says claims that Republicans are denying healthcare to children are false. The Journal says the CHIP program will be reauthorized with some needed reforms. Big Picture Headlines From Today’s Front Pages. Wall Street Journal: Buffett Promotes Two Executives, Setting Up Contest To Succeed Him Advisers At Leading Discount Brokers Win Bonuses To Push Higher-Priced Products Toyota Plant Puts Foreign Car Makers On Path To Pass Detroit In US Production With US Aid Cut, Pakistan Drifts Closer To China New York Times: House Republicans’ Hard-Line Immigration Stand Clashes With Trump Overture Trump Sidesteps Question On Mueller Interview A Rush To Find Survivors Amid The Mud Of Southern California Enclave Head-Spinning Days For Young Immigrants As Lawmakers And Judges Debate Their Fate To Grease Wheels Of Congress, Trump Suggests Bringing Back Pork Wielding Data, Women Force A Reckoning Over Bias In The Economics Field Businesswoman’s Fate A Test Of China’s Resolve On North Korea Washington Post: After Mudslides, “Everything’s Gone” For Virginia’s Top Salesman, Legacy Is Still Being Written In A Freer Saudi Arabia, Artists Dream — And Worry Trump Vows To Fight Injunction On DACA Retirements Fuel GOP Fears Of Losing The House Financial Times: Tunisians Mount Street Protests As Anger At Austerity Boils Over US Government Bond Sell-Off Triggers Warnings Warren Buffett Promotes 2 Potential Berkshire Successors Washington Times: Democrats In High-Tax Blue States Look To Gimmicks, Loopholes To Cut Residents’ Federal Bill New York City Mayor Seeks Billions From Oil Companies, Blames Them For Climate Change Olive Branch: Trump Offers Scaled-Back Border Wall As Democrats Soften Resistance Assange’s Asylum In Ecuadoran Embassy In Doubt After Six Years Fusion GPS Co-Founder Backs Author On Trump Dossier: Steele “Doesn’t Sell Baloney” Chamber Of Commerce Aims To Quash Firebrand Candidates, Count Rabble-Rousers Like Bannon Story Lineup From Last Night’s Network News: ABC: California Flood; Weather Forecast; Russia Probe-WH; WH Immigration Policy; Darrell Issa Retirement; Flu Season; Teacher-Supervisor Feud; Hollywood Gender Equal Pay; California Missing Found Dead; Weinstein Stranger Confrontation; Highway Traffic Accident; Family Recovering. CBS: California Flood; California Flood-Challenges; California Flood-Eyewitnesses; WH Immigration Policy; Darrell Issa Retirement; Russia Probe-WH; Baltimore-Patient Dumping; DC-Immigration Raid; Teacher-Supervisor Feud; CES Las Vegas; Local Street Closures; French Alps Heavy Snow; Accidental Bestseller Book; First Female General Dies; First Responders Tribute. NBC: California Flood; Russia Probe-WH; Flu Season; Malaysia Air Flight 370 Mystery; VA Hospital Conditions; Hollywood Gender Equal Pay; Teacher-Supervisor Feud; JFK Airport Conditions; New Dog Breeds; Recovered Child; Police Charity. Network TV At A Glance: California Flood – 14 minutes, 45 seconds Russia Probe-WH – 6 minutes, 55 seconds Story Lineup From This Morning’s Radio News Broadcasts: ABC: California Flood; Russia Probe-WH; Darrell Issa Retirement; Flu Warning; Wall Street News. CBS: Russia Probe-WH; California Flood; Convenient Stores Immigration Raid; Gasoline Price Hike; Wall Street News. FOX: California Flood; WH Immigration Policy; Russia Probe-WH. NPR: California Flood; WH Immigration Policy; Convenient Stores Immigration Raid; Offshore Oil Drilling Controversy; Wall Street News. Washington Schedule Today’s Events In Washington. White House: PRESIDENT TRUMP — Will lead a prison reform roundtable; meets with his National Security team. VICE PRESIDENT PENCE — No public schedule announced. US Senate: 10:00 AM Senate Foreign Relations Committee hearing on U.S. policy for Syria after the Islamic State group – Hearing on ‘U.S. Policy in Syria Post-ISIS’, with testimony from Acting Assistant Secretary of State for Near Eastern Affairs Amb. David Satterfield Location: Dirksen Senate Office Building, Rm 419, Washington, DC http://foreign.senate.gov/ 10:00 AM Senate Judiciary Committee Executive Business Meeting – Executive Business Meeting, with agenda including consideration of nominations including Elizabeth Branch to be U.S. Circuit Judge for the Eleventh Circuit; Stuart Kyle Duncan to be U.S. Circuit Judge for the Fifth Circuit; David Ryan Stras to be U.S. Circuit Judge for the Eighth Circuit; Annemarie Carney Axon and Liles Clifton Burke to be U.S. District Judges for the Northern District of Alabama; R. Stan Baker to be U.S. District Judge for the Southern District of Georgia; Jeffrey Uhlman Beaverstock and Terry Fitzgerald Moorer to be U.S. District Judges for the Southern District of Alabama; Thomas Alvin Farr to be U.S. District Judge for the Eastern District of North Carolina; Brian Allen Benczkowski to be Assistant Attorney General for the Criminal Division; Jeffrey Bossert Clark to be Assistant Attorney General for the Environment and Natural Resources Division; and Eric Dreiband to be Assistant Attorney General for the Civil Rights Division Location: Rm 226, Dirksen Senate Office Bldg, Washington, DC http://judiciary.senate.gov/ 12:15 PM Dem Sen. Chris Coons holds ‘Pen and Pad’ session on Iran – Democratic Senate Committee on Foreign Relations member Chris Coons holds ‘Pen and Pad’ session to discuss ongoing protests in Iran, implications for U.S. policy, and why the U.S. should remain a part of the JCPOA Location: U.S. Capitol, S-316, Washington, DC coons.senate.gov https://twitter.com/SenCoonsOffice 2:00 PM Closed Briefing: Intelligence Matters Location: Rm 219, Hart Senate Office Bldg, Washington, DC http://intelligence.senate.gov Senate HELP Committee Executive Session – Executive Session, with agenda including consideration of nominations of Brig. Gen. (Ret.) Mitchell Zais to be Deputy Secretary of Education; Kenneth Marcus to be Assistant Secretary of Education for Civil Rights; James Blew to be Assistant Secretary of Education for Planning, Evaluation, and Policy Development; Patrick Pizzella to be Deputy Secretary of Labor; Scott Mugno to be Assistant Secretary of Labor for Occupational Safety and Health; Cheryl Stanton to be Department of Labor Wage and Hour Division Administrator; Dr William Beach to be Commissioner of Labor Statistics; and Brett Giroir to be Assistant Secretary of Health and Human Services for Health Location: U.S. Capitol, Washington, DC http://help.senate.gov/ US House: 11:30 AM House Speaker Paul Ryan (R-WI) will hold his weekly press conference. Location: Capitol Visitor Center HVC Studio A, HVC 114. www.speaker.gov https://twitter.com/SpeakerRyan 12:00 PM House votes on FISA Amendments Reauthorization Act – House of Representatives meets for legislative business, with agenda including completion of consideration of ‘S. 139 – FISA Amendments Reauthorization Act of 2017’ Location: U.S. Capitol, Washington, DC http://www.house.gov/ Other: 7:00 AM Surface Navy Association Annual National Symposium continues – Surface Navy Association 30th Annual National Symposium, themed ‘Surface Forces and Cross-Domain Integration’, continues, with final day speakers including Secretary of the Navy Richard Spencer, U.S. Fleet Forces Commander Adm. Philip Davidson, U.S. Maritime Administration Administrator Mark Buzby, Assistant Secretary of the Navy James Geurts, Naval Surface Forces and U.S. Pacific Fleet Naval Surface Force Commander Vice Adm. Thomas Rowden, and Surface Navy Association President Vice Adm. (Ret.) Barry McCullough Location: Hyatt Regency at Crystal City, 2799 Jefferson Davis Highway, Arlington, VA http://www.navysna.org/ https://twitter.com/navysna 8:30 AM The Century Foundation / American Prospect discussion on ‘Health Reform 2020’ – ‘Health Reform 2020: Towards Affordable, Quality Care for All Americans’ discussion hosted by The Century Foundation and the American Prospect, on options to improve affordable, accessible health coverage, from extending Medicare, to expanding Medicaid, to building on the Affordable Care Act. Speakers include The Century Foundation President Mark Zuckerman, The American Prospect Co-founder and Co-editor Paul Starr, American Public Health Association Executive Director Georges Benjamin, Louisiana Secretary of Health Dr Rebekah Gee, Covered California Executive Director Peter Lee, and SKDK Managing Director Anita Dunn Location: Kaiser Family Foundation, 1330 G St NW, Washington, DC www.tcf.org https://twitter.com/tcfdotorg 8:30 AM Dem Rep. Henry Cuellar speaks on the border wall at Brookings – ‘The Wall: The real costs of a barrier between the U.S. and Mexico’ Brookings Institution conversation with Democratic Rep. Henry Cuellar, and Brookings Senior Fellow Vanda Felbab-Brown Location: The Brookings Institution, 1775 Massachusetts Ave NW, Washington, DC http://www.brookings.edu https://twitter.com/BrookingsInst #BrookingsEssay 12:00 PM GOP Rep. Ron DeSantis speaks on Israeli-Palestinian peace process at Heritage Foundation – ‘President Trump’s ‘Ultimate Deal’ Is Israeli-Palestinian Peace Possible?’ Heritage Foundation discussion, with Republican Rep. Ron DeSantis, Council on Foreign Relations Middle Eastern Studies Senior Fellow Elliot Abrams, and Middle East Forum President Daniel Pipes Location: Heritage Foundation, 214 Massachusetts Ave NE, Washington, DC www.heritage.org https://twitter.com/Heritage 2:30 PM HUD’s Fiscal Year 2017 Continuum of Care grant awards announced – Department of Housing and Urban Development announces Fiscal Year 2017 Continuum of Care grant awards – annual homeless grant awards in support of local housing and service programs across the nation – with this year’s funding representing a record $2 billion investment to assist over 7,300 local programs. Secretary of Housing and Urban Development Ben Carson hosts media conference call, alongside U.S. Interagency Council on Homelessness Executive Director Matthew Doherty Location: TBD http://www.hud.gov/ https://twitter.com/HUDNews Last Laughs Late Night Political Humor. Jimmy Kimmel: “Speaking of slippery places, at the White House the Chief of Staff John Kelly is reportedly asking people who work at the White House whether or not they’re planning to stay on the job through the end of the year. Morale among staffers is reported to be low. Why? I have no idea. Seems like everything’s going great.” Jimmy Kimmel: “Trump tweeted this morning, ‘The single greatest witch hunt in American history continues. There was no collusion, everybody including the Dems knows there was no collusion, yet on and on it goes. Russia & the world is laughing at the stupidity they are witnessing. Republicans should finally take control!’ Now first of all, Republicans taking control – Republicans have control of the Senate, the House, and the White House. You can’t give zero stars while you’re driving the Uber.” Jimmy Kimmel: “The President, by the way, reached a major milestone yesterday. I don’t feel like this has gotten enough attention. According to the Washington Post – which has been keeping track, I guess – yesterday Trump told his 2,000th lie since taking office. ... 2,000 lies in 11 months. He’s averaging 5.6 false claims a day, which is impressive considering the fact he’s only working about 2.6 hours a day.” Stephen Colbert: “Trump says the media will be out of business without Trump. Colbert says, Colbert’s fine with that.” Stephen Colbert: “Congratulations are in order because today is Jared Kushner’s birthday. I can’t believe he’s already 14.” Stephen Colbert: “What do you get the man who can’t do everything? It turns out you get him another job because we just learned that in addition to all the other White House duties, Kushner wants to overhaul America’s prison system. Hmmmm, I wonder why he suddenly is so interested in prison conditions?” Stephen Colbert: “Yesterday, it was reported that Steve Bannon lost his job at Breitbart, which shocked me. You can lose your job at Breitbart? Their Casual Friday is a Klan hood.” James Corden: “Congressman Brendan Boyle has proposed a bill that would require all presidential candidates to take a mental examination test, and he’s calling it the ‘Stable Genius Act.’” James Corden: “According to a recent article, President Trump’s son-in-law Jared Kushner has been asked to turn his focus to prison reforms, and based on the way the Russia investigation is going, I assume he wants to make prisons way harder to get into. President Trump had previously put Jared in charge of achieving peace in the Middle East. So congratulations to prison reform on being the next big issue that will never be solved!” Trevor Noah: ?Now that the tax plan has passed, the issue facing Washington is immigration reform. Now unfortunately, Democrats and Republicans have never been able to agree on this issue. Do you kick all the illegal immigrants out? Do you give them a path to citizenship? Do you take their cuisine, and then kick them out? Do you clean their house? Like, what do you do? What do you do?? Jimmy Fallon: read that a Democratic congressman is introducing a bill that would force presidential candidates to take a mental health exam. It is called the ?Too Little, Too Late Act.'? Jimmy Fallon: ?It came out that the FBI might have had an informant inside the Trump campaign. It was someone who wouldn't draw much attention from Trump, which narrows it down to Don Jr. and Eric." Jimmy Fallon: ?Steve Bannon is leaving Breitbart, but he said that he's proud of what they?ve accomplished in the short period of time. For example, in just a few months, they managed to fire Steve Bannon. That's a pretty big achievement, not easy. In the meantime, Fox News released a statement saying they will not be hiring Bannon. Even worse, so did Uber.? Seth Meyers: ?President Trump said today he would not sign a bill to replace the DACA immigration program that does not include funding for a border wall. Okay, can we just tell him it?s been built already? He's never going to Mexico to check. Just tell him it?s big and beautiful, and at the ribbon-cutting, Hillary Clinton fell over onto the Mexico side." Seth Meyers: ?New Jersey Gov. Chris Christie gave his final State of the State address yesterday before leaving office next week, which means somebody is going to have some very high pants to Seth Meyers: ?According to NBC News, a group of Democratic women in Congress will wear black to President Trump's first State of the Union address at the end of the month. And this is nice. Melania said they can borrow her wedding dress.? Copyright 2018 by Bulletin Intelligence LLC Reproduction or redistribution without permission prohibited. Content is drawn from thousands of newspapers, national magazines, national and local television programs, radio broadcasts, social-media platforms and additional forms of open-source data. Sources for Bulletin Intelligence audience-size estimates include Scarborough, MRI, comScore, Nielsen, and the Audit Bureau of Circulation. Data from and access to third party social media platforms, including but not limited to Facebook, Twitter, Instagram and others, is subject to the respective platform?s terms of use. Services that include Factiva content are governed by Factiva?s terms of use. Services including embedded Tweets are also subject to Twitter for Website's information and privacy policie_s. The Department of the Interior News Brie?ng is published ?ve days a week by Bulletin Intelligence, which creates custom brie?ngs for government and corporate leaders. We can be found on the Web at BulletinIntelligence.com, or called at (703) 483-6100. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:16 PM Conversation Contents Fwd: Twin Metals - Order Dismissing Case Attachments: /5. Fwd: Twin Metals - Order Dismissing Case/1.1 NRS-#1173601-v1-ECF_132__Order_Dismissing_Case.PDF /5. Fwd: Twin Metals - Order Dismissing Case/3.1 NRS-#1173601-v1-ECF_132__Order_Dismissing_Case.PDF /5. Fwd: Twin Metals - Order Dismissing Case/3.2 2017.12.22 TM dismissal notice.pdf "Hawbecker, Karen" From: Sent: To: Subject: Attachments: "Hawbecker, Karen" Tue Jan 09 2018 11:18:34 GMT-0700 (MST) Daniel Jorjani , Jack Haugrud Fwd: Twin Metals - Order Dismissing Case NRS-#1173601-v1-ECF_132_-_Order_Dismissing_Case.PDF Dan and Jack, FYI--the Court dismissed the Twin Metals case today. --Karen ---------- Forwarded message ---------From: Duffy, Sean C. (ENRD) Date: Tue, Jan 9, 2018 at 1:08 PM Subject: Twin Metals - Order Dismissing Case To: "Hawbecker, Karen" , "Vukelich, Vincent - OGC" , "HENDERSON, PAMELA P. - OGC" , "Vandlik, John - OGC" , "Mulach, Ronald - OGC" , "Dewitte, Vincent - OGC" , "Franklin, Jessica - OGC" , "Collier, Briana" , "McNeer, Richard" , Joshua Hanson , Roy Fuller , Ryan Sklar Cc: "Piropato, Marissa (ENRD)" , "Boronow, Clare (ENRD)" , "Fuller, David (USAMN)" All – Per the attached, the Court today dismissed the case in Twin Metals. ___________________________________ Sean C. Duffy Environment & Natural Resources Division U.S. Department of Justice Natural Resources Section (202) 305-0445 sean.c.duffy@usdoj.gov ___________________________________ Daniel Jorjani From: Sent: To: CC: Subject: Daniel Jorjani Tue Jan 09 2018 11:20:48 GMT-0700 (MST) "Hawbecker, Karen" Jack Haugrud Re: Twin Metals - Order Dismissing Case Thank you. Sent from my iPhone On Jan 9, 2018, at 1:18 PM, Hawbecker, Karen wrote: Dan and Jack, FYI--the Court dismissed the Twin Metals case today. --Karen ---------- Forwarded message ---------From: Duffy, Sean C. (ENRD) Date: Tue, Jan 9, 2018 at 1:08 PM Subject: Twin Metals - Order Dismissing Case To: "Hawbecker, Karen" , "Vukelich, Vincent OGC" , "HENDERSON, PAMELA P. - OGC" , "Vandlik, John - OGC" , "Mulach, Ronald - OGC" , "Dewitte, Vincent - OGC" , "Franklin, Jessica - OGC" , "Collier, Briana" , "McNeer, Richard" , Joshua Hanson , Roy Fuller , Ryan Sklar Cc: "Piropato, Marissa (ENRD)" , "Boronow, Clare (ENRD)" , "Fuller, David (USAMN)" All – Per the attached, the Court today dismissed the case in Twin Metals. ___________________________________ Sean C. Duffy Environment & Natural Resources Division U.S. Department of Justice Natural Resources Section (202) 305-0445 sean.c.duffy@usdoj.gov ___________________________________ "McNeer, Richard" From: Sent: To: CC: Subject: Attachments: "McNeer, Richard" Wed Jan 10 2018 12:33:19 GMT-0700 (MST) Jack Haugrud "Hawbecker, Karen" Fwd: Twin Metals - Order Dismissing Case NRS-#1173601-v1-ECF_132_-_Order_Dismissing_Case.PDF 2017.12.22 TM dismissal notice.pdf Jack: Twin Metals case is dismissed. Richard ---------- Forwarded message ---------From: Collier, Briana Date: Wed, Jan 10, 2018 at 12:12 PM Subject: Fwd: Twin Metals - Order Dismissing Case To: Mitchell Leverette , Elena Fink , Dean Gettinger , "Katusak, Justin" , Karen Mouritsen Cc: Karen Hawbecker , Richard McNeer , Ryan Sklar Hi all, FYI, Twin Metals filed a notice of voluntary dismissal of its case against us on December 22, 2017, and the federal court in Minnesota officially dismissed the case yesterday. Thanks very much to everyone for all your work on this litigation. Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 *New Phone: (505) 248-5604 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. ---------- Forwarded message ---------From: Duffy, Sean C. (ENRD) Date: Tue, Jan 9, 2018 at 11:08 AM Subject: Twin Metals - Order Dismissing Case To: "Hawbecker, Karen" , "Vukelich, Vincent - OGC" , "HENDERSON, PAMELA P. - OGC" , "Vandlik, John - OGC" , "Mulach, Ronald - OGC" , "Dewitte, Vincent - OGC" , "Franklin, Jessica - OGC" , "Collier, Briana" , "McNeer, Richard" , Joshua Hanson , Roy Fuller , Ryan Sklar Cc: "Piropato, Marissa (ENRD)" , "Boronow, Clare (ENRD)" , "Fuller, David (USAMN)" All – Per the attached, the Court today dismissed the case in Twin Metals. ___________________________________ Sean C. Duffy Environment & Natural Resources Division U.S. Department of Justice Natural Resources Section (202) 305-0445 sean.c.duffy@usdoj.gov ___________________________________ Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:16 PM Conversation Contents U.S. Department of the Interior News Briefing for Wednesday, January 10, 2018 Bulletin Intelligence From: Bulletin Intelligence Sent: Wed Jan 10 2018 04:01:41 GMT-0700 (MST) To: Subject: U.S. Department of the Interior News Briefing for Wednesday, January 10, 2018 Mobile version and searchable archives available here. Please click here to subscribe. Department of the Interior - I I -CIsioN v-K. ., News Briefing DATE: WEDNESDAY, JANUARY 10, 2018 6:00 AM EST Today's Table Of Contents DOI In The News 0 New York Times: Trump Administration Drops Florida From Offshore Drilling Plan. 0 Wall Street Journal: Trump?s Offshore-Drilling Plan Faces Choppy Political Waters. 0 Washington Post: Interior Puts Grants To Nonpro?ts, Universities Through Political-Appointee Review. 0 St. George Southern Utah Independent: Secretary Zinke Creates Hunting And Shooting Sports Conservation Council, Calls For Nominations. Huf?ngton Post: Utah Republicans Look To Enshrine Donald Trump?s Cuts To National Monuments. 0 USA Today: Arts Group Wants President Trump's Border Wall Prototypes Preserved As A National Monument. 0 Bloomberg News: Big Oil's Big Wins In Washington Puts Coal's Gains To Shame. 0 New York Times: How Much Has ?Climate Change' Been Scrubbed From Federal Websites? A Lot. Bureau Of Indian Affairs 0 Pokagon Band Announces January 16 Debut Of First Tribal Casino In Indiana. Bureau Of Land Management 0 Minneapolis Star Tribune: Mining Supporters Sue Gov. Dayton Over Twin Metals Land Access. 0 Associated Press: Bundy Insists US Can?t Own Land, No Matter Who's President. 0 Grand Junction (CO) Daily Sentinel: Terra Proposes 63-Well, Phase-Two Roan Drilling. Casper (WY) Star-Tribune: In Unique Arrangement, A Wyoming Company May Drill For Oil And Gas Within The Boundaries Of A Montana Coal Mine. • KNPR-FM Las Vegas: BLM To Increase Fees At Red Rock Conservation Area. • Ontario (OR) Argus Observer: Agency Plans Gathering Of 2 Wild Horse Herds. Bureau Of Reclamation • Mike Black Appointed Regional Director For The Bureau Of Reclamation’s Great Plains Region. Bureau Of Safety And Environmental Enforcement • Florida Lawmakers Balk At Rollbacks In Drilling-Safety Rules. Fish And Wildlife Service • Courthouse News: Once Endangered, Puerto Rican Gecko Species Now Thriving. • Bozeman (MT) Daily Chronicle: Groups Ask Court To Invalidate Yellowstone Grizzly Delisting. • Associated Press: US Supreme Court Won’t Hear Prairie Dog Protections Lawsuit. • Associated Press: Authorities Link Southern Oregon Wolf Pack To Killed Calf. National Park Service • St. Louis Post-Dispatch: Trump Signs Clay-Smith Civil Rights Preservation Bill. • NBC News: Trump Designates Martin Luther King Jr. Birthplace A National Historic Park. • CBS News: Park Service Warns People Not To Skate On Ice At National Mall Reflecting Pool. • Fairbanks (AK) News-Miner: In Second High Court Bid, Sturgeon Says Hovercraft Case Has National Importance. • Associated Press: Capitol Tree Heads Back To Montana For Possible Use In Park. • Bangor (ME) Daily News: Acadia Broke Another Attendance Record In 2017. • Maui (HI) News: Contract Awarded To Clean Up Oheo Pools. US Geological Survey • Associated Press: Deadly ‘Debris Flows’ Carved Destructive California Slides. • Associated Press: Little Damage As Mag 7.6 Quake Hits In Sea North Of Honduras. • Additional Reading. Opinion Pieces • Drill Offshore If Necessary, But Do It Safely. • The Cliven Bundy Prosecution Was A Miscarriage Of Justice. • Grand Canyon Is A National Treasure, Not A Place For Uranium Mining. • Additional Reading. Top National News • USA Today: Trump Open To Immigration Reform Deal If It Includes Border Wall. • ABC: Steele Claimed He Had Source In Trump Team, Said He Took His Concerns To FBI. • Politico: Infrastructure Plan May Not Be Released This Month. • Washington Examiner: EPA On Pace To Reduce Its Staff By 50% In Trump’s First Term. • Associated Press: Judges Order North Carolina To Redraw “Illegally Gerrymandered” Congressional Map. Editorial Wrap-Up • New York Times. - “Don’t Deport The Salvadorans.” - “Unrest Shows The Iran Nuclear Deal’s Value, Not Its Danger.” • Washington Post. - “A New Self-Inflicted Wound From The Trump Administration.” - “Ben Carson’s HUD Just Took A Step Backwards On Fair Housing.” - “What A Presidential President Would Have Said About His Health.” • Wall Street Journal. - “Progress On Immigration.” - “Davos In, Bannon Out.” - ?North Korea's Peace Games.? Big Picture 0 Headlines From Today's Front Pages. Washington Schedule 0 Today?s Events In Washington. Last Laughs 0 Late Night Political Humor. DOI In The News Trump Administration Drops Florida From Offshore Drilling Plan. The New York Times Tabuchi) reports that the Trump Administration has reversed its position and will not allow drilling off the coast of Florida after strong opposition from Governor Rick Scott. Interior Secretary Ryan Zinke said, support the governor?s position that Florida is unique and its coasts are heavily reliant on tourism as an economic driver. I am removing Florida from consideration for any new oil and gas platforms.? Reuters Beech) reports the Administration?s decision has removed a portion of the eastern Gulf of Mexico from consideration, an area that many oil companies had expressed interest in exploring. The Hill Cama) reports Interior spokeswoman Heather Swift said the eastern third of the Gulf of Mexico and the Atlantic Ocean adjacent to Florida would be removed for consideration for the new draft proposal. Politico Ritchie) reports Zinke had met with Scott on Tuesday in Tallahassee. Scott had requested the meeting soon after the Interior released the proposal to expand drilling. In his announcement, Zinke said seismic testing would still be allowed. Abramson) reports Zinke cited his ?discussion with Governor Scott?s and his leadership? for his decision. The Fineout, Daly) reports that Zinke explained, ?Our tactic was open everything up, then meet with the governors, meet with the stakeholders so that when we shaped it, it was right. The president made it very clear that local voices count.? Gov. Scott said, ?It?s a good day for Florida. I think it?s very important to continue our efforts to take care of our environment." However, Sen. Bill Nelson said that the removal was ?a political stunt orchestrated by the Trump administration to help Rick Scott." Nelson said, have spent my entire life fighting to keep oil rigs away from our coasts. But now, suddenly, Secretary Zinke announces plans to drill off Florida?s coast and (five) days later agrees to ?take Florida off the table?? I don?t believe it. We shouldn?t be playing politics with the future of Florida.? Wallace) reports it was not clear on Tuesday if the Administration would make similar considerations for other coastal areas. Local TV coverage was provided by Orlando, FL Gainesville, FL and Panama City, FL Also reporting are Roll Call (DC) Dillon), USA Today King), the Washington Examiner Siegel), the Washington Examiner Siegel), the Angeles Times Rohrer), CBS News NPR Gonzales), the Miami Herald Bousquet), the Daytona Beach (FL) News-Journal Pulver), the Naples (FL) Herald Martin), the Bradenton (FL) Herald Morse), the Tampa (FL) Tribune Bousquet), the Tampa Bay (FL) Times Bousquet), the Orlando (FL) Sentinel Rohrer), the Pensacola (FL) News Journal King), the Tallahassee (FL) Democrat King), the Sarasota (FL) Herald-Tribune the Palm Beach (FL) Post Cerabino), the New York Post Li), the Huf?ngton Post Kaufman), the Huffington Post D'Angelo), the Daily Mail the Independent (UK) Francisco), Uria), the Daily Beast Offshore Engineer Leon), ForexTV Law360 Simpson), and Tampa (FL) Tampa, FL Winer). Democrats On Both Coasts Cry Foul After Trump Administration Exempts Florida From Offshore Drilling. The Los Angeles Times (1/9, Rohrer, Pearce) reports that Zinke’s announcement also “drew criticism from Democratic officials who also oppose drilling off their states’ coasts, saying they oppose drilling for the same reasons Florida’s governor does.” Sen. Kamala Harris tweeted, “Secretary Zinke must also abandon his efforts to drill along California’s beautiful coastline. Protection of our ocean shouldn’t depend on the D, R, or I after the governor’s name.” The Hill (1/9, Carter) reports California Attorney General Xavier Becerra tweeted, “California is also ‘unique’ & our ‘coasts are heavily reliant on tourism as an economic driver.’ ... If that’s your standard, we, too, should be removed from your list. Immediately.” The Hill (1/9, Delk) reports that Sen. Tim Kaine tweeted, “Virginia’s governor (and governor-elect) have made this same request, but we have not received the same commitment. Wonder why...” The Hill (1/9, Carter) additionally reports that Gov. Andrew Cuomo also weighed in, tweeting, “New York doesn’t want drilling off our coast either. Where do we sign up for a waiver @SecretaryZinke?” Dem: Courts Will Strike Down Zinke Position On Florida Drilling. The Hill (1/9, Samuels) reports California Rep. Ted Lieu is arguing that the Interior’s decision to remove Florida’s coast from the drilling plan, but not other states, will be challenged in courts. Lieu said Zinke’s decision does not comply with the Administrative Procedure Act. Lieu tweeted, “Taking #Florida off the table for offshore drilling but not #California violates the legal standard of arbitrary and capricious agency action. California and other coastal states also rely on our beautiful coasts for tourism and our economy. I believe courts will strike this down.” Trump Drilling Boost Could Boost Nelson’s Chances In Fla. The Hill (1/9, Cama) reports the Trump Administration’s offshore drilling plan could boost Sen. Bill Nelson in his upcoming re-election against likely rival Gov. Rick Scott. President Trump won the state by just over 1 percent, but the drilling proposal gives Nelson the opportunity to highlight his decades-long effort to prevent drilling in the Gulf of Mexico. Trump’s Offshore-Drilling Plan Faces Choppy Political Waters. The Wall Street Journal (1/9, Puko) reports that Trump Administration officials are looking to garner support for the offshore drilling proposal from members of Congress and state-level officials, but they will face stiff opposition, including from members of their own party. The proposal is vulnerable to court challenges from governors if the Interior proceeds without converting opponents. Congress could also block the plan through legislation or spending bills. Roll Call (DC) (1/9, Connolly) reports bipartisan lawmakers from the Northeast expressed opposition to the Interior’s offshore drilling plan. The region is concerned that an oil spill would devastate the economy. Sens. Susan Collins and Angus King from Maine said the risks “far outweighs any potential benefit.” Maine’s two House members, Republican Bruce Poliquin and Democrat Chellie Pingree, oppose lifting the coastal drilling moratorium. Sen. Ed Markey has pledged to use “pursue all legislative tools available” to oppose the plan. South Carolina Business Leaders Support Offshore Drilling. The AP (1/9, Kinnard) reports the South Carolina African American Chamber of Commerce chairman Stephen Gilchrist said the group supports expanded offshore drilling. Gilchrist said the Interior’s proposal would offer economic benefits for some of the state’s impoverished areas. Protesters In Huntington Beach Oppose Offshore Drilling Proposal. The Los Angeles Times (1/9, Zint) reports about 20 protesters gathered in downtown Huntington Beach in opposition to President Trump’s proposal to expand drilling offshore California. Indivisible OC 48 chairman Aaron McCall said, “If there is an oil spill off our coast, that ruins our tourism industry. ... That ruins our home. We shouldn’t allow that to be done.” Continuing Coverage: Taylor Opposed To Drilling Off Virginia. The AP (1/9) reports in continuing coverage that freshman Republican Rep. Scott Taylor announced his opposition to drilling offshore Virginia. He cited the opposition of coastal communities and industries, along with the potential to disrupt military training. Interior Puts Grants To Nonprofits, Universities Through Political-Appointee Review. The Washington Post (1/8, Eilperin) reports that the Interior Department has “adopted a new screening process for the discretionary grants it makes to outside groups, instructing staff to ensure those awards ‘promote the priorities’ of the Trump administration.” Scott J. Cameron, Interior’s principal deputy assistant secretary for policy, management and budget, “instructed other assistant secretaries and bureau and office heads to submit most grants and cooperative agreements for approval by one of his aides.” The Dec. 28 directive, the article says, “represents the latest attempt by Trump political appointees to put their mark on government spending.” The Hill (1/9, Anapol) reports that Interior Secretary Ryan Zinke “lists 10 priorities for grants, according to an attachment to the directive.” They include “creating a conservation stewardship legacy second only to Teddy Roosevelt,” “utilizing our natural resources,” “restoring trust with local communities” and “ensuring sovereignty means something.” Other priorities including “protecting our people and the border” and “modernizing infrastructure.” Also reporting are the Nation Sun News (1/9), Salon (1/9, Rozsa), and Raw Story (1/9, BURRIS). Secretary Zinke Creates Hunting And Shooting Sports Conservation Council, Calls For Nominations. The St. George & Southern Utah Independent (1/9) reports that Interior Secretary Ryan Zinke on Tuesday announced the creation of the Hunting and Shooting Sports Conservation Council. Zinke said, “The council will be made up of experts that share their knowledge, experience, and recommendations on a number of policy proposals put before them, as well as helping the departments come up with innovative ideas to improve the health of wildlife and their habitat and increase sportsmen access on public and private lands.” Additional coverage was provided by the Los Alamos (NM) Daily Post (1/9). Utah Republicans Look To Enshrine Donald Trump’s Cuts To National Monuments. The Huffington Post (1/9, D'Angelo) reports that a subcommittee of the House Natural Resources Committee on Tuesday considered a bill sponsored by Rep. John Curtis that would “legislatively establish” two smaller monuments in the Bears Ears region and “prohibit new mining and drilling operations on the original 1.3 million acres.” Curtis said during the hearing of the Subcommittee on Federal Lands “that his proposal would protect the antiquities found at Bears Ears, maintain multiple uses of federal land, and empower Utah tribes and local leaders.” However, “the Bears Ears Inter-Tribal Coalition – a group of five Native American tribes that petitioned for Bears Ears to be given monument status and is now suing the Trump administration over its recent decision – views the bill as the latest GOP-led attack on the monument and tribal sovereignty.” Additional coverage was provided by Utah Public Radio (1/9, Hayes). Arts Group Wants President Trump’s Border Wall Prototypes Preserved As A National Monument. USA Today (1/10, Carranza) reports that “as the federal government wraps up its evaluation of eight potential versions of President Trump’s border wall, an arts group is proposing the 30-foot prototypes near San Diego be preserved as a national monument.” According to the article, “the newly formed MAGA, which describes itself as a non-profit arts group, is circulating a petition calling on Congress or the president to declare the eight prototypes as a national monument under the Antiquities Act.” Big Oil’s Big Wins In Washington Puts Coal’s Gains To Shame. Bloomberg News (1/9, Dlouhy) reports that the American Petroleum Institute has had a “string of recent successes” in getting its policy goals implemented over the past several years, including Congress’ decision to end the crude export ban, allow drilling in the Arctic National Wildlife Refuge, as well as the Trump administration’s move to “relax Obama-era mandates on methane leaking from oil wells.” Now, the industry group is prioritizing “just two major policy asks for Congress and the federal government: modernizing the North American Free Trade Agreement and doing away with a program mandating biofuel use.” In addition, the White House recently signed a “massive tax cut that API head Jack Gerard said would drive continued industry investment in the U.S.” Gerard noted that it’s not time for a victory lap, however, as “we’ve still got a list of issues we’ve got to deal with.” How Much Has ‘Climate Change’ Been Scrubbed From Federal Websites? A Lot. The New York Times (1/10, Davenport) reports that “nearly a year into the Trump administration, mentions of climate change have been systematically removed, altered or played down on websites across the federal government, according to a report made public Wednesday.” The findings of the study, by the Environmental Data and Governance Initiative, are “in keeping with the policies of a president who has proudly pursued an agenda of repealing environmental regulations, opening protected lands and waters to oil and gas drilling, withdrawing the United States from the Paris climate accord, shrinking the boundaries of federal monuments, and appointing top officials who have questioned or denied the established science of human-caused climate change.” The authors of the report “said that the removal of the words ‘climate change’ from government websites, and a widespread effort to delete or bury information on climate change programs, would quite likely have a detrimental impact.” Bureau Of Indian Affairs Pokagon Band Announces January 16 Debut Of First Tribal Casino In Indiana. The Nation Sun News (1/9) reports that the Pokagon Band of Potawatomi Indians will “open the doors to the first-ever tribal casino in Indiana on January 16.” The Four Winds Casino in South Bend is “located on a portion of a 166-acre site that was placed in trust by the Bureau of Indian Affairs during the Obama administration.” Bureau Of Land Management Mining Supporters Sue Gov. Dayton Over Twin Metals Land Access. The Minneapolis Star Tribune (1/5, Marcotty) reports that “a pro-mining group in Ely said Tuesday it has refiled a lawsuit against Gov. Mark Dayton over access to state lands for copper-nickel exploration.” The group, Up North Jobs, claimed “that Dayton’s 2016 decision to halt exploration on state-owned lands near the Boundary Waters Canoe Area Wilderness violated state law and deprived the area of economic development and jobs.” However, Doug Niemela, manager for the environmental advocacy group Campaign to Save the Boundary Waters, “said the lawsuit was frivolous.” Twin Metals supporters, he said, are “trying to stop a study they know will show that sulfide-ore copper mining near the Boundary Waters poses an unacceptable risk to this priceless wilderness.” Bundy Insists US Can’t Own Land, No Matter Who’s President. The AP (1/9, Ritter) reports that Nevada rancher Cliven Bundy, “ho had his charges dismissed in a 2014 armed standoff with government agents,” asserted “Tuesday that it’s up to the states, not the federal officials, how to manage vast expanses of rangeland in the U.S. West.” Bundy insisted, “I don’t recognize the federal government to have authority, jurisdiction, no matter who the president is.” Terra Proposes 63-Well, Phase-Two Roan Drilling. The Grand Junction (CO) Daily Sentinel (1/9, Webb) reports that “Terra Energy Partners is proposing a 63-well, second phase of development where it has become the first company to begin drilling on controversial Roan Plateau oil and gas lease acreage that was the subject of a lawsuit and eventual legal settlement.” The Bureau of Land Management is seeking public input on “Terra’s Balzac Gulch phase 2 master development plan at the base of the plateau just north of Rulison.” According to the article, “it would drill up to 63 wells over the next two years, and Terra is estimating the wells could produce nearly 120 billion cubic feet of natural gas over 40 years.” Additional coverage was provided by the Glenwood Springs (CO) Post Independent (1/9, Zorn). In Unique Arrangement, A Wyoming Company May Drill For Oil And Gas Within The Boundaries Of A Montana Coal Mine. The Casper (WY) Star-Tribune (1/9, Lutey) reports that “the federal government will allow a Wyoming company to explore oil and gas drilling within the footprint of Montana’s Spring Creek coal mine.” Hoover & Stacy Inc. was “awarded leases inside the permit boundary of Spring Creek in December.” The article notes that “the leases come at the protest of mine owner Cloud Peak Energy, which had attempted unsuccessfully to the stop the leases near Decker from going up for bid.” According to Al Nash of the Bureau of Land Management, “it isn’t often the federal government attempts to develop coal, oil and gas on the same land, but that horizontal drilling make the development possible.” BLM To Increase Fees At Red Rock Conservation Area. KNPR-FM Las Vegas (1/9) reports that the Bureau of Land Management announced it is raising the fee to get into the Red Rock Conservation Area. The BLM “held public meetings on a proposed fee increase in September and heard from the public for that entire month.” The bureau “said in a statement the increase is to meet preservation and recreation goals as well as to increase the visitor experience” Additional coverage was provided by the Las Vegas Review-Journal (1/9, Brean). Agency Plans Gathering Of 2 Wild Horse Herds. The Ontario (OR) Argus Observer (1/9) reports that the Bureau of Land Management’s Vale District “announced plans to conduct a helicopter gather of wild horses within the Cold Springs and Hog Creek Herd Management Areas beginning in January/February.” According to the article, “the Appropriate Management Level – the number of horses the range can sustainably support in conjunction with other animals and resource uses – is 75 to 150 horses for this area.” The current population is above 175. Bureau Of Reclamation Mike Black Appointed Regional Director For The Bureau Of Reclamation’s Great Plains Region. The Quebec (CAN) Daily Examiner (1/8, Roul) reports that Bureau of Reclamation Commissioner Brenda Burman “announced that Michael S. Black will succeed Michael J. Ryan as Reclamation’s Great Plains Regional Director on January 21.” Burman said, “Mike brings a history of developing partnerships through collaboration with regional, local, tribal and international parties on a variety of issues that will benefit Reclamation and the numerous stakeholders in the Great Plains Region. Mike is a great asset to our leadership team.” Bureau Of Safety And Environmental Enforcement Florida Lawmakers Balk At Rollbacks In Drilling-Safety Rules. The Wall Street Journal (1/9, Mann) reports a bipartisan group of Florida lawmakers are sending a letter to Interior Secretary Ryan Zinke asking him to reject a series of rollbacks in offshore drilling safety rules that were instituted in the wake of the Deepwater Horizon spill. The 21 House members said it would be a mistake to weaken the safety regulations, and that doing so would needlessly risk lives and the environment. They argued that Florida’s coastal communities rely on the ocean to sustain their economy, and a spill would endanger the state’s economic well-being. The lawmakers specifically asked Zinke to reject proposals that would ease enforcement of a standard governing how much pressure drillers must maintain while drilling to prevent blowouts. They also criticized a decision rescinding the requirement that the BSEE certify the third party inspectors who check offshore equipment. Fish And Wildlife Service Once Endangered, Puerto Rican Gecko Species Now Thriving. Courthouse News (1/9, YOUNG-GRINDLE) reports that “while hurricane-ravaged Puerto Rico continues to struggle with rebuilding efforts, a Puerto Rican gecko flourishes and is ready to be removed from federal protection, according to the U.S. Fish and Wildlife Service.” Greg Sheehan, the U.S. Fish and Wildlife Service’s acting principal deputy director, said, “This delisting is the latest recovery success achieved through partnerships with our state wildlife partners. I want to recognize the great efforts of our colleagues at the Puerto Rico Department of Natural and Environmental Resources, other partners, and our employees, who together helped guide this species toward recovery.” Groups Ask Court To Invalidate Yellowstone Grizzly Delisting. The Bozeman (MT) Daily Chronicle (1/9, Wright) reports that “environmental groups and tribal governments are asking a federal judge to rule immediately in their favor and invalidate the federal government’s decision to lift protections for the Yellowstone grizzly bears.” The request for summary judgment, filed Monday, “came on the last day of a public comment period on how an appeals court decision regarding the delisting of wolves in the Great Lakes should affect the Yellowstone grizzlies’ final delisting rule.” Also reporting are Yellowstone Insider (1/9, Reichard), Wyoming Public Radio (1/9, McKim), and Law360 (1/9, Lidgett). US Supreme Court Won’t Hear Prairie Dog Protections Lawsuit. The AP (1/9, Whitehurst) reports that the U.S. Supreme Court has “declined to hear an appeal from residents of a small Utah city challenging endangered-species protections for prairie dogs, but the plaintiffs say their case alleging that their community has been overrun by the animals has made a mark as the Trump administration moves to loosen the rules preventing people from shooting or moving the animals.” Attorney Jonathan Wood “said his clients were disappointed the Supreme Court declined to hear the case on Monday, but heartened by the new plan from the U.S. Fish and Wildlife Service introduced last month.” The FWS has “said its plan will preserve the prairie-dog numbers while helping frustrated property owners in Cedar City, about 250 miles (405 kilometers) south of Salt Lake City.” Authorities Link Southern Oregon Wolf Pack To Killed Calf. The AP (1/9) reports that “a wolf from the Rogue Pack is believed to be responsible for killing a calf last week on a ranch in southwestern Oregon, authorities said.” According to the article, “a rancher found a 250-pound (113-kilogram) calf dead on his property near Medco Pond on Thursday.” The article says that “the dead calf was linked to a wolf after finding tracks in the area and tooth scrapes and bites on the carcass matching a wolf, according to a livestock investigation report by Oregon Department of Fish and Wildlife biologists.” National Park Service Trump Signs Clay-Smith Civil Rights Preservation Bill. The St. Louis Post-Dispatch (1/9, Raasch) reports that President Trump “this week signed legislation directing the National Park Service to set up a program to preserve and protect the memories of the people and places integral in the civil rights movement.” The legislation was spearheaded by Rep. William Lacy Clay, who said the act “will create tremendous educational opportunities by recognizing those brave souls from all walks of life who fought to make the promises enshrined in our Constitution finally ring true.” The Congressional Budget Office “said the new NPS mission will cost taxpayers about $1.5 million annually.” Additional coverage was provided by the St. Louis American (1/9). Trump Designates Martin Luther King Jr. Birthplace A National Historic Park. NBC News (1/10, Simon) reports that “a week shy of the annual observance of Martin Luther King Jr. Day, King’s birth home, Ebenezer Baptist Church and King’s burial site have all been upgraded from a national historic site to a national historic park.” President Trump said in a Tweet Tuesday it was his “great honor” to sign the Martin Luther King, Jr. National Historic Park Act. Rep. John Lewis “sponsored the bill and said he is ‘so proud that we were able to work in a bipartisan, bicameral manner’ to establish Georgia’s first National Historical Park ahead of King’s birthday and the 50th anniversary of his assassination.” Park Service Warns People Not To Skate On Ice At National Mall Reflecting Pool. CBS News (1/9, Shabad) reports that “the sub-zero temperatures over the weekend led to the Reflecting Pool on the National Mall to freeze over the weekend, tempting people to ice skate and play ice hockey.” However, the National Park Service, “which oversees the National Mall, is warning people not to skate on top of the ice.” The nPS says in an alert on its website, “Skating is prohibited at all times on the Tidal Basin and at the Lincoln Memorial Reflecting Pool. Ice skating is permitted at Constitution Gardens only when posted but it has not been determined to be opened at this time.” In Second High Court Bid, Sturgeon Says Hovercraft Case Has National Importance. The Fairbanks (AK) News-Miner (1/9, Friedman) reports that “John Sturgeon’s lawsuit against the National Park Service now has broad ramifications for American federalism and the basic rules of land and water ownership both inside and outside of Alaska, his attorneys argue in a petition for the U.S. Supreme court to take the case for a second time.” On Jan. 2, attorneys representing Sturgeon “filed a 138-page petition for a writ of certiorari, a document that asks the U.S. Supreme Court to review an appeals court ruling.” Capitol Tree Heads Back To Montana For Possible Use In Park. The AP (1/10, Hanson) reports that some Montana companies want the U.S. Capitol Christmas Tree to “be used to help rebuild a historic chalet in Glacier National Park that was destroyed in a wildfire last summer.” However, “some critics questioned the amount of fuel that would be burned to haul the tree back across the U.S. when Montana has plenty of trees, while others didn’t mind as long as taxpayer money wasn’t involved.” Meanwhile, “Glacier officials are waiting to see how the still-standing rock walls of the Sperry Chalet fare over the winter before deciding on any restoration plans, park spokeswoman Lauren Alley said.” Acadia Broke Another Attendance Record In 2017. The Bangor (ME) Daily News (1/9, Sambides) reports that “with final tallies still outstanding, it’s already clear that a record-setting number of people visited Acadia National Park for the second straight year in 2017, officials said Tuesday.” The park tallied “3,497,187 visitors at the end of November.” The article notes “that’s 560,601 more than came into Acadia for 11 months of 2016 and breaks the park’s record 3.3 million visitations that year.” Contract Awarded To Clean Up Oheo Pools. The Maui (HI) News reports that the National Park Service has awarded a ?contract to remove vegetation, loose debris and rocks likely to fall from the cliff face of Oheo Gulch, Haleakala National Park announced.? Maris Inc. won the $98,634 contract. According to the article, ?work is expected to take from the middle of this month to April.? US Geological Survey Deadly ?Debris Flows? Carved Destructive California Slides. The AB Antczak) reports that ?debris flows pose a significant threat when rain falls in the aftermath of wildfires such as the inferno that scorched more than 440 square miles (1,140 square kilometers) in two Southern California counties last month and destroyed and damaged hundreds of homes and other structures.? On Tuesday, ?debris flows killed at least 13 people and injured at least 25.? The U.S. Geological Survey ?said many deaths from debris flows occur when people are asleep, just as happened in Montecito, where heavy rain fell in a short period of time a few hours after midnight.? The USGS ?urges people to stay awake when conditions may be dangerous, monitor broadcast storm reports and listen for unusual sounds that could indicate something is moving." Additional coverage was provided by The Verge Becker). Little Damage As Mag 7.6 Quake Hits In Sea North Of Honduras. The (1/10) reports an earthquake struck just north of the Honduran coast on Tuesday night. The US Geological Survey measured the earthquake at a preliminary magnitude of 7.6, making it ?one of the largest to hit the Caribbean in recorded history.? While there were no early reports of casualties or serious damage, ?shaking was registered across much of the nation? and tsunami warnings were triggered. No tsunami materialized, and the warnings ?were canceled about an hour later.? Additional Reading. 0 North America?s Waterways Are Getting Saltier. That?s A Big Problem. National Geographic Zachos). Opinion Pieces Drill Offshore If Necessary, But Do It Safely. USA Today says in an editorial that the Trump Administration ?wants to roll back the very safeguards put into place? following the Deepwater Horizon incident, ?at the same time it is seeking to expand offshore drilling. America needs oil, preferably from domestic sources. But the oil must be extracted carefully, with input from coastal states and under close government oversight.? In a responding USA Today op-ed, Bureau of Safety and Environmental Enforcement Director Scott Angelle writes, ?Contrary to recent misleading reports," neither the Interior Department nor his agency ?is weakening offshore safety or environmental rules. We have no plans to alter two significant rules enacted following Deepwater Horizon, the Drilling Safety Rule and the Safety and Environmental Management Systems Rule." Trump Administration?s Offshore Drilling Proposal A Threat To Coastal Communities. New Jersey Rep. Frank Pallone writes in The Hill Pallone) saying that the Interior Department?s efforts to expand offshore drilling show that the Trump Administration is prioritizing corporate interests over everyday Americans. Pallone says, ?Nowhere is this more clear than in the administration?s recent proposals to dramatically increase offshore drilling while rolling back safety regulations put in place after the catastrophic BP Deepwater Horizon explosion. These decisions are clearly designed to benefit Big Oil at the expense of coastal communities.? Pallone says, that Trump ?is ?ne with local communities facing a crippling spill as long as corporate oil interests can line their pockets." Weinstein: Offshore Drilling Good For Jobs, Global Position. Bernard Weinstein, associate director of the Maguire Energy Institute, writes in the Houston Chronicle Weinstein), arguing that the only way for the US to obtain energy dominance in the long term is to make efforts now to remove restrictions on exploring for resources, including on the outer continental shelf. Weinstein says, ?Still, to maintain long-term energy competitiveness as we become a larger player in global oil and gas markets, it's important to open these areas for future exploration and production so they can be included in America?s portfolio of energy reserves." Additional Commentary. Additional commentary appeared in the Sarasota (FL) Herald-Tribune the Florida Times-Union Woods), the Berkeley (SC) Independent Houma (LA) Times (1/10, Houma (LA) Times the Seattle Post-Intelligencer Connelly), the Baton Rouge (LA) Advocate the Orange County (CA) Register Barragan), and Must Read Alaska Giessel). The Cliven Bundy Prosecution Was A Miscarriage Of Justice. Mark Joseph Stern of Slate Stern), under the headline, ?The Cliven Bundy Prosecution Was a Miscarriage of Justice. He Deserved to Walk that on Monday, US. District Judge Gloria Navarro ?dismissed with prejudice all charges against Cliven Bundy, his two sons, and an affiliated militiaman.? Stern says although ?it seems obvious that the Bundys broke the law," the government?s ?subsequent efforts to punish the Bundys for this ranch standoff constituted an ?outrageous? violation of their due process rights.? The indictment ?alleged that the Bundys had falsely claimed that the government surrounded their ranch with snipers.? However, ?There turned out to be a serious flaw in this allegation: The Bundys were telling the truth, and prosecutors were lying.? Cheryl K. Chumley of the Washington Times Chumley) writes, ?The case had transfixed a nation and seemed to galvanize a movement that pitted patriots versus Big Government - old tymey Reaganesque constitutionalists versus new wave Obama progressives-slash-socialists Western cowboy pragmatism and independence versus East Coast elitism and intellectual snobbery. And the Bundys won.? Additional commentary appeared in the National Review French) and Townhall (1/10, Barr). Grand Canyon Is A National Treasure, Not A Place For Uranium Mining. In an op-ed for Arnberger, Martin), Robert Arnberger, the National Park Service Grand Canyon superintendent from 1994-2000, and Steve Martin, the National Park Service Grand Canyon superintendent from 2007-2011, opposes a proposal to lift ?the ban on uranium mining on the federally owned public lands that surround Grand Canyon National Park.? The former superintendents of Grand Canyon National Park point to the cultural and economic benefits that would be threatened from contamination from uranium mining. They also note that ?the ban was widely supported by Native American tribes and communities adjacent to the park.? Additional Reading. 0 An ?EIitist? Public-Lands Sportsman Responds To Interior Secretary Ryan Zinke. Outdoor Life Magazine Healy). Stopping An Outrageous Land Grab. Washington Times 0 The Endangered Species Act Itself Could Go Extinct. High Country (CO) News 9, Lyons). Trump Keeps Selling The False ?Environment Vs. Economy? Line. The Hill 9, Cohan). Top National News Trump Open To Immigration Reform Deal If It Includes Border Wall. President Trump m_et with a bipartisan congressional delegation at the White House on Tuesday to discuss immigration reform. Media coverage focuses on the possibility that Trump was open to a comprehensive immigration reform package that may run counter to the impulses of his political base, including a path to citizenship for undocumented immigrants. However, the President also insisted that funding for a border wall was essential in any preliminary deal to extend legal status to DACA participants. Several reports highlight that television cameras were allowed in the meeting for nearly an hour, a move that is generally cast as an effort to push back on recent reports questioning Trump?s ?tness to lead. USA Today Korte, Shesgreen, Collins) reports that in an ?unusual move,? the White House opened nearly an hour of the meeting to the press, while ABC World News Tonight?c story 2, 3:20, Muir), described the meeting as ?an extremely rare event playing out on and noted that it came ?just days after the release of that bombshell book ?Fire And Fury? that claimed some closes to the President have questioned his ?tness to lead.? Politico Nelson) calls the meeting ?an unusually public negotiating session,? and ?a seeming rebuke of reports that he is less than a fully capable commander-in-chief.? A New York Times Baker) analysis says that amid questions about his ?very ?tness for of?ce,? Trump ?appeared intent on demonstrating that he could handle the presidency. He was in command of the meeting while inviting input. He did not berate anyone. He did not call anyone derogatory nicknames. He signaled that he was open to compromise.? The Times adds, however, that ?the historically low given that Democrats and even some Republicans have been describing him as so unstable that he should be removed from of?ce.? While his critics ?called it a welcome change,? the Times says it was ?a measure of Mr. Trump?s political weakness that anyone seemed surprised.? On its website, the New York Times Shear) provides video clips of ?some dramatic moments from the meeting.? The Washington Post Parker, Rucker) reports that Trump ?tried to show that he could do his job." Trump, the Post adds, ?sought to de?nitively answer the question that has been nagging at him for the past week: Is the 71-year-old mentally fit to be commander in chief?? The Post adds that while Trump ?offered captivating television drama, he also muddled through the policy by seeming to endorse divergent positions, including simply protecting the dreamers or a plan contingent upon funding for his long- promised wall at the nation?s southern border.? Sean Hannity said on Fox News? Hannitvic ?Remember, this is the same President that the media and every Democrat has been telling you for days and weeks and, in some cases, months, is absolutely crazy. No, he was very engaged. He was totally in charge. And being transparent, extremely patient, and common-sense solutions were being offered.? Laura Ingraham said on Fox News The Ingraham Angleit Today at the White House, the petty, gutter-dweller author Michael Wolff became even smaller, and I am not talking about his diminutive stature either. I am referring to Wolff?s phony narrative that President Trump is somehow not mentally equipped for the job. Today we saw he?s sharp, he?s savvy, and he?s really impatient for solutions for the American people." The New York Times Davis) reports Trump ?appeared to endorse a sweeping immigration deal that would eventually grant millions of undocumented immigrants a pathway to citizenship, saying he would be willing to ?take the heat? politically for an approach that many of his hard-line supporters have long viewed as unacceptable.? Major Garrett said on the CBS Evening News?u story 2, 2:30, Glor), ?Approving DACA will expose the President to charges he sold out his political base. That?s why the White House is trying to drive a hard bargain on other immigration issues." The Washington Post Nakamura) reports Trump ?declared Tuesday he wants Congress to pass a ?bill of love? to protect younger undocumented immigrants from deportation, but he reiterated his demands for a border wall and cuts to legal immigration that Democrats have opposed." The Hill Fabian) reports Trump ?doubled down on his demand that a DACA bill end chain migration and scrap the visa- lottery program.? The Thomas) reports Trump an immigration deal could be reached in two phases ?rst by addressing young immigrants and border security? and then ?making comprehensive changes that have long eluded Congress.? However, the Wall Street Journal Meckler, Peterson) reports that while Trump indicated that Congress could address border security and the fate of Dreamers and address more difficult issues later, following the meeting, the White House and lawmakers from both parties said there was agreement that talks would include proposed limits on family- based immigration and the diversity visa lottery. Bloomberg News Litvan, Edgerton, Epstein) says Trump?s indication that he is ?willing to split contentious immigration proposals" into two phases ?narrow[ed] of the debate on immigration? and ?may help break a stalemate that's held up an agreement on budget limits and spending as a deadline to avert a government shutdown approaches on Jan. 19.? In an editorial, the Wall Street Journal casts the framework for negotiation that came out of the meeting as a positive development and says both sides have a political interest in crafting a deal. A Chicago Sun-Times editorial says that the ?biggest surprise Tuesday was that Trump looked beyond the plight of Dreamers and suggested he wants lawmakers to pursue comprehensive immigration reform." The Sun Times calls his comments ?the most welcomed statement we?ve heard from Trump in a long time. And no joke we sense that he is sincere.? However, ?Trump is not to be trusted,? and ?a phone call from conservative commentator Ann Coulter or a conversation with Stephen Miller? could ?not only steer Trump away from immigration reform, him to double down on the anti-immigrant cruelty that plays well with hard-line conservatives." Reuters reports that Trump said he would sign any bill that gives legal status to Dreamers ?as long as it had the border security protections he has sought, including funding for a border wall.? Said Trump. ?If you don?t have the wall, you don?t have security.? Townhall O'Brien) reports that Trump ?defended the need to build a border wall.? Asked by Sen. Mazie Hirono ?if he still planned to demand $18 billion for the wall,? Trump ?responded he could do it for less.? Peter Alexander said on NBC News?t story 3, 2:15, Holt) that ?even after the meeting, the two sides don?t seem to be any closer to ?nding a solution.? Similarly, the Washington Times Miller) says that Trump ?made progress,? but ?there?s still a long way to go to strike a deal.? The Times adds that ?both sides touted the agreement to limit negotiations to four issues: Dreamers, border security, chain migration and the visa diversity lottery,? but ?significant differences remained, especially over Mr. Trump's demand for funding to build a border wall." The Hill Samuels) reports that ?hours after he and congressional negotiators outlined the parameters of a potential deal," Trump tweeted, ?As I made very clear today, our country needs the security of the Wall on the Southern Border, which must be part of any DACA approval." Citing Trump?s tweet, Hannity also said on Fox News? Hannity?: ?The President obviously now refusing to back down on building the border wall. I have been saying this months and years. In order for the GOP to be successful, you guys want to win the midterm elections? Build two or three hundred miles of the border wall. Go down there and cut your commercials. Promise made, promise kept. Voters happy. The American people need to see tangible results, and progress being made on this key promise is key for November.? White House Director of Legislative Affairs Marc Short was asked on Situation Room?t if increased border security definitely requires building the wall. Short said, ?Absolutely. It?s what Customs and Border Patrol professionals, career agents, have told us. Not politicians, career agents, securing our border have told us this is what they need." Anderson Cooper said on Anderson Cooper 360 it that ?curiously absent from today?s meeting? was any mention of Mexico paying for the wall. Politico Lima, Nussbaum) reports that although the White House said in a statement after the meeting that an agreement was reached ?to negotiate legislation that accomplishes critically needed reforms in four high-priority areas: border security, chain migration, the visa lottery, and the Deferred Action for Childhood Arrivals policy,? while ?reporters were in the room, it seemed at times that participants were talking past each other.? Lawmakers from both parties ?struck notes of cautious optimism after the meeting, with both sides seeming to agree that ?the wall' and ?border security? are interchangeable terms, potentially opening a path for security measures that satisfy Republicans without forcing Democrats to support Trump's promised border wall.? Tucker Carlson said on Fox News Tucker Carlson Tonight?a that some of Trump?s ?key us this afternoon they were shocked by what they saw in that meeting. It was a completely different Donald Trump from the one we watched on the campaign trail just two years ago.? Trump ?ran on the premise that America?s borders ought to be that this country deserves an immigration policy that looks out for American interests.? However, ?Congress is full of people from both parties who believe that the point of our immigration policy is to provide cheap labor to their donors and to atone for America?s imaginary sins against the world. If these are the same people the President now says he trusts to write the immigration bills,? then ?what was the point of running for president?? McClatchy Analyses: ?Political Challenge? For Democrats In Accepting Border Wall. McClatchy Clark, Drusch) describes the ?political challenge" Democrats will face in ?explaining how they gave President Donald Trump the ?wall? their party faithful loathe" in order to protect the Dreamers. Both parties ?agree that increased border likely to be a part of any agreement.? While Democrats argue that ?additional physical barriers along the border with Mexico wouldn?t necessarily be the same as the massive, endless wall Trump vowed to build,? they are ?up against a base that doesn?t want to give Trump a single victory, much less one on a wall they say is patently racist and a waste of money." Sen. Joe Manchin was asked on Situation Room? if he could accept building the wall in exchange for allowing the Dreamers to remain in the country. Manchin said, ?As long as we?re securing the border and it?s done with the advice of those experts on the border that are defending our country, building a wall where a wall is needed, using the technology where other technology and maybe a wall doesn?t work, I'm for all of that.? Sen. Ed Markey told Situation Room ?Democrats do want to talk about security, but we want smart, effective security and that will not mean spending $18 billion on a wall across the border between the United States and Mexico.? Schumer Says Meeting ?Boded Well, But ?The Devil Lies In The Details.? The Washington Examiner Weaver) says Senate Minority Leader Schumer ?expressed optimism? after the meeting. Speaking at his weekly press conference, Schumer said, was encouraged by what the president said at the White House today. The tone was very good, but the devil lies in the details, and we need the president to follow up on this meeting, which boded well.? Schumer added that he is ?confident? an agreement can be reached on border security. However, the Examiner adds that he is ?insisting a legislative ?x for Dreamers be including in the spending deal to avoid a partial government shutdown on Jan. 19.? Milbank Criticizes Dreamers?Attacks On Democrats. Dana Milbank writes in the Washington Post that while ?Democrats are in a good position as they negotiate with President Trump and the congressional majority over their legislative priorities,? including ?legalization of the ?dreamers,?? the ?dreamers have decided to give the Democrats a rude awakening.? Milbank cites United We Dream?s ?all-out attack on Democrats for failing to insist that Deferred Action for Childhood Arrivals legislation be included? in a short-term spending bill last month, and calls the tactic ?bonkers? as Democrats ?support legalizing the dreamers.? Dreamers, Milbank argues, ?will win this ?ght if they don?t mow down their friends first.? Goodlatte Immigration Bill Attracting GOP Support. The Hill Wong, Zanona) reports that there is growing Republican support for an immigration bill House Judiciary Committee Chairman Bob Goodlatte will unveil Wednesday which ?would call for more aggressive enforcement measures and would address? the fate of the Dreamers. The measure, which ?is backed by Speaker Paul Ryan's leadership team,? has ?attracted support from both the moderate and conservative wings of the 239?member House Republican Conference, including centrist Rep. Martha McSally (Ariz.) and the Freedom Caucus?s Rep. Raul Labrador (Idaho).? The Washington Examiner Kasperowicz) reports that the legislation ?provides $30 billion to build a border wall and ful?ll President Trump?s most famous campaign promise.? In an op-ed for the Wall Street Journal Goodlatte, Labrador, McSally, and House Homeland Security Committee Chairman Rep. Michael McCaul tout the legislation as the solution to a failed immigration system. Samuelson: Wall Would Discourage Illegal Immigration. Under the headline, ?Building The Wall Would Be So Worth It,? Robert Samuelson writes in the Washington Post that while a wall would ?discourage illegal immigration without stopping it altogether,? it ?has largely become a political symbol.? Samuelson calls for a compromise ?that would give each side a partial victory.? If a deal is not reached, he argues, ?it will signal that one or both sides are more interested in impressing their most fervent supporters rather than actually legislating changes that would accomplish a significant part of their agenda.? Judge Temporarily Blocks Administration From Ending DA CA. Reuters 9) reports that US District Judge William Alsup has ?temporarily blocked the Trump administration?s decision to end? the DACA program. Alsup on Tuesday ?granted a request by California and other plaintiffs to prevent? the Administration from ending the program ?while their lawsuits play out in court." Steele Claimed He Had Source In Trump Team, Said He Took His Concerns To FBI. Only one broadcast network carried the news that Senate Judiciary Committee ranking Democrat Sen. Dianne Feinstein unilaterally released the transcript of Fusion Glenn Simpson August appearance before the panel, over the objections of Senate Judiciary Chairman Charles Grassley. Coverage highlights two previously undisclosed aspects of the dossier on Donald Trump compiled by Christopher Steele: that Steele took his ?ndings to the FBI over fears that Trump may have been ?blackmailed? or ?compromised,? and that Steele claims he had a source inside the Trump Organization. ABC World News Tonight?i story 4, 2:25, Muir) reported on the Senate Democrats and Republicans over whether to release the transcript," and on Feinstein's decision to release the transcript ?on her own.? Pierre Thomas: ?Republicans, including President Trump, have dismissed the largely uncorroborated dossier. But in a meeting with the Senate Judiciary Committee, [Simpson] fought back saying, ?It?s political rhetoric to call the dossier phony. The memos are ?eld reports of real interviews. There?s nothing phony about While Grassley said ?over the summer? that ?he believed the transcripts of Simpson?s testimony would eventually come out, four months later, Democrats decided to do it on their own.? Feinstein: think people are entitled to know what was said. I see no problem with releasing it." Feinstein tweeted, ?The American people deserve the opportunity to see the transcript." Reuters reports that Simpson had asked for the full transcript of his 10 hours of August testimony to be released. The Jalonick) reports that Feinstein ?made the transcript public over the objections? of Grassley, ?who called the move ?confounding?? and ?said the release could undermine attempts to interview other witnesses.? In the transcript, Simpson said that Steele ?took it to the FBI and said his concern was ?whether or not there was blackmail going on, whether a political candidate was being blackmailed or had been compromised.? USA Today Johnson, Kelly) reports that Simpson told the committee that Steele ?was told that the FBI had ?a source? inside the Trump Organization whose information lent some credibility to his ?ndings. The previously undisclosed information about the possible inside source was revealed during a exchange between investigators and Simpson.? The Washington Post Barrett, Hamburger) reports, ?In recent weeks, as the political ?ghts about the Russia investigation and the dossier have intensified," Simpson had “urged the committee to release the full transcript of his interview, arguing that Republicans are trying to obscure, rather than reveal, what happened in 2016.” The New York Times (1/9, Fandos) says Feinstein “unilaterally released” the “highly anticipated transcript,” a move “almost certainly escalating partisan tensions on the committee.” The Washington Times (1/9, Boylan) reports, “Despite pleas from Fusion GPS to do so, the powerful committee chairman refused to release Mr. Simpson’s interview,” and instead announced last week that he and Sen. Lindsey Graham were issuing a criminal referral to the Justice Department, “suggesting officials investigate Mr. Steele for possibly lying to the FBI. The move angered committee Democrats, who said they were not consulted beforehand.” However, NBC’s Andrea Mitchell tweeted, “Both GOP Senators Lindsey Graham and Bob Cornyn say they are ok with @SenFeinstein release of testimony transcript...despite sharp criticism by Judiciary Chairman Grassley.” Rep. Ted Lieu (D-CA) tweeted, “Fusion GPS transcript shows that what Senators Grassley & Graham did last week in publicly referring Christopher Steele for criminal investigation was, at best, a partisan publicity stunt and, at worst, intentionally designed to mislead the American people.” Jennifer Rubin writes in the Washington Post (1/9, Rubin) “Right Turn” blog, “What stands out most from an initial perusal of the transcript is the professionalism and seriousness of Fusion GPS and Steele. By attempting to suppress a candid look into the dossier...Republicans once again are caught acting like Trump henchmen, trying to play down the investigation into Russia, not unearth and air what they learn.” Matt Vespa of Townhall (1/9) writes, “For months, Mr. Simpson’s name has ricocheted across the halls of Congress and the airwaves of Fox News, becoming shorthand in conservative circles for purported investigatory overreach and counterconspiracies against the White House. Questions about his research have become central to Republican attempts to discredit not just Fusion but the very existence of inquiries” into President Trump. Talking Point Memo’s Alice Ollstein tweeted, “Feinstein smiles while stepping into an elevator as reporters ask about her unilaterally publishing Fusion GPS transcript. ‘I just decided to do it,’ she says.” Politico (1/9, Cheney) and The Hill (1/9, Easley, Williams) also report on Feinstein’s action. Fusion GPS Lawyer: Dossier Publication Has Resulted In At Least One Death. The Daily Caller (1/9, Ross) reports that during Simpson’s appearance before the committee, Fusion GPS lawyer Joshua Levy said that the publication of the dossier “resulted in the death of at least one person. ... It is not clear who Levy was referring to, whether he was confirming that an actual source for the dossier had been murdered, or whether he was relaying rumors that have popped up in the media over the past year.” Some reports have speculated “that ex-KGB chief Oleg Erovkinin was killed because he was a source for the dossier.” Trump Attorney Cohen Says He Is Suing BuzzFeed, Fusion GPS. USA Today (1/9, James) reports, “Declaring ‘enough is enough,’ President Trump’s personal attorney Michael Cohen said Tuesday he is suing BuzzFeed for defamation, accusing the popular news site of ‘lie-filled’ allegations.” BuzzFeed published the dossier in January 2017. Cohen also said that he is suing Fusion GPS. Cohen tweeted, “Enough is enough of the #fake #RussianDossier. Just filed a defamation action against @BuzzFeedNews for publishing the lie filled document on @POTUS @realDonaldTrump and me!” BuzzFeed’s Ben Smith writes in the New York Times (1/9), “Our choice to publish the dossier was greeted by outrage...but a year of government inquiries and blockbuster journalism has made clear that the dossier is unquestionably real news. That’s a fact that has been tacitly acknowledged even by those who opposed our decision to publish. ... We strongly believed that publishing the disputed document whose existence we and others were reporting was in the public interest.” President’s Legal Team Reportedly Preparing For Mueller Interview. Bloomberg News (1/9, Pettypiece) reports that President Trump’s legal team “is preparing for a potential interview with Special Counsel Robert Mueller and is in preliminary discussions with his office on the parameters of such an encounter, according to a person familiar with the matter.” Bloomberg News says that it is “unclear whether the discussion of a Trump interview” and a recent “pause in interviews” with White House figures “signal that Mueller has reach a turning point in his investigation.” Infrastructure Plan May Not Be Released This Month. Politico (1/9, Gurciullo, Gardner) reports, “The White House may be pushing back the release of its long-awaited infrastructure package yet again, just a month after saying it would come out by the end of January.” A “White House official said Tuesday that there have been ‘no decisions yet on timing’ for the release,” and Sen. Ben Cardin said after meeting with Transportation Secretary Chao that Administration officials “are still deciding whether to publish legislative principles for the plan before or after” the January 30 State Of The Union address. EPA On Pace To Reduce Its Staff By 50% In Trump’s First Term. Paul Bedard writes in his “Washington Secrets” column for the Washington Examiner (1/9) that the EPA is on pace to fulfill the President’s promise “to reduce its staff nearly in half by the end of his first term mostly through retirements, not cuts, according to officials.” Bedard writes that the EPA’s first year staff results “show that the agency is below levels not seen since former President Reagan’s administration.” Judges Order North Carolina To Redraw “Illegally Gerrymandered” Congressional Map. The AP (1/9, Robertson) reports, “Federal judges ruled Tuesday that North Carolina’s congressional district map drawn by legislative Republicans is illegally gerrymandered because of excessive partisanship that gave the GOP a rock-solid advantage for most seats and must quickly be redone.” The AP adds, “The judges ordered the General Assembly to approve another set of districts by Jan. 24. Candidate filing for the November congressional elections begins Feb. 12, with primaries set for early May. A majority of the judges also agreed the panel would hire a redistricting expert to draw replacement boundaries if the legislature won’t.” Editorial Wrap-Up New York Times. “Don’t Deport The Salvadorans.” The New York Times (1/9) says the Administration’s decision to end the Temporary Protected Status for nearly 200,000 Salvadorans living in the US is “wrong...on humanitarian and practical grounds.” The Times adds that as DHS Secretary Nielsen said in her decision, in the 18 months the Salvadorans have to prepare to leave the country, Congress can “craft a potential legislative solution” that would enable them to remain in the US. “Unrest Shows The Iran Nuclear Deal’s Value, Not Its Danger.” In an editorial, the New York Times (1/9) says “the great promise of the 2015 [Iran] nuclear deal was economic revival,” but that has not “happened, or at least not the way Iranians expected, thus producing conditions that helped make the recent protests – the most serious since 2009 – possible.” While “President Trump blamed the 2015 nuclear deal” for the unrest, the Times says it is “more plausible that by raising expectations for a better life, the deal opened Iranians’ eyes and made them less tolerant when the government fell short.” The Times says this unrest “reveals a real struggle for Iran’s soul that requires an approach more sophisticated than Mr. Trump’s, which would exploit the turmoil to justify reneging on the nuclear deal.” The Times urges Trump to “be aware that foolish moves by his administration could empower the most regressive forces and set back reforms that could bring Iran fully into the community of nations.” Washington Post. “A New Self-Inflicted Wound From The Trump Administration.” In an editorial, the Washington Post (1/9) calls the Administration decision to end the Temporary Protected Status for nearly 200,000 Salvadorans living in the US “a blow for making America small again – plus petty, callous and self-defeating,” and argues that the decision “will create tens of thousands of new undocumented immigrants in the United States; aggravate labor shortages in some American cities; saddle one of the hemisphere’s most beleaguered countries with problems it is ill-equipped to manage; and embitter tens of thousands of US-born citizens whose parents are suddenly thrust into a life in the shadows or forced to return to a country where they have no future.” “Ben Carson’s HUD Just Took A Step Backwards On Fair Housing.” The Washington Post (1/9) editorializes that the Department of Housing and Urban Development should “work in good faith to devise a more effective approach” to providing fair housing and ending housing segregation. The Post criticizes the Trump Administration’s decision to postpone implementation of an Obama-era “regulation requiring jurisdictions receiving federal housing aid to make much more detailed analyses of their residential patterns and submit remedial plans to” HUD. The Post concedes that this approach was “possibly too complex and intrusive for some communities under some circumstances,” but it asserts that simply delaying its implementation suggests that “fighting neighborhood segregation is not really a Trump administration priority at all.” “What A Presidential President Would Have Said About His Health.” In an editorial, the Washington Post (1/9) says that ahead of his medical exam on Friday, President Trump “rebutted questions about his mental health by tweeting that he ‘would qualify as not smart, but genius...and a very stable genius at that!’” The Post goes on to offer what it argues “a more presidential president would be saying this week about his health, mental and physical,” writing, in part, “Given my father’s Alzheimer’s and my own age, I will also insist on taking a mental acuity test. I will release the results of that test also, and I will repeat it every year.” Wall Street Journal. “Progress On Immigration.” In an editorial, the Wall Street Journal (1/9) casts the framework for negotiation that came out of President Trump’s meeting with lawmakers on immigration as a positive development and says both sides have a political interest in crafting a deal. “Davos In, Bannon Out.” In an editorial, the Wall Street Journal (1/9) writes that while there were concerns that as a White House aide, Steve Bannon would lead white nationalists in the equivalent of Hitler’s beer-hall putsch, Dan Henninger was more accurate when he cast Bannon as seeking to become President Trump’s Thomas Cromwell but lost his head instead. Meanwhile, Trump will attend Davos with globalists he and Bannon long railed against, even as Bannonism has lost its website. The Journal concludes that this illustrates how anything can happen during the Trump Administration. “North Korea’s Peace Games.” In an editorial, the Wall Street Journal (1/9) maintains Tuesday’s talks between North Korea and South Korea delivered Kim Jong-un a propaganda victory, allowing him to promote peace despite threatening his adversaries and driving a wedge between Washington and Seoul. The Journal says South Korean President Moon Jae-in must make clear US-South Korea relations will not be threatened, especially since heightened tensions on the Korean Peninsula have increased the South’s reliance on the American security umbrella, which is more likely to ensure peace than Kim’s false vows of peace. Big Picture Headlines From Today’s Front Pages. Wall Street Journal: Trump Says Drilling Won’t Be Allowed Off Florida Coast Investors Prepare For Inflation Air-Cargo Space Is Tight As Even Spaghetti Sauce Is In An ASAP Rush Mohammed Bin Salman’s Next Saudi Challenge: Curtailing Ultraconservative Islam New York Times: Trump Appears To Endorse Path To Citizenship For Millions Of Immigrants Trump’s Negotiation On Immigration, Unfolding On Camera North Carolina Congressional Map Ruled Unconstitutionally Gerrymandered North Korea Moves Toward Détente With Seoul Steve Bannon Steps Down From Breitbart Post Mudslides Strike Southern California, Leaving At Least 13 Dead Washington Post: Transcript Release Intensifies Feud Over FBI, Trump Dossier DACA Talks Hint At Broader Deal North Korea Makes Deals And Threats It Was Getting Colder. Where Was Her Son? After Blowup, Bannon Steps Down At Breitbart Financial Times: North And South Korea Agree To Hold Military Talks Emmanuel Macron Targets Deals During China State Visit Democrats Seek Their Own Star Power In The Age Of Trump Trump To Attend Annual Davos Gathering Washington Times: Trump, Lawmakers Closer To Deal On Immigration Bill After Meeting Trump Showcases Negotiating Skills In Unique Immigration Meeting Trump Endorses Return To Pork-Barrel Spending Projects As Means To Create Unity BuzzFeed’s Posting Of ‘Dodgy’ Trump Dossier Wreaked A Year Of Havoc On Washington Obama At Odds With Community Organizers Over Plans For Presidential Library Arpaio Ties Bid For Arizona Senate Seat To Trump Agenda Story Lineup From Last Night’s Network News: ABC: California-Flooding; WH-Immigration Meeting; Wolff New Book-Bannon; Russia Probe-Senate; Oprah Presidential Potential; North-South Korea Meeting; US Figure Skaters; School-Teacher Supervisor Feud; Alzheimer Research; Boston-Dog Near Accident; School Breakfast Charity. CBS: California-Flooding; WH-Immigration Meeting; North-South Korea Meeting; Top Secret US Satellite Failure; Oprah Presidential Potential; CBS This Morning Co-Host; Equifax Cyber Breach Aftermath; Wolff New Book-Bannon; Joe Arpaio Senate Bid; Iranian-Chinese Ship Collision; Church-Sexually Assaulted Teen; Alps-Heavy Snow; Takata Airbag Recall; Japanese Astronaut; College Football Champion. NBC: California-Flooding; Wolff New Book-Bannon; WH-Immigration Meeting; Oprah Presidential Potential; Foreigners-US Birth Tourism; North-South Korea Meeting; SchoolTeacher Supervisor Feud; Veteran Father Returns Home; Amazon Holidays Sales Figure; Solar System Pictures; College Football Champion. Network TV At A Glance: California-Flooding – 9 minutes, 10 seconds WH-Immigration Meeting – 8 minutes, 5 seconds North-South Korea Meeting – 5 minutes, 40 seconds Oprah Presidential Potential – 5 minutes, 5 seconds Wolff New Book-Bannon – 2 minutes, 35 seconds Story Lineup From This Morning’s Radio News Broadcasts: ABC: Central America Earthquake; Russia Probe-Senate; Wolff New Book-Bannon; California-Flooding. CBS: California-Flooding; WH-Immigration Meeting; North Carolina District Map; Baby Safety; Central America Earthquake. FOX: California-Flooding; Immigration Policy-Legal Challenge; Wolff New Book-Bannon. NPR: California-Flooding; Russia Probe-Senate; Joe Arpaio Senate Bid; Wall Street News. Washington Schedule Today’s Events In Washington. White House: PRESIDENT TRUMP — Holds a Cabinet meeting; has lunch with Vice President Mike Pence and Secretary of State Rex Tillerson; participates in a bilateral meeting with Prime Minister Solberg; meets with US Ambassador to the United Nations Nikki Haley; meets with Secretary of the Treasury Steven Mnuchin. VICE PRESIDENT PENCE — Joins the President for lunch with Secretary of State Rex Tillerson. US Senate: 10:00 AM Senate Judiciary Committee nominations hearing – Nominations hearing considers Kurt Engelhardt to be U.S. Circuit Judge for the Fifth Circuit; Barry Ashe to be U.S. District Judge for the Eastern District of Louisiana; Howard Nielson Jr. to be U.S. District Judge for the District of Utah; and James Sweeney II to be U.S. District Judge for the Southern District of Indiana Location: Dirksen Senate Office Building, Rm 226, Washington, DC http://judiciary.senate.gov/ 10:00 AM Senate Public Works Committee oversight hearing on water infrastructure – Oversight hearing on ‘America’s Water Infrastructure Needs and Challenges’, with testimony from National Association of Counties Associate Legislative Director Julie Ufner; Muskogee City-County Port Authority Port Director Scott Robinson; Restore the Mississippi Delta Coalition Associate Vice-President for Coastal Protection Steve Cochran; American Association of Port Authorities Chairman-elect William Friedman; and Congressional Research Service Natural Resources Policy Specialist Nicole Carter Location: Dirksen Senate Office Building, Rm 406, Washington, DC http://epw.senate.gov/public/ US House: 10:30 AM House Democratic Caucus media availability – House Democratic Caucus Chairman Joe Crowley and Vice Chair Linda Sanchez hold post-Caucus meeting press conference Location: U.S. Capitol Visitor Center, HVC Studio A, Washington, DC http://www.dems.gov/ https://twitter.com/HouseDemocrats 10:30 AM House Democratic Caucus hold weekly press conference. Participants: Joe Crowley (D-NY), Chairman of the Democratic Caucus; Linda Sánchez (D-CA), Vice Chair of the Democratic Caucus. Location: HVC Studio A — Capitol Visitor Center, U.S. Capitol, Washington, DC http://www.dems.gov/ https://twitter.com/HouseDemocrats 10:00 AM House Judiciary Committee organizational meeting / markup hearing – Markup hearing on ratification of subcommittee assignments, plus ‘H.R. 506, Preventing Crimes Against Veterans Act of 2017’ Location: Rm 2141, Rayburn House Office Bldg, Washington, DC http://judiciary.house.gov/ https://twitter.com/HouseJudiciary 10:00 AM House Veterans’ Affairs subcommittee hearing on home loan churning practices – Economic Opportunity Subcommittee hearing on ‘Home Loan Churning Practices and How Veteran Homebuyers are Being Affected’, with testimony from Veterans Benefits Administration Loan Guaranty Service Director Jeffrey London, and Deputy Director John Bell; Government National Mortgage Association Executive Vice President and COO Michael Bright; Colonial Savings President J. David Motley (on behalf of Mortgage Bankers Association); and Veterans United Home Loans General Counsel Brock Cooper Location: Cannon House Office Building, Rm 334, Washington, DC http://veterans.house.gov/ https://twitter.com/HouseVetAffairs 10:00 AM House Natural Resources Committee markup hearing – Markup hearing on ‘H.R. 219, Swan Lake Hydroelectric Project Boundary Correction Act’, ‘H.R. 801, Route 66 National Historic Trail Designation Act’, ‘H.R. 1220, To establish the Adams Memorial Commission to carry out the provisions of Public Law 107-62, and for other purposes’, ‘H.R. 2711, National Memorial to Fallen Educators Act’, ‘H.R. 3133, Streamlining Environmental Approvals Act of 2017’, and ‘S. 117, Alex Diekmann Peak Designation Act of 2017’ Location: Longworth House Office Building, Rm 1324, Washington, DC http://naturalresources.house.gov https://twitter.com/NatResources 10:00 AM House Armed Services Committee hearing on the DoD FIAR plan – Hearing on ‘Department of Defense Update on the Financial Improvement and Audit Remediation (FIAR) Plan’, with testimony from Under Secretary of Defense and DoD Comptroller and CFO David Norquist Location: Rayburn House Office Building, Rm 2118, Washington, DC armedservices.house.gov https://twitter.com/HASCRepublicans 10:00 AM House Foreign Affairs Committee hearing on sanctions, financial pressure, and national security – Hearing on ‘Sanctions and Financial Pressure: Major National Security Tools’, with testimony from Financial Integrity Network Chairman and co-founder (and former Assistant Secretary of the Treasury for Terrorist Financing and Financial Crimes) Juan Zarate; former Drug Enforcement Administration Special Operations Division Special Agent in Charge Derek Maltz; and former Acting Under Secretary of the Treasury for Terrorism and Financial Intelligence Adam Szubin Location: Rayburn House Office Building, Rm 2172, Washington, DC http://www.hcfa.house.gov https://twitter.com/HouseForeign 10:00 AM Markup hearing on ‘H.R. 4675, the Low Dose Radiation Research Act of 2017’ Location: Rayburn House Office Building, Rm 2318, Washington, DC http://science.house.gov https://twitter.com/HouseScience 10:00 AM House Minority Whip Steny Hoyer regular pen-and-pad briefing Location: H-144, U.S. Capitol, Washington, DC www.democraticwhip.gov/ https://twitter.com/WhipHoyer 12:00 PM Bipartisan Heroin Task Force members release its 2018 legislative agenda – Bipartisan Heroin Task Force members, including Democratic Reps. Annie Kuster and Donald Norcross, and Republican Reps. Tom MacArthur and Brian Fitzpatrick, hold a press conference on the release of its 2018 legislative agenda for the 115th Congress Location: U.S. Capitol, UVC Studio A, Washington, DC kuster.house.gov https://twitter.com/RepAnnieKuster 12:00 PM House meets for legislative business – House of Representatives meets for legislative business, with agenda including consideration of ‘S. 140 – To amend the White Mountain Apache Tribe Water Rights Quantification Act of 2010 to clarify the use of amounts in the WMAT Settlement Fund’ Location: U.S. Capitol, Washington, DC http://www.house.gov/ 2:00 PM House Foreign Affairs subcommittee hearing on upcoming elections in the Western Hemisphere – Western Hemisphere Subcommittee hearing on ‘Upcoming Elections in the Western Hemisphere: Implications for U.S. Policy’, with testimony from International Republican Institute Deputy Director for Latin America and the Caribbean Katya Rimkunas; International Foundation for Electoral Systems Vice President of Programs Michael Svetlik; and National Democratic Institute Senior Associate and Regional Director of Latin America and Caribbean Programs Jim Swigert Location: Rayburn House Office Building, Rm 2172, Washington, DC http://www.hcfa.house.gov https://twitter.com/HouseForeign 2:00 PM House Financial Services subcommittee latest hearing on Fed reform – Monetary Policy and Trade Subcommittee hearing on ‘A Further Examination of Federal Reserve Reform Proposals’, with testimony from Center for Economic and Policy Research Co-Director and Senior Economist Dr Dean Baker; Heritage Foundation Center for Data Analysis Director Dr Norbert Michel; R Street Institute Distinguished Senior Fellow Alex Pollock; Cato Institute Center for Monetary and Financial Alternatives Director Dr George Selgin Location: Rayburn House Office Building, Rm 2128, Washington, DC http://financialservices.house.gov https://twitter.com/FinancialCmte Other: 9:30 AM State of American Business address – U.S. Chamber of Commerce President and CEO Thomas Donohue delivers his annual ‘State of American Business’ address outlining the top challenges facing the business community and the Chamber’s policy priorities for 2018, followed by press conference with U.S. Chamber of Commerce Executive Vice President and Chief Policy Officer Neil Bradley Location: USCC, 1615 H St NW, Washington, DC www.uschamber.com https://twitter.com/uschamber 9:30 AM CTTF discussion on ‘national threat of aluminum imports’ – China Trade Task Force hosts discussion on the threat posed to U.S. national security by ‘the significant deterioration of the U.S. primary aluminum industry and the need to adjust imports for the industry to restart idled production’ at NPC news conference, with participants including former House Speaker Newt Gingrich, Republican Rep. James Comer, U.S. Army Brig. Gen. John Adams, Century Aluminium CEO Mike Bless, and United Steelworkers Union Vice President Tom Conway Location: National Press Club, 529 14th St NW, Washington, DC chinatradetaskforce.com https://twitter.com/chinatradetf 10:00 AM Norwegian PM Solberg speaks on sustainable security at Brookings – ‘Sustainable security: The transatlantic community and global challenges’ Brookings Institution Alan and Jane Batkin International Leaders Forum, with Norwegian Prime Minister Erna Solberg speaking on ‘the changing global security environment and role of the Euro-Atlantic partners in meeting these rising challenges’ Location: The Brookings Institution, 1775 Massachusetts Ave NW, Washington, DC http://www.brookings.edu https://twitter.com/BrookingsInst #NorwayPM Last Laughs Late Night Political Humor. Jimmy Kimmel: [Referring to President Trump’s appearance at the college football national championship] “You got to see President Trump try to sing our national anthem. Did you see this? Pay special attention to his mouth here, because it appears he might not know all the words to this anthem he talks about so much. ... Yeah. No way he wins lip-sync battle with a performance like that.” Stephen Colbert: “Today, President Trump held a bipartisan meeting on immigration reform, focused mainly on reforming our policy of having immigrants. The stakes are high. If the two sides can’t find a compromise, the federal government is going to shut down on January 20, or as historians call it, ‘One Year too late.’” Stephen Colbert: “We could be headed to an historic moment because, according to multiple sources, ‘Special Counsel Robert Mueller has informed lawyers for President Trump that he may seek an interview with the President.’ That’s not going to be easy. That’s why Mueller’s going undercover at ‘Fox And Friends.’” James Corden: “The craziest part of this story is, Steve Bannon is a powerful old white guy who has lost not one but two jobs in the last six months, and neither of them was for sexual harassment.” James Corden: “They say pretty soon, these self-driving cars could completely replace pizza delivery guys, to which Steve Bannon said, ‘Great, now I’m out of another job.’” Trevor Noah: [Referring to Steve Bannon’s resignation from Breitbart] “This poor guy. Just imagine, last year [Steve Bannon] was hanging out with Nazis and accused child molesters, and now he just seems like a loser.” Trevor Noah: “You see, in President Trump’s mind, the attorney general is his personal attorney. That’s what he thinks. All right? Instead of recusing himself from Russia, he wanted Jeff Sessions to basically be his pint-sized Johnny Cochran.” Trevor Noah: “If the President can start criminal investigations into anyone he wants, it feels less like a democracy and more like a Trump-ocracy. I feel bad for Hillary Clinton because she’s always taking the brunt of these things. You know this will never end for her. She will be in the grave and Republicans will want to exhume the body for more investigations. She will be in heaven, St. Peter will say, ‘Welcome to heaven, my child. Your time here...what? The Republicans want to investigate the Uranium One? Wait outside.” Jimmy Fallon: ?Trump invited the press to an immigration meeting at the White House, and he let them stick around for about an hour. They said, ?This is the longest we?ve ever stayed here.? And Trump said, ?Me too.?? Jimmy Fallon: want to say congratulations to Alabama, who overcame a 13-point deficit to win the college football national championship. I?m just happy to say the words ?Alabama' and and not be talking about Roy Moore.? Jimmy Fallon: ?[President] Trump actually went to the game, you see that? And a lot of people were saying it kind of looked like he forgot the words to the national anthem. Trump denied that he forgot the words. He said that he never knew the words to begin with.? Seth Meyers: ?Former White House Press Secretary Sean Spicer said yesterday that Oprah Winfrey does not have enough political experience to run for President. I don?t know what he said next, but it had to be, ?Why is everybody laughing?? Seth Meyers: ?According to new analysis, President Trump speaks at a fourth-grade level, but only when he doesn't want Betsy DeVos to know what he?s talking about.? Seth Meyers: ?Former White House Chief Strategist Steve Bannon has stepped down from his position as the head of Breitbart News. So he's unemployed. I guess, all this time, he really was dressing for the job he wanted.? 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We can be found on the Web at BulletinIntelligence.corn, or called at (703) 483-6100. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:16 PM Conversation Contents U.S. Department of the Interior News Briefing for Thursday, December 28, 2017 Bulletin Intelligence From: Bulletin Intelligence Sent: Thu Dec 28 2017 04:00:59 GMT-0700 (MST) To: U.S. Department of the Interior News Briefing for Thursday, December 28, 2017 Mobile version and searchable archives available here. Please click here to subscribe. Department of the Interior - I A .CIsioN ., News Briefing NCL DATE: THURSDAY, DECEMBER 28, 2017 6:00 AM EST Today's Table Of Contents DOI In The News 0 Reuters: Italy?s Eni Begins Drilling Oil Well In Alaska's Beaufort Sea: BSEE. 0 Bloomberg News: Westmoreland Wasn?t Cleared To Expand Coal Mine, Interior Says. 0 The Hill: Court Won?t Reconsider Dismissing Case Against Obama Fracking Rule. 0 Salem (OR) Capital Press: Senators Question USFS Role In Sage Grouse Review. 0 Washington Post: The Most Consequential Environmental Stories Of 2017. Bureau Of Indian Affairs 0 MGM Resorts Wants To Intervene In Suit Over 3rd?Casino Gaming Amendments. Bureau Of Land Management 0 Casper (WY) Star-Tribune: Wyoming Oil And Gas Lease Revenue Increases By 800 Percent In 2017. Bureau Of Reclamation 0 City Sets New Sewer Charges For USBR, Others. Fish And Wildlife Service 0 NPR: Accidentally Killing Birds Isn't A Crime, Says Trump Administration. 0 Helena (MT) Independent Record: Bill Would Vastly Increase Money Available For Managing At-Risk Species. 0 Associated Press: Record Number Of Kirtland?s Warbler Nests Found In Wisconsin. 0 Valley (PA) News Dispatch: Another Species Of Asian Carp Could Become Threat To Waterways. Valdosta (GA) Daily Times: Banks Lake Drawdown This Winter. National Park Service • CBS: Decaying Portion Of Jackson Magnolia Removed. • McClatchy: How Much Cell Service Is Too Much In Yosemite, Other National Parks? • Marin (CA) Independent Journal: National Park Service Drops Marin Leash Law Plan. • Dubois County Free Press: Lincoln Boyhood Entrance Fees Suspended. • Cleveland (TN) Daily Banner: Entrance Fee To Increase At Point Park. • Chico (CA) Enterprise-Record: Lassen Park, Whiskeytown Entry Fees Increasing Jan. 1. • Star of Grand Coulee (WA): NPS Wants To Keep Lake Roosevelt Mussel-free. • Oil City Wyoming: Devils Tower Plans Accessibility Improvements. • Rapid City (SD) Journal: Wind Cave Continues Efforts To Limit CWD In Elk Herd. • KGMB-TV Honolulu: National Park Service To Visitors: Please (Please) Leave The Rocks. • Associated Press: Florida Man Dies While Snowshoeing In Glacier National Park. • Tomah (WI) Journal: Boy Scout Cabin Placed On National Register Of Historic Places. • Columbus News Team (NE): Downtown Neligh Added To Historic Registry. US Geological Survey • Associated Press: California Earthquake: Two Minor Quakes In San Jose. Opinion Pieces • In 2017, The White House Abandoned The Environment And Public Health. • Trump Administration Reversal On Mining Leases Near BWCA Is No Surprise. • Alaska’s Arctic National Wildlife Refuge Is Now Up For Sale. • Don’t Loosen Safety Regulations On Offshore Drilling. • Guest Opinion: Congress Should Fund Crater Lake Maintenance. • The Story Of The White House’s Famous Magnolia Tree. • Editorial: Wolf Recovery Plan Based On Reason, Compromise. • BLM Needs To Build Firebreaks. • Micronesia Won’t Soon Break Its Addiction To US Dollars. • Additional Reading. Top National News • WPBF-TV West Palm Beach (FL): Trump Visits First Responders In West Palm Beach. • CNN: Trump Plans Infrastructure Push In January. • Daily Caller: Daily Caller Analysis: Despite Gloomy Predictions, Economy Faring Well Under Trump. • The Hill: EPA Chief Favors Conservative Understanding Of “Environmentalism.” Editorial Wrap-Up • New York Times. - “The Yemen Crucible.” - “Reforms Rein In Police Harassment; Now More Is Needed.” • Washington Post. - “What A Presidential President Would Have Said About His First Year.” - “Turkey’s Stalinist Prosecution Of Journalists For Tweets And Blogs.” - “The Authorities Stay Silent On A Local Police Shooting.” • Wall Street Journal. - “Google-Hotel Travelopoly.” - “Murder Most Foul In Argentina.” - “Washington’s Carbon Overreach.” Big Picture • Headlines From Today’s Front Pages. Washington Schedule • Today’s Events In Washington. Last Laughs • Late Night Political Humor. DOI In The News Italy’s Eni Begins Drilling Oil Well In Alaska’s Beaufort Sea: BSEE. Reuters (12/27, Sims) reports that the Bureau of Safety and Environmental Enforcement said Wednesday that Italian oil company Eni started drilling a new well in U.S. waters off the north coast of Alaska this week. As “the first company to do so since 2015,” Eni “is working from an artificial island in the Beaufort Sea about three miles off Oliktok Point in the Arctic Ocean,” and “the well is expected to run more than 6 miles (10 km) long.” According to the BSEE, “the project could result in 20,000 barrels a day of oil production,” as “Eni plans to use extended-reach drilling techniques to tap a formation on the Outer Continental Shelf that regulators approved a year ago.” The Alaska Dispatch News (12/27, DeMarban) reports Interior Department Assistant Secretary for Land and Minerals Management Joe Balash “said in the statement that the Arctic is important to the Trump administration’s national energy strategy.” The BSEE “said its inspectors will visit the site as drilling continues in the coming weeks, including during critical periods such as testing of the blowout preventer designed to prevent an oil spill,” and that “the drilling is expected to last more than two months.” The article emphasizes that the planned oil well would be Alaska’s longest. Offshore Engineer (12/27) says that “the start of drilling follows BSEE’s 28 November approval of Eni’s Beaufort Sea plans and a pre-drill inspection that took place from 6-10 December.” The BSEE said last month that “Eni and Shell will jointly explore the unit using the Doyon Rig 15.” The article adds that “Eni plans to drill four exploration wells – including two mainbores and two sidetracks – over the next two years from its Nikaitchuq North project.” BSEE Alaska Region Director Mark Fesmire said in a statement Wednesday that “as drilling continues, BSEE will provide oversight to ensure operations are being conducted in accordance with approval plans and permits.” Also reporting are the Alaska Public Radio Network (12/27, Koenig), Marine Link (12/27, Lakshmi), and Splash 24/7 (SGP) (12/27, Scully). Westmoreland Wasn’t Cleared To Expand Coal Mine, Interior Says. Bloomberg News (12/27, Loh) reports that “Westmoreland Coal Co. hasn’t received federal approval to expand a Montana mine, the U.S. Interior Department said Wednesday, a day after the miner’s shares surged on a report the project had been cleared.” Spokeswoman Heather Swift said by email, “A previous statement by the Department that it had approved the expansion of the mine was incorrect and was the result of an internal miscommunication.” Swift was “correcting her statement that appeared in an Associated Press article last week that Westmoreland had been cleared to expand the facility, potentially unlocking 60 million tons of coal production there.” Additional coverage was provided by KUSA-TV Denver (12/27). Court Won’t Reconsider Dismissing Case Against Obama Fracking Rule. The Hill (12/27, Cama) reports that on Wednesday, a federal appellate court “declined...to reconsider its September decision that undid a previous court ruling overturning the Obama administration’s fracking rule for federal land.” The order was not accompanied by an explanation, but did indicate that no judges were interested in having a second hearing on the matter. The Trump Administration’s Department of the Interior is currently attempting to repeal the regulation, which would render the Wednesday order moot. The court wrote, “Our proceeding to address whether the District Court erred in invalidating the BLM’s fracking regulation when the BLM has now commenced rescinding that same regulation appears to be a very wasteful use of limited judicial resources.” The Washington Examiner (12/27, Siciliano) reports that the court said in September the matter is moot as the Administration is working to repeal the regulation. Some anticipated that activist groups will sue “the agency after the rule is made final, adding to the list of Trump administration actions being challenged in court in the new year.” Senators Question USFS Role In Sage Grouse Review. The Salem (OR) Capital Press (12/27, Plaven) reports that thirteen Democratic senators are “questioning what role the U.S. Forest Service played in the Trump administration’s recent decision to review protections for the greater sage grouse.” In a letter sent Dec. 20 to USFS Chief Tony Tooke, the lawmakers “pose a list of 10 questions stemming from federal orders to review the 2015 sage grouse plans, which sought to keep the peculiar bird off the Endangered Species List.” The article notes that “among their questions, they ask how the Forest Service was involved in working with the Department of the Interior on its recommendation to review sage grouse plans, and if the agency held any meetings with local stakeholders.” The Most Consequential Environmental Stories Of 2017. The Washington Post (12/27, Dennis, Fears) reviews the most substantial environmental stories of 2017, a year in which President Trump “scaled back regulations on the fossil fuel industry and pushed for more drilling.” In November, the Trump Administration offered 77 million acres in the Gulf of Mexico for oil and gas leases. Trump and Interior Secretary Ryan Zinke opened up more land for coal exploration. In 2017, the price of oil has increased as coal has struggled to come back amid the rise in the popularity of natural gas. The past year also saw disputes and protests over the Dakota Access Pipeline, Keystone XL Pipeline, and others. The Post adds that the Arctic National Wildlife Refuge could be drilled soon, as “the Republican-controlled Congress greenlighted leases for exploration in the recently passed tax bill completely along party lines.” However, Royal Dutch Shell spent $7 billion to drill “in the Chukchi Sea in 2014 and has nothing to show for it.” Bureau Of Indian Affairs MGM Resorts Wants To Intervene In Suit Over 3rd-Casino Gaming Amendments. The New London (CT) Day (12/27, Hallenbeck) reports that MGM Resorts International is “seeking to intervene on the side” of the Interior Department “in the lawsuit the state and the Mashantucket Pequot and Mohegan tribes lodged last month against the department.” In a court filing Tuesday, lawyers for MGM Resorts assert “the Las Vegasbased casino operator should be allowed to intervene in the suit because its business interests are at stake.” MGM Resorts claims “that it meets all legal requirements for intervenor status, noting that the Interior Department wouldn’t represent ‘MGM’s private, competitive interests because those interests differ from Interior’s institutional interests as a federal agency charged with representing the public and with carrying out the United States’ trust obligations to Indian tribes.’” Bureau Of Land Management Wyoming Oil And Gas Lease Revenue Increases By 800 Percent In 2017. The Casper (WY) Star-Tribune (12/27, Richards) reports that from 2016 to 2017, Wyoming’s revenues from oil and gas leases have increased by more than 800 percent. When compared to the Permian Basin, “Wyoming is still a bargain.” The AP (12/27) reports that “the revenue from lease sales from the Bureau of Land Management and the auctions from the Office of State Lands added up to about $16 million last year when oil and gas activity was still in a downturn.” Bureau Of Reclamation City Sets New Sewer Charges For USBR, Others. The Star of Grand Coulee (WA) (12/27, Hunter) reports that “Coulee Dam’s city council voted Wednesday to sewer service rates that will charge low-income customers a little less and the U.S. Bureau of Reclamation a lot more.” The USBR’s sewer bill will” go up considerably after the change approved to the amount of equivalent residential units, or ERUs, the new resolution states the bureau uses.” The USBR has been “charged for 88 ERUs, but will now be charged for 114.” Fish And Wildlife Service Accidentally Killing Birds Isn’t A Crime, Says Trump Administration. NPR (12/27, Wamsley) reports that the Trump Administration “says it will no longer criminally prosecute companies that accidentally kill migratory birds.” A legal memo from the Interior Department “posted Friday declares that the Migratory Bird Treaty Act applies only to purposeful actions that kill migratory birds, and not to energy companies and other businesses that kill birds incidentally.” In a memo, Daniel Jorjani, Interior’s principal deputy solicitor, writes, “Interpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions, threatening up to six months in jail and a $15,000 penalty for each and every bird injured or killed.” Also reporting are the Smithsonian (12/27, Daley). Bill Would Vastly Increase Money Available For Managing At-Risk Species. The Helena (MT) Independent Record (12/26, Barker) reports that “a bill pending in Congress would vastly increase money available for the management of at-risk species by minimizing long-standing wildlife funding mechanisms.” The Restoring America’s Wildlife Act “would direct $1.3 billion of existing royalties collected from companies that drill for oil and gas on federal lands and allocate it to state fish and wildlife agencies.” However, “one possible hurdle to the bill could be the requirement of new federal spending to be offset by cuts or new revenue.” Record Number Of Kirtland’s Warbler Nests Found In Wisconsin. The AP (12/27) reports that “conservationists in Wisconsin say they’ve spotted a record number of nests from the endangered Kirtland’s warbler this year, a decade after the songbird was first spotted in the state.” According to the article, “fifteen nests have been found so far in Wisconsin.” Meanwhile, “state and federal agencies are working to create more habitat area for Kirtland’s warblers and to protect the birds from predators.” Another Species Of Asian Carp Could Become Threat To Pennsylvania’s Waterways. The Valley (PA) News Dispatch (12/27, Thomas) reports that the black carp could be spreading in Pennsylvania’s waterways. Charlie Wooley, Midwest deputy regional director of the Fish and Wildlife Service, said, “We are concerned about the black carp moving up the Ohio River and moving to waters with native mussel population, which are already stressed in the Ohio River tributaries.” Banks Lake Drawdown This Winter. The Valdosta (GA) Daily Times (12/27) reports that “personnel at Banks Lake National Wildlife Refuge are drawing down water levels in Banks Lake this winter as a means to control aquatic vegetation.” According to the article, “the drawdown began in November, with staff gradually reducing the water levels with the goal of lowering the water level by seven to eight feet to maximize the amount of vegetation exposed to cold temperatures.” The article says that ?at its lowest level, one-third of the 900-acre lake will remain underwater, allowing fish to survive and re-populate the lake once water levels are raised.? National Park Service Decaying Portion Of Jackson Magnolia Removed. The CBS Evening News?i (12/27, story 11, 0:20, Quijano) reported that ?today, White House workers removed a decaying limb from? a magnolia tree that was planted on the South Lawn by President Andrew Jackson in 1835. The (12/27, Superville) reports that ?former ?rst daughter Chelsea Clinton, who grew up in the White House during Bill Clinton?s two terms in office, tweeted her thanks late Tuesday to the horticulturists and National Park Service attendants who take care of the White House grounds.? Also reporting are the CBS News (12/27) website, the New York Post (12/27, Moore), and the Telegraph (UK) (12/27, Millward). How Much Cell Service Is Too Much In Yosemite, Other National Parks? McClatchy (12/27, Leavenworth) reports that ?environmentalists are pressing the National Park Service to slow or halt construction of new cellular towers within park boundaries.? They claim the park service is ?quietly facilitating a digital transformation with little public input or regard to its mission statement to preserve ?unimpaired the natural and cultural resources and values of the National Park System.? On the other hand, ?advocates for increased cell service, including many NPS of?cials, say the parks can?t cling to an earlier era.? They argue that ?expanded cellular and broadband rescue teams respond to emergencies and are necessary to draw a new generation to the parks.? National Park Service Drops Marin Leash Law Plan. The Marin (CA) Independent Journal (12/27, Prado) reports that ?National Park Service plans for new leash laws were officially withdrawn with the decision posted in the Federal Register? on Wednesday. The notice in the Federal Register said, ?The National Park Service no longer intends to prepare a final rule or issue a Golden Gate National Recreation Area dog management plan. The NPS has terminated the rulemaking process.? Lincoln Boyhood Entrance Fees Suspended. The Dubois County Free Press (12/27) reports that ?visitors to Lincoln Boyhood National Memorial will be able to enter the park for free beginning January 1, 2018.? Kendall Thompson, the superintendent at the park, announced the new policy because ?these lands belong to, and should be accessible to, all Americans." Thompson said the park looks ?fonNard to serving even greater numbers of visitors in the future." Entrance Fee To Increase At Point Park. The Cleveland (TN) Daily Banner (12/22) reports that on Jan. 1, the National Park Service will ?increase the entrance fee to the Point Park area of Chickamauga and Chattanooga National Military Park to $7 per person (from the current to fund ongoing maintenance and improvement projects within the park. However, the price of an annual pass will remain unchanged at Lassen Park, Whiskeytown Entry Fees Increasing Jan. 1. The Chico (CA) Enterprise-Record (12/27) reports that entrance fees will be increasing Jan. 1 at Lassen Volcanic National Park and Whiskeytown National Recreation Area. The fees are ?used within the parks to make improvements such as trails, visitor facilities and access roads.? NPS Wants To Keep Lake Roosevelt Mussel-free. The Star of Grand Coulee (WA) (12/27) reports that as part of “an ongoing effort to prevent aquatic invasive species, the National Park Service (NPS) at Lake Roosevelt National Recreation Area is implementing a mussel-free self-certification program.” The NPS is “requesting operators certify their boat or personal watercraft free of aquatic invasive species, especially quagga/zebra mussels, prior to launching, and for boaters who have recently boated in infested waters, that will take some doing and some time.” The park service said, “Boats that have been in infested waters should be drained of all water, washed thoroughly with hot water and dried for at least seven days before entering Lake Roosevelt. It is important to remove all dirt, plants and water from boats and trailers prior to launching every time.” Devils Tower Plans Accessibility Improvements. The Oil City Wyoming (12/27) reports that Devils Tower National Monument “plans to design and construct a new accessible approach route to the Tower Trail, a 1.3 mile hiking trail around the base of the Tower.” The National Park Service “recently created an Accessibility Task Force to recommend a more effective organizational approach to improving accessibility across the service.” Also, “new accessible interpretive wayside exhibits along the trail, an accessible interpretive plaza and exhibits, accessible walkways to the trailhead, visitor center, and climber registration office will be developed and installed.” Wind Cave Continues Efforts To Limit CWD In Elk Herd. The Rapid City (SD) Journal (12/27, Rempp) reports that two initiatives are underway “to address the prevalence of Chronic Wasting Disease in the Wind Cave National Park elk herd.” One is “a research endeavor while the other focuses on population control.” According to the article, “current estimates indicate there are around 260 elk located in the park,” while “long term management plans call for a population of 232-475.” National Park Service To Visitors: Please (Please) Leave The Rocks. KGMB-TV Honolulu (12/27) reports that National Park Service rangers are reminding visitors to not take rocks. According to the article, “this year, as they do every year, Hawaii national parks got boxes of rocks returned to them by visitors who shouldn’t have lifted them in the first place.” The National Park Service said, “We can’t return rocks to the crater because doing so confuses the geological story — we don’t know what part of the volcano the rocks came from. So leave rocks alone, don’t take them home!” Florida Man Dies While Snowshoeing In Glacier National Park. The AP (12/27) reports that “a 64-year-old Florida man collapsed and died while on a guided snowshoe walk in Glacier National Park.” According to park officials, the man’s “death is believed to be due to natural causes.” Boy Scout Cabin Placed On National Register Of Historic Places. The Tomah (WI) Journal (12/27, Flynn) reports that the Tomah Boy Scout Cabin has been added to the National Register of Historic Places. Downtown Neligh Added To Historic Registry. Columbus News Team (NE) (12/27, McKay) reports that Downtown Neligh has been added to the National Register of Historic Places. US Geological Survey California Earthquake: Two Minor Quakes In San Jose. The AP (12/27) reports that “the U.S. Geological Survey says a pair of minor earthquakes just a few hours apart rattled the San Jose area in central California.” The San Jose Mercury News, “citing the USGS, reports a 3.1 magnitude quake hit an area northeast of San Martin at 7:19 p.m. Tuesday. A stronger 3.9 magnitude quake hit at 10:32 p.m. northeast of Alum Rock.” Also reporting are USA Today (12/27, Bacon), Newsweek (12/27, Sheridan), and International Business Times (12/27, Glowatz). Opinion Pieces In 2017, The White House Abandoned The Environment And Public Health. John O’Grady, president of a group “representing over 9,000 bargaining unit employees at the US EPA nationwide,” writes in a piece for The Hill (12/27) that “2017 was the worst year on record” for people who “care about public health and the environment.” He says EPA Administrator Pruitt “continues to challenge the two central Obama-era rules, the Clean Power Plan and the Clean Water Rule, while” President Trump “doubles down to make his children and grandchildren’s generations more fossil fuel reliant, and isolates us from the rest of the world on climate leadership.” Trump Administration Reversal On Mining Leases Near BWCA Is No Surprise. The Minneapolis Star Tribune (12/27) editorializes that “the recent reversal of a lastminute Obama administration move to block a mining project on the edge of northern Minnesota’s Boundary Waters Canoe Area Wilderness is troubling but should come as a shock to no one.” The Editorial Board has “put its faith in traditional environmental and permitting reviews that rely on data-driven analyses by state and federal agencies” but “the retaliatory politics now re-energizing the Twin Metals project cast serious doubt on the process for this particular project.” For that reason, the paper says that “it’s time to discuss other protective measures, such as legislation creating a permanent mining buffer zone around the BWCA.” Alaska’s Arctic National Wildlife Refuge Is Now Up For Sale. Federal lands management official Tim Lydon writes in The Hill (12/27, Lydon) in opposition to the opening of the Arctic National Wildlife Refuge to oil drilling. Lydon says the “Republican tax bill...gifted one of your most treasured national landscapes to oil companies” “against any measure of public interest, and in defiance of plausible economic reason.” Lydon cites how the wildlife refuge “supports Alaska’s highest density of denning polar bears, exclusively mothers nursing newborns,” “millions of migrating birds...swans, terns, sandpipers, loons, eiders, and others.” In addition, the lands are “critical human habitat,” as “the Gwich’in people have lived there for millennia, calling it the sacred place where life begins.” Lydon targets Sen. Lisa Murkowski (R-AK), who he says pushed the passage of the measure. Don’t Loosen Safety Regulations On Offshore Drilling. The Tampa Bay (FL) Times (12/27) editorializes against the Bureau of Safety and Environmental Enforcement’s proposed rollback of offshore drilling safety measures. The Times says that “if approved, the measure would repeal a requirement that the agency certify third-party inspectors of equipment, including blowout preventers,” which was “a critical last line of defense that failed in the 2010 Deepwater Horizon disaster in the gulf.” The editorial opposes the elimination of the term “safe” from the rule that requires companies to “stream real-time oil production data to onshore facilities that regulators could review.” The Times asserts, “The harsh and unpredictable environment a mile under the sea requires that drilling standards put safety first.” Guest Opinion: Congress Should Fund Crater Lake Maintenance. In an op-ed for the Medford (OR) Mail Tribune (12/27, Thorndike, Hicks), Bill Thorndike, president of the Crater Lake National Park Trust, and Brad Hicks, CEO of The Chamber of Medford/Jackson County, write that Crater Lake is “an economic engine for Southern Oregon and it is important that we take the steps necessary to make sure that the park can continue to serve in that role, particularly as visitation increases.? But they note that ?Crater Lake has a backlog of important maintenance projects that total more than $85 million.? They urge Congress to ?make sure the National Park Service has the funds and certainty necessary to keep its crown jewels like Crater Lake open for business.? The Story Of The White House?s Famous Magnolia Tree. Meryl Gordon, author of a book about Bunny Mellon, writes in an op-ed in the Washington Post (12/27) that the Jackson Magnolia was key to Mellon?s redesign of the White House Rose Garden, which she began in 1961. Mellon sought ?to create the equivalent of an elegant outdoor stage set for use as a backdrop for ceremonies and entertaining,? and was inspired by the presence of the Jackson Magnolia. She eventually imported magnolia trees from Washington?s Tidal Basin to serve her purposes. Editorial: Wolf Recovery Plan Based On Reason, Compromise. In an editorial, the Albuguergue (NM) Journal (12/28) argues that ?a decision earlier this month by the state Game Commission to approve the new federal wolf recovery plan strikes a blow for reason and compromise.? The paper says that ?the new plan reflects compromise and science, and the hope of a new relationship that values both ranchers and wolves.? BLM Needs To Build Firebreaks. In an editorial, the Bend (OR) Bulletin (12/27) notes that the Bureau of Land Management is ?launching an effort to consider adding more ?rebreaks to the federal rangeland across Oregon, California, Idaho, Nevada, Utah and Washington.? According to the paper, ?the multi-state scale of the proposal could help speed up environmental approval of a number of smaller projects, which makes sense.? Although the strategy is ?not going to stop rangeland fires,? the editorial concludes that ?it is worth doing to help firefighters be able to better protect lives, property and habitat.? Micronesia Won?t Soon Break Its Addiction To US Dollars. In his column for the Honolulu Civil Beat (HI) (12/27, Blair), Chad Blair writes about the ties that bind the US and three Micronesian nations. Blair says that Palau, the Marshall Islands and the Federated States of Micronesia, are ?particularly dependent on American largesse.? Meanwhile, with heightened tensions East Asia, the US is increasingly beginning to recognize the strategic importance of its relationship with the COFA nations. Additional Reading. 0 Jenny Rowland And Kate Kelly: 6 Ways Interior Secretary Zinke Failed American Public Lands And Taxpayers In 2017. YubaNet (CA) (12/27, Rowland, Kelly). 0 The State Of The U.S. Oil And Gas Industry Is Strong As 2017 Comes To A Close. Forbes (12/27, Blackmon). 0 How The Fight To Save A Bird Species Shows How To Bridge The Red/blue Divide. T_he Guardian (UK) (12/27, Rogers). 0 Trump?s Offshore Oil Plan Is Coming. Lake Coung (CA) Record-Bee (12/27, Haifley). 0 The Slow But Steady Progression Toward Environmental Sustainability. Huf?ngton Post (12/ 27). 0 Hope For Natural Resource Policy In New Year. MM (12/ 27, Farron). 0 Christmas Came Early For Montana Sportsmen And Women. Helena (MT) Independent Record (12/27, Farron). 0 Environmental Protection Makes A Good Card. Jackson Hole (WY) News Guide (12/27, Absolon). 0 Native Voices Will Not Be Que/led On Monuments. Las Vegas Sun (12/28, Douglas). 0 EDITORIAL: Our Natural Treasures. York (PA) Dispatch (12/27). 0 Congress Looks To Modernize Funding For Wildlife, Outdoors Aid. Poughkeegsie NY) Journal (12/27, Conners). 0 No Simple Fisheries Fix. Flathead (MT) Beacon (12/27, Breeding). 0 Thomas Mitchell: What Evidence Is Pertinent In Bundy Trials? Elko (NV) Daily Free (12/27, Mitchell). 0 Pull The Plug, Commit To Historic Flow South Of Lake 0. Fort Mvers (FL) News-Press (12/27, Urich). 0 Historic Tax Credits Preserve The Essence Of New Orleans. New Orleans Times- Picayune (12/27). 0 Grizzly Hunt Plans Are A Step Backward. Jackson Hole (WY) News Guide (12/27, Salter). Top National News Trump Visits First Responders In West Palm Beach. President Trump on Wednesday visited West Palm Beach Rescue Station where he took photos with fire?ghters and paramedics and thanked them for their work. Coverage of the visit is relatively light and generally focuses on Trump?s discussion of his record during his first year in office rather than his comments thanking the ?rst responders. WPBF-TVB: West Palm Beach, FL (12/27, 6:04 pm. EST) reported that Trump ?shook hands with all the ?refighters in attendance and even took a handful of their questions.? The Palm Beach (FL) Post (12/27, Washington) reports that Trump ?sandwich[ed] pats on the back for his economic stewardship and last week?s passage of tax legislation between thanks for the ?rst responders.? His theme ?was that his administration was rescuing a nation from economic danger.? The Hill (12/27, Beavers) says Trump ?took time out of the unscheduled stop to highlight the recent GOP tax?cut plan, which passed shortly before the holiday season.? He said, ?We took a big, big beautiful ship that we're turning around, and a lot of good things are happening.? Trump ?also noted that there is ?a lot of legislation? he helped pass since taking office.? The (12/27) reports that Trump said the fire?ghters are ?great people? who do ?a fantastic job,? and he said that ?the country is ?doing well,? with the stock market and 401(k) retirement plans rising.? ABC World News Tonightit (12/27, story 4, 0:25, Llamas) said Trump ?tout[ed] his record, saying he signed, quote, more legislation than anybody, a claim widely challenged.? The Daily Beast (12/27) reports that Trump has actually ?signed 96 bills, the fewest of any president since before Truman.? Politico (12/27, McCaskill) reports that while Trump ?had signed more bills in his ?rst 100 days than any president since Truman,? as he nears the anniversary of his inauguration, ?he is far removed from his 100th day. And he has now signed the fewest number of bills into law of any first-year president dating back to Dwight Eisenhower, according to a recent report from the website GovTrack.? West Palm Beach, FL (12/27, 6:00 pm. EST) reported that Trump also ?addressed the stock market hitting new highs since taking of?ce.? The Washington Times (12/27, Boyer) says Trump ?also said he has achieved ?the all-time record for stopping ridiculous regulations.? He said, ?We?re very proud of that, that?s one of the reasons stocks are up to record level.? The Washington Examiner (12/27, Phillips) reports that Trump told the ?rst responders that ?under his administration, local law enforcement agencies are getting military-grade equipment back." Said Trump, ?Particularly the police, we?re giving them military equipment which was taken away by the previous administration, you know all about that. Now you have the best military equipment and you're able to use it for the police force.? Media Highlights Trump Playing Golf After Tweeting He Would Be ?Back To Work"After Christmas. BuzzFeed (12/27, Montgomery) reports that Trump ?was spotted? on his West Palm Beach golf courses ?on Wednesday for a second day despite his tweet saying he would be ?back to work in order to Make America Great Again' the day after Christmas.? CNN ?aired video of the president gol?ng at his course in West Palm Beach on Tuesday, the day after Christmas,? but on Wednesday, ?a truck blocked view of the president." Trump?s round of golf on Wednesday also received attention in the local media. West Palm Beach, FL (12/27, 5:59 pm. EST) reported that Trump ?promised to get back to work after the holiday, but he started the day with a round of golf at Trump International. It was around 4:00 when the President stopped at West Palm Beach Fire Station Number Two where he made some brief remarks and took a few questions.? The Palm Beach (FL) Post (12/27, Washington) says that while Trump's visit to the ?re rescue station ?accomplished Trump?s goal of shining the media spotlight that follows him onto first responders,? it ?won?t obscure the reality that Wednesday was spent largely at one of his properties, this one Trump International Golf Club in unincorporated West Palm Beach.? Trump Active On Twitter While In Florida. The Wall Street Journal (12/ 27, Nicholas) reports that while Trump has remained largely out of the public since he arrived at Mar-a-Lago, he has been active on Twitter commenting on the news and touting his record in office. Palm Beach Adjusts To Trump Being A Part-Time Resident. The Washington Post (12/27, Lee, Rozsa) reports that while Trump's visits to Palm Beach in the months following his election ?would cause a stir among locals and visitors,? during ?this holiday season, as Trump makes his tenth visit as president, his presence has become an afterthought to many.? Although ?logistical problems caused by his stay remain a mild who live and visit here say they have learned to plan around the inconveniences.? The town ?has adjusted to having the president of the United States as one of its part-time residents.? Trump Plans Infrastructure Push In January. (12/27, Merica, Liptak) reports on its website that according to aides, President Trump ?plans a major push on infrastructure in January.? During the campaign, Trump promised ?a $1 trillion infrastructure bill,? but ?a White House of?cial said on Tuesday the current propose spending at least $200 billion on infrastructure projects over the next decade, with the hopes of spurring an additional $800 billion in state and local funding.? The $200 billion ?gure has been criticized by some Democrats and business groups as too low, but ?the White House of?cial characterized the ?gure as a ?oor, not a ceiling, and said Trump is willing to spend more federal dollars if it means getting a package through Congress.? Rep. Gregory Meeks said on The Lead it (12/27), ?The devil is always in the details. My concern is that was before we spent over $2 trillion for tax cuts for the top one percent. Now you?re talking about $200 billion, which is not enough to do anything of substantial nature as far at as what our infrastructure needs are, and, you know, I think that you look at what the middle class, the working class and poor folks well, clearly you?re going to cut things that are important to them. Like I think they would like to go Republicans would like to go after entitlements like Medicare and Social Security and Medicaid. So I?ve got to look at the entire package." Trump To Host GOP Leaders At Camp David To Lay Out 2018 Agenda. The (12/27, Superville) reports that President Trump is ?eager for more legislative achievements before Washington?s focus shifts to the midterm elections,? and will host House Speaker Ryan and Senate Majority Leader McConnell at Camp David during the weekend of Jan, 6-7 ?to map out the 2018 legislative agenda, the White House said.? the AP says the GOP agenda for 2018 is ?already Trump has predicted that the parties will ?eventually come together? to craft a new healthcare plan and he is anticipating bipartisan agreement on infrastructure spending. Ryan ?has talked about overhauling Medicaid and Medicare and other welfare programs,? and Congress will begin the new year needing to address issues left un?nished in 2017 including a spending bill, aid for hurricane victims, raising the debt ceiling, and extending protections for ?Dreamers.? The Washington Post (12/27, Scott) reports that Ryan would like Congress? next move to be ?cutting welfare programs that bene?t low-income Americans a move that is not particularly popular with the American public, including the congressman?s own party.? According to a Kaiser Family Foundation survey, ?only 12 percent of American adults want to see President Trump and Congress decrease spending for Medicaid,? and ?four in 10 preferred to increase Medicaid spending,? while ?nearly half 47 percent want funding levels to remain the same.? Pew Research Center data show that ?only 15 percent of Republicans support decreasing funding for Medicare," and ?only 10 percent of Republicans support decreased funding for Social Security.? Daily Caller Analysis: Despite Gloomy Predictions, Economy Faring Well Under Trump. The Daily Caller (12/27, Athey) reports in an analysis that while the media, businessmen and economists ?predicted a economic collapse would occur under President Donald Trump,? the ?2017 economy tells a different story.? The DC cites a number of predictions of economic decline under Trump but says ?the stock market hit a number of record highs and the economy experienced high growth during Trump's ?rst year in of?ce.? Housing Market Booming. The CBS Evening Newsit (12/27, story 4, 1:55, Quijano) reported that ?the housing market is booming.? CBS (Villafranca) added that ?new and existing home sales [are] driving the market, both up ?ve percent just in October. And realtors expect to see an increase in 2018 and continued strong sales growth in the South.? Ip: Technology-Driven Economic Boom Could Be Coming Soon. Greg Ip writes in the Wall Street Journal (12/27)that an economic boom driven by advancements in technology including arti?cial intelligence and robotics could be coming soon. Ip cites historical examples which suggest that technological breakthroughs can take decades to register on traditional economic gauges. EPA Chief Favors Conservative Understanding Of ?Environmentalism.? The Hill (12/27, Cama) reports that Environmental Protection Agency Administrator Scott Pruitt is challenging the ?established? definition of environmentalism used over the last few decades in favor of a more conservative version. Pruitt has said in interviews that ?environmentalism ought to mean using natural resources like fossil fuels and agricultural products to their fullest potential, while being mindful of their impact." Like others in the conservative ilk, ?Pruitt says he wants to prioritize cleaning up air quality and contaminated lands, which he sees as affecting people more acutely, directly and immediately than climate change.? The Daily Caller (12/27, White) reports, ?activists are scoffing as EPA chief Scott Pruitt?s mission to completely rede?ne what it means to be a ?true? environmentalist.? In an interview with the National Review earlier this month, Pruitt argued, ?If you are of the side that says we exist to serve creation, then you have no trouble putting up a fence and saying, ?do not use? oil or coal, even if it might mean misery for millions in the developing world.? Editorial Wrap-Up New York Times. ?The Yemen Crucible. The New York Times (12/27) editorializes that the Administration applies ?a double standard to the violence in Yemen? by condemning Iranian support for the indigenous Houthi insurgents while Arabia?s savage bombing in support of Yemen?s government.? Despite ?signs the administration is beginning to listen and even exert a constructive influence on the Saudis,? the Times argues much more needs to be done to end the war, for example encouraging Saudi Arabia to lift its blockade of Yemen?s major ports and airports and ?challeng[ing] the Houthis and the Iranians to join in an immediate unconditional This would help save Yemeni lives in the process. ?Reforms Rein In Police Harassment; Now More Is Needed.? The New York Times (12/27) editorializes that New York City’s police commissioner, James O’Neill, “showed admirable candor” when he publicly admitted “that the department had ‘overused and sometimes misused’ its stop-and-frisk program in past years – particularly in minority neighborhoods.” The Times also praises O’Neill’s embracing of reforms to end the department’s “unreasonable search and seizure” and discrimination against black and Latino citizens, and urges the department to take further steps “to rid itself of longstanding, often unconscious, racial biases.” Washington Post. “What A Presidential President Would Have Said About His First Year.” In an editorial, the Washington Post (12/27) offers a series of “imaginary” tweets that President Trump might offer, if he were “more presidential.” For instance, one of the “tweets” reads, “[C]an you really be a president of all Americans if you’re not believing the women? I don’t think so. Of course I want a Republican majority in the Senate. But that can’t be more important than listening to women who were preyed on as teenage girls. ... I apologize to them. I apologize for calling my own accusers liars. Sen. Gillibrand, I apologize to you.” “Turkey’s Stalinist Prosecution Of Journalists For Tweets And Blogs.” The Washington Post (12/27) editorializes that the increasing number of Turkish journalists falsely accused by President Recep Tayyip Erdogan of supporting terrorism or attempting to overthrow the constitutional order reflect the country’s ongoing fall “into the grip of dictatorship.” The Post cites several cases of such journalists, adding that “many civil servants and academics face the same dreaded punishment.” The Post further describes one case in which a detained journalist is being held in solitary confinement and pressured to confess “to carrying out orders from the exiled cleric Fethullah Gulen, who lives in Pennsylvania.” The Post says of this trend: “The losers will be the Turkish people.” “The Authorities Stay Silent On A Local Police Shooting.” The Washington Post (12/27) editorializes “the curtain of official silence that continues to shroud the death of Bijan C. Ghaisar” in a shooting by US Park Police six weeks ago “makes a mockery of the open society that distinguishes the United States from autocracies and dictatorships,” adding, “the longer it continues, the more the public will suspect a coverup.” The Post suggests the public may suspect the police of ethnic profiling. Wall Street Journal. “Google-Hotel Travelopoly.” The Wall Street Journal (12/27) argues in an editorial that Google and some major hotels have “ganged up” to undercut competition in the travel industry, leaving travelers facing higher prices and fewer choices. According to the Journal, Google is exploiting its market dominance and working with major hotels to get around online travel agencies (OTAs) such as Expedia, Priceline and Travelocity. This will ultimately cause the OTAs, as well as mom-and-pop hotels, to raise their prices as they suffer from profit losses. “Murder Most Foul In Argentina.” The Wall Street Journal (12/27) editorializes the ruling of an Argentine judge that Alberto Nisman, the prosecutor who was investigating former President Cristina Kirchner’s links to Iran, was murdered is part of an independent investigation promised by current President Mauricio Macri. The Journal asserts that the investigation should continue to uncover evidence about Mrs. Kirchner’s links to Tehran. “Washington’s Carbon Overreach.” The Wall Street Journal (12/27) editorializes that Washington Gov. Jay Inslee’s attempt to use executive powers to require its largest emitters, including “indirect emitters,” to reduce carbon emissions represented an attempt by progressives to impose their climate agenda “by regulatory fiat” rather than democratic procedures. The Journal argues that a Washington judge’s ruling that the Inslee Administration lacked the legal authority to regulate indirect emitters is a victory for the rule of law. Big Picture Headlines From Today’s Front Pages. Wall Street Journal: Democrats Struggle To Convert Voter Enthusiasm Into Cash Contributions Tillerson Discusses Conflict Zones In Call With Russia The Worst Job In Technology: Staring At Human Depravity To Keep It Off Facebook China’s Geely Accelerates Global Expansion With Volvo Truck Stake New York Times: Crime In New York City Plunges To A Level Not Seen Since The 1950s Once A Cash Cow, Venezuela’s Oil Company Now Verges On Collapse In A Complex Tax Bill, Let The Hunt For Loopholes Begin The Robots Are Coming, And Sweden Is Fine When Picking Apples On A Farm With 5,000 Rules, Watch Out For The Ladders Assad Must Go, Says Turkey’s Leader, Seeking Leverage As War Winds Down The Giant, Under Attack Washington Post: “I Want It To Stop” Documents Shed Light On Gains By N. Koreans Attack On Flynn As A Liar Readied GOP Rivalries May Play Out Again In Miss. Senate Race Where Have All The Original Plays Gone? IRS Upends The Rush To Prepay Taxes Financial Times: Critically Ill Children Evacuated From Besieged Syrian Suburbs Global Number Of IPOs Highest Since Financial Crisis China’s Geely Takes €3.25bn Stake In Truckmaker Volvo Group Washington Times: Democrats’ Case For Trump-Russia Grand Conspiracy Crumbles With Lack Of Evidence Anita Hill As Voice Against Sexual Harassment In Hollywood A “Bad Joke” To Some Chain Migration A Growing Concern As US Immigrant Levels Hit Record Set In 1999 Drain On Democrat Voter Rolls Signals Trouble For Midterm Elections Trump’s Touch Toxic Enough To Flip Public Opinion On Range Of Issues Sirte, Libya, Begins To Rebuild After Years Of Conflict And Islamic State Oppression Story Lineup From Last Night’s Network News: ABC: Winter Weather; Weather Forecast; Japan Bound Flight Security Breach; TrumpWorking Vacation; Tax Reform-Tax Tips; Highway Prank Murder Investigation; Seattle Train Accident Investigation; Social Media Addiction; Milwaukee-Police Rescue; Corey Lewandowski-Sexual Allegation; Obama-Prince Harry Interview; Organ Donor. CBS: Winter Weather; Weather Forecast; Tax Reform-Tax Tips; Housing Market Boom; Trump-Russia Meddling Investigation; Highway Prank Murder Investigation; RussiaSupermarket Explosion; WHO-Video Game Addiction; Disneyland Power Outage; California-Cannabis Legalization; White House Tree Removal; Japan Bound Flight Security Breach; Obama-Prince Harry Interview. NBC: Winter Weather; Weather Forecast; Justice Department-Harassment Policy; Trump-Obamacare; DoD Gun Control Failure Lawsuit; Disneyland Power Outage; Japan Bound Flight Security Breach; Obama-Prince Harry Interview; Virtual Reality Desktop; Faithful Chihuahua; Lottery Glitch; Holocaust Survivor Autobiography. Network TV At A Glance: Winter Weather – 11 minutes, 15 seconds Obama-Prince Harry Interview – 5 minutes, 15 seconds Tax Reform-Tax Tips 5 minutes, 5 seconds Japan Bound Flight Security Breach 3 minutes, 15 seconds Story Lineup From This Morning ?5 Radio News Broadcasts: ABC: Trump-Working Vacation; Winter Weather; Baltimore Police Suicide Investigation; Lottery. CBS: Winter Weather; Tax Reform Effect; Trump-2018 GOP Roadmap; New Years Security; Obama-Prince Harry Interview; Wall Street News. FOX: Trump-Working Vacation; Winter Weather. NPR: Tax Reform Effect; New Years Security; Disneyland Power Outage; North Korea- Border Industrial Complex. Washington Schedule Today?s Events In Washington. White House: PRESIDENT TRUMP No public events scheduled. VICE PRESIDENT PENCE No public schedule announced. US Senate: On recess until 3 January. US House: On recess until 3 January. Other: 10:00 AM Wreath-laying at Washington National Cathedral to mark Woodrow Wilson?s birthday Presidential Armed Forces Full Honor wreath-laying ceremony at the gravesite of President Thomas Woodrow Wilson at the Washington National Cathedral Location: Washington National Cathedral, 3101 Wisconsin Ave NW, Washington, DC Last Laughs Late Night Political Humor. All late-night talk shows were re-runs. Copyright 2017 by Bulletin Intelligence LLC Reproduction or redistribution without permission prohibited. Content is drawn from thousands of newspapers, national magazines, national and local television programs, radio broadcasts, social-media platforms and additional forms of open-source data. Sources for Bulletin Intelligence audience-size estimates include Scarborough, MRI, comScore, Nielsen, and the Audit Bureau of Circulation. Data from and access to third party social media platforms, including but not limited to Facebook, Twitter, Instagram and others, is subject to the respective platform?s terms of use. Services that include Factiva content are governed by Factiva?s terms of use. Services including embedded Tweets are also subject to Twitter for Website's information and privacy policies. The Department of the Interior News Brie?ng is published ?ve days a week by Bulletin Intelligence, which creates custom brie?ngs for government and corporate leaders. We can be found on the Web at BulletinIntelligence.com, or called at (703) 483-6100. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:16 PM Conversation Contents TMM to dismiss their case Attachments: /9. TMM to dismiss their case/2.1 2017.12.22 TM dismissal notice.pdf "Haugrud, Kevin" From: Sent: To: Subject: "Haugrud, Kevin" Fri Dec 22 2017 15:17:45 GMT-0700 (MST) Briana Collier , Karen Hawbecker , Daniel Jorjani , Richard McNeer TMM to dismiss their case Just got a call from Raya at Wilmer. Twin Metals is moving today to dismiss their case against us. "Collier, Briana" From: Sent: To: CC: Subject: Attachments: "Collier, Briana" Tue Dec 26 2017 09:29:06 GMT-0700 (MST) "Haugrud, Kevin" , Karen Hawbecker , Richard McNeer Ryan Sklar , Aaron Moody Re: TMM to dismiss their case 2017.12.22 TM dismissal notice.pdf Hi all, Here is Twin Metals' dismissal notice, filed on Friday. It states that under FRCP 41(a), court approval is not necessary and the dismissal is effective upon filing. Thank you. Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 *New Phone: (505) 248-5604 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Dec 22, 2017 at 3:17 PM, Haugrud, Kevin wrote: Just got a call from Raya at Wilmer. Twin Metals is moving today to dismiss their case against us. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:16 PM Conversation Contents First article "Hawbecker, Karen" From: Sent: To: Subject: "Hawbecker, Karen" Fri Dec 22 2017 15:12:00 GMT-0700 (MST) Jack Haugrud First article http://www.elyecho.com/articles/2017/12/22/solicitor%E2%80%99s-opinion-reverses-decisionallows-renewal-twin-metals-mineral-leases Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:17 PM Conversation Contents Fwd: Twin Metals -- Notice Attachments: /11. Fwd: Twin Metals -- Notice/1.1 ECF 129 - Notice.pdf "Hawbecker, Karen" From: Sent: To: Subject: Attachments: "Hawbecker, Karen" Fri Dec 22 2017 14:38:10 GMT-0700 (MST) Daniel Jorjani , Jack Haugrud Fwd: Twin Metals -- Notice ECF 129 - Notice.pdf Dan and Jack, FYI--DOJ has filed notice of the Twin Metals M-Opinion with the court. --Karen ---------- Forwarded message ---------From: Duffy, Sean C. (ENRD) Date: Fri, Dec 22, 2017 at 4:19 PM Subject: Twin Metals -- Notice To: "Hawbecker, Karen" , "Vukelich, Vincent - OGC" , "HENDERSON, PAMELA P. - OGC" , "Vandlik, John - OGC" , "Mulach, Ronald - OGC" , "Dewitte, Vincent - OGC" , "Franklin, Jessica - OGC" , "Collier, Briana" , "McNeer, Richard" , Joshua Hanson , Roy Fuller , Ryan Sklar Cc: "Boronow, Clare (ENRD)" , "Piropato, Marissa (ENRD)" , "Fuller, David (USAMN)" , "Bosshardt, Stacey (ENRD)" All – Please see attached, the notice filed with the Court today, apprising it of the issuance of the new MOpinion. Thank you for your helpful suggestions and edits. Please let us know if you have any questions. -- Sean ___________________________________ Sean C. Duffy Environment & Natural Resources Division U.S. Department of Justice Natural Resources Section (202) 305-0445 sean.c.duffy@usdoj.gov ___________________________________ "Jorjani, Daniel" From: Sent: To: CC: Subject: "Jorjani, Daniel" Fri Dec 22 2017 14:49:20 GMT-0700 (MST) "Hawbecker, Karen" Jack Haugrud Re: Twin Metals -- Notice Thank you. On Fri, Dec 22, 2017 at 4:38 PM, Hawbecker, Karen wrote: Dan and Jack, FYI--DOJ has filed notice of the Twin Metals M-Opinion with the court. --Karen ---------- Forwarded message ---------From: Duffy, Sean C. (ENRD) Date: Fri, Dec 22, 2017 at 4:19 PM Subject: Twin Metals -- Notice To: "Hawbecker, Karen" , "Vukelich, Vincent - OGC" , "HENDERSON, PAMELA P. - OGC" , "Vandlik, John - OGC" , "Mulach, Ronald - OGC" , "Dewitte, Vincent - OGC" , "Franklin, Jessica - OGC" , "Collier, Briana" , "McNeer, Richard" , Joshua Hanson , Roy Fuller , Ryan Sklar Cc: "Boronow, Clare (ENRD)" , "Piropato, Marissa (ENRD)" , "Fuller, David (USAMN)" , "Bosshardt, Stacey (ENRD)" All – Please see attached, the notice filed with the Court today, apprising it of the issuance of the new M-Opinion. Thank you for your helpful suggestions and edits. Please let us know if you have any questions. -- Sean ___________________________________ Sean C. Duffy Environment & Natural Resources Division U.S. Department of Justice Natural Resources Section (202) 305-0445 sean.c.duffy@usdoj.gov ___________________________________ Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:17 PM Conversation Contents Attachments: /12. /1.1 M-37049 Reversal of M37036 Twin Metals Minnesota Application to Renew Preference Right Leases 122217_Executed.pdf /12. /2.1 M-37049 Reversal of M37036 Twin Metals Minnesota Application to Renew Preference Right Leases 122217_Executed.pdf "Jorjani, Daniel" From: Sent: To: Subject: Attachments: "Jorjani, Daniel" Fri Dec 22 2017 13:40:41 GMT-0700 (MST) Kevin Haugrud M-37049 Reversal of M37036 Twin Metals Minnesota Application to Renew Preference Right Leases 122217_Executed.pdf Daniel H. Jorjani Principal Deputy Solicitor U.S. Department of the Interior Main Interior Building, Suite 6356 ' 202-219-3861 (Voice) 202-706-9018 (Cell) daniel.jorjani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. "Haugrud, Kevin" From: Sent: To: Subject: Attachments: "Haugrud, Kevin" Fri Dec 22 2017 13:46:27 GMT-0700 (MST) Karen Hawbecker , Briana Collier , Richard McNeer , Gary Lawkowski Fwd: M-37049 Reversal of M37036 Twin Metals Minnesota Application to Renew Preference Right Leases 122217_Executed.pdf Thanks to you all for your hard work in getting this done. ---------- Forwarded message ---------From: Jorjani, Daniel Date: Fri, Dec 22, 2017 at 3:40 PM Subject: To: Kevin Haugrud Daniel H. Jorjani Principal Deputy Solicitor U.S. Department of the Interior Main Interior Building, Suite 6356 ' 202-219-3861 (Voice) 202-706-9018 (Cell) daniel.jorjani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. "Hawbecker, Karen" From: Sent: To: CC: Subject: "Hawbecker, Karen" Fri Dec 22 2017 13:49:01 GMT-0700 (MST) "Haugrud, Kevin" Briana Collier , Richard McNeer , Gary Lawkowski Re: And big thanks to you for all of your work on this, Jack! I've notified Sean Duffy that the opinion was signed and that it has been posted on the webpage. I told him he should move ahead with filing the notice with the court. On Fri, Dec 22, 2017 at 3:46 PM, Haugrud, Kevin wrote: Thanks to you all for your hard work in getting this done. ---------- Forwarded message ---------From: Jorjani, Daniel Date: Fri, Dec 22, 2017 at 3:40 PM Subject: To: Kevin Haugrud Daniel H. Jorjani Principal Deputy Solicitor U.S. Department of the Interior Main Interior Building, Suite 6356 ' 202-219-3861 (Voice) 202-706-9018 (Cell) daniel.jorjani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:17 PM Conversation Contents Fwd: Twin Metals -- Notice of Pretrial Conference Attachments: I13. Fwd: Twin Metals -- Notice of Pretrial Conferencel1.1 2017_11_28 #126 - Pretrial Conference Notice and Order.pdf I13. Fwd: Twin Metals -- Notice of Pretrial Conference/1.2 2017-12-06 letter to court.pdf I13. Fwd: Twin Metals -- Notice of Pretrial Conference/2.1 2017_11_28 #126 - Pretrial Conference Notice and Order.pdf I13. Fwd: Twin Metals -- Notice of Pretrial Conference/2.2 2017-12-06 letter to court.pdf I13. Fwd: Twin Metals -- Notice of Pretrial Conference/4.1 NoticeDOCX "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Wed Dec 06 2017 17:00:26 GMT-0700 (MST) To: Jack Haugrud Subject: Fwd: Twin Metals -- Notice of Pretrial Conference . 2017_11_28 #126 - Pretrial Conference Notice and Order.pdf AttaChments' 2017-12-06 letter to court.pdf Jack, We received this from Sean Duffy. --Karen -- Forwarded message From: Duffy, Sean C. (ENRD) Date: Wed, Dec 6,2017 at 5:05 PM Subject: Twin Metals -- Notice of Pretrial Conference To: PAMELA P. - "Vandlik, John - "Vukelich, Vincent - "Mulach, Ronald - "Dewitte, Vincent - "Franklin, Jessica - "McNeer, Richard" "Hawbecker, Karen" "Collier, Briana" Joshua Hanson Roy Fuller Ryan Sklar "Boronow, Clare "Piropato, Marissa "Fuller, David All? Before we contact Plaintiffs and Intewenors, I wanted to mn this past all of you to see if anybody has thoughts or concems. Thank you, Sean Karen Hawbecker From: Karen Hawbecker Sent: Thu Dec 07 2017 09:47:27 GMT-0700 (MST) To: Jack Haugrud Subject: Fwd: Twin Metals -- Notice of Pretrial Conference Attachments: 2017_11_28 #126 - Pretrial Conference Notice and Order.pdf 2017-12?06 letter to 0 you agree. Sent from my iPad Begin forwarded message: From: "Hawbecker, Karen" Date: December 6, 2017 at 7:00:26 PM EST To: Jack Haugrud Subject: Fwd: Twin Metals -- Notice of Pretrial Conference Jack, We received this from Sean Duffy. --Karen -- Forwarded message From: Duffy, Sean C. (ENRD) Date: Wed, Dec 6,2017 at 5:05 PM Subject: Twin Metals -- Notice of Pretrial Conference To: PAMELA P. - "Vandlik, John - "Vukelich, Vincent - "Mulach, Ronald - "Dewitte, Vincent - "Franklin, Jessica - "McNeer, Richard" "Hawbecker, Karen" "Collier, Briana" Joshua Hanson Roy Fuller Ryan Sklar "Boronow, Clare "Piropato, Marissa "Fuller, David All? Before we contact Plaintiffs and Inten/enors. I wanted to 11m this past all of you to see if anybody has thoughts or concelns. Thank you, Sean "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Thu Dec 07 2017 09:48:44 GMT-0700 (MST) To: Karen Hawbecker Subject: Re: Twin Metals -- Notice of Pretrial Conference Yep. On Thu, Dec 7, 2017 at 11:47 AM, Karen Hawbecker wrote: Sent from my iPad Begin forwarded message: From: "Hawbecker, Karen" Date: December 6, 2017 at 7:00:26 PM EST To: Jack Haugrud Subject: Fwd: Twin Metals -- Notice of Pretrial Conference Jack, We received this from Sean Duffy. ?Karen -- Forwarded message From: Duffy, Sean C. (ENRD) Date: Wed, Dec 6,2017 at 5:05 PM Subject: Twin Metals -- Notice of Pretrial Conference To: PAMELA P. - "Vandlik, John - "Vukelich, Vincent - "Mulach, Ronald - "Dewitte, Vincent - "Franklin, Jessica - "McNeer, Richard" "Hawbecker, Karen" "Collier, Briana" Joshua Hanson Roy Fuller Ryan Sklar "Boronow, Clare "Piropato, Marissa "Fuller, David All? Before we contact Plaintiffs and Intewenors. I wanted to 11111 this past all of you to see if anybody has thoughts or concems. Thank you, Sean "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Fri Dec 22 2017 09:37:38 GMT-0700 (MST) Daniel Jorjani , Jack Haugrud Briana Collier Fwd: Twin Metals -- Notice of Pretrial Conference NRS-#1171855-v1-Notice.DOCX Dan and Jack, This is DOJ's draft notice they propose to file to give the court notice about the new M-Opinion. Please let me know if you have any edits or comments. Thank you. --Karen ---------- Forwarded message ---------From: Duffy, Sean C. (ENRD) Date: Fri, Dec 22, 2017 at 11:27 AM Subject: RE: Twin Metals -- Notice of Pretrial Conference To: "Vukelich, Vincent - OGC" , "Collier, Briana" Cc: "HENDERSON, PAMELA P. - OGC" , "Vandlik, John - OGC" , "Mulach, Ronald - OGC" , "Dewitte, Vincent - OGC" , "Franklin, Jessica - OGC" , "McNeer, Richard" , "Hawbecker, Karen" , Joshua Hanson , Roy Fuller , Ryan Sklar , "Boronow, Clare (ENRD)" , "Piropato, Marissa (ENRD)" , "Fuller, David (USAMN)" , "Bosshardt, Stacey (ENRD)" All – Please see attached, for your edits and comments, a draft notice that we intend to file today. Thank you, Sean Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:17 PM Conversation Contents Twin Metals Attachments: I14. Twin Metals/8.1 Twin Metals Talking Points (short version).docx I14. Twin Metals/8.2 2017.12.15 clean Twin Metals - Talking I14. Twin Metals/9.1 Twin Metals Talking Points (short version).docx I14. Twin Metals/9.2 2017.12.15 clean Twin Metals - Talking "Lawkowski, Gary" From: "Lawkowski, Gary" Sent: Mon Dec 18 2017 08:34:57 (MST) "Jorjani, Daniel" Kevin Haugrud o. . . Subject: Twin Metals Downey requested a brief blurb on the Twin Metals opinion for the Department's 30?day policy outlook report. Here is what I've put together, let me know what you all think: Timing: Week of December 18. 2017 Contact: Daniel Jorjani. Acting Solicitor They usually want these together by noon on Mondays, so the sooner you can give me your thoughts, the be?er Thank you very much for your time and help! Sincerely, Gary Lawkowski Counselor to the Solicitor Department of the Interior Galv. Lavvkowsk/(d) 30/. doi. aov 202-208? 7340 "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Mon Dec 18 2017 11:17:22 (MST) To: "Lawkowski, Gary" CC: "Jorjani, Daniel" Subject: Re: Twin Metals Gary: A few suggested tweaks. On Mon, Dec 18, 2017 at 10:34 AM, Lawkowski, Gary wrote: Downey requested a brief blurb on the Twin Metals opinion for the Department's 30-day policy outlook report. Here is what I've put together, let me know what you all think: Timing: Week of December 18. 2017 Contact: Daniel Jorjani. Acting Solicitor They usually want these together by noon on Mondays, so the sooner you can give me your thoughts, the better. Thank you very much for your time and help! Sincerely, Gary Lawkowski Counselor to the Solicitor Department of the Interior Gary. 30/. (101'. qov 202-208- 7340 "Lawkowski, Gary" From: "Lawkowski, Gary" Sent: Mon Dec 18 2017 11:27:18 GMT-0700 (MST) To: "Haugrud, Kevin" CC: "Jorjani, Daniel" Subject: Re: Twin Metals Thanks! On Mon, Dec 18, 2017 at 1:17 PM, Haugrud, Kevin wrote: Gary: A few suggested tweaks. On Mon, Dec 18, 2017 at 10:34 AM, Lawkowski, Gary wrote: Downey requested a brief blurb on the Twin Metals opinion for the Department's 30-day policy outlook report. Here is what I've put together, let me know what you all think: Timing: Week of December 18. 2017 Contact: Daniel Jorjani. Acting Solicitor They usually want these together by noon on Mondays, so the sooner you can give me your thoughts, the better. Thank you very much for your time and help! Sincerely, Gary Lawkowski Counselor to the Solicitor Department of the Interior Gary. La wkowsde) 30/. doi. dov 202?208- 7340 Gary La wkowski Counselor to the Solicitor Department of the Interior Gary. Lawkowsk/Q 30/. doi. gov 202-208-7340 "Jorjani, Daniel" From: "Jorjani, Daniel" Sent: Wed Dec 20 2017 12:36:09 GMT-0700 (MST) To: "Newell, Russell" Kevin Haugrud CC: Gary Lawkowski Subject: Re: Twin Metals Russ - Jack is your go-to guy on this one. Jack - Please have DMR follow-up with Russ re talking points etc. Daniel H. Jorjani Principal Deputy Solicitor U.S. Department of the Interior Main Interior Building, Suite 6356 ' 202-219-3861 (Voice) 202-706-9018 (Cell) daniel.jorjani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of he information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. On Wed, Dec 20, 2017 at 2:33 PM, Newell, Russell wrote: Hi Gary, Dan - got anything on Twin Metals you can send along? Russell Newell Deputy Director of Communications U.S. Department of the Interior (202) 208-6232 @Interior Russell Newell From: Sent: To: CC: Subject: Russell Newell Wed Dec 20 2017 12:37:21 GMT-0700 (MST) "Jorjani, Daniel" Kevin Haugrud , Gary Lawkowski Re: Twin Metals Thanks Dan, Jack Sent from my iPhone On Dec 20, 2017, at 2:36 PM, Jorjani, Daniel wrote: Russ - Jack is your go-to guy on this one. Jack - Please have DMR follow-up with Russ re talking points etc. Daniel H. Jorjani Principal Deputy Solicitor U.S. Department of the Interior Main Interior Building, Suite 6356 ' 202-219-3861 (Voice) 202-706-9018 (Cell) daniel.jorjani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of his message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. On Wed, Dec 20, 2017 at 2:33 PM, Newell, Russell wrote: Hi Gary, Dan - got anything on Twin Metals you can send along? Russell Newell Deputy Director of Communications U.S. Department of the Interior (202) 208-6232 @Interior "Haugrud, Kevin" From: Sent: To: "Haugrud, Kevin" Wed Dec 20 2017 12:40:53 GMT-0700 (MST) Russell Newell "Jorjani, Daniel" , Gary Lawkowski Re: Twin Metals CC: Subject: Yep, we're working on it and should have the talking points to you later today. On Wed, Dec 20, 2017 at 2:37 PM, Russell Newell wrote: Thanks Dan, Jack Sent from my iPhone On Dec 20, 2017, at 2:36 PM, Jorjani, Daniel wrote: Russ - Jack is your go-to guy on this one. Jack - Please have DMR follow-up with Russ re talking points etc. Daniel H. Jorjani Principal Deputy Solicitor U.S. Department of the Interior Main Interior Building, Suite 6356 ' 202-219-3861 (Voice) 202-706-9018 (Cell) daniel.jorjani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for he intended recipients. Any unauthorized interception of this message or he use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. On Wed, Dec 20, 2017 at 2:33 PM, Newell, Russell wrote: Hi Gary, Dan - got anything on Twin Metals you can send along? Russell Newell Deputy Director of Communications U.S. Department of the Interior (202) 208-6232 @Interior Russell Newell From: Sent: To: Russell Newell Wed Dec 20 2017 12:43:43 GMT-0700 (MST) "Haugrud, Kevin" "Jorjani, Daniel" , Gary Lawkowski Re: Twin Metals CC: Subject: Thanks Jack! Sent from my iPhone On Dec 20, 2017, at 2:40 PM, Haugrud, Kevin wrote: Yep, we're working on it and should have the talking points to you later today. On Wed, Dec 20, 2017 at 2:37 PM, Russell Newell wrote: Thanks Dan, Jack Sent from my iPhone On Dec 20, 2017, at 2:36 PM, Jorjani, Daniel wrote: Russ - Jack is your go-to guy on this one. Jack - Please have DMR follow-up with Russ re talking points etc. Daniel H. Jorjani Principal Deputy Solicitor U.S. Department of the Interior Main Interior Building, Suite 6356 ' 202-219-3861 (Voice) 202-706-9018 (Cell) daniel.jorjani@sol.doi.gov This electronic message contains informa ion generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the informa ion it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received his message in error, please notify the sender and delete the email immediately. On Wed, Dec 20, 2017 at 2:33 PM, Newell, Russell wrote: Hi Gary, Dan - got anything on Twin Metals you can send along? Russell Newell Deputy Director of Communications U.S. Department of the Interior (202) 208-6232 @Interior "Lawkowski, Gary" From: Sent: To: "Lawkowski, Gary" Wed Dec 20 2017 15:13:56 GMT-0700 (MST) Russell Newell "Haugrud, Kevin" , "Jorjani, Daniel" Re: Twin Metals Twin Metals Talking Points (short version).docx 2017.12.15 clean Twin Metals - Talking points_Q&A.docx CC: Subject: Attachments: Please find attached a short version of talking points, as well as a longer version that includes some question and answer on the Twin Metals opinion. One thing you all may want to note -- the Forest Service has indicated that they believe there are potentially cobalt and platinum deposits underneath Superior National Forest (https://www.fs.usda.gov/ detail/superior/landmanagement/resourcemanagement/?cid=fseprd507250). Cobalt and platinum are on the list of 23 critical minerals released by USGS earlier this week (https://www.usgs.gov/news/criticalminerals-united-states). Sincerely, Gary Lawkowski On Wed, Dec 20, 2017 at 2:43 PM, Russell Newell wrote: Thanks Jack! Sent from my iPhone On Dec 20, 2017, at 2:40 PM, Haugrud, Kevin wrote: Yep, we're working on it and should have the talking points to you later today. On Wed, Dec 20, 2017 at 2:37 PM, Russell Newell wrote: Thanks Dan, Jack Sent from my iPhone On Dec 20, 2017, at 2:36 PM, Jorjani, Daniel wrote: Russ - Jack is your go-to guy on this one. Jack - Please have DMR follow-up with Russ re talking points etc. Daniel H. Jorjani Principal Deputy Solicitor U.S. Department of the Interior Main Interior Building, Suite 6356 ' 202-219-3861 (Voice) 202-706-9018 (Cell) daniel.jorjani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. On Wed, Dec 20, 2017 at 2:33 PM, Newell, Russell wrote: Hi Gary, Dan - got anything on Twin Metals you can send along? Russell Newell Deputy Director of Communications U.S. Department of the Interior (202) 208-6232 @Interior -Gary Lawkowski Counselor to the Solicitor Department of the Interior Gary.Lawkowski@sol.doi.gov 202-208-7340 "Haugrud, Kevin" From: Sent: To: Subject: Attachments: "Haugrud, Kevin" Wed Dec 20 2017 15:15:59 GMT-0700 (MST) Karen Hawbecker , Richard McNeer , Briana Collier Fwd: Twin Metals Twin Metals Talking Points (short version).docx 2017.12.15 clean Twin Metals - Talking points_Q&A.docx ---------- Forwarded message ---------From: Lawkowski, Gary Date: Wed, Dec 20, 2017 at 5:13 PM Subject: Re: Twin Metals To: Russell Newell Cc: "Haugrud, Kevin" , "Jorjani, Daniel" Please find attached a short version of talking points, as well as a longer version that includes some question and answer on the Twin Metals opinion. One thing you all may want to note -- the Forest Service has indicated that they believe there are potentially cobalt and platinum deposits underneath Superior National Forest (https://www.fs.usda.gov/detail/superior/landmanagement/resourcemanagement/?cid=fseprd507250). Cobalt and platinum are on the list of 23 critical minerals released by USGS earlier this week (https://www.usgs.gov/news/critical-minerals-united-states). Sincerely, Gary Lawkowski On Wed, Dec 20, 2017 at 2:43 PM, Russell Newell wrote: Thanks Jack! Sent from my iPhone On Dec 20, 2017, at 2:40 PM, Haugrud, Kevin wrote: Yep, we're working on it and should have the talking points to you later today. On Wed, Dec 20, 2017 at 2:37 PM, Russell Newell wrote: Thanks Dan, Jack Sent from my iPhone On Dec 20, 2017, at 2:36 PM, Jorjani, Daniel wrote: Russ - Jack is your go-to guy on this one. Jack - Please have DMR follow-up with Russ re talking points etc. Daniel H. Jorjani Principal Deputy Solicitor U.S. Department of the Interior Main Interior Building, Suite 6356 ' 202-219-3861 (Voice) 202-706-9018 (Cell) daniel.jorjani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. On Wed, Dec 20, 2017 at 2:33 PM, Newell, Russell wrote: Hi Gary, Dan - got anything on Twin Metals you can send along? Russell Newell Deputy Director of Communications U.S. Department of the Interior (202) 208-6232 @Interior -Gary Lawkowski Counselor to the Solicitor Department of the Interior Gary.Lawkowski@sol.doi.gov 202-208-7340 "Hawbecker, Karen" From: Sent: "Hawbecker, Karen" Thu Dec 21 2017 15:37:42 GMT-0700 (MST) To: Jack Haugrud Subject: Fwd: Twin Metals Jack, Inquiry from DOJ re: Twin Metals opinion. -Karen -- Forwarded message From: Duffy, Sean C. (ENRD) Date: Thu, Dec 21, 2017 at 4:59 PM Subject: RE: Twin Metals To: "Hawbecker, Karen" "Collier, Briana" "McNeer, Richard" Cc: "Piropato, Marissa "Boronow, Clare Karen. Richard. and Brianna: Thank V011 for keeping 11s apprised. We spoke to the AUSA todaV 10W 1 you lave any 1 115 approac 1. Cll?Cll ate IIOUCC anguage Ol' and $0011. A few questions: Feel free to give me a call if you have any questions. Thank you. Sean Sean C. Duffy Envi1?01nnent& Natiu?al Resources Division US. Department of Justice Nattu'al Resources Section (202) 305-0445lsean.c.duf From: Hawbecker, Karen Sent: Monday, December 18, 2017 7:08 PM To: Piropato, Marissa (ENRD) Cc: Collier, Briana McNeer, Richard Boronow, Clare (ENRD) Duffy, Sean C. (ENRD) Subject: Re: Twin Metals Hi Marissa, I'll let you know when it's signed. . -- aren 011 Mon. Dec 18. 2017 at 3:23 PM. Piropato. Marissa (ENRD) From: "Haugrud, Kevin" Sent: Thu Dec 21 2017 15:44:18 GMT-0700 (MST) To: Daniel Jorjani Subject: Fwd: Twin Metals Dan: message From: Hawbecker, Karen Date: Thu, Dec 21,2017 at 5:37 PM Subject: Fwd: Twin Metals To: Jack Haugrud Jack, Inquiry from DOJ re: Twin Metals opinion. --Karen -- Forwarded message From: Duffy, Sean C. (ENRD) Date: Thu, Dec 21,2017 at 4:59 PM Subject: RE: Twin Metals To: "Hawbecker, Karen" "Collier, Briana" "McNeer, Richard" Cc: "Piropato, Marissa "Boronow, Clare Karen. Richard. and Brianna: Thank vou for keeping us apprised. We spoke to the AUSA todav ease et [15 10W 1 you rave any W11 1 115 approac 1. Cll?Cll ate anguage 01' 811d $0011. A few questions: 1. Feel free to give me a call if you have any questions. Thank you. Sean Sean C. Duffy Enviromnent Nanu?al Resources Division US. Department of Justice Natlu?al Resources Section (202) From: Hawbecker, Karen Sent: Monday, December 18, 2017 7:08 PM To: Piropato, Marissa (ENRD) Cc: Collier, Briana McNeer, Richard Boronow, Clare (ENRD) Duffy, Sean C. (ENRD) Subject: Re: Twin Metals Hi Marissa, I'll let you know when it's signed. . -- aren 011 Mon. Dec 18. 2017 at 3:23 PM. Piropato. Marissa (ENRD) Hi Karen- You mentioned that the issuance of a new M-Opinion is Would you let us know when the new opinion is released? Thanks very much. Marissa Marissa A. Piropato Environment Nanu'al Resources Division US. Department of Justice marissa.piropatom'usdoj.gov I tel: 202.305.0470 fax: 202.305-0506 mail: PO. Box 7611 Washington. DC. 20044-7611 overnight delivery: Patrick Herny Building?3rd Floor 601 Street, NW Washington. DC 20004 "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Thu Dec 21 2017 15:44:45 GMT-0700 (MST) To: "Hawbecker, Karen" Subject: Re: Twin Metals I've asked Dan, who will no doubt ask David. I think it's a reasonable thing to do. On Thu, Dec 21, 2017 at 5:37 PM, Hawbecker, Karen wrote: Jack, Inquiry from DOJ re: Twin Metals opinion. -Karen Forwarded message From: Duffy, Sean C. (ENRD) Date: Thu, Dec 21, 2017 at 4:59 PM Subject: RE: Twin Metals To: "Hawbecker, Karen" "Collier, Briana" "McNeer, Richard" Cc: "Piropato, Marissa "Boronow, Clare Karen. Richard. and Brianna: Thank you for keeping us apprised. We spoke to the AUSA todav . ease et 10W 1 you laVC any 1 113 approac 1. Cll'Cll ate anguage Ol' 811d 50011. A few questions: 1 Feel free to give me a call if you have any questions. Thank you. Sean Sean C. Duffy Enviromnent Natm'al Resources Division US. Department of Justice Natiu?al Resoru?ces Section (202) 09x From: Hawbecker, Karen [mailtoz Sent: Monday, December 18, 2017 7:08 PM To: Piropato, Marissa (ENRD) Cc: Collier, Briana McNeer, Richard Boronow, Clare (ENRD) Duffy, Sean C. (ENRD) Subject: Re: Twin Metals Hi Marissa. I'll let you know when it's sioned. . -- aren 011 M011. Dec 18. 2017 at 3:23 PM. Piropato. Marissa (ENRD) ato aiusd Hi Karen- o' .oov> wrote: You mentioned that the issuance of a new M?Opinion is Would you let us know when the new opinion is released? Thanks vely much. Marissa Marissa A. Piropato Environment Nattu?al Resoru?ces Division US. Department of Justice tel: 202.305.0470 fax: 202.305-0506 mail: P.O. Box 7611 Washington, DC. 20044-7611 overnight delivery: Patrick Henry Building?3rd Floor 601 Street: NW WashingtonI DC 20004 "Jorjani, Daniel" From: "Jorjani, Daniel" Sent: Thu Dec 21 2017 15:45:57 GMT-0700 (MST) To: "Haugrud, Kevin" Subject: Re: Twin Metals of course QENI Or: by Y9 A <2 5% Daniel H. Jorjani (3 Principal Deputy Solicitor . . US. Department of the Interior Main Interior Building, Suite 6356 5?4 3 '202-219-3861 (Voice) 0 202-706-9018 (Cell) daniel.ioriani@sol.doi.gov V9 Hon:3L This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of he information it contains may violate the law and subject the violator to civil or crim'nal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. On Thu, Dec 21, 2017 at 5:44 PM, Haugrud, Kevin wrote: Dan: message From: Hawbecker, Karen Date: Thu, Dec 21, 2017 at 5:37 PM Subject: Fwd: Twin Metals To: Jack Haugrud <'ack.hau rud sol.doi. ov> Jack. Inquiry from DOJ re: Twin Metals opinion. ?Karen Forwarded message From: Duffy, Sean 0- (ENRD) Date: Thu, Dec 21, 2017 at 4:59 PM Subject: RE: Twin Metals To: "Hawbecker, Karen" , "Collier, Briana" ?McNeer, Richard" Cc: "Piropato, Marissa , "Boronow, Clare Karen, Richard, and Brianna: Thank you for keeping us apprised. We spoke to the AUSA today? 10W 1 you rave any W11 1 115 approac 1. Cll?Cll ate anguage 01' 311d $0011. A few questions: Feel free to give me a call if you have any questions. Thank you. Sean Sean C. Duffy Environment Natru?al Resoru?ces Division US. Department of Justice Natru?al Resources Section (202) dnt??n?dgj 09x From: Hawbecker, Karen [mailto: Sent: Monday, December 18, 2017 7:08 PM To: Piropato, Marissa (ENRD) Cc: Collier, Briana McNeer, Richard Boronow, Clare (ENRD) Duffy, Sean C. (ENRD) Subject: Re: Twin Metals Hi Marissa. I'll let vou know when it's sioned. . -- aren On Mon. Dec 18. 2017 at 3:23 PM. Piropato. Marissa (ENRD) wrote: Hi Karen- You mentioned that the issuance of anew M-Opinion is imminent. Would you let us know when the new opinion is released? Thanks very much. Marissa Marissa A. Piropato Environment Natru'al Resoru?ces Division US. Department of Justice . tel: 202.305.0470 fax: 202.305-0506 mail: PO. Box 7611 Washington. DC. 20044-7611 overnight delivery: Patrick Henry Building?3rd Floor 601 Street. NW Washington. DC 20004 "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Thu Dec 21 2017 15:47:41 GMT-0700 (MST) To: "Duffy, Sean C. "Collier, Briana" "McNeer, Richard" cc: "Piropato, Marissa "Boronow, Clare (EN Jack Haugrud Subject: Re: Twin Metals Sean. I've copied Jack on this email. We're checking with Dan Joriani about On Thu, Dec 21, 2017 at 4:59 PM, Duffy, Sean C. (ENRD) wrote: Karen. Richard. and Brianna: Thank vou for keeping us apprised. We spoke to the AUSA todaV ?356 Ct 115 10W 1 you laVC any 1 115 approac l. anguage 311d 50011. ll'Cll ate A few questions: Feel free to give me a call if you have any questions. Thank you. Sean Sean C. Duffy Enviromnent Natural Resom?ces Division US. Department of Justice Natural Resom?ces Section (202) 305-0445522111 om: From: Hawbecker, Karen [mailtoz Sent: Monday, December 18, 2017 7:08 PM To: Piropato, Marissa (ENRD) Cc: Collier, Briana McNeer, Richard Boronow, Clare (ENRD) Duffy, Sean C. (ENRD) Subject: Re: Twin Metals Hi Marissa. I'll let vou know when it's sioned. . -- aren 011 Mon. Dec 18. 2017 at 3:23 PM. Piropato. Marissa (ENRD) wrote: Hi Karen- You mentioned that the issuance of a new M-Opinion is Would you let us know when the new opinion is released? Thanks very much. Marissa Marissa A. Piropato Envirornnent Natural Resorn?ces Division US. Department of Justice marissa. iro ato (Lusdo?oov tel: 202.305.0470 fax: 202305-0506 mail: PO. Box 7611 Washington. DC. 20044-7611 overnight delivery: Patrick Henry Building?3rd Floor 601 Street: NW Washington, DC 20004 "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Thu Dec 21 2017 15:49:24 GMT-0700 (MST) To: "Hawbecker, Karen" Subject: Re: Twin Metals Dan's good with ?ling tomorrow. But it's still going to be later in the day. Minnesota has a one hour time difference so that might help. They can always call the court's clerk to make sure the judge is aware. On Thu, Dec 21, 2017 at 5:37 PM, Hawbecker, Karen wrote: Jack, Inquiry from DOJ re: Twin Metals opinion. --Karen Forwarded message From: Duffy, Sean C. (ENRD) Date: Thu, Dec 21, 2017 at 4:59 PM Subject: RE: Twin Metals To: "Hawbecker, Karen" "Collier, Briana" , "McNeer, sol.doi. ov> Cc: "Piropato, Marissa , "Boronow, Clare Karen. Richard. and Brianna: Thank vou for keeping us apprised. We snoke to the AUSA todav ease Cl 115 10W 1 you rave any 1 115 approac 1. Cll'Cll ate arrguage 01? 311d $0011. A few questions: Feel free to give me a call if you have any questions. Thank you. Sean Sean C. Duffy Enviromnent Natlu'al Resom?ces Division US. Department of Justice Natiu?al Resom?ces Section (202) From: Hawbecker, Karen Sent: Monday, December 18, 2017 7:08 PM To: Piropato, Marissa (ENRD) Cc: Collier, Briana McNeer, Richard Boronow, Clare (ENRD) Duffy, Sean C. (ENRD) Subject: Re: Twin Metals Hi Marissa, I'll let vou know when it's signed. . -- aren 011 M011. Dec 18. 2017 at 3:23 PM. Piropato. Marissa (ENRD) wrote: Hi Karen- You mentioned that the issuance of a new M-Opinion is Would you let us know when the new opinion is released? Thanks veiy much. Marissa Marissa A. Piropato Environment Natiu?al Resom?ces Division US. Department of Justice marissa. iro ato a.I'usdo'.oov tel: 202.305.0470 fax: 202.305-0506 mail: PO. Box 7611 Washington. DC. 20044-7611 ovemight delively: Patrick Henry Bum "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Thu Dec 21 2017 15:52:05 GMT-0700 (MST) To: "Duffy, Sean C. "Collier, Briana" "McNeer, Richard" cc: "Piropato, Marissa "Boronow, Clare Jack Haugrud Subject: Re: Twin Metals Sean, Dan is okay with ?ling a notice tomorrow. It's going to be later in the day, as I mentioned, but at least Minnesota has a one hour time difference. Perhaps you could call the court's clerk to make sure the judge is aware as soon as it's posted on the webpage. -Karen On Thu, Dec 21, 2017 at 5:47 PM, Hawbecker, Karen wrote: Sean. I've copied Jack on this email. We're checking with Dan Joriani about On Thu, Dec 21, 2017 at 4:59 PM, Duffy, Sean C. (ENRD) wrote: Karen. Richard. and Brianna: Thank you for keeping us apprised. We spoke to the AUSA today y011 lave any concerns 1 118 appr?oac 1. Cll'Cll ate llOllCC anguage 01? and $0011. A few questions: Feel free to give me a call if you have any questions. Thank you. Sean Sean C. Duffy Environment Natlu'al Resources Division US. Department of Justice Natural Resoru'ces Section (202) From: Hawbecker, Karen Sent: Monday, December 18, 2017 7:08 PM To: Piropato, Marissa (ENRD) Cc: Collier, Briana McNeer, Richard Boronow, Clare (ENRD) Duffy, Sean C. (ENRD) Subject: Re: Twin Metals Hi Marissa, I'll let you know when it's signed. . aren On Mon. Dec 18. 2017 at 3:23 PM. Piropato. Marissa (ENRD) wrote: Hi Karen- You mentioned that the issuance of a new M-Opinion is imminent. Would you let us know when the new opinion is released? Thanks very much. Marissa Marissa A. Piropato Environment Natlu'al Resoru?ces Division US. Department of Justice .r 0 tel: 202.305.0470 fax: 202.305-0506 mail: PO. Box 7611 Washington. DC. 20044-7611 overnight delivery: Patrick Henry Building?3rd Floor 601 Street. NW Washington. DC 20004 Karen Hawbecker From: Karen Hawbecker Sent: Thu Dec 21 2017 22:39:09 GMT-0700 (MST) To: Jack Haugrud Subject: Fwd: Twin Metals Jack, What do you think of concern. Sent from my iPad Begin forwarded message: From: "Duffy, Sean C. Date: December 21,2017 at 9:06:37 PM EST To: "'Hawbecker, Karen'" Subject: RE: Twin Metals Karen. From: Hawbecker, Karen Sent: Thursday, December 21, 2017 5:52 PM To: Duffy, Sean C. (ENRD) Cc: Collier, Briana McNeer, Richard Piropato, Marissa (ENRD) Boronow, Clare (ENRD) Jack Haugrud Subject: Re: Twin Metals Sean, Dan is okay with ?ling a notice tomorrow. It's going to be later in the day, as I mentioned, but at least Minnesota has a one hour time difference. Perhaps you could call the court's clerk to make sure the judge is aware as soon as it's posted on the webpage. -?Karen On Thu. Dec 21. 2017 at 5:47 PM. Hawbecker. Karen sol.doi.gov> wrote: Sean. I've cooied Jack on this email. We're checking with Dan Joriani about 011 Thu. Dec 21. 2017 at 4:59 PM. Duffy. Sean C. (ENRD) wrote: Hi Karen- You mentioned that the issuance of a new M-Opinion is Would you let us know when the new opinion is released? Thanks very much. Marissa Marissa A. Piropato Envirornnent Nattu'al Resoru?ces Division US. Department of Justice marissa. iro ato tel: 202.305.0470 fax: 202305-0506 mail: PO. Box 7611 Washington. DC. 20044-7611 overnight delivery: Patrick Henry Bum?751d Elggr gm NW mammal 191] 12;: 20004 Kevin Haugrud From: Kevin Haugrud Sent: Thu Dec 21 2017 23:02:10 GMT-0700 (MST) To: Karen Hawbecker Subject: Re: Twin Metals From: Karen Hawbecker Sent: Friday, December 22. 2017 12:39 AM To: Jack Haugrud Subject: Fwd: Twin Metals Jack. What do you think of concern. Sent from my iPad Begin forwarded message: From: "Duffy, Sean C. Date: December 21,2017 at 9:06:37 PM EST To: '"Hawbecker, Karen'" Subject: RE: Twin Metals Karen. From: Hawbecker, Karen Sent: Thursday, December 21, 2017 5:52 PM TO: Duffy, Sean 0- (ENRD) Cc: Collier, Briana McNeer, Richard Piropato, Marissa (ENRD) Boronow, Clare (ENRD) Jack Haugrud Subject: Re: Twin Metals Sean, Dan is okay with ?ling a notice tomorrow. It's going to be later in the day, as I mentioned, but at least Minnesota has a one hour time difference. Perhaps you could call the court's clerk to make sure the judge is aware as soon as it's posted on the webpage. --Karen On Thu. Dec 21. 2017 at 5:47 PM. Hawbecker. Karen wrote: Sean. I've copied Jack on this email. We're checking with Dan Joriani about 011 Thu. Dec 21. 2017 at 4:59 PM. Duffy. Sean C. (ENRD) From: Sent To: Subject: Karen Hawbecker Fri Dec 22 2017 08:10:57 GMT-0700 (MST) Kevin Haugrud Re: Twin Metals Jack. Let me know if vou see Dan about this. Otherwise, I?ll tell Sean that? ?Karen Sent from my iPad On Dec 22, 2017, at 1:02 AM, Kevin Haugrud wrote: That's why you call the court's clerk to let the judge know a ?ling is happening. We can ask Dan. but I'm guessing he?ll want to wait until 6 (5 central time). From: Karen Hawbecker Sent: Friday, December 22, 2017 12:39 AM To: Jack Haugrud Subject: Fwd: Twin Metals Jack. What do you think of concern. Sent from my iPad Begin forwarded message: From: "Duffy, Sean C. Date: December 21, 2017 at 9:06:37 PM EST To: "'Hawbecker, Karen'" Subject: RE: Twin Metals Karen. From: Hawbecker, Karen Sent: Thursday, December 21, 2017 5:52 PM To: Duffy, Sean C. (ENRD) Cc: Collier, Briana McNeer, Richard Piropato, Marissa (ENRD) Boronow, Clare (ENRD) Jack Haugrud Subject: Re: Twin Metals Sean, Dan is okay with filing a notice tomorrow. It's going to be later in the day, as I mentioned, but at least Minnesota has a one hour time difference. Perhaps you could call the court's clerk to make sure the judge is aware as soon as it's posted on the webpage. -Karen 011 Thu. Dec 21. 2017 at 5:47 PM. Hawbecker. Karen wrote: Sean. I've copied Jack on this email. We're checking with Dan Joriani about an S. - aren 011 Thu. Dec 21. 2017 at 4:59 PM. Duffy. Sean C. (ENRD) wrote: Karen. Richard. and Brianna: Thank you for keeping us apprised. We spoke to the AUSA todav concerns Wit 1 us approac 1. We? comments soon. A few questions: Feel free to give me a call if you have any questions. Thank you. Sean Sean C. Duffy Environment Natural Resom?ces Division US. Department of Justice Natural Resources Section (202) From: Hawbecker, Karen Sent: Monday, December 18, 2017 7:08 PM To: Piropato, Marissa (ENRD) Cc: Collier, Briana McNeer, Richard Boronow, Clare (ENRD) Duffy, Sean C. (ENRD) Subject: Re: Twin Metals Hi Marissa. I'll let you know when it's sidned. 011 M011. Dec 18. 2017 at 3:23 PM. Piropato. Marissa (ENRD) Hi Karen? You mentioned that the issuance of a new M-Opinion is Would you let us know when the new opinion is released? Thanks very much. Marissa Marissa A. Piropato Enviromnent Natiu?al Resoru?ces Division US. Department of Justice marissa. iro ato?vusdo'?ov tel: 202.305.0470 fax: 202305-0506 mail: PO. Box 7611 Washington. DC. 20044-7611 overnight delivery: Patrick Henry Building?3rd Floor 1 601 Street. NW ,7 ?7 "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Fri Dec 22 2017 08:15:45 GMT-0700 (MST) To: Karen Hawbecker Subject: Re: Twin Metals On Fri, Dec 22, 2017 at 10:10 AM, Karen Hawbecker wrote: Jack, Let me know if you see Dan about this. Otherwise, I?ll tell Sean that . ?Karen Sent from my iPad On Dec 22, 2017, at 1:02 AM, Kevin Haugrud wrote: That's why you call the court's clerk to let the judge know a filing is happening. We can ask Dan, but I'm guessing he'll want to wait until 6 (5 central time). From: Karen Hawbecker Sent: Friday. December 22, 2017 12:39 AM To: Jack Haugrud Subject: Fwd: Twin Metals Jack, What do you think of concern. Sent from my iPad Begin forwarded message: From: "Duffy, Sean C. Date: December 21, 2017 at 9:06:37 PM EST To: "'Hawbecker, Karen'" Subject: RE: Twin Metals Karen. From: Hawbecker, Karen Sent: Thursday, December 21, 2017 5:52 PM To: Duffy, Sean C. (ENRD) Cc: Collier, Briana McNeer, Richard wrote: Karen. Richard. and Brianna: Thank you for keeping us apprised. We spoke to the AUSA todaV any concems w1t1t115 approac 1. We? c11'cu ate draft notice language for review and $0011. A few questions: Feel free to give me a call if you have any questions. Thank you. Sean Sean . Duffy Environment Natru'al Resources Division US. Department of Justice Natru?al Resoru?ces Section (202) From: Hawbecker, Karen Sent: Monday, December 18, 2017 7:08 PM To: Piropato, Marissa (ENRD) Cc: Collier, Briana McNeer, Richard Boronow, Clare (ENRD) Duffy, Sean C. (ENRD) Subject: Re: Twin Metals Hi Marissa. I'll let you know when it's signed. 011 Mon. Dec 18. 2017 at 3:23 PM. Piropato. Marissa (ENRD) aov> wrote: Hi Karen- You mentioned that the issuance of a new M-Opinion is imminent. Would you let us know when the new opinion is released? Thanks very much. Marissa Marissa A. Piropato Enviromnent Natru?al Resoru?ces Division US. Department of Justice rnarissa. iro ato tel: 202.305.0470 fax: 202305-0506 mail: PO. Box 7611 Washington. DC. 20044-7611 overnight delivery: Patrick Henry Washington, DC 20004 Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:18 PM Conversation Contents M-37049 withdrawal of M-37036 re Twin Metals leasing 12 21 kjh Attachments: /15. M-37049 withdrawal of M-37036 re Twin Metals leasing 12 21 kjh/1.1 M-37049 withdrawal of M-37036 re Twin Metals leasing 12 21 kjh.docx /15. M-37049 withdrawal of M-37036 re Twin Metals leasing 12 21 kjh/3.1 M-37049 withdrawal of M-37036 re Twin Metals leasing 12 21 kjh.docx Karen Hawbecker From: Sent: To: Subject: Attachments: Karen Hawbecker Thu Dec 21 2017 22:31:42 GMT-0700 (MST) Jack Haugrud M-37049 withdrawal of M-37036 re Twin Metals leasing 12 21 kjh M-37049 withdrawal of M-37036 re Twin Metals leasing 12 21 kjh.docx Jack, I’ve suggested a few small edits. See what you think. —Karen Sent from my iPad "Haugrud, Kevin" From: Sent: To: Subject: "Haugrud, Kevin" Fri Dec 22 2017 07:13:57 GMT-0700 (MST) Karen Hawbecker Re: M-37049 withdrawal of M-37036 re Twin Metals leasing 12 21 kjh Look good to me. On Fri, Dec 22, 2017 at 12:31 AM, Karen Hawbecker wrote: Jack, I’ve suggested a few small edits. See what you think. —Karen "Haugrud, Kevin" From: Sent: To: Subject: "Haugrud, Kevin" Fri Dec 22 2017 07:58:57 GMT-0700 (MST) Karen Hawbecker Re: M-37049 withdrawal of M-37036 re Twin Metals leasing 12 21 kjh M-37049 withdrawal of M-37036 re Twin Metals leasing 12 21 Attachments: kjh.docx Karen: ease a a 00 . On Fri, Dec 22, 2017 at 12:31 AM, Karen Hawbecker wrote: Jack, I?ve suggested a few small edits. See what you think. ?Karen Karen Hawbecker From: Karen Hawbecker Sent: Fri Dec 22 2017 08:02:34 GMT-0700 (MST) To: "Haugrud, Kevin" Subject: 2: M-37049 Withdrawal of M-37036 re Metals leasmg 12 21 Jack, I think it works. Good idea. ?Karen On Dec 22, 2017, at 9:58 AM, Haugrud, Kevin wrote: Karen: ease a a 00 . On Fri, Dec 22, 2017 at 12:31 AM, Karen Hawbecker wrote: Jack, I?ve suggested a few small edits. See what you think. ?Karen withdrawal of M-37036 re Twin Metals leasing 12 21 kjh.docx> Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:18 PM Conversation Contents Twin Metals "if asked" statement Attachments: /16. Twin Metals "if asked" statement/1.1 2017.12.21 Twin Metals - BLM if asked statement (1) SOL reviewed.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Thu Dec 21 2017 15:56:43 GMT-0700 (MST) Russell Newell Jack Haugrud , Briana Collier , Beverly Winston Twin Metals "if asked" statement 2017.12.21 Twin Metals - BLM if asked statement (1) SOL reviewed.docx Russell, I've attached an "if asked" statement that may be used to answer inquiries after the Twin Metals opinion is issued. Please let us know if you have any questions. Thank you. --Karen Russell Newell From: Sent: To: CC: Subject: Russell Newell Thu Dec 21 2017 19:22:42 GMT-0700 (MST) "Hawbecker, Karen" Beverly Winston , Briana Collier , Jack Haugrud Re: Twin Metals "if asked" statement Thank you Karen On Thu, Dec 21, 2017 at 5:57 PM Hawbecker, Karen wrote: Russell, I've attached an "if asked" statement that may be used to answer inquiries after the Twin Metals opinion is issued. Please let us know if you have any questions. Thank you. --Karen -Russell Newell Deputy Director of Communications U.S. Department of the Interior (202) 208-6232 @Interior Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:18 PM Conversation Contents Twin Metals with Weeks Act citation Attachments: /17. Twin Metals with Weeks Act citation/1.1 2017.12.21 Twin Metals -- Draft Final.docx /17. Twin Metals with Weeks Act citation/4.1 2017.12.21 Twin Metals -- Draft Final Weeks Act cite.docx /17. Twin Metals with Weeks Act citation/5.1 2017.12.21 Twin Metals -- Draft Final Weeks Act cite /17. Twin Metals with Weeks Act citation/9.1 M-37049 withdrawal of M-37036 re Twin Metals leasing 12 21 kjh.docx "Collier, Briana" From: "Collier, Briana" Sent: Thu Dec 21 2017 14:38:17 GMT-0700 (MST) To: Karen Hawbecker "Haugrud, Kevm" Subject: Twin Metals with Weeks Act citation Attachments: 2017.12.21 Twin Metals -- Draft Final.docx Karen. Jack: Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 *New Phone: (505) 248-5604 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Thu Dec 21 2017 15:18:03 GMT-0700 (MST) To: "Haugrud, Kevin" CC: "Collier, Briana" Subject: Re: Twin Metals with Weeks Act citation Jack, Ithink?. On Thu, Dec 21, 2017 at 4:38 PM, Collier. Briana wrote: Karen, Jack Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 *New Phone: (505) 248-5604 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Thu Dec 21 2017 15:20:46 GMT-0700 (MST) To: "Collier, Briana" CC: Karen Hawbecker Subject: Re: Twin Metals with Weeks Act citation Thanks Briana. On Thu, Dec 21, 2017 at 4:38 PM, Collier, Briana wrote: Karen, Jack: Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 *New Phone: (505) 248-5604 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Thu Dec 21 2017 16:00:21 GMT-0700 (MST) To: "Haugrud, Kevin" "Collier, Briana" Mariagrazia CC: Caminiti Subject: Re: Twin Metals with Weeks Act citation Attachments: 2017.12.21 Twin Metals -- Draft Final Weeks Act cite.docx Jack, Here's the with the Weeks Act cite. It was no small feat to ?nd the correct cite. We've got it nailed down now. --Karen On Thu, Dec 21. 2017 at 4:38 PM, Collier, Briana wrote: Karen, Jack: Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 *New Phone: (505) 248-5604 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Thu Dec 21 2017 16:01:35 GMT-0700 (MST) To: "Haugrud, Kevin" "Collier, Briana" Mariagrazia CC: Caminiti Subject: Re: Twin Metals with Weeks Act citation 2017.12.21 Twin Metals -- Draft Final Weeks Act cite Attachments. Here is the clean version with the correct Weeks Act cite. On Thu, Dec 21, 2017 at 6:00 PM, Hawbecker, Karen wrote: Jack, Here's the with the Weeks Act cite. It was no small feat to ?nd the correct cite. We've got it nailed down now. --Karen On Thu, Dec 21, 2017 at 4:38 PM, Collier, Briana wrote: Karen, Jack Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 *New Phone: (505) 248-5604 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Thu Dec 21 2017 16:05:19 GMT-0700 (MST) To: "Hawbecker, Karen" cc: "Collie-r, Briana" Mariagrazia Caminltl Subject: Re: Twin Metals with Weeks Act citation Thank you both. I very much appreciate it. On Thu, Dec 21, 2017 at 6:00 PM, Hawbecker, Karen wrote: Jack, Here's the with the Weeks Act cite. It was no small feat to ?nd the correct cite. We've got it nailed down now. --Karen On Thu, Dec 21, 2017 at 4:38 PM, Collier, Briana wrote: Karen, Jack: Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 *New Phone: (505) 248-5604 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Thu Dec 21 2017 16:11:36 GMT-0700 (MST) To: "Haugrud, Kevin" cc: "Collier, Briana" Mariagrazia CamInItI Subject: Re: Twin Metals with Weeks Act citation Jack, We've uploaded the new clean version with the Weeks Act cite in DTS and both Briana and have sumamed it. If there are changes and a new version needs to be sumamed, please let us know. Thanks. --Karen On Thu, Dec 21, 2017 at 6:05 PM, Haugrud, Kevin wrote: Thank you both. I very much appreciate it. On Thu, Dec 21, 2017 at 6:00 PM, Hawbecker, Karen wrote: Jack, Here's the with the Weeks Act cite. It was no small feat to ?nd the correct cite. We've got it nailed down now. --Karen On Thu, Dec 21. 2017 at 4:38 PM. Collier. Briana wrote: Karen. Jack: you. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave.. NW Ste.1800 Albuguergue, NM 87102 *New Phone: (505) 248-5604 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Thu Dec 21 2017 16:34:05 GMT-0700 (MST) To: "Hawbecker, Karen" cc: "Collier, Briana" Mariagrazia Subject: Re: Twin Metals with Weeks Act citation Great, thanks guys! On Thu, Dec 21, 2017 at 6:11 PM, Hawbecker, Karen wrote: Jack, We've uploaded the new clean version with the Weeks Act cite in DTS and both Briana and I have sumamed it. If there are changes and a new version needs to be sumamed, please let us know. Thanks. -Karen On Thu, Dec 21, 2017 at 6:05 PM, Haugrud, Kevin wrote: Thank you both. I very much appreciate it. On Thu, Dec 21, 2017 at 6:00 PM, Hawbecker, Karen wrote: On Thu, Dec 21. 2017 at 4:38 PM. Collier. Briana wrote: Jack, Here's the with the Weeks Act cite. It was no small feat to ?nd the correct cite. We've got it nailed down now. --Karen Karen, Jack: you. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave.. NW Ste.1800 Albuguergue, NM 87102 *New Phone: (505) 248-5604 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Thu Dec 21 2017 17:34:48 GMT-0700 (MST) To: "Hawbecker, Karen" Subject: Re: Twin Metals with Weeks Act citation Attachments: M-37049 Withdrawal of M-37036 re Metals leasmg 12 21 kjh.docx See what you think about my edits on this one. The revisions are on pages 9-11. On Thu, Dec 21, 2017 at 6:01 PM, Hawbecker, Karen wrote: Here is the clean version with the correct Weeks Act cite. On Thu, Dec 21, 2017 at 6:00 PM, Hawbecker, Karen wrote: Jack, Here's the with the Weeks Act cite. It was no small feat to ?nd the correct cite. We've got it nailed down now. --Karen On Thu, Dec 21. 2017 at 4:38 PM, Collier. Briana wrote: Karen. Jack you. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Office of the Solicitor 505 Marquette Ave, NW Ste.1800 Albuquerque, NM 87102 *New Phone: (505) 248-5604 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:21 PM Conversation Contents twin metals Attachments: /18. twin metals/1.1 M-37049 withdrawal of M-37036 re Twin Metals leasing.docx "Caminiti, Mariagrazia" From: Sent: To: Subject: Attachments: "Caminiti, Mariagrazia" Thu Dec 21 2017 15:57:23 GMT-0700 (MST) Jack Haugrud twin metals M-37049 withdrawal of M-37036 re Twin Metals leasing.docx saved on s drive -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:21 PM Conversation Contents Twin Metals "if asked" statement Attachments: /19. Twin Metals "if asked" statement/1.1 2017.12.21 Twin Metals - BLM if asked statement.docx /19. Twin Metals "if asked" statement/3.1 2017.12.21 Twin Metals - BLM if asked statement.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Thu Dec 21 2017 11:37:10 GMT-0700 (MST) Jack Haugrud Briana Collier Twin Metals "if asked" statement 2017.12.21 Twin Metals - BLM if asked statement.docx Jack, Here's a draft "if asked" statement based on BLM's draft press release. If you have no edits or comments we'll share it with BLM. Thanks. --Karen "Hawbecker, Karen" From: Sent: To: CC: Subject: "Hawbecker, Karen" Thu Dec 21 2017 15:32:33 GMT-0700 (MST) Jack Haugrud Briana Collier Re: Twin Metals "if asked" statement Jack, Have you shared this with BLM or should we? --Karen On Thu, Dec 21, 2017 at 1:37 PM, Hawbecker, Karen wrote: Jack, Here's a draft "if asked" statement based on BLM's draft press release. If you have no edits or comments we'll share it with BLM. Thanks. --Karen "Haugrud, Kevin" From: Sent: To: Subject: "Haugrud, Kevin" Thu Dec 21 2017 15:38:00 GMT-0700 (MST) "Hawbecker, Karen" Re: Twin Metals "if asked" statement Attachments: 2017.12.21 Twin Metals - BLM if asked statementdocx I made some edits. but thev are not in redline. Take a look and see if this looks okav to vou. On Thu, Dec 21, 2017 at 5:32 PM, Hawbecker, Karen wrote: Jack, Have you shared this with BLM or should we? --Karen On Thu, Dec 21, 2017 at 1:37 PM, Hawbecker, Karen wrote: Jack, Here's a draft "if asked" statement based on BLM's draft press release. If you have no edits or comments we'll share it with BLM. Thanks. ?Karen "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Thu Dec 21 2017 15:49:17 GMT-0700 (MST) To: "Haugrud, Kevin" Subject: Re: Twin Metals "if asked" statement Looks good. I'll share this with Bev now. On Thu, Dec 21, 2017 at 5:38 PM, Haugrud, Kevin wrote: I made some edits. but they are not in redline. Take a look and see if this looks okay to you. On Thu, Dec 21, 2017 at 5:32 PM, Hawbecker, Karen wrote: Jack, Have you shared this with BLM or should we? --Karen On Thu, Dec 21, 2017 at 1:37 PM, Hawbecker, Karen wrote: Jack, Here's a draft "if asked" statement based on BLM's draft press release. If you have no edits or comments we'll share it with BLM. Thanks. -Karen "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Thu Dec 21 2017 15:52:53 GMT-0700 (MST) To: "Hawbecker, Karen" Subject: Re: Twin Metals "if asked" statement Please send to Russell Newell too and copy me. On Thu, Dec 21, 2017 at 5:49 PM, Hawbecker, Karen wrote: Looks good. I'll share this with Bev now. On Thu, Dec 21, 2017 at 5:38 PM, Haugrud, Kevin wrote: I made some edits, but they are not in redline. Take a look and see if this looks okav to VOU. On Thu, Dec 21, 2017 at 5:32 PM, Hawbecker, Karen wrote: Jack, Have you shared this with BLM or should we? --Karen On Thu, Dec 21, 2017 at 1:37 PM, Hawbecker, Karen wrote: Jack, Here's a draft "if asked" statement based on BLM's draft press release. If you have no edits or comments we'll share it with BLM. Thanks. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:22 PM Conversation Contents DTS Assignment--Reversal of M-37036, ?Twin Metals Minnesota Application to Renew Preference Right Leases (MNES-01352 and MNES-01353)? From: Sent: To: Subject: Thu Dec 21 2017 15:12:07 GMT-0700 (MST) DTS Assignment--Reversal of M-37036, ?Twin Metals Minnesota Application to Renew Preference Right Leases (MNES-01352 and MNES-01353)? Hello and welcome to the DTS automated email alert! Your office (SOL-Haugrud,J) has a task assigned to Kevin Haugrud. Please log in to the Data Tracking System at the following URL Address: https://dts.fws.gov/dts/preLogin.do?officeId=5516 and review Document Control Number (DCN)** SOL0001449. To move the document to the next office in the routing process, enter your surname information for your office's task and save the record. Document Subject: Reversal of M-37036, ?Twin Metals Minnesota Application to Renew Preference Right Leases (MNES-01352 and MNES-01353)? Synopsis: mop 37049 Action Required: 3-Surname Assigned By Office: SOL-Front Office User: Mariagrazia Caminiti **Thank you**. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:22 PM Conversation Contents Twin Metals: Draft letter from BLM to FS Attachments: /21. Twin Metals: Draft letter from BLM to FS/1.1 2017.12.21 Twin Metals DRAFT Ltr from BLM ESO to FS Reg Forester re new M-Opinion (1).doc "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Thu Dec 21 2017 11:21:09 GMT-0700 (MST) Jack Haugrud Briana Collier Twin Metals: Draft letter from BLM to FS 2017.12.21 Twin Metals DRAFT Ltr from BLM ESO to FS Reg Forester re new M-Opinion (1).doc Jack, Here's a new clean version of the draft letter to Forest Service from BLM that accepts the changes from OGC. I'll bring copies of this to (b) (5) . --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:22 PM Conversation Contents Fwd: Twin Metals press release question Attachments: I23. Fwd: Twin Metals press release question/1.1 Opinion news release_12.21.17.docx "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Thu Dec 21 2017 11:15:37 GMT-0700 (MST) To: Jack Haugrud Subject: Fwd: Twin Metals press release question Attachments: Opinion news release_12.21.17.docx Jack, Here's the draft news release. I'll send the "if asked" statement shortly. --Karen -- Forwarded message From: Winston, Beverly Date: Thu, Dec 21,2017 at 11:21 AM Subject: Fwd: Twin Metals press release question To: Briana Collier "Hawbecker, Karen" Adding Briana. -- Forwarded message From: Winston, Beverly Date: Thu, Dec 21,2017 at 11:20 AM Subject: Re: Twin Metals press release question To: "Hawbecker, Karen" Here's the latest, Karen. Thank you for the update. On Thu, Dec 21, 2017 at 11:15 AM, Hawbecker, Karen wrote: Thank you. --Karen -- -- Bev Winston Bureau of Land Management Communications 202-208-4602 bwinston@blm.gov Bev Winston Bureau of Land Management Communications 202-208-4602 bwinston@blm.gov Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:23 PM Conversation Contents Re: Fwd: M Opinion Qs Kevin Haugrud From: Sent: To: Subject: Kevin Haugrud Wed Dec 20 2017 17:10:24 GMT-0700 (MST) "Hawbecker, Karen" Re: Fwd: M Opinion Qs Please forward to them what Gary sent to Departmental Comms too. -------- Original Message -------From: "Hawbecker, Karen" Date: Wed, December 20, 2017 6:46 PM -0500 To: Jack Haugrud Subject: Fwd: M Opinion Qs Jack, BLM sent these questions to us re: the Twin Metals opinion. Briana will prepare answers along the lines we have in our Q&A document. --Karen ---------- Forwarded message ---------From: Collier, Briana Date: Wed, Dec 20, 2017 at 6:26 PM Subject: Fwd: M Opinion Qs To: Karen Hawbecker Here are the BLM's questions for the Twin Metals M-Op. I can work on some answers, along the lines of our Q&A answers, tomorrow morning. Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. ---------- Forwarded message ---------From: Winston, Beverly Date: Wed, Dec 20, 2017 at 4:17 PM Subject: M Opinion Qs To: Briana Collier Cc: Mitchell Leverette , Jeff Krauss Here they are: (b) (5) -- Bev Winston Bureau of Land Management Communications 202-208-4602 bwinston@blm.gov Karen Hawbecker From: Sent: To: Subject: Karen Hawbecker Wed Dec 20 2017 22:05:28 GMT-0700 (MST) Kevin Haugrud Re: M Opinion Qs Will do. Sent from my iPad On Dec 20, 2017, at 7:10 PM, Kevin Haugrud wrote: Please forward to them what Gary sent to Departmental Comms too. -------- Original Message -------From: "Hawbecker, Karen" Date: Wed, December 20, 2017 6:46 PM -0500 To: Jack Haugrud Subject: Fwd: M Opinion Qs Jack, BLM sent these questions to us re: the Twin Metals opinion. Briana will prepare answers along the lines we have in our Q&A document. --Karen ---------- Forwarded message ---------From: Collier, Briana Date: Wed, Dec 20, 2017 at 6:26 PM Subject: Fwd: M Opinion Qs To: Karen Hawbecker Here are the BLM's questions for the Twin Metals M-Op. I can work on some answers, along the lines of our Q&A answers, tomorrow morning. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Office of the Solicitor 505 Marquette Ave.. NW Ste.1800 AlbuguergueI NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. -- Fon/varded message From: Winston, Beverly Date: Wed, Dec 20, 2017 at 4:17 PM Subject: Opinion 03 To: Briana Collier Cc: Mitchell Leverette Jeff Krauss Here they are: Bev Winston Bureau of Land Management Communications 202-208-4602 bwinston?blmoov Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:23 PM Conversation Contents RE: Twin Metals M-Opinion - No action needed before Thursday Michael Nedd From: Michael Nedd Sent: Wed Dec 20 2017 18:30:34 GMT-0700 (MST) To: Kevin Haugrud Karen Hawbecker Brian Steed cc: "Leverette, Mitchell" Kathleen Benedetto Timothy Spisak Subject: RE: Twin Metals M-Opinion - No action needed before Thursday Jack, for sharing this and yes and I?m also looping in Kathy and Tim I plan to read this on flight back from ID tonight. Take care and have a wonderful day! Michael Nedd 202-208-3801 Of?ce 202-208-5242 Fax A thought to consider "Do all the good you can, in all the ways you can, for all the people you can, while you can!" From: Haugrud, Kevin Sent: Wednesday, December 20, 2017 2:51 PM To: Brian Steed ; Michael Nedd ; Leverette, Mitchell Cc: Karen Hawbecker Subject: Fwd: Twin Metals M-Opinion Attorney Client Communication Attorney Work Product Predecisional DO NOT RELEASE Brian, Mike, Mitch - Attached is a draft M-Opinion that would reverse an earlier Solicitor's Opinion and conclude that Twin Metals Minnesota is entitled to a third renewal of its two leases. The expectation is Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:23 PM Conversation Contents Fwd: M Opinion Qs "Hawbecker, Karen" From: Sent: To: Subject: "Hawbecker, Karen" Wed Dec 20 2017 16:46:17 GMT-0700 (MST) Jack Haugrud Fwd: M Opinion Qs Jack, BLM sent these questions to us re: the Twin Metals opinion. Briana will prepare answers along the lines we have in our Q&A document. --Karen ---------- Forwarded message ---------From: Collier, Briana Date: Wed, Dec 20, 2017 at 6:26 PM Subject: Fwd: M Opinion Qs To: Karen Hawbecker Here are the BLM's questions for the Twin Metals M-Op. I can work on some answers, along the lines of our Q&A answers, tomorrow morning. Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. ---------- Forwarded message ---------From: Winston, Beverly Date: Wed, Dec 20, 2017 at 4:17 PM Subject: M Opinion Qs To: Briana Collier Cc: Mitchell Leverette , Jeff Krauss Here they are: (b) (5) (b) (5) -- Bev Winston Bureau of Land Management Communications 202-208-4602 bwinston@blm.gov Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:23 PM Conversation Contents Twin Metals Talking Points Attachments: I28. Twin Metals Talking Points/5.1 2017.12.20 Twin Metals Talking Pointsdocx "Lawkowski, Gary" From: "Lawkowski, Gary" Sent: Tue Dec 19 2017 12:00:29 GMT-0700 (MST) . "Jorjani, Daniel" Kevin Haugrud o. . . Subject: Twin Metals Talking Points Comms has requested a one-pager of talking points on the Twin Metals opinion. Given today's focus on critical minerals, here is what I've put together. Let me know what you think. Sincerely, Gary Lawkowski Counselor to the Solicitor Department of the Interior Gary. Lawkowski?so/. doi.qov 202-208- 7340 Twin lVletals Talking Points "Jorjani, Daniel" From: "Jorjani, Daniel" Sent: Tue Dec 19 2017 12:12:01 GMT-0700 (MST) To: "Lawkowski, Gary" CC: Kevin Haugrud Subject: Re: Twin Metals Talking Points Wait till you hear from Jack Daniel H. Jorjani Principal Deputy Solicitor U, 3% U.S. Department of the Interior '3 1? Main Interior Building, Suite 6356 202-219-3861 (Voice) =7 ?4ch 3? us 0 202-706-9018 (Cell) sol.doi. ov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. On Tue, Dec 19, 2017 at 2:00 PM, Lawkowski, Gary wrote: Comms has requested a one-pager of talking points on the Twin Metals opinion. Given today's focus on critical minerals, here is what I've put together. Let me know what you think. Sincerely, Gary Lawkowski Counselor to the Solicitor Department of the Interior doi. gov 202-208- 7340 Twin Metals Talking Points Kevin Haugrud From: Kevin Haugrud Sent: Wed Dec 20 2017 06:47:40 GMT-0700 (MST) Karen Hawbecker Briana Collier To: Richard McNeer CC: Gary Lawkowski Subject: Fw: Twin Metals Talking Points Here is Gary's draft. Please provide comments directly back to Gary. From: Lawkowski, Gary Sent: Tuesday, December 19, 2017 2:00 PM To: Jorjani, Daniel; Kevin Haugrud Subject: Twin Metals Talking Points Comms has requested a one-pager of talking points on the Twin Metals opinion. Given today's focus on critical minerals, here is what I've put together. Let me know what you think. Sincerely, Gary Lawkowski Counselor to the Solicitor Department of the Interior Gary. Lawkowski@sol. doi.qov 202-208- 7340 Twin IVIetals Talking Points "Lawkowski, Gary" From: Sent To: CC: Subject: "Lawkowski, Gary" Wed Dec 20 2017 12:32:47 GMT-0700 (MST) Kevin Haugrud Karen Hawbecker Briana Collier Richard McNeer Re: Fw: Twin Metals Talking Points I think Comms is hoping to have talking points back today. Let me know what you all think. Sincerely, Gary Lawkowski On Wed, Dec 20, 2017 at 8:47 AM, Kevin Haugrud wrote: Here is Gary's draft. Please provide comments directly back to Gary. From: Lawkowski, Gary Sent: Tuesday, December 19, 2017 2:00 PM To: Jorjani, Daniel; Kevin Haugrud Subject: Twin Metals Talking Points Comms has requested a one-pager of talking points on the Twin Metals opinion. Given today's focus on critical minerals, here is what I've put together. Let me know what you think. Sincerely, Gary Lawkowski Counselor to the Solicitor Department of the Interior doi.qov 202-208? 7340 Twin IVIetals Talking Points Gary Lawkowski Counselor to the Solicitor Department of the Interior Gary. Lawkowski?sol doiqov 202-208- 7340 "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Wed Dec 20 2017 14:24:21 GMT-0700 (MST) To: Gary Lawkowski Briana Collier Richard McNeer CC: Kevin Haugrud Subject: Re: Fw: Twin Metals Talking Points Attachments: 2017.12.20 Twin Metals Talking Points.docx Gary, I've attached the talking points with my suggested edits in redline. On Wed, Dec 20, 2017 at 8:47 AM, Kevin Haugrud wrote: Here is Gary's draft. Please provide comments directly back to Gary. From: Lawkowski, Gary Sent: Tuesday, December 19, 2017 2:00 PM To: Jorjani, Daniel; Kevin Haugrud Subject: Twin Metals Talking Points Comms has requested a one-pager of talking points on the Twin Metals opinion. Given today's focus on critical minerals, here is what I've put together. Let me know what you think. Sincerely, Gary Lawkowski Counselor to the Solicitor Department of the Interior doi. gov 202-208- 7340 Twin IVIetals Talking Points Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:23 PM Conversation Contents Agenda for DMR Weekly Meeting Attachments: /29. Agenda for DMR Weekly Meeting/1.1 2017.12.20 DMR Weekly Meeting Agenda.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Tue Dec 19 2017 18:53:26 GMT-0700 (MST) Daniel Jorjani , Jack Haugrud Gary Lawkowski , Emily Morris , Wendy Dorman , Melissa Hearne , "Andreas, Eric" , Richard McNeer , Tom Bovard , Dennis Daugherty Agenda for DMR Weekly Meeting 2017.12.20 DMR Weekly Meeting Agenda.docx Dan and Jack, I've attached the agenda for our weekly meeting tomorrow morning. We'll have three attorneys attending the meeting tomorrow who are acting for Richard, Tom, and Dennis. Wendy Dorman and I will need to leave the meeting by 11:15 am to participate in a settlement negotiation meeting with (b) that begins at 11:30 am. Melissa and Eric will cover the items on the agenda related to BOEM and BSEE. We'll(5) see you in the morning. --Karen Daniel Jorjani From: Sent: To: CC: Subject: Daniel Jorjani Tue Dec 19 2017 18:55:10 GMT-0700 (MST) "Hawbecker, Karen" Jack Haugrud , Gary Lawkowski , Emily Morris , Wendy Dorman , Melissa Hearne , "Andreas, Eric" , Richard McNeer , Tom Bovard , Dennis Daugherty Re: Agenda for DMR Weekly Meeting Karen - Thank you. Sent from my iPhone On Dec 19, 2017, at 8:54 PM, Hawbecker, Karen wrote: Dan and Jack, I've attached the agenda for our weekly meeting tomorrow morning. We'll have three attorneys attending the meeting tomorrow who are acting for Richard, Tom, and Dennis. Wendy Dorman and I will need to leave the meeting by 11:15 am to participate in a settlement negotiation meeting with (b) that begins at 11:30 am. Melissa and Eric will cover the items on the agenda related to BOEM(5) and BSEE. We'll see you in the morning. --Karen <2017.12.20 DMR Weekly Meeting Agenda.docx> Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:24 PM Conversation Contents Draft Twin Metals talking points and Qs & As Attachments: /30. Draft Twin Metals talking points and Qs & As/1.1 2017.12.15 clean Twin Metals Talking points_Q&A.docx /30. Draft Twin Metals talking points and Qs & As/4.1 2017.12.15 clean Twin Metals Talking points_Q&A.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Fri Dec 15 2017 13:39:20 GMT-0700 (MST) Jack Haugrud Briana Collier , Richard McNeer Draft Twin Metals talking points and Qs & As 2017.12.15 clean Twin Metals - Talking points_Q&A.docx Jack, I've attached the draft talking points and Qs & As. Please let us know if you have edits or comments or if you think of any other questions we should address. Thank you. --Karen "Haugrud, Kevin" From: Sent: To: CC: Subject: "Haugrud, Kevin" Fri Dec 15 2017 14:28:33 GMT-0700 (MST) "Hawbecker, Karen" Briana Collier , Richard McNeer Re: Draft Twin Metals talking points and Qs & As Marigrace has informed me that we won't be issuing the m-opinion until next Friday. Given the reprieve, I'll take a look and get back to you on Monday. On Fri, Dec 15, 2017 at 3:39 PM, Hawbecker, Karen wrote: Jack, I've attached the draft talking points and Qs & As. Please let us know if you have edits or comments or if you think of any other questions we should address. Thank you. --Karen "Hawbecker, Karen" From: Sent: "Hawbecker, Karen" Fri Dec 15 2017 14:32:04 GMT-0700 (MST) To: CC: Subject: "Haugrud, Kevin" Briana Collier , Richard McNeer Re: Draft Twin Metals talking points and Qs & As Sounds good. Thanks, Jack. On Fri, Dec 15, 2017 at 4:28 PM, Haugrud, Kevin wrote: Marigrace has informed me that we won't be issuing the m-opinion until next Friday. Given the reprieve, I'll take a look and get back to you on Monday. On Fri, Dec 15, 2017 at 3:39 PM, Hawbecker, Karen wrote: Jack, I've attached the draft talking points and Qs & As. Please let us know if you have edits or comments or if you think of any other questions we should address. Thank you. --Karen Kevin Haugrud From: Sent: To: CC: Subject: Attachments: Kevin Haugrud Wed Dec 20 2017 06:46:39 GMT-0700 (MST) Gary Lawkowski Karen Hawbecker , Briana Collier , Richard McNeer Fw: Draft Twin Metals talking points and Qs & As 2017.12.15 clean Twin Metals - Talking points_Q&A.docx Gary: Attached are draft Qand As and talking point that Briana and DMR prepared. I think I forgot to forward them to you earlier. Please take a look at them and incorporate them into your talking points. Briana, Karen and Richard, I will forward Gary's draft talking points separately. From: Hawbecker, Karen Sent: Friday, December 15, 2017 3:39 PM To: Jack Haugrud Cc: Briana Collier; Richard McNeer Subject: Draft Twin Metals talking points and Qs & As Jack, I've attached the draft talking points and Qs & As. Please let us know if you have edits or comments or if you think of any other questions we should address. Thank you. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:24 PM Conversation Contents Draft BLM Letter to Forest Service Attachments: /31. Draft BLM Letter to Forest Service/1.1 2017.12.13 DRAFT Ltr from BLM ESO to FS Reg Forester re new M-Opinion.doc /31. Draft BLM Letter to Forest Service/3.1 2017.12.13 DRAFT Ltr from BLM ESO to FS Reg Forester re new M-Opinion.doc /31. Draft BLM Letter to Forest Service/4.1 Twin Metals 2017.12.13 DRAFT Ltr from BLM ESO to FS Reg Forester re new M-Opinion.doc "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Wed Dec 13 2017 17:07:53 GMT-0700 (MST) "Mulach, Ronald - OGC" Jack Haugrud Draft BLM Letter to Forest Service 2017.12.13 DRAFT Ltr from BLM ESO to FS Reg Forester re new M-Opinion.doc Ron, As a follow up to our call on Monday, here is a draft letter to the Forest Service from BLM regarding the expected new M-Opinion and the Forest Service's previous non-consent. We'd like to get your feedback about this draft. We ask that you treat this document as close hold and that you not share it outside of your office. Could we ask for your feedback by COB tomorrow? Thank you. --Karen "Mulach, Ronald - OGC" From: Sent: To: CC: Subject: "Mulach, Ronald - OGC" Thu Dec 14 2017 06:33:04 GMT-0700 (MST) "Hawbecker, Karen" Jack Haugrud RE: Draft BLM Letter to Forest Service Thanks, we’ll take a look and do our best to get back to you today on this. From: Hawbecker, Karen [mailto:karen.hawbecker@sol.doi.gov] Sent: Wednesday, December 13, 2017 7:08 PM To: Mulach, Ronald - OGC Cc: Jack Haugrud Subject: Draft BLM Letter to Forest Service Ron, As a follow up to our call on Monday, here is a draft letter to the Forest Service from BLM regarding the expected new M-Opinion and the Forest Service's previous non-consent. We'd like to get your feedback about this draft. We ask that you treat this document as close hold and that you not share it outside of your office. Could we ask for your feedback by COB tomorrow? Thank you. --Karen This electronic message contains information generated by the USDA solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. "Haugrud, Kevin" From: Sent: To: Subject: Attachments: "Haugrud, Kevin" Thu Dec 14 2017 07:59:34 GMT-0700 (MST) Karen Hawbecker Fwd: Draft BLM Letter to Forest Service 2017.12.13 DRAFT Ltr from BLM ESO to FS Reg Forester re new M-Opinion.doc ---------- Forwarded message ---------From: Hawbecker, Karen Date: Wed, Dec 13, 2017 at 7:07 PM Subject: Draft BLM Letter to Forest Service To: "Mulach, Ronald - OGC" Cc: Jack Haugrud Ron, As a follow up to our call on Monday, here is a draft letter to the Forest Service from BLM regarding the expected new M-Opinion and the Forest Service's previous non-consent. We'd like to get your feedback about this draft. We ask that you treat this document as close hold and that you not share it outside of your office. Could we ask for your feedback by COB tomorrow? Thank you. --Karen "Mulach, Ronald - OGC" From: Sent: To: CC: Subject: Attachments: "Mulach, Ronald - OGC" Fri Dec 15 2017 06:30:03 GMT-0700 (MST) "Hawbecker, Karen" Jack Haugrud RE: Draft BLM Letter to Forest Service Twin Metals 2017.12.13 DRAFT Ltr from BLM ESO to FS Reg Forester re new M-Opinion.doc Thanks for the opportunity to review. Just wondering about one sentence in the last paragraph. From our perspective, it might be better to leave it out. From: Hawbecker, Karen [mailto:karen.hawbecker@sol.doi.gov] Sent: Wednesday, December 13, 2017 7:08 PM To: Mulach, Ronald - OGC Cc: Jack Haugrud Subject: Draft BLM Letter to Forest Service Ron, As a follow up to our call on Monday, here is a draft letter to the Forest Service from BLM regarding the expected new M-Opinion and the Forest Service's previous non-consent. We'd like to get your feedback about this draft. We ask that you treat this document as close hold and that you not share it outside of your office. Could we ask for your feedback by COB tomorrow? Thank you. --Karen This electronic message contains information generated by the USDA solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. "Haugrud, Kevin" From: Sent: To: CC: Subject: "Haugrud, Kevin" Fri Dec 15 2017 07:25:15 GMT-0700 (MST) "Mulach, Ronald - OGC" "Hawbecker, Karen" Re: Draft BLM Letter to Forest Service Thanks for the quick review. We'll take out the sentence. On Fri, Dec 15, 2017 at 8:30 AM, Mulach, Ronald - OGC wrote: Thanks for the opportunity to review. Just wondering about one sentence in the last paragraph. From our perspective, it might be better to leave it out. From: Hawbecker, Karen [mailto:karen.hawbecker@sol.doi.gov] Sent: Wednesday, December 13, 2017 7:08 PM To: Mulach, Ronald - OGC Cc: Jack Haugrud Subject: Draft BLM Letter to Forest Service Ron, As a follow up to our call on Monday, here is a draft letter to the Forest Service from BLM regarding the expected new M-Opinion and the Forest Service's previous non-consent. We'd like to get your feedback about this draft. We ask that you treat this document as close hold and that you not share it outside of your office. Could we ask for your feedback by COB tomorrow? Thank you. --Karen This electronic message contains information generated by the USDA solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:26 PM Conversation Contents DMR Ongoing Litigation Monthly Report for November 2017 Attachments: /32. DMR Ongoing Litigation Monthly Report for November 2017/1.1 2017.11 (November) Report.pdf "Hawbecker, Karen" From: Sent: To: "Hawbecker, Karen" Wed Dec 13 2017 16:04:09 GMT-0700 (MST) Katharine Macgregor , Aden Seidlitz , Alfred Elser , Amy Lueders , Ann M DeBlasi , Ann Navaro , Art Kleven , Brian Amme , Brian Steed , Catherine Cook , "Donald (Don) Buhler" , Edward T Keable , Edwin Roberson , Elaine Guenaga , Eric Shepard , Gary Torres , Glenda Owens , Jack Haugrud , Jamie Connell , Janna Simonsen , Jenna Whitlock , Jerome Perez , Jill Moran , John Kalish , John Ruhs , Jon Raby , "Joseph (Gene) Seidlitz" , Jully McQuilliams , Karen Mouritsen , Kathleen Benedetto , Keith Saxe , Kelly Orr , Kemba Anderson , Khalia Boyd , Kit Muller , Kristen Guerriero , Kristin Bail , Linda Smith , Loraine Dawkins , "Lucas J. Lucero" , Marc Smith , Mary Jo Rugwell , Matthew McKeown , Michael Nedd , Michael Stiewig , Mitchell Leverette , Monica Glenn , Peter Mali , Raymond Suazo , Richard Cardinale , Ruth L Welch , "SOL-Division of Land & Water" , SOL-Division Of Mineral Resources , Stephen Fusilier , Subject: Attachments: Stephen Mahoney , Sterling Rideout , Steven Wells , Suzanne Mehlhoff , Terri Debin , "Thomas D. Tom Shope" , Thomas Lillie , Timothy Murphy , Timothy Spisak , Walter Cruickshank , Wright Frank DMR Ongoing Litigation Monthly Report for November 2017 2017.11 (November) Report.pdf The Division of Mineral Resources prepares this report for the Assistant Secretary, Land and Minerals Management, about ongoing litigation related to BLM (minerals), BOEM, BSEE and OSMRE. I have attached for your reference the monthly report for the month of November 2017. New updates are in bold. Please note that this report is subject to attorney-client privilege. Please do not forward this report. If there are other people in your office who should appropriately receive this report, please let me know and I will add them to the mailing list. If you would rather not receive this monthly report, please let me know. Thank you. Karen Hawbecker Associate Solicitor Division of Mineral Resources Office of the Solicitor U.S. Department of the Interior 1849 C Street N.W. MS 5358 Washington, D.C. 20240 Office: (202) 208-4146 karen.hawbecker@sol.doi.gov Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:26 PM Conversation Contents Twin Metals' critique of m-opinion Attachments: /33. Twin Metals' critique of m-opinion/1.1 Twin Metals Minnesota - Seth Waxman Letter to Solicitor Tompkins 7-1-2016.pdf /33. Twin Metals' critique of m-opinion/2.1 Twin Metals Minnesota - Seth Waxman Letter to Solicitor Tompkins 7-1-2016.pdf "Haugrud, Kevin" From: Sent: To: Subject: Attachments: "Haugrud, Kevin" Mon Nov 06 2017 16:39:16 GMT-0700 (MST) Gary Lawkowski Twin Metals' critique of m-opinion Twin Metals Minnesota - Seth Waxman Letter to Solicitor Tompkins 7-1-2016.pdf Gary: Here's the letter critiquing the m-opinion. "Haugrud, Kevin" From: Sent: To: Subject: Attachments: "Haugrud, Kevin" Wed Dec 13 2017 10:09:42 GMT-0700 (MST) Daniel Jorjani Fwd: Twin Metals' critique of m-opinion Twin Metals Minnesota - Seth Waxman Letter to Solicitor Tompkins 7-1-2016.pdf ---------- Forwarded message ---------From: Haugrud, Kevin Date: Mon, Nov 6, 2017 at 6:39 PM Subject: Twin Metals' critique of m-opinion To: Gary Lawkowski Gary: Here's the letter critiquing the m-opinion. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:27 PM Conversation Contents Draft letter from BLM ESO to F8 Regional Forester re: new Twin Metals Attachments: I34. Draft letter from BLM ESO to F8 Regional Forester re: new Twin Metals M-Opl1.1 USFS Twin Metals nonconsent determinationpdf I34. Draft letter from BLM ESO to F8 Regional Forester re: new Twin Metals 2017.12.12 pm from BLM ESO to F8 Reg Forester re new M-Opinion cleandoc I34. Draft letter from BLM ESO to F8 Regional Forester re: new Twin Metals 2017.12.12 pm from BLM ESO to F8 Reg Forester re new M-Opinion kjh.doc "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Tue Dec 12 2017 19:07:47 GMT-0700 (MST) To: Jack Haugrud cc: Briana Collier Richard McNeer . Draft letter from BLM ESO to F8 Regional Forester re: new Twin ubject. Metals USFS Twin Metals nonconsent determinationpdf 2017.12.12 pm Attachments: from BLM ESO to F8 Reg Forester re new M-Opinion cleandoc Jack, Here is a draft letter from BLM to the Forest Service that would notify the Forest Service about the new M- Opinion and advise it that BLM will no longer consider the Forest Service's December 2016 non-consent determination to be a valid determination. Let us know what you think of the approach we propose to take. Let us know if you'd like us to make further changes to the draft letter. Thanks. --Karen Kevin Haugrud From: Kevin Haugrud Sent: Wed Dec 13 2017 03:50:06 GMT-0700 (MST) To: "Hawbecker, Karen" CC, Briana Collier Richard McNeer . Re: Draft letter from BLM ESO to F8 Regional Forester re: new Subject. Twin Metals Thanks everyone. I'll look at it this morning and provide any comments. I spoke with Dan last that he wou ave some IS. aso Iscusse not envisioning a press release, he would like talking points and 0'3 and A's. Let's shoot for having a draft of those to me by Thursday morning. From: Hawbecker, Karen Sent: Tuesday, December 12, 2017 9:08 PM To: Jack Haugrud Cc: Briana Collier; Richard McNeer Subject: Draft letter from BLM ESO to F8 Regional Forester re: new Twin Metals Jack, Here is a draft letter from BLM to the Forest Service that would notify the Forest Service about the new M- Opinion and advise it that BLM will no longer consider the Forest Service's December 2016 non-consent determination to be a valid determination. Let us know what you think of the approach we propose to take. Briana notes that the Forest Service did not base its non-consent determination on the M-37036?s conclusion about Let us know if you'd like us to make further changes to the draft letter. Thanks. --Karen "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Wed Dec 13 2017 07:47:27 GMT-0700 (MST) To: "Hawbecker, Karen" Briana Collier Richard McNeer Sub.ect_ Re: Draft letter from BLM ESO to F8 Regional Forester re: new Twin Metals 2017.12.12 pm from BLM ESO to F8 Reg Forester re new Opinion kjh.doc CC: Attachments: Thanks. Attached are my comments and suggestions (all but one stylistic in nature). If you're okay with it, please send a clean copy to Ron Mulach for his review. On Tue, Dec 12, 2017 at 9:07 PM, Hawbecker, Karen wrote: Jack, Here is a draft letter from BLM to the Forest Service that would notify the Forest Service about the new M- Opinion and advise it that BLM will no longer consider the Forest Service's December 2016 non-consent determination to be a valid determination. Let us know what you think of the approach we propose to take. We've also attached the non?consent determination for your reference. Let us know if you'd like us to make further changes to the draft letter. Thanks. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:27 PM Conversation Contents Agenda for DMR Weekly Meeting Attachments: /35. Agenda for DMR Weekly Meeting/1.1 2017.12.13 DMR Weekly Meeting Agenda.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Tue Dec 12 2017 16:07:06 GMT-0700 (MST) Daniel Jorjani , Jack Haugrud Gary Lawkowski , Tom Bovard , Dennis Daugherty , Richard McNeer Agenda for DMR Weekly Meeting 2017.12.13 DMR Weekly Meeting Agenda.docx Dan and Jack, I've attached the agenda for our weekly meeting tomorrow morning. We'll see you then. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:27 PM Conversation Contents Revised Twin Op - quick review Attachments: /36. Revised Twin Op - quick review/1.1 2017.12.08 Twin Metals -- Draft Final Redline with OGC response.docx "Haugrud, Kevin" From: Sent: To: Subject: Attachments: "Haugrud, Kevin" Fri Dec 08 2017 08:48:25 GMT-0700 (MST) Briana Collier , Gary Lawkowski , Richard McNeer , Karen Hawbecker Revised Twin Op - quick review 2017.12.08 Twin Metals -- Draft Final Redline with OGC response.docx Attached is the version with my proposed edits to respond to OGC's concerns. Please review (it won't take long) and let me know if you see any problems. I will send to Dan by 11:45 or so. Karen, I know you may not have had a chance to review by then, but the revisions are so minor I'm sure we can address any concerns you have later. "Collier, Briana" From: Sent: To: CC: Subject: "Collier, Briana" Fri Dec 08 2017 09:01:37 GMT-0700 (MST) "Haugrud, Kevin" Gary Lawkowski , Richard McNeer , Karen Hawbecker Re: Revised Twin Op - quick review Looks good to me. Thanks. Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Dec 8, 2017 at 8:48 AM, Haugrud, Kevin wrote: Attached is the version with my proposed edits to respond to OGC's concerns. Please review (it won't take long) and let me know if you see any problems. I will send to Dan by 11:45 or so. Karen, I know you may not have had a chance to review by then, but the revisions are so minor I'm sure we can address any concerns you have later. "McNeer, Richard" From: Sent: To: CC: Subject: "McNeer, Richard" Fri Dec 08 2017 09:15:24 GMT-0700 (MST) "Collier, Briana" "Haugrud, Kevin" , Gary Lawkowski , Karen Hawbecker Re: Revised Twin Op - quick review Jack and Gary: I have no edits or comments. Richard On Fri, Dec 8, 2017 at 11:01 AM, Collier, Briana wrote: Looks good to me. Thanks. Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Dec 8, 2017 at 8:48 AM, Haugrud, Kevin wrote: Attached is the version with my proposed edits to respond to OGC's concerns. Please review (it won't take long) and let me know if you see any problems. I will send to Dan by 11:45 or so. Karen, I know you may not have had a chance to review by then, but the revisions are so minor I'm sure we can address any concerns you have later. "Lawkowski, Gary" From: "Lawkowski, Gary" Sent: Fri Dec 08 2017 09:19:53 GMT-0700 (MST) To: "Haugrud, Kevin" Subject: Re: Revised Twin Op - quick review I know this is getting a little late in the game, Let me know what you think and if you'd like to discuss. Sincerely, Gary Lawkowski On Fri, Dec 8, 2017 at 10:48 AM, Haugrud, Kevin wrote: Attached is the version with my proposed edits to respond to OGC's concerns. Please review (it won't take long) and let me know if you see any problems. I will send to Dan by 11:45 or so. Karen, I know you may not have had a chance to review by then, but the revisions are so minor I'm sure we can address any concerns you have later. Gary Lawkowski Counselor to the Solicitor Department of the Interior Gag. Lawkowski@so/. doi. gov 202?208- 7340 "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Fri Dec 08 2017 09:36:47 GMT-0700 (MST) To: "Lawkowski, Gary" Subject: Re: Revised Twin Op - quick review On Fri, Dec 8, 2017 at 11:19 AM, Lawkowski, Gary wrote: I know this is getting a little late in the game. Let me know what you think and if you'd like to discuss. Sincerely, Gary Lawkowski On Fri, Dec 8, 2017 at 10:48 AM, Haugrud, Kevin wrote: Attached is the version with my proposed edits to respond to OGC's concerns. Please review (it won't take long) and let me know if you see any problems. I will send to Dan by 11:45 or so. Karen, I know you may not have had a chance to review by then, but the revisions are so minor I'm sure we can address any concerns you have later. Gary Lawkowski Counselor to the Solicitor Department of the Interior Gary. Lawkowski@sol. doi. gov 202?208- 7340 "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Fri Dec 08 2017 09:43:40 GMT-0700 (MST) To: "Lawkowski, Gary" Subject: Re: Revised Twin Op - quick review I did not mean to sound dismissive. Please let me know if you're still troubled bv it. If so, I think the solution would be On Fri, Dec 8, 2017 at 11:36 AM, Haugrud, Kevin wrote: On Fri, Dec 8, 2017 at 11:19 AM, Lawkowski, Garv wrote: I know this is getting a little late in the game Let me know what you think and if you'd like to discuss. Sincerely, Gary Lawkowski On Fri, Dec 8, 2017 at 10:48 AM, Haugrud, Kevin wrote: Attached is the version with my proposed edits to respond to OGC's concerns. Please review (it won't take long) and let me know if you see any problems. I will send to Dan by 11:45 or so. Karen, I know you may not have had a chance to review by then, but the revisions are so minor I'm sure we can address any concerns you have later. Gary Lawkowski Counselor to the Solicitor Department of the Interior doi. gov 202-208- 7340 "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Fri Dec 08 2017 09:51 :54 GMT-0700 (MST) To: "McNeer, Richard" "Collier, Briana" Gary Lawkowski CC: Karen Hawbecker Subject: Re: Revised Twin Op - quick review Folks: Gary has pointed out tha On Fri, Dec 8, 2017 at 11:15 AM, McNeer, Richard wrote: Jack and Gary: have no edits or comments. Richard On Fri, Dec 8, 2017 at 11:01 AM, Collier, Briana wrote: Looks good to me. Thanks. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave., NW Ste.1800 AlbuguergueI NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Dec 8, 2017 at 8:48 AM, Haugrud, Kevin wrote: Attached is the version with my proposed edits to respond to OGC's concerns. Please review (it won't take long) and let me know if you see any problems. I will send to Dan by 11:45 or so. Karen, I know you may not have had a chance to review by then, but the revisions are so minor I'm sure we can address any concerns you have later. "Collier, Briana" From: "Collier, Briana" Sent: Fri Dec 08 2017 09:54:51 GMT-0700 (MST) To: "Haugrud, Kevin" "McNeer, Richard" Gary CC: Lawkowski Karen Hawbecker Subject: Re: Revised Twin Op - quick review That sounds like a good solution to me. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Office of the Solicitor 505 Marquette Ave, NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Dec 8, 2017 at 9:51 AM, Haugrud, Kevin wrote: Folks: Gary has pointed out the On Fri, Dec 8, 2017 at 11:15 AM, McNeer, Richard wrote: Jack and Gary: have no edits or comments. Richard On Fri, Dec 8, 2017 at 11:01 AM, Collier, Briana wrote: Looks good to me. Thanks. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave.. NW Ste.1800 Albuguergue, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Dec 8, 2017 at 8:48 AM, Haugrud, Kevin wrote: Attached is the version with my proposed edits to respond to OGC's concerns. Please review (it won't take long) and let me know if you see any problems. I will send to Dan by 11:45 or so. Karen, I know you may not have had a chance to review by then, but the revisions are so minor I'm sure we can address any concerns you have later. "McNeer, Richard" From: "McNeer, Richard" Sent: Fri Dec 08 2017 10:03:18 GMT-0700 (MST) To: "Collier, Briana" "Haugrud, Kevin" Gary Lawkowski CC: Karen Hawbecker Subject: Re: Revised Twin Op - quick review Jack: I have no better formulation. Richard On Fri, Dec 8, 2017 at 11:54 AM, Collier, Briana wrote: That sounds like a good solution to me. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave.. NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Dec 8, 2017 at 9:51 AM. Hauqrud, Kevin wrote: Folks: Garv has pointed out On Fri, Dec 8, 2017 at 11:15 AM, McNeer, Richard wrote: Jack and Gary: I have no edits or comments. Richard On Fri, Dec 8, 2017 at 11:01 AM, Collier, Briana wrote: Looks good to me. Thanks. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave.. NW Ste.1800 Albuouerque. NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Dec 8, 2017 at 8:48 AM, Haugrud, Kevin wrote: Attached is the version with my proposed edits to respond to OGC's concerns. Please review (it won't take long) and let me know if you see any problems. I will send to Dan by 11:45 or so. Karen, I know you may not have had a chance to review by then, but the revisions are so minor I'm sure we can address any concerns you have later. "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Fri Dec 08 2017 10:48:38 GMT-0700 (MST) To: "Haugrud, Kevin" "Collier, Briana" "McNeer, Richard" CC: Gary Lawkowski Subject: Re: Revised Twin Op - quick review I that that? On Fri, Dec 8, 2017 at 12:03 PM, McNeer, Richard wrote: Jack: I have no better formulation. Richard On Fri, Dec 8, 2017 at 11:54 AM, Collier, Briana wrote: That sounds like a good solution to me. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Ma_rduette Ave.. NW Ste.1800 Albuguergue, NM 87102 Phone: (202) 2084853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Dec 8, 2017 at 9:51 AM. Haugrud, Kevin wrote: Folks: Garv has pointed out On Fri, Dec 8, 2017 at 11:15 AM, McNeer, Richard wrote: Jack and Gary: I have no edits or comments. Richard On Fri, Dec 8, 2017 at 11:01 AM, Collier, Briana wrote: Looks good to me. Thanks. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave.. NW Ste.1800 Albuguergue, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Dec 8, 2017 at 8:48 AM, Haugrud, Kevin wrote: Attached is the version with my proposed edits to respond to OGC's concerns. Please review (it won't take long) and let me know if you see any problems. I will send to Dan by 11:45 or so. Karen, I know you may not have had a chance to review by then, but the revisions are so minor I'm sure we can address any concerns you have later. "Lawkowski, Gary" From: "Lawkowski, Gary" Sent: Fri Dec 08 2017 11:27:34 GMT-0700 (MST) To: "Haugrud, Kevin" Subject: Re: Revised Twin Op - quick review I hate to keep askino questions. but Let me know if this makes sense, and what you think. Sincerely, Gary Lawkowski On Fri, Dec 8, 2017 at 11:51 AM, Hauqrud. Kevin wrote: Folks: Garv has pointed out that On Fri, Dec 8, 2017 at 11:15 AM, McNeer, Richard wrote: Jack and Gary: have no edits or comments. Richard On Fri, Dec 8, 2017 at 11:01 AM, Collier, Briana wrote: Looks good to me. Thanks. Briana Collier Attorney-Adviser. Division of Mineral Resources US. Department of the Interior, Office of the Solicitor 505 Marquette Ave. NW Ste.1800 Albuouerdue. NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying. or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Dec 8, 2017 at 8:48 AM, Haugrud, Kevin wrote: Attached is the version with my proposed edits to respond to OGC's concerns. Please review (it won't take long) and let me know if you see any problems. I will send to Dan by 11:45 or so. Karen, I know you may not have had a chance to review by then, but the revisions are so minor I'm sure we can address any concerns you have later. Gary Lawkowski Counselor to the Solicitor Department of the Interior Gary. Lawkowski@so/. doi. gov 202-208- 7340 "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Fri Dec 08 2017 12:11:42 GMT-0700 (MST) To: "Lawkowski, Gary" Subject: Re: Revised Twin Op - quick review Garv: On Fri, Dec 8, 2017 at 1:27 PM, Lawkowski, Garv wrote: I hate to keep asking questions, but Let me know if this makes sense, and what you think. Sincerely, Gary Lawkowski On Fri, Dec 8, 2017 at 11:51 AM. Hauqrud, Kevin wrote: Folks: Garv has pointed out On Fri, Dec 8, 2017 at 11:15 AM, McNeer, Richard wrote: Jack and Gary: have no edits or comments. Richard On Fri, Dec 8, 2017 at 11:01 AM, Collier, Briana wrote: Looks good to me. Thanks. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave. NW Ste.1800 Albuoueroue. NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Dec 8, 2017 at 8:48 AM, Haugrud, Kevin wrote: Attached is the version with my proposed edits to respond to OGC's concerns. Please review (it won't take long) and let me know if you see any problems. I will send to Dan by 11:45 or so. Karen, I know you may not have had a chance to review by then, but the revisions are so minor I'm sure we can address any concerns you have later. Gary Lawkowski Counselor to the Solicitor Department of the Interior GaryLawkowsk/Qsol. doi. gov 202?208- 7340 "Lawkowski, Gary" From: "Lawkowski, Gary" Sent: Fri Dec 08 2017 12:16:26 GMT-0700 (MST) To: "Haugrud, Kevin" Subject: Re: Revised Twin Op - quick review On the first point, got it, Ijust misread your last email. I apologize for the confusion. On the second point, I don't think the opinion rises or falls on that paragraph one way or the other, so if you think it works better the way it is, I'm not that worried about it. Sincerely, Gary Lawkowski On Fri, Dec 8, 2017 at 2:11 PM. Haugrud. Kevin wrote: Garv On Fri, Dec 8, 2017 at 1:27 PM, Lawkowski. Garv wrote: I hate to keep askind questions. but Let me know if this makes sense, and what you think. Sincerely, Gary Lawkowski On Fri, Dec 8, 2017 at 11:51 AM, Hauqrud, Kevin wrote: Folks: Garv has pointed out tha On Fri, Dec 8, 2017 at 11:15 AM, McNeer, Richard wrote: Jack and Gary: I have no edits or comments. Richard On Fri, Dec 8, 2017 at 11:01 AM, Collier, Briana wrote: Looks good to me. Thanks. Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Dec 8, 2017 at 8:48 AM, Haugrud, Kevin wrote: Attached is the version with my proposed edits to respond to OGC's concerns. Please review (it won't take long) and let me know if you see any problems. I will send to Dan by 11:45 or so. Karen, I know you may not have had a chance to review by then, but the revisions are so minor I'm sure we can address any concerns you have later. -Gary Lawkowski Counselor to the Solicitor Department of the Interior Gary.Lawkowski@sol.doi.gov 202-208-7340 -Gary Lawkowski Counselor to the Solicitor Department of the Interior Gary.Lawkowski@sol.doi.gov 202-208-7340 "Haugrud, Kevin" From: Sent: To: Subject: "Haugrud, Kevin" Fri Dec 08 2017 12:18:30 GMT-0700 (MST) Karen Hawbecker Fwd: Revised Twin Op - quick review I'm forwarding a sidebar conversation I'm having with Gary because I think I'm missing his point (on the ?rst issue discussed below) I'm sure he'll explain it in response, but I wanted to see if you shared his concern. -- FonNarded message From: Haugrud, Kevin Date: Fri, Dec 8, 2017 at 2:11 PM Subject: Re: Revised Twin Op - quick review To: "Lawkowski, Gary" Garv: On Fri, Dec 8, 2017 at 1:27 PM, Lawkowski, Garv wrote: I hate to keep asking questions. but Let me know if this makes sense, and what you think. Sincerely, Gary Lawkowski On Fri, Dec 8, 2017 at 11:51 AM, Haugrud, Kevin wrote: Folks: Gary has pointed out tha On Fri, Dec 8, 2017 at 11:15 AM, McNeer, Richard wrote: Jack and Gary: I have no edits or comments. Richard On Fri, Dec 8, 2017 at 11:01 AM, Collier, Briana wrote: Looks good to me. Thanks. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave. NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Dec 8, 2017 at 8:48 AM, Haugrud, Kevin wrote: Attached is the version with my proposed edits to respond to OGC's concerns. Please review (it won't take long) and let me know if you see any problems. I will send to Dan by 11:45 or so. Karen, I know you may not have had a chance to review by then, but the revisions are so minor I'm sure we can address any concerns you have later. Gary Lawkowsk/ Counselor to the Solicitor Department of the Interior doi. gov 202-208- 7340 "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Fri Dec 08 2017 12:25:34 GMT-0700 (MST) To: "Lawkowski, Gary" Subject: Re: Revised Twin Op - quick review On Fri, Dec 8, 2017 at 2:16 PM, Lawkowski, Gary wrote: On the first point, got it, just misread your last email. I apologize for the confusion. On the second point, I don't think the opinion rises or falls on that paragraph one way or the other, so if you think it works better the way it is, I'm not that worried about it. Sincerely, Gary Lawkowski On Fri, Dec 8. 2017 at 2:11 PM. Hauqrud, Kevin wrote: - On Fri, Dec 8, 2017 at 1:27 PM, Lawkowski. Garv wrote: I hate to keep asking questions, but Let me know if this makes sense, and what you think. Sincerely, Gary Lawkowski On Fri, Dec 8, 2017 at 11:51 AM, Haugrud, Kevin wrote: Folks: Garv has pointed out tha On Fri, Dec 8, 2017 at 11:15 AM, McNeer, Richard wrote: Jack and Gary: have no edits or comments. Richard On Fri, Dec 8, 2017 at 11:01 AM, Collier, Briana wrote: Looks good to me. Thanks. Briana Collier Attorney-Adviser. Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuouerque. NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged. con?dential. or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient. you are hereby noti?ed that any dissemination, distribution. copying. or use of this email or its contents is strictly prohibited. If you received this email in error. please notify the sender immediately and destroy all copies. On Fri, Dec 8, 2017 at 8:48 AM, Haugrud, Kevin wrote: Attached is the version with my proposed edits to respond to OGC's concerns. Please review (it won't take long) and let me know if you see any problems. I will send to Dan by 11:45 or so. Karen, I know you may not have had a chance to review by then, but the revisions are so minor I'm sure we can address any concerns you have later. Gary Lawkowski Counselor to the Solicitor Department of the Interior doi. gov 202-208- 7340 Gary Lawkowski Counselor to the Solicitor Department of the Interior doi. gov 202-208- 7340 "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Fri Dec 08 2017 12:26:44 GMT-0700 (MST) To: Karen Hawbecker Subject: Fwd: Revised Twin Op - quick review Karen: Turns out that Gary's okay with the current version. 80 follow-up exchange below. -- Forwarded message From: Haugrud, Kevin Date: Fri, Dec 8,2017 at 2:25 PM Subject: Re: Revised Twin Op - quick review To: "Lawkowski, Gary" On Fri, Dec 8, 2017 at 2:16 PM, Lawkowski, Gary wrote: On the first point, got it, just misread your last email. I apologize for the confusion. On the second point, I don't think the opinion rises or falls on that paragraph one way or the other, so if you think it works better the way it is, I'm not that worried about it. Sincerely, Gary Lawkowski On Fri, Dec 8. 2017 at 2:11 PM. Hauqrud. Kevin wrote: - On Fri, Dec 8, 2017 at 1:27 PM, Lawkowski. Gary wrote: I hate to keep askino questions. but Let me know if this makes sense, and what you think. Sincerely, Gary Lawkowski On Fri, Dec 8, 2017 at 11:51 AM, Hauqrud, Kevin wrote: Folks: Gary has pointed out that On Fri, Dec 8, 2017 at 11:15 AM, McNeer, Richard wrote: Jack and Gary: have no edits or comments. Richard On Fri, Dec 8, 2017 at 11:01 AM, Collier, Briana wrote: Looks good to me. Thanks. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave.. NW Ste.1800 Albuguergue, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential. or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Dec 8, 2017 at 8:48 AM, Haugrud, Kevin wrote: Attached is the version with my proposed edits to respond to OGC's concerns. Please review (it won't take long) and let me know if you see any problems. I will send to Dan by 11:45 or so. Karen, I know you may not have had a chance to review by then, but the revisions are so minor I'm sure we can address any concerns you have later. Gary Lawkowsk/ Counselor to the Solicitor Department of the Interior 202?208- 7340 Gary Lawkowski Counselor to the Solicitor Department of the Interior doi. gov 202-208- 7340 "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Fri Dec 08 2017 12:37:52 GMT-0700 (MST) To: "Haugrud, Kevin" Subject: Re: Revised Twin Op - quick review Okay. Glad it is resolved. On Fri, Dec 8, 2017 at 2:26 PM, Haugrud, Kevin wrote: Karen: Turns out that Gary's okay with the current version. So follow-up exchange below. -- Forwarded message From: Haugrud, Kevin Date: Fri, Dec 8,2017 at 2:25 PM Subject: Re: Revised Twin Op - quick review To: "Lawkowski, Gary" On Fri, Dec 8, 2017 at 2:16 PM, Lawkowski, Gary wrote: On the first point, got it, ljust misread your last email. I apologize for the confusion. On the second point, I don't think the opinion rises or falls on that paragraph one way or the other, so if you think it works better the way it is, I'm not that worried about it. Sincerely, Gary Lawkowski On Fri, Dec 8, 2017 at 2:11 PM, Haugrud, Kevin wrote: Gary: On Fri, Dec 8, 2017 at 1:27 PM, Lawkowski, Garv wrote: I hate to keep asking questions, but Let me know if this makes sense, and what you think. Sincerely, Gary Lawkowski On Fri, Dec 8, 2017 at 11:51 AM, Hauqrud, Kevin wrote: On Fri, Dec 8, 2017 at 11:15 AM, McNeer, Richard wrote: Jack and Gary: I have no edits or comments. Richard On Fri, Dec 8, 2017 at 11:01 AM, Collier, Briana wrote: Looks good to me. Thanks. Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Dec 8, 2017 at 8:48 AM, Haugrud, Kevin wrote: Attached is the version with my proposed edits to respond to OGC's concerns. Please review (it won't take long) and let me know if you see any problems. I will send to Dan by 11:45 or so. Karen, I know you may not have had a chance to review by then, but the revisions are so minor I'm sure we can address any concerns you have later. -Gary Lawkowski Counselor to the Solicitor Department of the Interior Gary.Lawkowski@sol.doi.gov 202-208-7340 -Gary Lawkowski Counselor to the Solicitor Department of the Interior Gary.Lawkowski@sol.doi.gov 202-208-7340 Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:27 PM Conversation Contents OGC comments on Twin Metals opinion Attachments: /38. OGC comments on Twin Metals opinion/1.1 11-29 Draft M-Opinion Attachment 1.pdf /38. OGC comments on Twin Metals opinion/1.2 11-29 Draft M-Opinion Attachment 2.pdf /38. OGC comments on Twin Metals opinion/1.3 11-29 Draft M-Opinion Attachment 3.pdf /38. OGC comments on Twin Metals opinion/1.4 Twin Metals -- Draft 11 29 17 -- OGC Comments.docx /38. OGC comments on Twin Metals opinion/2.1 11-29 Draft M-Opinion Attachment 1.pdf /38. OGC comments on Twin Metals opinion/2.2 11-29 Draft M-Opinion Attachment 2.pdf /38. OGC comments on Twin Metals opinion/2.3 11-29 Draft M-Opinion Attachment 3.pdf /38. OGC comments on Twin Metals opinion/2.4 Twin Metals -- Draft 11 29 17 -- OGC Comments.docx /38. OGC comments on Twin Metals opinion/11.1 image001.png /38. OGC comments on Twin Metals opinion/11.2 image002.png /38. OGC comments on Twin Metals opinion/12.1 image001.png /38. OGC comments on Twin Metals opinion/12.2 image002.png /38. OGC comments on Twin Metals opinion/13.1 image002.png /38. OGC comments on Twin Metals opinion/13.2 image001.png /38. OGC comments on Twin Metals opinion/16.1 image001.png /38. OGC comments on Twin Metals opinion/16.2 image002.png /38. OGC comments on Twin Metals opinion/18.1 image001.png /38. OGC comments on Twin Metals opinion/18.2 image002.png /38. OGC comments on Twin Metals opinion/19.1 image001.png /38. OGC comments on Twin Metals opinion/19.2 image002.png "Mulach, Ronald - OGC" From: Sent: To: CC: Subject: Attachments: "Mulach, Ronald - OGC" Thu Dec 07 2017 10:05:14 GMT-0700 (MST) "jack.haugrud@sol.doi.gov" , "Hawbecker, Karen (karen.hawbecker@sol.doi.gov)" "LINDEN, RALPH - OGC" OGC comments on Twin Metals opinion 11-29 Draft M-Opinion Attachment 1.pdf 11-29 Draft M-Opinion Attachment 2.pdf 11-29 Draft M-Opinion Attachment 3.pdf Twin Metals -- Draft 11 29 17 -- OGC Comments.docx Please see the attached OGC comments on the revised M opinion. Some of our comments regarding (b) (5) are repetitive and can probably be resolved with a paragraph? We’ll work on something and send it along. Let us know if you’d like to set up a call to discuss, thanks. This electronic message contains information generated by the USDA solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. "Haugrud, Kevin" From: Sent: To: CC: Subject: Attachments: "Haugrud, Kevin" Thu Dec 07 2017 11:24:31 GMT-0700 (MST) Briana Collier , Richard McNeer , Gary Lawkowski Daniel Jorjani , Karen Hawbecker Fwd: OGC comments on Twin Metals opinion 11-29 Draft M-Opinion Attachment 1.pdf 11-29 Draft M-Opinion Attachment 2.pdf 11-29 Draft M-Opinion Attachment 3.pdf Twin Metals -- Draft 11 29 17 -- OGC Comments.docx Attached are USDA's comments. If you have the time, I would appreciate receiving DMR's suggestions on whether/how to address the comments on the latest version by the end of the day. I see that at least one of their comments is addressed already in the new version. ---------- Forwarded message ---------From: Mulach, Ronald - OGC Date: Thu, Dec 7, 2017 at 12:05 PM Subject: OGC comments on Twin Metals opinion To: "jack.haugrud@sol.doi.gov" , "Hawbecker, Karen (karen.hawbecker@sol.doi.gov)" Cc: "LINDEN, RALPH - OGC" Please see the attached OGC comments on the revised M opinion. Some of our comments regarding (b) (5) are repetitive and can probably be resolved with a paragraph? We’ll work on something and send it along. Let us know if you’d like to set up a call to discuss, thanks. This electronic message contains information generated by the USDA solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. "Haugrud, Kevin" From: Sent: To: CC: Subject: "Haugrud, Kevin" Thu Dec 07 2017 11:27:41 GMT-0700 (MST) "Mulach, Ronald - OGC" , "LINDEN, RALPH - OGC" "Hawbecker, Karen (karen.hawbecker@sol.doi.gov)" , Mariagrazia Caminiti Re: OGC comments on Twin Metals opinion Thanks Ron. We'll take a look. Even if we don't need to discuss the draft, we should discuss next steps, so I'll ask Marigrace (copied) to find a time tomorrow for the four of us talk. On Thu, Dec 7, 2017 at 12:05 PM, Mulach, Ronald - OGC wrote: Please see the attached OGC comments on the revised M opinion. Some of our comments regarding (b) (5) are repetitive and can probably be resolved with a paragraph? We’ll work on something and send it along. Let us know if you’d like to set up a call to discuss, thanks. This electronic message contains information generated by the USDA solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. "Mulach, Ronald - OGC" From: Sent: To: CC: Subject: "Mulach, Ronald - OGC" Thu Dec 07 2017 11:32:38 GMT-0700 (MST) "Haugrud, Kevin" , "LINDEN, RALPH - OGC" "Hawbecker, Karen (karen.hawbecker@sol.doi.gov)" , Mariagrazia Caminiti RE: OGC comments on Twin Metals opinion Thanks. I am not available tomorrow; how does Monday afternoon or Tuesday look for you? From: Haugrud, Kevin [mailto:jack.haugrud@sol.doi.gov] Sent: Thursday, December 7, 2017 1:28 PM To: Mulach, Ronald - OGC ; LINDEN, RALPH - OGC Cc: Hawbecker, Karen (karen.hawbecker@sol.doi.gov) ; Mariagrazia Caminiti Subject: Re: OGC comments on Twin Metals opinion Thanks Ron. We'll take a look. Even if we don't need to discuss the draft, we should discuss next steps, so I'll ask Marigrace (copied) to find a time tomorrow for the four of us talk. On Thu, Dec 7, 2017 at 12:05 PM, Mulach, Ronald - OGC wrote: Please see the attached OGC comments on the revised M opinion. Some of our comments regarding (b) (5) are repetitive and can probably be resolved with a paragraph? We’ll work on something and send it along. Let us know if you’d like to set up a call to discuss, thanks. This electronic message contains information generated by the USDA solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. "Caminiti, Mariagrazia" From: Sent: To: CC: Subject: "Caminiti, Mariagrazia" Thu Dec 07 2017 11:42:14 GMT-0700 (MST) "Mulach, Ronald - OGC" "Haugrud, Kevin" , "LINDEN, RALPH - OGC" , "Hawbecker, Karen (karen.hawbecker@sol.doi.gov)" Re: OGC comments on Twin Metals opinion Ron, Ralph: What would work for you Monday afternoon? mg On Thu, Dec 7, 2017 at 1:32 PM, Mulach, Ronald - OGC wrote: Thanks. I am not available tomorrow; how does Monday afternoon or Tuesday look for you? From: Haugrud, Kevin [mailto:jack.haugrud@sol.doi.gov] Sent: Thursday, December 7, 2017 1:28 PM To: Mulach, Ronald - OGC ; LINDEN, RALPH - OGC Cc: Hawbecker, Karen (karen.hawbecker@sol.doi.gov) ; Mariagrazia Caminiti Subject: Re: OGC comments on Twin Metals opinion Thanks Ron. We'll take a look. Even if we don't need to discuss the draft, we should discuss next steps, so I'll ask Marigrace (copied) to find a time tomorrow for the four of us talk. On Thu, Dec 7, 2017 at 12:05 PM, Mulach, Ronald - OGC wrote: Please see the attached OGC comments on the revised M opinion. Some of our comments regarding (b) (5) are repetitive and can probably be resolved with a paragraph? We’ll work on something and send it along. Let us know if you’d like to set up a call to discuss, thanks. This electronic message contains information generated by the USDA solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. "LINDEN, RALPH - OGC" From: Sent: To: CC: Subject: "LINDEN, RALPH - OGC" Thu Dec 07 2017 11:46:13 GMT-0700 (MST) "Caminiti, Mariagrazia" "Mulach, Ronald - OGC" , "Haugrud, Kevin" , "Hawbecker, Karen (karen.hawbecker@sol.doi.gov)" Re: OGC comments on Twin Metals opinion Before 4 Ralph Linden Associate General Counsel Natural Resources and Environment Division Office of the General Counsel U.S. Department of Agriculture 202.720.6883 On Dec 7, 2017, at 1:43 PM, Caminiti, Mariagrazia wrote: Ron, Ralph: What would work for you Monday afternoon? mg On Thu, Dec 7, 2017 at 1:32 PM, Mulach, Ronald - OGC wrote: Thanks. I am not available tomorrow; how does Monday afternoon or Tuesday look for you? From: Haugrud, Kevin [mailto:jack.haugrud@sol.doi.gov] Sent: Thursday, December 7, 2017 1:28 PM To: Mulach, Ronald - OGC ; LINDEN, RALPH OGC Cc: Hawbecker, Karen (karen.hawbecker@sol.doi.gov) ; Mariagrazia Caminiti Subject: Re: OGC comments on Twin Metals opinion Thanks Ron. We'll take a look. Even if we don't need to discuss the draft, we should discuss next steps, so I'll ask Marigrace (copied) to find a time tomorrow for the four of us talk. On Thu, Dec 7, 2017 at 12:05 PM, Mulach, Ronald - OGC wrote: Please see the attached OGC comments on the revised M opinion. Some of our comments regarding (b) (5) are repetitive and can probably be resolved with a paragraph? We’ll work on something and send it along. Let us know if you’d like to set up a call to discuss, thanks. This electronic message contains information generated by the USDA solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. "Caminiti, Mariagrazia" From: Sent: To: "Caminiti, Mariagrazia" Thu Dec 07 2017 11:50:08 GMT-0700 (MST) "LINDEN, RALPH - OGC" "Mulach, Ronald - OGC" , "Haugrud, Kevin" , "Hawbecker, Karen (karen.hawbecker@sol.doi.gov)" Re: OGC comments on Twin Metals opinion CC: Subject: Let's set it for 1:00 p.m. I'll send an invite to you four and put a call-in number on the invitation. Thanks.mg On Thu, Dec 7, 2017 at 1:46 PM, LINDEN, RALPH - OGC wrote: Before 4 Ralph Linden Associate General Counsel Natural Resources and Environment Division Office of the General Counsel U.S. Department of Agriculture 202.720.6883 On Dec 7, 2017, at 1:43 PM, Caminiti, Mariagrazia wrote: Ron, Ralph: What would work for you Monday afternoon? mg On Thu, Dec 7, 2017 at 1:32 PM, Mulach, Ronald - OGC wrote: Thanks. I am not available tomorrow; how does Monday afternoon or Tuesday look for you? From: Haugrud, Kevin [mailto:jack.haugrud@sol.doi.gov] Sent: Thursday, December 7, 2017 1:28 PM To: Mulach, Ronald - OGC ; LINDEN, RALPH - OGC Cc: Hawbecker, Karen (karen.hawbecker@sol.doi.gov) ; Mariagrazia Caminiti Subject: Re: OGC comments on Twin Metals opinion Thanks Ron. We'll take a look. Even if we don't need to discuss the draft, we should discuss next steps, so I'll ask Marigrace (copied) to find a time tomorrow for the four of us talk. On Thu, Dec 7, 2017 at 12:05 PM, Mulach, Ronald - OGC wrote: Please see the attached OGC comments on the revised M opinion. Some of our comments regarding (b) (5) are repetitive and can probably be resolved with a paragraph? We’ll work on something and send it along. Let us know if you’d like to set up a call to discuss, thanks. This electronic message contains information generated by the USDA solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Thu Dec 07 2017 12:44:22 GMT-0700 (MST) To: "Mulach, Ronald - "Hawbecker, Karen CC: RALPH - Subject: Re: OGC comments on Twin Metals opinion I have now read through the comments quicklv and want to be sure we are in agreement on a basic point. I had thought a IS yOUl' Ion, correc . On Thu, Dec 7, 2017 at 12:05 PM, Mulach, Ronald - OGC wrote: Please see the attached OGC comments 011 the revised opinion. Some of our comments regarding- are repetitive and can probably be resolved with a paragraph? We'll work on something and send it along. Let us know if you?d like to set up a call to discuss, thanks. This electronic message contains information generated by the USDA solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. RALPH - From: RALPH - Sent: Thu Dec 07 2017 13:08:18 GMT-0700 (MST) To: "Haugrud, Kevin" "Mulach, Ronald - "Hawbecker, Karen Subject: Re: OGC comments on Twin Metals opinion CC: Ralph Linden Associate General Counsel Natural Resources and Environment Division Of?ce of the General Counsel US. Department of Agriculture 202.720.6883 On Dec 7, 2017, at 2:44 PM, Haugrud, Kevin wrote: I have now read through the comments quicklv and want to be sure we are in agreement on a basic point. I had thought On Thu, Dec 7, 2017 at 12:05 PM, Mulach, Ronald - OGC wrote: Please see the attached OGC comments on the revised opinion. Some of our comments regarding- are repetitive and can probably be resolved with a paragraph? We?ll work on something and send it along. Let us know if you?d like to set up a call to discuss, thanks. This electronic message contains information generated by the USDA solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Thu Dec 07 2017 13:28:22 GMT-0700 (MST) To: RALPH - "Mulach, Ronald CC: "Hawbecker, Karen Subject: Re: OGC comments on Twin Metals opinion Just to be sure I understand On Thu, Dec 7,2017 at 3:08 PM, LINDEN, RALPH - OGC wrote: Ralph Linden Associate General Counsel Natural Resources and Environment Division Of?ce of the General Counsel US. Department of Agriculture 202.720.6883 On Dec 7, 2017, at 2:44 PM, Haugrud, Kevin wrote: I have now read through the comments quickly and want to be sure we are in agreement on a basic point. I had thought a IS your Ion, correc . On Thu, Dec 7, 2017 at 12:05 PM, Mulach, Ronald - OGC wrote: Please see the attached OGC comments 011 the revised opinion. Some of our comments regarding -are repetitive and can probably be resolved with a paragraph? We?ll work on something and send it along. Let us know if you?d like to set up a call to discuss, thanks. This electronic message contains information generated by the USDA solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. RALPH - From: RALPH - Sent: Thu Dec 07 2017 13:33:11 GMT-0700 (MST) To: "Haugrud, Kevin" "Mulach, Ronald - CC: "Hawbecker, Karen Subject: RE: OGC comments on Twin Metals opinion Attachments: image001.png image002.png Personallv. I think If I agree, Cidjmg Ralph A. Linden Associate General Counsel U.S. Department of Agriculture Office of the General Counsel Natural Resources and Environment Division 1400 Independence Ave.. S.W.. Rm. 2018-8 Washington. DC 20250-1400 202-720-6883 (Voice) 202-905-9576 (Mobile) 1-844-354-1119 (Fax) Ralph.Linden@ogc.usda.gov From: Haugrud, Kevin Sent: Thursday, December 7, 2017 3:28 PM To: LINDEN, RALPH OGC Cc: Mulach, Ronald - OGC Hawbecker, Karen (karen.hawbecker@sol.doi.gov) Subject: Re: OGC comments on Twin Metals opinion Just to be sure I understand Ist at r1g t? On Thu. Dec 7. 2017 at 3:08 PM, LINDEN. RALPH - OGC wrote: Ralph Linden Associate General ormsel Natural Resources and Environment Division Of?ce of the General Counsel US. Department of Agriculttue 202.720.6883 a basic point. I had thought posmon, correct? On Thu. Dec 7, 2017 at 12:05 PM, Mulachi Ronald - OGC a? 0c .usda . oov> wrote: Please see the attached OGC comments on the revised opinion. Some of our comments regarding- are repetitive and can probany be resolved with a paragraph? We?ll work 011 something and send it along. Let us know if you?d like to set up a call to discuss, thanks. This electronic message contains information generated by the USDA solely for the intended recipients. Any lmauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in arm, please notify the sender and delete the email immediately. "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Thu Dec 07 2017 13:47:24 GMT-0700 (MST) To: RALPH - "Mulach, Ronald - CC: "Hawbecker, Karen Subject: Re: OGC comments on Twin Metals opinion Attachments: image001.png image002.png I think On Thu, Dec 7,2017 at 3:33 PM, LINDEN, RALPH - OGC wrote: Personallv. thin IS IS a QUIC C8 on cidjimg Ralph A. Linden Associate General Counsel U.S. Department of Agriculture Of?ce ofthe General Counsel Natural Resources and Environment Division 1400 Independence Ave.I S.W.I Rm. M-S Washington. DC 20250-1400 202-720-6883 (Voice) 202-905-9576 (Mobile) 1-844-354-1119 (Fax) From: Haugrud, Kevin Sent: Thursday, December 7, 2017 3:28 PM To: LINDEN, RALPH - OGC Cc: Mulach, Ronald - OGC Hawbecker, Karen sol.doi. ov> Subject: Re: OGC comments on Twin Metals opinion Just to be srn?e I understand . Is that right'.> On Thu. Dec 7. 2017 at 3:08 PM. LINDEN. RALPH - OGC (ii-Occusda.oov> wrote: Ralph Linden Associate General Counsel Natlu?al Resom'ces and Environment Division Of?ce of the General Counsel US. Department of Agriculture 202.720.6883 011 Dec 7. 2017. at 2:44 PM. Haugrud. Kevin <'ack.1 l.doi.oov> wrote: I have now read through the quicle and want to be sm?e we are in agreement on a basic point. I had thought rat is yom? posmon. correct? 011 Thu. Dec 7. 2017 at 12:05 PM. Mulach. Ronald - OGC (irooc.usda.oov> wrote: Please see the attached OGC comments on the revised opinion. ?We'll work on something and send it along. Let us know if you?d like to set up a call to discuss, thanks. This electronic message contains infonnation generated by the USDA solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the infonnation it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error. please notify the sender and delete the email inmlediately. "Haugrud, Kevin" From: Sent To: Subject: Attachments: "Haugrud, Kevin" Thu Dec 07 2017 13:57:21 GMT-0700 (MST) Daniel Jorjani Re: OGC comments on Twin Metals opinion image002.png image001.png Update on discussions with USDA's Of?ce of General Counsel. On Thu, Dec 7, 2017 at 3:47 PM. Hauqrud, Kevin wrote: I think On Thu, Dec 7,2017 at 3:33 PM, LINDEN, RALPH OGC wrote: Personallv. I think cidzime From: Haugrud, Sent: Thursday, Ralph A. Linden Associate General Counsel U.S. Department of Agriculture Office ofthe General Counsel Natural Resources and Environment Division 1400 Independence Ave.. S.W.. Rm. M-S Washington. DC 20250-1400 202-720-6883 (Voice) 202-905-9576 (Mobile) 1-844-354-1119 (Fax) Ralph.Linden?oac.usda.dov Kevin December 7, 2017 3:28 PM To: LINDEN, RALPH - OGC Cc: Mulach, Ronald - OGC Hawbecker, Karen Subject: Re: OGC comments on Twin Metals opinion Just to be sure I understand Is lat 1?1g 1t? On Thu. Dec 7. 2017 at 3:08 PM. LINDEN. RALPH - OGC (Llooc.usda.oov> wrote: Ralph Linden Associate General Counsel Natural Resom?ces and Environment Division Of?ce of the General Counsel US. Department of Agricultiu?e 202.720.6883 011 Dec 7. 2017. at 2:44 PM. Haugrud. Kevin wrote: I have now read through the quicle and want to be s1u?e we are in agreement on a basic point. I had thought at IS yoru? pos1t10n. correct? 011 Thu. Dec 7. 2017 at 12:05 PM. Mulach. Ronald - OGC wrote: Please see the attached OGC comments on the revised opinion. Some of our comments regarding- are repetitive and can probany be resolved with a paragraph? We'll work 011 something and send it along. Let us know if you'd like to set up a call to discuss, thanks. This electronic message contains information generated by the USDA solely for the intended recipients. Any imauthorized interception of this message or the use or disclosm?e of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error. please notify the sender and delete the email irmnediately. Daniel Jorjani From: Daniel Jorjani Sent: Thu Dec 07 2017 14:09:17 GMT-0700 (MST) To: "Haugrud, Kevin" Subject: Re: OGC comments on Twin Metals opinion Agreed. Anything else? Sent from my iPhone On Dec 7, 2017, at 3:57 PM, Haugrud, Kevin wrote: Update on discussions with USDA's Of?ce of General Counsel. On Thu, Dec 7, 2017 at 3:47 PM, Haugrud, Kevin wrote: I think ea ressmg perpe U3 mg 0 renew, an a as a rea een one. On Thu, Dec 7,2017 at 3233 PM, LINDEN, RALPH - OGC wrote: Personally. I think that Ralph A. Linden Associate General Counsel U.S. Department of Agriculture Of?ce ofthe General Counsel Natural Resources and Environment Division 1400 Independence Ave.. S.W.. Rm. M-S Washington. DC 20250-1400 202-720-6883 (Voice) 202-905-9576 (Mobile) 1-844-354-1119 (Fax) Ralph.Linden?ooc.usda.dov From: Haugrud, Kevin Sent: Thursday, December 7, 2017 3:28 PM To: LINDEN, RALPH - OGC Cc: Mulach, Ronald - OGC Hawbecker, Karen (karen.hawbecker@sol.doi.dov) Subject: Re: OGC comments on Twin Metals opinion Just to be sm?e I understand Is at mg 1t? On Thu. Dec 7. 2017 at 3:08 PM. LINDEN. RALPH - OGC wrote: Ralph Linden Associate General Counsel Natural Resources and Environment Division Office of the General Com1sel U.S. Depaitment of Agriculture 202.720.6883 On Dec 7. 2017. at 2:44 PM, Haugmd. Kevin wrote: I have now read through the comments quickly and want to be sm?e we are in agreement on a basic point. I had though On Thu. Dec 7, 2017 at 12:05 PM. Mulach. Ronald - OGC wrote: Please see the attached OGC comments on the revised opinion. Some of our comments regarding- are repetitive and can probany be resolved with a paragraph? We'll work 011 something and send it along. Let us know if you'd like to set up a call to discuss, thanks. This electronic message contains information generated by the USDA solely for the intended recipients. Any unauthorized interception of this message or the use or disclosru'e of the information it contains may violate the law and subject the Violator to civil or criminal penalties. If you believe you have received this message in arm, please notify the sender and delete the email immediately. "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Thu Dec 07 2017 14:24:16 GMT-0700 (MST) To: Daniel Jorjani Subject: Re: OGC comments on Twin Metals opinion Yes, there are other comments we need to work through. I will have a new version this evening or early tomorrow morning that takes into account their comments to the extent we think revisions are needed. On Thu, Dec 7, 2017 at 4:09 PM, Daniel Jorjani wrote: Agreed. . Anything else? Sent from my iPhone On Dec 7, 2017, at 3:57 PM, Haugrud, Kevin wrote: Update on discussions with USDA's Of?ce of General Counsel. On Thu, Dec 7, 2017 at 3:47 PM, Haugrud, Kevin wrote: I think On Thu, Dec 7,2017 at 3:33 PM, LINDEN, RALPH - OGC wrote: Personallv. I think Ralph A. Linden Associate General Counsel U.S. Department of Agriculture Office ofthe General Counsel Natural Resources and Environment Division 1400 Independence Ave., S.W., Rm. M-S Washington. DC 20250-1400 202-720-6883 (Voice) 202-905-9576 (Mobile) 1-844-354-1119 (Fax) Ralph.Linden@ogc.usda.gov From: Haugrud, Kevin Sent: Thursday, December 7, 2017 3:28 PM To: LINDEN, RALPH - OGC Cc: Mulach, Ronald - OGC Hawbecker, Karen sol.doi. ov> Subject: Re: OGC comments on Twin Metals opinion Just to be sure I understand Is iat rig it? On Thu. Dec 7, 2017 at 3:08 PM. LINDEN. RALPH - OGC (ii'oocnsda. oov> wrote: Ralph Linden Associate General Counsel Natiu?al Resources and Environment Division Of?ce of the General Counsel US. Department of Agricultiu?e 202.720.6883 On Dec 7. 2017? at 2:44 PM. Haugiud. Kevin (isol.doi.oov> wrote: I have now read through the comments quickly and want to be sure we are in agreement on a basic point. I had thought rat is yoru? pos1t10n, correct? On Thu. Dec 7, 2017 at 12:05 PM, Mulach, Ronald - OGC . gc .usda . gov> wrote: Please see the attached OGC comments on the revised opinion. We'll work 011 something and send it along. Let us know if you?d like to set up a call to discuss, thanks. This electronic message contains infonnation generated by the USDA solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error. please notify the sender and delete the email immediately. "Mulach, Ronald - From: "Mulach, Ronald - Sent: Thu Dec 07 2017 14:26:36 GMT-0700 (MST) To: "Haugrud, Kevin" RALPH - "Hawbecker, Karen Subject: RE: OGC comments on Twin Metals opinion Attachments: image001.png image002.png We drafted a paragraph that?s consistent with the government?s position in ranconia Minerals, and, if '5 again ort 1e opportunity to 16? an 211'1 INSERT: From: Haugrud, Kevin Sent: Thursday, December 7, 2017 3:47 PM To: LINDEN, RALPH OGC Cc: Mulach, Ronald - OGC Hawbecker, Karen (karen.hawbecker@sol.doi.gov) Subject: Re: OGC comments on Twin Metals opinion I think the best approach is On Thu. Dec 7. 2017 at 3:33 PM, LINDEN. RALPH - OGC wrote: Personallv. I think agree, In IS IS a QUIC ca on on ay. Cidgimg Ralph A. Linden Associate General Counsel U.S. Department of Agriculture Office of the General Counsel Natural Resources and Environment Division 1400 Independence Ave.. S.W.. Rm. 2018-8 Washington. DC 20250-1400 202-720-6883 (Voice) 202-905-9576 (Mobile) 1-844-354-1119 (Fax) Ralph.Linden@ogc.usda.gov From: Haugrud, Kevin Sent: Thursday, December 7, 2017 3:28 PM To: LINDEN, RALPH - OGC Cc: Mulach, Ronald - OGC Hawbecker, Karen (karen.hawbecker@sol.doi.dov) Subject: Re: OGC comments on Twin Metals opinion Just to be sm?e I understand Is t1at mg 1t? 011 Thu. Dec 7. 2017 at 3:08 PM. LINDEN. RALPH - OGC wrote: Ralph Linden Associate General ormsel Natural Resoru'ces and Enviromnent Division Of?ce of the General Counsel US. Department of Agriculture 202.720.6883 On Dec 7, 2017, at 2:44 Haugrud. Kevin 11d(axsol.doi.gov> wrote: I have now read through the comments quicle and want to be sm?e we are in agreement 011 a basic point. I had thought at is yoru? pos1tion, correct? On Thu, Dec 7, 2017 at 12:05 PM, Mulach, Ronald - OGC . MULAC 0 2c .usda . gov> wrote: Please see the attached OGC comments on the revised opinion. ?We?ll work 011 something and send it along. Let us know if you?d like to set up a call to discuss, thanks. This electronic message contains information generated by the USDA solely for the intended recipients. Any unauthorized interception of this message or the use or disclosrn?e of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. [11 Utah Power Light Co. v. United States, 243 US. 387, 404 (1917). [31 Southern Pac. Co. v. Olympian Dredging 260 US 205, 208 (1922) (?The power to approve implies the power to disapprove and the power to disapprove necessarily includes the lesser power to condition an approval"). Daniel Jorjani From: Daniel Jorjani Sent: Thu Dec 07 2017 14:28:15 GMT-0700 (MST) To: "Haugrud, Kevin" CC: gary.lawkowski@sol.doi.gov Subject: Re: OGC comments on Twin Metals opinion For a DOI women,? Sent from my iPhone On Dec 7, 2017, at 4:24 PM, Haugrud, Kevin wrote: Yes, there are other comments we need to work through. On Thu, Dec 7, 2017 at 4:09 PM, Daniel Jorjani wrote: Agreed. Irrelevant for our purposes. Anything else? Sent from my iPhone On Dec 7, 2017, at 3:57 PM, Haugrud, Kevin wrote: Update on discussions with USDA's Of?ce of General Counsel. I On Thu, Dec 7,2017 at 3:47 PM, Haugrud, Kevin wrote: I think On Thu, Dec 7,2017 at 3:33 PM, LINDEN, RALPH - OGC wrote: Personallv. I think Ralph A. Linden Associate General Counsel U.S. Department of Agriculture Office of the General Counsel Natural Resources and Environment Division 1400 Independence Ave.. S.W.. Rm. M-S Washington. DC 20250-1400 202-720-6883 (Voice) 202-905-9576 (Mobile) 1-844-354-1119 (Fax) Ralph.Linden@oqc.usda.qov From: Haugrud, Kevin Sent: Thursday, December 7, 2017 3:28 PM To: LINDEN, RALPH - OGC Cc: Mulach, Ronald - OGC Hawbecker, Karen (karen.hawbecker@sol.doi.gov) Subject: Re: OGC comments on Twin Metals opinion Just to be sm?e I luiderstand On Thu, Dec 7? 2017 at 3:08 PM, LINDEN, RALPH - OGC (il'ooc.usda.oov> wrote: Ralph Linden Associate General Counsel Natural Resources and Envirormient Division Of?ce of the General Counsel U.S. Depamnent of Agricultlu?e 202.720.6883 On Dec 7? 2017. at 2:44 PM. Haugnld, Kevin <'ack.hauomd wrote: I have 110w read through the comments quickly and want to be sure we are in agreement on a basic point. I had lat 18 your pos1t10n. c01rect? 011 Thu. Dec 7. 2017 at 12:05 PM, Mulach. Ronald - OGC . 0 9c .usda . g0v> wrote: Please see the attached OGC comments 011 the opinion. We'll work on something and send it along. Let us know if you?d like to set up a call to discuss, thanks. This electronic message contains information generated by the USDA solely for the intended recipients. Any unauthorized interception of this message or the use or disclosm?e of the infonnation it contains may violate the law and subject the Violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. "Haugrud, Kevin" From: Sent To: CC: Subject: Attachments: "Haugrud, Kevin" Thu Dec 07 2017 14:46:47 GMT-0700 (MST) "Mulach, Ronald - RALPH - "Hawbecker, Karen Re: OGC comments on Twin Metals opinion image001.png image002.png So as not to unintentionally mislead anyone, I am under instructions to provide a ?nished draft tomorrow morning to the Acting Solicitor. I viewed the Monday call as more of a next steps discussion. I don't think he will issue the opinion before our call, but I cannot promise that. On Thu, Dec 7,2017 at 4:26 PM, Mulach, Ronald - OGC wrote: We drafted a paragraph that's consistent with the government?s position in ranconia Minerals, and, Utah Power Light Co. v. United States, 243 US. 387, 404 (1917). Southern Pac. Co. v. Olympian Dredging 260 US. 205, 208 (1922) (?The power to approve implies the power to disapprove and the power to disapprove necessarily includes the lesser power to condition an approval"). From: Haugrud, Kevin Sent: Thursday, December 7, 2017 3:47 PM To: LINDEN, RALPH - OGC Cc: Mulach, Ronald - OGC Hawbecker, Karen (karen.hawbecker@sol.doi.qov) Subject: Re: OGC comments on Twin Metals opinion I think On Thu. Dec 7. 2017 at 3:33 PM: LINDEN. RALPH - OGC {(7000.113da.00V> wrote: Personallv. I think Cidjmg Ralph A. Linden Associate General Counsel Department of Agriculture Office of the General Counsel Natural Resources and Environment Division 1400 Independence Ave.. S.W.. Rm. M-S Washington. DC 20250-1400 202-720-6883 (Voice) 202-905-9576 (Mobile) 1-844-354-1119 (Fax) Ralph.Linden@ogc.usda.gov From: Haugrud, Kevin Sent: Thursday, December 7, 2017 3:28 PM To: LINDEN, RALPH - OGC Cc: Mulach, Ronald - OGC Hawbecker, Karen (karen.hawbecker@sol.doi.gov) Subject: Re: OGC comments on Twin Metals opinion Just to be sure I lmderstand Is that right? 011 Thu. Dec 7. 2017 at 3:08 PM. LINDEN. RALPH - OGC wrote: Ralph Linden Associate General ounsel Nattu?al Resoru?ces and Envirormlent Division Of?ce of the General Counsel US. Department of Agriculture 202.720.6883 On Dec 7. 2017. at 2:44 PM. Haugiud. Kevin wrote: I have now read through the comments quicle and want to be sru'e we are in agreement on a basic point. I had thought at IS yoru? posmon. correct? On Thu. Dec 7. 2017 at 12:05 PM. Mulach. Ronald - OGC (zlooc.usda.oov> wrote: Please see the attached OGC comments on the revised opinion. - We?ll work 011 something and send it along. Let us know if you'd like to set up a call to discuss, thanks. This electronic message contains infonnation generated by the USDA solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the infonnation it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error. please notify the sender and delete the email immediately. [11 Utah Power Light Co. v. United States, 243 US. 387, 404 (1917). [21 Southern Pac. Co. v. Olympian Dredging Co., 260 US. 205, 208 (1922) (?The power to approve implies the power to disapprove and the power to disapprove necessarily includes the lesser power to condition an RALPH - From: RALPH - Sent: Thu Dec 07 2017 14:49:57 GMT-0700 (MST) To: "Haugrud, Kevin" "Mulach, Ronald - CC: "Hawbecker, Karen Subject: Re: OGC comments on Twin Metals opinion Attachments: image001.png image002.png Ralph Linden Associate General Counsel Natural Resources and Environment Division Of?ce of the General Counsel US. Department of Agriculture 202.720.6883 On Dec 7, 2017, at 4:47 PM, Haugrud, Kevin wrote: So as not to unintentionally mislead anyone, I am under instructions to provide a ?nished draft tomorrow morning to the Acting Solicitor. I viewed the Monday call as more of a next steps discussion. I don't think he will issue the opinion before our call, but I cannot promise that. On Thu, Dec 7, 2017 at 4:26 PM, Mulach, Ronald - OGC wrote: We drafted a paragraph that's consistent with the government?s position in i'anconia Minerals, and, From: Haugrud, Kevin Sent: Thursday, December 7, 2017 3:47 PM To: LINDEN, RALPH - OGC Cc: Mulach, Ronald - OGC Hawbecker, Karen (karen.hawbecker@sol.doi.gov) Subject: Re: OGC comments on Twin Metals opinion I think 'essme 1e pelpetua 1?12 It to renew. an tlat 188 a ?ea 011 Thu. Dec 7. 2017 at 3:33 PM, LINDEN. RALPH - OGC wrote: Personallv. thin Ralph A. Linden Associate General Counsel U.S. Department of Agriculture Of?ce ofthe General Counsel Natural Resources and Environment Division 1400 Independence Ave., Rm. M-S Washington. DC 20250-1400 202-720-6883 (Voice) 202-905-9576 (Mobile) 1-844-354-1119 (Fax) From: Haugrud, Kevin Sent: Thursday, December 7, 2017 3:28 PM To: LINDEN, RALPH - OGC Cc: Mulach, Ronald - OGC Hawbecker, Karen (karen.hawbecker@sol.doi.gov) Subject: Re: OGC comments on Twin Metals opinion Just to be sure I understand Is lat rig it? On Thu. Dec 7, 2017 at 3:08 PM. LINDEN, RALPH - OGC (liooc.usda.oov> wrote: Ralph Linden Associate General Counsel Natural Resources and Environment Division Of?ce of the General Counsel US. Department of Agricultlu?e 202.720.6883 011 Dec 7? 2017. at 2:44 PM. Haugmd. Kevin <'ack.ha1 101'lld wrote: I have now read through the conmients quickly and want to be s1u?e we are in agreement on a basic point. I had thought yom' position. con'ect? 011 Thu. Dec 7. 2017 at 12:05 PM, Mulach. Ronald - OGC 0 gc.11sda.gov> wrote: Please see the attached OGC comments 011 the revised opnnon. We'll work 011 something and send it along. Let us know if you'd like to set up a call to discuss, thanks. This electronic message contains information generated by the USDA solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. L11 Utah Power Light Co. v. United States, 243 US. 387, 404 (1917). [21 Southern Pac. Co. v. Olympian Dredging Co., 260 US. 205, 208 (1922) (?The power to approve implies the power to disapprove and the power to disapprove necessarily includes the lesser power to condition an approval"). "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Thu Dec 07 2017 15:13:45 GMT-0700 (MST) To: RALPH - "Mulach, Ronald - CC: "Hawbecker, Karen Subject: Re: OGC comments on Twin Metals opinion I agree that nee ovet I up ec am. Thu, Dec 7,2017 at 4:49 PM, LINDEN, RALPH - OGC wrote: Ralph Linden Associate General Counsel Natural Resources and Environment Division Of?ce of the General Counsel US. Department of Agriculture 202.720.6883 On Dec 7, 2017, at 4:47 PM, Haugrud, Kevin wrote: So as not to unintentionally mislead anyone, I am under instructions to provide a ?nished draft tomorrow morning to the Acting Solicitor. I viewed the Monday call as more of a next steps discussion. I don't think he will issue the opinion before our call, but I cannot promise that. On Thu, Dec 7, 2017 at 4:26 PM, Mulach, Ronald - OGC wrote: We drafted a paragraph that?s consistent with the government?s position in I'anconia Alinerals, and, . 1am {5 again tor 1e opportunity to review 1e opinion an tor your aritications. INSERT: From: Haugrud, Kevin Sent: Thursday, December 7, 2017 3:47 PM To: LINDEN, RALPH - OGC Cc: Mulach, Ronald - OGC Hawbecker, Karen (karen.hawbecker@sol.doi.gov) Subject: Re: OGC comments on Twin Metals opinion I think 011 Thu. Dec 7, 2017 at 3:33 PM, LINDEN. RALPH - OGC wrote: Personallv. I think that Ralph A. Linden Associate General Counsel U.S. Department of Agriculture Of?ce of the General Counsel Natural Resources and Environment Division 1400 Independence Ave., S.W., Rm. 2018-S Washington. DC 20250-1400 202-720-6883 (Voice) 202-905-9576 (Mobile) 1-844-354-1119 (Fax) Ralph.Linden@ogc.usda.gov From: Haugrud, Kevin Sent: Thursday, December 7, 2017 3:28 PM To: LINDEN, RALPH - OGC Cc: Mulach, Ronald - OGC Hawbecker, Karen (karen.hawbecker@sol.doi.gov) Subject: Re: OGC comments on Twin Metals opinion Just to be sm?e I understand Is t1atr1g 1t? 011 Thu. Dec 7. 2017 at 3:08 LINDEN. RALPH OGC wrote: Ralph Linden Associate General Counsel Natural Resources and Envirormient Division Of?ce of the General Counsel US. Department of Agriculture 202.720.6883 011 Dec 7. 2017. at 2:44 PM, Haugrud. Kevin wrote: I have now read through the comments quickly and want to be sure we are in agreement on a basic point. I had thought T !at lS yom? posrtron, correct? On Thu, Dec 7. 2017 at 12:05 PM. Mulach, Ronald - OGC .usda. gov> wrote: Please see the attached OGC comments on the revised opinion. We'll work 011 something and send it along. Let us know if you'd like to set up a call to discuss, thanks. This electronic message contains information generated by the USDA solely for the intended recipients. Any imauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email [11 Utah Power Light Co. v. United States, 243 US. 387, 404 (1917). [21 Southern Pac. Co. v. Olympian Dredging Co., 260 US. 205, 208 (1922) (?The power to approve implies the power to disapprove and the power to disapprove necessarily includes the lesser power to condition an approval"). RALPH - From: RALPH - Sent: Thu Dec 07 2017 15:16:41 GMT-0700 (MST) To: "Haugrud, Kevin" "Mulach, Ronald - CC: "Hawbecker, Karen Subject: Re: OGC comments on Twin Metals opinion Thanks! Ralph Linden Associate General Counsel Natural Resources and Environment Division Of?ce of the General Counsel US. Department of Agriculture 202.720.6883 On Dec 7, 2017, at 5:15 PM, Haugrud, Kevin wrote: I agree that Thu, Dec 7, 2017 at 4:49 PM, LINDEN, RALPH - OGC wrote: Could we Ralph Linden Associate General Counsel Natural Resources and Environment Division Of?ce of the General Counsel US. Department of Agriculture 202.720.6883 On Dec 7, 2017, at 4:47 PM, Haugrud, Kevin wrote: So as not to unintentionally mislead anyone, I am under instructions to provide a ?nished draft tomorrow morning to the Acting Solicitor. I viewed the Monday call as more of a next steps discussion. I don't think he will issue the opinion before our call, but I cannot promise that. On Thu, Dec 7,2017 at 4:26 PM, Mulach, Ronald - OGC wrote: We drafted a paragraph that's consistent with the government?s position in Franconia Minerals, and, ran '5 again tor 1e opportunity to review 1e opinion an tor your Clari?cations. INSERT: From: Haugrud, Kevin Sent: Thursday, December 7, 2017 3:47 PM To: LINDEN, RALPH - OGC Cc: Mulach, Ronald - OGC Hawbecker, Karen (karen.hawbecker@sol.doi.gov) Subject: Re: OGC comments on Twin Metals opinion I think On Thu. Dec 7. 2017 at 3:33 PM, LINDEN. RALPH - OGC .usda . gov> wrote: Personallv. I think tha Ralph A. Linden Associate General Counsel U.S. Department of Agriculture Of?ce ofthe General Counsel Natural Resources and Environment Division 1400 Independence Ave., S.W., Rm. 2018-8 Washington. DC 20250-1400 202-720-6883 (Voice) 202-905-9576 (Mobile) 1-844-354-1119 (Fax) From: Haugrud, Kevin Sent: Thursday, December 7, 2017 3:28 PM To: LINDEN, RALPH - OGC Cc: Mulach, Ronald - OGC Hawbecker, Karen (karen.hawbecker@sol.doi.gov) Subject: Re: OGC comments on Twin Metals opinion Just to be sm?e I understand at rig t? On Thu. Dec 7.. 2017 at 3:08 PM, LINDEN. RALPH - OGC wrote: Ralph Linden Associate General Counsel Natural Resom?ces and Environment Division Of?ce of the General Counsel US. Department of Agriculture 202.720.6883 On Dec 7. 2017? at 2:44 PM. Haugnld. Kevin wrote: I have now read through the quickly and want to be sure we are in agreement on a basic point. I had thought hat is your position? con?ect? On Thu. Dec 7, 2017 at 12:05 PM, Mulach. Ronald - OGC gov> wrote: Please see the attached OGC comments 011 the revised opinion. We'll work 011 something and send it along. Let us know if you'd like to set up a call to discuss, thanks. This electronic message contains information generated by the USDA solely for the intended recipients. Any Imauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. [11 Utah Power Light Co. v. United States, 243 US. 387, 404 (1917). [21 Southern Pac. Co. v. Olympian Dredging Co., 260 US. 205, 208 (1922) (?The power to approve implies the power to disapprove and the power to disapprove necessarily includes the lesser power to condition an approval"). Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:28 PM Conversation Contents 2017.12.06 Twin Metals -- Draft Final Redline Attachments: /39. 2017.12.06 Twin Metals -- Draft Final Redline/1.1 2017.12.06 Twin Metals -- Draft Final Redline.docx Karen Hawbecker From: Sent: To: Subject: Attachments: Karen Hawbecker Thu Dec 07 2017 07:03:42 GMT-0700 (MST) Jack Haugrud 2017.12.06 Twin Metals -- Draft Final Redline 2017.12.06 Twin Metals -- Draft Final Redline.docx Jack, See my suggested edits in footnote 40. Those are my only proposed further edits. Thank you. —Karen Sent from my iPad "Haugrud, Kevin" From: Sent: To: Subject: "Haugrud, Kevin" Thu Dec 07 2017 07:51:34 GMT-0700 (MST) Karen Hawbecker Re: 2017.12.06 Twin Metals -- Draft Final Redline Thanks. I'm going to accept all edits, give a quick proofread, and send it off to Dan (who will then send it on to David no doubt). On Thu, Dec 7, 2017 at 9:03 AM, Karen Hawbecker wrote: Jack, See my suggested edits in footnote 40. Those are my only proposed further edits. Thank you. —Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:28 PM Conversation Contents Twin Metals Clean Version Attachments: /40. Twin Metals Clean Version/1.1 Twin Metals -- Draft Final Clean 12 5 2017.docx /40. Twin Metals Clean Version/5.1 2017.12.06 Twin Metals -- Draft Final Clean 12 5 2017+bwc rhm ksh (1) steve.docx /40. Twin Metals Clean Version/6.1 2017.12.06 Twin Metals -- Draft Final Redline.docx "Haugrud, Kevin" From: Sent: To: CC: Subject: Attachments: "Haugrud, Kevin" Tue Dec 05 2017 10:38:55 GMT-0700 (MST) Karen Hawbecker , Briana Collier , Richard McNeer , Gary Lawkowski Mariagrazia Caminiti Twin Metals Clean Version Twin Metals -- Draft Final Clean 12 5 2017.docx Here's a clean version of the draft opinion that has been cleared by Dan. Let's use this one for any additional edits. Karen, we should probably have Steve do one more cite-check before we go final. I'm copying Marigrace as well. "Hawbecker, Karen" From: Sent: To: CC: Subject: "Hawbecker, Karen" Tue Dec 05 2017 10:39:39 GMT-0700 (MST) "Haugrud, Kevin" Briana Collier , Richard McNeer , Gary Lawkowski , Mariagrazia Caminiti Re: Twin Metals Clean Version Okay. I'll send it to Steve now. --Karen On Tue, Dec 5, 2017 at 12:38 PM, Haugrud, Kevin wrote: Here's a clean version of the draft opinion that has been cleared by Dan. Let's use this one for any additional edits. Karen, we should probably have Steve do one more cite-check before we go final. I'm copying Marigrace as well. "Hawbecker, Karen" From: Sent: To: CC: Subject: "Hawbecker, Karen" Tue Dec 05 2017 18:29:12 GMT-0700 (MST) "Haugrud, Kevin" Briana Collier , Richard McNeer , Gary Lawkowski , Mariagrazia Caminiti Re: Twin Metals Clean Version ​Jack, Briana, Richard, and I have reviewed the latest version and noted our combined edits in the same document. Steve is going to cite-check that version first thing in the morning. We plan to send you our feedback by mid-day tomorrow. ​ --Karen On Tue, Dec 5, 2017 at 12:38 PM, Haugrud, Kevin wrote: Here's a clean version of the draft opinion that has been cleared by Dan. Let's use this one for any additional edits. Karen, we should probably have Steve do one more cite-check before we go final. I'm copying Marigrace as well. Kevin Haugrud From: Sent: To: CC: Subject: Kevin Haugrud Tue Dec 05 2017 18:49:01 GMT-0700 (MST) "Hawbecker, Karen" Briana Collier , Richard McNeer , Gary Lawkowski , Mariagrazia Caminiti Re: Twin Metals Clean Version Sounds good. Thanks. From: Hawbecker, Karen Sent: Tuesday, December 5, 2017 8:29 PM To: Haugrud, Kevin Cc: Briana Collier; Richard McNeer; Gary Lawkowski; Mariagrazia Caminiti Subject: Re: Twin Metals Clean Version ​Jack, Briana, Richard, and I have reviewed the latest version and noted our combined edits in the same document. Steve is going to cite-check that version first thing in the morning. We plan to send you our feedback by mid-day tomorrow. ​ --Karen On Tue, Dec 5, 2017 at 12:38 PM, Haugrud, Kevin wrote: Here's a clean version of the draft opinion that has been cleared by Dan. Let's use this one for any additional edits. Karen, we should probably have Steve do one more cite-check before we go final. I'm copying Marigrace as well. "Collier, Briana" From: "Collier, Briana" Sent: Wed Dec 06 2017 13:56:18 GMT-0700 (MST) To: "Haugrud, Kevin" "Hawbecker, Karen" "McNeer, Richard" Subject: Re: Twin Metals Clean Version 2017.12.06 Twin Metals -- Draft Final Clean 12 5 2017+bwc (1) steve.docx CC: Attachments: Jack, Here is the Twin Metals M-Opinion with DMR's combined edits. Please let us know of any questions or concerns. Thankyou, Bnana Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Wed, Dec 6, 2017 at 1:13 PM, Hawbecker, Karen wrote: Briana, Here's the memo with all of our combined edits. Please see the four or ?ve notes from Steve regarding documents he didn?t have to make sure the citations are correct. As we discussed, once you've gone through it, please share the new draft with Jack, Richard, Steve, and me. Thank you. --Karen On Wed, Dec 6, 2017 at 10:01 AM, Collier, Briana wrote: Thanks Karen. was suqqestinq Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Ma_rduette Ave.. NW Ste.1800 AlbuguergueI NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Tue, Dec 5, 2017 at 6:20 PM, Hawbecker, Karen wrote: Briana, I reviewed the version that Richard sent with his comment included and added my edits. This version now has all of our combined DMR edits before Steve's review. Please see my question in your comment on page 18. Steve, Please review this version for cite checking. Thank you. --Karen On Tue, Dec 5, 2017 at 5:33 PM, McNeer, Richard wrote: Briana: I made only one comment on p.4. Thanks, Richard On Tue, Dec 5, 2017 at 2:04 PM, Collier, Briana wrote: Here is the version Jack sent at 12:30 with my comments added. I had just a few comments/deletions addressing tone, as well as a couple grammatical and formatting chances. Please let me know of any other assistance I can provide on this. Thank you. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave.. NW Ste.1800 AlbuguergueI NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Tue, Dec 5, 2017 at 10:39 AM, Hawbecker, Karen wrote: Okay. I'll send it to Steve now. ?Karen On Tue, Dec 5, 2017 at 12:38 PM, Haugrud, Kevin wrote: Here's a clean version of the draft opinion that has been cleared by Dan. Let's use this one for any additional edits. Karen, we should probably have Steve do one more cite-check before we go ?nal. I'm copying Marigrace as well. "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Wed Dec 06 2017 17:43:50 GMT-0700 (MST) To: "Hawbecker, Karen" Subject: Re: Twin Metals Clean Version Attachments: 2017.12.06 Twin Metals -- Draft Final Redline.docx Karen: Here's a version that shows my additional edits. On Wed, Dec 6, 2017 at 3:56 PM, Collier, Briana wrote: Jack, Here is the Twin Metals M-Opinion with DMR's combined edits. Please let us know of any questions or concerns. Thankyou, Bnana Briana Collier Attomey-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Wed, Dec 6, 2017 at 1:13 PM, Hawbecker, Karen wrote: Briana, Here's the memo with all of our combined edits. Please see the four or ?ve notes from Steve regarding documents he didn't have to make sure the citations are correct. As we discussed, once you've gone through it, please share the new draft with Jack, Richard, Steve, and me. Thank you. ?Karen On Wed, Dec 6, 2017 at 10:01 AM, Collier. Briana wrote: Thanks Karen. was suqqestinq Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Ma_rquette Ave.. NW Ste.1800 AlbuguergueI NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Tue, Dec 5, 2017 at 6:20 PM, Hawbecker, Karen wrote: Briana, I reviewed the version that Richard sent with his comment included and added my edits. This version now has all of our combined DMR edits before Steve's review. Please see my question in your comment on page 18. Steve, Please review this version for cite checking. Thank you. --Karen On Tue, Dec 5, 2017 at 5:33 PM, McNeer, Richard wrote: Bnana: I made only one comment on p.4. Thanks, Richard On Tue, Dec 5, 2017 at 2:04 PM, Collier, Briana wrote: Here is the version Jack sent at 12:30 with my comments added. I had just a few comments/deletions addressing tone, as well as a couple grammatical and formatting changes. Please let me know of any other assistance I can provide on this. Thank you. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave.. NW Ste.1800 AlbuguergueI NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Tue, Dec 5, 2017 at 10:39 AM, Hawbecker, Karen wrote: Okay. I'll send it to Steve now. --Karen On Tue, Dec 5, 2017 at 12:38 PM, Haugrud, Kevin wrote: Here's a clean version of the draft opinion that has been cleared by Dan. Let's use this one for any additional edits. Karen, we should probably have Steve do one more cite-check before we go ?nal. I'm copying Marigrace as well. Karen Hawbecker From: Karen Hawbecker Sent: Thu Dec 07 2017 06:35:57 GMT-0700 (MST) To: "Haugrud, Kevin" Subject: Re: Twin Metals Clean Version Thanks, Jack. I?ll take a quick look. ?Karen Sent from my iPad On Dec 6, 2017, at 7:43 PM, Haugrud, Kevin wrote: Karen: Here's a version that shows my additional edits. On Wed, Dec 6, 2017 at 3:56 PM, Collier, Briana wrote: Jack, Here is the Twin Metals M-Opinion with DMR's combined edits. Please let us know of any questions or concerns. Thankyou, Bnana Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Wed, Dec 6, 2017 at 1:13 PM, Hawbecker, Karen wrote: Briana, Here's the memo with all of our combined edits. Please see the four or ?ve notes from Steve regarding documents he didn't have to make sure the citations are correct. As we discussed, once you've gone through it, please share the new draft with Jack, Richard, Steve, and me. Thank you. --Karen On Wed, Dec 6, 2017 at 10:01 AM, Collier, Briana wrote: Thanks Karen. was sudqestinq Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Ma_rduette Ave.. NW Ste.1800 AlbuguergueI NM 87102 Phone: (202)208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Tue, Dec 5, 2017 at 6:20 PM, Hawbecker, Karen wrote: Briana, I reviewed the version that Richard sent with his comment included and added my edits. This version now has all of our combined DMR edits before Steve's review. Please see my question in your comment on page 18. Steve, Please review this version for cite checking. Thank you. --Karen On Tue, Dec 5, 2017 at 5:33 PM, McNeer, Richard wrote: Bnana: I made only one comment on p.4. Thanks, Richard On Tue, Dec 5, 2017 at 2:04 PM, Collier, Briana wrote: Here is the version Jack sent at 12:30 with my comments added. I had just a few comments/deletions addressing tone, as well as a couple grammatical and formatting changes. Please let me know of any other assistance I can provide on this. Thank you. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave.. NW Ste.1800 Albuguergue, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Tue, Dec 5, 2017 at 10:39 AM, Hawbecker, Karen wrote: Okay. I'll send it to Steve now. -Karen On Tue, Dec 5, 2017 at 12:38 PM, Haugrud, Kevin wrote: Here's a clean version of the draft opinion that has been cleared by Dan. Let's use this one for any additional edits. Karen, we should probably have Steve do one more cite-check before we go final. I'm copying Marigrace as well. <2017.12.06 Twin Metals -- Draft Final Redline.docx> Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:28 PM Conversation Contents DMR priorities list Attachments: /41. DMR priorities list/1.1 2017.12.05 DMR Priorities.docx "Hawbecker, Karen" From: Sent: To: Subject: Attachments: "Hawbecker, Karen" Wed Dec 06 2017 10:26:42 GMT-0700 (MST) Jack Haugrud DMR priorities list 2017.12.05 DMR Priorities.docx Jack, I've attached a list of items that we might raise at the Bernhardt meeting. --Karen "Haugrud, Kevin" From: Sent: To: Subject: "Haugrud, Kevin" Wed Dec 06 2017 10:43:58 GMT-0700 (MST) "Hawbecker, Karen" Re: DMR priorities list Let's not include Farrell Cooper at this time. On Wed, Dec 6, 2017 at 12:26 PM, Hawbecker, Karen wrote: Jack, I've attached a list of items that we might raise at the Bernhardt meeting. --Karen "Hawbecker, Karen" From: Sent: To: Subject: "Hawbecker, Karen" Wed Dec 06 2017 10:53:39 GMT-0700 (MST) "Haugrud, Kevin" Re: DMR priorities list Okay On Wed, Dec 6, 2017 at 12:43 PM, Haugrud, Kevin wrote: Let's not include Farrell Cooper at this time. On Wed, Dec 6, 2017 at 12:26 PM, Hawbecker, Karen wrote: Jack, I've attached a list of items that we might raise at the Bernhardt meeting. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:29 PM Conversation Contents Agenda for DMR Weekly Meeting Attachments: /42. Agenda for DMR Weekly Meeting/1.1 2017.12.06 DMR Weekly Meeting Agenda.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Tue Dec 05 2017 15:40:07 GMT-0700 (MST) Daniel Jorjani , Jack Haugrud Gary Lawkowski , Tom Bovard , Dennis Daugherty , Richard McNeer Agenda for DMR Weekly Meeting 2017.12.06 DMR Weekly Meeting Agenda.docx Dan and Jack, I've attached the agenda for our weekly meeting tomorrow morning. We'll see you then. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:29 PM Conversation Contents Twin Metals Revisions Attachments: I43. Twin Metals Revisions/1.1 Twin Metals -- Draft 11 29 17.docx "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Tue Dec 05 2017 08:00:21 GMT-0700 (MST) Karen Hawbecker Richard To: McNeer Briana Collier Subject: Twin Metals Revisions Attachments: Twin Metals -- Draft 11 29 17.docx Attached is a redlined version of the roposed Twin Metals M-Opinion that addresses comments we received from ENRD. "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Tue Dec 05 2017 10:32:52 GMT-0700 (MST) Karen Hawbecker Richard To: McNeer Briana Collier Subject: Re: Twin Metals Revisions GWOU OISSUG eopInIon IS wee . On Tue, Dec 5, 2017 at 10:00 AM, Haugrud, Kevin wrote: Attached is a redlined version of the roposed Twin Metals M-Opinion that addresses comments we received from ENRD. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:31 PM Conversation Contents U.S. Department of the Interior News Briefing for Tuesday, December 5, 2017 Bulletin Intelligence From: Bulletin Intelligence Sent: Tue Dec 05 2017 04:01:03 GMT-0700 (MST) To: U.S. Department of the Interior News Briefing for Tuesday, December 5, 2017 Mobile version and searchable archives available here. Please click here to subscribe. Department of the Interior - I I -CIsioN v-K. ., News Briefing NH DATE: TUESDAY, DECEMBER 5, 2017 6:00 AM EST Today's Table Of Contents DOI In The News 0 NBC: Trump Reduces Size Of Grand Staircase, Bears Ears Monuments. KBSC-FM Boise (ID): Interior Department Nomination Hearing Begins Tuesday For Hi Staffer With Idaho Ties. 0 Eureka (CA) Times Standard: Feds' Move To End Trinity River Watchdog Group Scrutinized. Bureau Of Indian Affairs 0 Tribal Membership, Federal Dollars And A Casino On The Line With Nooksack Election. Bureau Of Land Management 0 Washington Examiner: Congress Fights Over Whether To Allow Interior To Kill Wild Horses. 0 Associated Press: Agency Targets Trash, Lawlessness At Shooting Range. 0 Cody (WY) Enterprise: Fence Improvement Project Bene?ts Pronghorn Migration. 0 Las Vegas Review-Journal: Judge Releases 4 More Bunkerville Standoff Defendants. Bureau Of Ocean Energy Management 0 Bill Could Make Drilling Off N.C. Coast More Likely. 0 Company Pulls Plug On Massachusetts? Cape Wind Offshore Wind Farm. Bureau Of Reclamation Navajo-Gallup Water Project Gains Pipeline Contract. Fish And Wildlife Service 0 New York Times: Hunt Elephants To Save Them? Some Countries See No Other Choice. 0 Santa Fe New Mexican: Fish And Wildlife Service Plan Calls For Release Of 12 Newborn Wolf Pups. National Park Service • Duluth (MN) News Tribune: Park Service Nearing Decision On Isle Royale Wolves. • Alaska Public Radio Network: Research Continues On Elevated Mercury Levels In Some Nonmigratory Fish In Southwest Alaska. • Billings (MT) Gazette: Little Bighorn Plan Would Create New Visitor Center, Make Room For Artifacts Currently In Arizona. • MLive (MI): Keeler Building Added To National Register, Paves Way For Redevelopment. US Geological Survey • Newsweek: Underwater Volcano Eruptions Sound Like Gunshots And Can Travel 10,000 Miles Through The Ocean. • Rio Blanco (CO) Herald Times: USGS Proposes $260,400 Plan To Study White River Algae Problem. • Big Island (HI) Video News: USGS Posts New Annotated Map Of Pu’u O’o Crater. Opinion Pieces • President Trump, Don’t Decimate The Bears Ears National Monument. • National Park Lovers Should Applaud Trump’s Monument Decision. • Trump Eviscerates Two National Monuments In The Name Of Political Back-scratching. • Additional Reading. Top National News • ABC: Trump Says He Feels “Badly” For Flynn As Lawyer Says A President Cannot Obstruct Justice. • NBC: Supreme Court Allows Third Version Of Travel Ban To Take Effect While Challenges Proceed. • Washington Post: Trump, Congressional Leaders To Hold Budget Talks Thursday. • Associated Press: GOP Leaders “Confident” Differences In Tax Bills Can Be Overcome. • ABC: North Korea: US-South Korea Air Drills Put Peninsula At “Brink Of Nuclear War.” • USA Today: US Mayors Set To Sign Climate Agreement In Chicago. Editorial Wrap-Up • New York Times. - “Yes, The President Can Obstruct Justice.” - “With Death Of Ali Abdullah Saleh, Need for Yemen Peace Grows.” • Washington Post. - “Is A Senate Seat Really Worth This?” - “How To Move The Tax Bill From Worse To Bad.” - “The District Has A Chance To Address Homelessness With Reason, Not Emotion.” • Wall Street Journal. - “Mueller’s Credibility Problem.” - “Supreme Rebuke For The Judiciary.” - “The Trial Bar’s Tax Break.” Big Picture • Headlines From Today’s Front Pages. Washington Schedule • Today’s Events In Washington. Last Laughs • Late Night Political Humor. DOI In The News Trump Reduces Size Of Grand Staircase, Bears Ears Monuments. During a visit To Utah Monday, President Trump announced that he has reduced the size of Bears Ears National Monument by 85% and Grand Staircase-Escalante National Monument by about half. Media coverage is somewhat mixed, highlighting both the positive response from officials and Utahans who see the move as an economic win for the state as well as the negative reaction from protesters and tribal and environmental groups who have vowed to mount a legal challenge. NBC Niahtlv News? (12/4, story 4, 0:25, Holt) reported that Trump is ?dramatically scaling back" the sites, and Breitbart (12/4, Spiering) says he took ?the unusual an outcry from leftist environmental groups.? Trump said, ?With the action I?m taking today, we will not only give back your voice over the use of this land, we will also restore your access and your enjoyment. Public lands will once again be for public use.? The Washington Post (12/4, Dawsey, Eilperin) reports that Trump said he came to Utah to ?reverse federal overreach" and took action ?because some people think that the natural resources of Utah should be controlled by a small handful of very distant bureaucrats located in Washington. And guess what? They?re wrong.? The Washington Times (12/4, Wolfgang) says Trump ?said previous presidents have greatly abused their power under the century-old Antiquities Act, and stretched the law past its limits in cordoning off millions of acres of land and placing them under government control.? A brief report on ABC World News Toniqht?t (12/4, story 14, 0:20, Muir) said the sites cover ?several million acres that contain large amounts of oil, gas and coal.? Axios (12/4, Pandey) says Trump?s move ?received mixed reviews, with Utah Sens. Orrin Hatch and Mike Lee cheering alongside the audience at Trump?s Salt Lake City rally and protesters opposing the decision in Utah and outside the White House.? Similarly, the Salt Lake (UT) Tribune (12/4) says Trump was met by ?thousands? of protesters outside the state Capitol, ?most decrying the anticipated announcement,? while the inside of the Capitol was ?packed with Trump supporters who celebrated Trump?s declaration as an economic victory for rural Utahans who depend on mineral development and ranching, activities they say were sti?ed by the sprawling monuments.? The Washington Examiner (12/4, Quinn) reports that protesters shouted, you, Trump? as his motorcade passed. The New York Times (12/4, Turkewitz) reports that the reduction of the Bears Ears Monument ?is expected to trigger a legal battle that could alter the course of American land conservation, putting dozens of other monuments at risk and possibly opening millions of preserved public acres to oil and gas extraction, mining, logging and other commercial activities.? The (12/5, Lucey, Superville) says tribal and environmental groups opposed to the decision ?began filing lawsuits Monday in a bid to stop Trump and Interior Secretary Ryan Zinke.? They argue the designations ?are needed to protect important archaeological and cultural resources." Reuters (12/4, Volcovici, Rampton) reports leaders representing the Navajo, Hopi, Pueblo of Zuni, Ute Mountain and Ute Indian tribes, which ?pushed for the creation of the Bears Ears monument and who now manage it, said they will take the Trump administration to court." Natalie Landreth, attorney for the Native American Rights Fund, said, ?We will be fighting back immediately. All ?ve tribes will be standing together united to defend Bears Ears.? The Salt Lake Tribune (12/4) says the Tribes argue that Trump ?does not have the legal authority to shrink the designation.? Courts have not addressed the issue since the passage of the Antiquities Act 111 years ago. While Presidents are authorized under the law ?to unilaterally set aside public lands to protect ?objects of historic and scientific interest,? a court ruling ?would determine the Antiquities Act?s future use whether it allows a president to revoke or modify a monument or just to designate one." The Washington Examiner (12/4, Siegel) reports that the Administration and congressional Republicans ?say previous presidents abused their authority? under the Act, ?setting aside larger and larger swaths of public land, limiting development opportunities and sti?ing local control.? Ad Age (12/4, Pasquarelli) reports that California-based outdoor retailer Patagonia also plans to sue the Administration. CEO Rose Marcario said in a statement, ?Americans have overwhelmingly spoken out against the Trump Administration?s unprecedented attempt to shut down our national monuments. We?ve fought to protect these places since we were founded and now we'll continue that ?ght in the courts." Jamie Yuccas reported on the CBS Evening Newsic (12/4, story 11, 2:30, Glor) that ?native tribes and environmental groups say it could be years of a legal ?ght before it is resolved.? Local television reports were largely positive for Trump. For example, on its website, KSL-TV Salt Lake City (12/4) said Trump's announcement drew ?cheers that reverberated throughout the Capitol rotunda Monday.? Trump told those gathered that his decision means ?public lands will once again be for public use.? KTVX-TVOI Salt Lake City (12/4, 5:00 pm. MST) said Trump ?made an unprecedented move,? announcing ?major reductions? to the national monuments. Salt Lake City (12/4, 5:02 pm. MST) reported that Trump ?ma[de] good on his promise" to shrink the monuments. KUTV added that Trump announced the decision to ?rousing applause.? Also reporting are the (12/5, PRICE, MCCOMBS), the New York Times the Washington Post (12/5, Andrews), the Washington Post (12/4, Dawsey, Eilperin), the Washington Post the Washington Post the Washington Post the Washington Examiner (12/4, Siciliano), The Hill (12/4, Thomsen), Politico (12/4, Lefebvre), Roll Call (12/4, Bennett), the Los Angeles Times (12/4, Finnegan), the Angeles Times (12/4, Schneider), the Salt Lake (UT) Tribune (12/4, Maf?y), the Francisco Chronicle (12/4, Turkewitz), the New York Post (12/4, Fredericks), the Orange Coung (CA) Register (12/4, Scauzillo), the Oregonian (12/4, Theen), the Denver Post (12/4, Lucey), the Grand Junction (CO) Daily Sentinel (12/5, Webb), the Arizona Republic (12/4, Korte), the Boston Herald the Missoula Current (MT) (12/4, Kidston), BBC News (UK) The Guardian (UK) (12/4, Smardon), The Guardian (12/4, Smith, Milman), the Daily Mail (12/4, Martosko), and Sputnik News Also reporting are USA Today USA Today (12/4, Demille), TIME Bloomberg News (12/4, Blumberg), Bloomberg News (12/4, Dlouhy, Sink), (12/4, Merica), (12/4, Weir), ABC News (12/4, Ebbs, Stracqualursi), ABC News (12/4, Ebbs, Mallin), NBC News (12/4, Vitali), Fox News (12/4, Chakraborty), CBS News CBS News (12/4, Guild), CBS News (12/4, Guild), (12/4, GONZALES, Siegler, DWYER), PBS NewsHour (12/4, Holmes), USA Today (12/4, Korte), USA Today (12/4, Cummings), (12/4, Lucey, Superville), TIME (12/5, Steinmetz), Newsweek (12/4, Pereira), Fortune (12/4, Detrick), MarketWatch (12/4, Murphy), the Huffington Post (12/4, Madani), the Huffington Post (12/4, D'Angelo), Slate (12/4, Cummins), Montana Public Radio (12/4, Kreimer), Montana Public Radio (12/4, Hegyi), Moyers Company (12/4, Miller), Outside KSTU-TV Salt Lake City KUER-FM Salt Lake City Salt Lake City (12/5, Fabrizio), and KTLA-TV Los Anaeles Los Angeles Bears Ears, Grand Staircase Escalante Decision By Trump Prompts Strong Reaction From Colorado Democrats. The decision also drew criticism from ?Colorado?s top Democrats,? the Denver Post (12/4, Paul) reports. Gov, John Hickenlooper said in a statement, ?Preserving and expanding our national monuments is keeping in the best traditions of our country. In Colorado, we value our lands because they are part of our fabric and they strengthen local economies. We hope our leaders can ?nd a way to let monuments remain and return their focus to more pressing issues facing our country.? Rep. Diana DeGette (D-CO), called Trump?s decision a raid of ?public lands for private gain,? Rep. Ed Perlmutter (D-CO) called it an ?unprecedented attack." Sen. Michael Bennet said the decision was ?in lock-step with a small number of Washington special interests.? New Mexicans Asking President To Leave State?s Monuments Alone. The Alamogordo (NM) Daily News (12/4) reports that following President Trump?s decision to shrink Bears Ears and Grand Staircase-Escalante National Monuments, ?New Mexicans are reasserting their support for Organ Mountains-Desert Peaks and Rio Grande del Norte National Monuments, and imploring President Trump to leave the Land of Enchantment?s national monuments alone, according to a New Mexico Wildlife and Las Cruces Green Chamber press release.” Alamogordo public lands sportsman Rod Sims stated in the release, “Sportsmen have been on the front lines of conserving wildlife habitat like Bears Ears, Grand Staircase-Escalante, Organ Mountains-Desert Peaks and Río Grande del Norte. Hunting and fishing is a time-tested tradition in the United States, and we need vast backcountry to support healthy wildlife populations. Shrinking, breaking apart, or changing the management of national monuments can fragment habitat and harm wildlife migrations and populations.” Oregon Leaders Vow To Fight For Cascade-Siskiyou After Utah Monument Reductions. KGW-TV Portland, OR (12/4, Roth) reports that after President Trump announced two national monuments in Utah will “shrink significantly, top Oregon Democrats decried the action amid questions of whether Oregon’s Cascade-Siskiyou National Monument would be next.” Bears Ears and Grand Staircase-Esalante National Monuments were “among four national monuments Interior Secretary Ryan Zinke previously advised Trump to shrink.” The article notes that “also on list was Oregon’s Cascade-Siskiyou, which covers 112,000 acres in southern Oregon.” According to the article, “while Trump has yet to announce whether he will heed Zinke’s recommendation to shrink the Cascade-Siskiyou, Democratic Oregon lawmakers spoke out Monday in support of preserving the biologically diverse land.” Rockefeller And The Secret Land Deals That Created Grand Teton National Park. The Washington Post (12/4, Lednicer) reports on “the audacious plan” hatched in the 1920s, whereby John D. Rockefeller Jr. “agreed to surreptitiously acquire thousands of acres of breathtaking scenery around Jackson Hole, Wyo., and donate them to the federal government for a national park.” According to the article, “by 1930, a year after Congress had established Grand Teton National Park, word had gotten out about the purchases, and Wyoming residents were furious.” The paper says that the “controversy surrounding” President Trump’s decision to shrink Bears Ears and Grand StaircaseEscalante “shows that the fight over the size of national parks and monuments, which reached its apex in the fight over Jackson Hole, continues to this day.” Interior Department Nomination Hearing Begins Tuesday For Hill Staffer With Idaho Ties. KBSC-FM Boise, ID (12/4, Barnhill) reports that Tuesday morning, a Senate committee will hear the nomination of Tim Petty to be the assistant Interior secretary for water and science. Petty has “worked for the Interior Department before – under then-Secretary and former Idaho governor Dirk Kempthorne.” Feds’ Move To End Trinity River Watchdog Group Scrutinized. The Eureka (CA) Times Standard (12/4, Houston) reports that the Interior Department’s Press Secretary Heather Swift told the Times-Standard last week that it disbanded the Trinity River Adaptive Management Working Group “because the group did not submit a short justification memo on why the department should continue funding its $100,000 annual budget.” However, “the group’s chairman said to the Times-Standard on Monday that he was told on multiple times this year by U.S. Fish and Wildlife Service officials that the paperwork had been filed.” Stokely said, “There is some kind of bureaucratic mixup here. I suggest they give us another chance.” Bureau Of Indian Affairs Tribal Membership, Federal Dollars And A Casino On The Line With Nooksack Election. KUOW-FM Seattle (12/4, Fox) reports that early results from Saturday’s Nooksack election “show all incumbents won their seats.” Hinging on the results are “tribal membership, tens of millions of federal dollars and a casino.” According to the article, “when the tribe agreed to hold an election a few months ago, interim federal money started flowing back to the tribe and so did operation of its casino,” but “hat could all go away again if the Bureau of Indian Affairs does not certify this election by December 23.” Bureau Of Land Management Congress Fights Over Whether To Allow Interior To Kill Wild Horses. The Washington Examiner (12/5, Siegel) reports that to manage the overpopulation of wild horses, John Ruhs, the Bureau of Land Management’s director in Nevada, “wants Congress to lift restrictions on his agency to give it more flexibility to euthanize horses — not just when they’re old and sick — and sell more of them for private use, without dictating what the buyer can or cannot do with the animals.” The Senate “introduced a fiscal 2018 Interior-Environmental Protection Agency spending bill last month that includes language prohibiting BLM from selling without restriction tens of thousands of excess horses on federal rangelands and banning the agency from euthanizing animals that have been unsuccessfully offered for adoption more than three times.” However, the House’s fiscal 2018 Interior appropriations legislation “contains a section that would lift restrictions on BLM to sell or, in specific circumstances, euthanize excess wild horses.” Agency Targets Trash, Lawlessness At Shooting Range. The AP (12/4) reports that an area 7 miles outside the Las Vegas Valley “that has been used for target practice for at least the past 20 years” is “littered with broken glass and tens of thousands of spent shotgun shells and bullet casings.” The Bureau of Land Management has “launched a new effort to address the growing trash and safety problem at Southern Nevada’s most popular spot for target shooters.” The BLM has “hosted a pair of volunteer cleanups at the site, one in May with the National Rifle Association and another in early November.” The bureau “also has teamed with the Metropolitan Police Department and the Nevada Highway Patrol to step up patrols in the area.” Additional coverage was provided by KNPR-FM Las Vegas (12/4). Fence Improvement Project Benefits Pronghorn Migration. The Cody (WY) Enterprise (12/4) reports that the Bureau of Land Management Cody Field Office “recently collaborated with the Wyoming Department of Transportation, Wyoming Game and Fish Department and Friends of a Legacy to modify a stretch of fence east of Cody for the benefit of migrating pronghorn.” They “came together to replace the bottom strand of barbed wire with smooth, wildlife-friendly wire on about three miles of fence along WYO 32 on the eastern edge of the McCullough Peaks Wild Horse Herd Management Area.” According to the article, “the bottom wire was also raised to 16 inches off the ground to allow pronghorn to pass easily under it.” BLM wildlife biologist Destin Harrell, who organized the project, said, “Last year, thousands of pronghorn were stacked up along this fence, unable to cross. Thanks to the commitment of groups like FOAL, WYDOT and G&F to making BLM fences more wildlife-friendly, the migrating Carter Mountain pronghorn herd now has better access to its crucial winter range and an improved chance of surviving harsh winters.” Judge Releases 4 More Bunkerville Standoff Defendants. The Las Vegas Review-Journal (12/4, Ferrara) reports that “a judge ordered four more Bunkerville standoff defendants freed from federal detention on Monday, less than a week after rancher Cliven Bundy rejected the conditions of his own release.” U.S. Magistrate Judge Peggy Leen ordered the pretrial release of four men, “whom prosecutors have described as ‘midtier’ defendants in the April 2014 armed standoff.” They include Bundy’s sons Melvin and David. Bureau Of Ocean Energy Management Bill Could Make Drilling Off N.C. Coast More Likely. The Jacksonville (NC) Daily News (12/4, Wagner) reports that the SECURE American Energy Act would make drilling off North Carolina more likely. The measure was passed by the House Committee on Natural Resources, but it has not yet received a vote from the full chamber. The bill would grant Congress the sole power to establish moratoriums on offshore drilling and create National Marine Monuments. Gov. Roy Cooper has opposed offshore exploration, saying it risks the state’s coastal economies. Company Pulls Plug On Massachusetts’ Cape Wind Offshore Wind Farm. In continuing coverage the Washington Examiner (12/4, Siciliano) reports the company the Cape Wind wind farm proposed off the coast of “Massachusetts has officially given up on the nearly two-decade fight to bring it to life, saying it is better off developing other forms of energy elsewhere.” Cape Wind and Energy Management CEO Jim Gordon said in a statement, “During Cape Wind’s development period we successfully developed over a billion dollars of renewable solar and biomass energy projects and, although we were unable to bring Cape Wind to fruition, we are proud of the catalyzing and pioneering effort we devoted to bringing offshore wind to the United States.” The wind project “faced sustained opposition and court challenges orchestrated by wealthy land owners on Nantucket Sound and the fossil energy industry, Gordon said.” Bureau Of Reclamation Navajo-Gallup Water Project Gains Pipeline Contract. The Southwest Colorado Journal (12/4, Mimiaga) reports that “Navajo and JicarillaApache Nation communities in New Mexico are one step closer to receiving domestic and commercial water supplies as part of a $1.13 billion federal construction project.” Construction began on the Navajo-Gallup Water Supply project “in 2013 with completion estimated for 2024.” The article notes that “it is being built by the Bureau of Reclamation, city of Gallup, Navajo Nation and Indian Health Service.” Fish And Wildlife Service Hunt Elephants To Save Them? Some Countries See No Other Choice. In continuing coverage of the controversy over the decision by the United States Fish and Wildlife Service last month “to allow hunters to bring home trophies from elephants killed in Zimbabwe and Zambia,” the New York Times (12/4, Nuwer) reports that “whether the proceeds from big-game hunting should be used to protect threatened and endangered species is a difficult question to answer.” The article notes that “in some areas, including in Namibia and Zimbabwe, the strategy has helped revive wildlife populations.” However, “in others, including Tanzania, hunting has fed corruption and decimated species.” Vern Buchanan Urges Donald Trump To Ban African Lion Trophies. The Sunshine State (FL) News (12/4, Derby) reports that Rep. Vern Buchanan, co-chairman of the Animal Protection Caucus in Congress, is urging President Trump “to restore the ban on allowing African lion trophies to be brought into the United States.” Buchanan said, “Allowing lion heads to be brought into the U.S. as trophies will only encourage the slaughter of these magnificent animals. President Trump should reverse his Interior secretary’s decision and keep the ban on African lion trophies.” Fish And Wildlife Service Plan Calls For Release Of 12 Newborn Wolf Pups. The Santa Fe New Mexican (12/4, Moss) reports that the U.S. Fish and Wildlife Service is “proposing to release 12 newborn Mexican wolf pups in New Mexico and Arizona over the coming year as part of its strategy to recover an endangered species that suffers from severe inbreeding and weak genetics.” In 2018, “a dozen captive pups will be matched with wild litters that have been born at roughly the same time as the domestic-bred pups, according to a plan released by the service Monday.” The plan also “outlines temporarily removing an adult female wolf from the Panther Creek Pack in Arizona, to avoid direct inter-sibling breeding, and allowing her to instead mate with an adult male from captivity.” National Park Service Park Service Nearing Decision On Isle Royale Wolves. The Duluth (MN) News Tribune (12/4, Myers) reports that the National Park Service is “getting closer to announcing its final decision on reintroducing wolves to Isle Royale National Park.” According to the article, “wolf researchers for Michigan Technological University say the island may be down to its very last wolf based on analysis of trail camera data gathered over the summer and through September.” Additional coverage was provided by USA Today (12/4, Matheny) and the Detroit Free Press (12/4, Matheny). Research Continues On Elevated Mercury Levels In Some Non-migratory Fish In Southwest Alaska. The Alaska Public Radio Network (12/4, Lill) reports that the National Park Service and the United States Geological Survey are “among the agencies that study mercury levels in southwest Alaska’s lakes in order to better understand mercury’s effect on ecosystems and how it gets there.” In 2005, the National Park Service started “monitoring mercury levels in non-migratory lake fish in Katmai National Park and Preserve and the Lake Clark National Park Preserve.” Krista Bartz, an aquatic ecologist with the NPS’ Southwest Alaska Network inventory and monitoring program, said, “Since then we’ve collected around 400 fish samples, representing nine species from 20 lakes. We’ve found that filets from long-lived predator species, like lake trout and northern pike, can have elevated concentrations of mercury and they tend to increase with fish age.” Bartz “anticipates that the NPS will publish results from the past three years of study on resident lake fish in Katmai and Lake Clark in 2018.” Additional coverage was provided by KTOO-FM Juneau, AK (12/4, Lill). Little Bighorn Plan Would Create New Visitor Center, Make Room For Artifacts Currently In Arizona. The Billings (MT) Gazette (12/4, Ferguson) reports that “a plan for the future of the Little Bighorn Battlefield National Monument includes the National Park Service’s preference for building a new 10,600-square-foot visitor center on the footprint of the current center and bringing back some if not all of the tens of thousands of battlefield artifacts now being stored for safekeeping in Tucson, Arizona.” Park officials are accepting input on the Little Bighorn Battlefield National Monument General Management Plan Amendment and Environmental Assessment through Jan. 4, 2018. Wayne Challoner, superintendent at the Little Bighorn Battlefield monument, said, “Right now we are in the information-gathering stage. We want to hear anything we may or may not be aware of. We are trying to see if we can go in and rebuild in the same footprint with a new and better-designed facility. Getting those artifacts back has always been the goal.” Keeler Building Added To National Register, Paves Way For Redevelopment. MLive (MI) (12/4, Harger) reports that “the 106-year-old Keeler Building has been added to the National Register of Historic Places, a key step towards redevelopment of a downtown landmark that has been mostly vacant for more than 20 years.” The article notes that “the designation by the National Parks Service last month means the West Michigan Housing Alliance qualifies for about $20 million in state tax credits needed to get a $42.5 million affordable housing project underway, according to Jeff Dombrowski, the alliance’s founder.” US Geological Survey Underwater Volcano Eruptions Sound Like Gunshots And Can Travel 10,000 Miles Through The Ocean. Newsweek (12/4, Hignett) reports that “using hydrophones – special microphones designed for use underwater—scientists from the Alaska Volcano Observatory (AVO) and the U.S. Geological Survey (USGS) recorded the sounds of two volcanos erupting.” According to the article, “presenting their findings at the 174th Meeting of the Acoustical Society of America in New Orleans, the team, led by Gabrielle Tepp, from the AVO, show how different eruptions sound drastically different – while some explosions lasted hours, others ripped through the sea like gunshots.” Researchers “recorded vastly different sounds from the Ayhi eruption and from the 2015 and 2016 eruptions of Bogoslof, a volcano near Alaska.” USGS Proposes $260,400 Plan To Study White River Algae Problem. The Rio Blanco (CO) Herald Times (12/4, Turner) reports that “the White River Algae Task Force heard a proposal to study and identify the recurring algal bloom in the White River from United States Geological Survey (USGS) hydrologist Mike Stevens and western Colorado office chief Ken Leib on Wednesday, Nov. 22.” The purposes of the study are “to determine what conditions on the river are contributing to the algae bloom that has caused problems with aesthetics and recreational use of the river.” The USGS “plans to compile historical data on the river’s streamflow, nutrient levels, sediment and more.” USGS Posts New Annotated Map Of Pu’u O’o Crater. The Big Island (HI) Video News (12/4) reports that the USGS Hawaiian Volcano Observatory posted a new map of the Pu’u ‘Ō’ō Crater on November 22, “with labels of the crater’s main features.” According to scientists, “no significant changes are evident at Puʻu ʻŌʻō.” However, the article adds, “there have been enough changes over the last few years at the vent to warrant a new annotated map of the active crater on Kilauea Volcano’s East Rift Zone.” Opinion Pieces President Trump, Don’t Decimate The Bears Ears National Monument. In an op-ed for The Guardian (UK) (12/4, Jewell), former Interior Secretary Sally Jewell writes that the action to establish the Bears Ears national monument “built upon decades of local efforts.” But President Trump’s move will “ignore the 2.8 million Americans who have spoken out in defense of these public lands, and will undercut the jobs and revenues they bring to local economies from outdoor recreation and tourism.” More fundamentally, Jewell writes, “it will break the promise to these tribes – and to the American people – that, once established, national monuments are protected in perpetuity.” National Park Lovers Should Applaud Trump’s Monument Decision. In an op-ed on the Fox News (12/4) website, ex-Rep. Jason Chaffetz praises President Trump’s decision to reduce the size of the Bears Ears and Staircase-Escalante National Monuments as “an example of his policies that will benefit every American who enjoys national parks and monuments.” Chaffetz argues that national monument designations “have strained land management budgets and limited public access to beautiful places.” Trump Eviscerates Two National Monuments In The Name Of Political Backscratching. In an editorial, the Los Angeles Times (12/4) says President Trump “eviscerated” the Bears Ears and Staircase-Escalante National Monuments, “proving once again that, to this president, the federal government’s promises to its own people mean nothing.” His decision, the Times adds, “senselessly imperils stunningly beautiful natural areas and geological masterworks, as well as tens of thousands of Native American sacred sites and key wildlife habitats.? Additional Reading. 0 Trump Shrinks National Monuments And With It, Obama?s Legacy. Washington Times (12/4, Chumley). 0 President Trump?s National Monument Rollback ls Illegal And Likely To Be Reversed In Court. The Conversation (US) (12/4, Hecht). Trump?s Proclamation Shrinking Bears Ears Will Hurt All Of Us. NBC News (12/4, Ward- Lev, Gaffney, Swanson). 0 Trump?s Rollback Of Monuments Ignores Public, Economic Interests. Huffington Post (12/4, Arce). 0 President Trump?s Bears Ears Order Is An Illegal Attack On Tribal Sovereignty. Huffington Post (12/4, Echohawk). 0 Don?t Count On A Utah Shale Boom. Huf?ngton Post (12/4, Cunningham). 0 Veterans Decry Trump?s Reduction Of National Monuments. Missoula Current (MT) 12/4). 0 Elephants In Africa Need To Be Protected, And Believe It Or Not, Hunting Does This Better Than A Ban. Fox News (12/4, Cox). 0 Listen To The 99 Percent: Keep Public Lands Public. Charleston (SC) Post and Courier (12/4, White). 0 Americans Shouldn?t Be Priced Out Of Visiting. Durango (CO) Herald. 0 National Parks Should Remain Open Ottawa (KS) Herald (12/4, Doll). 0 Our View: Right The Wrong Done To Twin Metals. Duluth (MN) News Tribune 0 Ryan Zinke Is Trump?s Attack Dog On The Environment. Outside (12/4, Woods). Top National News Trump Says He Feels ?Badly? For As Lawyer Says A President Cannot Obstruct Justice. President Trump?s remarks Monday that he feels ?badly? for former National Security Adviser Michael and stating that Hillary Clinton ?lied many times to the without consequences led two broadcast network newscasts. In addition to ongoing coverage of whether the President?s weekend tweets might indicate obstruction of justice, several sources also point out that the FBI never suggested that Clinton was not truthful when she was interviewed during the investigation of her email server. Reports also look at a Trump attorney?s claim that a president cannot obstruct justice, expressing skepticism. On ABC World News Tonightiu (12/4, lead story, 3:20, Muir), Jonathan Karl reported, ?At the White House today, the President offered words of sympathy? for Trump: ?Well, I feel badly for Gen. I feel very badly. He?s led a very strong life.? Karl: plea bargain is a big red ?ag for the White House.? Sen. Dianne Feinstein: think what we?re beginning to see is the putting together of a case of obstruction of justice." Karl: ?The President seems determined to undermine that case, by slamming the FBI, tweeting that its reputation is ?in tatters, worst in history.?" Trump: will say this, Hillary Clinton lied many times to the FBI. Nothing happened to her. lied and they destroyed his life. I think it?s a shame." The (12/4, Thomas) reports that the President ?tried to contrast treatment with that who he said ?lied many times to the FBI and nothing happened.? But the FBI ?didn?t conclude that Clinton lied to agents.? USA Today (12/4, Jackson) reports that the DOJ ?did not bring charges against Clinton over her use of a private email server while she was secretary of State, and law enforcement of?cials have said they do not believe Clinton misled investigators.? Reuters (12/4) also writes that ?there was never any indication from the FBI that Clinton did not tell the truth.? The Ne_w York Times (12/4, Sullivan) reports that the President ?did not cite specifically what Mrs. Clinton said that he considered a lie.? The Washington Post (12/4, Rucker) reports that Trump ?told reporters Monday morning that undoing was ?a shame? and ?very unfair.?" Bloomberg News (12/4, Sink) and the Washington Times (12/4, Persons) also cover the President?s remarks. Meanwhile, the (12/5, Lemire, Tucker) reports that Trump?s weekend tweets ?revived questions about whether the president may have obstructed [the] ongoing investigation.? NBC Newsic (12/4, lead story, 2:50, Holt) asked, ?Has President Trump tweeted himself into legal trouble? That question had Washington abuzz today. In a tweet over the weekend, the President for the ?rst time publicly said he ?red in part because he lied to the feds. If that?s true, it frames an intriguing new timeline that some tonight argue puts Mr. Trump in some legal jeopardy of his own." Hallie Jackson: ?Setting aside that James Comey testi?ed [that] Hillary Clinton didn?t lie to the FBI, the focus now, did President Trump obstruct justice? And could this tweet be used against him? had to ?re General because he lied to the Vice President and the The problem: If the President knew lied to the FBI and if he did later ask Comey to lay off like Comey says but which the President denies - he could open himself up to accusations of obstruction ofjustice.? On the CBS Evening Newsit (12/4, story 5, 1:45, Glor), Major Garrett similarly reported that ?the tweet sparked new questions about whether the President has obstructed justice.? The Washington Post (12/4, Horwitz, Rucker) reports that Trump lawyer John Dowd offered a ?brazen assertion? on Monday: ?that a president cannot be found guilty of obstruction of justice.? Dowd ?sought to excuse the president?s tweet in part by telling Axios and NBC News Monday that the ?president cannot obstruct justice because he is the chief law enforcement of?cer under [the Constitution?s Article and has every right to express his view of any case.?? Axios (12/4, Allen) calls it ?a new and highly controversial defense/theory,? and Politico (12/4, Cheney) reminds readers that ?more than 40 current GOP members of Congress voted for the impeachment or removal? of President Clinton ?from office for obstruction of justice. In all, 17 sitting senators supported the obstruction of justice charge against Clinton in 1998 and 1999." The Los Angeles Times (12/4, Megerian, Tanfani) also reports on Dowd?s argument. Sen. Joe Manchin was asked on CNN's The Lead? (12/4) about Dowd?s claim that the President cannot obstruct justice. Manchin said, don?t agree. Ijust think the rule of law means the rule of law. It means we're all held accountable and there are not two systems for two different types of people.? Rep. Adam Schiff (D-CA), ranking member on the House Intelligence Committee, said on Anderson Cooper 360i: ?Yes, I believe the President is no more above the law than any other American. It would be an absurd result to say that the President could interfere with investigations involving himself or others potentially and that he is immune from any repercussion." The New York Times (12/4) says in an editorial, ?You know you have a problem when you?ve been president for less than 11 months and you?re already relying on Richard Nixon?s definition of what?s legal. Trump?s tireless spinners and sophists are working to convince the American public that it?s all no big deal. This is an embarrassing and unpersuasive argument, but it's not surprising. At this point, they have nothing else to work with.? Eugene Robinson writes in his Washington Post (12/4) column, ?We know that Trump has apparently obstructed justice to try to halt investigation into what happened. What we don?t know is whether Congress, in the end, will do its sworn duty to protect the Constitution. But let?s not lose sight of the big picture. If nothing wrong happened with Russia during the campaign, why is Trump so desperate to cover it up?? Dana Milbank writes in the Washington Post ?As details of campaign contacts with Russia piled up, Trump and his of?cials instead said there had been ?no collusion,? then ?retreated to another line of defense: Trump himself didn?t collude. Now, with four Trump campaign of?cials indicted and two of them, including Trump?s former national security adviser, pleading guilty, even that distinction no longer seems safe.? John Yoo of the American Enterprise Institute and Saikrishna Prakash of the University of Virginia write in the New York Times ?Even if the facts rose to the level of obstruction, most legal scholars agree that prosecutors cannot bring charges against a sitting president.? But ?the House and Senate can make their own judgments political as well as legal. Congress should not wait on a special counsel to perform its most fundamental constitutional duty of investigating and, if necessary, removing a corrupt president.? Daniel Hemel and Eric Posner of the University of Chicago Law School write in the New York Times (12/4) that admissions ?leave little doubt that he also violated a federal criminal statute known as the Logan Act,? which prohibits individuals from attempting to influence foreign policy ?in a dispute with the United States or ?to defeat the measures of the United States.?? And ?if Mr. violated the Logan Act, then so did the ?very senior? official who directed his actions.? However, James Robbins writes in his USA Today (12/4) column, was fully in his rights making the call to Kislyak. Despite the best efforts of the anti-Trumpers, it is still not illegal to talk to Russians.? Those In Pence?s Circle Say He Was Out Of The Loop. Politico (12/4, Nussbaum) reports that ?people close to? Vice President Pence ?are trying to make clear? that Pence ?knew nothing at all." Pence?s aides ?have maintained for months that their man was out of the loop, blissfully ignorant to contacts between the Trump campaign and various foreign actors." But while ?their story has been consistent,? it has ?left outside observers wondering how Trump?s running mate and transition head could have known so little.? McFarland Email Appears To Contradict Testimony. The New York Times (12/4, Schmidt, Lafraniere) reports that an email sent during the transition period by K.T. McFarland, who would briefly become Trump?s deputy national security adviser, ?appears to contradict testimony she gave to Congress over the summer about contacts between the Russian ambassador? and In a December 29 email, McFarland ?told another transition official that Mr. would be talking to the Russian ambassador that evening.? Russians Say Did Not Influence Kremlin Policy. The New York Times (12/ 4, Nechepurenko) reports that Kremlin spokesman Dmitri Peskov ?said on Monday that it was ?absurd? to suggest that President Vladimir V. Putin was in?uenced in any way by a request from the Trump transition last December to refrain from retaliating against sanctions? imposed by President Obama. Peskov said, ?The President makes his own decisions, guided solely by Russia?s national interests.? The Washington Post (12/4, Roth) reports that Peskov also said that ?the Kremlin does not know anything about the talks with because they were conducted by the Foreign Ministry." Russian Ambassador to the US Anatoly Antonov told the CBS Evening News?: (12/4, story 6, 2:05, Glor), ?It?s very dif?cult to try to ?nd a black cat in a dark room where there is not any cat at all.? Margaret Brennan: ?You?re saying there is no story there?? Antonov: ?There is not any proof regarding Russian interference into your election." Wray Defends FBI In Message To Agents And Staff. The New York Times (12/4, Goldman, Savage) reports that FBI Director Wray ?defended his work force in an email on Monday, a day after President Trump said on Twitter that the agency?s standing was the ?worst in History? and its reputation was in ?Tatters.?" In a message to 35,000 agents and support staff, Wray ?said that he was ?inspired by example after example of professionalism and dedication to justice demonstrated around the bureau. It is truly an honor to represent you.?? He did not mention the President by name. Trump Jr., Ex-Trump Business Associate To Appear Before House Intelligence Committee. Reuters (12/4) reports that Donald Trump Jr. and Felix Sater, a ?former business associate of the president,? will appear before the House Intelligence Committee later this week. Both sessions will be closed to the public. Mueller?s Office Says Manafort Drafted Op-Ed With Colleague With Russian Ties. The (12/4, Day, Tucker) reports, ?While facing several felony charges, Donald Trump?s former campaign chairman Paul Manafort has been working on an op-ed essay with a longtime colleague ?assessed to have ties? to a Russian intelligence service,? according to court papers filed by prosecutors working for Special Counsel Robert Mueller. The Los Angeles Times (12/4, Megerian) reports that Mueller?s of?ce ?said Manafort helped draft the editorial in recent days, working with a Russian who has ties to that country?s intelligence services. That writing violated a Nov. 8 court order ?prohibiting such out-of-court statements in order to protect the fairness of the upcoming trial,? the court ?ling said.? Reuters (12/4, has a similar report. Sen. Chris Coons said on CNN's Situation Roomii ?Clearly he?s not listening to his lawyers, or he?s more afraid of the Russians than he is of federal prosecution in the United States. That?s an enormous risk for him to take and will almost certainly lead to the re-imposition of a different arrangement for his freedom in advance of his facing trial.? FBI Agent Pulled From Probe Had Role In Drafting Comey?s Clinton Announcement. ABC World News Tonightiu (12/4, story 3, 0:40, Muir) reported on the ?veteran FBI agent who was removed from the Russia investigation. Mueller removed Peter Strzok back in August after learning he had sent potentially anti-Trump text messages.? Strzok ?played a key role in how then FBI Director James Comey announced the results of the Hillary Clinton email investigation, recommending that Comey describe Clinton's actions as ?extremely careless? rather than ?grossly negligent.? The significance is that it?s a felony to mishandle classi?ed information in a grossly negligent way." (12/4, Jarrett, Perez) reports on its website that ?the drafting process was a team effort, CNN is told, with a handful of people reviewing the language as edits were made, according to another US official familiar with the matter.? The New York Post (12/4, Fredericks) reports that Senate Judiciary Chairman Charles Grassley ?questioned the change last month, but the name of the agent who made the change was not known until now." Kellyanne Conway said on Fox News? Fox Friends?c ?It's so disturbing and troubling was at the heart of the investigation into Hillary Clinton. We know that she lied numerous times. We know that 33,000 e-mails. This is what frustrates people, and now this revelation that a decidedly, de?nitively anti-Trump FBI investigator was involved in the Hillary Clinton interviews, as the President says is now starting to make a lot of sense.? Rep. Trey Gowdy (R-SC) said on Fox News Special Reportii think from a perception standpoint, it?s incredibly serious. He was one of the agents [on] Secretary Clinton?s investigation. He is anti-Trump, perhaps pro-Clinton texts. People have the right to assume the people that are investigating them are objective and have not already made up their mind.? The Wall Street Journal (12/4) says in an editorial that while no Trump/Russia collusion has been proven, the Strzok case suggests a political motive behind the investigation. Hugh Hewitt writes in the Washington Post ?This is a blockbuster revelation, carrying the possibility of shattering public confidence.? Mueller?s Office To Soon Release Expenditure Report. The Washington Times (12/4, Noble) reports that Mueller?s office ?is preparing to release a statement of expenditures in the coming days providing a ?rst look at what the probe is costing taxpayers and depending on how funds have been spent, the disclosures could open up the controversial probe to additional criticism.? Papadopoulos?July Arrest Recounted. Politico (12/4, Gerstein) recounts eX-Trump campaign foreign policy adviser George Papadopoulos? arrest and long interview with the FBI last July. Supreme Court Allows Third Version Of Travel Ban To Take Effect While Challenges Proceed. Coverage of the Supreme Court?s order permitting the third iteration of the Trump Administration?s travel ban to be in force while challenges to it move forward is primarily straightforward, though most sources agree that the decision is a rare victory for the White House, even if it is not a total one. The version of the ban in questions deals with Chad, Iran, Libya, North Korea, Syria, Somalia, Venezuela, and Yemen. NBC Newsit (12/4, story 3, 0:50, Holt) called it ?a victory at the Supreme Court for the Trump White House.? Pete Williams: ?This means that overseas family members of people in the US who were exempt from the travel ban are now subject to it. Lower courts said it could not be applied against people who have family members here, but tonight the Court has lifted that exemption." Only Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented, ?so this could be a sign that the latest version of the travel ban will survive a Supreme Court challenge when it gets here early next year.? ABC World News Tonioht? (12/4, story 6, 0:25, Muir) said the decision ?clear[s] the way for President Trump?s travel ban, even as it is being challenged in federal courts.? The (12/4, Sherman) similarly writes that though ?this is not a ?nal ruling on the travel action indicates that the high court might eventually approve the latest version of the ban.? Critics ?of this and previous versions of the ban say they show a bias against Muslims.? Omar Jadwat of the American Civil Liberties Union said, ?President Trump?s anti-Muslim prejudice is no secret. He has repeatedly confirmed it, including just last week on Twitter. It?s unfortunate that the full ban can move forward for now, but this order does not address the merits of our claims.? The New York Times (12/4, Liptak) calls the decision ?a victory for the administration after its mixed success before the court over the summer, when justices considered and eventually dismissed disputes over the second version.? USA Today (12/4, Wolf) reports that the ?unsigned orders issued Monday urge two federal appeals courts with oral arguments scheduled later this week to render decisions ?with appropriate dispatch.?? The Washington Post (12/4, Barnes) reports that ?judges in two judicial circuits the US Court of Appeals for the 4th Circuit in Richmond and the US Court of Appeals for the 9th Circuit in San Francisco had cast doubt on Trump?s third executive order banning almost all travel from certain countries. Oral arguments are scheduled for soon? in both courts. The Los Angeles Times (12/4, Savage) calls it ?a signi?cant victory? for the President. Attorney General Sessions ?called the court?s decision a ?substantial victory for the safety and security of the American people.?? (Breitbart (12/4, Mason) quotes Sessions at greater length.) In its front?page report, the Wall Street Journal (12/4, Kendall) quotes White House spokesman Hogan Gidley saying, ?We are not surprised by today?s Supreme Court decision permitting immediate enforcement of the President?s proclamation limiting travel from countries presenting heightened risks of terrorism. The proclamation is lawful and essential to protecting our homeland. We look forward to presenting a fuller defense.? The Washington Times (12/4, Noble) says the court ?doled out a victory for the Trump administration.? Eamon Javers similarly said on CNBC's Closing Bella (12/4) that the ruling ?will be viewed as a win for the Trump Administration and some welcome news at the White House." The Wall Street Journal (12/4) editorializes in favor of the ruling, calling the court?s action an important moment for the rule of law, arguing that although it disagrees with the ban as policy, opposition to policy is no justification for courts to ignore the law. Reuters (12/4, Hurley), Bloomberg News (12/4, Stohr), and Politico (12/4, Gerstein) also report the court?s ruling. Trump, Congressional Leaders To Hold Budget Talks Thursday. The Washington Post (12/4, O'Keefe, Debonis, Werner) report that with a Dec. 8 deadline looming, President Trump and congressional leaders will meet Thursday ?to discuss enacting a year-end spending agreement in hopes of averting a government shutdown.? The Post says the meeting the night before government funding is set run out ?puts signi?cant pressure on GOP leaders to shore up support in their own ranks ahead of a vote on a plan to keep the government operating two more weeks as talks continue." Bloomberg News (12/4, Wasson) says Trump and congressional leaders are ?set to discuss a potential deal to raise defense and non-defense budget caps? as well as ?other year-end matters, including protection? for so-called ?Dreamers.? Politico (12/4, Ferris, Scholtes, Kim) reports that while funding is set to run out Friday at midnight, ?Republican leaders believe they have the votes to push back that deadline until just before Christmas.? Reuters (12/4, Cornwell) reports that Democratic leaders have accepted an invitation to meet with the President and GOP leaders for ?talks to avert a government shutdown this week." Senate Minority Leader Schumer and House Minority Leader Pelosi ?said Monday they hoped the president would remain open-minded about reaching a deal with Democrats.? The Washington Times (12/4, Howell) says that while the Democrats ?refused to show up to a White House meeting on Nov. 28, after Mr. Trump said that given Democrats' demands, there wasn't a path to agreement," on Monday they ?said they would give it another try, though they will bring a list of demands? including funding for ?rural infrastructure, provid[ing] more hurricane relief to Texas, Florida and Puerto Rico and renew[ing] the Children?s Health Insurance Program, among other things.? GOP Leaders ?Con?dent? Differences In Tax Bills Can Be Overcome. While there are ?significant differences? between the house and Senate tax bills, the (12/4, Ohlemacher, Gordon) reports that ?Republican leaders are confident none is insurmountable." The AP goes on to explain ?the differences and how each issue is likely to play out." David Muir said on ABC World News Tonight? (12/4, story 5, 3:05, Muir) that while there is ?no pressing deadline,? Republicans ?are furiously working to get this done before Christmas, as the President has asked.? House Majority Leader McCarthy was asked on Fox News? Fox Friends? (12/4) about the House bill?s 39% top rate versus the Senate?s top rate of 38%. McCarthy said, would actually like to go lower on a personal basis. I don?t think you should punish people for being successful. But they have seven rates. We have four. We'll work that out. I would always go to a lower rate.? Asked about the alternative minimum tax, McCarthy said, ?In the House, you eliminate it. If you?re in California or if you?re in New York, that's a real punishment as you go forward. I think that has to be repealed out of it. But the Senate also put it in when it came to corporations. That would also eliminate if you kept it in there the research and development bene?t that you?re getting on the tax credit going forward. 50 I think the AMT has to be eliminated all together.? Bloomberg News (12/4)says President Trump on Saturday ?introduced uncertainty over a provision that could mean a difference of about $200 billion over 10 years,? telling reporters that the corporate tax rate, which both the House and Senate bills reduce to 20%, ?could be 22? in the ?nal bill. Bloomberg News says those comments ?imposed an air of unpredictability over congressional negotiations.? The Wall Street Journal (12/4, Davidson, Jamerson) examines last-minute changes inserted by Senate Republicans that benefit oil and gas companies, cruise-ship operators, auto dealers, universities and mortgage bankers. The Journal says the question is whether the changes will survive the House-Senate conference. Nancy Cordes said in the lead story for the CBS Evening Newsii (12/4, lead story, 2:30, Glor) that Republican leaders ?predict it will take them about a week to iron out key differences between the two bills.? Kasie Hunt reported on NBC Newsi: (12/4, story 6, 2:15, Holt) that ?most American families will see their individual tax rate go down" under the bill, but ?whether your family wins or loses depends on your circumstances.? Among those who could so better are ?families with children, wealthy Americans who will avoid the estate tax if the House has its way.? On the other hand, ?those who could lose out," are ?Americans in high tax states who will likely lose their state and local income tax deduction, graduate students who could owe the IRS thousands more, and Americans who could see their health insurance premiums go up if the Senate?s repeal of the individual mandate stays in the ?nal bill.? CBS News business analyst Jill Schlesinger said on the CBS Evening Newsit (12/4, story 2, 1:35, Glor) that ?88% of people would see a tax reduction, 10% would see an increase, and the rest would actually stay the same.? The Washington Post (12/4) argues in an editorial that while the neither the House nor the Senate bill ?is an improvement over the status quo,? there are ways to craft ?a less-bad agreement.? The Post says lawmakers should remove ?extraneous provisions tacked onto one bill or the other in order to pay off a particular lawmaker or to satisfy narrow ideological preoccupations.? In addition, they ?should reduce the impact on the debt by scaling back the most unjusti?able giveaways to the wealthy,? and ?take up President Trump on his willingness to drop the 35 percent corporate tax rate to 22 percent,? rather than 20%. Also, ?instead of chopping away at the deduction for state and local taxes,? they ?should reduce tax breaks in a fairer way, perhaps by further limiting the home mortgage deduction." Pelosi Says Tax Bill Is Worst On Congressional History. The Hill (12/4, Marcos) reports that House Minority Leader Pelosi argued on the House ?oor Monday that the Republican tax bill is ?the worst bill in the history of the United States Congress.? Pelosi said, ?Now, how can I make that claim? Well, because it involves more money, hurts more people, increases the de?cit by so much more, and just because everything is bigger in our country, the consequences of this bill, a multi-trillion dollar economy being addressed by a bill that had no hearings, no expert testimony.? Republicans Sought To Discredit JCT Ahead Of Senate Vote. The New York Times (12/4, Tankersley) reports that a change to congressional budget rules implemented by Republicans in 2015 which requires that ?Congress consider the full cost of major legislation threatened to derail the party's $1.5 trillion tax rewrite last week,? so ?lawmakers went on the offensive to discredit? the Joint Committee on Taxation, which performed the analysis. Hours before last week?s Senate vote, Senate Republicans ?opened an assault? on the JCT and its analysis, ?which showed the Senate plan would not, as lawmakers contended, pay for itself but would add $1 trillion to the federal budget deficit.? The Times cites ?public statements and messaging documents" which ?show a concerted push by Republican lawmakers to discredit a nonpartisan agency they had long praised.? The Times says the ?swift backlash helped defuse concerns about the de?cit impact long enough for the bill to pass by a vote of 51 to 49.? Companies Lobby To Eliminate Corporate AMT. The Wall Street Journal (12/4, Francis, Rubin) reports in a front-page story that the Senate?s last-minute decision to keep a corporate alternative minimum tax took CEOs and business groups by surprise and on Monday, they launched a lobbying effort to eliminate or alter the provision. Citing the provision, the Daily Intelligencer (NY) (12/4, Levitz) says Republicans ?accidentally nulli?ed all of their corporate donors? favorite deductions." With their ?blunder? Republicans accomplished ?the unthinkable: They?ve written a giant corporate tax cut that many of their corporate donors do not like.? CEO Says Senate Bill Raise Murray Energy?s Taxes $60 Million. Murray Energy CEO Robert Murray said on Closing Bell in ?The Senate?s legislation, in fact, is a huge tax increase on capital intensive, highly leveraged businesses. The result comes from leaving the alternative minimum tax in their plan, and then deleting the deduction for net interest expense as a cost of business.? Murray added that ?for Murray energy, alone, this will raise our taxes $60 million a year notwithstanding the other so- called benefits that the Senate has proposed.? Democratic Governors Vow To Fight Tax Bill. Politico (12/4, Vielkind) reports that three Democratic governors California Gov. Jerry Brown, New York Gov. Andrew Cuomo, and New Jersey Gov.-elect Phil Murphy vowed Monday ?to do everything they can to stop the emerging federal tax overhaul - even sue.? During a conference call with reporters, the Governors ?denounced the bill? as ?dangerous,? ?fraudulent,? ?nefarious,? ?a scam? and ?trickle down on steroids.? They take issue in particular with ?the bill?s curtailment of the federal deduction for state and local taxes." A front-page analysis in the New York Times (12/4, Casselman, McGeehan) calls the bill ?an economic dagger aimed at high-tax, high-cost and generally Democratic- leaning areas most notably New York City and its neighbors." According to the Times, the bill ?could send home prices tumbling 10 percent or more in parts of the New York area, according to one economic analysis." In addition, it could ?increase the regional tax burden, complicating companies? efforts to attract skilled workers,? and ?make it harder for state and local governments to pay for upgrades to the transit system and other infrastructure.? Moreover, ?it could force cuts in federal programs that help immigrants, the elderly and other low-income residents afford the region's high cost of living.? WSJournaI: Conference Should Adopt House Bill Provision On Attorney Contingency Fees. In an editorial, the Wall Street Journal (12/4) says Sen. Lindsey Graham removed a provision from the Senate tax bill to eliminate a contingency-fee carve-out for California plaintiff attorneys. The Journal adds that a provision in the House bill would create equality across the country and urges the conference committee to adopt it. North Korea: US-South Korea Air Drills Put Peninsula At ?Brink Of Nuclear War.? All three networks reported on the size and scope of joint US-South Korean war drills currently taking place in the Korean Peninsula. Outlets said the drills, which follow North Korea?s recent ICBM test, have escalated tensions. ABC World News Tonight? (12/4, story 10, 0:20, Muir) reported the US and South Korea are conducting simulated war drills involving hundreds of aircraft in a ?massive show of force? days after North Korea launched its ?most powerful missile yet.? Pyongyang argues the air drills are bringing the peninsula ?to the brink of nuclear war.? The New York Times (12/4, Mullany) reports that ?such drills have drawn vigorous criticism from North Korea, whose state news media said Sunday? that Pyongyang would ?seriously consider? countermeasures against the drill and warned the US and Seoul would ?pay dearly for their provocations.? North Korea, the Washington Post (12/4, Fi?eld) reports, denounced the exercises as dangerous ?when insane President Trump is running wild,? while warned that they sharply increase the chances of miscalculation and accidental conflict.? NBC News?t (12/4, story 8, 2:50, Holt) said the US ?is making a major show of force to North Korea with hundreds of planes, including two dozen radar-evading stealth jets, taking part in war games with South Korea.? The CBS Evening News?u (12/4, story 3, 2:20, Glor), which called the drills ?one of the largest combined Air Force exercises in history,? showed Air Force Col. Scott Jobe, commander at the Misawa Air Base in Japan, saying ?We want diplomacy to take its course. We want that to be the primary mechanism, but if needed and if called on, we?re ready to go, and we're ready to go right now, 100%." New US Weapon Could Stop North Korean Missiles. US government officials tell News? (12/4, story 8, 2:50, Holt) ?that White House officials have been informed about a sophisticated weapon advocates believe could stop North Korean missiles." Sen. Martin Heinrich described the technology: ?Think about like when you put something in your microwave that actually has some metal on it. You know how badly that can go. Imagine directing those microwaves at someone?s electronics.? Mary Lou Robinson, the chief of high-powered electromagnetics at the Air Force research laboratory in New Mexico who supervised a series of tests, said ?this technology absolutely works." Proponents of the technology point out that it doesn?t harm humans. They ?say while it is not currently operational, it could be quickly. Tonight, no of?cial comment from the White House.? Senior UN Official To Visit North Korea This Week. Reuters (12/4, Nichols) reports UN political affairs chief will visit North Korea this week, ?making the highest-level visit by a UN of?cial in more than six years.? Jeffrey Feltman, a former senior State Department of?cial, will visit from Tuesday to Friday and meet with officials to discuss ?issues of mutual interest and concern,? the UN said. Spokesman Stephane Dujarric said Feltman will meet with North Korea Foreign Minister Ri Yong Ho and Vice Minister Pak Myong Guk during the visit. The Washington Post (12/4, Taylor) reports Feltman?s trip was arranged ?after the United Nations received an invitation from North Korea.? Civilian Airline Saw Latest North Korean Missile Re-Entry. Brian Todd reported on Situation Room it (12/4) that of?cials at a Hong Kong-based airline say the crew of one of their passenger planes ?spotted the attempted re-entry of that North Korean long-range missile last week.? The flight was ?far away? from the missile, ?but if that missile broke up on re-entry and there was debris ?ying around, that flight could have conceivably been in danger.? The Washington Post (12/4, Selk) reports Cathay Paci?c said in a statement that the San Francisco-to-Hong Kong ?ight was ?far from the event location” and that the airline “does not plan to change its flight routes, even as North Korea seems intent on testing ever more technologically advanced missiles.” US Mayors Set To Sign Climate Agreement In Chicago. USA Today (12/4, Madhani) reports that “dozens of U.S. mayors are set to sign their own climate accord vowing to do their part in cutting the nation’s greenhouse emissions.” The agreement is called the “Chicago Charter” and is expected to be signed by representatives of at least 36 US cities on “Tuesday at the North American Climate Summit in Chicago.” The charter “lays out the framework for how some of the country’s municipalities plan to reach goals to reduce greenhouse emission and monitor each others progress — objectives similar to what the Paris international climate pact strives to achieve.” The Chicago Tribune (12/4, Byrne, Ruthhart) reports former President Barack Obama will address the summit. Chicago Mayor Rahm Emanuel said, “President Obama helped lead the fight against climate change with bold and decisive action, and we are honored he will be joining the North American Climate Summit where local leaders from around the world will make meaningful commitments to climate solutions.” The Tampa Bay (FL) Times (12/4, Frago) reports St. Petersburg, Florida Mayor Rick Kriseman will be at the summit “to trade ideas with more than 40 other mayors from around the world, including Buenos Aires, Dar Es Salaam, Copenhagen and Paris.” The Times adds “the three days of panels and break-out discussions should give mayors plenty of time to compare and contrast their cities’ challenges, the mayor said.” The AP (12/4) also provides brief coverage. Editorial Wrap-Up New York Times. “Yes, The President Can Obstruct Justice.” The New York Times (12/4) says in an editorial, “You know you have a problem when you’ve been president for less than 11 months and you’re already relying on Richard Nixon’s definition of what’s legal. ... Trump’s tireless spinners and sophists are working to convince the American public that it’s all no big deal. This is an embarrassing and unpersuasive argument, but it’s not surprising. At this point, they have nothing else to work with.” “With Death Of Ali Abdullah Saleh, Need for Yemen Peace Grows.” A New York Times (12/4) editorial says the “best hope for Yemen lies in a cease-fire, an end to the Saudi blockade, a negotiated withdrawal of the Houthis from the capital and another attempt at national dialogue, this time on a more realistic basis.” The absence of former Yemeni president Ali Abdullah Saleh, who was killed Monday, “could make that easier as well.” Washington Post. “Is A Senate Seat Really Worth This?” In an editorial, the Washington Post (12/4) says that while Alabama Republican Senate candidate Roy Moore has denied the allegations of sexual misconduct, “he does not outright deny dating teenage girls as an older man. Many other women allege that he preyed on them as teenagers. None of them have reason now to lie. This is the man Mr. Trump has decided he needs in the Senate. Alabama voters must decide if they agree. Is it so important to have a senator who will vote the president’s way on tax cuts or judicial appointments that they are willing to be represented by a person who would do such abhorrent things to young girls?” “How To Move The Tax Bill From Worse To Bad.” The Washington Post (12/4) argues in an editorial that while the neither the House nor the Senate tax bill “is an improvement over the status quo,” there are ways to craft “a less-bad agreement.” The Post says lawmakers should remove “extraneous provisions tacked onto one bill or the other in order to pay off a particular lawmaker or to satisfy narrow ideological preoccupations.” In addition, they “should reduce the impact on the debt by scaling back the most unjustifiable giveaways to the wealthy,” and “take up President Trump on his willingness to drop the 35 percent corporate tax rate to 22 percent,” rather than 20%. Also, “instead of chopping away at the deduction for state and local taxes,” they “should reduce tax breaks in a fairer way, perhaps by further limiting the home mortgage deduction.” “The District Has A Chance To Address Homelessness With Reason, Not Emotion.” The Washington Post (12/4) editorializes that the District of Columbia Council should give its final approval to an overhaul of the District’s “law governing homeless services in the city.” The Post opines that money that used to be spent on housing families in motels on cold nights “would be better spent on increasing affordable housing or helping families become more stable.” The Post also indicates that the changes already appear to have resulted in “a decrease in the number of families requiring shelter.” Wall Street Journal. “Mueller’s Credibility Problem.” The Wall Street Journal (12/4) says in an editorial that while no Trump/Russia collusion has been proven, the Peter Strzok case suggests a political motive behind the investigation. “Supreme Rebuke For The Judiciary.” The Wall Street Journal (12/4) editorializes in favor of the ruling by the Supreme Court on Monday allowing the Trump Administration’s travel ban to take effect. The 7-2 order (with Justices Ruth Bader Ginsburg and Sonia Sotomayor dissenting) granted the Administration’s request to block the stay of the ban issued by federal judges in Hawaii and Maryland. The Journal calls the court’s action an important moment for the rule of law, arguing that although it disagrees with the ban as policy, opposition to policy is no justification for courts to ignore the law. “The Trial Bar’s Tax Break.” In an editorial, the Wall Street Journal (12/4) says Sen. Lindsey Graham removed a provision from the Senate tax bill to eliminate a contingencyfee carve-out for California plaintiff attorneys. The Journal adds that a provision in the House bill would create equality across the country and urges the conference committee to adopt it. Big Picture Headlines From Today’s Front Pages. Wall Street Journal: Supreme Court Lets Trump Travel Ban Take Effect For Now Businesses Push To Repeal Corporate AMT Rebels Kill Yemen’s Ex-Leader, Opening New Phase In War How Dollar General Became Rural America’s Store Of Choice New York Times: Trump Slashes Size Of Bears Ears And Grand Staircase Monuments How New Yorkers Would Lose Under The Republican Tax Bill Trump Travel Ban To Take Effect After Supreme Court Ruling Roy Moore Gets Trump Endorsement And RNC Funding For Senate Race In Sex Abuse Cases, An Expiration Date Is Often Attached New Facebook App For Children Ignites Debate Among Families Yemen’s Ex-President Killed As Mayhem Convulses Capital Washington Post: Trump Shrinks National Monuments Woman Shares New Evidence Of Dating Roy Moore At Age 17 Travel Ban Can Be Fully Enforced, Justices Say Lawyer For Trump Posits Legal Immunity I-66 Rush-Hour Crowd Sees Tolls Hit $34.50 On First Day Financial Times: Brexit Deal Falls Through Over Irish Border Dispute China Hit By Gas Shortages As It Moves Away From Coal Wall Street Sets New Records On Tax Breakthrough Washington Times: Supreme Court Allows Full Enforcement Of Trump Travel Ban Supreme Court Questions Federal Law Banning State-Sponsored Sports Betting NFL’s Hail Mary: Deal Would Dole Out Millions To Soros-Linked Social-Justice Groups Mueller To Invite Criticism By Revealing Taxpayers’ Tab For Russia Investigation Amazon Effect: Aetna-CVS Deal A Symptom Of Retail Giant’s Penchant For Disrupting Entire Industries Trump’s ‘America First’ Policy Hits Argentine Biodiesel Producers, ‘Good Friend’ Macri Story Lineup From Last Night’s Network News: ABC: Russia Meddling Investigation; Russia Meddling Investigation-Expert Comment; Russia Meddling Investigation-FBI Agent Removed; Roy Moore Campaign; Tax Reform Plan; SCOTUS-Travel Restriction; Florida Teen Runaway Found; CVS-Aetna Merger; Weather Forecast; North Korea Threats; Minnesota-Dental Surgery Accident; Toddler Murder; Shark Attack Video; Trump-Utah National Monuments; Silver Dome Demolition; Christmas Lights. CBS: Tax Reform Plan; Tax Reform Plan-Expert Comment; North Korea Threats; FloridaMass Shooting Foiled; Russia Meddling Investigation-Trump; Russia Meddling Investigation-Russian Ambassador; Trump-Access Hollywood Video; Roy Moore Campaign; John Anderson Dies; Super Moon; Trump-Utah National Monuments; TIMEPerson Of The Year List; Text Message History; Space Pizza Delivery; Animal Dentist. NBC: Russia Meddling Investigation; Roy Moore Campaign; SCOTUS-Travel Restriction; Trump-Utah National Monuments; CVS-Aetna Merger; Tax Reform Plan; Weather Forecast; North Korea Threats; Uterus Transplant Birth; Weight Loss Program; Silver Dome Demolition; Las Vegas Charity. Network TV At A Glance: Russia Meddling Investigation – 12 minutes, 10 seconds Tax Reform Plan – 9 minutes, 25 seconds North Korea Threats – 5 minutes, 30 seconds Roy Moore Campaign – 4 minutes, 30 seconds Trump-Utah National Monuments – 3 minutes, 15 seconds Story Lineup From This Morning’s Radio News Broadcasts: ABC: Oklahoma Earthquake; California Wildfire; SCOTUS-Travel Restriction; Tax Reform Plan; Wall Street News. CBS: SCOTUS-Travel Restriction; Federal Budget; Trump-Utah National Monuments; Russia Meddling Investigation; San Francisco Shooting Trial. FOX: SCOTUS-Travel Restriction; Russia Meddling Investigation; Trump-Utah National Monuments; Florida-Mass Shooting Foiled; Opioid Epidemic. NPR: Federal Budget; Trump-Utah National Monuments; Russia Meddling Investigation; Opioid Epidemic. Washington Schedule Today’s Events In Washington. White House: PRESIDENT TRUMP — Has lunch with Republican Members of the Senate; leads a discussion with American business owners and their families; hosts the Congressional Ball. VICE PRESIDENT PENCE — Participates in the Senate Republican Policy Lunch; attends the Congressional Ball. US Senate: 10:00 AM Senate HELP Committee nominations hearing – Nominations hearing considers Kenneth Marcus to be Assistant Secretary of Education for Civil Rights; Johnny Collett to be Assistant Secretary of Education for Special Education and Rehabilitative Services; Scott Mugno to be Assistant Secretary of Labor for the Occupational Safety and Health Administration; and Dr William Beach to be Commissioner of Labor Statistics Location: Dirksen Senate Office Building, Rm 430, Washington, DC http://help.senate.gov/ 10:00 AM Senate Energy and Natural Resources Committee nominations hearing – Nominations hearing considers Dr Timothy Petty to be Assistant Secretary of the Interior for Water and Science; and Dr Linda Capuano to be Energy Information Administration Administrator Location: Rm 366, Dirksen Senate Office Bldg, Washington, DC www.energy.senate.gov 10:00 AM Senate Appropriations subcommittee hearing on addressing the opioid crisis – Labor, Health and Human Services, Education, and Related Agencies Subcommittee hearing on ‘Addressing the Opioid Crisis in America: Prevention, Treatment, and Recovery’, with testimony from President’s Commission on Combating Drug Addiction and the Opioid Crisis member (and former Rep.) Patrick Kennedy; Substance Abuse and Mental Health Services Administration Assistant Secretary for Mental Health and Substance Use Dr Elinore McCance-Katz; National Institutes of Health Director Dr Francis Collins; and CDC National Center for Injury Prevention and Control Director Dr Debra Houry Location: Rm 124, Dirksen Senate Office Bldg, Washington, DC http://appropriations.senate.gov/ https://twitter.com/SenateApprops 10:00 AM Senate Banking Committee votes on Fed governor nominee – Executive Session, with agenda including the nomination of Jerome Powell to be Federal Reserve System Chairman of the Board of Governors, as well as ‘S. 2155, the Economic Growth, Regulatory Relief and Consumer Protection Act’ * President Donald Trump announced Powell’s nomination at the beginning of last month, and, if confirmed, he will replace Janet Yellen in February after she has served just one term Location: Dirksen Senate Office Building, Rm 538, Washington, DC http://banking.senate.gov/ 2:30 PM Senate Foreign Relations Committee Business Meeting, hearing on international accords – Business Meeting, with agenda including legislation including ‘S.1118, North Korean Human Rights Reauthorization Act of 2017’, ‘S.447, Justice for Uncompensated Survivors Today Act of 2017’, ‘S. Res. 150, A resolution recognizing threats to freedom of the press and expression around the world and reaffirming freedom of the press as a priority in efforts of the United States Government to promote democracy and good governance’, ‘S. Res 139, A resolution condemning the Government of Iran’s state-sponsored persecution of its Baha’i minority and its continued violation of the International Covenants on Human Rights’, and the nominations of Eric Ueland to be Under Secretary of State for Management, and James Randolph Evans to be U.S. Ambassador to Luxembourg * Immediately followed by hearing on ‘The President, Congress, and Shared Authority Over International Accords’, with testimony from Duke University School of Law Professor Curtis Bradley; and former Principal Deputy National Security Advisor Avril Haines Location: U.S. Capitol, S-116, Washington, DC http://foreign.senate.gov/ 2:30 PM Senate Energy and Natural Resources subcommittee legislative hearing – Energy Subcommittee legislative hearing on ‘S. 1336, Reliable Investment in Vital Energy Reauthorization Act’, ‘S. 1455, Energy Storage Goals and Demonstration Projects Act’, ‘S. 1563, Rare Earth Element Advanced Coal Technologies Act’, ‘S. 1851, Advancing Grid Storage Act’, ‘S. 1876, Reducing the Cost of Energy Storage Act’, ‘S. 1981, Small Scale LNG Access Act’, and ‘S. 2030, Ceiling Fan Energy Conservation Harmonization Act’, with testimony from Republican Sen. Thom Tillis; and Under Secretary of Energy Mark Menezes Location: Rm 366, Dirksen Senate Office Bldg, Washington, DC www.energy.senate.gov 3:00 PM Closed Briefing: Intelligence Matters Location: Rm 219, Hart Senate Office Bldg, Washington, DC http://intelligence.senate.gov US House: 11:00 AM GOP Reps. Rob Bishop, Chris Stewart, and John Curtis host Pen & Pad on President Trump’s Utah visit – House Committee on Natural Resources Chairman Rob Bishop and Republican members Chris Stewart and John Curtis host Pen & Pad to discuss President Donald Trump’s visit to Utah yesterday and the introduction of related legislation Location: U.S. Capitol, Washington, DC http://naturalresources.house.gov https://twitter.com/NatResources 11:00 AM House Minority Whip Steny Hoyer regular pen-and-pad briefing Location: H-144, U.S. Capitol, Washington, DC www.democraticwhip.gov/ https://twitter.com/WhipHoyer 12:00 PM House meets for legislative business – House of Representatives meets for legislative business, with agenda including consideration of ‘H.R. 3731 – Secret Service Recruitment and Retention Act of 2017’, as amended, ‘H.R. 3317 – SAFE Act’, ‘H.Res. 259 – Expressing concern and condemnation over the political, economic, social, and humanitarian crisis in Venezuela’, as amended, ‘H.R. 2658 – Venezuela Humanitarian Assistance and Defense of Democratic Governance Act of 2017’, as amended, ‘H.Con.Res. 90 – Condemning ethnic cleansing of the Rohingya and calling for an end to the attacks in and an immediate restoration of humanitarian access to the state of Rakhine in Burma’, as amended, and ‘S. 1266 – Enhancing Veteran Care Act’ under suspension of the rules Location: Washington, DC http://www.house.gov/ 2:00 PM House Rules Committee hearing – Hearing on ‘H.R. 38 – Concealed Carry Reciprocity Act of 2017’ and, as an emergency measure, ‘H.J. Res. XXXX – Further Continuing Appropriations Act, 2018’ Location: U.S. Capitol, H-313, Washington, DC http://www.rules.house.gov/ https://twitter.com/RulesReps Other: 8:00 AM International Religious Freedom conference – Order of St. Andrew, Archons of the Ecumenical Patriarchate International Religious Freedom conference, with U.S. officials, Greek Orthodox Archdiocese of America, and other Christian groups addressing the persecution of Christians in the Middle East and North Africa. Day two agenda includes Capitol Hill Lunch with Democratic Sen. Ben Cardin, session on ‘Persecution of Christians and Possible Solutions’ with Republican Sen. James Lankford and Rep. Gus Bilirakis, and banquet with former White House of Chief of Staff Reince Priebus Location: Trump International Hotel Washington, D.C., 1100 Pennsylvania Ave NW, Washington, DC conference.archons.org https://twitter.com/OrderStAndrew 8:00 AM POLITICO Women Rule Summit – POLITICO Women Rule Summit, to discuss how women can continue to make strides in achieving leadership positions across all sectors, with speakers include Secretary of Transportation Elaine Chao, Democrats Sen. Kirsten Gillibrand and Rep. Cheri Bustos, Republican Sen. Marco Rubio, Rolls-Royce North America Chairman, President, and CEO Marion Bovino, ‘Me Too’ movement founder Tarana Burke, Massachusetts Attorney General Maura Healey, International Refugee Assistance Program Director Becca Heller, Invariant founder and CEO Heather Podesta, Wethos CEO and Creative Director Rachel Renock, former Customs and Immigration Enforcement Director Sarah Saldana, Women in Federal Law Enforcement Foundation President Catherine Sanz, The Cook Political Report National Editor Amy Walter, and SoulCycle CEO Melanie Whelan Location: Four Seasons Hotel Washington, DC, 2800 Pennsylvania Ave NW, Washington, DC www.politico.com https://twitter.com/POLITICOEvents 9:00 AM Pakistan Ambassador to the U.S. speaks at Carnegie Endowment – Pakistan Ambassador to the U.S. Amb. Aizaz Ahmad Chaudhry speaks at Carnegie Endowment for International Peace on ‘Peace and Stability in South Asia’, discussing the changes taking place in the region Location: Carnegie Endowment for International Peace, 1779 Massachusetts Ave NW, Washington, DC http://www.carnegieendowment.org https://twitter.com/CarnegieEndow Last Laughs Late Night Political Humor. Stephen Colbert: “Well, it feels like Christmas is here, courtesy of Robert Mueller coming down the White House chimney with a sack full of subpoenas.” Stephen Colbert: “So they’re saying Trump’s lawyer wrote a tweet in the voice of his client, without the client’s permission or knowledge, a tweet in which the client indicts himself for obstruction of justice. That is malpractice. I certainly hope John Dowd has a lawyer that’s way better than John Dowd.” James Corden: “Donald Trump spent the entire weekend furiously lashing out at the FBI on Twitter over the Russia investigation. Don’t worry, I’m sure he still got to play golf, too, but that was mostly what he was doing.” James Corden: “When reporters questioned the story, Trump took his usual approach, blaming Hillary. He said, quote, ‘Hillary Clinton lied many times to the FBI, and nothing happened to her.’ Nothing happened to her? She lost a presidential election to Donald Trump. ... She wrote an entire book called ‘What Happened.’” James Corden: “According to Donald Trump’s former campaign manager, Trump’s usual McDonald’s order, and this is just for one meal, is two Big Macs, two Filet-O-Fish and a chocolate milkshake. Yeah, that’s not a meal order – that is an assassination attempt.” Trevor Noah: “First on Friday at 2 a.m. while you were on the dance floor, Republicans were on the Senate floor really burning down the house. And we’re going to get into that later in the show. But before that, it turns out we may all be saying ‘Merry Christmas’ again because Robert Mueller bought America a gift.” Trevor Noah: “Normally, you don’t think of Congress getting a lot done on Friday night, or Friday afternoon, or any time on Friday, or really any other day of the week. But this past Friday was different because Republicans finally had a chance to pass a sweeping tax bill that would make all those clenched smiles next to Trump totally worth it.” Jimmy Fallon: “What a crazy weekend in Washington. First, former National Security Adviser Michael Flynn cut a plea deal with Robert Mueller and then the Senate passed the GOP tax bill. I tried to follow it on the news, but all the anchors have been fired for sexual harassment, so I didn’t see anything.” Jimmy Fallon: “Michael Flynn agreed to a plea deal with Robert Mueller, and it came out that the FBI is investigating everyone in the White House, all the way to the top. Trump was like, ‘Oh my God, they’re investigating Putin?’” Jimmy Fallon: “The [Senate tax] bill’s drawn lots of criticism. Experts say it will ruin healthcare, cause problems for the elderly, and add over $1 trillion to the deficit. Trump’s cabinet was like, ‘Phew, thank God we’re going to jail. I mean, could you imagine if we had to live in this world?’” Seth Meyers: “The Senate passed a Republican tax bill just before 2:00 a.m. on Saturday, and if you’re wondering if that’s a good thing, try to remember the last time anything good happened to you at 2:00 a.m. on a Saturday.” Seth Meyers: “A new poll has found that 48 percent of Roy Moore’s supporters plan to vote for him because he’s the best person for the job. What’s the job? Male stripper for nursing homes?” Seth Meyers: “Former National Security Adviser Michael Flynn on Friday pleaded guilty to lying to the FBI about contacts with the Russian ambassador. And if that’s what he pleaded to, you know whatever he did was worse. It’s like if OJ had pleaded guilty to changing lanes without signaling.” Conan O’Brien: “This morning, President Trump endorsed Republican Senate candidate Roy Moore, despite the fact that Moore has been accused of molesting minors. When asked why he endorsed Moore, Trump said, ‘Us gross guys got to stick together.’” Conan O?Brien: ?Time magazine has published short list of nominees for person of the year, and it includes Colin Kaepernick, Donald Trump and Robert Mueller. And if it's a three-way tie, that's going to be one awkward photo shoot.? Jordan Klepper: ?Obstruction of justice because of a tweet? If anything on Twitter mattered, we?d have already started a hashtag war with North Korea." Jordan Klepper: ?So why would we cover the President?s potential crimes when we haven?t even investigated a failed candidate?s potential crimes yet? We need to focus on the real criminal: a private citizen who isn?t in power! Trump gets it!" Jordan Klepper: ?As the deadline drew near, senators] filled the margins [of the tax bill] with handwritten notes, a personal touch the ungrateful Democrats failed to appreciate.? Jordan Klepper: ?Republicans love this bill. Even Santa loves this bill, and why wouldn't he? He lives in a red state and runs a global corporation fueled by cheap labor." Copyright 2017 by Bulletin Intelligence LLC Reproduction or redistribution without permission prohibited. Content is drawn from thousands of newspapers, national magazines, national and local television programs, radio broadcasts, social-media platforms and additional forms of open-source data. Sources for Bulletin Intelligence audience-size estimates include Scarborough, MRI, comScore, Nielsen, and the Audit Bureau of Circulation. Data from and access to third party social media platforms, including but not limited to Facebook, Twitter, Instagram and others, is subject to the respective platform?s terms of use. Services that include Factiva content are governed by Factiva?s terms of use. Services including embedded Tweets are also subject to Twitter for Website's information and privacy policies. The Department of the Interior News Brie?ng is published ?ve days a week by Bulletin Intelligence, which creates custom brie?ngs for government and corporate leaders. We can be found on the Web at BulletinIntelligence.com, or called at (703) 483-6100. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:36 PM Conversation Contents Twin Metals Revisions Attachments: I45. Twin Metals Revisions/1.1 Twin Metals -- Draft 11 29 17.docx "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Thu Nov 30 2017 08:11:22 GMT-0700 (MST) To: Daniel Jorjani Subject: Twin Metals Revisions Attachments: Twin Metals -- Draft 11 29 17.docx Dan: Attached is a redlined version of the proposed Twin Metals M-Opinion that addresses comments we received from ENRD. Daniel Jorjani From: Daniel Jorjani Sent: Thu Nov 30 2017 08:36:29 GMT-0700 (MST) To: "Haugrud, Kevin? Subject: Re: Twin Metals Revisions Thank you. Daniel H. Jorjani US. Department of the Interior Acting Solicitor Principal Deputy Solicitor Main Interior Building, Suite 6356 '202-219-3861 (Voice) 0 202-706-9018 (Cell) daniel.'or'ani sol.doi. ov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. Sent from my iPhone On Nov 30, 2017, at 10:11 AM, Haugrud, Kevin wrote: Dan: Attached is a redlined version of the proposed Twin Metals M-Opinion that addresses comments we received from ENRD. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:36 PM Conversation Contents Twin Metals Rewrite Attachments: /46. Twin Metals Rewrite/1.1 Twin Metals -- Draft 11 29 17.docx /46. Twin Metals Rewrite/3.1 Twin Metals -- Draft 11 29 17+bwc.docx "Haugrud, Kevin" From: Sent: To: CC: Subject: Attachments: "Haugrud, Kevin" Wed Nov 29 2017 15:34:54 GMT-0700 (MST) Briana Collier , Richard McNeer Karen Hawbecker , Gary Lawkowski Twin Metals Rewrite Twin Metals -- Draft 11 29 17.docx Please take a quick look at page 11 and see if it bolsters sufficiently the (b) (5) discussion. "Collier, Briana" From: Sent: To: CC: Subject: "Collier, Briana" Wed Nov 29 2017 15:52:18 GMT-0700 (MST) "Haugrud, Kevin" Richard McNeer , Karen Hawbecker , Gary Lawkowski Re: Twin Metals Rewrite This looks good to me. I think the additions sufficiently bolster the argument. Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Wed, Nov 29, 2017 at 3:34 PM, Haugrud, Kevin wrote: Please take a quick look at page 11 and see if it bolsters sufficiently the (b) (5) discussion. "Collier, Briana" From: Sent: To: CC: Subject: Attachments: "Collier, Briana" Wed Nov 29 2017 18:08:33 GMT-0700 (MST) "Haugrud, Kevin" Richard McNeer , Karen Hawbecker , Gary Lawkowski Re: Twin Metals Rewrite Twin Metals -- Draft 11 29 17+bwc.docx Here is my stab at the two footnotes we discussed, added on to the draft Jack sent in this email chain as footnotes 61 and 65. Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Wed, Nov 29, 2017 at 3:52 PM, Collier, Briana wrote: This looks good to me. I think the additions sufficiently bolster the argument. Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Wed, Nov 29, 2017 at 3:34 PM, Haugrud, Kevin wrote: Please take a quick look at page 11 and see if it bolsters sufficiently the (b) (5) discussion. "Haugrud, Kevin" From: Sent: To: CC: Subject: "Haugrud, Kevin" Thu Nov 30 2017 08:24:04 GMT-0700 (MST) "Collier, Briana" Richard McNeer , Karen Hawbecker , Gary Lawkowski Re: Twin Metals Rewrite Thanks Briana. As you initially thought, I think the second footnote raises issues we do not want to address. On the first one, after reading the footnote, I decided we needed to expand the text a bit as well as adding a footnote. So I did that. I also went through and adjusted tone when addressing the existing M-Opinion. I am not yet distributing the revised draft because Dan asked to see it first. I have sent it to him and will send you all the revised version after Dan has completed his review. On Wed, Nov 29, 2017 at 8:08 PM, Collier, Briana wrote: Here is my stab at the two footnotes we discussed, added on to the draft Jack sent in this email chain as footnotes 61 and 65. Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Wed, Nov 29, 2017 at 3:52 PM, Collier, Briana wrote: This looks good to me. I think the additions sufficiently bolster the argument. Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Wed, Nov 29, 2017 at 3:34 PM, Haugrud, Kevin wrote: Please take a quick look at page 11 and see if it bolsters sufficiently the (b) (5) discussion. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:36 PM Conversation Contents Twin Metals - Draft M-Opinion Attachments: /47. Twin Metals - Draft M-Opinion/1.1 Twin Metals -- Draft 11 24 17.docx "Haugrud, Kevin" From: Sent: To: CC: Subject: Attachments: "Haugrud, Kevin" Mon Nov 27 2017 09:39:33 GMT-0700 (MST) "Lisa Russell (ENRD)" , "Bosshardt, Stacey (ENRD)" , "Boronow, Clare (ENRD)" , "Piropato, Marissa (ENRD)" , Sean.C.Duffy@usdoj.gov Briana Collier , Richard McNeer , Karen Hawbecker Twin Metals - Draft M-Opinion Twin Metals -- Draft 11 24 17.docx Attached is a draft of a M-Opinion that would reverse M-37036 and conclude that Twin Metals does have a non-discretionary right to a third renewal. The Acting Solicitor would like to issue the M-Opinion this week, so we would appreciate any comments on the M-Opinion as soon as reasonably possible this week. I recognize we also need to discuss next steps once the opinion is issued. I can have Marigrace set up a time to discuss if you would like. "Bosshardt, Stacey (ENRD)" From: Sent: To: CC: Subject: "Bosshardt, Stacey (ENRD)" Tue Nov 28 2017 11:35:46 GMT-0700 (MST) "Haugrud, Kevin" , "Russell, Lisa (ENRD)" , "Boronow, Clare (ENRD)" , "Piropato, Marissa (ENRD)" , "Duffy, Sean C. (ENRD)" Briana Collier , Richard McNeer , Karen Hawbecker RE: Twin Metals - Draft M-Opinion Thanks, Jack. We reached out to Karen but she is out of the office until Thursday –would you prefer to set up a time before then to get our thoughts on the draft, or wait until she returns? Stacey Stacey Bosshardt Assistant Section Chief Natural Resources Section Environment & Natural Resources Division U.S. Department of Justice P.O. Box 7611 Washington, D.C.20044-7611 Stacey.Bosshardt@usdoj.gov 202-514-2912 (telephone) 202-305-0506 (fax) From: Haugrud, Kevin [mailto:jack.haugrud@sol.doi.gov] Sent: Monday, November 27, 2017 11:40 AM To: Russell, Lisa (ENRD) ; Bosshardt, Stacey (ENRD) ; Boronow, Clare (ENRD) ; Piropato, Marissa (ENRD) ; Duffy, Sean C. (ENRD) Cc: Briana Collier ; Richard McNeer ; Karen Hawbecker Subject: Twin Metals - Draft M-Opinion Attached is a draft of a M-Opinion that would reverse M-37036 and conclude that Twin Metals does have a non-discretionary right to a third renewal. The Acting Solicitor would like to issue the M-Opinion this week, so we would appreciate any comments on the M-Opinion as soon as reasonably possible this week. I recognize we also need to discuss next steps once the opinion is issued. I can have Marigrace set up a time to discuss if you would like. "Haugrud, Kevin" From: Sent: To: CC: Subject: "Haugrud, Kevin" Tue Nov 28 2017 11:40:24 GMT-0700 (MST) "Bosshardt, Stacey (ENRD)" "Russell, Lisa (ENRD)" , "Boronow, Clare (ENRD)" , "Piropato, Marissa (ENRD)" , "Duffy, Sean C. (ENRD)" , Briana Collier , Richard McNeer , Karen Hawbecker , Mariagrazia Caminiti Re: Twin Metals - Draft M-Opinion Before then is fine. We can have Richard, Briana and me. I'm copying Marigrace so she can find a time that works. On Tue, Nov 28, 2017 at 1:35 PM, Bosshardt, Stacey (ENRD) wrote: Thanks, Jack. We reached out to Karen but she is out of the office until Thursday –would you prefer to set up a time before then to get our thoughts on the draft, or wait until she returns? Stacey Stacey Bosshardt Assistant Section Chief Natural Resources Section Environment & Natural Resources Division U.S. Department of Justice P.O. Box 7611 Washington, D.C.20044-7611 Stacey.Bosshardt@usdoj.gov 202-514-2912 (telephone) 202-305-0506 (fax) From: Haugrud, Kevin [mailto:jack.haugrud@sol.doi.gov] Sent: Monday, November 27, 2017 11:40 AM To: Russell, Lisa (ENRD) ; Bosshardt, Stacey (ENRD) ; Boronow, Clare (ENRD) ; Piropato, Marissa (ENRD) ; Duffy, Sean C. (ENRD) Cc: Briana Collier ; Richard McNeer ; Karen Hawbecker Subject: Twin Metals - Draft M-Opinion Attached is a draft of a M-Opinion that would reverse M-37036 and conclude that Twin Metals does have a non-discretionary right to a third renewal. The Acting Solicitor would like to issue the MOpinion this week, so we would appreciate any comments on the M-Opinion as soon as reasonably possible this week. I recognize we also need to discuss next steps once the opinion is issued. I can have Marigrace set up a time to discuss if you would like. "Caminiti, Mariagrazia" From: Sent: To: CC: Subject: "Caminiti, Mariagrazia" Tue Nov 28 2017 11:46:25 GMT-0700 (MST) "Haugrud, Kevin" "Bosshardt, Stacey (ENRD)" , "Russell, Lisa (ENRD)" , "Boronow, Clare (ENRD)" , "Piropato, Marissa (ENRD)" , "Duffy, Sean C. (ENRD)" , Briana Collier , Richard McNeer , Karen Hawbecker Re: Twin Metals - Draft M-Opinion Looking at calendars for Richard and Briana, and Jack, we could do: Today - 4:00 pm 11/29 - 3:00 pm to cob Do you have a preference? mg On Tue, Nov 28, 2017 at 1:40 PM, Haugrud, Kevin wrote: Before then is fine. We can have Richard, Briana and me. I'm copying Marigrace so she can find a time that works. On Tue, Nov 28, 2017 at 1:35 PM, Bosshardt, Stacey (ENRD) wrote: Thanks, Jack. We reached out to Karen but she is out of the office until Thursday –would you prefer to set up a time before then to get our thoughts on the draft, or wait until she returns? Stacey Stacey Bosshardt Assistant Section Chief Natural Resources Section Environment & Natural Resources Division U.S. Department of Justice P.O. Box 7611 Washington, D.C.20044-7611 Stacey.Bosshardt@usdoj.gov 202-514-2912 (telephone) 202-305-0506 (fax) From: Haugrud, Kevin [mailto:jack.haugrud@sol.doi.gov] Sent: Monday, November 27, 2017 11:40 AM To: Russell, Lisa (ENRD) ; Bosshardt, Stacey (ENRD) ; Boronow, Clare (ENRD) ; Piropato, Marissa (ENRD) ; Duffy, Sean C. (ENRD) Cc: Briana Collier ; Richard McNeer ; Karen Hawbecker Subject: Twin Metals - Draft M-Opinion Attached is a draft of a M-Opinion that would reverse M-37036 and conclude that Twin Metals does have a non-discretionary right to a third renewal. The Acting Solicitor would like to issue the MOpinion this week, so we would appreciate any comments on the M-Opinion as soon as reasonably possible this week. I recognize we also need to discuss next steps once the opinion is issued. I can have Marigrace set up a time to discuss if you would like. -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. "Bosshardt, Stacey (ENRD)" From: Sent: To: CC: Subject: "Bosshardt, Stacey (ENRD)" Tue Nov 28 2017 12:15:09 GMT-0700 (MST) "Caminiti, Mariagrazia" , "Haugrud, Kevin" "Russell, Lisa (ENRD)" , "Boronow, Clare (ENRD)" , "Piropato, Marissa (ENRD)" , "Duffy, Sean C. (ENRD)" , Briana Collier , Richard McNeer , Karen Hawbecker RE: Twin Metals - Draft M-Opinion Sean and I are available at 3:00 p.m. tomorrow. Marissa and Clare are on travel and I’m not sure of their availability, so we will try to collect their thoughts before then. From: Caminiti, Mariagrazia [mailto:marigrace.caminiti@sol.doi.gov] Sent: Tuesday, November 28, 2017 1:46 PM To: Haugrud, Kevin Cc: Bosshardt, Stacey (ENRD) ; Russell, Lisa (ENRD) ; Boronow, Clare (ENRD) ; Piropato, Marissa (ENRD) ; Duffy, Sean C. (ENRD) ; Briana Collier ; Richard McNeer ; Karen Hawbecker Subject: Re: Twin Metals - Draft M-Opinion Looking at calendars for Richard and Briana, and Jack, we could do: Today - 4:00 pm 11/29 - 3:00 pm to cob Do you have a preference? mg On Tue, Nov 28, 2017 at 1:40 PM, Haugrud, Kevin wrote: Before then is fine. We can have Richard, Briana and me. I'm copying Marigrace so she can find a time that works. On Tue, Nov 28, 2017 at 1:35 PM, Bosshardt, Stacey (ENRD) wrote: Thanks, Jack. We reached out to Karen but she is out of the office until Thursday –would you prefer to set up a time before then to get our thoughts on the draft, or wait until she returns? Stacey Stacey Bosshardt Assistant Section Chief Natural Resources Section Environment & Natural Resources Division U.S. Department of Justice P.O. Box 7611 Washington, D.C.20044-7611 Stacey.Bosshardt@usdoj.gov 202-514-2912 (telephone) 202-305-0506 (fax) From: Haugrud, Kevin [mailto:jack.haugrud@sol.doi.gov] Sent: Monday, November 27, 2017 11:40 AM To: Russell, Lisa (ENRD) ; Bosshardt, Stacey (ENRD) ; Boronow, Clare (ENRD) ; Piropato, Marissa (ENRD) ; Duffy, Sean C. (ENRD) Cc: Briana Collier ; Richard McNeer ; Karen Hawbecker Subject: Twin Metals - Draft M-Opinion Attached is a draft of a M-Opinion that would reverse M-37036 and conclude that Twin Metals does have a non-discretionary right to a third renewal. The Acting Solicitor would like to issue the MOpinion this week, so we would appreciate any comments on the M-Opinion as soon as reasonably possible this week. I recognize we also need to discuss next steps once the opinion is issued. I can have Marigrace set up a time to discuss if you would like. -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. "Caminiti, Mariagrazia" From: Sent: "Caminiti, Mariagrazia" Tue Nov 28 2017 12:41:50 GMT-0700 (MST) To: CC: Subject: "Bosshardt, Stacey (ENRD)" "Haugrud, Kevin" , "Russell, Lisa (ENRD)" , "Boronow, Clare (ENRD)" , "Piropato, Marissa (ENRD)" , "Duffy, Sean C. (ENRD)" , Briana Collier , Richard McNeer , Karen Hawbecker Re: Twin Metals - Draft M-Opinion I'll send out a meeting invitation. thanks.mg On Tue, Nov 28, 2017 at 2:15 PM, Bosshardt, Stacey (ENRD) wrote: Sean and I are available at 3:00 p.m. tomorrow. Marissa and Clare are on travel and I’m not sure of their availability, so we will try to collect their thoughts before then. From: Caminiti, Mariagrazia [mailto:marigrace.caminiti@sol.doi.gov] Sent: Tuesday, November 28, 2017 1:46 PM To: Haugrud, Kevin Cc: Bosshardt, Stacey (ENRD) ; Russell, Lisa (ENRD) ; Boronow, Clare (ENRD) ; Piropato, Marissa (ENRD) ; Duffy, Sean C. (ENRD) ; Briana Collier ; Richard McNeer ; Karen Hawbecker Subject: Re: Twin Metals - Draft M-Opinion Looking at calendars for Richard and Briana, and Jack, we could do: Today - 4:00 pm 11/29 - 3:00 pm to cob Do you have a preference? mg On Tue, Nov 28, 2017 at 1:40 PM, Haugrud, Kevin wrote: Before then is fine. We can have Richard, Briana and me. I'm copying Marigrace so she can find a time that works. On Tue, Nov 28, 2017 at 1:35 PM, Bosshardt, Stacey (ENRD) wrote: Thanks, Jack. We reached out to Karen but she is out of the office until Thursday –would you prefer to set up a time before then to get our thoughts on the draft, or wait until she returns? Stacey Stacey Bosshardt Assistant Section Chief Natural Resources Section Environment & Natural Resources Division U.S. Department of Justice P.O. Box 7611 Washington, D.C.20044-7611 Stacey.Bosshardt@usdoj.gov 202-514-2912 (telephone) 202-305-0506 (fax) From: Haugrud, Kevin [mailto:jack.haugrud@sol.doi.gov] Sent: Monday, November 27, 2017 11:40 AM To: Russell, Lisa (ENRD) ; Bosshardt, Stacey (ENRD) ; Boronow, Clare (ENRD) ; Piropato, Marissa (ENRD) ; Duffy, Sean C. (ENRD) Cc: Briana Collier ; Richard McNeer ; Karen Hawbecker Subject: Twin Metals - Draft M-Opinion Attached is a draft of a M-Opinion that would reverse M-37036 and conclude that Twin Metals does have a non-discretionary right to a third renewal. The Acting Solicitor would like to issue the M-Opinion this week, so we would appreciate any comments on the M-Opinion as soon as reasonably possible this week. I recognize we also need to discuss next steps once the opinion is issued. I can have Marigrace set up a time to discuss if you would like. -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:37 PM Conversation Contents Updated Draft of Twin Metals Opinion Attachments: /48. Updated Draft of Twin Metals Opinion/1.1 Twin Metals -- Draft 11 24 17.docx /48. Updated Draft of Twin Metals Opinion/3.1 image.png "Haugrud, Kevin" From: Sent: To: CC: Subject: Attachments: "Haugrud, Kevin" Fri Nov 24 2017 08:03:39 GMT-0700 (MST) Daniel Jorjani Karen Hawbecker Updated Draft of Twin Metals Opinion Twin Metals -- Draft 11 24 17.docx Dan: I've attached an updated version of the draft M-Opinion concerning Twin Metals. This version has been reviewed by DMR and cite-checked. If you are okay with this version, I would like to have ENRD review it, given the litigation implications, before we go final. I understand the ENRD attorneys who would be reviewing are out today but back in on Monday. Jack cc Karen "Jorjani, Daniel" From: Sent: To: CC: Subject: "Jorjani, Daniel" Fri Nov 24 2017 08:05:21 GMT-0700 (MST) "Haugrud, Kevin" Karen Hawbecker Re: Updated Draft of Twin Metals Opinion You, sir, are having a productive morning. On Fri, Nov 24, 2017 at 10:03 AM, Haugrud, Kevin wrote: Dan: I've attached an updated version of the draft M-Opinion concerning Twin Metals. This version has been reviewed by DMR and cite-checked. If you are okay with this version, I would like to have ENRD review it, given the litigation implications, before we go final. I understand the ENRD attorneys who would be reviewing are out today but back in on Monday. Jack cc Karen "Haugrud, Kevin" From: Sent: To: CC: Subject: Attachments: "Haugrud, Kevin" Fri Nov 24 2017 08:17:04 GMT-0700 (MST) "Jorjani, Daniel" Karen Hawbecker Re: Updated Draft of Twin Metals Opinion image.png Yes, notable for its rarity. It's the afterglow of lefse consumption. Now onward to my DTS list. Inline image 1 On Fri, Nov 24, 2017 at 10:05 AM, Jorjani, Daniel wrote: You, sir, are having a productive morning. On Fri, Nov 24, 2017 at 10:03 AM, Haugrud, Kevin wrote: Dan: I've attached an updated version of the draft M-Opinion concerning Twin Metals. This version has been reviewed by DMR and cite-checked. If you are okay with this version, I would like to have ENRD review it, given the litigation implications, before we go final. I understand the ENRD attorneys who would be reviewing are out today but back in on Monday. Jack cc Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:37 PM Conversation Contents Twin Metals draft Kevin Haugrud From: Sent: To: CC: Subject: Kevin Haugrud Wed Nov 22 2017 15:23:38 GMT-0700 (MST) Briana Collier Twin Metals draft Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:37 PM Conversation Contents Draft Twin Metals Opinion Attachments: /50. Draft Twin Metals Opinion/1.1 Twin Metals -- Draft 11 22 17.docx /50. Draft Twin Metals Opinion/2.1 Twin Metals -- Draft 11 22 17.docx "Haugrud, Kevin" From: Sent: To: Subject: Attachments: "Haugrud, Kevin" Wed Nov 22 2017 08:35:05 GMT-0700 (MST) Briana Collier , Karen Hawbecker , Richard McNeer , Gary Lawkowski Draft Twin Metals Opinion Twin Metals -- Draft 11 22 17.docx At long last, attached is a revised version of the draft M-Opinion for your review. I have not proofread it, and certain citations need to be fixed (e.g., references to the old M-Opinion are often written as "M37" for shorthand). If you think putting it on google docs for shared editing would make more sense, feel free to do so. "Haugrud, Kevin" From: Sent: To: Subject: Attachments: "Haugrud, Kevin" Wed Nov 22 2017 08:48:11 GMT-0700 (MST) Daniel Jorjani Fwd: Draft Twin Metals Opinion Twin Metals -- Draft 11 22 17.docx The revised draft M-Opinion has been circulated within the SOL team. ---------- Forwarded message ---------From: Haugrud, Kevin Date: Wed, Nov 22, 2017 at 10:35 AM Subject: Draft Twin Metals Opinion To: Briana Collier , Karen Hawbecker , Richard McNeer , Gary Lawkowski At long last, attached is a revised version of the draft M-Opinion for your review. I have not proofread it, and certain citations need to be fixed (e.g., references to the old M-Opinion are often written as "M37" for shorthand). If you think putting it on google docs for shared editing would make more sense, feel free to do so. Karen Hawbecker From: Karen Hawbecker Sent: Wed Nov 22 2017 08:48:31 GMT-0700 (MST) To: "Haugrud, Kevin" Briana Collier Richard McNeer Gary Lawkowski Steve Harris Subject: Re: Draft Twin Metals Opinion Thanks for all of your work on this, Jack. We may drop it into Google docs. I?m making sure everyone who will look at it has access to google drive. ?Karen Sent from my iPad On Nov 22, 2017, at 9:35 AM, Haugrud, Kevin wrote: At long last, attached is a revised version of the draft M-Opinion for your review. have not proofread it, and certain citations need to be ?xed references to the old M-Opinion are often written as for shorthand). If you think putting it on google docs for shared editing would make more sense, feel free to do so. "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Wed Nov 22 2017 08:54:39 GMT-0700 (MST) To: Karen Hawbecker Briana Collier Richard McNeer cc: Gary Lawkowski Steve Harris Subject: Re: Draft Twin Metals Opinion Thanks Karen. I should address one item vou will see in the revision On Wed, Nov 22, 2017 at 10:48 AM, Karen Hawbecker wrote: Thanks for all of your work on this, Jack. We may drop it into Google docs. I?m making sure everyone who will look at it has access to google drive. ?Karen Sent from my iPad On Nov 22, 2017, at 9:35 AM, Haugrud, Kevin wrote: At long last, attached is a revised version of the draft M?Opinion for your review. have not proofread it, and certain citations need to be ?xed references to the old M-Opinion are often written as for shorthand). If you think putting it on google docs for shared editing would make more sense, feel free to do so. Karen Hawbecker From: Karen Hawbecker Sent: Wed Nov 22 2017 09:07:55 GMT-0700 (MST) To: "Haugrud, Kevin" Briana Collier Richard McNeer Gary Lawkowski CC: Steve Harris Subject: Re: Draft Twin Metals Opinion Thanks, Jack. I think that?s a good approach. Briana will load it on Google Drive and give us all access. I need to leave to pick Hale up at the airport shortly, but then plan to begin my review. ?Karen Sent from my iPad On Nov 22, 2017, at 9:54 AM, Haugrud, Kevin wrote: Thanks Karen. I should address one item you will see in the revision On Wed, Nov 22, 2017 at 10:48 AM, Karen Hawbecker wrote: Thanks for all of your work on this, Jack. We may drop it into Google docs. I?m making sure everyone who will look at it has access to google drive. ?Karen Sent from my iPad On Nov 22, 2017, at 9:35 AM, Haugrud, Kevin wrote: At long last, attached is a revised version of the draft M-Opinion for your review. I have not proofread it, and certain citations need to be fixed (e.g., references to the old M-Opinion are often written as "M37" for shorthand). If you think putting it on google docs for shared editing would make more sense, feel free to do so. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:37 PM Conversation Contents Twin Metals Attachments: I51. Twin Metals/1.1 Twin Metals -- Alternative Draft with KJH.docx "Haugrud, Kevin" "Haugrud, Kevin" From: Sent: Tue Nov 21 2017 16:46:03 GMT-0700 (MST) To: Karen Hawbecker Subject: Twin Metals Attachments: Twin Metals -- Alternative Draft with KJH.docx Karen: In case you have time, and hopefully for your sake you do not, I'm attaching my revised version of the M-Opinion. It's pretty rough, and I will continue to work on it tonight, but wanted to get vour feedback on the overall structure and arguments. Right now, "Haugrud, Kevin" "Haugrud, Kevin" From: Sent: Tue Nov 21 2017 21:25:32 GMT-0700 (MST) To: Karen Hawbecker Subject: Re: Twin Metals Karen: Please ignore this. I sent the wrong version (this one is a saved earlier one that doesn't have an ending). I can't access my ?les from home still, so it will need to wait until tomorrow anyway. On Tue, Nov 21, 2017 at 6:46 PM, Haugrud, Kevin wrote: Karen: In case you have time, and hopefully for your sake you do not, I'm attaching my revised version of the M-Opinion. It's pretty rough, and I will continue to work on it tonight. but wanted to get your feedback on the overall structure and arguments. Right now, Karen Hawbecker From: Karen Hawbecker Sent: Tue Nov 21 2017 21 :31 :54 GMT-0700 (MST) To: "Haugrud, Kevin" Subject: Re: Twin Metals Okay, Jack. I had just opened it and was about to begin reviewing. Are the opening pages very different in the other version? ?Karen Sent from my iPad On Nov 21, 2017, at 10:25 PM, Haugrud, Kevin wrote: Karen: Please ignore this. I sent the wrong version (this one is a saved earlier one that doesn't have an ending). I can't access my ?les from home still, so it will need to wait until tomorrow anyway. On Tue, Nov 21, 2017 at 6:46 PM, Haugrud, Kevin wrote: Karen: In case you have time, and hopefully for your sake you do not, I'm attaching my revised version of the M-Opinion. It's pretty rough, and I will continue to work on it tonight, but wanted to get your feedback on the overall structure and arguments. "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Tue Nov 21 2017 22:36:53 GMT-0700 (MST) To: Karen Hawbecker Subject: Re: Twin Metals No, it's just the last few pages that are different. Up front, I cleaned up a few things (deleted footnote 1, fixed some typos, etc), but the real changes are in the last couple of pages. On Tue, Nov 21, 2017 at 11:31 PM, Karen Hawbecker wrote: Okay, Jack. I had just opened it and was about to begin reviewing. Are the opening pages very different in the other version? ?Karen Sent from my iPad On Nov 21, 2017, at 10:25 PM, Haugrud, Kevin wrote: Karen: Please ignore this. I sent the wrong version (this one is a saved earlier one that doesn't have an ending). I can't access my ?les from home still, so it will need to wait until tomorrow anyway. On Tue, Nov 21, 2017 at 6:46 PM, Haugrud, Kevin wrote: Karen: In case you have time, and hopefully for your sake you do not, I'm attaching my revised version of the M-Opinion. It's pretty rough, and I will continue to work on it tonight, but wanted to get your feedback on the overall structure and arguments. Right now Karen Hawbecker From: Karen Hawbecker Sent: Wed Nov 22 2017 07:15:10 GMT-0700 (MST) To: "Haugrud, Kevin" Subject: Re: Twin Metals Jack, I?m going to ask Richard, Briana, and Steve to begin reviewing the ?rst 15 pages of the draft you sent last night. I?ll do the same. ?Karen Sent from my iPad On Nov 21, 2017, at 11:36 PM, Haugrud, Kevin wrote: No, it's just the last few pages that are different. Up front, I cleaned up a few things (deleted footnote 1, fixed some typos, etc), but the real changes are in the last couple of pages. On Tue, Nov 21, 2017 at 11:31 PM, Karen Hawbecker wrote: Okay, Jack. I had just opened it and was about to begin reviewing. Are the opening pages very different in the other version? ?Karen Sent from my iPad On Nov 21, 2017, at 10:25 PM, Haugrud, Kevin wrote: Karen: Please ignore this. I sent the wrong version (this one is a saved earlier one that doesn't have an ending). I can't access my ?les from home still, so it will need to wait until tomorrow anyway. On Tue, Nov 21, 2017 at 6:46 PM, Haugrud, Kevin wrote: Karen: In case you have time, and hopefully for your sake you do not, I'm attaching my revised version of the M-Opinion. It's pretty rough, and I will continue to work on it tonight, but wanted to get your feedback on the overall structure and arguments. Right now, "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Wed Nov 22 2017 07:20:14 GMT-0700 (MST) To: Karen Hawbecker Subject: Re: Twin Metals No, please do not do that. I will send out a new draft within the next hour. On Wed, Nov 22, 2017 at 9:15 AM, Karen Hawbecker wrote: Jack, I?m going to ask Richard, Briana, and Steve to begin reviewing the ?rst 15 pages of the draft you sent last night. I?ll do the same. ?Karen Sent from my iPad On Nov 21, 2017, at 11:36 PM, Haugrud, Kevin wrote: No, it'sjust the last few pages that are different. Up front, I cleaned up a few things (deleted footnote 1, ?xed some typos, etc), but the real changes are in the last couple of pages. On Tue, Nov 21, 2017 at 11:31 PM, Karen Hawbecker wrote: Okay, Jack. I had just opened it and was about to begin reviewing. Are the opening pages very different in the other version? ?Karen Sent from my iPad On Nov 21, 2017, at 10:25 PM, Haugrud, Kevin wrote: Karen: Please ignore this. I sent the wrong version (this one is a saved earlier one that doesn't have an ending). I can't access my files from home still, so it will need to wait until tomorrow anyway. On Tue, Nov 21, 2017 at 6:46 PM, Haugrud, Kevin wrote: Karen: In case you have time, and hopefully for your sake you do not, I'm attaching my revised version of the M-Opinion. It's pretty rough, and I will continue to work on it tonight, but wanted to get your feedback on the overall structure and arguments. Karen Hawbecker From: Karen Hawbecker Sent: Wed Nov 22 2017 07:21 :48 GMT-0700 (MST) To: "Haugrud, Kevin" Subject: Re: Twin Metals Okay. Sent from my iPad On Nov 22, 2017, at 8:20 AM, Haugrud, Kevin wrote: No, please do not do that. I will send out a new draft within the next hour. On Wed, Nov 22, 2017 at 9:15 AM, Karen Hawbecker wrote: Jack, I?m going to ask Richard, Briana, and Steve to begin reviewing the ?rst 15 pages of the draft you sent last night. I?ll do the same. ?Karen Sent from my iPad On Nov 21, 2017, at 11:36 PM, Haugrud, Kevin wrote: No, it's just the last few pages that are different. Up front, I cleaned up a few things (deleted footnote 1, ?xed some typos, etc), but the real changes are in the last couple of pages. On Tue, Nov 21, 2017 at 11:31 PM, Karen Hawbecker wrote: Okay, Jack. I had just opened it and was about to begin reviewing. Are the opening pages very different in the other version? ?Karen Sent from my iPad On Nov 21, 2017, at 10:25 PM, Haugrud, Kevin wrote: Karen: Please ignore this. I sent the wrong version (this one is a saved earlier one that doesn't have an ending). I can't access my files from home still, so it will need to wait until tomorrow anyway. On Tue, Nov 21,2017 at 6:46 PM, Haugrud, Kevin wrote: Karen: In case you have time, and hopefully for your sake you do not, I'm attaching my revised version of the M-Opinion. It's pretty rough, and I will continue to work on it tonight, but wanted to get your feedback on the overall structure and arguments. Right now,- Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:37 PM Conversation Contents Just in case Attachments: /52. Just in case/1.1 Twin Metals -- Alternative Draft 11 21 17.docx "Haugrud, Kevin" From: Sent: To: Subject: Attachments: "Haugrud, Kevin" Tue Nov 21 2017 23:46:20 GMT-0700 (MST) Kevin Haugrud Just in case Twin Metals -- Alternative Draft 11 21 17.docx Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:37 PM Conversation Contents Twin Metals Question Attachments: I53. Twin Metals Question/4.1 1989 Renewals 2.pdf I53. Twin Metals Question/4.2 2004 Renewals 2.pdf "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Tue Nov 21 2017 08:35:03 GMT-0700 (MST) To: Briana Collier Subject: Twin Metals Question BHana: "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Tue Nov 21 2017 08:39:02 GMT-0700 (MST) To: Briana Collier Subject: Re: Twin Metals Question I should have clarified my question below. On Tue, Nov 21, 2017 at 10:35 AM, Hauqrud, Kevin wrote: BHana: "Collier, Briana" From: "Collier, Briana" Sent: Tue Nov 21 2017 08:40:40 GMT-0700 (MST) To: "Haugrud, Kevin" Subject: Re: Twin Metals Question Hi Jack, None of the copies of the 1989 renewals or the 2004 renewals that have seen included the attachments referenced. I don't know if the attached copies of the 1966 leases were any different from the originals. The description I included of the asterisks were describing the standard forms. I'll send you the standard forms with the asterisks in just a second. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Tue, Nov 21, 2017 at 8:35 AM, Hauqrud. Kevin wrote: BHana: "Collier, Briana" From: "Collier, Briana" Sent: Tue NOV 21 2017 08:54:27 GMT-0700 (MST) To: "Haugrud, Kevin" Subject: Re: Twin Metals Question Attachments: 1989 Renewals 2.pdf 2004 Renewals 2.pdf The asterisks are definitely more visible on some copies of these old documents than others. Here are the copies of the 1989 and 2004 renewals that Twin Metals ?led as attachments to the complaint. These copies of the 1989 renewals are among the best that have seen, as far as clearly showing the asterisks next to Sections 2(a) and See pages 3 and 7 of the ?rst attachment. Also, FYI, IT is still working on getting me a phone line in Albuquerque, and they made me unforward my DC number, so right now only have my personal cell line. It is? if you need to reach me by phone. Let me know if you have other questions I can WI . Thank you. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Tue, Nov 21, 2017 at 8:40 AM, Collier, Briana wrote: Hi Jack, None of the copies of the 1989 renewals or the 2004 renewals that have seen included the attachments referenced. I don't know if the attached copies of the 1966 leases were any different from the originals. The description I included of the asterisks were describing the standard forms. I'll send you the standard forms with the asterisks in just a second. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208?4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Tue, Nov 21, 2017 at 8:35 AM. Hauqrud. Kevin wrote: Bnana: Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:38 PM Conversation Contents Twin Metals—DOJ review Karen Hawbecker From: Sent: To: Subject: Karen Hawbecker Tue Nov 21 2017 08:41:56 GMT-0700 (MST) Jack Haugrud Twin Metals—DOJ review Jack, Sean Duffy said that he will be out on Thursday and Friday and will not be able to review the draft M-Op until Monday if it arrives Wednesday night. —Karen Sent from my iPad "Haugrud, Kevin" From: Sent: To: Subject: "Haugrud, Kevin" Tue Nov 21 2017 08:42:32 GMT-0700 (MST) Karen Hawbecker Re: Twin Metals—DOJ review Okay. On Tue, Nov 21, 2017 at 10:41 AM, Karen Hawbecker wrote: Jack, Sean Duffy said that he will be out on Thursday and Friday and will not be able to review the draft M-Op until Monday if it arrives Wednesday night. —Karen Sent from my iPad Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:38 PM Conversation Contents Twin Metals opinion update Attachments: /57. Twin Metals opinion update/4.1 2017.11.17 draft M-Op reversal rework.docx /57. Twin Metals opinion update/4.2 2017.11.17 draft M-Op reversal rework_clean.docx "Collier, Briana" From: Sent: To: CC: Subject: "Collier, Briana" Fri Nov 17 2017 15:02:35 GMT-0700 (MST) "Haugrud, Kevin" Karen Hawbecker , Richard McNeer Twin Metals opinion update Hi Jack, I am still working away on editing the Twin Metals opinion according to your directions. I can have a rough draft ready tonight or a less rough draft ready on Monday morning, if time allows me to continue working on it over the weekend. Please let me know your preference. Thanks very much, Briana Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. "Haugrud, Kevin" From: Sent: To: CC: "Haugrud, Kevin" Fri Nov 17 2017 16:04:37 GMT-0700 (MST) "Collier, Briana" Karen Hawbecker , Richard McNeer Subject: Re: Twin Metals opinion update Please send the rough draft tonight and take the weekend off (at least on this issue). On Fri, Nov 17, 2017 at 5:02 PM, Collier, Briana wrote: Hi Jack, I am still working away on editing the Twin Metals opinion according to your directions. I can have a rough draft ready tonight or a less rough draft ready on Monday morning, if time allows me to continue working on it over the weekend. Please let me know your preference. Thanks very much, Briana Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. "Collier, Briana" From: Sent: To: CC: Subject: "Collier, Briana" Fri Nov 17 2017 16:42:46 GMT-0700 (MST) "Haugrud, Kevin" Karen Hawbecker , Richard McNeer Re: Twin Metals opinion update Okay, I'll send along what I have in a few hours. Thank you. Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Nov 17, 2017 at 4:04 PM, Haugrud, Kevin wrote: Please send the rough draft tonight and take the weekend off (at least on this issue). On Fri, Nov 17, 2017 at 5:02 PM, Collier, Briana wrote: Hi Jack, I am still working away on editing the Twin Metals opinion according to your directions. I can have a rough draft ready tonight or a less rough draft ready on Monday morning, if time allows me to continue working on it over the weekend. Please let me know your preference. Thanks very much, Bnana Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave.. NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. "Collier, Briana" From: "Collier, Briana" Sent: Fri Nov 17 2017 21:37:27 GMT-0700 (MST) To: "Haugrud, Kevin" Karen Hawbecker Richard McNeer Subject: Re: Twin Metals opinion update 2017.11.17 draft reversal rework.docx 2017.11.17 draft M- Op reversal rework_clean.docx CC: Attachments: Here is the revised opinion in redlined (and probably illegible) and clean versions. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Nov 17, 2017 at 4:42 PM, Collier, Briana wrote: Okay, I'll send along what I have in a few hours. Thank you. Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Nov 17, 2017 at 4:04 PM, Haugrud, Kevin wrote: Please send the rough draft tonight and take the weekend off (at least on this issue). On Fri, Nov 17, 2017 at 5:02 PM, Collier, Briana wrote: Hi Jack, I am still working away on editing the Twin Metals opinion according to your directions. I can have a rough draft ready tonight or a less rough draft ready on Monday morning, if time allows me to continue working on it over the weekend. Please let me know your preference. Thanks very much, Briana Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. Kevin Haugrud From: Sent: To: Kevin Haugrud Sat Nov 18 2017 07:50:40 GMT-0700 (MST) "Collier, Briana" Karen Hawbecker , Richard CC: McNeer Subject: Re: Twin Metals opinion update Thanks Briana. From: Collier, Briana Sent: Friday, November 17, 2017 11:38 PM To: Haugrud, Kevin Cc: Karen Hawbecker; Richard McNeer Subject: Re: Twin Metals opinion update Here is the revised opinion in redlined (and probablv illegible) and clean versions. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or othenA/ise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Nov 17, 2017 at 4:42 PM, Collier, Briana wrote: Okay, I'll send along what I have in a few hours. Thank you. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208?4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Nov 17, 2017 at 4:04 PM, Haugrud, Kevin wrote: Please send the rough draft tonight and take the weekend off (at least on this issue). On Fri, Nov 17, 2017 at 5:02 PM, Collier, Briana wrote: Hi Jack, I am still working away on editing the Twin Metals opinion according to your directions. I can have a rough draft ready tonight or a less rough draft ready on Monday morning, if time allows me to continue working on it over the weekend. Please let me know your preference. Thanks very much, Bnana Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Office of the Solicitor 505 Marquette Ave.. NW Ste.1800 Albuguergue, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. Karen Hawbecker From: Karen Hawbecker Sent: Sun Nov 19 2017 16:35:25 GMT-0700 (MST) To: Kevin Haugrud cc: "C_ollier, Briana" Richard McNeer Subject: Re: Twin Metals opinion update Thank you, Jack. When you send the new draft for review, I?ll also share it with Steve Harris. Karen Sent from my iPad On Nov 18, 2017, at 9:50 AM, Kevin Haugrud wrote: Thanks Briana. From: Collier, Briana Sent: Friday, November 17, 2017 11:38 PM To: Haugrud, Kevin Cc: Karen Hawbecker; Richard McNeer Subject: Re: Twin Metals opinion update Here is the revised opinion in redlined (and probably illegible) and clean versions. an you. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Nov 17, 2017 at 4:42 PM, Collier, Briana wrote: Okay, I'll send along what I have in a few hours. Thank you. Briana Collier Attomey-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Nov 17, 2017 at 4:04 PM, Haugrud, Kevin wrote: Please send the rough draft tonight and take the weekend off (at least on this issue) On Fri, Nov 17, 2017 at 5:02 PM, Collier, Briana wrote: Hi Jack, I am still working away on editing the Twin Metals opinion according to your directions. I can have a rough draft ready tonight or a less rough draft ready on Monday morning, if time allows me to continue working on it over the weekend. Please let me know your preference. Thanks very much, Bnana Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave.. NW Ste.1800 Albuouerque. NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Mon Nov 20 2017 06:16:50 GMT-0700 (MST) To: Karen Hawbecker "Collier, Briana" Richard McNeer CC. . . Subject: Re: Twin Metals opinion update I didn't get as far as I had hoped this weekend (but did complete a different m-opinion, just so you don't think was slacking), so I expect to have the next draft to review Tuesday morning. On Sun, Nov 19, 2017 at 6:35 PM, Karen Hawbecker wrote: Thank you, Jack. When you send the new draft for review, I?ll also share it with Steve Harris. ?Karen Sent from my iPad On Nov 18, 2017, at 9:50 AM, Kevin Haugrud wrote: Thanks Briana. From: Collier, Briana Sent: Friday, November 17, 2017 11:38 PM To: Haugrud, Kevin Cc: Karen Hawbecker; Richard McNeer Subject: Re: Twin Metals opinion update Here is the revised opinion in redlined (and probably illegible) and clean versions. an you. Briana Collier Attomey-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave.. NW Ste.1800 AlbuguergueI NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Nov 17, 2017 at 4:42 PM, Collier, Briana wrote: Okay, I'll send along what I have in a few hours. Thank you. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marguette Ave.I NW Ste.1800 Alquuerque. NM 87102 Phone: (202)208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or othen/vise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Nov 17, 2017 at 4:04 PM, Haugrud, Kevin wrote: Please send the rough draft tonight and take the weekend off (at least on this issue) On Fri, Nov 17, 2017 at 5:02 PM, Collier, Briana wrote: Hi Jack, I am still working away on editing the Twin Metals opinion according to your directions. I can have a rough draft ready tonight or a less rough draft ready on Monday morning, if time allows me to continue working on it over the weekend. Please let me know your preference. Thanks very much, Bnana Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marguette Ave., NW Ste.1800 Albuquerque. NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. Karen Hawbecker From: Karen Hawbecker Sent: Mon Nov 20 2017 06:19:56 GMT-0700 (MST) To: "Haugrud, Kevin" CC, "Collier, Briana" Richard McNeer Subject: Re: Twin Metals opinion update Okay, Jack. I?ll be traveling Tuesday morning, but will look for it on my iPad. have a two hour layover in Chicago too. ?Karen Sent from my iPad On Nov 20, 2017, at 8:16 AM, Haugrud, Kevin wrote: I didn't get as far as I had hoped this weekend (but did complete a different m- opinion, just so you don't think I was slacking), so I expect to have the next draft to review Tuesday morning. On Sun, Nov 19, 2017 at 6:35 PM, Karen Hawbecker wrote: Thank you, Jack. When you send the new draft for review, I?ll also share it with Steve Harris. ?Karen Sent from my iPad On Nov 18, 2017, at 9:50 AM, Kevin Haugrud wrote: Thanks Briana. From: Collier, Briana Sent: Friday, November 17, 2017 11:38 PM To: Haugrud, Kevin Cc: Karen Hawbecker; Richard McNeer Subject: Re: Twin Metals opinion update Here is the revised opinion in redlined (and probably illegible) and clean versions. am Briana Collier Attomey-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marguette Ave.I NW Ste.1800 Albuauerdue. NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Nov 17, 2017 at 4:42 PM, Collier, Briana wrote: Okay, I'll send along what I have in a few hours. Thank you. Briana Collier Attomey-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marguette Ave., NW Ste.1800 Albuouerque. NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Fri, Nov 17,2017 at 4:04 PM, Haugrud, Kevin wrote: Please send the rough draft tonight and take the weekend off (at least on this issue). On Fri, Nov 17, 2017 at 5:02 PM, Collier, Briana wrote: Hi Jack, I am still working away on editing the Twin Metals opinion according to your directions. I can have a rough draft ready tonight or a less rough draft ready on Monday morning, if time allows me to continue working on it over the weekend. Please let me know your preference. Thanks very much, Briana Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:38 PM Conversation Contents DMR Friday List Attachments: /58. DMR Friday List/1.1 2017.11.17 DMR Friday List.docx "Bovard, Thomas" From: Sent: To: CC: Subject: Attachments: "Bovard, Thomas" Fri Nov 17 2017 14:14:07 GMT-0700 (MST) "Haugrud, Jack" "Hawbecker, Karen" , Dennis Daugherty , Richard McNeer DMR Friday List 2017.11.17 DMR Friday List.docx Hi Jack, attached is DMR's Friday list. I will be out all next week so have a good Thanksgiving! Tom Thomas A. Bovard Assistant Solicitor Branch of Surface Mining Division of Mineral Resources Office of the Solicitor United States Department of the Interior 1849 C Street NW Washington, DC 20240 Phone: 202.208.5730 Fax: 202.219.1789 Tom.Bovard@sol.doi.gov Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:38 PM Conversation Contents Twin Metals Attachments: I59. Twin Metals/1.1 Twin Metals -- Alternative Draft "Lawkowski, Gary" From: "Lawkowski, Gary" Sent: Fri Nov 17 2017 13:59:46 GMT-0700 (MST) To: Kevin Haugrud CC: "Jorjani, Daniel" Subject: Twin Metals Attachments: Twin Metals -- Alternative Draft Please ?nd attached a rough draft of an alternative opinion concerninq Twin Metal Let me know if this is helpful and what you think, I'm happy to discuss. Sincerely, Gary Lawkowski Counselor to the Solicitor Department of the Interior 202-208- 7340 Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:38 PM Conversation Contents Fwd: Twin Metals -- Hearing on MTDs "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Wed Nov 15 2017 11:14:10 GMT-0700 (MST) To: Jack Haugrud Richard McNeer Briana Collier cc: Roy Fuller "Sklar, Ryan" Joshua Hanson Subject: Fwd: Twin Metals -- Hearing on MTDs Jack, Here is Sean's summary of how the oral argument in the Twin Metals case. -Karen -- Forwarded message From: Duffy, Sean C. (ENRD) Date: Wed, Nov 15, 2017 at 12:37 PM Subject: Twin Metals -- Hearing on MTDs To: PAMELA P. - "Vandlik, John - "Vukelich, Vincent - "Mulach, Ronald - "Dewitte, Vincent - "Franklin, Jessica - "McNeer, Richard" "Hawbecker, Karen" "Collier, Briana" Joshua Hanson Roy Fuller Ryan Sklar "Passarelli, Edward "Bosshardt, Stacey "Boronow, Clare "Piropato, Marissa "Fuller, David All Yesterday, the Court heard oral arguments on the motions to dismiss ?led by the Federal Defendants and the Intervenor Defendants (Northeastern Minnesotans for Wilderness). The hearing lasted 1-1/2 horu?s. David Fuller from the USAO joined me at the hearing and I invite him to correct any omissions or misstatements in the following synopsis. Please let me know if you have any questions. Thank you, Sean Sean C. Duffy Environment Natural Resources Division US. Depaitment of Justice Natural Resom?ces Section (202) Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:38 PM Conversation Contents U.S. Department of the Interior News Briefing for Wednesday, November 15, 2017 Bulletin Intelligence From: Bulletin Intelligence Sent: Wed Nov 15 2017 04:02:12 GMT-0700 (MST) To: U.S. Department of the Interior News Briefing for Wednesday, November 15, 2017 Mobile version and searchable archives available here. Please click here to subscribe. Department of the Interior - I I -CIsioN v-K. ., News Briefing DATE: WEDNESDAY, NOVEMBER 15, 2017 6:00 AM EST Today's Table Of Contents DOI In The News 0 Idaho Statesman: Idaho Sen. Risch Aide Named To Interior Water, Science Job. 0 Morning Consult: Senate Minority Whip To Meet With Zinke After Hold On Interior Nominees. 0 Associated Press: Utah Sen. Orrin Hatch?s Of?ce Says President Donald Trump Is Expected To Significantly Downsize Two Sprawling Utah National Monuments. Huf?ngton Post: Whistleblower Sues Interior Department For Information On Staff Shuffle. Bureau Of Indian Affairs 0 Trump Appointee To Bureau Of Indian Affairs Resigns After Interior?s IG Slams The Loan Program He Oversaw. 0 Secretary Ryan Zinke Among Those Excited To Take Part In #RockYourMocs This Year. 0 Oglala SIoux Tribe Working To Protect Children. Bureau Of Land Management 0 Associated Press: Videos Lead Defense Opening In Bundy Standoff Trial In Vegas. 0 Salt Lake (UT) Tribune: Trump?s Team May Move The Bureau Of Land Management Headquarters To Salt Lake City. 0 Associated Press: Judge Weighs Motion To Dismiss Twin Metals Mining Lawsuit. Fish And Wildlife Service 0 Palm Beach (FL) Post: Group To Sue Trump Administration For Not Protecting Florida Lizard. WPMI-TV Mobile (AL): Gov. Ivey Announces $33 Million For Restoration And Conservation Projects In Alabama. 0 Gillette (WY) News Record: Environmental Groups Push Back On Cheney Amendment Allowing Birds To Be Killed; Industry Supportive. • Reuters: Jane Goodall Urges U.S. Senate To Halt Quest For Arctic Refuge Oil. National Park Service • Fredericksburg (VA) Free Lance-Star: Culpeper Town Council Opposes Shenandoah Rate Increase. • Peninsula (WA) Daily News: Clallam Commissioners Readying Letter To National Park Service Over Fee Hike. • Pittsburgh Tribune-Review: Flight 93 Tower Of Voices To Be Built By Altoona Contractor. • Washington Business Journal: Here’s What It Costs To Maintain An Empty RFK Stadium. • Washington Post: Lawmakers Ask National Park Service To Rethink Plan To Ban Recreation On The Mall. • KTVZ-TV Bend (OR): Redmond Downtown Historic District Added To National Register. Office Of Insular Affairs • St. Croix Source: US Education Secretary Visits CAHS, UVI. • St. Croix Source: Mapp, Senators To Visit D.C. To Discuss V.I.’s Needs With Congress. • Daily Caller: Virgin Islands GOP Begs Congress Not To Give Them ‘Blank Checks’ For Hurricane Repairs. • Guam Daily Post: Status Quo ‘Unacceptable’; Governor Prefers Statehood. • Guam Daily Post: Reviving Seafaring Traditions. US Geological Survey • Greenwire: USGS Science Center In Va. Set To Close. • San Francisco Chronicle: More Small Quakes Rattle Monterey County. Top National News • Associated Press: Trump Touts “Tremendously Successful” Asia Trip. • CBS: Sessions Says He Didn’t Lie To Congress About Russian Contacts With Trump Campaign. • CBS: Senate GOP Adding ACA Individual Mandate Repeal To Tax Plan. • New York Times: Poll: Americans Don’t Believe GOP Bill Will Raise Their Wages. • Politico: As GOP Awaits Trump’s Direction On Moore, McConnell Floats Sessions As Write-In Candidate. • Washington Times: DOJ: Trump Tweets Are Official Statements Of The President. • Politico: House Narrowly Passes Flood Insurance Overhaul. • Associated Press: Puerto Rico’s Electric Utility Ignored Own Legal Advice On Whitefish Deal. • Washington Times: Democratic Governors Aided By “Shadow Staff Supplied By Climate Change Advocacy Groups.” Editorial Wrap-Up • New York Times. - “Mrs. May’s Tribulations.” - “Attorney General Jeff Sessions Doesn’t Recall.” - “Torches And Hate On The March In Poland.” • Washington Post. - “There Are No Grounds For Special Counsel To Investigate Hillary Clinton.” - “Trump Loves Human Rights – When Convenient.” - “Fix Metro Now. Or Face The Consequences.” • Wall Street Journal. - “The Roy Moore Mess.” - “Ruling Out The ABA On Judges.” - “Venezuela Goes Bust.” Big Picture • Headlines From Today’s Front Pages. Washington Schedule • Today’s Events In Washington. Last Laughs • Late Night Political Humor. DOI In The News Idaho Sen. Risch Aide Named To Interior Water, Science Job. The Idaho Statesman (11/14, Barker) “Letters from the West” blog reports Timothy R. Petty, an aide to Idaho Republican Sen. Jim Risch, was appointed Monday as the Interior assistant secretary overseeing the Bureau of Reclamation and the US Geological Survey. Petty, a hydrologist, “has a doctorate from the University of Alaska-Fairbanks” and “served Risch as deputy legislative director and legislative assistant on issues of water, natural resources, environment, science, technology and telecommunications and space.” Petty previously served as acting assistant Interior secretary and deputy assistant secretary for water and science under President George W. Bush. Senate Minority Whip To Meet With Zinke After Hold On Interior Nominees. Morning Consult (11/14, Gheorghiu) reports Interior Secretary Ryan Zinke will meet with a group of Democratic senators led by Illinois Sen. Dick Durbin Tuesday “about his recommendations to President Trump to reduce the size of certain national monuments, according to a Senate aide.” Zinke agreed to Durbin’s request for a meeting in response to a public letter last week “announcing a hold on four Interior Department nominees.” Utah Sen. Orrin Hatch’s Office Says President Donald Trump Is Expected To Significantly Downsize Two Sprawling Utah National Monuments. The AP (11/14, Price) reports in continuing coverage that Utah Sen. Orrin Hatch’s office said Tuesday that the Trump Administration “is expected to significantly downsize two sprawling Utah national monuments that protect more than 3 million acres of the state’s red rock country.” In his testimony before a Utah legislative public lands committee, Ron Dean, Hatch’s Central and Eastern Utah Director, “testified...that he expects Bears Ears National Monument will be cut by at least 80 percent of its current size, while Grand Staircase-Escalante National Monument will be reduced by about 40 percent to 60 percent.” Interior Secretary Ryan Zinke, who visited both monuments in May, “told The Salt Lake Tribune on Monday that he thinks Bears Ears will end up larger than two existing national parks in Utah, keeping the monument at least 180,000 acres (728 square kilometers).” Whistleblower Sues Interior Department For Information On Staff Shuffle. The Huffington Post (11/14, D'Angelo) reports Joel Clement, a “scientist-turnedwhistleblower who resigned from the Interior Department in October citing” Interior Secretary Ryan Zinke’s “poor leadership” and “resume of failure” is suing the agency to “obtain information concerning his own reassignment and that of several of his former colleagues.” Clement alleged that in July “he was transferred to a position for which he had no qualifications because he warned about the dangers of climate change.” The department’s inspector general also is “investigating the job shifts to determine whether they were done legally.” Bureau Of Indian Affairs Trump Appointee To Bureau Of Indian Affairs Resigns After Interior’s IG Slams The Loan Program He Oversaw. The Washington Post (11/14, Eilperin) reports Gavin Clarkson, a senior Bureau of Indian Affairs official appointed by Interior Secretary Ryan Zinke in June, “resigned Monday after the department’s inspector general issued a scathing report on the loan program he oversaw.” The IG report found the BIA’s division of capital investment (DCI), which falls under its Office of Indian Energy and Economic Development (IEED), “did not have adequate controls in place and managed the [loan program] with limited oversight from IEED, creating unnecessary risk for an already risky program.” Prior to serving in the Trump Administration, “Clarkson served as a consultant for tribes that received loans under the program, including a controversial $22.5 million loan for the Lower Brule Sioux Tribe that helped finance the purchase of a brokerage firm that eventually went under.” Secretary Ryan Zinke Among Those Excited To Take Part In #RockYourMocs This Year. The Nation Sun News (11/14) reports Interior Secretary Ryan Zinke is participating in “#RockYourMocs week.” Zinke and “thousands across the nation are expressing Native pride by wearing moccasins to work, to school and just about everywhere.” Zinke said he “plans to sport a pair of Crow moccasins.” Oglala SIoux Tribe Working To Protect Children. KOTA-TV Rapid City, SD (11/14, Huntington) reports Oglala Sioux tribal leaders have brought together stakeholders for its Child Protective Services “for a three day summit in Rapid Cidy to brainstorm solutions.” The Pine Ridge CPS reached a state where the tribal council considered in April “turning over the program to state control.” OST Vice President Darla Black said, “When I met with the employees, they were neglected.” He adds, “Bottom line? The program’s neglected. They didn’t have vehicles, they’re underfunded.” Amber Sierra, a Bureau of Indian Affairs employee who oversees the contract the bureau has with the tribe for Child Protective services, said, “We look at our children and my children and the grandchildren and the kids that we protect every day and we have to decide, ‘How do want them to grow up?’” Bureau Of Land Management Videos Lead Defense Opening In Bundy Standoff Trial In Vegas. The AP (11/14, Ritter) reports that on Tuesday, a federal grand jury “got a first look...at videos of confrontations involving armed federal agents and Bundy family members that rancher Cliven Bundy’s lawyer said provided a catalyst for an April 2014 gunpoint standoff and a trial now underway in Las Vegas.” The AP says “one clip that attorney Bret Whipple said spread widely on the internet showed Bundy’s sister, Margaret Huston, thrown to the ground by a federal agent. ... Another clip showed Bundy’s son, David Bundy, hauled to the ground and arrested on the shoulder of a state highway by two agents who approached him for taking photos of armed men with guns on a ridge top near the Bundy ranch.” The Los Angeles Times (11/14, Montero) reports that “the high-profile case is expected to push into 2018 as federal prosecutors aim to prove the Bundy family and militia leader [Ryan] Payne tried to stop the federal government from seizing cattle that were grazing on public land by threatening a federal officer, carrying and using a firearm and engaging in a conspiracy.” Whipple also “argued that Bundy had tried to pay the state of Nevada the grazing fees because he didn’t recognize BLM sovereignty over grazing land, and he said the family held water rights in the areas in which the cattle were grazing.” Trump’s Team May Move The Bureau Of Land Management Headquarters To Salt Lake City. The Salt Lake (UT) Tribune (11/14, Burr) reports Interior Secretary Ryan Zinke told The Salt Lake Tribune that he is considering moving Bureau of Land Management headquarters out West, perhaps Salt Lake City or Denver. Zinke told the newspaper, “We’re certainly looking at where would be the right place,” noting that the “preponderance of activity is in the West” for BLM’s activities. Colorado Republicans Sen. Cory Gardner and Rep. Scott Tipton “legislation in May that would authorize moving the BLM’s headquarters to a Western state.” Judge Weighs Motion To Dismiss Twin Metals Mining Lawsuit. The AP (11/14) reports US lawyers “asked a federal judge Tuesday to dismiss a lawsuit by developers of the proposed Twin Metals copper-nickel mine who are seeking to regain their mineral rights leases, arguing that their dispute belongs in a different court.” Twin Metals sued to get leases back after the Obama administration last December declined to renew long-standing leases the company needs for the underground mind it wants to build in northeastern Minnesota. The Bureau of Land Management “first issued the leases in 1966 to a predecessor of Twin Metals and renewed them in 1989 and 2004. But by the time Twin Metals sought another renewal in 2012, strong opposition had developed to copper-nickel mining in northeastern Minnesota, primarily because of concerns about the pristine Boundary Waters.” Fish And Wildlife Service Group To Sue Trump Administration For Not Protecting Florida Lizard. The Palm Beach (FL) Post (11/14, Todaro) reports the Center for Biological Diversity on Monday “filed a notice of its intent to sue the Trump administration for not protecting a lizard that lives distinctly in the Florida Keys.” The group said that the US Fish and Wildlife Service denied requests protect the Florida Keys mole skink in October in opposition to the Endangered Species Act. The Center for Biological Diversity “first requested protection of the mole skink in 2010, and in 2015 the Fish and Wildlife Service concluded that the lizard might warrant for protection under the Endangered Species Act’s, the Miami Herald reports.” Gov. Ivey Announces $33 Million For Restoration And Conservation Projects In Alabama. WPMI-TV Mobile, AL (11/14) reports Alabama Gov. Kay Ivey announced Tuesday the National Fish and Wildlife Foundation has approved over $33.5 million for five new projects and amendments to two existing projects “which focus on the restoration and conservation of Alabama’s natural resources.” Ivey said, “This additional $33 million in funding for Alabama from the National Fish and Wildlife Foundation will further strengthen our long-term recovery efforts along the Gulf Coast. The commitment of our local, state, and federal partners to ensure the long-term sustainability of our coastal areas is greatly appreciated.” The settlement from BP and Transocean for their part in the Deepwater Horizon Spill “directs a total of $2.54 billion to NFWF to establish a Gulf Environmental Benefit Fund (GEBF) over a five-year period to support ecological projects in all five Gulf States. A total of $356 million will be paid into the GEBF for conservation projects dedicated to the State of Alabama.” Environmental Groups Push Back On Cheney Amendment Allowing Birds To Be Killed; Industry Supportive. The Gillette (WY) News Record (11/14, Richards) reports conservationists are fighting back against an amendment proposed by US Rep. Liz Cheney’s (R-WY) to the Migratory Bird Treaty Act that limits liability for energy companies that accidentally kill “migrating birds, whether by an oil field disposal pit or a solar farm.” In a statement Wednesday, the Audubon Society “pointed to the number of ways industry contributes to bird deaths, including 500,000 to 1 million birds a year killed in oil waste pits and some 175 million birds annually killed by power lines, according to according to U.S. Fish and Wildlife Service estimates.” Jane Goodall Urges U.S. Senate To Halt Quest For Arctic Refuge Oil. Reuters (11/14, Gardner) reports primatologist Jane Goodall sent a letter to every US senator Tuesday “urging them to oppose a push in the U.S. Congress to allow oil drilling” in ANWR. According to Reuters, the GOP-led Senate “is trying to open up the 1002 region on the coastal plain of the ANWR, a region inhabited by Gwich’in natives, caribou herds, polar bears and millions of birds that migrate to six of the world’s seven continents.” Goodell wrote in the letter, “If we violate the Arctic Refuge by extracting the oil beneath the land, this will have devastating impact for the Gwich’in people for they depend on the caribou herds to sustain their traditional way of life.” A group of 37 US scientists whose research focuses on Arctic wildlife told senators that drilling in ANWR would be “incompatible with the purposes for which the refuge was established.” National Park Service Culpeper Town Council Opposes Shenandoah Rate Increase. The Fredericksburg (VA) Free Lance-Star (11/14, Johnston) reports the Culpeper Town Council unanimously agreed Tuesday evening that increasing the entrance fee to Shenandoah National Park from $25 to $70 for a four-day pass will hurt tourism, but Councilman Jon Russell said the increase might be necessary. Russell “said he had talked to officials at the Department of Interior and learned that Shenandoah National Park has an $11 million maintenance backlog and needs the fee increase to upgrade its almost-90year-old facilities.” However, Councilman Pranas Rimeikis argued, “I am appalled at the idea that the Interior Department is putting [this increase] on the backs of the localities.” Clallam Commissioners Readying Letter To National Park Service Over Fee Hike. The Peninsula (WA) Daily News (11/14, Major) reports Clallam County commissioners are drafting a letter to the National Park Service “urging the federal government to reconsider increasing the entry fee at 17 national parks up to $70.” The letter says, “While we would be supportive of increased entrance fees to help bridge the funding gap, we are extremely concerned that the proposed increase to $70 per vehicle is too steep.” Flight 93 Tower Of Voices To Be Built By Altoona Contractor. The Pittsburgh Tribune-Review (11/14) reports a contractor from Altoona, Leonard S. Fiore, Inc., was awarded the construction contract to build the Flight 93 National Memorial’s Tower of Voices, “the final phase of major construction of the Somerset County memorial’s original design.” According to the Tribune-Review, the tower is a “musical instrument, designed as a visual and audible reminder of the passengers and crew. The shape and orientation of the 93-foot-tall tower are designed to optimize air flow through the tower walls to reach the interior chamber.” Here’s What It Costs To Maintain An Empty RFK Stadium. The Washington Business Journal (11/14, Cooper) reports the District of Columbia paid over $2 million for security and maintenance at Robert F. Kennedy Memorial Stadium last fiscal year, “a dollar amount that will likely be taken into account as the city and Events D.C. decide what’s next for the aging edifice.” The Department of General Services’ maintains RFK, but “Events D.C., the District’s sports and conventions authority, manages the facility and books events there.” It is “leading an effort to redevelop the RFK campus, but exactly when the main part of the project, the replacement of the stadium itself, would move forward is unclear.” Lawmakers Ask National Park Service To Rethink Plan To Ban Recreation On The Mall. The Washington Post (11/14, Ruane) reports DC Del. Eleanor Holmes Norton and six other local members of the House of Representatives asked the National Park Service Tuesday to “reconsider its proposal to band recreational activities on the grounds of the Washington Monument.” The legislatures also asked NPS to “reconsider its proposed increase in fees for use of its ballfields elsewhere on the Mall and in Rock Creek Park.” Redmond Downtown Historic District Added To National Register. KTVZ-TV Bend, OR (11/14) reports on its website that the Oregon Parks and Recreation Center said Tuesday the Redmond Downtown Historic District has been added to the National Register of Historic Places. According to KTVZ, the district “embraces the historic commercial core of Redmond, including 43 downtown buildings.” Oregon’s State Advisory Committee on Historic Preservation “recommended the district’s nomination during their June meeting and on October 30, the district was formally listed by the Keeper of the National Register in Washington, D.C.” Office Of Insular Affairs US Education Secretary Visits CAHS, UVI. St. Croix Source (11/10, Shimel) reports Secretary of Education Betsy DeVos “toured Charlotte Amalie High School Wednesday, listening more than she spoke as she met with CAHS Principal Alcede Edwards and his administrative team.” A spokesperson for DeVos said her trip to St. Thomas was “part of an assessment tour of U.S. states and territories affected by recent hurricanes – Harvey in Texas and Louisiana, Irma in the Caribbean and Florida and Maria in Puerto Rico and the U.S. Virgin Islands.” DeVos said she wanted to see how large the problems were after the hurricanes and what her department would have to do to help. “We know that we are working with many challenges and are dealing with in the interest of getting children back to school and back to a routine and some sense of normalcy,” deVos said. The Virgin Islands Consortium (VIR) (11/8) reports that after the campus tour, DeVos “sat in the midst of C.A.H.S. students and listened as they spoke about their challenges. Seniors voiced their concerns about the connectivity issues prohibiting them from filling out the Free Application for Federal Student Aid (FAFSA), and juniors inquired about colleges’ willingness to assist students from disaster areas.” She encouraged the students to remain positive and “she assured them that the U.S. Department of Education would make concessions where it can for students hailing from disasterstricken areas like the U.S. Virgin Islands.” She also described federal assistance as “a process, not an event.” Mapp, Senators To Visit D.C. To Discuss V.I.’s Needs With Congress. St. Croix Source (11/8) reports Gov. Kenneth Mapp and members of the Virgin Islands Senate will head to Washington, DC, next week to meet with members of Congress and Congressional staffers to discuss federal assistance to help the territory rebuild after two being hit by two category 5 hurricanes. V.I. Delegate to Congress Stacey Plaskett said in his announcement of the trip, “I look forward to testifying alongside him, the governor of Puerto Rico and the resident commissioner of Puerto Rico on ‘Hurricane Recovery Efforts in Puerto Rico and the U.S. Virgin Islands.” Plaskett said Mapp will testify before both the Senate and House committees. Plaskett also said Congressional delegations will visit both the V.I. and Puerto Rico “to view the devastation and let our fellow citizens know they are not forgotten.” The Virgin Islands Consortium (VIR) (11/8, Gilbert) reports the goal of the V.I. delegation’s visit to Washington is “to win Congressional support for the $7.49 billion ask, which follows an assessment of damage sustained during Hurricanes Irma and Maria. By comparison, Puerto Rico’s initial estimate of damage was $95 billion.” Virgin Islands GOP Begs Congress Not To Give Them ‘Blank Checks’ For Hurricane Repairs. The Daily Caller (11/14, Phippen) reports Republican representatives from the Virgin Islands were in Washington, DC, this week “to push legislators to avoid spending unchecked millions on disaster aid that could lead to waste and corruption.” Jevon Williams, a committeeman representing the Virgin Islands in the Republican National Committee, said in a statement, “We are here telling our fellow Republicans in the administration and Congress that strict scrutiny is needed to recover and rebuild our island communities.” Status Quo ‘Unacceptable’; Governor Prefers Statehood. The Guam Daily Post (11/13, Kerrigan) reports Gov. Eddie Calvo said he believes the resolution adopted last week by the UN’s Special Political and Decolonization Committee is a “victory on the road to self-determination.” Calvo said in an interview with the Guam Daily Post that he did not agree with everyone who testified in favor of the resolution, noting he took exception to remarks to by US representative who objected and was quoted as saying that many on Guam preferred the “status quo” over independence or other options. Calvi said, “The status quo is just unacceptable,” adding, “I’m an advocate of statehood, personally. But I’m not going to try and influence the Commission on Decolonization.” Reviving Seafaring Traditions. The Guam Daily Post (11/12, Lujan) reported that the “rebirth of ancient seafaring traditions in the Micronesian region is slowly becoming a new-age reality.” The first Okeanos Marianas canoe arrived in Rota earlier this week “after first stopping at its home base in Saipan, and before then, made rounds to several islands throughout the South Pacific.” The canoe was expected to depart Rota early Tuesday morning “for a short visit to Guam to pick up lumber for another canoe being built in Saipan.” According to the Daily Post, the Okeanos Marianas canoe “ushers in a new era of transportation for the Northern Mariana Islands, combining ancient seafaring traditions with modern, environmentally rooted upgrades.” US Geological Survey USGS Science Center In Va. Set To Close. Greenwire (11/14, Streater, Hotakainen) reports a US Geological Survey science center in Reston, Virginia, is closing down. The facility “receives a major sum of its annual funding from the agency’s climate program,” which is being cut by the Trump Administration. More Small Quakes Rattle Monterey County. The San Francisco Chronicle (11/15, Ma) reports a “3.8 magnitude earthquake rattled Monterey County again on Tuesday after a swarm of tremors shook the area Monday, according to the U.S. Geological Survey.” The earthquake struck at “5:23 p.m. about 13.6 miles northeast of Gonzales at a depth of 3.3 miles.” At 5:15 p.m., a few minutes earlier, “a 3.3 earthquake struck about a half-mile away at a depth of 2.6 miles.” Later that evening, at 10:58 p.m. local time, USGS reported “a preliminary magnitude 2.5 earthquake struck near Gilroy, California” at a depth of 5 kilometers. Top National News Trump Touts “Tremendously Successful” Asia Trip. President Trump ended his five-nation tour of Asia on Tuesday as media analyses cast doubt on whether it resulted in many tangible results. The AP (11/14, Lemire, Colvin) reports that Trump hailed the “tremendous amounts of work” on trade and “said nations around the globe have been put on notice that the US will demand improved trading conditions.” Speaking to reporters in Manila, Trump said the “fruits of our labor are going to be incredible.” Before heading back to Washington, he tweeted, “The United States has to be treated fairly and in a reciprocal fashion. The massive TRADE deficits must go down quickly!” Bloomberg News (11/14, Sink, Jacobs) reports the President “ended his swing through Asia, hailing progress toward his goal of reducing the US trade deficit.” While Trump “spent the bulk of his public appearances emphasizing the need to reduce trade deficits,” and announced he will be making a “major statement” when he returns to Washington, he “neither publicly requested nor received specific assurances to address issues like market access and intellectual property theft” during his trip. USA Today (11/14, Maresca) similarly says that while Trump hailed what he called a “tremendously successful” trip, “some analysts questioned whether the tour was a public relations show with few concrete achievements.” Speaking to reporters on Air Force One after departing Manila, the President said, “I think the fruits of our labor are going to be incredible, whether it’s security of our nations, whether it’s security of the world or whether it’s trade.” Political expert Richard Javad Heydarian “saw little in the way of tangible accomplishments,” and noted that nations announced last week that they would push ahead with the Trans-Pacific Partnership (TPP) without the US. The Los Angeles Times (11/14, Bennett, Bierman) says Trump “demonstrated how willing he was to be flattered and to flatter back, while getting little in return, at least for now.” Politico (11/14, Restuccia) says that “as he flies home to Washington, former diplomats and Asia experts were talking about how China came out ahead – and they noted he is returning to Washington largely empty-handed.” The Wall Street Journal (11/14, Bender) says that Trump emphasized his rapport with the leaders who hosted him, and he is returning to the US with a great deal of cordiality with those leaders, but little in the way of concrete outcomes. A USA Today (11/14, Jackson) analysis says that despite Trump’s “sense of triumph,” the trip’s success “depends on what he – and China, North Korea, South Korea, and Japan, among others – do in the months or years ahead.” For example, while Trump “says he’s seeking new trade deals with Asian partner...if he does not follow through, those countries may simply decide to trade more among themselves.” While Trump “wants to see other countries – especially China – ratchet up economic and diplomatic pressure on North Korea,” it is “up to them to decide whether to take action,” and there is “no guarantee that pressure from North Korea’s neighbors will actually get the rogue nation to give up its nuclear weapons.” A New York Times (11/14, Davis) analysis says that “like most things that Mr. Trump undertakes, the president treated the grueling 12-day trip...as a test of his own personal charisma and stamina, a marathon charm offensive that he vowed would yield quick results. Never mind that it is not at all clear what he actually achieved.” The Times says Trump left China “without any concrete agreements on opening Chinese markets,” and his “America First” message “fell flat in Vietnam, where other nations moved forward” on the TPP. Reuters (11/14, Chalmers, Holland) similarly says that for Asian leaders, Trump’s “go-it-alone instincts must have represented a puzzling departure from his predecessors, who were – to varying degrees – standard bearers of multilateralism, democracy and human rights.” Another New York Times (11/14) story says Trump’s “mixed messages left allies unsure of America’s staying power and fed a growing sense that China, not the United States, drives the agenda in the region.” Trump, the Times adds, “was an often bewildering figure to countries that had already viewed this new president with anxiety.” David Ignatius writes in the Washington Post (11/14) that during the trip, Trump “rarely explained details of U.S. policy” and “mostly asked other leaders for help, lauded their virtues and embraced their worldviews.” Trump also “praised himself at nearly every stop, telling reporters on the way home that the trip had been ‘tremendously successful’ with ‘incredible’ achievements.” Ignatius adds that the trip may “prove to be historic, but probably not in the way he intends. It may signal a U.S. accommodation to rising Chinese power, plus a desire to mend fences with a belligerent Russia – with few evident security gains for the United States.” Ignatius concludes, “The Asia trip left me feeling that we’re watching an American retreat, accompanied by a shiny brass band.” In an analysis for the Washington Times (11/14, Curl), Joseph Curl takes a much different tone, writing that “by all accounts OVER THERE, the trip was a resounding success,” but “the U.S. media tried to play ‘gotcha’ throughout the trip,” such as when “CNN edited a video to make it look like Mr. Trump – the boorish and impatient American – dumped a whole bowl of fish food into a pond while feeding goldfish with Mr. Abe. In fact, Mr. Abe had done the exact same things seconds before.? The Times says Trump's trip was a ?surprising success," but ?you wouldn?t know that if you?re only source of news is the mainstream media.? After Trump Intervention, UCLA Players Returned To US. The (11/ 14, Harris) reports that three UCLA basketball players detained in China on suspicion of shoplifting ?are on a plane back to Los Angeles.? Pac-12 Commissioner Larry Scott said Tuesday the matter ?has been resolved to the satisfaction of the Chinese authorities.? The Evening News? (11/14, story 10, 0:20, Mason) said the players ?can thank President Trump for getting them out of China,? and NBC Newsic (11/14, story 7, 0:25, Holt) reported that ?Trump personally appealed" to Chinese President Xi Jinping on their behalf. The Washington Post (11/14, Denyer, Nakamura, Bontemps) says Trump had asked the Chinese leader to help resolve the case of the three players. The Los Angeles Times (11/14, Schilken) reports the three players ?are not facing any charges in China, according to a person close to the situation," but it ?was not clear whether the resolution of the case came as a result of insufficient evidence or a negotiated deal.? Politico (11/14, Nelson) says that apart from Trump?s intervention, the case ?has garnered additional attention because of the involvement of Ball, the younger brother of Los Angeles Lakers star rookie Lonzo Ball." The Washington Times (11/14, Boyer) also reports on the case, as does the Wall Street Journal (11/14, Areddy). Writing in the Daily Caller (11/14, Greene), Jena Greene criticizes media coverage of the case, saying that ?the buzz around these three players has been relatively mum relative to the storm [Ryan] Lochte had to endure? after the incident during the 2016 Olympics. Lochte ?urinated on the side of a gas station, and was treated like a war criminal,? while the UCLA players ?allegedly stole from a store, and haven't gotten a fraction of the coverage.? Greene adds, ?Misbehavior abroad is apparently only interesting when the perpetrator is white.? WSJournaI Analysis: Asian Nations Favor Third Alternative Over US Or China. The Street Journal (11/14, Browne) reports that while the accepted narrative has been that the decline of the US will mean the rise of China, the remaining members of the TPP have moved toward a trade deal that provides a more liberal alternative to China?s economic model and favors multilateralism as the US pushes for agreements with individual na?ons. WPostAccuses Trump Of Selective Criticism Of Human Rights Abuses. In an editorial, the Washington Post (11/14) contrasts Trump?s condemnation of human rights abuses in North Korea with his praise for Chinese President Xi Jinping, ?who has just elevated his intolerant and iron??sted rule to a cult of personality not seen since Mao. Mr. Xi suffocates freedom and throws dissidents into prison." The Post says the trip showed ?that human rights and democracy are seen by the president not as universal principles demanding attention everywhere, but as cudgels to be rolled out selectively, to criticize tyrants and rights abusers when convenient, and to be easily ignored elsewhere." Sessions Says He Didn?t Lie To Congress About Russian Contacts With Trump Campaign. Media coverage of Attorney General Sessions? testimony Tuesday before the House Judiciary Committee is heavy, including nearly eight minutes of reporting on the network news broadcasts and extensive discussion on cable. Nearly all of the coverage is negative in tone, casting doubt on Sessions? recollections about Trump campaign contacts with Russia and portraying him as defensive over suggestions that he had intentionally misled lawmakers. Justice Correspondent Jeff Pegues said on The CBS Evening News? (11/14, story 4, 2:00, Mason) that it ?was clear from his opening statement knew? he would face questions about his previous testimony. Sessions: will not accept and reject accusations that I have ever lied. That is a lie.? Pegues: ?But when committee Democrats started questioning him, he was not so certain." Sessions: don?t recall. I don?t believe so. I don?t know." USA Today (11/14, Kelly) reports that ?many of the questions? during Sessions' five and a half hours of testimony ?focused on seemingly inconsistent statements that Sessions has made about his knowledge of the Trump campaign?s contact with Russian officials.? The Washington Post (11/13, Zapotosky, Horwitz) reports that Sessions ?again revised his account of what he knew about the Trump campaign?s dealings with Russians,? telling the panel that ?he now remembered adviser George Papadopoulos saying in March 2016 that he knew people who might be able to help arrange a Trump- Putin meeting.? Pete Williams reported on NBC News? (11/14, story 5, 2:10, Holt) reported that in a ?revision from Sessions' previous testimony,? the Attorney General ?said he now does remember meeting? Papadopoulos. He ?says news reports about that meeting refreshed his memory.? Sessions: don't think it's right to accuse me of doing something wrong. I had no participation in any wrongdoing with regard to in?uence in this campaign improperly.? Senior justice correspondent Pierre Thomas said on ABC World News Tonightia (11/14, story 3, 3:45, Muir) that while Sessions ?said he did not remember details of the meeting, he says he does remember what he told Papadopoulos,? and Politico (11/14, Gerstein, Cheney) reports that ?Sessions said that despite his lack of clarity on what transpired at the March 2016 meeting, he believes he rejected the suggested meeting with Putin." Sessions said, believe that I wanted to make clear to him that he was not authorized to represent the campaign with the Russian government, or any other foreign government, for that matter. But I did not recall this event, which occurred 18 months before my testimony of a few weeks ago, and would gladly have reported it.? The (11/14, Tucker, Gurman) says Sessions ?displayed a hazy memory of the Trump campaign?s discussions about and dealings with Russians in the 2016 election, denying he ever lied to Congress about those contacts but blaming the chaos of the race for fogging his recollections.? Sessions ?strongly disputed allegations that he was not truthful in earlier testimony about Trump campaign contacts with Russian officials,? saying, will not accept and reject accusations that I have ever lied." The Wall Street Journal (11/14, Viswanatha, Tau) reports that some Democrats have said that revelations of interactions between Papadopoulos and Carter Page with Russia raise questions of whether Sessions told the truth when he denied knowing of any such contacts. However, the Washington Free Beacon (11/14, Crabtree) says Sessions ?vehemently defended himself,? and the Los Angeles Times (11/14, Decker) says Sessions ?angrily denounced accusations that he had intentionally misled members of Congress about any Russian interference in the presidential campaign,? while Bloomberg News (11/14, Strohm, House) reports that Sessions ?denied he lied or misled he simply forgot? about the meeting. Reuters (11/14, Strobel) reports that while Sessions? acknowledgment that ?he was aware of contact between Donald Trump's election campaign and Russian intermediaries? did not ?reveal any new link between the Trump team and Russia," it was ?another example of the top US. law enforcement of?cial offering a different version of events as lawmakers try to work out if the Trump campaign colluded with Russia in the 2016 election." The Washington Times (11/14, Noble) reports that committee Democrats ?pushed the attorney general further, asking whether in light of the disclosures, Mr. Sessions wanted to change prior testimony he gave in which he said he had no contact with Russian of?cials about the Trump campaign.? Reading from a statement, Sessions said, stand by this testimony at the intelligence committee. I have never met with or had any conversations with any Russians or any foreign official concerning any interference with the campaign or election in the US. Further I have no knowledge of any such conversations by anyone connected to the Trump campaign.? The New York Times (11/14, Apuzzo, Fandos) says while Sessions ?was supposed to be an in?uential force in the administration,? he ?has twice amended his sworn testimony, creating a distraction for the White House and renewing questions about whether the Trump administration is concealing its connections with Russia." Democrats, the Times adds, criticized him ?for what they said was repeatedly making inaccurate statements.? Rep. David Cicilline said on Situation Room? (11/14), ?Throughout the hearing, the Attorney General said on many, many occasions just don?t recall.? He said his testimony remained the same, but of course, he gave very different testimony to the Senate committee. And then he refused to answer questions as we probed more about the Comey ?ring and about Mr. Papadopoulos saying those involved conversations with the Executive Branch and I don?t want to answer them or I can?t answer them. I think the principal lesson that we learned from this hearing is that the independence of the Attorney General has been signi?cantly undermined and he did nothing today to restore con?dence in the members of the committee and the American people that the Justice Department remains independent from the Executive Branch.? Sen. Ed Markey said on Situation Room it (11/14), think what?s happening with the Attorney General and his memory is it seems to be improved every time that there is a leak about Russian contacts with the Trump campaign and then almost invariably the Attorney General remembers. And I think that?s been a constant pattern throughout the course of this past year with the Attorney General in the same way that Donald Trump Jr. is constantly being reminded of things that happened that he forgot to disclose as well with regard to his contacts with those that might have been trying to compromise the campaign.? House Oversight Committee Chairman Trey Gowdy said on Fox News The Storvai (11/14), don?t think [Sessions] persuaded the committee, because I don?t think the committee is very open?minded. I think his audience was the American people, and I think they understand sometimes it?s hard to recall the details of conversations from 12 months ago. Ironically, in every courtroom across the country, we have this concept called a ?refresh recollection? where a witness forgets something and then the lawyer will hand them a document or a photo that refreshes their recollection. We don?t do that in Congress. We want to play ?got you,? and if you don?t remember a room that you were in 12 months ago or a person you met outside of a restaurant, we think we have a perjury case. So, I don?t think anybody?s mind was changed because I don?t think anybody went with an open mind.? Charles Hurt of the Washington Times said on Fox News? Special Reporth (11/14), ?As far as the questions from the Democrats, questioning about the varying statements, if you go back to the original statements where they are claiming he misled them or he lied, there were exchanges between Senators Al Franken and Pat Leahy. Those questions were speci?cally asked in terms of, ?Were you part of this conspiracy to conspire with Russia to rig the election?? Each of those questions, he answered factually correctly at the time. Now it?s all theatrics. They are just trying to make him look bad in trying to sort of do everything they can to associate the Trump campaign with Russia.? Sessions Rejects Jordan?s Call For Special Counsel To Investigate Clinton. Reports also highlight a testy exchange with Rep. Jim Jordan during which Sessions rebuffed Jordan?s call for a special counsel to investigate Hillary Clinton, saying such a move would require ?a factual basis that meets the standard of a special counsel.? The Evening News (11/14, story 4, 2:00, Mason) reported that Republican lawmakers ?pressed Sessions to investigate Hillary Clinton over a controversial uranium deal involving a Russian company and her handling of emails.? Bloomberg News (11/14, Farrell) reports that Sessions was ?pressed? to ?commit to a probe into the Obama administration,? but responded with ?a blunt retort: Not yet.? When ?confronted? with ?a list of allegations? by Jordan, who ?said it looks like there?s more than enough to proceed,? Sessions said, ??Looks like? is not enough of a basis to appoint a special counsel.? During what The Hill (11/14, Williams) describes as a ?heated exchange? with Jordan, Sessions said that it would require ?a factual basis that meets the standard of a special counsel? for the Justice Department to appoint one. Sessions added, ?We will use the proper standards and that?s the only thing I can tell you, Mr. Jordan. You can have your idea, but sometimes we have to study what the facts are and to evaluate whether it meets the standards it requires.? Jordan said on IitFox News? Hannitv (11/14), ?On one hand, he said he was not recused from that. On the other hand, he said maybe I would have to check to see if I?m supposed to be recused from that. [Rep. Matt] Gaetz asked him those questions, and within the same five minutes, he said two different things." Gaetz said on ?Fox News? Hannity (11/14) that ?we had a lack of clarity from the Attorney General, and just like you, are frustrated. We are frustrated. We?ve been calling for three and a half months for an investigation into these scandals because if we allow them to continue, we erode the rule of law. The Attorney General at one point said that he would have the power to appoint a special counsel, and then later he said he wasn?t sure, and that may be subject to a recusal. So, we left today without a straight answer on whether or not there would be a special counsel or even what the time frame would be. That?s frustrating.? Rep. Ron DeSantis said on icFox News? Hannitx (11/14), ?Let?s just take Trump- Russia collusion. Not only is there not evidence of collusion, but we know or we think that the dossier that was used to justify some of this surveillance was done through the Democratic Party paying and Christopher Steele, and obviously he had to pay some of these Russians to be able to get some of this information. We need to know, and Jeff Sessions would not answer, whether the FBI paid Christopher Steele for that, how much did they pay him, and whether they used it for the FISA warrant.? World News Tonight (11/14, story 3, 3:45, Muir) reported Sessions is also ?under pressure from President Trump, who has been pushing the Justice Department to investigate his political opponents.? ABC (Thomas) added that ?just ten days after the President?s comments, Sessions? office informed Congress prosecutors would look into naming a special counsel to investigate the Clinton Foundation. But tonight, the Attorney General insists, he?s not a pawn of the President.? To Pete Williams of News (11/14, story 5, 2:10, Holt), Sessions ?seemed to be speaking to two audiences, showing White House he?s aware what the President wants, but telling Congress there?s a high bar to appointing a special counsel.? The Washington Post (11/14, Barrett) says Sessions? ?suggestion that he may appoint a special counsel to investigate Hillary Clinton has alarmed current and former Justice Department officials who fear he will further politicize the embattled agency.? The suggestion ?has raised fresh questions about the independence of the Justice Department in the Trump administration.? The New York Times (11/14, Baker) reports that if a new investigation of Clinton is authorized, ?it would shatter norms established after Watergate that are intended to prevent presidents from using law enforcement agencies against political rivals.? In an editorial, the New York Times (11/14) says that whether a special counsel is appointed or not, ?the pressure to do so is clear, from both Republicans in Congress and Mr. Trump, who has threatened Mr. Sessions?s job if he fails to prosecute Mrs. Clinton.? The Times describes as ?alarming? the ?push for the Justice Department to undertake a politically motivated investigation of a president?s political opponent, and purely as revenge for an actual investigation already underway.? Similarly, a Washington Post (11/14) editorial says the ?demands for the politically motivated prosecution of Mr. Trump?s former political opponent are profoundly inappropriate and degrading to democracy.? While the Justice Department ?appears to be holding firm against the president,? it ?remains under pressure.? Senate Judiciary Committee Chairman Chuck Grassley said on ?tFox News? Fox Friends (11/ 14), ?The reason that I asked for special counsel is because the extent to which Mueller was head of the FBI at the time of the Uranium One stuff and he?s special counsel in the Trump-Russia investigation, I suggested that maybe another special counsel would bring about more independence and more credibility to the investigation. But if it?s going on within the Department of Justice and people that aren?t had anything to do with it at that time or weren?t close to the leadership of the Department of Justice or the FBI at that time, if they can carry it out, I?m satisfied with that.? The New York Times (11/14, Sullivan) reports on the Uranium One deal in which the Obama Administration, while Clinton was Secretary of State, allowed the Russian nuclear agency Rosatom to buy the company, which ?had access to the United States uranium supply.? People linked to Uranium One ?had donated millions of dollars to the Clinton family?s charitable organization, the Clinton Foundation,? and ?questions have been raised about whether there were any connections between deal?s approval and the donations to the Clinton Foundation.? While the Justice Department said Monday ?that it was looking into whether to appoint a special counsel to investigate Mrs. Clinton and the Uranium One deal,? there has been ?no evidence that donations to the Clinton Foundation in?uenced the Uranium One deal.? Sean Hannity said on itFox News? Hannig (11/14), ?If you listen very closely to Sessions today, he is suggesting that it would take ?a factual basis that meets the standards of a special counsel? in order for the to make that type of appointment. Those words, I can assure you, were carefully crafted. Sources told me earlier this month, and we reported it right here on this show, that Sessions has not, hear me, has not recused himself in the Uranium One scandal, and if there is an ongoing investigation, Sessions isn?t going to can?t reveal all that in an open setting in front of Congress.? FBI Probing Money Transfers From Russian Foreign Ministry To Embassies. BuzzFeed (11/14, Leopold) reports that the FBI and other federal agencies investigating Russian involvement in the US election are looking into more than 60 wire transfers from the Russian foreign ministry to its embassies in nearly 60 countries between Aug. 3 and Sept. 20, 2016, most with ?a memo line referencing the financing of the 2016 election." House Democrats To Introduce New Articles Of Impeachment Against Trump. The Hill (11/14, Lillis) reports that the of?ce of Rep. Steve Cohen says a group of House Democrats on Wednesday will ?introduce new articles of impeachment against President Trump, representing the broadest effort yet to oust him as commander in chief.? Rep. Luis Gutierrez ?will team up with Cohen in the effort,? but it is ?unclear how many other Democrats will join the pair, and neither of?ce would say what grounds the articles will cite.? Ukraine Seeks To Question Manafort As A Witness. Reuters (11/ 14, Williams, Polityuk) reports that Serhii Horbatiuk, head of special investigations at the Ukraine general prosecutor?s of?ce, said Ukraine ?is puzzled by the lack of a US. response to requests it has made to question former Donald Trump campaign chief Paul Manafort as a witness over two cases involving misuse of Ukrainian state funds.? Horbatiuk ?told Reuters Ukraine had sent requests in 2014 and 2015 to question representatives of a law ?rm and Manafort. He said Ukraine had received reassurances from the Federal Bureau of Investigation (FBI) that the requests would be met, but without result.? Russia Moves To Retaliate For US Designation Of RT As A Foreign Agent. The Washington Post (11/14, Roth) reports that Russian lawmakers have proposed ?legislation that could designate nearly all foreign media in the country as ?foreign agents,? a move to retaliate for a similar U.S. requirement aimed at Russia's state-funded RT television station." Lawmakers on Wednesday are expected to approve the legislation, which ?represents a signi?cant expansion in a tit-for-tat targeting of foreign media following allegations of Russian interference in the 2016 US. presidential election.? The measures would enable the Russian Ministry of Justice to ?require any media organizations in the country that receive foreign funding, whether from governments or private individuals, to join a registry, issue special disclaimers on articles and submit ?nancial reports under penalty of fines or a possible ban on operations.? Medvedev Says He Met ?Friendly? Trump At ASEAN Summit. Bloomberg News (11/ 14, Anishchuk) reports Russian Prime Minister Dmitry Medvedev said Tuesday that he spoke with President Trump at the ASEAN summit in Manila, describing him as ?an open, friendly person? even amid heightened tensions between the two countries. With Trump ?sitting practically next to me, we had the chance to talk" at a dinner in Manila, Medvedev said Tuesday, according to the Tass news service. ?The bad thing is that despite the contacts, the opportunity to discuss some issues, our relations are degrading day after day. They?re at the lowest point in recent decades.? US Hires Company With KGB Ties To Guard Moscow Embassy. The New York Times (11/14, Higgins) reports that after Russia ordered American diplomatic missions to slash their staff by 755 employees, the State Department made up ?for the loss of security guards axed? by hiring a private Russian company. Under a $2.8 million no-bid contract awarded by the Of?ce of Acquisitions in Washington, security guards at the US Embassy in Moscow and at US Consulates in St. Petersburg, Yekaterinburg and Vladivostok will be provided by Elite Security Holdings, ?a company closely linked to the former top K.G.B. ?gure, Viktor G. Budanov.? A ?State Department of?cial? said that Elite Security and individuals associated with it had been ?vetted? with ?relevant national and local agencies? and did not pose a threat risk. missions around the world work constantly under intelligence and physical security threats,? the of?cial said. ?This contract does not change that fact.? UK, Spanish Prime Ministers Say Russian Entities Interfered In European Elections. The Washington Post (11/14, Booth, Birnbaum) reports that ?the prime ministers of Britain and Spain have separately accused Russian entities including some allegedly supported by the state of meddling in European elections and have vowed to foil them.? The allegations from British Prime Minister Theresa May and Spanish Prime Minister Mariano Rajoy ?stand in stark contrast to remarks made over the weekend by President Trump, who appeared to defend the Russian president.? Milbank Cites Evidence Trump Jr. Is ?Dumb As A Post. Dana Milbank writes in the Washington Post (11/14) that President Trump?s ?best excuse? amid mounting evidence of Russia collusion ?may be that his people were too incompetent to organize a conspiracy.? There is, Milbank adds, ?clear and compelling evidence that Donald Trump Jr. is dumb as a post.? As evidence, Milbank cites Trump Jr.?s contacts with Wikileaks, his meeting with Russians during the campaign, and his Twitter feed, which ?skews Low Playground, with vulgar words, jokes about bestiality and sexual assault and a quip about pretending to be gay so he can put his hands up women?s skirts. When he ventures into big-boy topics, he gets in big trouble.? KIion: The Left Should Embrace Trump-Russia Investigation. In an op-ed for the Ne_w York Times (11/14, Klion), David Klion, a writer and editor covering United States-Russia relations, says that many on the political left see ?questions about Russia's interference in last year?s election [as] a frustrating distraction.? However, as special counsel Robert Mueller?s investigation ?closes in on more Trump associates like Paul Manafort and Michael it seems clear that the Russia story is only going to get bigger.? Klion argues that the left ?should embrace it," as Trump?s ?Russia ties illustrate the dangers of inequality and elite corruption and point to the need for radical solutions.? Senate GOP Adding ACA Individual Mandate Repeal To Tax Plan. Coverage of the Senate GOP's move to add to its tax plan a repeal of the Affordable Care Act's individual mandate was cast by many media outlets as a surprise move that may increase the dif?culty of passing the measure. The CBS Evening News?t (11/14, story 7, 0:25, Mason) reported Senate Republicans said their tax plan would remove the Affordable Care Act?s individual mandate for most Americans to pay a penalty if they don?t have health insurance. Reducing the number of insured Americans would reduce the amount spent on subsidizing health ?plans helping to pay for tax cuts.? NBC Niahtlv Newsit (11/14, story 2, 2:15, Holt) reported the ?ght over the ACA is ?roaring back? as the Senate adding the repeal of the ACA mandate to their ?sweeping and controversial tax plan? has ?set off a ?restorm.? NBC (Welker) called it ?a risky and surprising move,? and NBC News Political Contributor Steve Schmidt warned, ?It may be a poison pill.? As the House GOP tax plan doesn?t have this provision, Welker said that the ?two chambers will have to reconcile yet another major difference in their two plans. All underscoring the challenges ahead.? The Wall Street Journal (11/14, Armour, Peterson) reports that while GOP leaders had been wary of complicating the tax effort with healthcare provisions, a Senate GOP aide said that Sen. John Thune and Sen. Pat Toomey pitched the idea; President Trump has also expressed support for such a move. In response, industry stakeholders, America?s Health Insurance Plans, Blue Cross Blue Shield Association, and the American Medical Association, wrote urging congressional to keep the mandate, warning that its repeal would lead to premium increases and a drop in the number of uninsured Americans. The New York Times (11/14, Kaplan, Tankersley) reports the Congressional Budget Of?ce said the provision would increase the average health insurance premium in the individual market by about 10 percent and result in 13 million fewer Americans being covered by health insurance by the end of a decade. The GOP move ?risks reigniting the contentious debate over health care that Republicans found themselves mired in for much of the year.? said Republican Sen. Susan Collins said, personally think that it complicates tax reform.? Meanwhile, Democrats said the mandate repeal would, in the Time?s words, ?underwrite tax cuts for the rich at the expense of people who buy insurance on the individual market.? Sen. Patty Murray said, ?Americans have stood up and spoken loudly for the last year saying they do not want the markets destabilized, and their provision in the tax bill that they are talking about will really destabilize the marketplaces." The Washington Post (11/14, A1, Paletta, Debonis) calls adding the individual mandate repeal to the GOP Senate tax plan ?a major change of strategy? that ?would cause substantial political problems.? Not only is it ?likely? to remove any hope of Democratic support, but ?the prospect of adding millions to the ranks of the uninsured could trouble moderate Republicans who voted down previous repeal efforts.? Sen. John McCain, one of the three GOP senators who voted against repealing the Affordable Care Act, ?declined to say whether he?d back a tax bill that included repeal.? Meanwhile, projections showing large corporations and the wealthy benefiting the most from the GOP plan have the Senate GOP leadership ?under pressure? to increase its middle-class benefits, despite ?struggling to ensure that the legislation does not add too much to the budget deficit.? Similarly, the (11/14, Gordon) calls the GOP move a ?surprise? that ?upended? debate over the measure, turning it ?into an angry partisan referendum on health care and? the ACA just as the tax measure ?was inching closer to passage following months of ?ne-tuning and compromise.? In response, ?feeling ambushed without advance notice, minority Democrats exploded in anger.? Reuters (11/14, Becker, Cornwell) reports the GOP is ?raising new political risks and uncertainties? for the tax measure. Majority Leader Mitch McConnell ?infuriated Democrats and left some senior Republicans unsure what comes next,? saying, ?We?re optimistic that inserting the individual mandate repeal would be helpful and that's obviously the view of the Senate Finance Committee Republicans as well.? However, Bloomberg News (11/14) reports Sen. John Thune, the chamber's No. 3 Republican, said, ?We wouldn't have proceeded if [Senate Majority Whip John] Cornyn wasn?t confident he could get to? the 50 votes needed to pass a bill. Similarly, Politico (11/14, Haberkorn, Kim, Becker) reports that ?several key swing-vote lawmakers? indicated ?they?re open to the idea.? Sen. Pat Toomey said on Closing Bell (11/14), ?We are going to include a provision to repeal this very onerous tax on low- income Americans." USA Today (11/14, Jackson) reports that on Monday President Trump suggested on that the repeal be included, although Of?ce of Management and Budget Director Mick Mulvaney told reporters, ?If adding a repeal of the individual mandate makes it easier to pass, great. If keeping it off makes it easier to pass, we?ll take that as well.? USA Today adds, ?Trump focused on using the budget savings from the repeal to bring down the top tax bracket.? In an analysis on the New York Times (11/14) ?The Upshot? blog, Margot Sanger- Katz writes that while the individual mandate ?has long been the most loathed? part of the Affordable Care Act, economic studies suggest that it prevents ?an unhappy spiral of rising prices and lower rates of insurance coverage." The mandate has been compared to a leg of a three-legged stool and that removing the mandate would tip the stool, ?broken and useless.? However, the Congressional Budget Office recently indicated it is considering GOP complaints of ?the mandate's overstated importance,? writing in a report that the agency is revising its methods to estimate the effects of repealing the individual mandate and expects ?smaller? estimate effects of repeal on the budget and health insurance coverage, which would make the mandate ?less valuable as a means to pay for tax cuts? but also ?less central to the success of future health care overhaul ideas." Among other outlets covering this story are the Los Angeles Times (11/14, Mascaro, Puzzanghera), Roll Call (11/14, Williams), The Hill (11/14, Bolton, Sullivan, Jagoda), the Washington Times (11/14, Dinan, Sherfinski), and Breitbart (11/14, Carney). Ryan: House Didn?t Include Individual Mandate Repeal To Avoid Needless Complications. Asked in a ?Fox News (11/14) town hall why the Senate GOP's Affordable Care Act individual mandate repeal is not in the House GOP tax bill, House Speaker Ryan said, ?We didn?t want to complicate tax reform and make it harder.? He added, ?We are in favor of repealing the individual mandate but we didn?t want to needlessly complicate the passage of tax reform given we do not have the votes before to get this to the Senate.? Poll: Americans Don?t Believe GOP Bill Will Raise Their Wages. The New York Times (11/14) reports that a new survey ?suggests even the party?s strongest supporters aren?t buying? the argument that the GOP tax plan ?to cut corporate taxes will increase wages for American workers.? The ?national survey of 9,504 adults conducted for The New York Times by the online polling ?rm SurveyMonkey" found that ?78 percent of not believe they would receive a raise if their employer received a tax cut." Moreover, about ?70 percent of self-identified Republicans and roughly 65 percent of people who said they strongly approved of President Trump?s performance in office said they didn?t think they would get a pay increase.? Overall, the survey ?found that 52 percent of respondents said they disapproved of the plan, compared with 44 percent who said they supported it.? As GOP Awaits Trump?s Direction On Moore, McConnell Floats Sessions As Write- In Candidate. On Tuesday, pressure continued to mount on embattled Alabama Senate candidate Roy Moore (R), as more Republicans called for him to step aside amid allegations of sexual assault, the RNC pulled its support from the candidate, and GOP congressional leaders plotted strategies for a path forward in the Dec. 12 special election for the former seat of now-US Attorney General Jeff Sessions. Meanwhile, several reports focus on what role President Trump may play as the controversy over Moore reaches a fever pitch. Politico (11/14, Isenstadt, Johnson, Dawsey) reported that President Trump may have ?to decide whether to push out Attorney General Jeff Sessions in a Hail Mary attempt to save the Alabama Senate seat Sessions once held." Politico said that Senate Majority Leader Mitch McConnell on Monday ?discussed the Alabama situation with White House chief of staff John Kelly and Vice President Mike Pence,? proposing ?a dramatic idea: that Sessions run as a write-in candidate or be appointed to the seat." Politico added, ?It's a vexing call for Trump. If he tries to pressure Moore out of the race, as some people close to the White House expect him to do, there?s no guarantee that the candidate will oblige." The A2 (11/14, Fram, Chandler) reports, ?With Alabama Republicans reluctant to block Moore and enrage his legions of loyal conservative supporters, national GOP leaders were turning to Trump as their best chance of somehow turning the tide.? The AP adds, ?Two Washington Republicans, speaking on condition of anonymity to describe private conversations, said they didn?t know what Trump would do, but said the White House shares McConnell's concerns about Moore. While few think Trump could persuade Moore to step aside, several are hoping he can convince the Alabama state party to take some action.? On NBC Niahtlv Newsa (11/14, story 3, 2:35, Holt), Gabe Gutierrez reported, ?Amid a growing political firestorm,? McConnell ?is publicly floating the idea as write-in alternative NBC broadcast a clip of McConnell addressing the Wall Street Journal?s CEO Council saying, ?The Alabamian who would fit the standard would be the Attorney General. He is totally well-known and extremely popular in Alabama.? Reuters (11/14, Oliphant, Whitesides) reports that McConnell, speaking on Tuesday with reporters, said ?that he wants to work with the White House to explore ways to? prevent ?Moore from taking office.? McConnell ?said he had been in contact and others about sexual misconduct allegations against Moore.? Of Moore, McConnell said, ?He?s obviously not ?t to be in the United States Senate, and we?ve looked at all the options to try and prevent that from happening.? Reuters adds that McConnell ?said later in the day that be a plausible write-in candidate. ?He ?ts the mold of somebody who might be able to pull off a write-in,? McConnell said. The Washington Examiner (11/14, Weaver) reports that McConnel publicly ?oated the idea of? having Sessions run as a write-in candidate. McConnell ?made the comments to the Wall Street Journal?s CEO Council while talking about who could mount a successful write-in campaign, like Sen. Lisa Murkowski did in Alaska in 2010.? Said McConnell, ?The name being most often discussed may not be available, but the Alabamian who would ?t that standard would be the attorney general. He?s totally well- known and is extremely popular in Alabama.? McConnell added, ?That obviously would be a big move for him and for the president." The Wall Street Journal (11/14, Hughes) quotes McConnell as saying of Moore, ?His campaign is collapsing.? And of his conversation with Trump about the situation, McConnell said, ?Obviously we're in a discussion here about how to salvage this seat if possible.? The Hill (11/14, Bolton) reported that McConnell, speaking with reports, ?said no final decision had been made and it would await further discussions with Trump. McConnell told reporters that Trump called him from Vietnam last week to discuss what to do about Moore.? McConnell, commenting on ?his discussions with White House of?cials and colleagues,? told reporters, ?We've looked at all the options. This close to the election it?s a very complicated matter." Bloomberg News (11/14, Pettypiece, Litvan) reports that McConnell ?reiterated that Moore is ?obviously not fit? to hold office and that he?s discussing ?all the options? with the White House for keeping Moore out of the Senate while maintaining the seat for Republicans. The election is ?up to the people of Alabama to make this decision,? McConnell said while adding, ?From a Republican point of view, we would hope to save the seat and that might require a write-in, and all of those things are under discussion.? USA Today (11/14, Shesgreen) reports that National Republican Senatorial Committee chief Sen. Cory Gardner on Monday ?said the Senate should vote to expel Moore if he wins the Alabama contest. McConnell did not explicitly endorse that idea when asked about it on Tuesday. But he suggested it was one of several options Republicans were considering.? The New York Times (11/14, Stack) runs a piece examining ?the options? the GOP has for dealing with Moore and the Senate race, saying that Republicans could run a write-in candidate or possibly move back the date of the election. If Moore wins, says the Times, Republicans could move to hold a vote to expel him from the Senate. Under the headline ?Republicans Seek To Derail Roy Moore And Salvage Senate Seat,? the Wall Street Journal (11/14, Hook, Hughes) reports on the various options Republicans are mulling to torpedo the bid of Moore and prevent Democrats from capturing the seat. In a Wall Street Journal (11/14, Kalt) op-ed, Michigan State University law professor Brian Kalt says that under the US Constitution, if Moore wins the election, he is required to be seated by the Senate. Kalt adds that the Senate lacks the legal authority to exclude Moore, should he win, but does have the ability to vote to expel him, once he was formally seated. Sessions Says He Has ?No Reason To Doubt? Moore?s Accusers. On its website, (11/14, Kopan) reported that during an appearance before the House Judiciary Committee, Sessions ?said Tuesday he did not doubt the accusations leveled against? Moore. Responding to Rep. Sheila Jackson Lee (D-TX), who asked, ?Do you believe these young women??, Sessions replied, have no reason to doubt these young women.? On the CBS Evening Newsit (11/14, story 5, 2:00, Mason), Manuel Bojorquez reported that Sessions ?sided against the man who wants his old Senate seat.? The Los Angeles Times (11/ 14, Decker) reports that Sessions ?would not say whether he believed Moore should be seated if he wins the December runoff. He said he has been advised by Department of Justice ethics of?cials to ?not be involved? in the campaign.? RNC Pulls Its Support For Moore. Politico (11/ 14, Isenstadt) reported that the RNC is pulling its support for Moore, ?leaving him increasingly isolated as he confronts charges of sexual misconduct with teenagers. The RNC is pulling out of a joint fundraising agreement it had with Moore, according to a senior party official briefed on the decision,” and “is also canceling a field program it had set up ahead of the state’s Dec. 12 special election. The committee had about a dozen paid canvassers in Alabama working for Moore. It will no longer transfer any money to the race.” The Hill (11/14, Carter) reported, “New documents filed Tuesday with the Federal Election Commission show the RNC is no longer listed alongside other groups involved in the joint fundraiser. The two parties now listed on the documents include ‘Judge Roy Moore for US Senate’ and the Alabama Republican Party. The initial FEC filing, dated Oct. 24, included both the RNC and National Republican Senatorial Committee (NRSC).” Ryan: Moore “Should Step Aside.” The AP (11/14) reports that House Speaker Paul Ryan on Tuesday “joined a growing chorus of Republican officials calling on Moore to leave the race saying that he believes the women who have accused Moore of sexual misconduct.” On its website, CNN (11/14, Mattingly, Fox, Watkins) reported that Ryan, during an appearance on CNN, said of Moore, “He should step aside. Number one, these allegations are credible. Number two, if he cares about the values that he claims to care about, then he should step aside.” However, the Washington Post (11/14, Sullivan, Scherer, Kane) reports that the “growing criticism” of Moore by Washington’s GOP leaders “has yet to sweep over key Republicans in Alabama, many of whom are standing by the former judge or staying silent on the controversy. The sharply contrasting reactions coming out of Washington and Alabama underscore the challenge Republican leaders face as they try to force Moore out of the race.” The Post adds that GOP “officials in Alabama continued to express skepticism about the accusations made against Moore, saying that they are still waiting for the evidence to back up the allegations.” “Vulnerable” Heller Says Moore Should Withdraw From Race. The Las Vegas ReviewJournal (11/14, Joecks) reports that Sen. Dean Heller (R-NV) on Tuesday “became the latest Republican senator to urge” Moore to step aside. In a statement, Heller – who faces a difficult reelection race next year – said, “I believe the women who have come forward. Roy Moore should do what is best for the conservatives of Alabama and step aside.” The Nevada Independent (11/14, Snyder) reports, “A progressive Super PAC, American Bridge 21st Century, launched a digital ad campaign over the weekend targeting Heller for staying silent on the allegations surrounding Moore. Heller is up for re-election in 2018 and is widely considered one of the most vulnerable senators in the nation.” Alabama Poll: Moore Leads Jones 49%-43%; 8% Undecided. In an “exclusive,” WALATV Mobile, AL (11/14, Grip) reported on its website that that a FOX10 News/Strategy Research poll of 3,000 Alabama likely voters, taken Nov. 13, shows Moore leading ex-US Attorney Doug Jones (D) 49%-43%; 8% were undecided. In a similar poll taken “two weeks ago,” Moore led Jones 52%-41%, with 7% undecided. WALA-TV added, “When asked if the recent sexual misconduct allegations against Moore had influenced their support, 36 percent of all likely voters said they intended to vote for Jones anyway, 35 percent said the allegations made them more likely to vote for Moore, 11 percent said the allegations made it less likely they would vote for Moore and 18 percent said they were either undecided, or that the allegations made no difference to them.” Breitbart (11/14, Poor) also reported on the poll results. National Poll: 60% Of US Voters, Including 50% Of Republicans, Say Moore Should Quit Race. Politico (11/14, Shepard) reported that a Politico/Morning Consult nationwide poll of 1,993 US voters, taken Nov. 9-11, “shows voters nationally find the allegations against...Moore credible – and a majority thinks Moore should drop out of the race.” In the survey, “which was conducted prior to the most recent allegations against Moore leveled by Beverly Young Nelson, who said Monday that Moore sexually assaulted her when she was 16 years old,” 59% said “they considered the original allegations against Moore outlined in a Washington Post article last week very or somewhat credible,” including 49% of GOP voters, while 17% said “the allegations are ‘not too credible’ or not credible at all.” And 60% said they “think Moore should not continue his campaign,” including 50% of Republicans. Moore: “I’m Being Harassed By The Media,” Those “Pushing Allegations.” On its website, (11/14, Tatum) reported that during a Tuesday appearance at a church conference in Jackson, Alabama, Moore said ?he?s being hounded by the news media over sexual allegations against him.? Moore is quoted as saying, ?Why do you think they?re giving me this trouble? Why do you think I?m being harassed by media and by people pushing allegations in the last 28 days of the election? After 40-something years of ?ghting this battle, I?m now facing allegations and that?s all the press wants to talk about." The (11/14, Fram) reports that Moore also said ?there is a ?spiritual battle' going on in American politics as he faces mounting pressure from national Republicans to drop out of the race.? Hannity Gives Moore ?24 Hours? To Satisfactorin Explain His ?Inconsistencies.? Sean Hannity said on Fox News? Hannig? (11/14) that Moore ?has 24 hours. He must immediately and fully come up with a satisfactory explanation for your inconsistencies. You must remove any doubt. If you can't do this, then Judge Moore needs to get out of this race. This country has way too many issues and problems. The American people deserve a hundred percent truth and honesty. We needed correct answers the first time on issues this serious. Judge Moore, you owe that to the people of Alabama, the Republican Party that you represent, and to the country which is suffering under so many problems.? USA Today (11/14, Snider) reports that Fox News host Sean Hannity ?is being targeted with an advertiser boycott, the third this year, a relief to critics riled by the conservative pundit?s comments. But do they hurt him with Fox and its viewers?? USA Today says, ?Viewership of the show took a hit earlier this year during a period in which he was targeted by ad boycotts and his show was temporarily moved an hour later from its traditional 9 pm. ET time slot because of the departure of Bill O?Reilly. Back at the old hour, it?s bounced back. Hannity drew an average of 2.5 million during the April- September months, down from his 2.87 million in the year?s ?rst three months of the year. Since returning to his 9 pm. slot, El' slot, the show has drawn an average of 3.2 million total viewers, according to Nielsen.? WSJournaI: If Moore Won?t Quit, It?d Be Better For GOP For Him To Lose. In an editorial, the Wall Street Journal (11/14, Board) says that if Moore won?t quit the race and Trump won?t urge him to do so, it?d be better for Republicans if Moore is defeated. Otherwise, says the Journal, Democrats and the press will use Moore as a cudgel in 2018 to batter GOP candidates. In a USA Today (11/14, Zeigler) op-ed, Alabama Auditor Jim Zeigler (R) says that if Moore steps aside, ?it would cause an automatic pickup of a Democratic seat in the Senate. A defeat of Moore would mean the Republican Senate majority is reduced to 51-49, a dangerous number when the present 52-48 split is already not an effective working majority. It would endanger Senate confirmation of Supreme Court appointments and the Trump agenda. The people of Alabama voted for Trump despite sexual innuendo. They will vote for Roy Moore.? In an editorial, USA Today (11/14, Board) says, ?Driven by the Trump presidency and the Harvey Weinstein moment born after weeks of sickening accusations about rape, sexual harassment and abuse in entertainment, finance, journalism and politics, there?s little doubt the country is moving toward greater gender equality. If this special election helps push that forward, it will have served a purpose well beyond Alabama." Democrat Jones?AdAIIudes To Moore Allegations. Meanwhile, the Washington Post (11/14, Weigel) reports that Jones, the Democrat battling Moore in the special election, ?is running the ?rst TV ad about the allegations? involving ?Moore, in a meticulous and careful way.? In the spot, ?a number of unnamed ?Republican voters? explain why they ?just can't? stick with their party in the? race. A pair ?of the voters refer, unmistakably but subtly, to allegations of Moore?s improper conduct with teenage girls. ?He?s already been removed from of?ce twice,? says one voter. ?And this time, it?s even worse,? says another. ?You read the story and it just shakes you,? says a female voter. Another female voter finishes the thought: ?Just awful."? The Washinaton Times (11/14, McLaughlin) reports, ?In the ad, self-identi?ed Republican voters say are backing Mr. Jones because they can?t stomach Mr. Moore, noting that the former chief justice of the Alabama Supreme Court was removed from the bench, and once again is engulfed in controversy. ‘I am a Republican, but Roy Moore? No way,’ a man says in the spot, which also alludes to the allegations of sexual misconduct that women leveled against Mr. Moore in a recent Washington Post report.” Some of the voters “say the story is ‘Just awful,’ ‘I just don’t trust him,’ ‘He is too divisive’ and ‘Don’t decency and integrity matter anymore?’” NYTimes Analysis: National Democrats Providing Stealth Support For Jones. The New York Times (11/14, Burns, Martin) reports, “National Democratic groups have not spent a dollar on their own television or radio commercials promoting Mr. Jones,” and Democrats’ “most popular campaigners, such as former President Barack Obama and Senator Bernie Sanders...have not set foot in the state.” However, “the national Democrats’ ostensibly arm’s-length treatment of Mr. Jones belies a far deeper investment in the race,” as the party has helped the candidate raise cash and has blasted “Republicans who have been slow to denounce” Moore. Moreover, some “liberal activist groups have begun deploying organizers to Alabama to help prepare get-out-the-vote efforts for Mr. Jones.” Limbaugh: With Targeting Of Moore, McConnell Sending Message To Bannon. Breitbart (11/14, Poor) reported that Rush Limbaugh on Tuesday said on his radio program that “the recent sexual misconduct allegations aimed at...Moore had been inspired by...McConnell...who had backed Moore’s former opponent Sen. Luther Strange (R-AL) in the earlier primary contests.” Limbaugh opined that the “charges were meant to send a message to former Donald Trump chief strategist...Steve Bannon, who has publicly said he seeks to take on all Republicans that back McConnell as Senate Majority Leader.” Limbaugh is quoted as saying that “what’s really driving this is Mitch McConnell saying to Steve Bannon, ‘Really? You think you’re going to get your guys elected? You think you are going to get your guys elected and me kicked out of here? Really? Seriously? OK, watch this.’” Editorial Published In Three Alabama Newspapers Rips Moore As “Grossly Unfit For Public Office.” Politico (11/14, Nelson) reported, “An editorial published by three of Alabama’s largest newspapers on Monday called...Moore ‘grossly unfit for office’ in the wake of allegations that he initiated sexual encounters with girls as young as 14 when he was in his 30s. ‘Roy Moore simply cannot be a US Senator. Even if his party and many of its adherents still think it possible, it is unthinkable – for his state, and his country,’ wrote the AL.com editorial board, which feeds newspapers in Birmingham, Mobile and Huntsville.” The Federalist’s Davidson: “Moore Is No Conservative.” Writing for The Federalist (11/14, Davidson), John Daniel Davidson said that even in the wake of the Moore allegations, “it’s hard to understand why voters in Alabama are only just now realizing that he is unfit for office. They should have known years ago, when his contempt for the rule of law twice got him removed from the Alabama Supreme Court.” Davidson said “those incidents...reveal that Moore is no conservative and has little use for the American constitutional order that conservatives hold dear.” NYTimes Analysis: Moore’s Hometown Remains “Bitterly Divided” Over Him. Reporting from Gadsden County, Alabama, under the headline “Roy Moore, Long Divisive In His Hometown, And Even More So Now,” the New York Times (11/14, Bidgood, Fausset) says, “Etowah County, the largely rural slice of northeast Alabama where Mr. Moore was raised and currently lives, was bitterly divided about Mr. Moore before the allegations. And it remains so now.” The Times reports that “Moore, many people say, clearly had a fondness for younger women in decades past.” However, “around Gadsden, a city of 36,000...opinions about the recent allegations tend to follow lines that were etched long before.” The Times adds that “even in a place that has long ago been polarized over Mr. Moore, there are hints of nagging doubt among his supporters, and admissions by critics that they still want more clarity about the allegations.” Alabama Pastor: Caller Claiming To Be A WPost Reporter Offered Cash For Damaging Info On Moore. The Washington Post (11/14, Eltagouri, Wong) reports, “A pastor in Alabama said he received a voice mail Tuesday from an individual falsely claimed to be a reporter with The Washington Post and seeking women ‘willing to make damaging remarks’ about...Moore in exchange for money.” The Post adds, “Pastor Al Moore of Creola, Ala., said that he received the call on his cellphone a little after 7 a.m. Tuesday from a private number, which he did not answer. The caller, claiming to be ‘Bernie Bernstein,’ left a 27-second voicemail, which Moore played for local CBS-affiliate WKRG. ‘I’m a reporter for the Washington Post calling to find out if anyone at this address is a female between the ages of 54 to 57 years old, willing to make damaging remarks about candidate Roy Moore for a reward of between 5,000 and 7,000 dollars,’ the caller said in the voice mail.” Report: Moore Story Receiving Much More Extensive Coverage Than Menendez Trial. The Washington Times (11/14, Harper) reports that the press “has provided intensive coverage of the ongoing woes of...Moore, and the coverage often showcases melodrama, speculation and sensationalism. Reporters and anchors, in fact, frequently repeat the same ‘damning accusations’ and key phrases against Mr. Moore says Rich Noyes, research director of the Media Research Center. ... ‘From the evening of November 9 through the morning of November 13, the ABC, CBS and NBC morning and evening newscasts have generated 79 minutes, 42 seconds of coverage of the Moore case,’ says Mr. Noyes.” In comparison, says Noyes, since the federal corruption trial of Sen. Bob Menendez (D-NJ) “began Sept. 5, ABC and CBS managed to produce two minutes of coverage combined and NBC has offered none.” DOJ: Trump Tweets Are Official Statements Of The President. The Washington Times (11/14, Blake) reports that, in response to questioning by US District Judge Amit Mehta, Justice Department lawyers wrote in an eight-page submission entered in DC federal court that the agency is treating tweets by President Trump “as official statements of the President of the United States.” The issues came up in a Freedom of Information Act lawsuit against the Justice Department, CIA, the Office of Director of National Intelligence, and the Pentagon by Politico reporter Josh Gernstein and the James Madison Project government accountability group seeking records relating to the dossier compiled by former British spy Christopher Steele on Turmp’s alleged ties to Russia. Acting Assistant Attorney General Chad Readler wrote that while the plaintiffs argue Trump’s tweets calling the dossier fake indicate such records exist, “The Court cannot assume that the President was expressing a view based on ‘some knowledge and understanding’ provided by these agencies.” House Narrowly Passes Flood Insurance Overhaul. Politico (11/14, Warmbrodt) reports that the House of Representatives passed “a bill that would reauthorize and overhaul the National Flood Insurance Program...in a 237-189 vote.” If passed into law, “the bill would reauthorize the NFIP for five years and enact several operational changes championed by Financial Services Chairman Jeb Hensarling (R-Texas), the fiscal conservative who led an effort to pare back the program as part of the reauthorization bill.” Opponents of the bill from both parties argued that the “committee’s proposals threatened homeowners and local economies.” Puerto Rico’s Electric Utility Ignored Own Legal Advice On Whitefish Deal. The AP (11/14, Daly) reports that Puerto Rico’s electric utility “ignored advice from its own lawyers before signing an expanded contract worth $300 million with a tiny Montana company,” Whitefish, “to repair its damaged power grid,” according to newly released documents. Law firm Greenberg Traurig “recommended that the state-run power authority be allowed to terminate the deal within 10 days for any breach by the company” and “that the utility be allowed to seek damages from Whitefish and that the company be required to hold a bond for such a large contract.” These recommendations were ignored. Half Of Power Grid Will Be Restored By Wednesday. USA Today (11/14, King) reports that “half of Puerto Rico’s power grid will be back up Wednesday,” but full power restoration might not come for several months. Officials in the US Virgin Islands and Puerto Rico “are exploring different ways to modernize their systems,” including increased reliance on renewable energy sources. Democratic Governors Aided By “Shadow Staff Supplied By Climate Change Advocacy Groups.” The Washington Times (11/14, Richardson) reports, “It may look as if Democratic governors – not climate change activists – are driving the campaign to ‘fill the void’ left by President Trump’s exit from the Paris agreement, but that’s not necessarily the impression left by behind-the-scenes emails,” which showed “that the governors who descended this week on the Bonn climate summit had plenty of help – not just from state aides, but also from a kind of shadow staff supplied by climate change advocacy groups and funded by liberal foundations in support of the ambitious foreign policy effort.” The “emails obtained via open records requests by Competitive Enterprise Institute senior fellow Chris Horner shows state employees relying on activists for organizational and communications work in what he described as ‘outsourcing government off the books.’” Editorial Wrap-Up New York Times. “Mrs. May’s Tribulations.” A New York Times (11/14) editorial says “hardly a day goes by without new revelations of sleaze or ministers’ doing their own thing,” further complicating British Prime Minister Theresa May’s “brutally complex and consequential task of extricating Britain from the European Union.” Brexit “has all but paralyzed the government already,” and the “political mess” within May’s government “has made the going far tougher and the uncertainties far greater.” On a positive note, the Times says, “what’s happening in Britain is at its core a democratic debate – furious, bitter and divisive, to be sure – over the fundamental conflict of national identity and supranational organizations in a confusing and rapidly changing world,” including in the US. While the outcome of this debate is unclear, “it is democracy, and there is no reason yet to fear that the center cannot hold.” “Attorney General Jeff Sessions Doesn’t Recall.” In an editorial, the New York Times (11/14) says that whether a special counsel is appointed or not, “the pressure to do so is clear, from both Republicans in Congress and [President] Trump, who has threatened [Attorney General] Sessions’s job if he fails to prosecute Mrs. Clinton.” The times describes as “alarming” the “push for the Justice Department to undertake a politically motivated investigation of a president’s political opponent, and purely as revenge for an actual investigation already underway.” “Torches And Hate On The March In Poland.” The New York Times (11/14) editorializes that perhaps the most troubling aspect of the Polish nationalist march on Saturday “was that the words from an old Polish nationalist song that were the march’s slogan – ‘We want God’ – were cited by President Trump to huge applause on his visit to Warsaw in July.” The Times says this “ugly nationalism sweeping through the Western world, and especially Central Europe, may be a passing phase in a difficult transition and a confusing world,” but “the disgusting slogans on display in Warsaw and the fictions and paranoia behind them must be relentlessly exposed for what they are and condemned, and the right-wing, populist governments that condone them must be censured, not embraced.” Washington Post. “There Are No Grounds For Special Counsel To Investigate Hillary Clinton.” A Washington Post (11/14) editorial says the “demands for the politically motivated prosecution of Mr. Trump’s former political opponent are profoundly inappropriate and degrading to democracy.” While the Justice Department “appears to be holding firm against the president.,” it “remains under pressure.” “Trump Loves Human Rights – When Convenient.” In an editorial, the Washington Post (11/14) contrasts President Trump’s condemnation of human rights abuses in North Korea with his praise for Chinese President Xi Jinping, “who has just elevated his intolerant and iron-fisted rule to a cult of personality not seen since Mao. Mr. Xi suffocates freedom and throws dissidents into prison.” The Post says Trump’s Asia trip showed “that human rights and democracy are seen by the president not as universal principles demanding attention everywhere, but as cudgels to be rolled out selectively, to criticize tyrants and rights abusers when convenient, and to be easily ignored elsewhere.” “Fix Metro Now. Or Face The Consequences.” In an editorial, the Washington Post (11/14) finds hope that fixing Metro, “the Washington area’s infrastructural linchpin,” can go beyond the “stopgaps and temporizing” that have “best that elected officials could offer.” The Post notes the recent weakening of the GOP “stranglehold” in Virginia’s legislature and a recent report by former transportation secretary and Republican congressman Ray LaHood, who “exposed as bunk many of the excuses favored by footdragging politicians” – that “Metro is wildly profligate, or mismanaged, or provides terrible service” – and, “amply supported by evidence,” concluded “that Metro urgently needs a new, earmarked means of raising $500 million more annually.” The Post warns that Metro “is teetering on the brink” and that officials will have to quickly “get serious” about long-term solutions “or explain why they’ve set the stage for the region’s economic decline.” Wall Street Journal. “The Roy Moore Mess.” In an editorial, the Wall Street Journal (11/14, Board) says that if Alabama Republican Senate candidate Roy Moore won’t quit the race and President Trump won’t urge him to do so, it’d be better for Republicans if Moore is defeated. Otherwise, says the Journal, Democrats and the press will use Moore as a cudgel in 2018 to batter GOP candidates. “Ruling Out The ABA On Judges.” In an editorial, the Wall Street Journal (11/14) calls for the GOP to stop allowing the American Bar Association to vet judicial nominees. In particular, the Journal argues the ABA’s liberal bias is evident in its label of Brett Talley as not qualified to serve as a federal judge. The Journal argues the organization stretched an article on not broadening Supreme Court rights ruling into suggesting he would ignore Roe v. Wade and that, unable to find issues with Talley’s integrity or temperament, unfairly argues that, as Tally never sate on the bench, he lacks the requisite trial experience. “Venezuela Goes Bust.” In an editorial, the Wall Street Journal (11/14) says the success of any attempt by Venezuela to restructure its debt and claw out of default depends on whether the nation’s economy has a realistic chance of growing again – a near-impossible goal without policies in place that will free it. If the Venezuelan government resorts to seizing assets in the US and elsewhere because it cannot settle with its bondholders, the Journal says, it will serve as a stark reminder of why government investments in socialist regimes is unwise. Big Picture Headlines From Today’s Front Pages. Wall Street Journal: US Manufacturing Rides Rising Tide Senate GOP Adds Healthcare Twist To Tax Overhaul Plan GOP Seeks To Derail Moore, Salvage Senate Seat The Class Of 1994, Venezuela’s Golden Generation, Is Fleeing The Country New York Times: Senate Plans To End Obamacare Mandate In Revised Tax Proposal Sessions Says He Did Not Lie To Congress On Contacts With Russia ‘Lock Her Up’ Becomes More Than A Slogan An Alabama Senate Candidate Keeps Democratic Leaders Away — But Not Their Money ‘I Am Alive’: Survivors Of Iran Earthquake Mourn As Government Scrambles To Help Zimbabwe’s Military, In Apparent Takeover, Says It Has Custody Of Mugabe A Statue Stirs To Life In Washington Square Park Washington Post: Damaged Bodies, Healing Hearts Sessions Changes His Account Of Russia Dealings Senate GOP Seeks To End Part Of ACA In Tax Bill Prospect Of New Special Counsel Rattles Justice Suit Alleges Laxness Enabled Sex Abuser At Pr. George’s School Financial Times: Venezuela Slips Deeper Into Crisis After Default Sessions Moves To Quell Furor Over Clinton Foundation Probe French Minister Turns Up Heat On EDF Over Shift To Renewables David Davis Promises City Of London Special Post-Brexit Travel Regime Washington Times: Democrats Use Loss Of Deduction To Drown Out Message About Tax Bill’s Benefits To Middle Class Senate Republicans’ Tax Plan Includes Repeal Of Obamacare Mandate Teen Suicide Rate Suddenly Rises With Heavy Use Of Smartphones, Social Media ICE Agents Rebel, Say Trump ‘Betrayed’ Them By Retaining Obama’s People Democratic Governors Outsource Climate Campaigns To Activist Groups, Emails Reveal Explosions, Military Tanks And Soldiers On Streets Of Zimbabwe Put Mugabe’s Rule In Doubt Story Lineup From Last Night’s Network News: ABC: California Elementary School Shooting; Tampa-Possible Serial Killer; Russia Meddling Investigation-Sessions; Roy Moore-Sexual Misconduct Allegations; CongressSexual Harassment Policy; Tax Reform Plan-Obamacare Repeal; Uber-County Attorney Fired; West Coast Storm; Las Vegas-Plane Escape; Wine-Weight Effect; Bakery Charity. CBS: California Elementary School Shooting; Sandy Hook Shooting Families-Lawsuit; Tampa-Possible Serial Killer; Russia Meddling Investigation-Sessions; Roy Moore-Sexual Misconduct Allegations; Congress-Sexual Harassment Policy; Tax Reform PlanObamacare Repeal; Mediterranean African Refugees; Health-Digital Pill; Arrested US College Students Return; Hijab Barbie Doll; National Zoo-Pandas. NBC: California Elementary School Shooting; Tax Reform Plan-Obamacare Repeal; Roy Moore-Sexual Misconduct Allegations; Congress-Sexual Harassment Policy; Russia Meddling Investigation-Sessions; Presidential Power-Nuclear Strike; Arrested US College Students Return; Tampa-Possible Serial Killer; ISS Pizza Delivery; Da Vinci Painting; Diamond Auction; Charity-Auto Repair. Network TV At A Glance: Roy Moore-Sexual Misconduct Allegations – 8 minutes Russia Meddling Investigation-Sessions – 7 minutes, 55 seconds California Elementary School Shooting – 6 minutes, 50 seconds Tampa-Possible Serial Killer – 5 minutes, 55 seconds Congress-Sexual Harassment Policy – 5 minutes, 15 seconds Tax Reform Plan-Obamacare Repeal – 4 minutes, 35 seconds Story Lineup From This Morning’s Radio News Broadcasts: ABC: Roy Moore-Sexual Misconduct Allegations; Tax Reform Plan-Obamacare Repeal; California Elementary School Shooting; Zimbabwe Instability. CBS: California Elementary School Shooting; Roy Moore-Sexual Misconduct Allegations; Russia Meddling Investigation-Sessions. FOX: California Elementary School Shooting; Sandy Hook Shooting Families-Lawsuit; Roy Moore-Sexual Misconduct Allegations. NPR: Roy Moore-Sexual Misconduct Allegations; Clinton Foundation-DOJ; Russia Meddling Investigation-Sessions; California Elementary School Shooting. Washington Schedule Today’s Events In Washington. White House: PRESIDENT TRUMP — No public events scheduled. VICE PRESIDENT PENCE — Joined by Governor Greg Abbott, Secretary of Energy Rick Perry, and FEMA Administrator Brock Long, participates in a briefing on Hurricane Harvey relief and recovery efforts in Texas; delivers remarks at the 2017 Republican Governors Association Annual Conference. US Senate: 9:00 AM U.S.-China Economic and Security Review Commission releases Annual Report to Congress Location: U.S. Capitol, Rm 902, Washington, DC http://www.uscc.gov/ https://twitter.com/USCC_GOV 9:00 AM Senate Energy and Natural Resources Committee Business Meeting – Business Meeting, ‘to consider, pursuant to ‘H. Con. Res. 71, the Concurrent Resolution on the Budget for Fiscal Year 2018’, reconciliation legislation to authorize the Secretary of the Interior to establish and administer a competitive oil and gas program in the nonwilderness portion of the Arctic National Wildlife Refuge, known as the ‘1002 Area’ or Coastal Plain’ Location: Rm 366, Dirksen Senate Office Bldg, Washington, DC www.energy.senate.gov 9:30 AM Helsinki Commission hearing on Turkey’s detention of U.S. citizens – Helsinki Commission hearing on ‘Prisoners of the Purge: The Victims of Turkey’s Failing Rule of Law’, with witnesses – Deputy Assistant Secretary of State for European and Eurasian Affairs Jonathan Cohen, American Center for Law and Justice (ACLJ) Executive Counsel CeCe Heil, Jacqueline Furnari – daughter of detained pastor Andrew Brunson, and Freedom House Nations in Transit Project Director Nate Schenkkan – examining the factors contributing to the detention of U.S. citizens (particularly Brunson) and U.S. consulate employees in Turkey, as well as the judicial processes to which they have been subject Location: Dirksen Senate Office Building, Rm 124, Washington, DC http://www.csce.gov https://twitter.com/HelsinkiComm 10:00 AM Senate Judiciary Committee nominations hearing – Nominations hearing considers James Ho and Don Willett to be U.S. Circuit Judges for the Fifth Circuit; Claria Horn Boom to be U.S. District Judge for the Eastern and Western Districts of Kentucky; John Broomes to be U.S. District Judge for the District of Kansas; Rebecca Grady Jennings to be U.S. District Judge for the Western District of Kentucky; and Robert Earl Wier to be U.S. District Judge for the Eastern District of Kentucky, with testimony from American Bar Association Standing Committee on the Federal Judiciary Chair Pamela Bresnahan Location: Rm 226, Dirksen Senate Office Bldg, Washington, DC http://judiciary.senate.gov/ 10:00 AM Surgeon general testifies to Senate HELP Committee – Hearing on ‘Encouraging Healthy Communities: Perspective from the Surgeon General’, with testimony from Surgeon General Vice Adm. Jerome Adams Location: Rm 430, Dirksen Senate Office Bldg, Washington, DC http://help.senate.gov/ 10:00 AM Senate Environment Committee hearing on reducing air emissions – Hearing on ‘Promoting American Leadership in Reducing Air Emissions Through Innovation’, with testimony from University of Wyoming School of Energy Resources Director Kip Coddington; National Association of Manufacturers Vice President Ross Eisenberg; and BlueGreen Alliance Director Zoe Lipman Location: Dirksen Senate Office Building, Rm 406, Washington, DC http://epw.senate.gov/public/ 12:00 PM CAPAC and Dreamers urge passage of the DREAM Act – Congressional Asian Pacific American Caucus members, including Democratic Reps. Judy Chu and Mark Takano, urge the passage of a bipartisan DREAM Act (which would allow certain immigrant youth, including tens of thousands of Asian American and Pacific Islander Dreamers, to gain lawful permanent residence and U.S. citizenship) before the end of the year, via press conference with Asian American and Pacific Islander Dreamers and community leaders Location: House Triangle, Washington, DC http://capacchu.house.gov/ https://twitter.com/CAPAC 2:00 PM POSTPONED: Senate Foreign Relations subcommittee hearing on attacks on U.S. diplomats in Cuba – POSTPONED: Western Hemisphere Transnational Crime, Civilian Security, Democracy, Human Rights and Global Women’s Issues Subcommittee hearing on ‘Attacks on U.S. Diplomats in Cuba: Response and Oversight’, with testimony from Acting Assistant Secretary of State for Western Hemisphere Affairs Francisco Palmieri; Diplomatic Security Service Assistant Director of International Programs Todd Brown; and State Department Bureau of Medical Services Medical Director Dr Charles Rosenfarb Location: Dirksen Senate Office Building, Rm 419, Washington, DC http://foreign.senate.gov/ 2:00 PM Voice for Adoption launches its 2017 Adoptive Family Portrait Project – Voice for Adoption hosts Capitol Hill reception launching its 2017 Adoptive Family Portrait Project. The 13th annual signature project celebrates families who have adopted children from foster care, with the primary goal of raising awareness among Members of Congress about ‘the real experiences and needs of families that have adopted children who were in the foster care system’ Location: Dirksen Senate Office Building, Washington, DC http://voice-for-adoption.org/ 2:00 PM Helsinki Commission briefing on religious freedom – ‘Religious Freedom Violations in OSCE Region: Victims and Perpetrators’ Helsinki Commission briefing, discussing religious freedom victims, violators, and violations in the OSCE region, including recommendations for what govts and the Organization for Security and Cooperation in Europe institutionally should do to prevent and respond to violations, and featuring the intersection between security, a chronic justification for violations, and religious freedom. Panelists are State Department Bureau of Democracy, Human Rights, and Labor’s Amb. Michael Kozak, U.S. Commission on International Religious Freedom Chairman Dr Daniel Mark, University of Minnesota Associate Professor of Political Science Dr Kathleen Collins, and Jehovah’s Witnesses General Counsel Philip Brumley Location: Russell Senate Office Building, Rm 385, Washington, DC http://www.csce.gov https://twitter.com/HelsinkiComm 2:30 PM Senate Appropriations subcommittee hearing on VA efforts to prevent opioid overmedication – Military Construction, Veteran Affairs, and Related Agencies Subcommittee hearing on ‘VA Efforts to Prevent and Combat Opioid Overmedication’, with testimony from Department of Veterans Affairs Inspector General Michael Missal, and Acting National Program Director for Pain Management Dr Friedhelm Sandbrink; Veterans Health Administration Chief Officer for Specialty Care Dr Laurence Meyer; and Marvin Simcakoski – father of a vet who overdosed under VA care Location: Rm 124, Dirksen Senate Office Bldg, Washington, DC http://appropriations.senate.gov/ https://twitter.com/SenateApprops 2:30 PM Senate HELP Committee nominations hearing – Nominations hearing considers Brig. Gen. (Ret.) Mitchell Zais to be Deputy Secretary of Education; James Blew to be Assistant Secretary of Education for Planning, Evaluation, and Policy; Timothy Kelly to be Assistant Secretary of Education for Career, Technical, and Adult Education; Kate O’Scannlain to be Department of Labor Solicitor; and Preston Rutledge to be Assistant Secretary of Labor for the Employee Benefits Security Administration Location: Rm 430, Dirksen Senate Office Bldg, Washington, DC http://help.senate.gov/ US House: 9:00 AM U.S.-China Economic and Security Review Commission releases Annual Report to Congress Location: U.S. Capitol, Rm 902, Washington, DC http://www.uscc.gov/ https://twitter.com/USCC_GOV 9:00 AM Dem Rep. Sheila Jackson Lee co-hosts panel on eliminating violence against women and girls – Democratic Rep. Sheila Jackson Lee and the International Foundation for Electoral Systems briefing, ‘Eliminate All Forms of Violence Against All Women and Girls’, the second event of a new series exploring each element of the United Nations Sustainable Development Goal number 5, ‘Achieve Gender Equality and Empower All Women and Girls’. Speakers include Futures Without Violence Senior International Policy Advocate Lelia Milani, journalist Rebecca Gale, International Labor Rights Forum Executive Director Judy Gearhart, AFL-CIO Global Worker Rights Specialist Cassandra Waters and Just Be Founder and Director Tarana Burke Location: Rayburn House Office Building, Rm 2045, Washington, DC www.ifes.org https://twitter.com/IFES1987 #SDG5 9:30 AM Helsinki Commission hearing on Turkey’s detention of U.S. citizens – Helsinki Commission hearing on ‘Prisoners of the Purge: The Victims of Turkey’s Failing Rule of Law’, with witnesses – Deputy Assistant Secretary of State for European and Eurasian Affairs Jonathan Cohen, American Center for Law and Justice (ACLJ) Executive Counsel CeCe Heil, Jacqueline Furnari – daughter of detained pastor Andrew Brunson, and Freedom House Nations in Transit Project Director Nate Schenkkan – examining the factors contributing to the detention of U.S. citizens (particularly Brunson) and U.S. consulate employees in Turkey, as well as the judicial processes to which they have been subject Location: Dirksen Senate Office Building, Rm 124, Washington, DC http://www.csce.gov https://twitter.com/HelsinkiComm 9:30 AM VA Secretary Shulkin testifies to House Appropriations subcommittee on electronic health record – Military Construction. Veterans Affairs and Related Agencies Subcommittee oversight hearing on ‘2018 Veterans Affairs Electronic Health Record’, with testimony from Secretary of Veterans Affairs David Shulkin; and Department of Veterans Affairs Electronic Health Record Modernization Program Executive John Windom, and Office of Information and Technology Executive in Charge Scott Blackburn Location: Rayburn House Office Building, Rm 2362-A, Washington, DC http://appropriations.house.gov/ https://twitter.com/HouseAppropsGOP 10:00 AM House Science, Space, and Technology Committee markup hearing – Markup hearing on ‘H.R. 4376, the Department of Energy Research Infrastructure Act of 2017’, ‘H.R. 4377, the Accelerating American Leadership in Science Act of 2017’, ‘H.R. 4378, the Nuclear Energy Research Infrastructure Act of 2017’, ‘H.R. 4375, the STEM Research and Education Effectiveness and Transparency Act’, ‘H.R. 4323, the Supporting Veterans in STEM Careers Act’, ‘H.R. 4254, the Women in Aerospace Education Act’, and ‘H.R. 3397, the Building Blocks of STEM Act’ Location: Rayburn House Office Building, Rm 2318, Washington, DC http://science.house.gov https://twitter.com/HouseScience 10:00 AM House Foreign Affairs Committee markup hearing – Markup hearing on ‘H. Res. 336, Reaffirming a strong commitment to the United States-Mexico Partnership’, ‘H. Res. 401, Urging China, South Korea, Vietnam, Thailand, the Philippines, Indonesia, Cambodia, Laos, India, and all nations to outlaw the dog and cat meat trade and to enforce existing laws against the trade’, ‘H. Res. 407, Condemning the persecution of Christians around the world’, ‘H.R. 1164, Taylor Force Act’, ‘H.R. 1415, End Neglected Tropical Diseases Act’, ‘H.R. 2712, Palestinian International Terrorism Support Prevention Act of 2017’, ‘H.R. 3542, Hamas Human Shields Prevention Act’, ‘H.R. 3776, Cyber Diplomacy Act of 2017’, and ‘H. Con. Res. 90, Condemning ethnic cleansing of the Rohingya and calling for an end to the attacks in and an immediate restoration of humanitarian access to the state of Rakhine in Burma’ Location: Rayburn House Office Building, Rm 2172, Washington, DC http://www.hcfa.house.gov https://twitter.com/HouseForeign 10:00 AM Markup hearing on ‘H.R. 170, Protect and Grow American Jobs Act’ Location: Rayburn House Office Building, Rm 2141, Washington, DC http://judiciary.house.gov/ https://twitter.com/HouseJudiciary 10:00 AM House Energy and Commerce subcommittee markup hearing – Environment Subcommittee markup hearing on ‘H.R. 1917, Blocking Regulatory Interference from Closing Kilns (BRICK) Act of 2017’, ‘H.R. 453, Relief from New Source Performance Standards Act of 2017’, ‘H.R. 350, Recognizing the Protection of Motorsports Act of 2017’, and ‘H.R. 1119, Satisfying Energy Needs and Saving the Environment (SENSE) Act’ Location: Rayburn House Office Building, Rm 2123, Washington, DC http://energycommerce.house.gov/ https://twitter.com/HouseCommerce 10:00 AM House Natural Resources subcommittee legislative hearing – Indian, Insular and Alaska Native Affairs Subcommittee legislative hearing on ‘H.R. 212, Expediting Funding for Efficient Contracting Tribes Act’ (‘EFFECT Act’), ‘H.R. 2320, Samish Indian Nation Land Conveyance Act of 2017’, and ‘H.R. 3225, Oregon Tribal Economic Development Act’, with testimony from Acting Assistant Secretary of the Interior for Indian Affairs John Tahsuda III; Samish Indian Nation Chairman Tom Wooten; Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians Chairman Mark Ingersoll; Swinomish Indian Tribal Community Vice Chairman Brian Porter; and Council of Athabascan Tribal Governments Executive Director Charleen Fisher Location: Longworth House Office Building, Rm 1324, Washington, DC http://naturalresources.house.gov https://twitter.com/NatResources 10:00 AM House Government Reform Committee hearing on IGs’ recommendations – Hearing on ‘Recommendations and Reforms from the Inspectors General’, with testimony from Council of the Inspectors General on Integrity and Efficiency Chair (and Department of Justice Inspector General) Michael Horowitz, and Legislation Committee Executive Chair (and Peace Corps Inspector General) Kathy Buller; and Department of Homeland Security Inspector General John Roth Location: Rm 2154, Rayburn House Office Bldg, Washington, DC http://oversight.house.gov/ https://twitter.com/GOPoversight 10:00 AM Labor Secretary Acosta testifies to House Education and Workforce Committee – Hearing on ‘Examining the Policies and Priorities of the U.S. Department of Labor’, with testimony from Secretary of Labor Alexander Acosta Location: Rayburn House Office Building, Rm 2175, Washington, DC http://edworkforce.house.gov/ https://twitter.com/EdWorkforce 10:30 AM House Natural Resources subcommittee legislative hearing – Federal Lands Subcommittee legislative hearing on ‘H.R. 801, Route 66 National Historic Trail Designation Act’, ‘H.R. 2888, Ste. Genevieve National Historical Park Establishment Act’, ‘H.R. 3979, Keep America’s Refuges Operational Act’, and ‘H.R. 4266, Acadia National Park Boundary Clarification Act’, with testimony from Republican Reps. Darin LaHood, Jason Smith, and Bruce Poliquin; National Park Service Acting Deputy Director for Operations Sue Masica; Rt. 66 Road Ahead Partnership Chairman William Thomas; National Wildlife Refuge Association Director of Government Affairs Caroline Brouwer; Ducks Unlimited Virginia State Chairman Dan Ross; and Eaton Peabody attorney Tim Woodcock Location: Longworth House Office Building, Rm 1334, Washington, DC http://naturalresources.house.gov https://twitter.com/NatResources 10:45 AM Pelosi to Hold Gabrielle Giffords–Leo J. Ryan Cloakroom dedication – Democratic Leader Nancy Pelosi will host a dedication ceremony to name the House Democratic Cloakroom in honor of former Congresswoman Gabrielle Giffords and the late Congressman Leo J. Ryan. Participants: Democratic Leader Nancy Pelosi; Former Congresswoman Gabrielle Giffords (D-AZ); Patricia Ryan, daughter of the late Congressman Leo J. Ryan (D-CA); Senator Jeff Flake (R-AZ); Congresswoman Jackie Speier (D-CA); Congresswoman Frederica Wilson (D-FL). Location: H-207, Rayburn Room, The Capitol. http://www.democraticleader.gov/ https://twitter.com/NancyPelosi 11:00 AM House Small Business Committee hearing on cybersecurity – Hearing on ‘Federal Government and Small Businesses: Promoting Greater Information Sharing for Stronger Cybersecurity’, with testimony from Threat Sketch founder and CEO Rob Arnold; e-Management CEO Ola Sage; ACT – The App Association President Morgan Reed; and McAfee Chief Public Policy Officer Thomas Gann Location: Rayburn House Office Building, Rm 2360, Washington, DC http://smallbusiness.house.gov/ https://twitter.com/SmallBizGOP 12:00 PM House meets for legislative business – House of Representatives meets for legislative business, with agenda expected to include consideration of ‘H.R. 4174 – Foundations for Evidence-Based Policymaking Act of 2017’, as amended, ‘H.R. 2672 – To designate the facility of the United States Postal Service located at 520 Carter Street in Fairview, Illinois, as the ‘Sgt. Douglas J. Riney Post Office’, ‘H.R. 2873 – To designate the facility of the United States Postal Service located at 207 Glenside Avenue in Wyncote, Pennsylvania, as the ‘Staff Sergeant Peter Taub Post Office Building’, ‘H.R. 3369 – To designate the facility of the United States Postal Service located at 225 North Main Street in Spring Lake, North Carolina, as the ‘Howard B. Pate, Jr. Post Office’, and ‘H.R. 3821 – To designate the facility of the United States Postal Service located at 430 Main Street in Clermont, Georgia, as the ‘Zachary Addington Post Office’ under suspension of the rules Location: Washington, DC http://www.house.gov/ 12:00 PM House Rules Committee hearing – Hearing on ‘H.R. 1 – Tax Cuts and Jobs Act’ Location: U.S. Capitol, H-313, Washington, DC http://www.rules.house.gov/ https://twitter.com/RulesReps 12:00 PM CAPAC and Dreamers urge passage of the DREAM Act – Congressional Asian Pacific American Caucus members, including Democratic Reps. Judy Chu and Mark Takano, urge the passage of a bipartisan DREAM Act (which would allow certain immigrant youth, including tens of thousands of Asian American and Pacific Islander Dreamers, to gain lawful permanent residence and U.S. citizenship) before the end of the year, via press conference with Asian American and Pacific Islander Dreamers and community leaders Location: House Triangle, Washington, DC http://capacchu.house.gov/ https://twitter.com/CAPAC 2:00 PM Helsinki Commission briefing on religious freedom – ‘Religious Freedom Violations in OSCE Region: Victims and Perpetrators’ Helsinki Commission briefing, discussing religious freedom victims, violators, and violations in the OSCE region, including recommendations for what govts and the Organization for Security and Cooperation in Europe institutionally should do to prevent and respond to violations, and featuring the intersection between security, a chronic justification for violations, and religious freedom. Panelists are State Department Bureau of Democracy, Human Rights, and Labor’s Amb. Michael Kozak, U.S. Commission on International Religious Freedom Chairman Dr Daniel Mark, University of Minnesota Associate Professor of Political Science Dr Kathleen Collins, and Jehovah’s Witnesses General Counsel Philip Brumley Location: Russell Senate Office Building, Rm 385, Washington, DC http://www.csce.gov https://twitter.com/HelsinkiComm 2:00 PM Congressional Israel Victory Caucus and their Israeli counterparts at Middle East Forum event – Middle East Forum hosts ‘Organizing for Israel Victory’ event, featuring the co-chairs of the Congressional Israel Victory Caucus – Republican Reps. Ron DeSantis and Bill Johnson – and the leading members of the Knesset Israel Victory Caucus – Oded Forer and Dr Avraham Neguise. The former discuss their efforts to advance the Israel victory agenda on Capitol Hill, their campaign against ‘wasteful spending on the failed ‘peace process’, and their work with the Zionist movement in Israel, while the latter discuss their work in the Knesset to ‘secure an Israel victory and their plans to advance a national movement in Israel to support this goal’ * Both caucuses were organized by Middle East Forum Location: U.S. Capitol, Washington, DC http://www.meforum.org/ https://twitter.com/meforum 2:00 PM House Homeland Security subcommittee hearing on cyber threat information sharing – Cybersecurity and Infrastructure Protection Subcommittee hearing on ‘Maximizing the Value of Cyber Threat Information Sharing’, with testimony from Council on Foreign Relations Senior Fellow Robert Knake (on behalf of Global Resilience Institute); American Express Vice President for Cyber Intel & Incident Response Ann Barron-Dicamillo; Anomali Federal Solutions Architect Manager Patricia Cagliostro; and USTelecom Association Senior Vice President for Cybersecurity Robert Mayer Location: U.S. Capitol Visitor Center, HVC-210, Washington, DC homeland.house.gov https://twitter.com/HouseHomeland 2:00 PM House Oversight subcommittees joint hearing on the Federal Information Technology Acquisition Reform Act – Government Operations Subcommittee and Information Technology Subcommittee joint hearing on ‘The Federal Information Technology Acquisition Reform Act (FITARA) Scorecard 5.0’ Location: Rayburn House Office Building, Rm 2154, Washington, DC http://oversight.house.gov/ https://twitter.com/GOPoversight 2:30 PM House Foreign Affairs subcommittee hearing on development finance in Asia – Asia and the Pacific Subcommittee hearing on ‘Development Finance in Asia: U.S. Economic Strategy Amid China’s Belt and Road’, with testimony from Center for Strategic and International Studies Project on Prosperity and Development Director Daniel Runde; National Bureau of Asian Research Senior Vice President for Research Roy Kamphausen; and U.S.-China Economic and Security Review Commission Commissioner (and former USAID Assistant Administrator for Asia) Jonathan Stivers Location: Rayburn House Office Building, Rm 2172, Washington, DC http://www.hcfa.house.gov https://twitter.com/HouseForeign 4:00 PM Events to mark the 150th anniversary of the National Center for Education Statistics – ‘A Forum and Reception for the National Center for Education Statistics: Commemorating 150 Years of Innovation – and Exploring Future Opportunities’, hosted by the American Educational Research Association, American Statistical Association, and Council of Professional Associations on Federal Statistics. Speakers include bipartisan Reps. Paul Mitchell and Suzanne Bonamici, former NCES Commissioner Jack Buckley, National Board of Education Sciences Chair Larry Hedges, and former National Board of Education Sciences Chair Bridget Terry Long Location: Dirksen Senate Office Building, Rms 430 and 562, Washington, DC http://www.aera.net https://twitter.com/AERA_EdResearch #NCES150 5:30 PM Blue Star Families launch Annual Military Family Lifestyle Survey – Blue Star Families present the findings of the Annual Blue Star Families Military Family Lifestyle Survey, which provides those who are serving with ‘an opportunity to share what’s really going on inside military families’, with the results providing feedback to national decision-makers on the current state of the military family. Speakers include Congressional Military Family Caucus Co-chairs bipartisan Reps. Cathy McMorris Rodgers and Sanford Bishop, Blue Star Families CEO Kathy Roth-Douquet and Chair of the Board of Directors Sheila Casey, USAA Military Affairs Relationship Director Mike Kelly, and Syracuse University Vice Chancellor for Veterans and Military Affairs Michael Haynie Location: Rayburn House Office Building, Foyer, Washington, DC www.bluestarfam.org https://twitter.com/BlueStarFamily Other: 9:00 AM National Academies convocation on ‘revitalizing the university-industrygovernment partnership’ – ‘A National Convocation on Revitalizing the UniversityIndustry-Government Partnership in Support of Research in Science, Engineering, and Medicine’: National Academies of Sciences, Engineering, and Medicine convene leaders of business and industry, federal and state govt, higher education, and other sectors of society. Speakers include bipartisan Reps. Daniel Lipinski and Virginia Foxx, as well as Celia Merzbacher (Oak Ridge National Laboratory), Rush Holt (American Association for the Advancement of Science), Jeannette Wing (Columbia University), Freeman Hrabowski (University of Maryland-Baltimore County), Neal Lane (Rice University), Michael McPherson (American Academy of Arts and Sciences), Chad Holliday (Royal Dutch Shell), and Marcia McNutt (NAS) Location: National Academy of Sciences, 2101 Constitution Ave NW, Washington, DC www.nas.edu/ https://twitter.com/NASciences 3:30 PM Congressional briefing on maternal mortality in the U.S. – American College of Obstetricians and Gynecologists ‘Maternal Mortality in the United States: Understanding the Problem and Finding Solutions’ briefing, with ACOG President Haywood Brown, Preeclampsia Foundation Executive Director Eleni Tsigas, Centers for Disease Control and Prevention Division of Reproductive Health Director Wanda Barfield, and physician and patient advocate Larry Bloomstein * Co-hosted with the Preeclampsia Foundation, the Society for Maternal-Fetal Medicine, and the March of Dimes in cooperation with Congressional Caucus on Maternity Care Co-chairs Republican Rep. Jaime Herrera Beutler and Democratic Lucille Roybal-Allard Location: U.S. Capitol, HC-8, Washington, DC www.acog.org https://twitter.com/acognews 4:30 PM Conversation on climate change to mark opening of Quaker Welcome Center on Capitol Hill – Friends Committee on National Legislation marks the opening of the new Quaker Welcome Center marked with conversation about climate change and the environment, featuring Republican Rep. Ryan Costello and Democratic Rep. Anna Eshoo * The Quaker Welcome Center will host education and mobilization programs for Quakers and other like-minded advocates visiting Washington, helping them to comfortably and effectively lobby their representatives and senators Location: 205 C St NE, Washington, DC www.fcnl.org https://twitter.com/FCNL 7:00 PM U.S. ambassador to the U.N. keynotes U.S. Holocaust Memorial Museum event on South Sudan – ‘Our Walls Bear Witness: South Sudan – Where Do We Go From Here?’ program organized by the U.S. Holocaust Memorial Museum Simon-Skjodt Center for the Prevention of Genocide, including keynote from U.S. Permanent Representative to the United Nations Amb. Nikki Haley, and panel featuring journalist and videographer Simona Foltyn, correspondent Jason Patinkin, South Sudan Young Leaders Forum member Nyagoah Tut Pur, and Simon-Skjodt Center visiting fellow Jon Temin Location: U.S. Holocaust Memorial Museum, 100 Raoul Wallenberg Place SW, Washington, DC #SouthSudan Education Reform Now hosts annual Camp Philos Education Reform Now hosts 4th annual Camp Philos. Event is a gathering of stakeholders in the education reform movement to discuss policy, advocacy, and ?how we can better deliver on the promise of a high-quality public education for every child?. Attendees include Democrats Sen. Maggie Hassan and Rep. Hakeem Jeffries, former Secretaries of Education Arne Duncan and John King, New Orleans Mayor Mitch Landrieu, Teach for America CEO Elisa Villaneuva Beard, Empower Schools CEO Chris Gabrieli, and Let America Vote President Jason Kander An evening reception takes place at National Museum of Women in the Arts, 1250 New York Ave NW, Washington, DC (15 Nov) Location: The Fairmont Hotel, 2401 St NW, Washington, DC WACA 2017 National Conference World Affairs Councils of America (WACA) 2017 National Conference ?The Future of American Leadership?, with speakers including Democratic Sen. Jeff Merkley and former New Mexico Governor Bill Richardson Location: Capital Hilton, 1001 16th St NW, Washington, DC Last Laughs Late Night Political Humor. Jimmy Kimmel: ?Donald Trump is back in Washington, where he has a lot of Fox Friends to catch up on his Jimmy Kimmel: ?The Senate Foreign Relations Committee had a hearing to discussion whether President Trump should continue to have the sole authority to launch a nuclear weapon or whether his iPad should have some parental controls put on it.? Jimmy Kimmel: ?Yesterday, we learned that Donald Trump Jr. was in regular contact with WikiLeaks during his father?s campaign, which might have something to do with why Donald Trump said he loved WikiLeaks during the campaign more times than he said he loved Melania.? Stephen Colbert: ?[Attorney General Jeff] Sessions? testimony to the House Judiciary Committee covered a wide range of issues, and Sessions had the same answer for a lot of them. don?t recall. I don?t recall. I don?t recall it. I do not recall. I don?t recall it. I had not recalled.?? James Corden: ?Attorney General Jeff Sessions testified for hours on Capitol Hill today regarding the Trump campaign?s connections with Russia. During his testimony, it seemed Jeff Sessions had a bit of a memory problem. At one point, he was called out for saying don?t recall? multiple times. He just said he doesn?t recall how many times he said don?t recall.? I don?t recall the last time I saw someone who didn?t recall how many times they didn?t recall.? James Corden: ?Speaking of the Russia investigation, it was revealed today that Donald Trump Jr. did, in fact, exchange private messages with WikiLeaks during the campaign. In October 2016, WikiLeaks direct messaged Donald Jr. on Twitter, asking him to promote a negative story they put out about Hillary Clinton. Donald Jr. replied and this is absolutely true ?Already did that earlier today.? Man, these guys are so in sync, it?s like No, that?s not it. Collaborating? No. Oh yeah, colluding. That?s the word.? Trevor Noah: ?This was the end of President Trump?s first Asian trip. According to the critics, it was amazing. And by critics, I mean Trump." Trevor Noah: ?The Chinese government is subsidizing with hundreds of billions of dollars because they know renewable energy is a business opportunity that China can sell to the rest of the world like everything else at Wal-Mart.? Seth Meyers: ?According to a national poll, only 16 percent of Americans believe that Republican Alabama candidate Roy Moore should stay in the Senate race following allegations of sexual misconduct with teenagers. Sixteen percent, or as Moore calls it, old enough percent.? Copyright 2017 by Bulletin Intelligence LLC Reproduction or redistribution without permission prohibited. Content is drawn from thousands of newspapers, national magazines, national and local television programs, radio broadcasts, social-media platforms and additional forms of open-source data. Sources for Bulletin Intelligence audience-size estimates include Scarborough, MRI, comScore, Nielsen, and the Audit Bureau of Circulation. Data from and access to third party social media platforms, including but not limited to Facebook, Twitter, Instagram and others, is subject to the respective platform?s terms of use. Services that include Factiva content are governed by Factiva?s terms of use. Services including embedded Tweets are also subject to Twitter for Website's information and privacy policies. The Department of the Interior News Brie?ng is published ?ve days a week by Bulletin Intelligence, which creates custom brie?ngs for government and corporate leaders. We can be found on the Web at BulletinIntelligence.corn, or called at (703) 483-6100. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:39 PM Conversation Contents Agenda for DMR Weekly Meeting Attachments: /62. Agenda for DMR Weekly Meeting/1.1 2017.11.15 DMR Weekly Meeting Agenda.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Tue Nov 14 2017 16:07:53 GMT-0700 (MST) Daniel Jorjani , Jack Haugrud Gary Lawkowski , Tom Bovard , Dennis Daugherty , Richard McNeer Agenda for DMR Weekly Meeting 2017.11.15 DMR Weekly Meeting Agenda.docx Dan and Jack, I've attached the agenda for our weekly meeting tomorrow morning. We'll see you then. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:39 PM Conversation Contents DMR Ongoing Litigation Monthly Report for October 2017 Attachments: /63. DMR Ongoing Litigation Monthly Report for October 2017/1.1 2017.10 (October) Report.pdf "Hawbecker, Karen" From: Sent: To: "Hawbecker, Karen" Mon Nov 13 2017 17:15:02 GMT-0700 (MST) Katharine Macgregor , Alfred Elser , Kathleen Benedetto , Ann M DeBlasi , Ann Navaro , Art Kleven , Brian Amme , Brian Steed , Catherine Cook , Edward T Keable , Edwin Roberson , Eric Shepard , Gary Torres , Glenda Owens , Jack Haugrud , Jamie Connell , Jerome Perez , Jill Moran , John Kalish , John Ruhs , "Joseph (Gene) Seidlitz" , Daniel Jorjani , Jully McQuilliams , Karen Mouritsen , Keith Saxe , Kelly Orr , Khalia Boyd , Kristen Guerriero , Loraine Dawkins , "Lucas J. Lucero" , Marc Smith , Mary Jo Rugwell , Matthew McKeown , Michael Nedd , Mitchell Leverette , Monica Glenn , Peter Mali , Richard Cardinale , "SOL-Division of Land & Water" , SOL-Division Of Mineral Resources , Stephen Mahoney , Sterling Rideout , Steven Wells , Terri Debin , "Thomas D. Tom Shope" , Thomas Lillie , Timothy Murphy , Timothy Spisak , Walter Cruickshank , Wright Frank , "Campbell, Joshua" Subject: Attachments: , Gary Lawkowski DMR Ongoing Litigation Monthly Report for October 2017 2017.10 (October) Report.pdf The Division of Mineral Resources prepares this report for the Assistant Secretary, Land and Minerals Management, about ongoing litigation related to BLM (minerals), BOEM, BSEE and OSMRE. We suspended this report for a time, but we are now resuming it. We usually send these reports out by the middle of the month to report on the activity that took place in the prior month. I have attached for your reference the monthly report for the month of October 2017. New updates are in bold. Please note that this report is subject to attorney-client privilege. Please do not forward this report. If there are other people in your office who should appropriately receive this report, please let me know and I will add them to the mailing list. If you would rather not receive this monthly report, please let me know. Thank you. Karen Hawbecker Associate Solicitor Division of Mineral Resources Office of the Solicitor U.S. Department of the Interior 1849 C Street N.W. MS 5358 Washington, D.C. 20240 Office: (202) 208-4146 karen.hawbecker@sol.doi.gov Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:41 PM Conversation Contents Agenda for Weekly DMR Meeting Attachments: /64. Agenda for Weekly DMR Meeting/1.1 2017.11.08 DMR Weekly Meeting Agenda.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Tue Nov 07 2017 18:30:48 GMT-0700 (MST) Daniel Jorjani , Jack Haugrud Gary Lawkowski , Tom Bovard , Dennis Daugherty , Richard McNeer Agenda for Weekly DMR Meeting 2017.11.08 DMR Weekly Meeting Agenda.docx Dan and Jack, I've attached the agenda for our weekly meeting tomorrow morning. We'll see you then. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:41 PM Conversation Contents Fwd: Twin Metals M-Opinion reversal draft Attachments: /65. Fwd: Twin Metals M-Opinion reversal draft/1.1 2017.10.27 draft M-Op reversal.docx /65. Fwd: Twin Metals M-Opinion reversal draft/2.1 2017.10.27 draft M-Op reversal.docx /65. Fwd: Twin Metals M-Opinion reversal draft/3.1 2017.10.27 draft M-Op reversal.docx "Hawbecker, Karen" From: Sent: To: Subject: Attachments: "Hawbecker, Karen" Fri Oct 27 2017 16:52:05 GMT-0600 (MDT) Jack Haugrud Fwd: Twin Metals M-Opinion reversal draft 2017.10.27 draft M-Op reversal.docx Here's the first draft. --Karen ---------- Forwarded message ---------From: Collier, Briana Date: Fri, Oct 27, 2017 at 6:29 PM Subject: Twin Metals M-Opinion reversal draft To: Karen Hawbecker , Richard McNeer Cc: Roy Fuller , Ryan Sklar Karen, Richard: Attached below is a first draft of the reversal of M-37036. As a reminder, Jack wanted to try to get this ready in 4-6 weeks from when we met with Twin Metals on October 12th. Also as a reminder, oral arguments on the motion to dismiss are scheduled for Nov. 14th, and DOJ wants to do a moot on Nov. 6th or 7th. Please let us know how you would like to proceed with review and revision given the limited timeframe we have available to get this memo into final shape. We should also discuss how we want to handle the moot when we meet next week. Thanks very much, Briana Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. "Haugrud, Kevin" From: Sent: To: Subject: Attachments: "Haugrud, Kevin" Fri Oct 27 2017 16:56:41 GMT-0600 (MDT) Daniel Jorjani Fwd: Twin Metals M-Opinion reversal draft 2017.10.27 draft M-Op reversal.docx ---------- Forwarded message ---------From: Hawbecker, Karen Date: Fri, Oct 27, 2017 at 6:52 PM Subject: Fwd: Twin Metals M-Opinion reversal draft To: Jack Haugrud Here's the first draft. --Karen ---------- Forwarded message ---------From: Collier, Briana Date: Fri, Oct 27, 2017 at 6:29 PM Subject: Twin Metals M-Opinion reversal draft To: Karen Hawbecker , Richard McNeer Cc: Roy Fuller , Ryan Sklar Karen, Richard: Attached below is a first draft of the reversal of M-37036. As a reminder, Jack wanted to try to get this ready in 4-6 weeks from when we met with Twin Metals on October 12th. Also as a reminder, oral arguments on the motion to dismiss are scheduled for Nov. 14th, and DOJ wants to do a moot on Nov. 6th or 7th. Please let us know how you would like to proceed with review and revision given the limited timeframe we have available to get this memo into final shape. We should also discuss how we want to handle the moot when we meet next week. Thanks very much, Briana Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. "Jorjani, Daniel" From: Sent: To: CC: Subject: Attachments: "Jorjani, Daniel" Mon Nov 06 2017 16:14:45 GMT-0700 (MST) Gary Lawkowski Kevin Haugrud Fwd: Twin Metals M-Opinion reversal draft 2017.10.27 draft M-Op reversal.docx Daniel H. Jorjani U.S. Department of the Interior Acting Solicitor & Principal Deputy Solicitor Main Interior Building, Suite 6356 ' 202-219-3861 (Voice) 202-706-9018 (Cell) daniel.jorjani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. ---------- Forwarded message ---------From: Haugrud, Kevin Date: Fri, Oct 27, 2017 at 6:56 PM Subject: Fwd: Twin Metals M-Opinion reversal draft To: Daniel Jorjani ---------- Forwarded message ---------From: Hawbecker, Karen Date: Fri, Oct 27, 2017 at 6:52 PM Subject: Fwd: Twin Metals M-Opinion reversal draft To: Jack Haugrud Here's the first draft. --Karen ---------- Forwarded message ---------From: Collier, Briana Date: Fri, Oct 27, 2017 at 6:29 PM Subject: Twin Metals M-Opinion reversal draft To: Karen Hawbecker , Richard McNeer Cc: Roy Fuller , Ryan Sklar Karen, Richard: Attached below is a first draft of the reversal of M-37036. As a reminder, Jack wanted to try to get this ready in 4-6 weeks from when we met with Twin Metals on October 12th. Also as a reminder, oral arguments on the motion to dismiss are scheduled for Nov. 14th, and DOJ wants to do a moot on Nov. 6th or 7th. Please let us know how you would like to proceed with review and revision given the limited timeframe we have available to get this memo into final shape. We should also discuss how we want to handle the moot when we meet next week. Thanks very much, Briana Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:41 PM Conversation Contents DMR Friday List Attachments: /66. DMR Friday List/1.1 2017.11.03 DMR Friday List.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Fri Nov 03 2017 18:14:03 GMT-0600 (MDT) Jack Haugrud Tom Bovard , Dennis Daugherty , Richard McNeer DMR Friday List 2017.11.03 DMR Friday List.docx Jack, I've attached our Friday list for your reference. In addition to the items in the Friday list, I wanted to mention that DOJ has just scheduled a moot court for the Twin Metals case for Wednesday, November 8, at 3:30 pm. Also, (b) (5) I hope you have a good weekend! --Karen Kevin Haugrud From: Sent: To: Subject: Kevin Haugrud Sat Nov 04 2017 09:54:34 GMT-0600 (MDT) "Hawbecker, Karen" Re: DMR Friday List (b) (5) -------- Original Message -------From: "Hawbecker, Karen" Date: Fri, November 03, 2017 8:14 PM -0400 To: Jack Haugrud CC: Tom Bovard , Dennis Daugherty , Richard McNeer Subject: DMR Friday List Jack, I've attached our Friday list for your reference. In addition to the items in the Friday list, I wanted to mention that DOJ has just scheduled a moot court for the Twin Metals case for Wednesday, November 8, at 3:30 pm. A(b) (5) I hope you have a good weekend! --Karen "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Sun Nov 05 2017 13:46:58 GMT-0700 (MST) To: Kevin Haugrud Subject: Re: DMR Friday List -- aren On Sat, Nov 4, 2017 at 11:54 AM, Kevin Haugrud wrote: -- Original Message From: "Hawbecker, Karen" Date: Fri, November 03, 2017 8:14 PM -0400 To: Jack Haugrud CC: Tom Bovard Dennis Daugherty Richard McNeer Subject: DMR Friday List Jack, I've attached our Friday list for your reference. In addition to the items in the Friday list, I wanted to mention that DOJ has just scheduled a moot court for the Twin Metals case for Wednesday, November 8, at 3:30 pm. I hope you have a good weekend! -Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:42 PM Conversation Contents Litigation Hold Notice --- Franconia Minerals (US) LLC et al. v. United States et al. Attachments: /67. Litigation Hold Notice --- Franconia Minerals (US) LLC et al. v. United States et al./1.1 Franconia Minerals (US) LLC et al. v. United States et al. -- Litigation Hold Notice.pdf "Sklar, Ryan" From: Sent: To: CC: Subject: Attachments: "Sklar, Ryan" Fri Oct 13 2017 15:38:17 GMT-0600 (MDT) ryan_zinke@ios.doi.gov, (b) (6) @ios.doi.gov, james_cason@ios.doi.gov, elinor_renner@ios.doi.gov, caroline_boulton@ios.doi.gov, juliette_lillie@ios.doi.gov, Downey Magallanes , margaret_bradley@ios.doi.gov, "Alspach, David" , Katharine Macgregor , Richard Cardinale , Michael Nedd , John Ruhs , bsteed@blm.gov, Kathleen Benedetto , Cally Younger , Peter Mali , "Bilbao, Anita" , brendan_quinn@ios.doi.gov, Jeff Brune , Kelly Orr , "Ross, Paul" , Timothy Spisak , Mitchell Leverette , Alfred Elser , Karen Mouritsen , Elena Fink , Brian Smith , Dean Gettinger , tmitchell@blm.gov, kwadzins@blm.gov, twhowell@blm.gov, Craig Leff , Megan Crandall , joshua.campbell@sol.doi.gov, daniel.jorjani@sol.doi.gov, "Haugrud, Kevin" , "Hawbecker, Karen" , Richard McNeer , Roy Fuller , "Nitta, Kendra" , stephen.mahoney@sol.doi.gov "Collier, Briana" , Joshua Hanson , "Katusak, Justin" Litigation Hold Notice --- Franconia Minerals (US) LLC et al. v. United States et al. Franconia Minerals (US) LLC et al. v. United States et al. -Litigation Hold Notice.pdf Attorney-Client Privileged Communication Attached please find a litigation hold notice related to Franconia Minerals (US) LLC et al. v. United States et al. You are receiving this notice because you have been identified as likely to have information related to the matter, or because you may be able to provide information regarding other current or former DOI employees or contractors who may have information related to the matter. The purpose of the notice is to inform you of the scope of your obligations to preserve such records. Please read the notice carefully and return a signed copy to Justin Katusak, the BLM's acting litigation coordinator, at jkatusak@blm.gov, indicating that you have received the notice and understand the scope of the litigation hold and all of the preservation instructions. Please direct any questions about the litigation hold notice to Briana Collier, at briana.collier@sol.doi.gov or (202) 208-4853. Thank you, Ryan Sklar -Ryan Sklar Attorney-Advisor Office of the Solicitor U.S. Department of the Interior 202-208-3039 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:42 PM Conversation Contents Twin Metals Litigation Hold Notice - coordination for the Secretary Attachments: /68. Twin Metals Litigation Hold Notice - coordination for the Secretary/1.1 5.9.17 - Twin Metals Draft Litigation Hold Ltr.docx "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Sun Oct 08 2017 19:48:45 GMT-0600 (MDT) To: Jack Haugrud Richard McNeer Briana Collier CC: Mariagrazia Caminiti Subject: Twin Metals Litigation Hold Notice - coordination for the Secretary Attachments: 5.9.17 - Twin Metals Draft Litigation Hold Ltr.docx Collier, Briana wrote: Karen, We have prepared a litigation hold notice to preserve communications related to the on-going legal dispute, Franconia Minerals v. United States, concerning the denied renewal of Twin Metals' hardrock mineral leases in northern Minnesota. We plan to Thanks very much. Briana Collier Attorney-Adviser. Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 1849 Street NW, Washington, DC. 20240 Of?ce: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. Kevin Haugrud From: Kevin Haugrud Sent: Mon Oct 09 2017 06:07:08 GMT-0600 (MDT) To: "Hawbecker, Karen" Richard McNeer Briana Collier Mariagrazia Caminiti CC: Edward Keable Subject: Re: Metals Litigation Hold Notice - coordination for the Secretary I believe Mr Keable may know the current practice for lit holds involving the of?ce of the Secretary. I've copied him so he can let us know. -- Original Message From: "Hawbecker, Karen" Date: Sun, October 08, 2017 9:49 PM -0400 To: Jack Haugrud CC: Richard McNeer Briana Collier Mariagrazia Caminiti Subject: Twin Metals Litigation Hold Notice coordination for the Secretary Collier, Briana wrote: Karen, We have prepared a litigation hold notice to preserve communications related to the on-going legal dispute, Franconia Minerals v. United States, concerning the denied renewal of Twin Metals' hardrock mineral leases in northern Minnesota. We plan Thanks very much. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 1849 Street NW, Washington, DC. 20240 Of?ce: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. "Keable, Edward" From: "Keable, Edward" Sent: Tue Oct 10 2017 07:56:53 GMT-0600 (MDT) To: "Hawbecker, Karen" Kevin Haugrud Richard McNeer Briana Collier Mariagrazia Caminiti Timothy Murphy CC: Rachel Spector Tony Irish "Harris, Kaprice" Sub.ect_ Re: Twin Metals Litigation Hold Notice - coordination for the Secretary DGL Karen, A litigation hold notice to the Secretary should go to the following people: Secretary Zinke Eleanor Renner Caroline Boulton Downey Magallanes Julie Lillie Margaret Bradley David Alspach Each of these people have a role in ensuring records management compliance for the Secretary and the Secretary's Immediate Of?ce. The Secretary's records are permanently maintained so there is strong institutional compliance on ensuring the integrity of his records. We should forward the litigation hold to the people on this list for their awareness and, in some cases, in case we may need their assistance at some point in the future to manage these records for the purposes of the litigation. Please let me know if you have any further questions. Ed On Mon, Oct 9, 2017 at 8:07 AM, Kevin Haugrud wrote: I believe Mr Keable may know the current practice for lit holds involving the of?ce of the Secretary. I've copied him so he can let us know. -- Original Message From: "Hawbecker, Karen" Date: Sun, October 08, 2017 9:49 PM -0400 To: Jack Haugrud CC: Richard McNeer Briana Collier Mariagrazia Caminiti Subject: Twin Metals Litigation Hold Notice - coordination for the Secretary Jack, Briana and the other Twin Metals team have prepared a litigation hold notice that they would like to send out soon. One of the recipients will be Secretary Zinke. Do you know who should receive this litigation hold on behalf of the Secretary? Is there a particular staff member on the Secretary's hallway who is handling these? Thank you. Collier, Briana wrote: Karen, We have prepared a litigation hold notice to preserve communications related to the on- going legal dispute, Franconia Minerals v. United States, concerning the denied renewal of Twin Metals' hardrock mineral leases in northern Minnesota. We plan to Thanks very much. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 1849 Street NW, Washington, DC. 20240 Of?ce: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. -- Edward T. Keable Deputy Solicitor-General Law Office of the Solicitor U.S. Department of the Interior Phone: 202-208-4423 Fax: 202-208-5584 edward.keable@sol.doi.gov This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. Thank you. "Hawbecker, Karen" From: Sent: To: CC: Subject: "Hawbecker, Karen" Tue Oct 10 2017 16:59:33 GMT-0600 (MDT) "Keable, Edward" Kevin Haugrud , Richard McNeer , Briana Collier , Mariagrazia Caminiti , Timothy Murphy , Rachel Spector , Tony Irish , "Harris, Kaprice" Re: Twin Metals Litigation Hold Notice - coordination for the Secretary Thank you, Ed. --Karen On Tue, Oct 10, 2017 at 9:56 AM, Keable, Edward wrote: + DGL Karen, A litigation hold notice to the Secretary should go to the following people: Secretary Zinke Eleanor Renner Caroline Boulton Downey Magallanes Julie Lillie Margaret Bradley David Alspach Each of these people have a role in ensuring records management compliance for the Secretary and the Secretary's Immediate Office. The Secretary's records are permanently maintained so there is strong institutional compliance on ensuring the integrity of his records. We should forward the litigation hold to the people on this list for their awareness and, in some cases, in case we may need their assistance at some point in the future to manage these records for the purposes of the litigation. Please let me know if you have any further questions. Ed On Mon, Oct 9, 2017 at 8:07 AM, Kevin Haugrud wrote: I believe Mr Keable may know the current practice for lit holds involving the of?ce of the Secretary. I've copied him so he can let us know. -- Original Message From: "Hawbecker, Karen" Date: Sun, October 08, 2017 9:49 PM -0400 To: Jack Haugrud CC: Richard McNeer Briana Collier Mariagrazia Caminiti Subject: Twin Metals Litigation Hold Notice - coordination for the Secretary Jack, Briana and the other Twin Metals team have prepared a litigation hold notice that they would like to send out soon. One of the recipients will be Secretary Zinke. Do you know who should receive this litigation hold on behalf of the Secretary? Is there a particular staff member on the Secretary's hallway who is handling these? Thank you. -?Karen Collier, Briana wrote: Karen, We have prepared a litigation hold notice to preserve communications related to the on- going legal dispute, Franconia Minerals v. United States, concerning the denied renewal of Twin Metals' hardrock mineral leases in northern Minnesota. We plan to Thanks very much. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Office of the Solicitor 1849 Street NW, Washington, DC. 20240 Of?ce: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. -- Edward T. Keable Deputy Solicitor-General Law Office of the Solicitor U.S. Department of the Interior Phone: 202-208-4423 Fax: 202-208-5584 edward.keable@sol.doi.gov This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. Thank you. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:42 PM Conversation Contents Twin Metals M-Opinion outline Attachments: /69. Twin Metals M-Opinion outline/1.1 TwinMetaIs-DraftrevisedM- Opargumentoutlinedocx /69. Twin Metals M-Opinion outline/3.1 2017.09.18Twin Metals-Draft revised argument outline.docx "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Wed Oct 04 2017 15:46:59 GMT-0600 (MDT) To: Jack Haugrud Briana Collier Roy Fuller CC: Richard McNeer Subject: Twin Metals M-Opinion outline Attachments: Jack, This is the outline for a new draft opinion that Briana prepared in May. -- aren -- Forwarded message From: McNeer, Richard Date: Wed, May 17, 2017 at 10:17 AM Subject: Twin Metals To: Jack Haugrud Cc: "Collier, Briana" "Hawbecker, Karen" Jack: FYI. Here is Briana's draft outline of an explanation for reversal of the M-Opinion. Please let us know if you have any comments. Richard "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Wed Oct 04 2017 15:56:40 GMT-0600 (MDT) To: "Hawbecker, Karen" Briana Collier Roy Fuller CC: Richard McNeer Subject: Re: Twin Metals M-Opinion outline I've quickly reviewed and think On Wed, Oct 4, 2017 at 5:46 PM, Hawbecker, Karen wrote: Jack, This is the outline for a new draft opinion that Briana prepared in May. . aren -- Forwarded message From: McNeer, Richard Date: Wed, May 17, 2017 at 10:17 AM Subject: Twin Metals To: Jack Haugrud Cc: "Collier, Briana" "Hawbecker, Karen" Jack: FYI. Here is Briana's draft outline of an explanation for reversal of the M-Opinion. Please let us know if you have any comments. Richard "Collier, Briana" From: "Collier, Briana" Sent: Wed Oct 04 2017 15:57:02 GMT-0600 (MDT) To: "Hawbecker, Karen" Jack Haugrud Roy Fuller CC: Richard McNeer Subject: Re: Twin Metals M-Opinion outline Attachments: 2017.09.18Twin Metals-Draft revised argument outlinedocx Jack, Here is the updated version of the outline. Please let me know if you would like me to send along the historic lease ?le documents referenced. Thank you, Briana Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Office of the Solicitor 505 Marquette Ave, NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Wed, Oct 4, 2017 at 3:46 PM, Hawbecker, Karen wrote: Jack, This is the outline for a new draft opinion that Briana prepared in May. . - aren -- Forwarded message From: McNeer, Richard Date: Wed, May 17, 2017 at 10:17 AM Subject: Twin Metals To: Jack Haugrud Cc: "Collier, Briana" "Hawbecker, Karen" Jack: FYI. Here is Briana's draft outline of an explanation for reversal of the M-Opinion. Please let us know if you have any comments. Richard Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:42 PM Conversation Contents Fwd: Twin Metals - Draft reply brief Attachments: /70. Fwd: Twin Metals - Draft reply brief/1.1 DENVER-#587035-v5-TMM_-_draft__reply_brief.DOCX /70. Fwd: Twin Metals - Draft reply brief/1.2 2017.08.25 Ps response to Fed MTD.pdf /70. Fwd: Twin Metals - Draft reply brief/2.1 2017.10.03 Twin Metals - Fed D draft reply_bwc + RS rhm + ksh.docx /70. Fwd: Twin Metals - Draft reply brief/3.1 2017.10.03 Twin Metals - Fed D draft reply_bwc + RS rhm + ksh (1) + kjh.docx Karen Hawbecker From: Sent: To: Subject: Attachments: Karen Hawbecker Tue Oct 03 2017 06:04:17 GMT-0600 (MDT) Daniel Jorjani , Jack Haugrud Fwd: Twin Metals - Draft reply brief DENVER-#587035-v5-TMM_-_draft_-_reply_brief.DOCX 2017.08.25 Ps response to Fed MTD.pdf Dan and Jack, This is the draft reply brief in the Twin Metals litigation. (b) (5) We will send our combined DMR edits to you as soon as possible today. --Karen Sent from my iPad Begin forwarded message: From: "Collier, Briana" Date: October 2, 2017 at 3:03:50 PM EDT To: Michael Nedd , John Ruhs , Kathleen Benedetto , Mitchell Leverette Cc: "Katusak, Justin" , Richard McNeer , Karen Hawbecker , Roy Fuller , Ryan Sklar , Karen Mouritsen Subject: Fwd: Twin Metals - Draft reply brief Hi Mike, John, Kathy, Mitch: Attached below is our draft reply brief in Franconia Minerals v. United States (Twin Metals), which SOL is currently reviewing. I have also attached the brief it is replying to -- Plaintiffs' response in opposition to our motion to dismiss, filed in late August. Please feel free to review and pass forward any comments by Wednesday, October 4 at noon ET. And please let us know if you have any questions or concerns. Thanks very much, Bnana Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. -- Forwarded message From: Boronow, Clare (ENRD) Date: Fri, Sep 29, 2017 at 5:55 PM Subject: Twin Metals - Draft reply brief To: PAMELA P. - Joshua Hanson "Mulach, Ronald - "Vandlik, John - "Vukelich, Vincent - Richard McNeer Roy Fuller Ryan Sklar "Collier, Briana" Cc: "Duffy, Sean C. Hi all, I?m attaching a draft of the repr brief in support of our MTD in the Twin Metals case, due next Fridav. October 6. Please send us all edits and comments by Wednesday, October 4 COB. Thanks, Clare Clare Boronow Trial Attorney, Natural Resources Section Environment and Natural Resources Division U.S. Department of Justice Phone: (303) 844-1362 clare.boronow@usdoj.gov "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Tue Oct 03 2017 16:17:28 GMT-0600 (MDT) Daniel Jorjani , Jack Haugrud Briana Collier , Richard McNeer , Roy Fuller , "Sklar, Ryan" , Joshua Hanson Re: Twin Metals - Draft reply brief 2017.10.03 Twin Metals - Fed D draft reply_bwc + RS rhm + ksh.docx Dan and Jack, This is the draft reply brief with DMR's and DLR's combined edits. We will share this with DOJ with the caveat that you may have additional feedback. Thank you. --Karen On Tue, Oct 3, 2017 at 8:04 AM, Karen Hawbecker wrote: Dan and Jack, This is the draft reply brief in the Twin Metals litigation. DOJ asks for our feedback by COB Wednesday. It is due to be filed on Friday. We will send our combined DMR edits to you as soon as possible today. --Karen Sent from my iPad Begin forwarded message: From: "Collier, Briana" Date: October 2, 2017 at 3:03:50 PM EDT To: Michael Nedd , John Ruhs , Kathleen Benedetto , Mitchell Leverette Cc: "Katusak, Justin" , Richard McNeer Karen Hawbecker Roy Fuller Ryan Sklar Karen Mouritsen Subject: Fwd: Twin Metals - Draft reply brief Hi Mike, John, Kathy, Mitch: Attached below is our draft reply brief in Franconia Minerals v. United States (Twin Metals), which SOL is currently reviewing. have also attached the brief it is replying to -- Plaintiffs' resoonse in opposition to our motion to dismiss. ?led in late August. Please feel free to review and pass forward any comments by Wednesday, October 4 at noon ET. And please let us know if you have any questions or concerns. Thanks very much, Bnana Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. -- Forwarded message From: Boronow, Clare (ENRD) Date: Fri, Sep 29, 2017 at 5:55 PM Subject: Twin Metals - Draft reply brief To: PAMELA P. - Joshua Hanson "Mulach, Ronald - "Vandlik, John - "Vukelich, Vincent - Richard McNeer Roy Fuller Ryan Sklar "Collier, Briana" Cc: "Duffy, Sean C. Hi all, I?m attaching a draft of the reply brief in support of our MTD in the Twin Metals case, due next Friday, October 6. The brief is about 700 words too long, so please be thoughtful about additions and let us know if you see places to cut. Please send us all edits and comments by Wednesday, October 4 COB. Thanks, Clare Clare Boronow Trial Attorney, Natural Resources Section Environment and Natural Resources Division US. Department of Justice Phone: (303) 844-1362 clare.boronow@usdoi.gov "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Wed Oct 04 2017 15:10:51 GMT-0600 (MDT) To: "Hawbecker, Karen" Daniel Jorjani Briana Collier Richard McNeer CC: Roy Fuller "Sklar, Ryan" Joshua Hanson SUbJ'ect: Re: Twin Metals - Draft reply brief Attachments. 2017.10.03 Twin Metals - Fed draft rep y_bwc RS (1) kjh.docx Here are my comments on top of everyone else's. I put a comment balloon wherever I suggested a change so they can be more easily found. The two substantive edits concern that . If you disagree with my assessment on either issue let me know and we can discuss. On Tue, Oct 3, 2017 at 6:17 PM, Hawbecker, Karen wrote: Dan and Jack, This is the draft reply brief with DMR's and DLR's combined edits. We will share this with DOJ with the caveat that you may have additional feedback. Thank you. --Karen On Tue, Oct 3, 2017 at 8:04 AM, Karen Hawbecker wrote: Dan and Jack, This is the draft reply brief in the Twin Metals litigation. DOJ asks for our feedback by COB Wednesday. It is due to be ?led on Friday. We will send our combined DMR edits to you as soon as possible today. --Karen Sent from my iPad Begin forwarded message: From: "Collier, Briana" Date: October 2, 2017 at 3:03:50 PM EDT To: Michael Nedd John Ruhs Kathleen Benedetto Cc: "Katusak, Justin" Richard McNeer Karen Hawbecker Roy Fuller Ryan Sklar Karen Mouritsen Subject: Fwd: Twin Metals - Draft reply brief Hi Mike, John, Kathy, Mitch: Attached below is our draft reply brief in Franconia Minerals v. United States (Twin Metals), which SOL is currently reviewing. have also attached the brief it is replying to -- Plaintiffs' response in opposition to our motion to dismiss, ?led in late August. Please feel free to review and pass forward any comments by Wednesday, October 4 at noon ET. And please let us know if you have any questions or concerns. Thanks very much, Bnana Briana Collier Attorney-Adviser, Division of Mineral Resources US Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208?4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. -- Forwarded message From: Boronow, Clare (ENRD) Date: Fri, Sep 29, 2017 at 5:55 PM Subject: Twin Metals - Draft reply brief To: PAMELA P. - Joshua Hanson "Mulach, Ronald - c.usda. ov>, "Vandlik, John - "Vukelich, Vincent - Richard McNeer Roy Fuller Ryan Sklar "Collier, Briana" Cc: "Duffy, Sean C. Hi all, I?m attaching a draft of the reply brief in support of our MTD in the Twin Metals case, due next Friday, October 6. The brief is about 700 words too long, so please be thoughtful about additions and let us know if you see places to cut. Please send us all edits and comments by Wednesday, October 4 COB. Thanks, Clare Clare Boronow Trial Attorney, Natural Resources Section Environment and Natural Resources Division US. Department of Justice Phone: (303) 844-1362 clare.boronow usdo'. ov "Hawbecker, Karen" From: Sent: To: "Hawbecker, Karen" Wed Oct 04 2017 15:26:57 GMT-0600 (MDT) "Haugrud, Kevin" Daniel Jorjani , Briana Collier , Richard McNeer , Roy Fuller , "Sklar, Ryan" , Joshua Hanson Re: Twin Metals - Draft reply brief CC: Subject: Jack, I agree with your changes and comments. --Karen On Wed, Oct 4, 2017 at 5:10 PM, Haugrud, Kevin wrote: Here are my comments on top of everyone else's. I put a comment balloon wherever I suggested a change so they can be more easily found. The two substantive edits concern If you disagree with my (b) (5) assessment on either issue let me know and we can discuss. On Tue, Oct 3, 2017 at 6:17 PM, Hawbecker, Karen wrote: Dan and Jack, This is the draft reply brief with DMR's and DLR's combined edits. We will share this with DOJ with the caveat that you may have additional feedback. Thank you. --Karen On Tue, Oct 3, 2017 at 8:04 AM, Karen Hawbecker wrote: Dan and Jack, This is the draft reply brief in the Twin Metals litigation. DOJ asks for our feedback by COB Wednesday. It is due to be filed on Friday. We will send our combined DMR edits to you as soon as possible today. --Karen Sent from my iPad Begin forwarded message: From: "Collier, Briana" Date: October 2, 2017 at 3:03:50 PM EDT To: Michael Nedd , John Ruhs , Kathleen Benedetto , Mitchell Leverette Cc: "Katusak, Justin" , Richard McNeer , Karen Hawbecker , Roy Fuller , Ryan Sklar , Karen Mouritsen Subject: Fwd: Twin Metals - Draft reply brief Hi Mike, John, Kathy, Mitch: Attached below is our draft reply brief in Franconia Minerals v. United States (Twin Metals), which SOL is currently reviewing. I have also attached the brief it is replying to -- Plaintiffs' response in opposition to our motion to dismiss, filed in late August. (b) (5) Please feel free to review and pass forward any comments by Wednesday, October 4 at noon ET. And please let us know if you have any questions or concerns. Thanks very much, Bdana Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. -- Forwarded message From: Boronow, Clare (ENRD) Date: Fri, Sep 29, 2017 at 5:55 PM Subject: Twin Metals - Draft reply brief To: PAMELA P. - Joshua Hanson "Mulach, Ronald - "Vandlik, John - "Vukelich, Vincent - Richard McNeer Roy Fuller Ryan Sklar "Collier, Briana" Cc: "Duffy, Sean C. Hi all, I?m attaching a draft of the reply brief in support of our MTD in the Twin Metals case, due next Friday, October 6. The brief is about 700 words too long, so please be thoughtful about additions and let us know if you see places to cut. Please send us all edits and comments by Wednesday, October 4 COB. Thanks, Clare Clare Boronow Trial Attorney, Natural Resources Section Environment and Natural Resources Division U.S. Department of Justice Phone: (303) 844-1362 clare.boronow@usdoj.gov Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:42 PM Conversation Contents Twin Metals leases and M-37036 Attachments: /71. Twin Metals leases and M-37036/1.1 MNES-01352 1966 Lease.pdf /71. Twin Metals leases and M-37036/1.2 MNES_01353 1966 Lease.pdf /71. Twin Metals leases and M-37036/1.3 2004 TMM Lease Renewals.pdf /71. Twin Metals leases and M-37036/1.4 M37036 Twin Metals Minnesota Application to Renew Preference Right Leases (MNES-01352 and MNES-0135).pdf "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Wed Oct 04 2017 11:54:32 GMT-0600 (MDT) David Bernhardt Daniel Jorjani , Jack Haugrud , Briana Collier , Gareth Rees Twin Metals leases and M-37036 MNES-01352 1966 Lease.pdf MNES_01353 1966 Lease.pdf 2004 TMM Lease Renewals.pdf M37036 Twin Metals Minnesota Application to Renew Preference Right Leases (MNES-01352 and MNES-0135).pdf David, Here are the Twin Metals 1966 leases, the 2004 lease renewals, and the M-Opinion. The renewal terms in the 1966 leases are in Section 5 on page 8. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:43 PM Conversation Contents Agenda for DMR Weekly Meeting Attachments: /72. Agenda for DMR Weekly Meeting/1.1 2017.10.04 DMR Weekly Meeting Agenda.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Tue Oct 03 2017 15:26:32 GMT-0600 (MDT) Daniel Jorjani , Jack Haugrud Tom Bovard , Dennis Daugherty , Richard McNeer Agenda for DMR Weekly Meeting 2017.10.04 DMR Weekly Meeting Agenda.docx Dan and Jack, I've attached the agenda for our weekly meeting tomorrow afternoon. See you then. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:43 PM Conversation Contents Background materials for Twin Metals briefing Attachments: /73. Background materials for Twin Metals briefing/1.1 2017.08.09 Draft Lease Renewal Scenarios w. comment.docx /73. Background materials for Twin Metals briefing/1.2 2017.10.03 Twin Metals litigation briefing paper.docx /73. Background materials for Twin Metals briefing/1.3 2017.07.24 SuperiorNF_Mineral Withdrawl_Briefing Paper July 24 2017 from ESO to WO (1).docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Tue Oct 03 2017 14:35:03 GMT-0600 (MDT) David Bernhardt <(b) (5) @ios.doi.gov> Daniel Jorjani , Jack Haugrud , "Moody, Aaron" , Briana Collier , Gareth Rees Background materials for Twin Metals briefing 2017.08.09 Draft Lease Renewal Scenarios w. comment.docx 2017.10.03 Twin Metals litigation briefing paper.docx 2017.07.24 SuperiorNF_Mineral Withdrawl_Briefing Paper July 24 2017 from ESO to WO (1).docx David, I've attached for your reference three background documents for the Twin Metals briefing tomorrow morning. The documents include a briefing paper about the Twin Metals lease history and litigation, a lease renewal scenarios paper, and a July 24 BLM briefing paper about the USFS withdrawal application. We'll see you tomorrow. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:43 PM Conversation Contents Draft Twin Metals briefing paper for Dep. Secretary Attachments: I74. Draft Twin Metals briefing paper for Dep. Secretary/1.1 2017.10.03 Twin Metals litigation brie?ng paper.docx "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Tue Oct 03 2017 13:37:13 GMT-0600 (MDT) To: Jack Haugrud CC: Richard McNeer Subject: Draft Twin Metals brie?ng paper for Dep. Secretary Attachments: 2017.10.03 Twin Metals litigation brie?ng paper.docx Jack, I propose to "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Tue Oct 03 2017 13:58:38 GMT-0600 (MDT) To: "Hawbecker, Karen" CC: Richard McNeer Subject: Re: Draft Twin Metals brie?ng paper for Dep. Secretary Thanks. Let's send the lease renewal options too. On Tue, Oct 3, 2017 at 3:37 PM, Hawbecker, Karen wrote: Jack, I propose to Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:43 PM Conversation Contents Fwd: Issue Summary, and Request for Lead-Agency Designation: USFS Minerals Withdrawal, Minnesota Attachments: I75. Fwd: Issue Summary, and Request for Lead-Agency Designation: USFS Minerals Withdrawal, Minnesota/1.1 Petition and Con?ict Analysis FINAL I75. Fwd: Issue Summary, and Request for Lead-Agency Designation: USFS Minerals Withdrawal, Minnesota/1.2 NCLUCB EIS Scoping Final Submittal Attachments Only 0811 17.pdf I75. Fwd: Issue Summary, and Request for Lead-Agency Designation: USFS Minerals Withdrawal, Minnesota/1.3 NCLUCB Comments Final Attachments Only.pdf "Jorjani, Daniel" From: "Jorjani, Daniel" Sent: Tue Oct 03 2017 10:56:29 GMT-0600 (MDT) To, Kevin Haugrud Karen Hawbecker Fwd: Issue Summary, and Request for Lead-Agency Designation: USFS Minerals Withdrawal, Minnesota Petition and Con?ict Analysis FINAL Attachments: NCLUCB EIS Scoping Final Submittal Attachments Only 081117.pdf NCLUCB Comments Final Attachments Only.pdf Subject: FYI -- Forwarded message From: Rich Sve Date: Tue, Oct 3, 2017 at 11:50 AM Subject: Issue Summary, and Request for Lead-Agency Designation: USFS Minerals Withdrawal, Minnesota To: "mnedd@blm.gov" "kathleen benedetto@ios.doi.gov" Cc: "gareth "katharine "daniel ioriani@ios.doi.gov" . "Tom.vanflein(b) (6) " , "rep.rob.ecklund@house.mn" , "anne.marcotte@co.aitkin.mn.us" , "johnchell2(b) (6) >, "STS@wbsnet.org" From: Sent To: CC: Subject: "Hawbecker, Karen" Tue Oct 03 2017 12:30:35 GMT-0600 (MDT) "Jorjani, Daniel" Kevin Haugrud Re: Issue Summary, and Request for Lead-Agency Designation: USFS Minerals Withdrawal, Minnesota Thank you, Dan. We'll include this as an agenda item for our weekly meeting tomorrow. ?Karen On Tue, Oct 3, 2017 at 12:56 PM, Jorjani, Daniel wrote: FYI -- Forwarded message From: Rich Sve Date: Tue, Oct 3, 2017 at 11:50 AM Subject: Issue Summary, and Request for Lead-Agency Designation: USFS Minerals Withdrawal, Minnesota To: "mnedd@blm.gov" athleen benedetto@ios.doi.gov" Cc: "gareth "katharine macgregor@ios.doi. M", Dear Departments-of-Interior and Agriculture; federal and state congressional delegations: Over the last six months, the Northern Counties Land Use Coordinating Board (NCLUCB) has prepared and submitted three (3) documents to the public record in response to an application for mineral withdrawal by the United States Forest Service (USFS). I am providing these documents in electronic format as follow-up to the positive, September 29, 2017 meeting we had with USFS and Bureau of Land Management (BLM).NCLUCB, as documented in the attached reports, has identified three (3) core issues that could be resolved through the Secretary of Interior undertaking the Lead Agency role. These issues are: 1. An application process that results in sequestration of 234,328 of public lands for a 2year period absent of standards, without input by local governments, without studies or minimum protections for local populations and economies; 2. A proposed, wholesale, and complete reversal of public lands, environmental policy published through a 2012 FEIS and Records of Decisions from both USFS and BLM. Those decisions, not mentioned in any of the proposed USFS mineral withdrawal documents, concluded mineral exploration throughout a 20-year period across the entire Superior National Forest to be consistent with the forest management plan and protective of both the human and natural environments; 3. Substantial conflicts between the proposed withdrawal and four congressional acts; a geopolitical Mining Protection Area Boundary enacted by congress that separates the Superior National Forest from the Boundary Waters Canoe Area Wilderness; and congressional mandates that public lands are to be managed for productivity, yield and prosperity. Other conflicts exist. Controlling regulations for preparation of an EIS by the Council on Environmental Quality (CEQ) qualify what agency best constitutes a Lead Agency, and for purposes of mineral withdrawals, 43 USC §1714 (a) and the DOI Manual at 209 DM 7.1 B qualify the organizational level from an interagency memorandum is to originate. As a coalition of affected local governments, NCLUCB appreciates consideration to our request by both USFS and BLM. Because the process could involve other agencies, entities or the CEQ, NCLUCB has is requesting feedback from both agencies by October 27, 2017. Best regards, Rich Sve Chairman The Northern Counties Land Use Coordinating Board (218) 343-6153 Rich.Sve@co.lake.mn.us Daniel Jorjani From: Sent: To: CC: Subject: Daniel Jorjani Tue Oct 03 2017 12:35:04 GMT-0600 (MDT) "Hawbecker, Karen" Kevin Haugrud Re: Issue Summary, and Request for Lead-Agency Designation: USFS Minerals Withdrawal, Minnesota Thank you. Daniel H. Jorjani U.S. Department of the Interior Acting Solicitor & Principal Deputy Solicitor Main Interior Building, Suite 6356 ' 202-219-3861 (Voice) 202-706-9018 (Cell) daniel.jorjani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. Sent from my iPhone On Oct 3, 2017, at 2:31 PM, Hawbecker, Karen wrote: Thank you, Dan. We'll include this as an agenda item for our weekly meeting tomorrow. --Karen On Tue, Oct 3, 2017 at 12:56 PM, Jorjani, Daniel wrote: FYI ---------- Forwarded message ---------From: Rich Sve Date: Tue, Oct 3, 2017 at 11:50 AM Subject: Issue Summary, and Request for Lead-Agency Designation: USFS Minerals Withdrawal, Minnesota To: "mnedd@blm.gov" , "kathleen benedetto@ios.doi.gov" , "jruhs@blm.gov" , "mitchell Cc: "gareth "katharine "daniel "timothy williams?ios.doi.gov" . "iohnchell2@yahoo.com" "STS@wbsnet.org" Dear Departments-of?Interior and Agriculture; federal and state congressional delegations: Over the last six months, the Northern Counties Land Use Coordinating Board (N LUC B) has prepared and submitted three (3) documents to the public record in response to an application for mineral withdrawal by the United States Forest Service (USFS). I am providing these documents in electronic format as follow-up to the positive, September 29, 2017 meeting we had with USPS and Bru'eau of Land Management LUC B, as documented in the attached reports, has identi?ed three (3) core issues that could be resolved through the Secretary of Interior rmdertaking the Lead Agency role. These issues are: 1. An application process that results in sequestration of 234,328 of public lands for a 2-year period absent of standards, without input by local governments, without studies or minimrun protections for local populations and economies; 2. A proposed, wholesale, and complete reversal of public lands, environmental policy published through a 2012 FEIS and Records of Decisions from both USPS and BLM. Those decisions, not mentioned in any of the proposed USFS mineral withdrawal docrunents, concluded mineral exploration throughout a 20-year period across the entire Superior National Forest to be consistent with the forest management plan and protective of both the human and natm?al enviromnents; 3. Substantial con?icts between the proposed withdrawal and form congressional acts; a geopolitical Mining Protection Area Boundary enacted by congress that separates the Superior National Forest from the Bormdary Waters Canoe Area Wilderness; and congressional mandates that public lands are to be managed for productivity, yield and prosperity. Other con?icts exist. Controlling regulations for preparation of an EIS by the Council on Environmental Quality (CEQ) qualify what agency best constitutes a Lead Agency, and for purposes of mineral withdrawals, 43 USC §1714 (a) and the DOI Manual at 209 DM 7.1 B qualify the organizational level from an interagency memorandum is to originate. As a coalition of affected local governments, NCLUCB appreciates consideration to our request by both USFS and BLM. Because the process could involve other agencies, entities or the CEQ, NCLUCB has is requesting feedback from both agencies by October 27, 2017. Best regards, Rich Sve Chairman The Northern Counties Land Use Coordinating Board (218) 343-6153 Rich.Sve@co.lake.mn.us Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:43 PM Conversation Contents Fwd: meeting tomorrow 930 - 10 "Hawbecker, Karen" From: Sent: To: Subject: "Hawbecker, Karen" Tue Oct 03 2017 12:32:45 GMT-0600 (MDT) Daniel Jorjani , Jack Haugrud Fwd: meeting tomorrow 930 - 10 Dan and Jack, FYI--these are Ryan's summary of the meeting that BLM had with NCLUCB representatives last Thursday. --Karen ---------- Forwarded message ---------From: Sklar, Ryan Date: Thu, Sep 28, 2017 at 4:10 PM Subject: Re: meeting tomorrow 930 - 10 To: "Collier, Briana" , "Hawbecker, Karen" , Roy Fuller , Richard McNeer , Joshua Hanson Cc: Aaron Moody Hi all, I wanted to provide an update on yesterday's meeting with the Northern Counties Land Use Coordinating Board (NCLUCB). Here are the highlights: The meeting was attended by John Ruhs, Tim Spisak, Mitch Leverette, Elena Fink, Aaron Moody, and myself. We met with two representatives of the NCLUCB, Rich Sve and Anne Marcotte, and their consultant, James Carlson of Stillwater Technical Solutions. The meeting was a listening session. NCLUCB explained that going through with the withdrawal would negatively impact the economies of its member counties. NCLUCB also pointed out what it sees as legal and technical deficiencies related to the USFS's withdrawal application, including, among other things, the improper designation of the USFS as the lead agency on the withdrawal EIS and the failure to include NCLUCB in the preapplication consultation between BLM and USFS. Specifically, NCLUCB is concerned that USFS, due to unspecified "conflicts of interest," will not adequately consider how a withdrawal may impact the local economy in northern Minnesota. NCLUCB asked that BLM take over as lead agency on the withdrawal EIS. They also asked that BLM promulgate new regulations that better clarify what constitutes a complete withdrawal application, but they indicated that this is a secondary concern. NCLUCB left a bound report prepared by its consultants entitled "Conflicts and Solutions in Federal Land and Natural Decisionmaking" with Aaron and I. I have a copy in my office, and BLM has some copies as well. NCLUCB claims the report contains new information that was not included in its prior comment letters. I'm going to review it in the next day or two. Let me know if you'd also like to take a look. Based on yesterday's conversation and their previous submissions, it appears that NCLUCB is confused about how BLM's withdrawal and land use planning regulations relate to CEQ's NEPA regulations, especially in the context of a withdrawal. However, BLM told them that DOI would review their report and consider their requests. There don't appear to be any additional next steps at this time. Let me know if you have any questions or would like to discuss further. I'm around, so feel free to give me a call. Thanks, Ryan On Tue, Sep 26, 2017 at 5:28 PM, Collier, Briana wrote: Sounds interesting. Thanks for the notification! Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information hat is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or he employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify he sender immediately and destroy all copies. On Tue, Sep 26, 2017 at 3:20 PM, Hawbecker, Karen wrote: FYI-representatives of the Northern Counties Land Use Board are coming in tomorrow to meet with BLM about their request for USFS to cancel their withdrawal application in Minnesota and about their comments on the proposed withdrawal. Aaron and Ryan are going to attend the meeting tomorrow morning at 9:30 am. ---------- Forwarded message ---------From: Brown, Laura Date: Tue, Sep 26, 2017 at 4:29 PM Subject: meeting tomorrow 930 - 10 To: Karen Hawbecker , "Moody, Aaron" Hi, All: I'm assuming this is a Twin Metals meeting--who should attend from SOL? Ext. Mtg. NCLUCB - Northern Counties Land Use Coordinating Board Wed, September 27, 9:30am – 10:00am Event details Find a time Guests Rooms BLM-WO MIB RM5071 Conference Room Where map Calendar Linda Thurn Description Aitkin County Commissioner, Anne Marcotte Jim Carlson, Stillwater Technical Solutions John Ongaro, St Louis County Government Relations Lake County Commissioner, Rich Sve 8/2 Scheduling #3 Participants Yes: 4, Maybe: 0, No: 0, Awai ing: 11 Karen Mouritsen Aaron Moody John Ruhs Karen Hawbecker Kathleen Benedetto * ---------- Forwarded message ---------From: John Chell Date: Tue, Aug 1, 2017 at 12:28 PM Subject: Meeting Request Response: Northern Counties Land Use Coordinating Board (NCLUCB), USFS mineral withdrawal application, Superior National Forest To: Linda Thurn Cc: Rich Sve Laura Brown Michael Nedd Mitchell Leverette Yolando Mack-Thompson Linda Thurn Ruthie Jefferson Timothy Spisak * jjmoore@blm.gov * Good Morning Ms. Thurn: I received a call from the BLM scheduling staff yesterday regarding NCLUCB's request for a meeting with the BLM Director. NCLUCB has submitted several documents in response to the USFS proposal to withdraw mineral leases in the Superior National Forest. We will be submitting our subsequent comments during the scoping phase of the EIS process initiated by the USFS. It appears that the Director is willing to meet with us to discuss our opposition to the withdrawal application based on both procedural and policy issues. Since we are focused on completing our detailed scoping documents prior to the August 11 deadline, would you consider a meeting window of either the last week in August or the first week of September? Please let me know if we might have an opportunity for a meeting within that two week period. In addition, I would be pleased to provide additiona information regarding the NCLUCB joint powers board, our suggested meeting participants, the materials submitted to support our opposition, and any additional information that you may wish to review. Please note that the NCLUCB website is currently undergoing revisions and our internet presence may not be particularly helpful to you. Thank you for the opportunity to bring our concerns to the Director's office Your assistance is greatly appreciated. Cheers, John R. Chell NCLUCB Secretary Attachment Ltr NCLUCB to USDA 083017 pdf Email Timothy Shannon Valgentina Bolden BLM-WO M B RM5071 Conference Room * Calendar cannot be shown. Why? I lU I .VUI NCLUCB Comments Final NCLUCB EIS Scoping Final Submittal Attachments 081117_pdf Testimony Sve 072517.pdf USDA Purdue to NCLUCB 082417.pdf Event color Cl Noti?cations Emarl v 10Iminutes v Add a noti?cation Show me as 0 Available 9 Busy Visibility 0 Calendar default 0 Public 0 Private Learnmore Publish event Laura Brown, Associate Solicitor Division of Land Resources Of?ce of the Solicitor US. Department of the Interior Phone: 202 208?6545 Cell: 202 359-2712 Fax: 202 219-1792 Excellence - Integrity - Service This e?mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying or use of the e?mail or its contents is strictly prohibited. If you receive this e?mail in error, please notify the sender immediately and destroy all copies. Thank you. Ryan Sklar Attomey?Advisor Of?ce of the Solicitor U.S. Department of the Interior 202?208?3039 NOTICE: mis e-mai ?ncluding attachments) is intended for the use of the individual or entity to which it is addressed. It may conta'n ?nformation that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of his e-rnail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:44 PM Conversation Contents DMR Ultra-Friday List Attachments: /77. DMR Ultra-Friday List/1.1 2017.09.22 DMR Friday List.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Fri Sep 22 2017 17:49:39 GMT-0600 (MDT) Jack Haugrud Tom Bovard , Dennis Daugherty , Richard McNeer DMR Ultra-Friday List 2017.09.22 DMR Friday List.docx Jack, I asked the division to give you a solid status update on the major active projects in the division to help smooth your re-entry. As a result, our Friday list is an exuberant 10 pages. It's been a very active couple weeks. Welcome back! --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:44 PM Conversation Contents lands and the Antiquities Act Attachments: I78. lands and the Antiquities Act/1.1 1940 Op and subsequent caselaw 9 15 17.docx I78. lands and the Antiquities Act/1.2 MerkleyConnor10-14-16-2 and Opinion 1940.pdf I78. lands and the Antiquities Act/1.3 United States v. California_ 436 US. 32.pdf I78. lands and the Antiquities Act/1.4 Mt. States Legal Found. v. Bush_ 306 F.3d 1132.pdf I78. lands and the Antiquities Act/1.5 Tulare County v. Bush, 185 F. .docx I78. lands and the Antiquities Act/1.6 Tulare County v. Bush, 306 F3 DC ClR.docx I78. lands and the Antiquities Act/1.7 Utah Ass'n of Counties v. Bush.docx I78. lands and the Antiquities Act/1.8 United States v. New Mexico_ 438 US. 696.DOCX "Moody, Aaron" From: "Moody, Aaron" Sent: Fri Sep 15 2017 11:10:51 GMT-0600 (MDT) To: David Bernhardt -@ios.doi.gov> Daniel Jorjani Kevin Haugrud CC: "Brown, Laura" Subject: lands and the Antiquities Act 1940 Op and subsequent caselaw 9 15 17.docx MerkleyConnor10-14-16-2 and Opinion 1940.pdf United States v. California_ 436 US. 32.pdf Mt. States Legal Found. v. Bush_ Attachments. 306 F.3d 1132.pdf Tulare County v. Bush, 185 F. .docx Tulare County v. Bush, 306 F3 DC ClR.docx Utah Ass'n of Counties v. Bush.docx United States v. New Mexico_ 438 US. 696.DOCX ATTORNEY-CLIENT WORK PRODUCT Per our conversation this morning. attached is Happy to talk. Thanks, as always, for the time. -Aaron Aaron G. Moody Assistant Solicitor, Branch of Public Lands Division of Land Resources Office of the Solicitor U.S. Department of the Interior 202-208-3495 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:46 PM Conversation Contents U.S. Department of the Interior News Briefing for Wednesday, September 13, 2017 Bulletin Intelligence From: Bulletin Intelligence Sent: Wed Sep 13 2017 05:00:54 GMT-0600 (MDT) To: U.S. Department of the Interior News Briefing for Sublect= Wednesday, September 13, 2017 Mobile version and searchable archives available here. Please click here to subscribe. Department of the Interior I I -CIsioN v-K. ., News Briefing DATE: WEDNESDAY, SEPTEMBER 13, 2017 7:00 AM EDT Today's Table Of Contents DOI In The News 0 U.S. News World Report: Zinke Directs More Aggressive Approach To Prevent Wildfires. 0 Washington Post: Interior's ?Unusual? Transfer Of Senior Executives Spurs Official Probe. 0 Grand Junction (CO) Business Times: Survey: Wildlife Activities Big Business. 0 High Country (CO) News: Sally Jewell Defends Interior Department Legacy. 0 The Hill: No, President Trump, National Monuments Are Not A ?Land Grab?. 0 Independent Journal Review: Want To Put ?America First'? Bureau Of Indian Affairs 0 Ongoing Problems Land Tribal Oversight Agencies On GAO ?High-risk? List. 0 New Agreement With Feds Sparks Nooksack Election: ?We've Got A Lot Riding On This?. 0 US Judge Cites Tribal Sovereignty In Dismissing Coal Lawsuit. Bureau Of Indian Education 0 Education Secretary Betsy DeVos Tells Casper Audience That Country ?Must? Rethink Schools. Bureau Of Land Management 0 KTVH-TV Helena (MT): Tri-County Fire Safe To Expand Fuel Reduction Work With New Federal Grant. 0 Santa Fe New Mexican: Chaco Canyon Needs Protection. Bureau Of Reclamation 0 Bureau Of Reclamation Seeks Help With Colorado River Data Flow. 0 Watchdog Group Blasts U.S. Bureau Of Reclamation. Fish And Wildlife Service • Detroit News: Bills Would Remove Protections For Gray Wolf Population. • Minneapolis Star Tribune: Wildlife Managers Seek To Regain Authority To Kill Problem Cormorants. • U.S. News & World Report: National Bison Range Roundup Postponed Amid Montana Smoke. • U.S. News & World Report: Tennessee Hasn’t Updated Endangered Species List In 16 Years. • MLive (MI): Man Caught In Probe Of Lake Trout Trade On Lake Michigan. • Daily Caller: It’s Time To Limit Abusive, Taxpayer-Fun. National Park Service • Knoxville (TN) News Sentinel: Hurricane Irma: Smoky Mountains ‘Minimally’ Damaged. • Washington Post: The Petersen House, Where Lincoln Died, Will Close For Six Months In December. • Cody (WY) Enterprise: Eclipse Helps Make Past Month Busiest August Ever For Yellowstone. • Flathead (MT) Beacon: ‘It’s Not Over Yet’. • Yellowstone Insider: Feds Seek Forfeiture Of Money Seized In Yellowstone National Park. • Joplin (MO) Globe: Carver Bust Back On Display At Monument. • Atlanta Journal-Constitution: MasterChef Jr. Winner Appears At Upcoming Festival. • Las Vegas Review-Journal: Windstorm Damages Buildings, Vehicles At Death Valley. • Santa Barbara (CA) Independent: Smokejumpers Mop Up Potato Fire On Santa Cruz Island. • Oil City Wyoming: Concessioner Selected For Boat Services At Grand Teton’s Jenny Lake. • Allentown (PA) Morning Call: Chip Minemyer: Flight 93 Site’s Champions Pass Baton To Future Tellers Of ‘Monumental’ Story. Office Of Insular Affairs • Virgin Islands Consortium (VIR): Dept. Of Interior Expedites Release Of $223 Million In Advance Payments To USVI In Wake Of Irma. • ABC: More Than 2,000 Americans Evacuated From Caribbean. • Associated Press: Trump: North Korea Sanctions “Nothing Compared To What Will Have To Happen.” • Matangi Tonga: Commonwealth Supports Universal Health Coverage For Pacific Islands. • Radio New Zealand: Pacific Leadership Focussed On Improving Lives Of Islanders. US Geological Survey • U.S. News & World Report: Tribes Plan Protest To Change Yellowstone Valley, Peak Names. • Additional Reading. Top National News • USA Today: Trump To Travel To Florida Thursday To Survey Hurricane Damage. • Washington Examiner: GOP Senators To Introduce “Last-Ditch” ACA Repeal Measure Wednesday. • Reuters: Short: Trump May Not Tie Fate Of DREAMers To Wall Funding. • Washington Times: Media Analyses: Trump Seeking Deal With Democrats On Taxes. • New York Times: Median Household Income Up, Job Openings At Record High. Editorial Wrap-Up • New York Times. - “Senators In Search Of A Foreign Policy.” - “How Not To Sustain Prosperity.” • Washington Post. - “The Supreme Court Should Strike Down Wisconsin’s Gerrymandering.” - “Tom Price Decides He Doesn’t Want Medicare To Save Money.” - “Metro Gets A Sudden Lifeline.” • Wall Street Journal. - “How Florida Saved Taxpayers” - “The Al Franken Standard.” - “Joseph Rago And A Disease Called Sarcoidosis.” Big Picture • Headlines From Today’s Front Pages. Washington Schedule • Today’s Events In Washington. Last Laughs • Late Night Political Humor. DOI In The News Zinke Directs More Aggressive Approach To Prevent Wildfires. The AP (9/12, Daly) reports that Interior Secretary Ryan Zinke on Tuesday “directed all land managers and park superintendents to be more aggressive in cutting down small trees and underbrush to prevent wildfires as the smoke-choked West faces one of the worst fire seasons in a decade.” In a memo, Zinke said the Trump Administration will “take a new approach and work proactively to prevent fires ‘through aggressive and scientific fuels reduction management’ to save lives, homes and wildlife habitat.” According to the article, “Zinke’s memo did not call for new spending, but he said federal officials ‘must be innovative’ and use all tools available to prevent and fight fires.” The Washington Times (9/12, Richardson) reports that Zinke in a statement, “This Administration will take a serious turn from the past and will proactively work to prevent forest fires through aggressive and scientific fuels reduction management to save lives, homes, and wildlife habitat.” The move was welcomed by “Western Republicans frustrated with the ‘let it burn’ approach.” They said “Zinke’s more aggressive directive on forest management was long overdue.” Coverage by the AP was also picked up by the Washington Post (9/12, Daly), the Brownsville (TX) Herald (9/12, Daly), the Minneapolis Star Tribune (9/5, Daly), the New Canaan (CT) News (9/12, Daly), the New Haven (CT) Register (9/12, Daly), Philly (PA) (9/12, Daly), the Washington Times (9/12, Daly), the Daily Mail (9/12, Daly), the Japan Times (9/12), and KHQ-TV Spokane (WA) Spokane, WA (9/12). Additional coverage was provided by the Deseret (UT) News (9/12, O'Donoghue). FEMA Approves Grants To Help With Strawberry Fire. The Great Falls (MT) Tribune (9/12) reports Montana Sen. Jon Tester (D) and Gov. Steve Bullock said Tuesday that “the Strawberry Fire in northcentral Montana has been approved to receive disaster aid” from a Fire Management Assistance Grant that “makes FEMA funding available to pay 75 percent of the state’s eligible firefighting costs.” The Tribune notes that “Bullock met with FEMA Administrator Brock Long last week to ask that grant requests be expedited and approved and to help Montanans impacted by the fires.” The Los Angeles Times (9/12, Etehad) provides in-depth coverage of the wildfires. Interior’s ‘Unusual’ Transfer Of Senior Executives Spurs Official Probe. The Washington Post (9/12, Davidson) reports that “in response to a request from eight Democrats on the Senate Energy and Natural Resources Committee,” the Interior Department’s Office of Inspector General “is examining the extraordinary and politically suspect reassignment of dozens of Senior Executive Service (SES) members.” The Democrats’ request came “after one Interior senior executive, Joel Clement, wrote a Washington Post article that said he was reassigned and ‘retaliated against for speaking out publicly about the dangers that climate change poses to Alaska Native communities.’” On Monday, Sen. Maria Cantwell, one the Democrats seeking probe “welcomed the review, saying ‘there are serious questions that need to be answered about the treatment of public servants who have dedicated their careers to the Department of the Interior.’” Survey: Wildlife Activities Big Business. The Grand Junction (CO) Business Times (9/12) reports that the Interior Department “released the preliminary results of the latest Fish and Wildlife Service survey tracking participation and spending in wildlife-related activities. The agency has conducted the survey nearly every five years since 1955.” The survey said that “Americans spent more than $150 billion participating in fishing, hunting and other wildlife-related activities in 2016.” For 2016, the survey “found 101.6 million Americans – about 40 percent of the population aged 16 years and older – participated in wildlife-related activities.” Sally Jewell Defends Interior Department Legacy. In an interview with the High Country (CO) News (9/12, Calvert), former Interior Secretary Sally Jewell defended the policies of the Obama Administration, which included undertaking “a ‘forward-looking reform agenda,’ emphasizing science-based land and water conservation, renewable energy development on public land, and better relations with Native American tribal nations.” Among the achievements that Jewell touted were building “a strong nation-to-nation relationship with Indian Country across the board” and “engaging the next generation broadly” on public land issues. No, President Trump, National Monuments Are Not A ‘Land Grab’. In an op-ed for The Hill (9/12, McGinty), Katie McGinty, the former chairwoman of the White House Council on Environmental Quality, disputes the characterization of recent national monument designations as a “federal land grab” by the Trump Administration. McGinty points out that “national monument designations can only be had for properties already part of federal landholdings.” She also notes that “any use allowed on the property before a designation – like grazing and logging for example – is retained.” Want To Put ‘America First’? Protect Our Public Lands For The Millions Of Americans Who Rely On Them. In an op-ed for the Independent Journal Review (9/12, Barron), Chris Barron, President of Right Turn Strategies and the former organizer of LGBT for Trump, writes that “in the coming battles over the future of our public lands, President Trump should listen to those around him who both understand the importance of our heritage and who share the President’s America First agenda.” One person is his son Donald Trump, Jr., who has asserted, “We have to keep public lands public.” Barron concludes that “instead of bowing to the will of those who oppose his vision and worked against his election, President Trump should continue to listen to the voices of outdoorsmen like Don Jr. and protect public lands for the tens of millions of working class Americans who rely on them.” Bureau Of Indian Affairs Ongoing Problems Land Tribal Oversight Agencies On GAO ‘High-risk’ List. Cronkite News (9/12, Clair) reports that “federal agencies that oversee tribal schools, lands and health care still suffer from weak leadership, a lack of oversight and mismanaged resources, despite nearly a decade of prodding from the Government Accountability Office.” The article says “that lack of progress landed the Bureau of Indian Affairs, the Bureau of Indian Education and Indian Health Services on the GAO’s ‘highrisk list’ earlier this year, and will be the focus of a Senate hearing Wednesday on the agencies’ ongoing shortcomings.” The article notes that “a lack of sufficient funding is one area out of the control of the agencies that was cited by the GAO, which also said ‘sustained congressional attention’ to the agencies would help bring about change.” However, “other problems – including a lack of leadership and cumbersome bureaucracy that has stifled tribal economic development – were laid directly at the feet of the agencies.” New Agreement With Feds Sparks Nooksack Election: ‘We’ve Got A Lot Riding On This’. The Seattle Times (9/12, Shapiro) reports that “the Nooksack tribe may finally be on the verge of solving a long-running, disenrollment dispute that sparkedlawsuits, a showdown with the federal government and an order to close the tribe’s last remaining casino.” According to the article, “a memorandum of agreement between Nooksack Chairman Bob Kelly and Michael Black, the U.S. Department of the Interior’s acting assistant secretary for Indian affairs, calls for temporarily restoring the tribe’s federal funding and a special election Dec. 2 for four council seats.” The agreement “paved the way for the reopening, over the weekend, of the Northwood Casino in Lynden.” Feds Allow Nooksack Tribe To Reopen Northwood Casino. The AP (9/12) reports that “the Nooksack Tribe has reopened its casino north of Bellingham.” The Nooksack Northwood Casino “reopened Saturday with limited operations after a June closure ordered by the National Indian Gaming Commission.” A commission spokeswoman “said Monday the tribal chairman and the commission had reached a settlement, but details weren’t immediately available.” US Judge Cites Tribal Sovereignty In Dismissing Coal Lawsuit. The AP (9/12, Bryan) reports that “a U.S. district judge cited tribal sovereignty in dismissing a lawsuit aimed at shutting down a coal-fired power plant and adjacent mine near the Arizona-New Mexico border.” The lawsuit by environmental groups was “targeting the 2015 approval by the U.S. government of a lease extension for the Navajo Mine and the Four Corners Power Plant.” The groups claimed that the Interior Department and other agencies “did not consider clean-energy alternatives or possible effects on endangered species in the region when they approved the 25-year extension.” In the order issued Monday, Judge Steven Logan of Phoenix “tossed the case since the mine is owned by a corporation created by the Navajo Nation, which makes it immune from such legal challenges.” Logan “said the case could not move forward without the mine as a defendant.” Bureau Of Indian Education Education Secretary Betsy DeVos Tells Casper Audience That Country ‘Must’ Rethink Schools. The Casper (WY) Star-Tribune (9/12, Klamann) reports that Education Secretary Betsy DeVos, speaking Tuesday in Casper, Wyoming as she kicked off a six-state “Rethink Schools” back-to-school tour, praised local school choice policies “while urging nationwide educators to move away from what she called an outdated model for educating students.” The paper quotes DeVos saying, “It’s time to rethink schools. For far too many kids, this year’s first day back to school looks and feels a lot like last year’s first day back to school. And the year before that, and the generation before that, and the generation before that.” U.S. News & World Report (9/12, Camera) reports that DeVos “slammed the established ‘education system’ Tuesday,” saying the tour’s purpose is to “highlight innovative ways educators are meeting the needs of students in K-12 and higher education.” DeVos will travel to Wyoming, Colorado, Nebraska, Kansas, Missouri, and Indiana, visiting “a variety of schools, including traditional and charter public schools, religious and other private schools, home school cooperatives, traditional four-year colleges and universities, as well as community colleges and other career-focused certification programs.” This piece reports that Woods Learning Center uses “a ‘teacherpowered’ model that does not employ a principal. Students enrolled in the school move through lessons at their own pace using a competency-based learning model.” The Billings (MT) Gazette (9/12, Hoffman) reports that DeVos’ second stop of the day was at St. Stephens Indian School in Arapahoe, Wyoming. Superintendent Frank No Runner told DeVos that “students still carry historical trauma from the boarding school era and other abuses,” but stressed that “that’s not an excuse for low student achievement.” DeVos “made no sweeping statements about the schools or...policies,” but “consistently praised mentions of parent and student involvement in school planning.” Additional coverage was provided by Politico Morning Education (9/12, Leonor). Bureau Of Land Management Tri-County Fire Safe To Expand Fuel Reduction Work With New Federal Grant. KTVH-TV Helena, MT (9/12, Ambarian) reports that the nonprofit Tri-County Fire Safe Working Group will be “able to help more homeowners in Lewis and Clark, Broadwater and Jefferson Counties protect themselves from wildfires, thanks to an additional federal grant.” The group has received $50,000 from the Bureau of Land Management. The award “comes after the group got a larger grant from the BLM earlier this year.” Chaco Canyon Needs Protection. In an editorial, the Santa Fe New Mexican (9/12) warns that leasing land near Chaco Culture National Historical Park “could have devastating consequences for New Mexico’s cultural treasures.” The paper asserts that “until it is better understood what drilling for oil and gas — including the use of the fracking process — might do to the irreplaceable archaeology of Chaco Canyon, these leases should not go forward.” It concludes that if the Trump Administration “does not agree, then tribes, activists and all concerned people will have to fight this.” Bureau Of Reclamation Bureau Of Reclamation Seeks Help With Colorado River Data Flow. FedScoop (9/12, Chappellet-Lanier) reports that the Bureau of Reclamation “would like to better handle the streams of data that describe and support the Colorado River Basin, so the bureau and its partners have taken to Challenge.gov to search for innovative data visualization solutions.” Participants in the “Colorado River Basin Data Visualization Challenge” should take historical, current and projected data on weather, climate conditions, streamflows and more and then develop data visualization approaches that will “improve data exploration, analysis, interpretation, and communication.” The agency is “laying $60,000 on the line for the competition — individual awards will range from $5,000 to $20,000 for successful solutions, the Bureau said.” Watchdog Group Blasts U.S. Bureau Of Reclamation. The Central Valley (CA) Business Times (9/11, Reclamation) reports that “three recent federal investigations have found the U.S. Bureau of Reclamation misspending more than $100 million in funds but the agency has not committed to significant reforms nor to punishing any responsible officials, charges the environmental watchdog organization Public Employees for Environmental Responsibility.” PEER Senior Counsel Paula Dinerstein said, “At Reclamation, even massive misappropriation means never having to say you are sorry. Reclamation’s posture of denying wrongdoing but promising not to do it again merely suggests it will seek out other shady ruses rather than genuinely reform its grant process.” The group has “been pressing both Reclamation’s parent agency, the Department of Interior, as well as the U.S. Congress to step in, but so far there has been no action, it says.” Who’s Watching Out For Taxpayers On Twin Tunnels? In an editorial, the Chico (CA) Enterprise-Record (9/12) calls the “audit by the federal government about the twin tunnels,” released last week, “very damning.” But the paper expects that “the state will move doggedly ahead, insisting it has done nothing wrong; Brown will assiduously avoid any questions or give any speeches about the twin tunnels; the state will reimburse the federal government with taxpayer money; the federal government will ease up because the No. 2 person in the federal Department of the Interior under Donald Trump used to work as a lobbyist at the huge Westlands Water District in the San Joaquin Valley; and LaMalfa and other politicians will back off as soon as the heat subsides because, well, those water districts in the bottom half of the state make very nice campaign contributions.” Fish And Wildlife Service Bills Would Remove Protections For Gray Wolf Population. The Detroit News (9/12, Burke) reports that “a U.S. House committee is expected to vote Wednesday to advance two bills that would remove the gray wolf in Michigan, Minnesota and Wisconsin from the federal endangered species list.” The Sportsmen Heritage and Recreational Enhancement Act “in part would ‘take wolf recovery and delisting out of the hands of the courts and will return wolf management and conservation to the states, where they belong,’ said Anna M. Seidman, director of government affairs and director of litigation for the Safari Club International.” Seidman testified at a Tuesday hearing before the Federal Lands Subcommittee of the House Natural Resources Committee hearing on the bill. The Detroit Free Press (9/12, Spangler) reports that during the hearing, “Democrats voiced deep concerns about other portions of the legislation, including measures that would make it easier for people to buy firearm silencers and put more of a legal and financial burden on law enforcement when stopping a vehicle suspected of potentially transporting a firearm across state lines.” According to the article, “with so much before Congress between now and the end of the year, it could be caught in a logjam and Democratic members of the U.S. House, while outnumbered with Republicans in the majority, will likely try to do all they can to slow it, especially because of the firearm portions of the bill.” Wildlife Managers Seek To Regain Authority To Kill Problem Cormorants. The Minneapolis Star Tribune (9/13, Kennedy) reports that the U.S. Fish and Wildlife Service is “about to take its first major step to regain the authority to kill problematic cormorants via depredation permits, a move that could reopen site-specific shooting of the aquatic birds in Minnesota and other Great Lakes states by next spring.” Tom Cooper, regional chief of the Fish and Wildlife Service’s Migratory Bird Program in Bloomington, “said the agency will publish a draft environmental assessment within weeks for a plan that would provide more accountability and a new, big-picture look at cormorant population effects before fish farmers, lakeshore property owners, bait suppliers and others can receive authority to kill cormorants.” He “said the first step in regaining permitting authority deals with depredation related to human health and safety, damage to aquaculture, damage to private property and concern for nesting species crowded out by cormorants.” National Bison Range Roundup Postponed Amid Montana Smoke. The AP (9/13) reports that “wildfire smoke and the danger of new fires have prompted federal wildlife managers to postpone the annual roundup at the National Bison Range.” The U.S. Fish and Wildlife Service “said Tuesday the roundup was scheduled for Oct. 2 and 3.” No new date has been set. Tennessee Hasn’t Updated Endangered Species List In 16 Years. The AP (9/12) reports that “an audit has found that the Tennessee Wildlife Resources Agency has not updated the state’s endangered species list in 16 years, even though it is required to do so every two years.” Comptroller Justin Wilson’s office “said in the audit released Tuesday that the state is also running afoul of an agreement with the U.S. Fish and Wildlife Service to annually submit additions and deletions from the list of threatened species.” The audit “finds that the failure to update the list since 2000 could put more species at risk of becoming extinct and could cause Tennessee to lose federal grants.” According to the article, “the head of the state wildlife agency’s biodiversity division was unaware of the reporting requirement until 2013, and officials are in the process of creating a new endangered species list.” Man Caught In Probe Of Lake Trout Trade On Lake Michigan. MLive (MI) (9/12) reports that “a Ludington fish dealer who bought and sold Lake Michigan lake trout that was illegally harvested by a tribal fisherman has agreed to plead guilty to a felony charge of false labeling of fish.” The charge is “linked to a three-year, undercover investigation by the U.S. Fish and Wildlife Service, an effort to protect the sought-after game fish whose population is maintained primarily by stocking.” It’s Time To Limit Abusive, Taxpayer-Fun. In a piece for the Daily Caller (9/12, Mooney), Kevin Mooney writes that “instead of allowing environmental groups with hundreds of millions of dollars in assets to file an endless chain of lawsuits at taxpayer expense, Congress should move decisively to end abusive practices that subtract from local conservation efforts, according to recent testimony delivered before House committees.” Mooney supports “reforming both the Endangered Species Act (ESA) and the Equal Access to Justice Act (EAJA).” National Park Service Hurricane Irma: Smoky Mountains ‘Minimally’ Damaged. The Knoxville (TN) News Sentinel (9/12, Ahillen, Hickman) reports that “National Park Service personnel have begun assessing the damage from the hurricane and reopening roads and facilities around the Great Smoky Mountains National Park on Tuesday morning.” Park spokeswoman Dana Soehn said, “Overall, the park was minimally impacted by winds and rain associated with Hurricane Irma. Crews are still clearing downed trees and limbs along Newfound Gap Road and Clingmans Dome Road, but most lower elevation roads have reopened.” Charleston’s Fort Sumter Still 3 Feet Deep In Water From Tropical Storm Irma. The Charleston (SC) Post and Courier (9/12, Kropf) reports that Fort Sumter “remains filled with 3 feet of water from Tropical Storm Irma’s rains and tidal surge, the National Park Service said Tuesday afternoon.” According to the article, “there was some damage to the fort’s docking pier and to some of the interior facilities but no artifacts appear to be harmed.” Dawn H. Davis, public affairs officer for Fort Sumter National Monument and the Charles Pinckney National Historical Site, said that “it will be several days before the fort will be open to the public.” Blue Ridge Parkway Closed In NC As Irma Remnants Hit Mountains. WNCN-TV Raleigh-Durham, NC (9/12) reports that “as the remnants of Hurricane Irma hit western North Carolina many downed trees meant the closure of the Blue Ridge Parkway, officials said.” The National Park Service “Tweeted several photos of trees blocking the parkway.” The Petersen House, Where Lincoln Died, Will Close For Six Months In December. The Washington Post (9/12, Ruane) reports that “Washington’s Petersen House, where Abraham Lincoln died after being shot in Ford’s Theatre, will close Dec. 25 for six months of historic preservation work and upgrades, the National Park Service and the Ford’s Theatre Society said Tuesday.” The project will “replace the existing fire suppression system, update historic furnishings and wallpaper, and perform general preservation and maintenance, the groups said in a statement.” The house is “expected to reopen in June, 2018.” Eclipse Helps Make Past Month Busiest August Ever For Yellowstone. The Cody (WY) Enterprise (9/12) reports that Yellowstone National Park “had its busiest August ever, attracting 916,166 visits last month.” According to the article, “the nearly 9 percent increase over the same period in 2016 was partly attributable to the solar eclipse of Aug. 21.” Additional coverage was provided by the AP (9/12). ‘It’s Not Over Yet’. The Flathead (MT) Beacon (9/12, Franz) reports that “while many thought recordshattering visitation” at Glacier National Park “would be how history books remember 2017, it will likely be overshadowed by the fires that brought that historic season to an early end.” Superintendent Jeff Mow at a packed public meeting in West Glacier last week, said, “The summer of 2017 was already a remarkable one in so many ways. It’s been a long summer, and it’s not over yet.” According to the article, “while many in attendance at the Sept. 6 public meeting wanted to know what was next for the three major fires in the park, many also wanted to know what would happen with the remains of Sperry Chalet and what was being done to protect Lake McDonald Lodge, both beloved structures built in the 1910s.” Mow “said that as soon as it’s safe, the park will conduct a structural assessment on Sperry Chalet and record what is left of the National Historic Landmark.” He added that Interior Secretary Ryan Zinke “called for a full investigation into how the chalet burned.” Feds Seek Forfeiture Of Money Seized In Yellowstone National Park. Yellowstone Insider (9/12, Reichard) reports that “federal authorities are asking to keep over $20,000 in money seized earlier this summer in Yellowstone National Park.” The U.S. Attorney’s Office for the District of Wyoming “filed a civil complaint last Wednesday seeking said forfeiture.” According to Assistant U.S. Attorney Stephanie Hambrick, “who presented the complaint, the cash should be forfeited because it was ‘furnished and intended to be furnished in exchange for a controlled substance.’” Additional coverage was provided by the Powell (WY) Tribune (9/12, Baker). Carver Bust Back On Display At Monument. The Joplin (MO) Globe (9/12, Kagubare) reports that a bust of George Washington Carver was reinstalled last Friday at George Washington Carver National Monument “after a twomonth restoration.” According to the article, “the bust’s upgrade was intended to resemble the original sculpture.” The project cost the park $6,500. MasterChef Jr. Winner Appears At Upcoming Festival. The Atlanta Journal-Constitution (9/12, Brett) reports that Family Day/Culture Festwill be held Sept. 23 at and around the Martin Luther King Jr. National Historic Site. National Park Service Superintendent Judy Forte said in a statement, “Visitors from across the country and the world are invited to spend a day of fun, educational, enriching and participatory experiences.” The festival is “a joint venture of the National Black Arts Festival, National Park Service, Historic District Development Corporation and Sweet Auburn Works, and sponsored by Georgia Pacific.” Windstorm Damages Buildings, Vehicles At Death Valley. The Las Vegas Review-Journal (9/12, Brean) reports that “powerful wind from an isolated thunderstorm tore the roof off a historic building and caused other damage in Death Valley National Park on Monday.” According to the article, “the sudden microburst struck Stovepipe Wells and the park’s administrative and staff housing area at Cow Creek, blowing the windows out of four employee-owned vehicles and damaging at least six structures, including an office building dating back to the Civilian Conservation Corps era of the 1930s.” The article says that “after the winds subsided, park rangers discovered the missing roof of the historic building and covered computers and office equipment inside to protect them from the rain.” Additional coverage was provided by the Los Angeles Times (9/12, Tchekmedyian). Smokejumpers Mop Up Potato Fire On Santa Cruz Island. The Santa Barbara (CA) Independent (9/12, Hamm) reports that “U.S. Forest Service smokejumpers — three out of Redding and one from Alaska — are now mopping up the Potato Fire on Santa Cruz Island, inland from Potato Harbor.” The article noes that “this is the first time smokejumpers have battled a fire at Channel Islands National Park, according to a statement from the National Park Service.” Superintendent Russell Galipeau added, ?We greatly appreciate the rapid response by the U.S. Forest Service smokejumpers to suppress this remote island ?re in its early phases, especially given the many wild?res currently burning in the West.? Concessioner Selected For Boat Services At Grand Teton?s Jenny Lake. The Oil City Wyoming (9/12) reports that National Park Service Intermountain Regional Director Sue Masica ?announced the selection of Jenny Lake Boating, Inc. to provide boat shuttle service, scenic interpretive boat tours, and non-motorized boat rentals at Jenny Lake in Grand Teton National Park.? The new ten-year concession contract is expected to start January 1, 2018. Chip Minemyer: Flight 93 Site?s Champions Pass Baton To Future Tellers Of ?Monumental? Story. In a piece of the Allentown (PA) Morning Call (9/13, Minemyer), Chip Minemyer, editor of The Tribune-Democrat in Johnstown, writes that during the anniversary activities held Monday at the Flight 93 National Memorial near Shanksville, park leaders recognized the efforts behind a ?$62 million project that will be complete when the Tower of Voices is standing near the park entrance next September.? This year?s activities included the ?soundbreaking? on Sunday for the Tower of Voices near the park entrance on Route 30. Office Of Insular Affairs Dept. Of Interior Expedites Release Of $223 Million In Advance Payments To USVI In Wake Of Irma. The Virgin Islands Consortium (VIR) (9/12) reports that Interior Secretary Ryan Zinke ?announced on Friday that Interior will be expediting the rum-cover over advance payment of $223,925,000 for estimated FY 2018 collections in the U.S. Virgin Islands.? The move follows President Trump?s ?Thursday approval and signing of a disaster declaration for the territory, which unlocks emergency federal funding for those affected by Hurricane Irma.? Zinke said, ?These funds will be critical to operations in the USVI as the Governor and emergency teams work to recover from the impacts of Hurricane Irma. The people of the U.S.VI will need all the support they can get.? Additional coverage was provided by the Saipan (MNP) Tribune Trump To Visit U. 8. Virgin Islands In Wake Of Irma; More Police, National Guard, Arrive On St. John. The Virgin Islands Consortium (VIR) (9/12) reports that President Donald will ?visit the U.S. Virgin Islands ?within the next six or seven days,? Governor Kenneth Mapp said during a press conference at Government House late Monday.? Mapp said he had a conversation with Trump, and Trump ?expressed his full support for the territory in providing disaster relief, following the calamitous state Hurricane Irma left St. Thomas and St. John in.? Additional coverage was provided by the Conde Nast Traveler (9/11, Carey) and WBUR-FM Boston (9/10, Dwyer). On The U.S. Virgin Islands, Anger And ResentmentAfter Irma. The Think Progress (9/12, CRUNDEN) reports that Interior Secretary Ryan Zinke ?applauded the White House for its efforts in the U.S. Virgin Islands speci?cally.? Zinke in a press release, ?The Department of the Interior actions in the USVI are part of our responsibility for federal policy related to the U.S. territories. We commend the cooperative actions of the White House, USVI government, FEMA and the whole federal family to provide urgent relief to the Virgin Islands.? More Than 2,000 Americans Evacuated From Caribbean. ABC World News Tonight?n (9/12, story 3, 1:35, Muir) reported that ?more than 2,000 Americans? who were caught in the Caribbean when Hurricane Irma hit ?have now made it out onto US military planes and on private cruise ships, as conditions on those islands continue to deteriorate." The CBS Evening News? (9/12, story 3, 3:00, Mason) reported that the Puerto Rico National Guard evacuated an estimated 300 to 400 Americans from St. Martin. CBS said that while ?all the major airports in Florida have are operating at about half the normal capacity, and there is still a huge backlog of travelers. More than 17,000 ?ights in the US and the Caribbean were canceled because of Irma.? Trump: North Korea Sanctions ?Nothing Compared To What Will Have To Happen.? The (9/12, Pennington) reports President Trump said that the new UN sanctions on North Korea ?are nothing compared to what ultimately will have to happen? to stop its nuclear program. The ban on textile exports and the crude oil import cap ?fell short of Washington's goals: a potentially crippling ban on oil imports and freezing the international assets of Kim and his government." Trump called the sanctions ?just another very small step not a big deal.? Meanwhile, Susan Thornton, America?s top diplomat for East Asia, told the House Foreign Affairs Committee, ?The success of the pressure strategy will depend on cooperation from international partners, especially Beijing.? Reuters (9/12, Rampton, reports Trump said, don't know if [the sanctions vote] has any impact.? US Ambassador to the United Nations Nikki Haley said, in Reuters? word, the new sanctions could cost North Korea ?an additional $500 million or more in annual revenue.? She added, ?If North Korea continues its dangerous path, we will continue with further pressure.? Mnuchin Warns Of Additional Measures Against China If It Doesn?t Abide By Sanctions. Bloomberg News (9/12, Mohsin, John) reports Treasury Secretary Mnuchin, during an event at Delivering Alpha conference in New York, warned that if China doesn?t follow the new UN sanctions against North Korea, ?we will put additional sanctions on them and prevent them from accessing the US. and international dollar system - and that's quite meaningful." At a House Foreign Affairs Committee hearing, Chairman Ed Royce called for targeting, in Bloomberg's words, ?major Chinese banks, including Agricultural Bank of China Ltd. and China Merchants Bank Co., for aiding Kim?s regime.? Additionally, Assistant Treasury Secretary Marshall Billingslea said in prepared remarks that North Korean bank representatives ?operate in Russia in ?agrant disregard of the very resolutions adopted by Russia at the The Washington Free Beacon (9/12, Johnson) reports Billingslea said, ?Unfortunately, I cannot tell the committee today that we've seen suf?cient evidence of China?s willingness to truly shutdown North Korea?s revenue flows, to expunge North Korean illicit actors from its banking system, or to expel the various North Korean middlemen and brokers who are continuing to establish webs of front companies.? The Wall Street Journal (9/12, Talley) reports Billingslea said that recent sanctions against Chinese companies sent a ?message to China,? and that China ?urgently needs to take demonstrable public steps to eliminate North Korea?s trade and ?nancial access? to avoid future measures. Reuters (9/12, Rampton, reports that, when asked about cutting off Chinese banks from the US ?nancial system, White House spokeswoman Sarah Sanders said, ?All options are on the table.? North Korea Condemns New Sanctions. The Washington Post 12, Lee) reports North Korea ?condemned? the new UN sanctions and ?doubled down on its warning that" for its role in economically pressuring the country, ?the United States would ?suffer the greatest pain? it has ever experienced.? North Korean Ambassador Han Tae Song said Washington ?fabricated the most vicious sanction resolution.? Greg Palkot reported on Fox News? Special Reportic (9/12) that as the ?world is trying to head off a conflict with North Korea,? the UN Security Council on Monday approved a new set of sanctions against Kim Jong-un?s regime. Fox showed Defense Secretary Mattis saying, ?These are the most severe sanctions yet. We will see what choices the North Koreans make.? According to Palkot, North Korea?s ?early choice? is ?defiance.? Fox showed Han Tae Song, North Korea?s Ambassador to the UN, saying: ?The DPRK is ready to use in the form of ultimate means. The ?rst countermeasures by DPRK will make the US suffer the greatest pain it?s ever experienced in its history.? From Pyongyang, Will Ripley reported on Situation Room it (9/12) that North Korea?s government is condemning the new sanctions ?in the strongest possible terms, and they are threatening to redouble their efforts to develop weapons of mass destruction." Ripley said that in his 15 trips to North Korea, he hasn?t seen any signi?cant impact from previous sanctions. He said in his travels in the country, ?the people who we are allowed to see? are ?not starving or at least they don?t appear to be.? He said he?s seen more cell phones, more products on store shelves, and more cars in the streets. Ripley added that the North?s economy actually grew nearly four percent last year ?despite this mounting economic pressure. But of course, sanctions do take a long time to kick in.? South Korea To Establish ?Decapitation Unit.? The New York Times 12, Choe) reports South Korea, seeking ?to keep the North on edge and nervous about the consequences of further developing its nuclear arsenal,? is establishing a brigade-size special forces ?decapitation unit,? the Spartan 3000, to target the North?s leadership. The publicly announced move is part of an effort to deter Kim Jong-un from hostilities. Additionally, ?the South?s increasingly aggressive posture is meant to help push North Korea into accepting President Moon Jae-in?s offer of talks.? However, such a measure can be used preemptiver and raise questions about whether South Korea and the United States ?are laying the groundwork to kill or incapacitate Mr. Kim and his top aides before they can even order an attack.? Additionally, ?many say they doubt that the threat is enough to deter Mr. Kim? and that only possible ?nuclear retaliation will suffice.? US, South Korea Conducting Live Fire Exercise. Meanwhile, on Fox News? Special Report?u Greg Palkot reported that the US and South Korea are ?prepar[ing] for the military option" against North Korea, with US marines joining South Korean forces in a live ?re exercise. Palkot said the marines he spoke with ?told us these exercises are purely defensive in nature.? Palkot said that while those marines ?don?t pay much attention to the offense of words and actions of North Korea, many US of?cials do, no doubt a reason why the marines are out there." Commonwealth Supports Universal Health Coverage For Pacific Islands. Matangi Tonga (9/12) reports that ?an agreement to achieve universal health coverage and address non-communicable diseases in the Paci?c region was signed by the Commonwealth Secretariat and the Paci?c Community (SPC) on 8 September in Apia, Samoa.? The Memorandum of Understanding ?means both parties will work together using their resources and networks for health protection and promotion in the region.? Paci?c Leadership Focussed 0n Improving Lives Of Islanders. Wild (9/11) reports that New Zealand?s Foreign Minister Gerry Brownlee ?says Paci?c leaders are determined to develop the economic potential of each of their island countries.? Brownlee ?made this comment after attending the Paci?c Islands Forum leaders summit in Apia, where he was standing in for New Zealand?s prime minister Bill English.? Brownlee said ?that the Paci?c Islands? leadership is well focussed on interacting with other countries to improve living standards for their own people.? US Geological Survey Tribes Plan Protest To Change Yellowstone Valley, Peak Names. The (9/12, Gruver) reports that ?two tribes plan to demonstrate in favor of renaming a valley and a mountain in Yellowstone National Park, places they say are associated with one man who advocated slaughter of Native Americans and another who carried it out.? Leaders of the Blackfoot Confederacy and Great Sioux Nation will ?gather Saturday at Yellowstone?s North Entrance near Gardiner, Montana, tribal of?cials said Tuesday.? The tribes aim ?to change the name of Hayden Valley, a subalpine valley just north of Yellowstone Lake, to Buffalo Nations Valley." They also seek ?to change the name of Mount Doane, a 10,550-foot (3,216-meter) peak ?ve miles east of the lake, to First People's Mountain.? The US. Geological Survey's Board on Geographic Names has ?received several emails on the issue but no of?cial proposal to change the names of Hayden Valley or Doane Mountain, Geological Survey officials said.? Additional Reading. 0 Scientists Say Damage To Florida ?5 Coral Reef Has Made The State More Vulnerable To Storm Surges. Washington Post (9/12, Harvey) 0 Using Data Analytics To Make Chicago ?5 Beach Water Safer. Government Tech noloav (9/12, Thornton) ?Yikes, This Is Bad Press?: Internal Emails Show Federal Employees Asking Why A Climate Scientist?s Meeting With Mark Zuckerberg Was Canceled. Motherboard 12, Emerson) 0 For Charleston, Chainsaws, Muck And Mosquitoes Come With The Sun In Irma?s Aftermath. The Charleston (SC) Post and Courier (9/12, Smith) 0 Farmers, Beekeepers Put Aside Differences To Aid Bees. Salem (OR) Capital Press (9/12, Gunderson) 0 32 Animal Conservationists Nominated For 2018 Indianapolis Prize. WXIN-TV Indianapolis (9/12) 0 Small Earthquake Recorded ln NW Oklahoma. KWTV-TV Oklahoma City 12) Top National News Trump To Travel To Florida Thursday To Survey Hurricane Damage. USA Today (9/12, Jackson) reports the White House announced that President Trump will travel to Florida on Thursday to survey the damage from Hurricane Irma. Press secretary Sarah Huckabee Sanders told reporters, ?The president and the entire administration continue to monitor the situation in Puerto Rico, the United States Virgin Islands, Florida, Texas and all areas affected by Hurricanes Irma and Harvey.? She also said that ?details of the trip including the exact location are still being worked out.? The Hill (9/12, Fabian), however, reports that the FAA ?posted a travel advisory Tuesday that covers Fort Myers, on Florida?s west coast,? which ?typically issued before the president travels to a destination in the Jim Acosta said on Situation Roomit ?We?re hearing through our sources that it appears at this point that [the President] will be in the Ft. Myers area, that part of southwest Florida that was so hard hit. This will obviously be another test for the President when he arrives on the ground down there.? Wit (9/12, lead story, 3:10, Holt) and the Win (9/12, lead story, 2:50, Mason) both brie?y mentioned the President?s trip in their lead stories, and (9/12) also reports brie?y on the announcement by Sanders. The White House also tells NBC Newsit (9/12, story 4, 2:40, Holt) that the President ?is looking into possibility, down the line, of making a trip [to the US Virgin Islands], but at a time when it won?t imperil those relief efforts.? The New York Post (9/12, Rachman, Fears) reports Virgin Islands Gov. Kenneth Mapp ?said late Monday night? that Trump is planning to visit ?within the next six or seven days.? On its front page, the Washington (9/12, A1, Faiola) likewise reports on Mapp said in a telephone interview that him Monday and was due to survey the Virgin Islands damage this week. He would ?nd, the governor said, an ef?cient response.? The Atlanta Journal?Constitution (9/12, Dupree) notes that ?this would be the second trip in recent weeks to an area hit hard by a tropical system; Mr. Trump made two trips to the Gulf Coast, stopping in Texas and Louisiana, to get a look at damage and recovery efforts after Hurricane Harvey.? The New York Post (9/12, Perez) similarly notes that the President, joined by First Lady Melania Trump, made two visits to Texas last month following Hurricane Harvey. ?My concern continues for all impacted by the hurricanes,? the first lady tweeted Tuesday. ?Will ?y to #Florida on Thursday @potus to survey the damages from #HurricaneIrma." Politico (9/12, Nelson) reports that shortly after Sanders? announcement, Stephanie Grisham, a spokeswoman for Melania Trump, tweeted, ?@?otus will travel to #Florida POTUS on Thurs to survey aftermath of #HurricaneIrma." Administration Earns ?Bipartisan Praise. The Washington Post 12, Nakamura) reports that ?facing off against a pair of historic storms,? the Trump Administration ?has earned bipartisan praise for coordinating the federal response with state and local of?cials, avoiding the type of catastrophe that marked the Bush administration's response to Katrina." While the pair of storms ?wreaked widespread destruction that will take years and billions of dollars to recover from,? the Post says that ?for a Trump administration whose first eight months has been marked by internecine squabbles and a lack of legislative accomplishments, the initial competence in managing the storms represented a relief and a rare chance to take credit." Overall, ?emergency management veterans said, Trump and his team deserve acknowledgment for getting through the ?rst phase of the crisis in a way that inspired public confidence.? Virgin Islands Delegate Stacey Plaskett said on Situation Room it (9/12) that Irma ?hit us almost direct impact while it was a Category 5. So St. Thomas and St. John have been tremendously affected by it. But I have to say we?ve had great support from FEMA, from the Department of Defense. Our governor has been working very closely with the federal government, along with our local emergency management agencies, ?rst to prepare for this and now in the aftermath.? NBC News? (9/12, story 4, 2:40, Holt) reported that a Coast Guard cutter loaded up with supplies traveled to St. Thomas on Tuesday. Also on board, TSA of?cers ?with the critical goal of getting airport back up and running.? Without mentioning the Trump Administration, the New York Times (9/12, A1, Fausset) reports on its front page that Hurricanes Harvey and Irma ?may have revealed a largely unnoticed truth often buried under the news of unfolding tragedy: The United States appears to be improving in the way it responds to hurricanes, at a time when climate scientists say the threats from such storms, fueled by warming oceans, are growing only more dire.? The Times says the 9/11 attacks ?revolutionized the way American government coordinated disaster response," and Hurricane Katrina ?stimulated a new and robust conversation about the power of natural disasters, and, more specifically, forced Americans to rethink the growing threats from ?oodwater." Politico Analysis: Democrats Refrain From Using Storms To Criticize Trump?s Climate Policies. Politico (9/12, Holden, Schor) reports Hurricanes Harvey and Irma have ?handed Democrats their most potent opportunity in half a decade to hammer Republicans on climate change with the massive storms giving tens of millions of Americans an up?front glimpse of the types of devastation the world faces if the warming planet spawns a surge in extreme weather. But instead, they?re mostly keeping quiet.? For now, Democrats ?appear to be heeding the warnings of Trump appointees? like EPA Administrator Pruitt, who said last week that it?s ?very, very insensitive to the people in Florida" to talk about climate change now. Sen. Sheldon Whitehouse (D-RI), ?said he doesn?t view the immediate aftermath of Harvey and Irma as heightening the sense of urgency to talk about global warming.? WPost Analysis: Trump?s Praise Of Coast Guard Gives Service ?Much-Needed? Boost. The Washington Post (9/12, Horton) reports that on Sunday, President Trump ?singled out the Coast Guard for its suddenly high pro?le amid dueling catastrophic hurricanes, ?rst during Harvey in Texas and now its early work providing assistance in the Florida region? in the wake of Hurricane Irma. The Post says Trump's ?praise for the Coast Guard is a much-needed con?dence boost for the service, which was roiled by early Trump administration proposals to cut $1.3 billion from its budget to help pay for the planned wall on the US-Mexico border.? USA Today (9/12, Moniuszko), however, reports that during Late Night on Monday, host Seth Meyers ?didn?t hold back while making fun of President Trump?s comments on the storm,? which praised the Coast Guard?s ?branding.? ?You?d think applauding the bravery of emergency responders like the Coast Guard would be one of the easiest things a president could do – but even that, it seems, is too much to ask of Donald Trump,” Myers said. “Branding? The Coast Guard doesn’t need to improve their brand, they’re the Coast Guard. They’re not Arby’s.” Daily Caller Analysis: Telethon Gets “Political.” In a report that was the lead story on Drudge Report Tuesday night, the Daily Caller (9/12) reports Stevie Wonder kicked off Tuesday’s “Hand In Hand” telethon to raise money for hurricane recovery “by getting political.” Wonder started the telethon, which was broadcast on every major network, by saying, “Anyone who believes that there’s no such thing as global warming must be blind or unintelligent.” GOP Senators To Introduce “Last-Ditch” ACA Repeal Measure Wednesday. The Washington Examiner (9/12, Ferrechio) reports that Sens. Lindsey Graham, Bill Cassidy, Dean Heller, and Ron Johnson “will introduce legislation Wednesday that would provide the Senate with a last-ditch opportunity to repeal and replace Obamacare before a Sept. 30 deadline.” The measure “would provide the $1.2 trillion for Obamacare’s Medicaid expansion and tax credits to states in an attempt to get the states to develop their own healthcare programs.” However, Politico (9/12, Everett, Haberkorn) describes Republicans as “paralyzed” over how to deal with healthcare, as they are “caught between a bipartisan effort to shore up Obamacare and the opportunity to take one last swing at their years-long promise to repeal the law.” While Graham, Cassidy, Heller and Johnson are “making a last gasp effort to repeal some of the law and replace it with a block grant program to the states,” Sen. Lamar Alexander is trying to work with Sen. Patty Murray “on a bill to shore up the insurance markets, but the two health committee leaders are already at odds over including looser regulations with the package.” Senate Majority Leader McConnell on Tuesday “refused to rule out votes on either a repeal or a fix of Obamacare, wary of picking sides among his caucus and aware that both proposals divide the Senate GOP.” Short: Trump May Not Tie Fate Of DREAMers To Wall Funding. In what Reuters (9/12, Oliphant, Cowan) describes as “the latest signal that the Republican president wants to see if he can engage Democrats as well as Republicans in trying to enact his agenda,” White House legislative director Marc Short told reporters at Christian Science Monitor breakfast Tuesday that President Trump “will not necessarily insist on including funding for a border wall with Mexico in legislation to address” the DACA program. Short said that while the President is still committed to his campaign promise to build the wall, “whether or not that is specifically part of a DACA package or a different legislative package, I am not going to prejudge here today. ... I don’t want to bind ourselves into a construct that makes reaching a conclusion on DACA impossible.” The Washington Times (9/12, Dinan) says Short “said the president is not backing off his determination to see barriers erected along the US-Mexico line, but said where that pops up in the legislative process remains to be seen.” USA Today (9/12, Przybyla) says the White House “appears to be clearing the way for a deal on protecting DREAMers, a move which could have bipartisan backing in Congress.” Senate Minority Leader Schumer “said it’s a ‘very, very good thing and good progress’ if Trump separates wall funding and DACA.” To Breitbart (9/12, Munro), Short “appeared to trade a quick DACA amnesty in exchange for a pro-business tax break – not a border wall or the wage-boosting, merit immigration RAISE Act – by declaring there is a ‘new season of bipartisanship’ after Trump reached out to Democrats following his decision to end Obama’s amnesty.” Politico (9/12, Kim, Restuccia) says the President is “sending public and private signals that he is ready to deal on legislation protecting young undocumented immigrants and won’t demand funding for a border wall.” In addition to Short’s comments, House Minority Leader Pelosi said Tuesday that “Trump told her in private that he would sign the Dream Act – a bill that would provide a path to permanent legal status for so-called Dreamers – and that he wants ‘some border security.’” According to Pelosi, she and Schumer “pressed Trump on protection for Dreamers during the Oval Office meeting last week.” Said Pelosi, “‘‘You pass it, I’ll sign it, I want some border stuff.’ That’s what he said. ... We always want border stuff, so that’s not a problem. Especially with all the technologies.” The Los Angeles Times (9/12, Mascaro, Bennett) reports that Pelosi said Democrats are seeking a vote on such legislation “as soon as this month.” Meanwhile, the New York Times (9/12, Alcindor) reports that while Republicans promised “quick work to shield young, undocumented immigrants from President Trump’s decision to end their federal protections, lawmakers have tied themselves in knots trying to figure out how to proceed – with only six months to find a way forward.” Rep. Mike Coffman “pulled back a petition he had initiated to force the House to take up legislation to protect so-called Dreamers,” a Senate Judiciary Committee hearing on the matter “was canceled this week,” and House Judiciary Committee Chairman Rep. Bob Goodlatte “said he would not move on any such legislation before he addressed criminal alien gangs and border security.” Author: Many Claims About DREAMers Are “PR-Style Hooey.” In an op-ed for the Washington Post (9/12), author Mickey Kaus argues that “a lot of what’s said about the dreamers is PR-style hooey.” While many were, as former President Obama said, “brought to this country by their parents,” the only requirement to “qualify as a protected dreamer under the various plans,” is that one must “have entered the country illegally before age 16.” Moreover, the claim that “dreamers are college-bound high school grads or military personnel” is “an exaggeration,” as the only requirement “is that the dreamer enroll in a high school course or an ‘alternative,’ including online courses and English-asa-second-language classes.” Kaus adds that “dreamers are not especially highly skilled” and “their median hourly wage is only $15.34, meaning that many are competing with hard-pressed lower-skilled Americans.” DHS Grants Waiver To Allow Replacement Of Border Fencing In California. The Washington Times (9/12, Dinan) reports that DHS on Tuesday issued a new waiver allowing the Administration “to breach environmental laws to replace border fencing in southern California – though officials said they still intend to try to comply with as much of the law as possible.” The move “will help Customs and Border Protection (CBP) replace several miles of fencing near the Calexico port of entry.” DHS said in a statement, “While the waiver eliminates DHS’s obligation to comply with various laws with respect to covered projects, the Department remains committed to environmental stewardship with respect to these projects.” Ryan Told Private Dinner Only One Member Wants Border Wall. Breitbart (9/12, Mason) reports in an exclusive that House Speaker Ryan told a private dinner earlier this year that “he thought only ‘one member’ wanted to build a wall across the entire USMexico border,” according to “multiple sources with direct knowledge of the comments,” including former Rep. Tom Tancredo. Tancredo told Breitbart, “Ryan told a group of Republicans he met with…that only one person wants a wall. ... Of course he means only one person in his entourage and of the leadership. ... I know several people in Congress who want a wall and I know that there are millions of Americans who want a wall.” Media Analyses: Trump Seeking Deal With Democrats On Taxes. The Washington Times (9/12, Miller) reports “President Trump is ready to” work with Democrats on tax reform, starting by hosting Democratic Sens. Heidi Heitkamp, Joe Donnelly, and Joe Manchin at a White House dinner. White House press secretary Sarah Huckabee Sanders said that the belief that Americans should have lower taxes “is a common goal that a lot of people want to come together on” and has, in the Times’ words, “widespread agreement on both sides of the aisle.” While Democrats and Republicans are “starkly divided” on tax cuts to the wealthiest Americans, Sanders said, “The president, I think, has demonstrated both in the business world and as president that he can make deals and that certainly is what he is planning to do.” Politico (9/12, Becker, Lorenzo) reports the dinner could be Trump’s “biggest step yet in reaching out to Democrats on” taxes and “a wake-up call to Republicans.” Manchin, Donnelly, and Heitkamp are willing to see if they can find “common ground on issues like retirement security and stopping the offshoring of jobs" and ?see little political downside? in seeking a deal all three are seeking reelection next year ?in states the president won handily.? In a statement, Donnelly said he wanted to work with Trump on using tax reform to prevent companies from moving jobs offshore. Heitkamp has said tax overhaul must protect working families and retirees. Manchin said he won?t support a tax overhaul that adds to the federal debt and opposes passing it using reconciliation, but ?broke with his party by saying he was open to cutting taxes for the wealthy and corporations in a revamped system.? The New York Post (9/12, Schultz, Moore) casts the dinner as a continuation of Trump?s ?push for bipartisanship.? Sen. John Thune, who was also invited to the dinner, said the White House is realizing ?it?s always easier to get things done if you have bipartisan cooperation.? Asked on Fox News? Fox Friendsiu (9/12) about President Trump?s deal with Democratic leaders, Sen. Joni Ernst said, don?t have anxiety over that. I think tax reform is a must do. And if we are in the chair steering that conversation, I?m okay with that.? Ernst added, don?t want to see another situation where we fail to get our policies across the ?nish line. If it takes a couple more moderate members of the Democratic Party joining us in this effort, I?m happy to have them along.? Rep. Jim Jordan said on Morning Joeiu ?The biggest focus for me is to make sure we do not function in a revenue-neutral world,? which he called ?Washington speak for the tax burden stays the same, we?re going to shift around who pays what. Under that scenario what always happens is the connected class, with all the high paid lobbyists, they get a good deal and middle class families get the shaft. So let?s just lower taxes for families and let?s construct a tax code that?s conducive for economic growth." Dinner Invitation May Expose Divide Among Democrats. The St. Louis Post-Dispatch (9/12, Rassch) reports that while Sens. Heidi Heitkamp, Joe Donnelly, and Joe Manchin ?are getting the open?door treatment from the Trump White House,? the other seven Democratic senators up for reelection in states won by President Trump last year are not, revealing ?a potential divide? among Democrats that ?could have a big effect on policy debates" and the 2018 mid-term elections, as ?Democrats who oppose a tax-reform bill that gets Democratic votes would be ripe 2018 campaign advertising targets in states won by Trump." The Post-Dispatch focuses on Sen. Claire McCaskill, who the President has cast as one of the ??obstructionists? he said are thwarting his agenda.? Pence To Travel To Indiana To Woo Donnelly. Politico 12, Nussbaum) reports that, in a effort to court Democratic Sen. Joe Donnelly on tax reform, Vice President Pence will travel to Indiana twice in September and once in October to ?turn up the heat on one of the most vulnerable Democrats heading into the 2018 midterms.? Divided GOP Presents Obstacles For Tax Overhaul. The Washington Post 12, Paletta, Sullivan, Snell) reports the White House and Republican leaders are seeking ?more agreement upfront? on a tax overhaul ?rather than risk late defections that doom the entire process,? in contrast to their strategy on repealing the ACA. However, the efforts ?are coming up against the same obstacle that has vexed President Trump all year: divided Republican lawmakers.? Negotiators have been consider scaling back their plan? even before presenting it to the rank and ?le. The White House and GOP congressional leaders haven?t agreed on which tax breaks to eliminate to pay for tax cuts. While Trump advisers ?are pressing to eliminate or reduce several popular tax deductions,? such as interest on corporate debt, state and local income taxes, and the mortgage interest deduction, ?Congressional leaders, for instance, believe the mortgage deduction is too popular to reduce, according to several of?cials familiar with the discussions.? GOP Urged To Create Tax Plan Helping Average Workers. Former chief of staff to Rep. Jack Kemp David M. Smick, in an op-ed in the Wall Street Journal writes that the rules of reconciliation and fears of losing the votes of Republican outliers in the Senate mean that tax changes helping middle-class families have little chance of becoming long-term policy and the GOP will be tempted to seek modest changes to help corporations. However, business has done well since the financial crisis while wage earners have fared poorly, and Smick argues the GOP should seek robust tax-reform that will help middle-class families and create robust economic growth. In particular, Smick warns against allowing tax loopholes through pass throughs such as S-class corporations. Smick warns that if the GOP doesn’t produce a tax plan that helps average workers, Trump may turn to Democrats to pass tax reform. Median Household Income Up, Job Openings At Record High. The Census Bureau said Tuesday that the median US household income increased 3.2 percent in 2016 to $59,039, marking is second straight yearly increase “as the longrunning economic recovery generated broad gains in prosperity,” the New York Times (9/12, A1, Appelbaum) reports. For the American middle class, the Washington Post (9/12, Long) says, 2016 was the “highest-earning year ever.” According to the Census Bureau, “the uptick in earnings occurred because so many people found full-time jobs – or better-paying jobs – last year.” The Post adds that the poverty rate “also fell to 12.7 percent, the lowest since 2007, the year before the financial crisis hit.” The Wall Street Journal (9/12, Leubsdorf) reports that the percentage of Americans lacking health insurance also declined from 9.1 percent in 2015 to 8.8 percent in 2016. USA Today (9/12, Davidson) says the Census Bureau report “underscores that in the final two years of the Obama administration, low- and middle-income Americans made noticeable progress after struggling in the early years of the economic recovery.” USA Today adds that during his 2016 campaign, President Trump argued that President Obama “had left working Americans behind” and “appealed to a base of blue-collar households with an agenda centered on tax cuts and a get-tough trade policy aimed at reclaiming manufacturing jobs.” However, Trump “also has proposed cutting federal assistance for low-income households and rolling back the Affordable Care Act, which has provided health insurance to millions more Americans.” Reuters (9/12), meanwhile, reports the monthly Job Openings and Labor Turnover Survey (JOLTS) released by the Labor Department Tuesday shows that job openings in the US reached a record high in July, “suggesting a slowdown in job growth in August was an aberration and that the labor market was strong before the recent disruptive hurricanes.” Job openings “increased by 54,000 to a seasonally adjusted 6.2 million,” their “highest level since the data series started in December 2000.” The report, says Reuters, “showed the labor market continued to tighten amid a scarcity of workers.” Gallup Analyst: 80 Percent Of Americans “Satisfied” With Their Standard Of Living. The Washington Times (9/12, Harper) reports that Gallup analyst Jim Norman says that “80 percent of the nation say they are ‘satisfied’ with their current standard of living, and the pollster’s complex but revealing ‘well-being index’ now stands at 54, a record high.” According to Norman, “The percentage of Americans saying their standard of living is getting better has risen from 62 percent in 2016 to 64 percent so far this year, with a corresponding drop in the percentage saying it is getting worse, from 22 percent to 19 percent.” Stocks Indexes Close At Record Highs. Reuters (9/12, Carew) reports that the major stock indexes posted record highs Tuesday. The Dow added 61.49 points to close at 22,118.86. The S&P 500 climbed 8.37 points to 2,496.48 and the Nasdaq ended the day 22.018 points higher at 6,454.28. Editorial Wrap-Up New York Times. “Senators In Search Of A Foreign Policy.” In an editorial, the New York Times (9/13, Board) outlines a “range of problems facing the United States abroad,” and laments “a robust foreign policy led by a reinvigorated State Department that right now is suffering from presidential neglect, poor leadership and an absence of professional firepower in pivotal positions.” The Times says Sens. Lindsey Graham and Patrick Leahy, two lawmakers who “understand the urgency of helping” the State Department “recover from the damages inflicted by” President Trump, have “won unanimous committee approval for a $51 billion bill for the State Department and foreign aid, about $11 billion more than the administration requested.” Because there “is no sign that Mr. Trump and his team understand its core mission and its importance in a turbulent world,” the Times argues, “The rest of Congress should ensure that a strong version of it becomes law.” “How Not To Sustain Prosperity.” Citing the 2016 Census report, a New York Times (9/13) editorial says “President Trump clearly inherited an economy on the upswing,” but “The question is whether his administration and the Republican-controlled Congress will sustain the momentum, or even reverse it.” The Times explains that despite the economy’s improvement, “broad prosperity remains elusive,” but “Republican policy makers seem determined to undo the progress that has been made.” For example, the Times says, the Administration “opposed Obama-era rules to update the nation’s overtime-pay protections for salaried workers, arguably the single most important policy option to raise middle-class pay,” and both Trump and the House Budget Committee “issued budget proposals for 2018 that call for deep spending cuts to safety-net programs.” These “giant steps backward,” the Times argues, would result in “greater income inequality” by shifting “income up the economic ladder.” Washington Post. “The Supreme Court Should Strike Down Wisconsin’s Gerrymandering.” The Washington Post (9/12) editorializes that the Supreme Court “has long kept a distance from arguments over gerrymandering,” but early next month, “the justices will hear a challenge to the 2011 redrawing of Wisconsin’s state legislative map by Republican lawmakers – a demonstration of how increasingly powerful technology allows partisan mapmakers to distort representation with ever-greater precision.” The Post adds that “using computer modeling, Wisconsin’s Republican-controlled legislature produced districts so unbalanced that, in 2012, Republicans won a supermajority in the state assembly even after losing the popular vote.” The Post argues that “while the question of just where to draw the line between acceptable and unconstitutional partisan gerrymanders may be far from simple in many instances, Wisconsin’s is an extreme case,” and contends that “the judiciary cannot and should not be the sole solution to this crisis, but it has a valuable role to play in reassuring Americans that their votes matter.” “Tom Price Decides He Doesn’t Want Medicare To Save Money.” In an editorial, the Washington Post (9/12) laments “the coming crisis” if Medicare is not reformed and says “waste scored a victory when Health and Human Services Secretary Tom Price decided to stop or scale back ‘bundled payment’ experiments the Obama administration had begun.” Under the program, hospitals would be given “a flat payment covering the duration of a procedure and recovery.” Those “whose costs came in under the fee could keep the difference. Those whose did not would lose money.” The Post argues that “:Price should be expanding the programs he is trying to end.” “Metro Gets A Sudden Lifeline.” A Washington Post (9/12) editorial. Wall Street Journal. “How Florida Saved Taxpayers” The Wall Street Journal (9/12, Board) editorializes that reforms undertaken by taxpayer-backed Citizens Property Insurance Corp. have allowed it to cover all the claims from Hurricane Irma. Next, the Journal urges Florida to move on tort reform before the next big hurricane hits the state. “The Al Franken Standard.” In an editorial, the Wall Street Journal (9/12) writes that in light of Sen. Al Franken’s recent announcement that he will refuse to return his blue slip on the nomination of a judge to the Eight Circuit, Judiciary Chairman Chuck Grassley should suspend Sen. Franken’s blue slip. The Journal contends that Grassley has full authority to suspend the blue slip tradition on a case-by-case should senators obstruct the nomination process. “Joseph Rago And A Disease Called Sarcoidosis.” A Wall Street Journal (9/12, Board) editorial. Big Picture Headlines From Today’s Front Pages. Wall Street Journal: Goldman Banks On Lending To Grow Herculean Task As Crews Race To Restore Power Apple Unveils New iPhone X To Fend Off Growing Competition There’s A Speeding Mass Of Space Junk Orbiting Earth, Smashing Into Things New York Times: Amid Chaos Of Storms, US Shows It Has Improved Its Response South Korea Plans ‘Decapitation Unit’ To Try To Scare North’s Leaders White House Weighs Lowering Refugee Quota To Below 50,000 Median US Household Income Up For 2nd Straight Year Edith Windsor, Whose Same-Sex Marriage Fight Led To Landmark Ruling, Dies At 88 De Blasio, Seeking Second Term, Wins An Easy Victory After More Than 20 Years, Newark To Regain Control Of Its Schools Washington Post: Paychecks Hit High For Middle Class Push For Tax Cuts Runs Into Old Problem: A Divided GOP Apple Edges Closer To Fraught Age Of Facial Recognition Tech 42 Years Later, A Guilty Plea In Murder Of Md. Sisters Florida Prepares For Days — And Maybe Weeks — Without Power After Irma, A Former Gem In The US Virgin Islands Is Reduced To A Wasteland Financial Times: UK Cites Fox News As Hurdle To Rupert Murdoch’s Sky Deal Thousands Protest In France Against Macron’s Labour Reforms North Korea’s Opaque Trading Network Keeps Economy Afloat South Africa Businesses Under Pressure To Cut KPMG Ties Washington Times: Liberals With Eye On Presidency Rush To Support Sanders’s ‘Medicare For All’ Bill Trump Punishes Sanctuary Countries, Halts Visas For Nations That Refuse To Cooperate On Deportations Islamic State’s Rumiyah Magazine Glosses Over Losses To Boost Terrorist Morale Stunning Testimony: Voting Machines Can Be Hacked Without A Trace Of Evidence Ken Burns Goes Back To War: Vietnam Documentary Tells Uneasy Story From All Sides Story Lineup From Last Night’s Network News: ABC: Hurricane Irma-Florida Keys; Hurricane Irma-Utility Damage; Hurricane IrmaCaribbean; Hurricane Jose-Forecast; Hurricanes-Vehicle Damages; Baltimore Police Violence Trial; Steve Bannon Interview-Comey Firing; Maryland Abduction Cold Case; Apple-New Product Announcement; California-Street Vendor Police Bribery; Parking Lot Plane Crash; Edith Windsor Dies; Hurricane Irma-Recovery. CBS: Hurricane Irma-Florida Keys; Hurricane Irma-Utility Damages; Hurricane IrmaCaribbean; Hurricane Harvey-Recovery; Equifax-Cyber Security Breach; Russia MeddlingSpecial Council Investigation; New Hampshire Police Violence Investigation; Edith Windsor Dies; Parking Lot Plane Crash; Apple-New Product Announcement. NBC: Hurricane Irma-Florida Keys; Hurricane Irma-US Navy Rescue Missions; Hurricane Irma-Utility Damages; Hurricane Irma-Caribbean; Equifax-Cyber Security Breach; Edith Windsor Dies; Menopause-Hormone Therapy Safety; Parking Lot Plane Crash; TrumpGrand Child; Sleeping Together With Dog; Apple-New Product Announcement. Network TV At A Glance: Hurricane Irma – 29 minutes, 20 seconds Apple-New Product Announcement – 4 minutes, 50 seconds Equifax-Cyber Security Breach – 4 minutes, 35 seconds Story Lineup From This Morning’s Radio News Broadcasts: ABC: Hurricane Irma; Baltimore Police Violence Trial; Philadelphia Amtrack Crash Trial. CBS: Hurricane Irma; UN-North Korea Sanctions; Edith Windsor Dies; Apple-New Product Announcement; Wall Street News. FOX: Trump-Tax Reform; Hurricane Irma; Amazon HQ-Boston. NPR: Hurricane Irma; Macron-Caribbean Aid Pledge; Sen. Sanders-Healthcare Bill; Trump-Tax Reform; Seattle Mayor Resigns. Washington Schedule Today’s Events In Washington. White House: PRESIDENT TRUMP — Meets with the Domestic Policy Council; meets with Senator Tim Scott; participates in a bipartisan meeting. VICE PRESIDENT PENCE — Joins the President to meet with the Domestic Policy Council; joins Director of National Intelligence Dan Coats and Director of the National GeospatialIntelligence Agency Robert Cardillo to tour the National Geospatial-Intelligence Agency and participate in a series of briefings. US Senate: 10:00 AM POSTPONED: Senate Judiciary Committee hearing on long-term impacts of immigration – POSTPONED: Hearing on ‘The Long-term Impact of Immigration: Exploring Reforms to our Nation’s Guest Worker Programs and Deferred Action for Childhood Arrivals, and their Potential Impact on the American Economy and Local Communities’, with testimony from Assistant Secretary of Homeland Security for Border, Immigration, and Trade Michael Dougherty; Department of Labor Employment and Training Administration Senior Policy Advisor John Martin; Economic Policy Institute Director of Immigration Law and Policy Research Daniel Costa; Howard University Department of Political Science Associate Professor Dr Ron Hira; Center for Immigration Studies Director of Policy Studies Jessica Vaughan; AFL-CIO Department for Professional Employees President Paul Almeida; U.S. Chamber Of Commerce Senior Vice President for Labor, Immigration and Employee Benefits Randel Johnson; and American Action Forum President Dr Douglas Holtz-Eakin Location: Dirksen Senate Office Building, Rm 226, Washington, DC http://judiciary.senate.gov/ 10:00 AM Senate Governmental Affairs subcommittee latest hearing on OMB memo on the federal workforce – Regulatory Affairs and Federal Management Subcommittee hearing on ‘Examining OMB’s Memorandum on the Federal Workforce, Part II: Expert Views on OMB’s Ongoing Government-wide Reorganization’, with testimony from Grant Thornton Public Sector Principal Robert Shea; Heritage Foundation Research Fellow Rachel Greszler; Cato Institute Director of Tax Policy Studies Christopher Edwards; and National Treasury Employees Union National President Tony Reardon Location: Rm 342, Dirksen Senate Office Bldg, Washington, DC http://hsgac.senate.gov/ https://twitter.com/SenRonJohnson 10:00 AM Senate Environment Committee hearing on CCUS – Hearing on ‘Expanding and Accelerating the Deployment and Use of Carbon Capture, Utilization, and Sequestration’, with testimony from Office of the Wyoming Governor Policy Advisor Matthew Fry; NRG Energy Vice President of Development David Greeson; and Energy Futures Initiative Distinguished Associate Dr S. Julio Friedmann Location: Dirksen Senate Office Building, Rm 406, Washington, DC http://epw.senate.gov/public/ 10:00 AM Senate Commerce Committee hearing on automated trucks – Hearing on ‘Transportation Innovation: Automated Trucks and Our Nation’s Highways’, with testimony from Colorado State Patrol Chief Scott Hernandez; Navistar CEO Troy Clarke; International Brotherhood of Teamsters General Secretary-Treasurer Ken Hall; National Safety Council President and CEO Deborah Hersman; and American Trucking Associations President and CEO Chris Spear Location: Russell Senate Office Building, Rm 253, Washington, DC http://commerce.senate.gov https://twitter.com/SenateCommerce 11:30 AM GOP Sen. James Lankford’s public schedule – Republican Sen. James Lankford meets with Archbishop of Oklahoma City Paul Coakley (11:30 AM CDT); and accepts National Religious Broadcasters’ ‘Faith and Freedom Award’, Willard Hotel, 1401 Pennsylvania Ave NW, Washington, DC (5:30 PM CDT) Location: Washington, DC http://www.lankford.senate.gov/ https://twitter.com/SenatorLankford 11:30 AM Bicameral GOP and new USFS chief ‘press for urgent forest management reforms’ – Senate Western Caucus Chairman Steve Daines and Congressional Western Caucus Chairman Paul Gosar ‘press for urgent forest management reforms’ via media availability with new U.S. Forest Service Chief Tony Tooke, and Republican Rep. Bruce Westerman Location: Senate Swamp, Washington, DC http://www.daines.senate.gov/ https://twitter.com/SteveDaines 12:00 PM AACR release ‘Cancer Progress’ report at Congressional briefing – American Association for Cancer Research host Congressional briefing to unveil the AACR Cancer Progress Report 2017, which ‘showcases progress against cancer from the past year, and underscores the importance of robust, sustained, and predictable growth in funding for the National Institutes of Health, National Cancer Institute, and the U.S. Food and Drug Administration’. Speakers include AACR President Michael Caligiuri and CEO Margaret Foti, University of Southern California Keck School of Medicine Department of Translational Genomics Chair John Carpten, and cancer survivors Carrie Best and Terri Woodhull * Briefing is held in cooperation with Democratic Sen. Chris Van Hollen Location: Russell Senate Office Building, Rm 485, Washington, DC http://www.aacr.org https://twitter.com/aacr 2:00 PM Independent Sen. Bernie Sanders introduces Medicare for All bill – Independent Sen. Bernie Sanders and Senate co-sponsors announce the introduction of the Medicare for All Act of 2017 Location: Hart Senate Office Building, Rm 216, Washington, DC sanders.senate.gov https://twitter.com/SenSanders 2:30 PM Senate Indian Affairs Committee Business Meeting, oversight hearing on GAO recommendations on high-risk programs – Business Meeting, to consider ‘H.R. 984, Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act of 2017’, ‘S. 1285, Oregon Tribal Economic Development Act’, and ‘S. 1333, Tribal HUD-VASH Act of 2017’ * Immediately followed by oversight hearing on ‘High Risk Indian Programs: Progress and Efforts in Addressing GAO’s Recommendations’ Location: Dirksen Senate Office Building, Rm 628, Washington, DC http://indian.senate.gov https://twitter.com/IndianCommittee 5:30 PM Dem Sen. Kirsten Gillibrand hosts annual New York Farm Day on Capitol Hill – Democratic Sen. Kirsten Gillibrand hosts 16th annual New York Farm Day on Capitol Hill, bringing together over 40 farmers and producers from every corner of New York State. Event includes a meeting with the Agriculture working group, and a reception in the evening Location: 325 Russell Senate Office Bldg, Washington, DC http://gillibrand.senate.gov/ https://twitter.com/SenGillibrand Senate Democratic Rural Summit, titled ‘A Better Deal for Rural America’ Location: Hart Senate Office Building, Rm 902, Washington, DC http://www.democrats.senate.gov https://twitter.com/SenateDems US House: 10:00 AM POSTPONED – House Foreign Affairs subcommittees joint hearing on budget proposal for AfPak – Asia and the Pacific Subcommittee and Middle East and North Africa Subcommittee joint hearing on ‘The President’s FY 2018 Budget Request for Afghanistan and Pakistan’, with testimony from Acting Assistant Secretary of State for South and Central Asian Affairs Alice Wells; and USAID Office of Afghanistan and Pakistan Affairs Administrator’s Assistant Gregory Huger Location: Rayburn House Office Building, Rm 2172, Washington, DC http://www.hcfa.house.gov https://twitter.com/HouseForeign 10:00 AM House Oversight and Government Reform Committee Markup. – Markup: H.R. 3731 Secret Service Recruitment and Retention Act of 2017; H.R. 3739 Presidential Allowance Modernization Act of 2017;H.R. 1701 Eliminating Government-funded Oilpainting Act;H.R. 3019 Promoting Value Based Procurement Act of 2017;H.R. 3737 Social Media Use in Clearance Investigations Act of 2017;H.R. 3071 Federal Acquisition Savings Act of 2017; andH.R. 2331 Connected Government Act.H.R. 294 To designate the facility of the United States Postal Service located at 2700 Location: 2154 Rayburn. http://oversight.house.gov/ https://twitter.com/GOPoversight 10:00 AM House Financial Services subcommittee hearing on North Korea – Monetary Policy and Trade Subcommittee hearing on ‘A Legislative Proposal to Impede North Korea’s Access to Finance’, with testimony from Institute for Science and International Security President David Albright; Foundation for Defense of Democracies Senior Fellow Anthony Ruggiero; Heritage Foundation Senior Fellow for Northeast Asia Bruce Klingner; and Center for a New American Security Energy, Economics, and Security Program Director Elizabeth Rosenberg Location: Rayburn House Office Building, Rm 2128, Washington, DC http://financialservices.house.gov https://twitter.com/FinancialCmte 10:00 AM House Workforce subcommittees joint hearing on the Save Local Business Act – Workforce Protections Subcommittee and Health, Employment, Labor, and Pensions Subcommittee joint hearing on ‘H.R. 3441, Save Local Business Act’, with testimony from Proskauer Rose partner Zachary Fasman; Twin City T.J.’s President Tamra Kennedy (on behalf of International Franchise Association); MacDonald Companies CEO Granger MacDonald (on behalf of National Association of Home Builders); and Altshuler Berzon partner Michael Rubin Location: Rm 2175, Rayburn House Office Bldg, Washington, DC http://edworkforce.house.gov/ https://twitter.com/EdWorkforce 10:00 AM House Commerce subcommittee hearing on ‘Big Relief for Small Business’ – Environment Subcommittee hearing on ‘Big Relief for Small Business: Legislation Reducing Regulatory Burdens on Small Manufacturers and Other Job Creators’, with testimony from Penn State College of Medicine Professor Dr Rebecca Bascom (on behalf of American Thoracic Society); Olympus Power Director of Environmental Affairs Vincent Brisini; Hardy Manufacturing Company President and owner Frank Moore; Sonoma Raceway President and General Manager Steve Page; Endicott Clay Products President and CEO Ryan Parker; and AT Strategies Principal Alexandra Teitz (on behalf of Sierra Club) Location: Rayburn House Office Building, Rm 2123, Washington, DC http://energycommerce.house.gov/ https://twitter.com/HouseCommerce 10:00 AM House Infrastructure subcommittee hearing on economic development stakeholders’ perspectives – Economic Development, Public Buildings, and Emergency Management Subcommittee hearing on ‘Building a 21st Century Infrastructure for America: Economic Development Stakeholders’ Perspectives’, with testimony from SEDACouncil of Governments Assistant Executive Director Bill Seigel; Land of Sky Regional Council Executive Director Justin Hembree; Great Falls Development Authority President and CEO Brett Doney; Hartford Mutual Insurance Company President and CEO Steve Linkous; and Georgetown Climate Center Adaption Program Manager Jessica Grannis Location: Rm 2167, Rayburn House Office Bldg, Washington, DC http://transportation.house.gov/ https://twitter.com/Transport 10:00 AM House Ways and Means Committee markup hearing – Markup hearing on ‘H.R. 3726, Stark Administrative Simplification Act of 2017’, ‘H.R. 3727, To amend title XVIII of the Social Security Act to include additional telehealth services for purposes of MA organization bids, and for other purposes’, ‘H.R. 3729, Comprehensive Operations, Sustainability, and Transport Act of 2017’, ‘H.R. 2824, Increasing Opportunity through Evidence-Based Home Visiting Act’, and ‘H.R. 2792, Control Unlawful Fugitive Felons Act of 2017’ Location: Longworth House Office Building, Rm 1100, Washington, DC http://waysandmeans.house.gov/ https://twitter.com/WaysandMeansGOP 10:00 AM House Natural Resources Committee markup hearing concludes – Markup hearing concludes on ‘H.R. 210, Native American Energy Act’, ‘H.R. 424, Gray Wolf State Management Act of 2017’, ‘H.R. 717, Listing Reform Act’, ‘H.R. 1274, State, Tribal and Local Species Transparency and Recovery Act’, ‘H.R. 2603, Saving America’s Endangered Species Act’ (‘SAVES Act’), ‘H.R. 3131, Endangered Species Litigation Reasonableness Act’, and ‘H.R. 3668, Sportsmen’s Heritage and Recreational Enhancement Act’ (‘SHARE Act’) * Began yesterday Location: Longworth House Office Building, Rm 1334, Washington, DC http://naturalresources.house.gov https://twitter.com/NatResources 10:00 AM House Homeland Security subcommittee hearing on suspicious activity reporting – Counterterrorism and Intelligence Subcommittee hearing on ‘Sixteen Years After 9/11: Assessing Suspicious Activity Reporting Efforts’, with testimony from Acting Deputy Secretary of Homeland Security for Intelligence Operations Robin Taylor; New Jersey State Police Superintendent Rick Fuentes; Boston Police Commissioner Bill Evans; and Northern Virginia Regional Intelligence Center Deputy Director Joseph Flynn Location: HVC 210, U.S. Capitol, Washington, DC homeland.house.gov https://twitter.com/HouseHomeland 10:00 AM House Committee on Oversight and Government Reform Business Meeting Location: U.S. Capitol, Washington, DC http://oversight.house.gov/ https://twitter.com/GOPoversight 10:15 AM House Commerce subcommittee hearing on modernizing FDA regulation of over-the-counter drugs – Health Subcommittee hearing on ‘Modernizing FDA’s Regulation of Over-the-Counter Drugs’, with testimony from American Academy of Pediatrics Chair Bridgette Jones; Consumer Health Products Association President and CEO Scott Melville; Pew Charitable Trusts Health Care Products Project Director Kirsten Moore; Pharma and Biopharma Outsourcing Association President Gil Roth; Holland and Knight partner Michael Werner (on behalf of Public Access to SunScreens Coalition); and Food and Drug Administration Center for Drug Evaluation and Research Director Dr Janet Woodcock Location: Rayburn House Office Building, Rm 2322, Washington, DC http://energycommerce.house.gov/ https://twitter.com/HouseCommerce 10:30 AM House Veterans’ Affairs subcommittee legislative hearing – Disability Assistance and Memorial Affairs Subcommittee legislative hearing, on legislation including a draft bill entitled ‘Veterans Fair Debt Notice Act of 2017’ Location: Rm 334, Cannon House Office Bldg, Washington, DC http://veterans.house.gov/ https://twitter.com/HouseVetAffairs 11:00 AM House Small Business Committee hearing on the HUBZone program – Hearing on ‘Serving Small Businesses: Examining the Effectiveness of HUBZone Reforms’, with testimony from GCC Technologies co-owner, Executive Vice President, and COO Shirley Bailey (on behalf of HUBZone Contractors National Council); attorney at law Robert Schuerger II; TDEC President Dennis DuFour; and Wovenware COO and cofounder Carlos Melendez Location: Rm 2360, Rayburn House Office Bldg, Washington, DC http://smallbusiness.house.gov/ https://twitter.com/SmallBizGOP 11:30 AM Bicameral GOP and new USFS chief ‘press for urgent forest management reforms’ – Senate Western Caucus Chairman Steve Daines and Congressional Western Caucus Chairman Paul Gosar ‘press for urgent forest management reforms’ via media availability with new U.S. Forest Service Chief Tony Tooke, and Republican Rep. Bruce Westerman Location: Senate Swamp, Washington, DC http://www.daines.senate.gov/ https://twitter.com/SteveDaines 12:00 PM House expected to continue debate on omnibus govt funding bill – House of Representatives meets for legislative business, with agenda expected to include continued consideration of ‘H.R. 3354 – Make America Secure and Prosperous Appropriations Act, 2018’, and beginning consideration of ‘H.R. 3697 – Criminal Alien Gang Member Removal Act’ * Administration has said it supports passage of ‘H.R. 3354’ and that President Donald Trump would sign it if it reached his desk * Last week, Congress passed a short-term continuing resolution to extend govt funding through early December Location: Washington, DC http://www.house.gov/ 1:00 PM House Commerce subcommittee markup hearing – Health Subcommittee markup hearing on ‘H.R. 1148, Furthering Access to Stroke Telemedicine (FAST) Act of 2017’, ‘H.R. 2465, Steve Gleason Enduring Voices Act of 2017’, ‘H.R. 2557, Prostate Cancer Misdiagnosis Elimination Act of 2017’, ‘H.R. 3120, to reduce the volume of future electronic health record-related significant hardship requests’, ‘H.R. 3245, Medicare Civil and Criminal Penalties Act’, ‘H.R. 3263, to extend the Medicare Independence at Home Medical Practice Demonstration program’, and ‘H.R 3271, Protecting Access to Diabetes Supplies Act of 2017’ Location: Rayburn House Office Building, Rm 2123, Washington, DC http://energycommerce.house.gov/ https://twitter.com/HouseCommerce 2:00 PM Tom Lantos Human Rights Commission hearing on ‘Multi-Sector Partnerships to Combat Human Trafficking’ – Tom Lantos Human Rights Commission hearing on ‘Multi-Sector Partnerships to Combat Human Trafficking’, with witnesses – State Department Office to Monitor and Combat Trafficking in Persons Acting Deputy Director Laura Rundlet, Electronic Industry Citizenship Coalition Director of Public Policy Carlos Busquets, International Justice Mission Policy Director Tim Gehring, and Human Rights First Anti-Trafficking Campaign Senior Associate Annick Febrey – presenting testimony on their experiences and sharing recommendations on how best to strengthen efforts against trafficking by fostering multi-sectoral initiatives Location: Rayburn House Office Building, Rm 2255, Washington, DC http://tlhrc.house.gov/ https://twitter.com/TLHRCommission 2:00 PM Oversight Subcommittee hearing on ‘IRS Reform: Resolving Taxpayer Disputes’ Location: Longworth House Office Building, Rm 1100, Washington, DC http://waysandmeans.house.gov/ https://twitter.com/WaysandMeansGOP 2:00 PM House Foreign Affairs subcommittee hearing on Venezuela – Western Hemisphere Subcommittee hearing on ‘The Venezuela Crisis: The Malicious Influence of State and Criminal Actors’, with testimony from Center for Strategic and International Studies Americas Program Senior Associate Dr R. Evan Ellis; Caracas Chronicles Executive Editor Francisco Toro; and Stanford University Freeman Spogli Institute for International Studies Center for International Security and Cooperation Senior Research Scholar and Associate Director for Research Dr Harold Trinkunas Location: Rayburn House Office Building, Rm 2200, Washington, DC http://www.hcfa.house.gov https://twitter.com/HouseForeign 2:00 PM House Foreign Affairs subcommittee hearing on Liberia – Africa, Global Health, Global Human Rights, and International Organizations Subcommittee hearing on ‘The Future of Democracy and Governance in Liberia’, with testimony from Acting Assistant Secretary of State for African Affairs Donald Yamamoto; USAID Acting Assistant Administrator for Africa Cheryl Anderson; National Endowment for Democracy Senior Director of Africa Programs Dave Peterson; Weeks Educational and Social Advocacy Project founder and Executive Director Aurelia Curtis; International Foundation for Electoral Systems Regional Director for Africa Rushdi Nackerdien; and National Democratic Institute Senior Associate and Regional Director for Central and West Africa Dr Christopher Fomunyoh Location: Rayburn House Office Building, Rm 2172, Washington, DC http://www.hcfa.house.gov https://twitter.com/HouseForeign Other: 8:00 AM Republican Sen. Joni Ernst hosts ‘Coffee with Joni’ for Iowans in Washington, DC Location: Russell Senate Office Building, Rm 111, Washington, DC www.ernst.senate.gov https://twitter.com/senjoniernst 8:30 AM GOP Sen. Rob Portman and Dem Rep. Paul Tonko discuss strategies to tackle opioid epidemic at The Hill event – The Hill hosts ‘America’s Opioid Epidemic: Search for Solutions’, with Republican Sen. Rob Portman and Democratic Rep. Paul Tonko discussing national and local strategies to tackle the nation’s opioid epidemic. Other speakers include Association of State and Territorial Health Officials Executive Director Michael Fraser, Shatterproof Founder and CEO Gary Mendell, Johns Hopkins Broadway Center for Addiction Director Kenneth Stoller, Victory Bay Recovery Center Outreach Coordinator Vanessa Vitolo and National Institute on Drug Abuse Director Nora Volkow Location: AJAX, 1011 4th St NW, Washington, DC thehill.com https://twitter.com/TheHillEvents #OpioidSolution. 9:00 AM Rory Staunton Foundation National Forum on Sepsis – Rory Staunton Foundation Fourth National Forum on Sepsis, ‘Keeping our Children Safe from Sepsis’, including keynote from Democratic Sen. Chuck Schumer Location: American Federation of Teachers, 555 New Jersey Ave NW, Washington, DC www.rorystauntonfoundationforsepsis.org 10:30 AM Dem Rep. Ro Khanna discusses proposed bill to reform H-1B and L-1 visas at Atlantic Council – Atlantic Council South Asia Center hosts a discussion with Democratic Rep. Ro Khanna, who addresses his proposed bill centered on reforming the H-1B and L-1 visas for high-skilled workers Location: Atlantic Council, 1030 15th Street Northwest, Washington, DC http://www.atlanticcouncil.org/ https://twitter.com/ACSouthAsia #ACSouthAsia 10:45 AM House Speaker Paul Ryan participates in the AP Newsmaker Interview Series to discuss tax reform Location: AP Bureau, 1100 13th St NW Washington, DC www.speaker.gov https://twitter.com/SpeakerRyan 12:00 PM Tax Foundation hosts GOP Sen. Ted Cruz for a discussion on tax reform – Tax Foundation hosts ‘A Path to Consensus Tax Reform: An Address From Senator Ted Cruz With Panel Discussion’, with Republican Sen. Ted Cruz delivering a keynote address outlining his path forward for achieving consensus tax reform. Speech followed by a panel discussion with Tax Policy Center Director Mark Mazur, American Action Forum Director of Fiscal Policy Gordon Gray, and Tax Foundation Director of Federal Projects Kyle Pomerleau * Sen. Cruz’s Twitter account recently ‘liked’ an explicit video. The ‘like’ was in place for approximately 40 minutes before being removed Location: Hillsdale College Kirby Center, 227 Massachusetts Ave NE, Washington, DC http://www.taxfoundation.org/ https://twitter.com/taxfoundation 12:00 PM ‘National Save the U.S. EPA Day’ press conference at NPC – Save the U.S. EPA holds ‘National Save the U.S. EPA Day’ press conference at the National Press Club, with speakers including Democratic Rep. Debbie Dingell, Sierra Club’s Beyond Coal Campaign Director Mary Anne Hitt, National Wildlife Federation President and CEO Collin O’Mara, AFGE Council 238 President John O’Grady and American Federation of Government Employees Chief of Staff Brian DeWyngaert Location: National Press Club, 529 14th Street NW, Washington, DC savetheusepa.org https://twitter.com/SavetheUSEPA 4:30 PM CSIS discussion on ‘Hurricane Irma: The Aftermath and Caribbean Disaster Response’ – ‘Hurricane Irma: The Aftermath and Caribbean Disaster Response’ Center for Strategic and International Studies discussion on the consequences of Hurricane Irma and how the international community can best respond. Speakers include Antigua and Barbuda Ambassador to the U.S. Amb. Sir Ronald Sanders, Netherlands Ambassador to the U.S. Amb. Henne Schuwer, and Caribbean Central American Action Executive Director Sally Yearwood Location: Center for Strategic and International Studies, 1616 Rhode Island Ave NW, Washington, DC http://www.csis.org https://twitter.com/CSIS 6:00 PM GW hosts town hall discussion on the state of politics and media in 2017 – George Washington University hosts town hall discussion on the state of politics and media in 2017, about ‘the ‘state of the union in this era of fake news, what the future holds, and what role the media plays’. Topics include the Trump administration’s decisions on the Deferred Action for Childhood Arrivals (DACA) program, North Korea, and other major issues. Speakers include Democratic Rep. Brendan Boyle, communication strategist Howard Opinsky, Brilliant Corners Research & Strategies President Cornell Belcher, The Communication Center Executive Communication Coach Jeffrey Blount, NPR national political correspondent Mara Liasson, and CNN European politics reporter Hadas Gold Location: George Washington University School of Media and Public Affairs, Washington, DC /www.gwu.edu https://twitter.com/GWtweets Airlines for America Annual Commercial Aviation Industry Summit – Airlines for America (A4A) Annual Commercial Aviation Industry Summit. Speakers include Republican Rep. Paul Mitchell, American Airlines Chairman and CEO Doug Parker, Alaska Airlines President and CEO Brad Tilden, Southwest Airlines Chairman and CEO Gary Kelly, former Secretary of Transportation James Burnley, and UPS Director of Safety, Global Aviation Strategy and Public Policy Capt. Houston Mills Location: National Press Club, 529 14th Street NW, Washington, DC http://summit.airlines.org/ https://twitter.com/AirlinesDotOrg #A4ASummit NAFCU Congressional Caucus concludes – NAFCU Congressional Caucus concludes. Speakers today include U.S. Rep. Tom Emmer, Republican Sens. Tom Cotton Location: Hyatt Regency Washington on Capitol Hill, 400 New Jersey Avenue Northwest, Washington, DC http://www.nafcu.org https://twitter.com/NAFCU #NAFCUCaucus Last Laughs Late Night Political Humor. Jimmy Kimmel: ?Hillary Clinton?s new book came out today. It is called ?What Happened.? That's not a joke. That?s what it is called. This is why Hillary lost. A real President doesn?t write books. They write tweets.? James Corden: ?Texas Senator Ted Cruz is coming under fire because, late last night, his official Twitter account liked a pornographic video. So, if you ever meet Ted Cruz on the campaign trail, you might want to think twice before shaking that hand.? Trevor Noah: ?Everyone is freaking out about this and calling it a possible scandal all because a politician may have watched porn. Come on, people. No big deal. Everyone watches porn. Alright? It's part of being a norm human being, which is exactly why we know Ted Cruz didn?t do it.? Jimmy Fallon: guess Hillary Clinton?s book ?What Happened' came out today, and I heard that it?s almost 500 pages long. Unfortunately, the only person with enough time to read it is Hillary Clinton.? Seth Meyers: ?Hillary Clinton's new book titled ?What Happened' was released today, as was Putin?s new book Seth Meyers: ?President Trump will reportedly visit China in November. ?Oh, can you pick up my handbags?? asked Ivanka.? Conan O?Brien: ?On Twitter last night, someone discovered that Republican Senator Ted Cruz liked a tweet from a porn account. As you can imagine, that was one very embarrassing day for that porn account." Conan O?Brien: ?The new iPhone will be able to track stair climbing and mountain hiking. The big question is, will it have any features for Americans?? Copyright 2017 by Bulletin Intelligence LLC Reproduction or redistribution without permission prohibited. Content is drawn from thousands of newspapers, national magazines, national and local television programs, radio broadcasts, social-media platforms and additional forms of open-source data. Sources for Bulletin Intelligence audience-size estimates include Scarborough, MRI, comScore, Nielsen, and the Audit Bureau of Circulation. Data from and access to third party social media platforms, including but not limited to Facebook, Twitter, Instagram and others, is subject to the respective platform?s terms of use. Services that include Factiva content are governed by Factiva?s terms of use. Services including embedded Tweets are also subject to Twitter for Website's information and privacy policies. The Department of the Interior News Brie?ng is published ?ve days a week by Bulletin Intelligence, which creates custom brie?ngs for government and corporate leaders. We can be found on the Web at BulletinIntelligence.com, or called at (703) 483-6100. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:47 PM Conversation Contents DMR Friday List Attachments: /81. DMR Friday List/1.1 2017.09.01 DMR Friday List.docx "McNeer, Richard" From: Sent: To: CC: Subject: Attachments: "McNeer, Richard" Fri Sep 01 2017 14:20:49 GMT-0600 (MDT) Jack Haugrud "Hawbecker, Karen" , "Daugherty, Dennis" , Thomas Bovard , Daniel Jorjani DMR Friday List 2017.09.01 DMR Friday List.docx Jack: On behalf of Karen, attached is DMR's Friday updates. Have a good long weekend. Richard Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:47 PM Conversation Contents Fwd: Twin Metals Opposition (ECF No. 107) Attachments: /82. Fwd: Twin Metals Opposition (ECF No. 107)/1.1 DENVER-#585843-v1TMM_ECF_107_Opposition_to_Motion_to_Dismiss.PDF /82. Fwd: Twin Metals Opposition (ECF No. 107)/3.1 DENVER-#585843-v1TMM_ECF_107_Opposition_to_Motion_to_Dismiss.PDF "McNeer, Richard" From: Sent: To: CC: Subject: Attachments: "McNeer, Richard" Wed Aug 30 2017 08:16:43 GMT-0600 (MDT) Jack Haugrud "Hawbecker, Karen" , Daniel Jorjani Fwd: Twin Metals Opposition (ECF No. 107) DENVER-#585843-v1TMM_ECF_107_Opposition_to_Motion_to_Dismiss.PDF Jack: Attached is Twin Metals' opposition to our motion to dismiss. Richard ---------- Forwarded message ---------From: Collier, Briana Date: Tue, Aug 29, 2017 at 6:55 PM Subject: Fwd: Twin Metals Opposition (ECF No. 107) To: Karen Hawbecker Cc: Richard McNeer , Roy Fuller , Joshua Hanson , Ryan Sklar Karen, Attached below is Twin Metals opposition to our motion to dismiss. I'll plan to read through it tomorrow, and can also pass it forward to the BLM, unless I hear otherwise. Thanks, Briana Briana Collier Acting Senior Litigation Specialist - WO-100 U.S. Department of the Interior, Bureau of Land Management 1849 C Street NW, Washington, D.C. 20240 Office: (202) 208-4695 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. -- Forwarded message From: Gillespie, Stuart (ENRD) Date: Mon, Aug 28, 2017 at 11:31 AM Subject: Twin Metals Opposition (ECF No. 107) To: "Collier, Briana" "Franklin, Jessica - c.usda. ov>, PAMELA P. - Joshua Hanson "Mulach, Ronald - c.usda. ov>, "Vandlik, John - "Vukelich, Vincent - Cc: "Duffy, Sean C. "Piropato, Marissa "Boronow, Clare Good morning all Please ?nd attached Twin Metal?s Opposition to our motion to dismiss. at 52 oaoes. We plan to It?s quite long. coming in Thanks Stu Stuart C. Gillespie Trial Attorney US. Department of Justice Environment and Natural Resources 999 18th Street South Terrace, Suite 370 Denver, CO 80202 O: (303) 844-1382 C: (202) 598-9580 Stuart. illes ie usdo'. ov "Haugrud, Kevin" From: Sent: To: Subject: "Haugrud, Kevin" Wed Aug 30 2017 10:00:49 GMT-0600 (MDT) "McNeer, Richard" Re: Twin Metals Opposition (ECF No. 107) Thanks Richard. On Wed, Aug 30, 2017 at 10:16 AM, McNeer, Richard wrote: Jack: Attached is Twin Metals' opposition to our motion to dismiss. Richard ---------- Forwarded message ---------From: Collier, Briana Date: Tue, Aug 29, 2017 at 6:55 PM Subject: Fwd: Twin Metals Opposition (ECF No. 107) To: Karen Hawbecker Cc: Richard McNeer , Roy Fuller , Joshua Hanson , Ryan Sklar Karen, Attached below is Twin Metals opposition to our motion to dismiss. I'll plan to read through it tomorrow, and can also pass it forward to the BLM, unless I hear otherwise. Thanks, Briana Briana Collier Acting Senior Litigation Specialist - WO-100 U.S. Department of the Interior, Bureau of Land Management 1849 C Street NW, Washington, D.C. 20240 Office: (202) 208-4695 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. ---------- Forwarded message ---------From: Gillespie, Stuart (ENRD) Date: Mon, Aug 28, 2017 at 11:31 AM Subject: Twin Metals Opposition (ECF No. 107) To: "Collier, Briana" , "Franklin, Jessica - OGC" , "HENDERSON, PAMELA P. - OGC" , Joshua Hanson , "Mulach, Ronald - OGC" , "Vandlik, John - OGC" , "Vukelich, Vincent - OGC" Cc: "Duffy, Sean C. (ENRD)" , "Piropato, Marissa (ENRD)" , "Boronow, Clare (ENRD)" Good morning all – Thanks Stu Stuart C. Gillespie Trial Attorney US Department of Justice Please ?nd attached Twin Metal?s opposition to our motion to dismiss. in at 52 pages. We plan to It?s quite long. comino Environment and Natural Resources 999 18th Street South Terrace, Suite 370 Denver, CO 80202 O: (303) 844?1382 C: (202) 598-9580 Stuart. illes ie usdo'. ov "Collier, Briana" From: Sent To: CC: Subject: Attachments: "Collier, Briana" Thu Aug 31 2017 14:57:48 GMT-0600 (MDT) "Haugrud, Kevin" Karen Hawbecker Richard McNeer Roy Fuller Fwd: Twin Metals Opposition (ECF No. 107) TM PDF Jack: FYI, Twin Metals ?led its brief in opposition to our motions to dismiss last Friday, August 25th. DOJ anticipates Briana Collier . Thank you, Briana Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Office of the Solicitor 1849 Street NW, Washington, DC. 20240 Of?ce: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. -- Forwarded message From: Gillespie, Stuart (ENRD) Date: Mon, Aug 28, 2017 at 11:31 AM Subject: Twin Metals Opposition (ECF No. 107) To: "Collier, Briana" "Franklin, Jessica - PAMELA P. - Joshua Hanson "Mulach, Ronald - "Vandlik, John - "Vukelich, Vincent - Cc: "Duffy, Sean C. "Piropato, Marissa "Boronow, Clare Good morning all Please ?nd attached Twin Metal?s opposition to our motion to dismiss. at 52 pages. We plan to It?s quite long, coming in Thanks Stu Stuart C. Gillespie Trial Attorney US. Department of Justice Environment and Natural Resources 999 18th Street South Terrace, Suite 370 Denver, CO 80202 O: (303) 844-1382 C: (202) 598-9580 Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:51 PM Conversation Contents Fwd: USFS Mineral Withdrawal Transmittal; 09/27/17 1330 Meeting Request Attachments: /84. Fwd: USFS Mineral Withdrawal Transmittal; 09/27/17 1330 Meeting Request/1.1 Ltr NCLUCB to USDA 083017.pdf /84. Fwd: USFS Mineral Withdrawal Transmittal; 09/27/17 1330 Meeting Request/1.2 USDA Purdue Ltr to NCLUCB 082417.pdf /84. Fwd: USFS Mineral Withdrawal Transmittal; 09/27/17 1330 Meeting Request/1.3 NCLUCB EIS Scoping Final Submittal W Attachments 081117.pdf /84. Fwd: USFS Mineral Withdrawal Transmittal; 09/27/17 1330 Meeting Request/1.4 NCLUCB Comments Final W Attachments.pdf /84. Fwd: USFS Mineral Withdrawal Transmittal; 09/27/17 1330 Meeting Request/1.5 Testimony Sve 072517.pdf Daniel Jorjani From: Sent: To: Subject: Attachments: Daniel Jorjani Thu Aug 31 2017 07:49:36 GMT-0600 (MDT) jack.haugrud@sol.doi.gov Fwd: USFS Mineral Withdrawal Transmittal; 09/27/17 1330 Meeting Request Ltr NCLUCB to USDA 083017.pdf USDA Purdue Ltr to NCLUCB 082417.pdf NCLUCB EIS Scoping Final Submittal W Attachments 081117.pdf NCLUCB Comments Final W Attachments.pdf Testimony Sve 072517.pdf Sent from my iPhone Begin forwarded message: From: Rich Sve To: "agsec@usda.gov" , "lweldon@fs.fed.us" , "brandi.greenleaf@wdc.usda.gov" , "brian.dansel@osec.usda.gov" , "djiron@fs.fed.us" Cc: "anne.marcotte@co.aitkin.mn.us" , "johnchell21@yahoo.com" , "exsec@ios.doi.gov" , "kathleen benedetto@ios.doi.gov" , "katharine macgregor@ios.doi.gov" , "edward.keable@sol.doi.gov" , "daniel.jorjani@sol.doi.gov" , "lthurn@blm.gov" , "STS@wbsnet.org" Subject: USFS Mineral Withdrawal Transmittal; 09/27/17 1330 Meeting Request Dear Secretary Purdue, Mr. Jiron and Ms. Weldon: Attached for your records are electronic copies of documents filed by the Northern Counties Land Use Coordinating Board (NCLUCB) in response to an application for mineral withdrawal by the United States Forest Service (USFS). Prepared from the perspective of affected local governments, these documents collectively provide a comprehensive assessment of statutory, technical and procedural requirements and problems with the USFS application. We specifically have attached our April 17, 2017 request that the Secretary of Interior cancel the withdrawal application, and our comments to the record providing detailed alternatives to be considered once the NEPA EIS Scoping process gets underway. As the Secretaries of Agriculture and Interior contemplate preparation of the joint agency Memorandum required by CEQ regulations in 40 CFR §1501.5(c), we believe we could contribute useful information only available from us as local government. To that end, we request a briefing meeting at the USDA offices on Wednesday, September 27, 2017 at 1:30 pm (preferred) or September 26 at 1:30 pm to review the salient points of our public record submittals. Thank you in advance for your consideration of our request. Regards, Rich Sve Chairman The Northern Counties Land Use Coordinating Board (218)343-6153 Rich.Sve@co.lake.mn.us Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:52 PM Conversation Contents Agenda for DMR Weekly Meeting Attachments: /85. Agenda for DMR Weekly Meeting/1.1 2017.08.23 DMR Weekly Meeting Agenda.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Tue Aug 22 2017 17:03:38 GMT-0600 (MDT) Daniel Jorjani , Jack Haugrud Tom Bovard , Dennis Daugherty , Richard McNeer Agenda for DMR Weekly Meeting 2017.08.23 DMR Weekly Meeting Agenda.docx Dan and Jack, I've attached the agenda for our weekly meeting tomorrow. We'll see you in the morning. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:52 PM Conversation Contents TMM? Attachments: /86. TMM?/2.1 2017.08.09 Draft Lease Renewal Scenarios w. comment.docx /86. TMM?/3.1 2017.08.09 Draft Lease Renewal Scenarios w. comment.docx Daniel Jorjani From: Sent: To: Subject: Daniel Jorjani Thu Aug 10 2017 11:34:24 GMT-0600 (MDT) jack.haugrud@sol.doi.gov TMM? Sent from my iPhone "Haugrud, Kevin" From: Sent: To: CC: Subject: Attachments: "Haugrud, Kevin" Thu Aug 10 2017 12:10:57 GMT-0600 (MDT) Daniel Jorjani Karen Hawbecker Re: TMM? 2017.08.09 Draft Lease Renewal Scenarios w. comment.docx Here you go. On Thu, Aug 10, 2017 at 1:34 PM, Daniel Jorjani wrote: Sent from my iPhone "Jorjani, Daniel" From: Sent: To: CC: Subject: Attachments: "Jorjani, Daniel" Mon Aug 21 2017 16:38:18 GMT-0600 (MDT) "Brown, Laura" , Aaron Moody Kevin Haugrud , Karen Hawbecker Fwd: TMM? 2017.08.09 Draft Lease Renewal Scenarios w. comment.docx Laura and Aaron - for informational purposes as a follow-up to our brief discussion re withdrawal - Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:52 PM Conversation Contents DMR Friday List Attachments: /87. DMR Friday List/1.1 2017.08.18 DMR Friday List.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Fri Aug 18 2017 16:34:29 GMT-0600 (MDT) Jack Haugrud Tom Bovard , Dennis Daugherty , Richard McNeer DMR Friday List 2017.08.18 DMR Friday List.docx Jack, I've attached our Friday list for your reference. I hope you have a great weekend. Safe travels into the totality zone. Come back with your eyesight intact! --Karen Kevin Haugrud From: Sent: To: Subject: Kevin Haugrud Fri Aug 18 2017 16:50:04 GMT-0600 (MDT) "Hawbecker, Karen" Re: DMR Friday List Thanks Karen. Am having misgivings about the drive back, so may just enjoy the view from around here, but either way do not intend to be in the office on Monday. -------- Original Message -------From: "Hawbecker, Karen" Date: Fri, August 18, 2017 6:35 PM -0400 To: Jack Haugrud CC: Tom Bovard , Dennis Daugherty , Richard McNeer Subject: DMR Friday List Jack, I've attached our Friday list for your reference. I hope you have a great weekend. Safe travels into the totality zone. Come back with your eyesight intact! --Karen "Hawbecker, Karen" From: Sent: To: Subject: "Hawbecker, Karen" Fri Aug 18 2017 16:54:03 GMT-0600 (MDT) Kevin Haugrud Re: DMR Friday List For those of us in DMR who are here on Monday, we're going to go out at 2:20 pm to Constitution Gardens with various contraptions to "view" the eclipse. Some will bring special solar glasses. Others will bring homemade pin-hole devices. I'll take pictures for the AWP. On Fri, Aug 18, 2017 at 6:50 PM, Kevin Haugrud wrote: Thanks Karen. Am having misgivings about the drive back, so may just enjoy the view from around here, but either way do not intend to be in the office on Monday. -------- Original Message -------From: "Hawbecker, Karen" Date: Fri, August 18, 2017 6:35 PM -0400 To: Jack Haugrud CC: Tom Bovard , Dennis Daugherty , Richard McNeer Subject: DMR Friday List Jack, I've attached our Friday list for your reference. I hope you have a great weekend. Safe travels into the totality zone. Come back with your eyesight intact! --Karen Kevin Haugrud From: Sent: To: Subject: Kevin Haugrud Fri Aug 18 2017 17:15:30 GMT-0600 (MDT) "Hawbecker, Karen" Re: DMR Friday List A party - you make it tempting to come in. -------- Original Message -------From: "Hawbecker, Karen" Date: Fri, August 18, 2017 6:54 PM -0400 To: Kevin Haugrud Subject: Re: DMR Friday List For those of us in DMR who are here on Monday, we're going to go out at 2:20 pm to Constitution Gardens with various contraptions to "view" the eclipse. Some will bring special solar glasses. Others will bring homemade pin-hole devices. I'll take pictures for the AWP. On Fri, Aug 18, 2017 at 6:50 PM, Kevin Haugrud wrote: Thanks Karen. Am having misgivings about the drive back, so may just enjoy the view from around here, but either way do not intend to be in the office on Monday. -------- Original Message -------From: "Hawbecker, Karen" Date: Fri, August 18, 2017 6:35 PM -0400 To: Jack Haugrud CC: Tom Bovard , Dennis Daugherty , Richard McNeer Subject: DMR Friday List Jack, I've attached our Friday list for your reference. I hope you have a great weekend. Safe travels into the totality zone. Come back with your eyesight intact! --Karen "Hawbecker, Karen" From: Sent: To: Subject: "Hawbecker, Karen" Fri Aug 18 2017 17:18:24 GMT-0600 (MDT) Kevin Haugrud Re: DMR Friday List You're welcome to join us! On Fri, Aug 18, 2017 at 7:15 PM, Kevin Haugrud wrote: A party - you make it tempting to come in. -------- Original Message -------From: "Hawbecker, Karen" Date: Fri, August 18, 2017 6:54 PM -0400 To: Kevin Haugrud Subject: Re: DMR Friday List For those of us in DMR who are here on Monday, we're going to go out at 2:20 pm to Constitution Gardens with various contraptions to "view" the eclipse. Some will bring special solar glasses. Others will bring homemade pinhole devices. I'll take pictures for the AWP. On Fri, Aug 18, 2017 at 6:50 PM, Kevin Haugrud wrote: Thanks Karen. Am having misgivings about the drive back, so may just enjoy the view from around here, but either way do not intend to be in the office on Monday. -------- Original Message -------From: "Hawbecker, Karen" Date: Fri, August 18, 2017 6:35 PM -0400 To: Jack Haugrud CC: Tom Bovard , Dennis Daugherty , Richard McNeer Subject: DMR Friday List Jack, I've attached our Friday list for your reference. I hope you have a great weekend. Safe travels into the totality zone. Come back with your eyesight intact! --Karen "Hawbecker, Karen" From: Sent: "Hawbecker, Karen" Fri Aug 18 2017 17:21:54 GMT-0600 (MDT) To: Subject: Kevin Haugrud Re: DMR Friday List And don't miss the eclipse donuts at Krispy Kreme or Duck Donuts this weekend. On Fri, Aug 18, 2017 at 7:18 PM, Hawbecker, Karen wrote: You're welcome to join us! On Fri, Aug 18, 2017 at 7:15 PM, Kevin Haugrud wrote: A party - you make it tempting to come in. -------- Original Message -------From: "Hawbecker, Karen" Date: Fri, August 18, 2017 6:54 PM -0400 To: Kevin Haugrud Subject: Re: DMR Friday List For those of us in DMR who are here on Monday, we're going to go out at 2:20 pm to Constitution Gardens with various contraptions to "view" the eclipse. Some will bring special solar glasses. Others will bring homemade pin-hole devices. I'll take pictures for the AWP. On Fri, Aug 18, 2017 at 6:50 PM, Kevin Haugrud wrote: Thanks Karen. Am having misgivings about the drive back, so may just enjoy the view from around here, but either way do not intend to be in the office on Monday. -------- Original Message -------From: "Hawbecker, Karen" Date: Fri, August 18, 2017 6:35 PM -0400 To: Jack Haugrud CC: Tom Bovard , Dennis Daugherty , Richard McNeer Subject: DMR Friday List Jack, I've attached our Friday list for your reference. I hope you have a great weekend. Safe travels into the totality zone. Come back with your eyesight intact! --Karen Kevin Haugrud From: Sent: To: Subject: Kevin Haugrud Fri Aug 18 2017 17:40:33 GMT-0600 (MDT) "Hawbecker, Karen" Re: DMR Friday List I had missed that news. Thanks for telling me -------- Original Message -------From: "Hawbecker, Karen" Date: Fri, August 18, 2017 7:22 PM -0400 To: Kevin Haugrud Subject: Re: DMR Friday List And don't miss the eclipse donuts at Krispy Kreme or Duck Donuts this weekend. On Fri, Aug 18, 2017 at 7:18 PM, Hawbecker, Karen wrote: You're welcome to join us! On Fri, Aug 18, 2017 at 7:15 PM, Kevin Haugrud wrote: A party - you make it tempting to come in. -------- Original Message -------From: "Hawbecker, Karen" Date: Fri, August 18, 2017 6:54 PM -0400 To: Kevin Haugrud Subject: Re: DMR Friday List For those of us in DMR who are here on Monday, we're going to go out at 2:20 pm to Constitution Gardens with various contraptions to "view" the eclipse. Some will bring special solar glasses. Others will bring homemade pin-hole devices. I'll take pictures for the AWP. On Fri, Aug 18, 2017 at 6:50 PM, Kevin Haugrud wrote: Thanks Karen. Am having misgivings about the drive back, so may just enjoy the view from around here, but either way do not intend to be in the office on Monday. -------- Original Message -------From: "Hawbecker, Karen" Date: Fri, August 18, 2017 6:35 PM -0400 To: Jack Haugrud CC: Tom Bovard , Dennis Daugherty , Richard McNeer Subject: DMR Friday List Jack, I've attached our Friday list for your reference. I hope you have a great weekend. Safe travels into the totality zone. Come back with your eyesight intact! --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:52 PM Conversation Contents Friday week ahead for the week of Aug 21 Attachments: /88. Friday week ahead for the week of Aug 21/1.1 2017 Aug 18 FINAL.docx "Brown, Laura" From: Sent: To: Subject: Attachments: "Brown, Laura" Fri Aug 18 2017 11:57:45 GMT-0600 (MDT) Kevin Haugrud , "Moody, Aaron" , Lois Wye Friday week ahead for the week of Aug 21 2017 Aug 18 FINAL.docx Attached is the Friday report. I hope everyone has a wonderful weekend. -Laura Brown, Associate Solicitor Division of Land Resources Office of the Solicitor U.S. Department of the Interior 1849 C St., NW Washington, DC 20240 Phone: 202 208-6545 Cell: 202 359-2712 Fax: 202 219-1792 Laura.Brown@sol.doi.gov Excellence - Integrity - Service This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of the e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. Thank you. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:52 PM Conversation Contents Four Potential Scenarios for Renewing Twin Metals' Leases Attachments: /89. Four Potential Scenarios for Renewing Twin Metals' Leases/1.1 2017.08.06 Lease Renewal Scenario 1.docx /89. Four Potential Scenarios for Renewing Twin Metals' Leases/1.2 2017.08.06 Lease Renewal Scenario 2A.docx /89. Four Potential Scenarios for Renewing Twin Metals' Leases/1.3 2017.08.06 Lease Renewal Scenario 2B.docx /89. Four Potential Scenarios for Renewing Twin Metals' Leases/2.1 2017.08.07 Lease Renewal Scenario 3.docx /89. Four Potential Scenarios for Renewing Twin Metals' Leases/3.1 2017.08.06 Lease Renewal Scenarios.docx /89. Four Potential Scenarios for Renewing Twin Metals' Leases/5.1 2017.08.09 Draft Lease Renewal Scenarios w. comment.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Sun Aug 06 2017 21:03:34 GMT-0600 (MDT) Jack Haugrud Richard McNeer , Briana Collier , Joshua Hanson , Roy Fuller , "Sklar, Ryan" Four Potential Scenarios for Renewing Twin Metals' Leases 2017.08.06 Lease Renewal Scenario 1.docx 2017.08.06 Lease Renewal Scenario 2A.docx 2017.08.06 Lease Renewal Scenario 2B.docx ​Jack, I've attached three of the four potential scenarios for renewing Twin Metals' leases. I'll send you the fourth one tomorrow morning. The fourth scenario is (b) (5) Let us know if these will serve the purpose. Thanks. --Karen ​ "Hawbecker, Karen" From: Sent: To: CC: "Hawbecker, Karen" Mon Aug 07 2017 17:04:11 GMT-0600 (MDT) Jack Haugrud Richard McNeer , Briana Collier , Joshua Hanson , Roy Fuller "Sklar, Ryan" Subject: Re: Four Potential Scenarios for Renewing Twin Metals' Leases Attachments: 2017.08.07 Lease Renewal Scenario 3.docx Jack, Here is Scenario 3. Thank you. --Karen On Sun, Aug 6, 2017 at 11:03 PM, Hawbecker, Karen wrote: Jack, I've attached three of the four potential scenarios for renewing Twin Metals? leases. I'll send you the fourth one tomorrow morning. The fourth scenario is US ese WI serve epurpose. an S.- aren "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Mon Aug 07 2017 17:13:10 GMT-0600 (MDT) To: "Hawbecker, Karen" Subject: Re: Four Potential Scenarios for Renewing Twin Metals' Leases Attachments: 2017.08.06 Lease Renewal Scenariosdocx Karen: On Mon, Aug 7, 2017 at 7:04 PM, Hawbecker, Karen wrote: Jack, Here is Scenario 3. Thank you. --Karen On Sun, Aug 6, 2017 at 11:03 PM, Hawbecker, Karen wrote: Jack, I've attached three of the four potential scenarios for renewing Twin Metals' leases. I'll send you the fourth one tomorrow morning. The fourth scenario i US nowr ese WI serve epurpose. an S. - aren Karen Hawbecker From: Karen Hawbecker Sent: Mon Aug 07 2017 21:34:00 GMT-0600 (MDT) To: "Haugrud, Kevin" Subject: Re: Four Potential Scenarios for Renewing Twin Metals' Leases Okay-We'v? Sent from my iPad On Aug 7, 2017, at 7:13 PM, Haugrud, Kevin wrote: Karen: On Mon, Aug 7, 2017 at 7:04 PM, Hawbecker, Karen wrote: Jack, Here is Scenario 3. Thank you. --Karen On Sun, Aug 6, 2017 at 11:03 PM, Hawbecker, Karen wrote: Jack, I've attached three of the four potential scenarios for renewing Twin Metals' leases. I'll send you the fourth one tomorrow morning. The fourth scenario is . et us know I ese WI serve purpose. an S. -- aren <2017.08.06 Lease Renewal Scenarios.docx> "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Wed Aug 09 2017 15:09:50 GMT-0600 (MDT) To: "Haugrud, Kevin" Richard McNeer Briana Collier Joshua Hanson CC: Roy Fuller "Sklar, Ryan" Subject: Re: Four Potential Scenarios for Renewing Twin Metals' Leases Attachments: 2017.08.09 Draft Lease Renewal Scenarios w. comment.docx Jack, Here's the new clean version with me now: my response assuages your concern. an S. -- aren On Mon, Aug 7, 2017 at 7:04 PM, Hawbecker, Karen wrote: Jack, Here is Scenario 3. Thank you. -Karen On Sun, Aug 6, 2017 at 11:03 PM, Hawbecker, Karen wrote: Jack, I've attached three of the four potential scenarios for renewing Twin Metals' leases. I?ll send you the fourth one tomorrow morning. The fourth scenario us now ese WI serve epurpose. an aren Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:53 PM Conversation Contents Twin Metals Litigation Briefing Paper Attachments: /90. Twin Metals Litigation Briefing Paper/1.1 2017.08.06 Twin Metals litigation briefing paper.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Sun Aug 06 2017 21:30:01 GMT-0600 (MDT) Jack Haugrud Richard McNeer , Briana Collier , Roy Fuller , Joshua Hanson , "Sklar, Ryan" Twin Metals Litigation Briefing Paper 2017.08.06 Twin Metals litigation briefing paper.docx Jack, I've attached the most recent updated version of the briefing paper about the Twin Metals litigation in preparation for a briefing with David Bernhardt. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:53 PM Conversation Contents Friday Week Ahead--Aug 4 Attachments: /91. Friday Week Ahead--Aug 4/1.1 2017 Aug 4 FINAL.docx "Brown, Laura" From: Sent: To: Subject: Attachments: "Brown, Laura" Fri Aug 04 2017 14:57:47 GMT-0600 (MDT) Kevin Haugrud , "Moody, Aaron" , Lois Wye Friday Week Ahead--Aug 4 2017 Aug 4 FINAL.docx Here you go everyone--hope you have a wonderful weekend. -Laura Brown, Associate Solicitor Division of Land Resources Office of the Solicitor U.S. Department of the Interior 1849 C St., NW Washington, DC 20240 Phone: 202 208-6545 Cell: 202 359-2712 Fax: 202 219-1792 Laura.Brown@sol.doi.gov Excellence - Integrity - Service This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of the e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. Thank you. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:53 PM Conversation Contents Agenda for DMR Weekly Meeting Attachments: /92. Agenda for DMR Weekly Meeting/1.1 2017.08.02 DMR Weekly Meeting Agenda.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Tue Aug 01 2017 15:45:42 GMT-0600 (MDT) Daniel Jorjani , Jack Haugrud Emily Morris , Richard McNeer , Dennis Daugherty , Tom Bovard Agenda for DMR Weekly Meeting 2017.08.02 DMR Weekly Meeting Agenda.docx Dan and Jack, I've attached the agenda for our weekly meeting tomorrow morning. Emily Morris will be acting for Tom Bovard and is here in D.C. for the meeting. We'll see you in the morning. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:53 PM Conversation Contents Friday Week Ahead Attachments: /94. Friday Week Ahead/1.1 2017 July 28 FINAL.docx "Brown, Laura" From: Sent: To: Subject: Attachments: "Brown, Laura" Fri Jul 28 2017 14:46:03 GMT-0600 (MDT) Kevin Haugrud , "Moody, Aaron" , Lois Wye , Gregory Russell Friday Week Ahead 2017 July 28 FINAL.docx Here is a look at what we'll be working on next week. -Laura Brown, Associate Solicitor Division of Land Resources Office of the Solicitor U.S. Department of the Interior 1849 C St., NW Washington, DC 20240 Phone: 202 208-6545 Cell: 202 359-2712 Fax: 202 219-1792 Laura.Brown@sol.doi.gov Excellence - Integrity - Service This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of the e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. Thank you. "Haugrud, Kevin" From: Sent: To: CC: "Haugrud, Kevin" Fri Jul 28 2017 15:40:42 GMT-0600 (MDT) "Brown, Laura" "Moody, Aaron" , Lois Wye , Gregory Russell Subject: Re: Friday Week Ahead Thanks much. Hope you all have a nice weekend. On Fri, Jul 28, 2017 at 4:46 PM, Brown, Laura wrote: Here is a look at what we'll be working on next week. -Laura Brown, Associate Solicitor Division of Land Resources Office of the Solicitor U.S. Department of the Interior 1849 C St., NW Washington, DC 20240 Phone: 202 208-6545 Cell: 202 359-2712 Fax: 202 219-1792 Laura.Brown@sol.doi.gov Excellence - Integrity - Service This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of the e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. Thank you. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:53 PM Conversation Contents Agenda for DMR Weekly Meeting Attachments: /95. Agenda for DMR Weekly Meeting/1.1 2017.07.26 DMR Weekly Meeting Agenda.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Tue Jul 25 2017 17:10:42 GMT-0600 (MDT) Daniel Jorjani , Jack Haugrud Tom Bovard , Dennis Daugherty , Richard McNeer Agenda for DMR Weekly Meeting 2017.07.26 DMR Weekly Meeting Agenda.docx Dan and Jack, I've attached the agenda for our weekly meeting tomorrow. We'll see you in the morning. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:54 PM Conversation Contents Twin Metals Follow Up Attachments: /97. Twin Metals Follow Up/1.1 2017.07.20 Twin Metals NEPA Summary.docx /97. Twin Metals Follow Up/1.2 2017.07.20 Examples of Diligence Provisions.docx /97. Twin Metals Follow Up/1.3 2013 Royalty Report (2).pdf /97. Twin Metals Follow Up/1.4 2017.07.20 Twin Metals Leases Royalty and Rental Provisions.docx /97. Twin Metals Follow Up/1.5 2017.07.20 Twin Metals litigation briefing paper.docx /97. Twin Metals Follow Up/3.1 2nd Memo to John about royalty (4).doc "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Thu Jul 20 2017 16:06:26 GMT-0600 (MDT) Katharine Macgregor Michael Nedd , Kathleen Benedetto , Timothy Spisak , "Joseph (Gene) Seidlitz" , Karen Mouritsen , Mitchell Leverette , Rick Deery , Jack Haugrud , Daniel Jorjani , Richard McNeer , Briana Collier , Roy Fuller , "Sklar, Ryan" , Joshua Hanson Twin Metals Follow Up 2017.07.20 Twin Metals NEPA Summary.docx 2017.07.20 Examples of Diligence Provisions.docx 2013 Royalty Report (2).pdf 2017.07.20 Twin Metals Leases Royalty and Rental Provisions.docx 2017.07.20 Twin Metals litigation briefing paper.docx Kate, When we met on Tuesday, July 11, you asked for the following information: 1. How much NEPA has been done? I have attached a chart that shows the NEPA analysis that has been conducted related to the two Twin Metals leases and for the Superior National Forest area more generally. We have indicated the extent to which that NEPA documentation has addressed the two leases. 2. What do other solid mineral leases say about diligence? I have attached a document that includes diligence provisions from a coal lease, a sodium lease and a lead lease. 3. What is Twin Metals' timing for submitting a plan of operations? At a meeting last year with Twin Metals counsel before BLM denied the lease renewal application, Twin Metals reported that they intended to file a plan of operations in 2018. However, with the intervening denial decision and litigation, Twin Metals' timing has no doubt been delayed. 4. What is the difference between the royalty rates provided for in the 1966 leases and the royalty rates that BLM would recommend today? I have attached two documents related to royalties: (1) an analysis that BLM was working on 2013 regarding the royalties in these leases (attachment is entitled, "2013 Royalty Report") and (2) an overview of the royalty, rental and diligence provisions in the 1966 lease In addition to these four items, I have also attached an updated copy of the Twin Metals litigation briefing paper. ​ I've copied those who are working on Twin Metals issues in BLM, ASLM and SOL, so that we can all stay on the same page. Please let me know if you have any questions. Thank you. --Karen ​ "Joseph (Gene) Seidlitz" From: Sent: To: CC: Subject: "Joseph (Gene) Seidlitz" Thu Jul 20 2017 16:28:16 GMT-0600 (MDT) "Hawbecker, Karen" Katharine Macgregor , Michael Nedd , Kathleen Benedetto , Timothy Spisak , Karen Mouritsen , Mitchell Leverette , Rick Deery , Jack Haugrud , Daniel Jorjani , Richard McNeer , Briana Collier , Roy Fuller , "Sklar, Ryan" , Joshua Hanson Re: Twin Metals Follow Up Karen, Thanks for the open coordination and communication on this subject. Much appreciated Gene Sent from my iPhone. Gene Seidlitz Senior Advisor ASLM/BLM Room 6629 202-2084555 > On Jul 20, 2017, at 6:07 PM, Hawbecker, Karen wrote: > > Kate, When we met on Tuesday, July 11, you asked for the following > information: > > > 1. *How much NEPA has been done? * I have attached a chart that shows the > NEPA analysis that has been conducted related to the two Twin Metals leases > and for the Superior National Forest area more generally. We have > indicated the extent to which that NEPA documentation has addressed the two > leases. > > > 2. *What do other solid mineral leases say about diligence?* I have > attached a document that includes diligence provisions from a coal lease, a > sodium lease and a lead lease. > > > 3. *What is Twin Metals' timing for submitting a plan of operations?* At > a meeting last year with Twin Metals counsel before BLM denied the lease > renewal application, Twin Metals reported that they intended to file a plan > of operations in 2018. However, with the intervening denial decision and > litigation, Twin Metals' timing has no doubt been delayed. > > > 4. *What is the difference between the royalty rates provided for in the > 1966 leases and the royalty rates that BLM would recommend today?* I have > attached two documents related to royalties: (1) an analysis that BLM was > working on 2013 regarding the royalties in these leases (attachment is > entitled, "2013 Royalty Report") and (2) an overview of the royalty, rental > and diligence provisions in the 1966 lease > > > In addition to these four items, I have also attached an updated copy of > the Twin Metals litigation briefing paper. ​ I've copied those who are > working on Twin Metals issues in BLM, ASLM and SOL, so that we can all stay on the same page. Please let me know if you have any questions. Thank you. --Karen <2017.07.20 Twin Metals NEPA Summary.docx> <2017.07.20 Examples of Diligence Provisions.docx> <2013 Royalty Report (2).pdf> <2017.07.20 Twin Metals Leases Royalty and Rental Provisions.docx> <2017.07.20 Twin Metals litigation brie?ng paper.docx> "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Tue Jul 25 2017 10:47:40 GMT-0600 (MDT) Katharine Macgregor Michael Nedd Kathleen Benedetto Timothy Spisak "Joseph (Gene) Seidlitz" Karen Mouritsen To_ Mitchell Leverette Rick Deery Jack Haugrud Daniel Jorjani Richard McNeer Briana Collier Roy Fuller "Sklar, Ryan" Joshua Hanson Subject: Fwd: Twin Metals Follow Up Attachments: 2nd Memo to John about royalty (4).doc I want to share with the group some additional information about the royalty rate possibilities for Twin Metals as we move forward in the reconsideration process. --Karen -- Forwarded message From: Timothy Spisak Date: Fri, Jul 21, 2017 at 3:57 PM Subject: RE: Twin Metals Follow Up To: Karen Hawbecker Karen. BLM prooram folks met via CC to discuss the RR possibilities for Twin Metals Thanks! Tim ?Serenity Now!? Frank Costanza, Seinfeld, 1997 ?Serenity now, insanity later? Lloyd Braun, Seinfeld, 1997 ************************************** Timothy 'Tim' R. Spisak Acting Assistant Director, Energy, Minerals & Realty Management, WO-300 DOI-Bureau of Land Management tspisak@blm.gov (202) 208-4201 office (202) 251-3079 cell ************************************** From: Hawbecker, Karen [mailto:karen.hawbecker@sol.doi.gov] Sent: Thursday, July 20, 2017 6:06 PM To: Katharine Macgregor Cc: Michael Nedd ; Kathleen Benedetto ; Timothy Spisak ; Joseph (Gene) Seidlitz ; Karen Mouritsen ; Mitchell Leverette ; Rick Deery ; Jack Haugrud ; Daniel Jorjani ; Richard McNeer ; Briana Collier ; Roy Fuller ; Sklar, Ryan ; Joshua Hanson Subject: Twin Metals Follow Up Kate, When we met on Tuesday, July 11, you asked for the following information: 1. How much NEPA has been done? I have attached a chart that shows the NEPA analysis that has been conducted related to the two Twin Metals leases and for the Superior National Forest area more generally. We have indicated the extent to which that NEPA documentation has addressed the two leases. 2. What do other solid mineral leases say about diligence? I have attached a document that includes diligence provisions from a coal lease, a sodium lease and a lead lease. 3. What is Twin Metals' timing for submitting a plan of operations? At a meeting last year with Twin Metals counsel before BLM denied the lease renewal application, Twin Metals reported that they intended to file a plan of operations in 2018. However, with the intervening denial decision and litigation, Twin Metals' timing has no doubt been delayed. 4. What is the difference between the royalty rates provided for in the 1966 leases and the royalty rates that BLM would recommend today? I have attached two documents related to royalties: (1) an analysis that BLM was working on 2013 regarding the royalties in these leases (attachment is entitled, "2013 Royalty Report") and (2) an overview of the royalty, rental and diligence provisions in the 1966 lease In addition to these four items, have also attached an updated copy of the Twin Metals litigation briefing paper. I've copied those who are working on Twin Metals issues in BLM, ASLM and SOL, so that we can all stay on the same page. Please let me know if you have any questions. Thank you. --Karen "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Tue Jul 25 2017 10:53:21 GMT-0600 (MDT) To: "Hawbecker, Karen" Subject: Re: Twin Metals Follow Up Hmm. I'm skeptical of that rationale. On Tue, Jul 25, 2017 at 12:47 PM, Hawbecker, Karen wrote: I want to share with the group some additional information about the royalty rate possibilities for Twin Metals as we move forward in the reconsideration process. --Karen -- Forwarded message From: Timothy Spisak Date: Fri, Jul 21, 2017 at 3:57 PM Subject: RE: Twin Metals Follow Up To: Karen Hawbecker Karen. BLM brooram folks met via CC to discuss the RR possibilities for Twin Metals. Thanks! Tim ?Serenity Now!? Frank Costanza, Seinfeld, 1997 ?Serenity now, insanity later' Lloyd Braun, Seinfeld, 1997 ************************************** Timothy 'Tim' R. Spisak Acting Assistant Director, Energy, Minerals & Realty Management, WO-300 DOI-Bureau of Land Management tspisak@blm.gov (202) 208-4201 office (202) 251-3079 cell ************************************** From: Hawbecker, Karen [mailto:karen.hawbecker@sol.doi.gov] Sent: Thursday, July 20, 2017 6:06 PM To: Katharine Macgregor Cc: Michael Nedd ; Kathleen Benedetto ; Timothy Spisak ; Joseph (Gene) Seidlitz ; Karen Mouritsen ; Mitchell Leverette ; Rick Deery ; Jack Haugrud ; Daniel Jorjani ; Richard McNeer ; Briana Collier ; Roy Fuller ; Sklar, Ryan ; Joshua Hanson Subject: Twin Metals Follow Up Kate, When we met on Tuesday, July 11, you asked for the following information: 1. How much NEPA has been done? I have attached a chart that shows the NEPA analysis that has been conducted related to the two Twin Metals leases and for the Superior National Forest area more generally. We have indicated the extent to which that NEPA documentation has addressed the two leases. 2. What do other solid mineral leases say about diligence? I have attached a document that includes diligence provisions from a coal lease, a sodium lease and a lead lease. 3. What is Twin Metals' timing for submitting a plan of operations? At a meeting last year with Twin Metals counsel before BLM denied the lease renewal application, Twin Metals reported that they intended to file a plan of operations in 2018. However, with the intervening denial decision and litigation, Twin Metals' timing has no doubt been delayed. 4. What is the difference between the royalty rates provided for in the 1966 leases and the royalty rates that BLM would recommend today? I have attached two documents related to royalties: (1) an analysis that BLM was working on 2013 regarding the royalties in these leases (attachment is entitled, "2013 Royalty Report") and (2) an overview of the royalty, rental and diligence provisions in the 1966 lease In addition to these four items, I have also attached an updated copy of the Twin Metals litigation briefing paper. ​ I've copied those who are working on Twin Metals issues in BLM, ASLM and SOL, so that we can all stay on the same page. Please let me know if you have any questions. Thank you. --Karen ​ Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:56 PM Conversation Contents week ahead Attachments: /98. week ahead/1.1 2017 July 21 FINAL.docx "Moody, Aaron" From: Sent: To: CC: Subject: Attachments: "Moody, Aaron" Fri Jul 21 2017 14:39:41 GMT-0600 (MDT) Kevin Haugrud "Brown, Laura" , Lois Wye week ahead 2017 July 21 FINAL.docx ...is attached. See you next week. -Aaron Aaron G. Moody Assistant Solicitor, Branch of Public Lands Division of Land Resources Office of the Solicitor U.S. Department of the Interior 202-208-3495 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. "Haugrud, Kevin" From: Sent: To: CC: Subject: "Haugrud, Kevin" Fri Jul 21 2017 17:04:28 GMT-0600 (MDT) "Moody, Aaron" "Brown, Laura" , Lois Wye Re: week ahead Thanks. Hope everyone has a great weekend (indoors or in the shade). On Fri, Jul 21, 2017 at 4:39 PM, Moody, Aaron wrote: ...is attached. See you next week. -Aaron Aaron G. Moody Assistant Solicitor, Branch of Public Lands Division of Land Resources Office of the Solicitor U.S. Department of the Interior 202-208-3495 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:56 PM Conversation Contents Documents responding to Kate's requests re: Twin Metals Attachments: /99. Documents responding to Kate's requests re: Twin Metals/1.1 2017.07.20 Twin Metals NEPA Summary.docx /99. Documents responding to Kate's requests re: Twin Metals/1.2 2017.07.20 Examples of Diligence Provisionsdocx /99. Documents responding to Kate's requests re: Twin Metals/1.3 2013 Royalty Report (2).pdf /99. Documents responding to Kate's requests re: Twin Metals/1.4 2017.07.20 Twin Metals Leases Royalty and Rental Provisionsdocx /99. Documents responding to Kate's requests re: Twin Metals/1.5 2017.07.20 Twin Metals litigation briefing paper.docx "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Thu Jul 20 2017 15:09:17 GMT-0600 (MDT) To: Jack Haugrud Subject: Documents responding to Kate's requests re: Twin Metals 2017.07.20 Twin Metals NEPA Summary.docx 2017.07.20 Examples of Diligence Provisionsdocx 2013 Royalty Report Attachments: (2).pdf 2017.07.20 Twin Metals Leases Royalty and Rental Provisionsdocx 2017.07.20 Twin Metals litigation brie?ng paperdocx Jack, As we discussed after the Senior staff meeting, when I met with Kate last Tuesday, July 11, she asked for information related to four questions. Please let me know if you have any objections to the content of my draft email to Kate or to the content of any of the attached documents. Thanks. -Karen Draft email to Kate: In addition to these four items, I have also attached an updated copy of the Twin Metals litigation briefing paper. ​ Please let me know if you have any questions. --Karen ​ "Haugrud, Kevin" From: Sent: To: Subject: "Haugrud, Kevin" Thu Jul 20 2017 15:54:18 GMT-0600 (MDT) "Hawbecker, Karen" Re: Documents responding to Kate's requests re: Twin Metals Karen: This looks fine. I have one small edit for your consideration shown in caps below. On Thu, Jul 20, 2017 at 5:09 PM, Hawbecker, Karen wrote: Jack, As we discussed after the Senior staff meeting, when I met with Kate last Tuesday, July 11, she asked for information related to four questions. Please let me know if you have any objections to the content of my draft email to Kate or to the content of any of the attached documents. Thanks. --Karen Draft email to Kate: Kate, When we met on Tuesday, July 11, you asked for the following information: 1. How much NEPA has been done? I have attached a chart that shows the NEPA analysis that has been conducted related to the two Twin Metals leases and for the Superior National Forest area MORE GENERALLY. We have indicated the extent to which that NEPA documentation has addressed the two leases. 2. What do other solid mineral leases say about diligence? I have attached a document that includes diligence provisions from a coal lease, a sodium lease and a lead lease. 3. What is Twin Metals' timing for submitting a plan of operations? At a meeting last year with Twin Metals counsel before BLM denied the lease renewal application, Twin Metals reported that they intended to file a plan of operations in 2018. However, with the intervening denial decision and litigation, Twin Metals' timing has no doubt been delayed. 4. What is the difference between the royalty rates provided for in the 1966 leases and the royalty rates that BLM would recommend today? I have attached two documents related to royalties: (1) an analysis that BLM was working on 2013 regarding the royalties in these leases (attachment is entitled, "2013 Royalty Report") and (2) an overview of the royalty, rental and diligence provisions in the 1966 lease In addition to these four items, I have also attached an updated copy of the Twin Metals litigation briefing paper. ​ Please let me know if you have any questions. --Karen ​ "Hawbecker, Karen" From: Sent: To: Subject: "Hawbecker, Karen" Thu Jul 20 2017 15:56:04 GMT-0600 (MDT) "Haugrud, Kevin" Re: Documents responding to Kate's requests re: Twin Metals Thanks, Jack. --Karen On Thu, Jul 20, 2017 at 5:54 PM, Haugrud, Kevin wrote: Karen: This looks fine. I have one small edit for your consideration shown in caps below. On Thu, Jul 20, 2017 at 5:09 PM, Hawbecker, Karen wrote: Jack, As we discussed after the Senior staff meeting, when I met with Kate last Tuesday, July 11, she asked for information related to four questions. Please let me know if you have any objections to the content of my draft email to Kate or to the content of any of the attached documents. Thanks. --Karen Draft email to Kate: Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:57 PM Conversation Contents Friday Week Ahead for DLR Week of July 17 Attachments: /101. Friday Week Ahead for DLR Week of July 17/1.1 2017 July 14 FINAL.docx "Brown, Laura" From: Sent: To: Subject: Attachments: "Brown, Laura" Fri Jul 14 2017 14:51:42 GMT-0600 (MDT) Kevin Haugrud , Lois Wye , "Moody, Aaron" Friday Week Ahead for DLR Week of July 17 2017 July 14 FINAL.docx Hope everyone has a wonderful weekend. -Laura Brown, Associate Solicitor Division of Land Resources Office of the Solicitor U.S. Department of the Interior 1849 C St., NW Washington, DC 20240 Phone: 202 208-6545 Cell: 202 359-2712 Fax: 202 219-1792 Laura.Brown@sol.doi.gov Excellence - Integrity - Service This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of the e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. Thank you. "Haugrud, Kevin" From: Sent: To: Subject: "Haugrud, Kevin" Fri Jul 14 2017 16:24:22 GMT-0600 (MDT) "Brown, Laura" Re: Friday Week Ahead for DLR Week of July 17 Thanks Laura. On Fri, Jul 14, 2017 at 4:51 PM, Brown, Laura wrote: Hope everyone has a wonderful weekend. -Laura Brown, Associate Solicitor Division of Land Resources Office of the Solicitor U.S. Department of the Interior 1849 C St., NW Washington, DC 20240 Phone: 202 208-6545 Cell: 202 359-2712 Fax: 202 219-1792 Laura.Brown@sol.doi.gov Excellence - Integrity - Service This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of the e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. Thank you. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:57 PM Conversation Contents Friday Week Ahead--DLR Attachments: /102. Friday Week Ahead--DLR/1.1 2017 July 7 FINAL.docx "Brown, Laura" From: Sent: To: Subject: Attachments: "Brown, Laura" Fri Jul 07 2017 13:14:38 GMT-0600 (MDT) Kevin Haugrud , "Moody, Aaron" , Lois Wye Friday Week Ahead--DLR 2017 July 7 FINAL.docx Here you go--hope everyone has a wonderful weekend. -Laura Brown, Associate Solicitor Division of Land Resources Office of the Solicitor U.S. Department of the Interior 1849 C St., NW Washington, DC 20240 Phone: 202 208-6545 Cell: 202 359-2712 Fax: 202 219-1792 Laura.Brown@sol.doi.gov Excellence - Integrity - Service This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of the e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. Thank you. "Haugrud, Kevin" From: Sent: To: CC: Subject: "Haugrud, Kevin" Fri Jul 07 2017 16:39:14 GMT-0600 (MDT) "Brown, Laura" "Moody, Aaron" , Lois Wye Re: Friday Week Ahead--DLR Thanks much. On Fri, Jul 7, 2017 at 3:14 PM, Brown, Laura wrote: Here you go--hope everyone has a wonderful weekend. -Laura Brown, Associate Solicitor Division of Land Resources Office of the Solicitor U.S. Department of the Interior 1849 C St., NW Washington, DC 20240 Phone: 202 208-6545 Cell: 202 359-2712 Fax: 202 219-1792 Laura.Brown@sol.doi.gov Excellence - Integrity - Service This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of the e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. Thank you. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:58 PM Conversation Contents Weekly Report to the Secretary - June 29, 2017 Attachments: /105. Weekly Report to the Secretary - June 29, 2017/1.1 WeeklyReporttotheSecretary06-29-17.docx "Rees, Gareth" From: Sent: To: Subject: Attachments: "Rees, Gareth" Thu Jun 29 2017 11:30:42 GMT-0600 (MDT) Amy Holley , "Caminiti, Mariagrazia" , Christine Bauserman , Daniel Jorjani , Douglas Domenech , Downey Magallanes , Edward Keable , Heather Swift , James Cason , Juliette Lillie , Katharine Macgregor , Kerry Rae , Kevin Haugrud , Maureen Foster , Micah Chambers , Michael Black , Nikolao Pula , Richard Cardinale , Scott Cameron , Scott Hommel , Timothy Williams , Vincent Devito , Virginia Johnson Weekly Report to the Secretary - June 29, 2017 WeeklyReporttotheSecretary06-29-17.docx Good Afternoon ​All, Please find attached the weekly report to the Secretary. I have attached both the word and Google Doc versions of the reports. If there are any issues, please let me know. Thanks -Gareth C. Rees Office to the Deputy Secretary US. Department of the Interior Tel: 202-208-6291 Fax: 202-208-1873 Cell: 202-957-8299 5 Weekly Report to the Secretary 06-29-17 Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:59 PM Conversation Contents Agenda for Monday Meeting Attachments: /109. Agenda for Monday Meeting/1.1 2017.06.26 DMR Weekly Meeting Agenda.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Fri Jun 23 2017 17:20:54 GMT-0600 (MDT) Jack Haugrud Tom Bovard , Dennis Daugherty , Richard McNeer Agenda for Monday Meeting 2017.06.26 DMR Weekly Meeting Agenda.docx Jack, Our proposed agenda for our Monday meeting with you is particularly long this week. Could we begin the meeting at 10:30 am, so that we have an hour and half? Mari Grace tells met that Dan is not available from 10-10:30. Let us know if we could make use of that extra half hour nonetheless. Thanks. --Karen "Hawbecker, Karen" From: Sent: To: CC: Subject: "Hawbecker, Karen" Fri Jun 23 2017 19:16:16 GMT-0600 (MDT) Jack Haugrud Tom Bovard , Dennis Daugherty , Richard McNeer Re: Agenda for Monday Meeting Jack, I meant to say that Dan is not available from 10:30-11 am on Monday morning. --Karen On Fri, Jun 23, 2017 at 7:20 PM, Hawbecker, Karen wrote: Jack, Our proposed agenda for our Monday meeting with you is particularly long this week. Could we begin the meeting at 10:30 am, so that we have an hour and half? Mari Grace tells met that Dan is not available from 1010:30. Let us know if we could make use of that extra half hour nonetheless. Thanks. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:59 PM Conversation Contents DMR Friday List Attachments: /110. DMR Friday List/1.1 2017.06.23DMRFridayList.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Fri Jun 23 2017 18:50:42 GMT-0600 (MDT) Jack Haugrud Tom Bovard , Dennis Daugherty , Richard McNeer DMR Friday List 2017.06.23DMRFridayList.docx Jack, I've attached our Friday list, which is longer than usual. I hope you have a great weekend! --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:01 PM Conversation Contents Friday Week Ahead for DLR week of June 26 Attachments: /112. Friday Week Ahead for DLR week of June 26/1.1 2017 June 23 FINAL.docx "Brown, Laura" From: Sent: To: Subject: Attachments: "Brown, Laura" Fri Jun 23 2017 15:45:13 GMT-0600 (MDT) Kevin Haugrud , Lois Wye , "Moody, Aaron" , Gregory Russell Friday Week Ahead for DLR week of June 26 2017 June 23 FINAL.docx Here you go--see some of you on Weds. Enjoy your travels, Aaron. -Laura Brown, Associate Solicitor Division of Land Resources Office of the Solicitor U.S. Department of the Interior 1849 C St., NW Washington, DC 20240 Phone: 202 208-6545 Cell: 202 359-2712 Fax: 202 219-1792 Laura.Brown@sol.doi.gov Excellence - Integrity - Service This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of the e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. Thank you. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:02 PM Conversation Contents Weekly Report to the Secretary - June 15, 2017 Attachments: /114. Weekly Report to the Secretary - June 15, 2017/1.1 WeeklyReporttotheSecretary06-22-17.docx "Rees, Gareth" From: Sent: To: Subject: Attachments: "Rees, Gareth" Thu Jun 22 2017 12:15:00 GMT-0600 (MDT) Amy Holley , "Caminiti, Mariagrazia" , Christine Bauserman , Daniel Jorjani , Douglas Domenech , Downey Magallanes , Edward Keable , Heather Swift , James Cason , Juliette Lillie , Katharine Macgregor , Kerry Rae , Kevin Haugrud , Maureen Foster , Micah Chambers , Michael Black , Nikolao Pula , Richard Cardinale , Scott Cameron , Scott Hommel , Timothy Williams , Vincent Devito , Virginia Johnson Weekly Report to the Secretary - June 15, 2017 WeeklyReporttotheSecretary06-22-17.docx Good Afternoon ​All, Please find attached the weekly report to the Secretary. I have attached both the word and Google Doc versions of the reports. If there are any issues, please let me know. Thanks -Gareth C. Rees Office to the Deputy Secretary US. Department of the Interior Tel: 202-208-6291 Fax: 202-208-1873 Cell: 202-957-8299 5 Weekly Report to the Secretary 06-22-17 Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:02 PM Conversation Contents Secretary's Report for your Review Attachments: /115. Secretary's Report for your Review/1.1 062217 WEEKLY REPORT TO THE SECRETARY with Jack Edits.docx "Edwards, Kimberly" From: Sent: To: CC: Subject: Attachments: "Edwards, Kimberly" Thu Jun 22 2017 10:11:37 GMT-0600 (MDT) Daniel Jorjani Kevin Haugrud Secretary's Report for your Review 062217 WEEKLY REPORT TO THE SECRETARY with Jack Edits.docx Hi Dan, Attached is the Secretary's Report. Please let me know if I have to go-ahead to submit for the 1:00 deadline? Thank You Kim Edwards Staff Assistant, Office of the Solicitor US Department of the Interior main line: 202-208-6212 kimberly.edwards@sol.doi.gov "Be kind whenever possible.  It is always possible." Dalai Lama ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly proh bited. If you receive this Message in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:02 PM Conversation Contents here's the secy report in draft --- full sol items Attachments: /116. here's the secy report in draft --- full sol items/1.1 062117 WEEKLY REPORT TO THE SECRETARY draft.docx "Caminiti, Mariagrazia" From: Sent: To: Subject: Attachments: "Caminiti, Mariagrazia" Wed Jun 21 2017 16:11:10 GMT-0600 (MDT) Jack Haugrud , Kimberly Edwards here's the secy report in draft --- full sol items 062117 WEEKLY REPORT TO THE SECRETARY draft.docx i've saved it in s:2017 secy report for editing down to final submission to gareth by 1pm on Thursday. Hard copy is on your desk Jack - assume Dan will want to review as well, but not sure if he wants to see this or what you cull? -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:02 PM Conversation Contents Reps. Gosar, Emmer, Nolan and Westerman Urge Rescission of 234,328-acre Mineral Withdrawal and Renewal of Leases in Minnesota "Jorjani, Daniel" From: Sent: To: Subject: "Jorjani, Daniel" Mon Jun 19 2017 17:37:02 GMT-0600 (MDT) Kevin Haugrud Reps. Gosar, Emmer, Nolan and Westerman Urge Rescission of 234,328-acre Mineral Withdrawal and Renewal of Leases in Minnesota Reps. Gosar, Emmer, Nolan and Westerman Urge Rescission of 234,328acre Mineral Withdrawal and Renewal of Leases in Minnesota WASHINGTON, D.C. – Today, Congressional Western Caucus Chairman Paul A. Gosar D.D.S. (AZ-04), Chief Infrastructure and Forestry Officer Rep. Bruce Westerman (AR-04), Western Caucus member Rep. Tom Emmer (MN-06) and Rep. Rick Nolan (MN-08) released the following statements after touring several mining operations, conducting a stakeholder meeting, and visiting the proposed federal withdrawal area adjacent to the Boundary Waters Canoe Area Wilderness outside of the city of Ely, Minnesota: “The Obama Administration waged its war on mining until the very last days of its tenure and the ramifications of those activities have far reaching negative impacts on our local economies, jobs and K-12 education systems. By proposing a massive mineral withdrawal of more than 425,000 acres of land when you include state and private land in northern Minnesota, the Obama Administration attempted to decimate a crucial component of the Minnesota economy and wreaked havoc on the public education system in the state. When more than 17,000 jobs and billions of dollars in revenue are at stake, legacy building at the expense of our children’s future and education is simply unacceptable,” said Chairman Gosar. “Today we heard from families, business owners and local stakeholders who know that we can create these jobs and protect Minnesota’s recreational economy. I am proud to join my colleagues in calling on Secretary Zinke and Secretary Purdue to rescind this flat out assault on the mining industry and move these projects forward.” “I am glad Congressmen Gosar and Westerman were able to join me and Congressman Nolan today as we highlighted the crucial role that Minnesota’s natural resources play in the future success of our state and region,” remarked Congressman Emmer. “Withdrawing approximately 425,000 acres of land from potential exploration will undermine the long history of contributions northern Minnesotans have made to our country and will devastate the economies of our state and local communities. Unfortunately, over the past eight years, the Obama Administration stifled numerous industries with regulations, and the mining industry serves as a prime example. Washington bureaucracy continues to hamper hundreds of millions of dollars in current and future mining investment in our state, even before an environmental assessment is allowed to commence. It’s time to get government out of the way so we can find ways to bring good paying jobs and revenue to Minnesota in the safest and most environmentally friendly manner possible. I look forward to working with my colleagues and the Trump Administration to do just that." “To be clear, I will never support or allow mining within the Boundary Waters Canoe Wilderness Area (BWCA) under ANY circumstances. That said, prohibiting exploration outside of the BWCA buffer zone, before a project proposal is even made, is simply irresponsible,” Congressman Nolan said. “We should never be afraid of exploration and discovery, or using science and facts to dictate important decisions. We must allow mining initiatives to proceed through the proper, rigorous and thorough environmental review process – using science, facts and technology to guide our review of actual projects and environmental technology.” “I was glad to join with Chairman Gosar, Rep. Nolan, and Rep. Emmer on today’s visit to Twin Metals. This company has proposed an expansion that will pump billions of dollars into the local economy, create thousands of jobs, and provide funding for K-12 education in Minnesota while maintaining the highest levels of environmental stewardship and sustainability,” said Congressman Westerman. “But unnecessary rules handed down by unelected Washington, D.C., bureaucrats that violate agreements going back to the 1950's, threaten its future. After visiting the operation and meeting with stakeholders in Northern Minnesota, I understand this project's value to our country and our economy. I ask Secretaries Zinke and Perdue to honor long-standing agreements between the federal government and our citizens by lifting these last minute rules handed down by the Obama Administration, allowing Americans to continue investing in jobs, economic development, and education.” Background: Following today’s tours and meetings, the members announced they are circulating a draft letter to other Members of Congress calling on Secretary Zinke and Secretary Perdue to rescind the 234,328-acre mineral withdrawal application and renew two improperly terminated leases. To read the draft letter click HERE. In the waning days of the Obama Administration, federal land management agencies took several actions that could decimate local economies, stifle job creation and cause significant harm to K-12 education in Minnesota. On January 5, 2017, the U.S. Forest Service (USFS) proposed a 234,328-acre federal mineral withdrawal of National Forest System (NFS) lands, for a 20-year term, within the Rainy River Watershed on the Superior National Forest, immediately placing this vast area off limits to development for up to two years while the withdrawal is considered. The total withdrawal application boundary spans approximately 425,000 acres, including 95,000 acres of state school trust fund lands. In conjunction with this massive mineral withdrawal, the Obama Administration’s Bureau of Land Management (BLM) inappropriately rejected Twin Metals Minnesota’s application to renew two hard rock mineral leases in Minnesota’s Superior National Forest – leases that were signed in 1966 and renewed without controversy in 1989 and 2004. To date, Twin Metals has reportedly invested upward of $400 million – a significant investment – in reliance on two federal mineral leases that the BLM executed with the company's predecessors and renewed each time they expired. According to Twin Metals, BLM’s refusal to renew the leases was based on a March 2016 opinion by the then-Solicitor of the Department of the Interior, concluding – based on flawed legal analysis - that BLM had the discretion to deny the renewal of the mineral leases. In addition, Minnesota’s Constitution mandates that state trust lands ensure a long-term source of funds for K-12 education. In fiscal years 2014 and 2015, revenues from state mineral leases derived from school trust lands in Minnesota totaled $51.6 million and $36.8 million, respectively. All told, Minnesota is projected to lose up to $3 billion in royalty revenues for the State’s Permanent School Trust Fund that would support nearly 900,000 K-12 students statewide if the withdrawal application and cancelled leases are not rejected by the new administration. If left unchecked, the anti-mining actions pursued by the Obama Administration will block the creation of thousands of American jobs and cost the U.S. economy billions of dollars. The University of Minnesota-Duluth estimates the creation of 12,000 construction jobs and 5,000 long-term mining jobs if mining projects already being pursued in Duluth Complex are allowed to move forward. These are good-paying jobs, as the average annual mining wage in Minnesota was $78,635 in 2015. These projects are also estimated to generate $2.5 billion annually for the economy. The proposed withdrawal also contradicts the legislative intent of Congress. In 1950, Congress took action to make minerals available for mineral exploration and development within the Superior National Forest. In 1978, Congress passed the Boundary Waters Canoe Area Wilderness Act (BWCAW), a historic compromise that prohibited mining within the Boundary Waters Area but explicitly permitted mining to occur in the Superior National Forest. Environmental stewardship and positive economic growth are not mutually exclusive. Our members We support regulations that ensure environmentally-responsible mining in order to protect water quality and preserve the scenic beauty of the Boundary Waters area, where significant buffer zones already exist, including areas created by the BWCAW Act and the Minnesota Outdoor Recreation Act. Furthermore, any new mines proposed in the region will have to undergo, and adhere to, strict mandates and requirements under the National Environmental Policy Act (NEPA), state laws and other regulations. Unfortunately, the environmental study affiliated with the withdrawal preempts this comprehensive review from taking place, blocking the opportunity for a project to even be considered. Minnesotans across the state have supported the development of the state’s mining industry, and specifically have voiced support for the Twin Metals project. Countless individuals and local businesses have weighed in against the actions of the Obama Administration. Government officials on both sides of the aisle have publically opposed these actions. In January, the Minnesota State Legislature sent a letter and “expressed their outrage at the recent politically driven decisions.” Additionally, the Lake County Board of Commissioners unanimously approved a resolution opposing the proposed withdrawal. "Haugrud, Kevin" From: Sent: To: Subject: "Haugrud, Kevin" Tue Jun 20 2017 07:05:22 GMT-0600 (MDT) Karen Hawbecker Fwd: Reps. Gosar, Emmer, Nolan and Westerman Urge Rescission of 234,328-acre Mineral Withdrawal and Renewal of Leases in Minnesota FYI, in case you had not already seen it. ---------- Forwarded message ---------From: Jorjani, Daniel Date: Mon, Jun 19, 2017 at 7:37 PM Subject: Reps. Gosar, Emmer, Nolan and Westerman Urge Rescission of 234,328-acre Mineral Withdrawal and Renewal of Leases in Minnesota To: Kevin Haugrud Reps. Gosar, Emmer, Nolan and Westerman Urge Rescission of 234,328acre Mineral Withdrawal and Renewal of Leases in Minnesota WASHINGTON, D.C. – Today, Congressional Western Caucus Chairman Paul A. Gosar D.D.S. (AZ-04), Chief Infrastructure and Forestry Officer Rep. Bruce Westerman (AR-04), Western Caucus member Rep. Tom Emmer (MN-06) and Rep. Rick Nolan (MN-08) released the following statements after touring several mining operations, conducting a stakeholder meeting, and visiting the proposed federal withdrawal area adjacent to the Boundary Waters Canoe Area Wilderness outside of the city of Ely, Minnesota: “The Obama Administration waged its war on mining until the very last days of its tenure and the ramifications of those activities have far reaching negative impacts on our local economies, jobs and K-12 education systems. By proposing a massive mineral withdrawal of more than 425,000 acres of land when you include state and private land in northern Minnesota, the Obama Administration attempted to decimate a crucial component of the Minnesota economy and wreaked havoc on the public education system in the state. When more than 17,000 jobs and billions of dollars in revenue are at stake, legacy building at the expense of our children’s future and education is simply unacceptable,” said Chairman Gosar. “Today we heard from families, business owners and local stakeholders who know that we can create these jobs and protect Minnesota’s recreational economy. I am proud to join my colleagues in calling on Secretary Zinke and Secretary Purdue to rescind this flat out assault on the mining industry and move these projects forward.” “I am glad Congressmen Gosar and Westerman were able to join me and Congressman Nolan today as we highlighted the crucial role that Minnesota’s natural resources play in the future success of our state and region,” remarked Congressman Emmer. “Withdrawing approximately 425,000 acres of land from potential exploration will undermine the long history of contributions northern Minnesotans have made to our country and will devastate the economies of our state and local communities. Unfortunately, over the past eight years, the Obama Administration stifled numerous industries with regulations, and the mining industry serves as a prime example. Washington bureaucracy continues to hamper hundreds of millions of dollars in current and future mining investment in our state, even before an environmental assessment is allowed to commence. It’s time to get government out of the way so we can find ways to bring good paying jobs and revenue to Minnesota in the safest and most environmentally friendly manner possible. I look forward to working with my colleagues and the Trump Administration to do just that." “To be clear, I will never support or allow mining within the Boundary Waters Canoe Wilderness Area (BWCA) under ANY circumstances. That said, prohibiting exploration outside of the BWCA buffer zone, before a project proposal is even made, is simply irresponsible,” Congressman Nolan said. “We should never be afraid of exploration and discovery, or using science and facts to dictate important decisions. We must allow mining initiatives to proceed through the proper, rigorous and thorough environmental review process – using science, facts and technology to guide our review of actual projects and environmental technology.” “I was glad to join with Chairman Gosar, Rep. Nolan, and Rep. Emmer on today’s visit to Twin Metals. This company has proposed an expansion that will pump billions of dollars into the local economy, create thousands of jobs, and provide funding for K-12 education in Minnesota while maintaining the highest levels of environmental stewardship and sustainability,” said Congressman Westerman. “But unnecessary rules handed down by unelected Washington, D.C., bureaucrats that violate agreements going back to the 1950's, threaten its future. After visiting the operation and meeting with stakeholders in Northern Minnesota, I understand this project's value to our country and our economy. I ask Secretaries Zinke and Perdue to honor long-standing agreements between the federal government and our citizens by lifting these last minute rules handed down by the Obama Administration, allowing Americans to continue investing in jobs, economic development, and education.” Background: Following today’s tours and meetings, the members announced they are circulating a draft letter to other Members of Congress calling on Secretary Zinke and Secretary Perdue to rescind the 234,328-acre mineral withdrawal application and renew two improperly terminated leases. To read the draft letter click HERE. In the waning days of the Obama Administration, federal land management agencies took several actions that could decimate local economies, stifle job creation and cause significant harm to K-12 education in Minnesota. On January 5, 2017, the U.S. Forest Service (USFS) proposed a 234,328-acre federal mineral withdrawal of National Forest System (NFS) lands, for a 20-year term, within the Rainy River Watershed on the Superior National Forest, immediately placing this vast area off limits to development for up to two years while the withdrawal is considered. The total withdrawal application boundary spans approximately 425,000 acres, including 95,000 acres of state school trust fund lands. In conjunction with this massive mineral withdrawal, the Obama Administration’s Bureau of Land Management (BLM) inappropriately rejected Twin Metals Minnesota’s application to renew two hard rock mineral leases in Minnesota’s Superior National Forest – leases that were signed in 1966 and renewed without controversy in 1989 and 2004. To date, Twin Metals has reportedly invested upward of $400 million – a significant investment – in reliance on two federal mineral leases that the BLM executed with the company's predecessors and renewed each time they expired. According to Twin Metals, BLM’s refusal to renew the leases was based on a March 2016 opinion by the then-Solicitor of the Department of the Interior, concluding – based on flawed legal analysis - that BLM had the discretion to deny the renewal of the mineral leases. In addition, Minnesota’s Constitution mandates that state trust lands ensure a long-term source of funds for K-12 education. In fiscal years 2014 and 2015, revenues from state mineral leases derived from school trust lands in Minnesota totaled $51.6 million and $36.8 million, respectively. All told, Minnesota is projected to lose up to $3 billion in royalty revenues for the State’s Permanent School Trust Fund that would support nearly 900,000 K-12 students statewide if the withdrawal application and cancelled leases are not rejected by the new administration. If left unchecked, the anti-mining actions pursued by the Obama Administration will block the creation of thousands of American jobs and cost the U.S. economy billions of dollars. The University of Minnesota-Duluth estimates the creation of 12,000 construction jobs and 5,000 long-term mining jobs if mining projects already being pursued in Duluth Complex are allowed to move forward. These are good-paying jobs, as the average annual mining wage in Minnesota was $78,635 in 2015. These projects are also estimated to generate $2.5 billion annually for the economy. The proposed withdrawal also contradicts the legislative intent of Congress. In 1950, Congress took action to make minerals available for mineral exploration and development within the Superior National Forest. In 1978, Congress passed the Boundary Waters Canoe Area Wilderness Act (BWCAW), a historic compromise that prohibited mining within the Boundary Waters Area but explicitly permitted mining to occur in the Superior National Forest. Environmental stewardship and positive economic growth are not mutually exclusive. Our members We support regulations that ensure environmentally-responsible mining in order to protect water quality and preserve the scenic beauty of the Boundary Waters area, where significant buffer zones already exist, including areas created by the BWCAW Act and the Minnesota Outdoor Recreation Act. Furthermore, any new mines proposed in the region will have to undergo, and adhere to, strict mandates and requirements under the National Environmental Policy Act (NEPA), state laws and other regulations. Unfortunately, the environmental study affiliated with the withdrawal preempts this comprehensive review from taking place, blocking the opportunity for a project to even be considered. Minnesotans across the state have supported the development of the state’s mining industry, and specifically have voiced support for the Twin Metals project. Countless individuals and local businesses have weighed in against the actions of the Obama Administration. Government officials on both sides of the aisle have publically opposed these actions. In January, the Minnesota State Legislature sent a letter and “expressed their outrage at the recent politically driven decisions.” Additionally, the Lake County Board of Commissioners unanimously approved a resolution opposing the proposed withdrawal. Karen Hawbecker From: Sent: To: Subject: Karen Hawbecker Tue Jun 20 2017 07:07:33 GMT-0600 (MDT) "Haugrud, Kevin" Re: Reps. Gosar, Emmer, Nolan and Westerman Urge Rescission of 234,328-acre Mineral Withdrawal and Renewal of Leases in Minnesota Thanks, Jack. Sent from my iPad On Jun 20, 2017, at 9:05 AM, Haugrud, Kevin wrote: FYI, in case you had not already seen it. ---------- Forwarded message ---------From: Jorjani, Daniel Date: Mon, Jun 19, 2017 at 7:37 PM Subject: Reps. Gosar, Emmer, Nolan and Westerman Urge Rescission of 234,328-acre Mineral Withdrawal and Renewal of Leases in Minnesota To: Kevin Haugrud Reps. Gosar, Emmer, Nolan and Westerman Urge Rescission of 234,328acre Mineral Withdrawal and Renewal of Leases in Minnesota WASHINGTON, D.C. – Today, Congressional Western Caucus Chairman Paul A. Gosar D.D.S. (AZ-04), Chief Infrastructure and Forestry Officer Rep. Bruce Westerman (AR-04), Western Caucus member Rep. Tom Emmer (MN-06) and Rep. Rick Nolan (MN-08) released the following statements after touring several mining operations, conducting a stakeholder meeting, and visiting the proposed federal withdrawal area adjacent to the Boundary Waters Canoe Area Wilderness outside of the city of Ely, Minnesota: “The Obama Administration waged its war on mining until the very last days of its tenure and the ramifications of those activities have far reaching negative impacts on our local economies, jobs and K-12 education systems. By proposing a massive mineral withdrawal of more than 425,000 acres of land when you include state and private land in northern Minnesota, the Obama Administration attempted to decimate a crucial component of the Minnesota economy and wreaked havoc on the public education system in the state. When more than 17,000 jobs and billions of dollars in revenue are at stake, legacy building at the expense of our children’s future and education is simply unacceptable,” said Chairman Gosar. “Today we heard from families, business owners and local stakeholders who know that we can create these jobs and protect Minnesota’s recreational economy. I am proud to join my colleagues in calling on Secretary Zinke and Secretary Purdue to rescind this flat out assault on the mining industry and move these projects forward.” “I am glad Congressmen Gosar and Westerman were able to join me and Congressman Nolan today as we highlighted the crucial role that Minnesota’s natural resources play in the future success of our state and region,” remarked Congressman Emmer. “Withdrawing approximately 425,000 acres of land from potential exploration will undermine the long history of contributions northern Minnesotans have made to our country and will devastate the economies of our state and local communities. Unfortunately, over the past eight years, the Obama Administration stifled numerous industries with regulations, and the mining industry serves as a prime example. Washington bureaucracy continues to hamper hundreds of millions of dollars in current and future mining investment in our state, even before an environmental assessment is allowed to commence. It’s time to get government out of the way so we can find ways to bring good paying jobs and revenue to Minnesota in the safest and most environmentally friendly manner possible. I look forward to working with my colleagues and the Trump Administration to do just that." “To be clear, I will never support or allow mining within the Boundary Waters Canoe Wilderness Area (BWCA) under ANY circumstances. That said, prohibiting exploration outside of the BWCA buffer zone, before a project proposal is even made, is simply irresponsible,” Congressman Nolan said. “We should never be afraid of exploration and discovery, or using science and facts to dictate important decisions. We must allow mining initiatives to proceed through the proper, rigorous and thorough environmental review process – using science, facts and technology to guide our review of actual projects and environmental technology.” “I was glad to join with Chairman Gosar, Rep. Nolan, and Rep. Emmer on today’s visit to Twin Metals. This company has proposed an expansion that will pump billions of dollars into the local economy, create thousands of jobs, and provide funding for K-12 education in Minnesota while maintaining the highest levels of environmental stewardship and sustainability,” said Congressman Westerman. “But unnecessary rules handed down by unelected Washington, D.C., bureaucrats that violate agreements going back to the 1950's, threaten its future. After visiting the operation and meeting with stakeholders in Northern Minnesota, I understand this project's value to our country and our economy. I ask Secretaries Zinke and Perdue to honor long-standing agreements between the federal government and our citizens by lifting these last minute rules handed down by the Obama Administration, allowing Americans to continue investing in jobs, economic development, and education.” Background: Following today’s tours and meetings, the members announced they are circulating a draft letter to other Members of Congress calling on Secretary Zinke and Secretary Perdue to rescind the 234,328-acre mineral withdrawal application and renew two improperly terminated leases. To read the draft letter click HERE. In the waning days of the Obama Administration, federal land management agencies took several actions that could decimate local economies, stifle job creation and cause significant harm to K-12 education in Minnesota. On January 5, 2017, the U.S. Forest Service (USFS) proposed a 234,328-acre federal mineral withdrawal of National Forest System (NFS) lands, for a 20-year term, within the Rainy River Watershed on the Superior National Forest, immediately placing this vast area off limits to development for up to two years while the withdrawal is considered. The total withdrawal application boundary spans approximately 425,000 acres, including 95,000 acres of state school trust fund lands. In conjunction with this massive mineral withdrawal, the Obama Administration’s Bureau of Land Management (BLM) inappropriately rejected Twin Metals Minnesota’s application to renew two hard rock mineral leases in Minnesota’s Superior National Forest – leases that were signed in 1966 and renewed without controversy in 1989 and 2004. To date, Twin Metals has reportedly invested upward of $400 million – a significant investment – in reliance on two federal mineral leases that the BLM executed with the company's predecessors and renewed each time they expired. According to Twin Metals, BLM’s refusal to renew the leases was based on a March 2016 opinion by the then-Solicitor of the Department of the Interior, concluding – based on flawed legal analysis - that BLM had the discretion to deny the renewal of the mineral leases. In addition, Minnesota’s Constitution mandates that state trust lands ensure a long-term source of funds for K-12 education. In fiscal years 2014 and 2015, revenues from state mineral leases derived from school trust lands in Minnesota totaled $51.6 million and $36.8 million, respectively. All told, Minnesota is projected to lose up to $3 billion in royalty revenues for the State’s Permanent School Trust Fund that would support nearly 900,000 K-12 students statewide if the withdrawal application and cancelled leases are not rejected by the new administration. If left unchecked, the anti-mining actions pursued by the Obama Administration will block the creation of thousands of American jobs and cost the U.S. economy billions of dollars. The University of Minnesota-Duluth estimates the creation of 12,000 construction jobs and 5,000 long-term mining jobs if mining projects already being pursued in Duluth Complex are allowed to move forward. These are good-paying jobs, as the average annual mining wage in Minnesota was $78,635 in 2015. These projects are also estimated to generate $2.5 billion annually for the economy. The proposed withdrawal also contradicts the legislative intent of Congress. In 1950, Congress took action to make minerals available for mineral exploration and development within the Superior National Forest. In 1978, Congress passed the Boundary Waters Canoe Area Wilderness Act (BWCAW), a historic compromise that prohibited mining within the Boundary Waters Area but explicitly permitted mining to occur in the Superior National Forest. Environmental stewardship and positive economic growth are not mutually exclusive. Our members We support regulations that ensure environmentally-responsible mining in order to protect water quality and preserve the scenic beauty of the Boundary Waters area, where significant buffer zones already exist, including areas created by the BWCAW Act and the Minnesota Outdoor Recreation Act. Furthermore, any new mines proposed in the region will have to undergo, and adhere to, strict mandates and requirements under the National Environmental Policy Act (NEPA), state laws and other regulations. Unfortunately, the environmental study affiliated with the withdrawal preempts this comprehensive review from taking place, blocking the opportunity for a project to even be considered. Minnesotans across the state have supported the development of the state’s mining industry, and specifically have voiced support for the Twin Metals project. Countless individuals and local businesses have weighed in against the actions of the Obama Administration. Government officials on both sides of the aisle have publically opposed these actions. In January, the Minnesota State Legislature sent a letter and “expressed their outrage at the recent politically driven decisions.” Additionally, the Lake County Board of Commissioners unanimously approved a resolution opposing the proposed withdrawal. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:02 PM Conversation Contents DMR Friday List Attachments: /118. DMR Friday List/1.1 2017.06.16DMRFridayList.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Fri Jun 16 2017 16:21:42 GMT-0600 (MDT) Jack Haugrud Tom Bovard , Dennis Daugherty , Richard McNeer DMR Friday List 2017.06.16DMRFridayList.docx Jack, I've attached our Friday list for your reference. I hope you have a great weekend! --Karen "Haugrud, Kevin" From: Sent: To: CC: Subject: "Haugrud, Kevin" Fri Jun 16 2017 17:09:34 GMT-0600 (MDT) "Hawbecker, Karen" Tom Bovard , Dennis Daugherty , Richard McNeer Re: DMR Friday List Thanks Karen. Hope you all have a great weekend too. On Fri, Jun 16, 2017 at 6:21 PM, Hawbecker, Karen wrote: Jack, I've attached our Friday list for your reference. I hope you have a great weekend! --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:02 PM Conversation Contents Draft Twin Metals response letter Attachments: I119. Draft Twin Metals response letter/1.1 2017.05.26 Incoming Ian Duckworth Twin Metals Letter.pdf I119. Draft Twin Metals response letter/1.2 2017.06.15 Draft Response Letter to Ian Duckworth Twin Metals Minnesotadocx I119. Draft Twin Metals response letter/2.1 2017.05.26 Incoming Ian Duckworth Twin Metals Letter.pdf I119. Draft Twin Metals response letter/2.2 2017.06.15 Draft Response Letter to Ian Duckworth Twin Metals Minnesotadocx "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Thu Jun 15 2017 11:54:22 GMT-0600 (MDT) To: Jack Haugrud CC: Richard McNeer Subject: Draft Twin Metals response letter 2017.05.26 Incoming Ian Duckworth Twin Metals Letter.pdf Attachments: 2017.06.15 Draft Response Letter to Ian Duckworth Twin Metals Minnesotadocx Jack, I've attached a draft letter to Ian Duckworth at Twin Metals in response to his letter (also attached). Let us know if this is what you had in mind. Thanks. --Karen "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Thu Jun 15 2017 13:24:10 GMT-0600 (MDT) To: Daniel Jorjani Subject: Fwd: Draft Twin Metals response letter 2017.05.26 Incoming Ian Duckworth Twin Metals Letter.pdf Attachments: 2017.06.15 Draft Response Letter to Ian Duckworth Twin Metals Minnesotadocx Dan: Here is what DMR drafted as a possible response to Twin Metals. You mav have a different reaction. but I don't think -- Forwarded message From: Hawbecker, Karen Date: Thu, Jun 15,2017 at 1:54 PM Subject: Draft Twin Metals response letter To: Jack Haugrud Cc: Richard McNeer Jack, I've attached a draft letter to Ian Duckworth at Twin Metals in response to his letter (also attached). Let us know if this is what you had in mind. Thanks. --Karen "Jorjani, Daniel" From: "Jorjani, Daniel" Sent: Thu Jun 15 2017 13:55:24 GMT-0600 (MDT) To: "Haugrud, Kevin" CC: Daniel Jorjani Subject: Re: Draft Twin Metals response letter Agreed. Not even worth discussing up the chain. Let's hold steady for the time being. On Thu, Jun 15, 2017 at 3:24 PM, Haugrud, Kevin wrote: Dan: Here is what DMR drafted as a possible response to Twin Metals. You may have a different reaction. but I don't think -- Forwarded message From: Hawbecker, Karen Date: Thu, Jun 15,2017 at 1:54 PM Subject: Draft Twin Metals response letter To: Jack Haugrud Cc: Richard McNeer Jack, I've attached a draft letter to Ian Duckworth at Twin Metals in response to his letter (also attached). Let us know if this is what you had in mind. Thanks. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:03 PM Conversation Contents Twin Metals Option Paper Attachments: /120. Twin Metals Option Paper/1.1 2017.06.09 Twin Metals leasing decision options paper.docx /120. Twin Metals Option Paper/1.2 M37036 Twin Metals Minnesota Searchable OCR.pdf /120. Twin Metals Option Paper/1.3 2017.06.08 pm Twin Metals litigation briefing paper.docx.pdf "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Fri Jun 09 2017 12:36:41 GMT-0600 (MDT) Katharine Macgregor Richard Cardinale , Kathleen Benedetto , Jack Haugrud , Daniel Jorjani Twin Metals Option Paper 2017.06.09 Twin Metals leasing decision options paper.docx M37036 Twin Metals Minnesota Searchable OCR.pdf 2017.06.08 pm Twin Metals litigation briefing paper.docx.pdf Kate, As you requested, here is a copy of the Twin Metals option paper that we previously shared with Kathy, but updated to reflect the current status of the litigation. I've also attached a copy of the litigation briefing paper and a copy of the Twin Metals M-Opinion. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:03 PM Conversation Contents Fwd: Twin Metals Litigation Briefing Paper Attachments: /121. Fwd: Twin Metals Litigation Briefing Paper/1.1 2017.06.08 pm Twin Metals litigation briefing paper.docx.pdf "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Fri Jun 09 2017 09:08:39 GMT-0600 (MDT) Daniel Jorjani , Jack Haugrud Richard McNeer Fwd: Twin Metals Litigation Briefing Paper 2017.06.08 pm Twin Metals litigation briefing paper.docx.pdf Dan and Jack, FYI--I sent an updated Twin Metals litigation briefing paper to Gene Seidlitz in ASLM, at his request, and also copied others at BLM. We added the latest development regarding the motion to dismiss. --Karen ---------- Forwarded message ---------From: Hawbecker, Karen Date: Thu, Jun 8, 2017 at 6:50 PM Subject: Twin Metals Litigation Briefing Paper To: "Joseph (Gene) Seidlitz" Cc: Michael Nedd , Kathleen Benedetto , John Ruhs , Peter Mali , Timothy Spisak , Richard McNeer , Briana Collier , "Sklar, Ryan" , Roy Fuller Gene, You requested a briefing paper about the Twin Metals litigation. I've attached a copy here. Let us know if you have any questions. I have copied Mike, Kathy, John, Peter, and Tim, as well. Thank you. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:03 PM Conversation Contents report to the sol and secy attached.mg Attachments: /122. report to the sol and secy attached.mg/1.1 060717 WEEKLY REPORT TO THE SECRETARY.docx /122. report to the sol and secy attached.mg/1.2 060717 WEEKLY REPORT TO THE SOLICITOR.docx "Caminiti, Mariagrazia" From: Sent: To: Subject: Attachments: "Caminiti, Mariagrazia" Thu Jun 08 2017 11:21:31 GMT-0600 (MDT) "Jorjani, Daniel" , Jack Haugrud , Edward T Keable report to the sol and secy attached.mg 060717 WEEKLY REPORT TO THE SECRETARY.docx 060717 WEEKLY REPORT TO THE SOLICITOR.docx -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:03 PM Conversation Contents Weekly Report to the Secretary - June 8, 2017 Attachments: /123. Weekly Report to the Secretary - June 8, 2017/1.1 WeeklyReporttotheSecretary06-08-17.docx "Rees, Gareth" From: Sent: To: Subject: Attachments: "Rees, Gareth" Thu Jun 08 2017 11:07:18 GMT-0600 (MDT) Amy Holley , "Caminiti, Mariagrazia" , Christine Bauserman , Daniel Jorjani , Douglas Domenech , Downey Magallanes , Edward Keable , Heather Swift , James Cason , Juliette Lillie , Katharine Macgregor , Kerry Rae , Kevin Haugrud , Maureen Foster , Micah Chambers , Michael Black , Nikolao Pula , Richard Cardinale , Scott Cameron , Scott Hommel , Timothy Williams , Vincent Devito , Virginia Johnson Weekly Report to the Secretary - June 8, 2017 WeeklyReporttotheSecretary06-08-17.docx Good Afternoon ​All, Please find attached the weekly report to the Secretary. I have attached both the word and Google Doc versions of the reports. If there are any issues, please let me know. Thanks -Gareth C. Rees Office to the Deputy Secretary US. Department of the Interior Tel: 202-208-6291 Fax: 202-208-1873 Cell: 202-957-8299 5 Weekly Report to the Secretary 06-08-17 Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:03 PM Conversation Contents Fwd: Twin Metals Motion to Dismiss as filed Attachments: /124. Fwd: Twin Metals Motion to Dismiss as filed/1.1 DENVER-#578451-v1TMM_ECF_92_Memorandum_in_Support_of_Motion_to_Dismiss.PDF /124. Fwd: Twin Metals Motion to Dismiss as filed/1.2 DENVER-#578450-v1TMM_EFC_90_Motion_to_Dismiss.PDF /124. Fwd: Twin Metals Motion to Dismiss as filed/1.3 DENVER-#578437-v1TMM_ECF_86_Intervenors_memo_in_support_of_MTD.PDF "Hawbecker, Karen" From: Sent: To: Subject: Attachments: "Hawbecker, Karen" Mon Jun 05 2017 18:08:14 GMT-0600 (MDT) Jack Haugrud , Daniel Jorjani Fwd: Twin Metals Motion to Dismiss as filed DENVER-#578451-v1TMM_ECF_92_Memorandum_in_Support_of_Motion_to_Dismiss.PDF DENVER-#578450-v1-TMM_EFC_90_Motion_to_Dismiss.PDF DENVER-#578437-v1TMM_ECF_86_Intervenors_memo_in_support_of_MTD.PDF Jack and Dan, FYI--this is the motion to dismiss, as filed, in the Twin Metals case. --Karen ---------- Forwarded message ---------From: Gillespie, Stuart (ENRD) Date: Mon, Jun 5, 2017 at 7:51 PM Subject: Twin Metals Motion to Dismiss as filed To: "Collier, Briana" , Roy Fuller , Ryan Sklar , Karen Hawbecker , Richard McNeer Cc: "Piropato, Marissa (ENRD)" , "Boronow, Clare (ENRD)" , "Duffy, Sean C. (ENRD)" Good evening all – Please find attached our motion to dismiss and memorandum in support. Thank you for all of your help getting this filed. I have also attached Intervenor-Defendants’ memorandum in support of their motion to dismiss. Please let us know if you have any questions and please forward this email on to anyone I missed. Thanks Stu Stuart C. Gillespie Trial Attorney U.S. Department of Justice Environment and Natural Resources 999 18th Street South Terrace, Suite 370 Denver, CO 80202 O: (303) 844-1382 C: (202) 598-9580 Stuart.gillespie@usdoj.gov Daniel Jorjani From: Sent: To: CC: Subject: Daniel Jorjani Mon Jun 05 2017 18:09:42 GMT-0600 (MDT) "Hawbecker, Karen" Jack Haugrud , Daniel Jorjani Re: Twin Metals Motion to Dismiss as filed Thank you. Sent from my iPhone On Jun 5, 2017, at 8:08 PM, Hawbecker, Karen wrote: Jack and Dan, FYI--this is the motion to dismiss, as filed, in the Twin Metals case. --Karen ---------- Forwarded message ---------From: Gillespie, Stuart (ENRD) Date: Mon, Jun 5, 2017 at 7:51 PM Subject: Twin Metals Motion to Dismiss as filed To: "Collier, Briana" , Roy Fuller , Ryan Sklar , Karen Hawbecker , Richard McNeer Cc: "Piropato, Marissa (ENRD)" , "Boronow, Clare (ENRD)" , "Duffy, Sean C. (ENRD)" Good evening all – Please find attached our motion to dismiss and memorandum in support. Thank you for all of your help getting this filed. I have also attached Intervenor-Defendants’ memorandum in support of their motion to dismiss. Please let us know if you have any questions and please forward this email on to anyone I missed. Thanks Stu Stuart C. Gillespie Trial Attorney U.S. Department of Justice Environment and Natural Resources 999 18th Street South Terrace, Suite 370 Denver, CO 80202 O: (303) 844-1382 C: (202) 598-9580 Stuart.gillespie@usdoj.gov Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:04 PM Conversation Contents Re: Twin Metals Final Draft Motion to Dismiss for Review Attachments: I125. Re: Twin Metals Final Draft Motion to Dismiss for Review/1.1 2017.06.01 (2) edits.docx "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Thu Jun 01 2017 15:32:57 GMT-0600 (MDT) To: "Haugrud, Kevin" Richard McNeer "Collier, Briana" Joshua Hanson Roy Fuller "Sklar, Ryan" Subject: Re: Twin Metals Final Draft Motion to Dismiss for Review 2017.06.01 (2) edits.docx CC: Attachments: Jack, I?ve completed my review of the draft motion to dismiss. I noted in a comment in the brief that Thanks. -- aren On Thu, May 25, 2017 at 12:38 PM, Collier, Briana wrote: Jack, Please ?nd attached below the new ?nal draft of the Twin Metals Motion to Dismiss, which includes SOL DMR, BLM and USDA OGC input. The ?ling date is June 5th. Stuart expects Please let us know if you have any questions. Thankyou, B?ana Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 1849 C Street NW, Washington, D.C. 20240 Office: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. ---------- Forwarded message ---------From: Gillespie, Stuart (ENRD) Date: Thu, May 25, 2017 at 11:16 AM Subject: Twin Metals Final Draft Motion to Dismiss for Review To: "Collier, Briana" Briana – Thank you again for your comments. I have attached the final version of the MTD, which I just send up to Lisa Russell for review. Please share this version with Jack. Thanks Stu Stuart C. Gillespie Trial Attorney U.S. Department of Justice Environment and Natural Resources 999 18th Street South Terrace, Suite 370 Denver, CO 80202 O: (303) 844-1382 C: (202) 598-9580 Stuart.gillespie@usdoj.gov "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Thu Jun 01 2017 15:36:51 GMT-0600 (MDT) To: "Hawbecker, Karen" Richard McNeer "Collier, Briana" cc: Joshua Hanson Roy Fuller "Sklar, Ryan" Subject: Re: Twin Metals Final Draft Motion to Dismiss for Review Yes, we should go ahead and ?le on Monday. On Thu, Jun 1, 2017 at 5:32 PM, Hawbecker, Karen wrote: Jack, I've completed my review of the draft motion to dismiss. I noted in a comment in the brief that Thanks. - aren On Thu, May 25, 2017 at 12:38 PM, Collier, Briana wrote: Jack, Please find attached below the new ?nal draft of the Twin Metals Motion to Dismiss, which includes SOL DMR. BLM and USDA 060 input. The ?ling date is June 5th. Stuart expects to Please let us know if you have any questions. Thankyou, Bnana Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 1849 Street NW, Washington, DC. 20240 Of?ce: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. -- Forwarded message From: Gillespie, Stuart (ENRD) Date: Thu, May 25,2017 at 11:16 AM Subject: Twin Metals Final Draft Motion to Dismiss for Review To: "Collier, Briana" Briana Thank you again for your comments. I have attached the final version of the MTD, which I just send up to Lisa Russell for review. Please share this version with Jack. Thanks Stu Stuart C. Gillespie Trial Attorney US. Department of Justice Environment and Natural Resources 999 18th Street South Terrace, Suite 370 Denver, CO 80202 O: (303) 844-1382 C: (202) 598-9580 Stuart. illes ie usdo'. ov "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Thu Jun 01 2017 15:39:56 GMT-0600 (MDT) To: "Haugrud, Kevin" Subject: Re: Twin Metals Final Draft Motion to Dismiss for Review Thanks, Jack. Does this mean we should not await further review of the motion from you? On Thu, Jun 1, 2017 at 5:36 PM, Haugrud, Kevin wrote: Yes, we should go ahead and ?le on Monday. On Thu, Jun 1, 2017 at 5:32 PM, Hawbecker, Karen wrote: Jack. I've completed my review of the draft motion to dismiss. I noted in a comment in the brief tha- Thanks. -- aren On Thu, May 25, 2017 at 12:38 PM, Collier, Briana wrote: Jack, Please find attached below the new ?nal draft of the Twin Metals Motion to Dismiss, which includes SOL DMR, BLM and USDA OGC input. The ?ling date is June 5th. Stuart expects to Please let us know if you have any questions. Thankyou, B?ana Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Office of the Solicitor 1849 Street NW, Washington, DC. 20240 Of?ce: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. -- Forwarded message From: Gillespie, Stuart (ENRD) Date: Thu, May 25,2017 at 11:16 AM Subject: Twin Metals Final Draft Motion to Dismiss for Review To: "Collier, Briana" Briana Thank you again for your comments. I have attached the final version of the MTD, which I just send up to Lisa Russell for review. Please share this version with Jack. Thanks Stu Stuart C. Gillespie Trial Attorney US. Department of Justice Environment and Natural Resources 999 18"h Street South Terrace, Suite 370 Denver, CO 80202 O: (303) 844-1382 C: (202) 598-9580 Stuart. illes ie usdo'. ov "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Thu Jun 01 2017 15:55:51 GMT-0600 (MDT) To: "Hawbecker, Karen" Subject: Re: Twin Metals Final Draft Motion to Dismiss for Review On Thu, Jun 1, 2017 at 5:39 PM, Hawbecker, Karen wrote: Thankwack- Doesthismean? On Thu, Jun 1, 2017 at 5:36 PM. Hauqrud, Kevin wrote: Yes, we should On Thu, Jun 1, 2017 at 5:32 PM, Hawbecker, Karen wrote: Jack, l've completed my review of the draft motion to dismiss. I noted in a comment in the brief that. --!aren On Thu, May 25, 2017 at 12:38 PM, Collier, Briana wrote: Jack, Please ?nd attached below the new ?nal draft of the Twin Metals Motion to Dismiss, which includes SOL DMR, BLM and USDA OGC input. The ?ling date is June 5th. Stuart eXDects to Please let us know if you have any questions. Thankyou, Bnana Briana Collier Attomey-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 1849 Street NW, Washington, DC. 20240 Office: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. -- Forwarded message From: Gillespie, Stuart (ENRD) Date: Thu, May 25,2017 at 11:16 AM Subject: Twin Metals Final Draft Motion to Dismiss for Review To: "Collier, Briana" Briana Thank you again for your comments. I have attached the ?nal version of the MTD, which I just send up to Lisa Russell for review. Please share this version with Jack. Thanks Stu Stuart C. Gillespie Trial Attorney US. Department of Justice Environment and Natural Resources 999 18th Street South Terrace, Suite 370 Denver, CO 80202 O: (303) 844-1382 C: (202) 598-9580 Stuartdillesoie?usdoi.dov "Hawbecker, Karen" From: Sent To: Subject: Okay, thanks. "Hawbecker, Karen" Thu Jun 01 2017 16:04:34 GMT-0600 (MDT) "Haugrud, Kevin" Re: Twin Metals Final Draft Motion to Dismiss for Review On Thu, Jun 1, 2017 at 5:55 PM, Haugrud, Kevin wrote: On Thu, Jun 1, 2017 at 5:39 PM, Hawbecker, Karen wrote: Does this mean we shoul? On Thu, Jun 1, 2017 at 5:36 PM, Haugrud, Kevin wrote: Yes, we should go ahead and file on Monday. On Thu, Jun 1, 2017 at 5:32 PM, Hawbecker, Karen wrote: Jack, I've completed my review of the draft motion to dismiss. I noted in a comment in the brief that ?anls. --!aren On Thu, May 25, 2017 at 12:38 PM, Collier, Briana wrote: Jack, Please find attached below the new ?nal draft of the Twin Metals Motion to Dismiss, which includes SOL DMR. BLM and USDA OGC input. The ?ling date is June 5th. Stuart eXDects to Please let us know if you have any questions. Thankyou, Bnana Briana Collier Attomey-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 1849 Street NW, Washington, DC. 20240 Office: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. -- Forwarded message From: Gillespie, Stuart (ENRD) Date: Thu, May 25, 2017 at 11:16 AM Subject: Twin Metals Final Draft Motion to Dismiss for Review To: "Collier, Briana" Briana Thank you again for your comments. I have attached the ?nal version of the MTD, which ljust send up to Lisa Russell for review. Please share this version with Jack. Thanks Stu Stuart C. Gillespie Trial Attorney US. Department of Justice Environment and Natural Resources 999 18th Street South Terrace, Suite 370 Denver, CO 80202 O: (303) 844?1382 c: (202) 598-9580 Stuart. illes ie usdo'. ov "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Fri Jun 02 2017 16:17:39 GMT-0600 (MDT) To: "Haugrud, Kevin" Subject: Re: Twin Metals Final Draft Motion to Dismiss for Review Jack,? Thanks- On Thu, Jun 1, 2017 at 5:55 PM, Haugrud, Kevin wrote: On Thu, Jun 1, 2017 at 5:39 PM, Hawbecker, Karen wrote: Thankwack. Doestms On Thu, Jun 1, 2017 at 5:36 PM, Haugrud, Kevin wrote: Yes, we should go ahead and file on Monday. On Thu, Jun 1, 2017 at 5:32 PM, Hawbecker, Karen wrote: Jack, I've completed my review of the draft motion to dismiss. I noted in a comment in the brief that. an S. -- aren On Thu, May 25, 2017 at 12:38 PM, Collier, Briana wrote: Jack, Please find attached below the new ?nal draft of the Twin Metals Motion to Dismiss, which includes SOL DMR, BLM and USDA OGC input. The filing date is June 5th. Stuart expects to Please let us know if you have any questions. Thank you, Briana Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 1849 C Street NW, Washington, D.C. 20240 Office: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. ---------- Forwarded message ---------From: Gillespie, Stuart (ENRD) Date: Thu, May 25, 2017 at 11:16 AM Subject: Twin Metals Final Draft Motion to Dismiss for Review To: "Collier, Briana" Briana – Thank you again for your comments. I have attached the final version of the MTD, which I just send up to Lisa Russell for review. Please share this version with Jack. Thanks Stu Stuart C. Gillespie Trial Attorney U.S. Department of Justice Environment and Natural Resources 999 18th Street South Terrace, Suite 370 Denver, CO 80202 O: (303) 844-1382 C: (202) 598-9580 Stuart.gillespie@usdoj.gov "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Fri Jun 02 2017 16:51 :03 GMT-0600 (MDT) To: "Hawbecker, Karen" Subject: Re: Twin Metals Final Draft Motion to Dismiss for Review On Fri, Jun 2, 2017 at 6:17 PM, Hawbecker, Karen wrote: Jack, Doyou? Thanks. On Thu, Jun 1, 2017 at 5:55 PM, Haugrud, Kevin wrote: On Thu, Jun 1, 2017 at 5:39 PM, Hawbecker, Karen wrote: Thankwack- On Thu, Jun 1, 2017 at 5:36 PM, Haugrud, Kevin wrote: Yes, we should go ahead and file on Monday. On Thu, Jun 1, 2017 at 5:32 PM, Hawbecker, Karen wrote: Jack, I've completed my review of the draft motion to dismiss. I noted in a comment in the brief tha. ?anls. ?!aren On Thu, May 25, 2017 at 12:38 PM, Collier, Briana wrote: Jack, Please ?nd attached below the new final draft of the Twin Metals Motion to Dismiss, which includes SOL DMR, BLM and USDA OGC input. The ?ling date is June 5th. Stuart expects to Please let us know if you have any questions. Thankyou, Bnana Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 1849 Street NW, Washington, DC. 20240 Of?ce: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. -- Forwarded message From: Gillespie, Stuart (ENRD) Date: Thu, May 25, 2017 at 11:16 AM Subject: Twin Metals Final Draft Motion to Dismiss for Review To: "Collier, Briana" Briana Thank you again for your comments. have attached the ?nal version of the MTD, which I just send up to Lisa Russell for review. Please share this version with Jack. Thanks Stu Stuart C. Gillespie Trial Attorney US. Department of Justice Environment and Natural Resources 999 18th Street South Terrace, Suite 370 Denver, CO 80202 O: (303) 844-1382 c: (202) 598-9580 Stuartoillesoie?busdoi.dov Karen Hawbecker From: Karen Hawbecker Sent: Sun Jun 04 2017 21:08:48 GMT-0600 (MDT) To: "Haugrud, Kevin" Subject: Re: Twin Metals Final Draft Motion to Dismiss for Review Thanks, Jack. DOJ's plan is --Karen Sent from my iPad On Jun 2, 2017, at 6:51 PM, Haugrud, Kevin wrote: On Fri, Jun 2, 2017 at 6:17 PM, Hawbecker, Karen wrote: Jack, Do you still plan to? Thanks. --Karen On Thu, Jun 1, 2017 at 5:55 PM, Haugrud, Kevin wrote: On Thu, Jun 1,2017 at 5:39 PM, Hawbecker, Karen wrote: Thanks.Jack- On Thu, Jun 1,2017 at 5:36 PM, Haugrud, Kevin wrote: Yes, we should go ahead and file on Monday. On Thu, Jun 1, 2017 at 5:32 PM, Hawbecker, Karen wrote: Jack, I've completed my review of the draft motion to dismiss. I noted in a comment in the brief that an S.- aren On Thu, May 25, 2017 at 12:38 PM, Collier, Briana wrote: Jack, Please ?nd attached below the new final draft of the Twin Metals Motion to Dismiss, which includes SOL DMR, BLM and USDA OGC input. The filing date is June 5th. Stuart eXpects to Please let us know if you have any questions. Thankyou, Bnana Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 1849 Street NW, Washington, DC. 20240 Of?ce: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. -- Forwarded message From: Gillespie, Stuart (ENRD) Date: Thu, May 25,2017 at 11:16 AM Subject: Twin Metals Final Draft Motion to Dismiss for Review To: "Collier, Briana" Briana Thank you again for your comments. have attached the ?nal version of the MTD, which ljust send up to Lisa Russell for review. Please share this version with Jack. Thanks Stu Stuart C. Gillespie Trial Attorney US. Department of Justice Environment and Natural Resources 999 18th Street South Terrace, Suite 370 Denver, CO 80202 O: (303) 844-1382 C: (202) 598-9580 Stuart. illes ie usdo'. ov "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Mon Jun 05 2017 10:26:14 GMT-0600 (MDT) To: "Hawbecker, Karen" Richard McNeer "Collier, Briana" cc: Joshua Hanson Roy Fuller "Sklar, Ryan" Subject: Re: Twin Metals Final Draft Motion to Dismiss for Review I've reviewed and On Thu, Jun 1, 2017 at 5:32 PM, Hawbecker, Karen wrote: Jack, I've completed my review of the draft motion to dismiss. I noted in a comment in the brief that Thanks. aren On Thu, May 25, 2017 at 12:38 PM, Collier, Briana wrote: Jack, Please find attached below the new ?nal draft of the Twin Metals Motion to Dismiss, which includes SOL DMR, BLM and USDA OGC input. The ?ling date is June 5th. Stuart expects Please let us know if you have any questions. Thankyou, Bnana Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 1849 Street NW, Washington, DC. 20240 Of?ce: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. -- Forwarded message From: Gillespie, Stuart (ENRD) Date: Thu, May 25, 2017 at 11:16 AM Subject: Twin Metals Final Draft Motion to Dismiss for Review To: "Collier, Briana" Briana Thank you again for your comments. I have attached the final version of the MTD, which I just send up to Lisa Russell for review. Please share this version with Jack. Thanks Stu Stuart C. Gillespie Trial Attorney US. Department of Justice Environment and Natural Resources 999 18th Street South Terrace, Suite 370 Denver, CO 80202 O: (303) 844-1382 C: (202) 598-9580 Stuart. illes ie usdo'. ov "Collier, Briana" From: "Collier, Briana" Sent: Mon Jun 05 2017 10:40:38 GMT-0600 (MDT) To: "Haugrud, Kevin" "Hawbecker, Karen" Richard McNeer Joshua Hanson Roy Fuller "Sklar, Ryan" Subject: Re: Twin Metals Final Draft Motion to Dismiss for Review Thanks Jack. Stu Gillespie at DOJ has confirmed Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Office of the Solicitor 1849 Street NW, Washington, DC. 20240 Of?ce: (202) 208-4853 CC: This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Mon, Jun 5, 2017 at 12:26 PM. Hauqrud. Kevin wrote: I've reviewed and On Thu, Jun 1, 2017 at 5:32 PM, Hawbecker, Karen wrote: Jack, I've completed my review of the draft motion to dismiss. I noted in a comment in the brief that- Thanks. -- aren On Thu, May 25, 2017 at 12:38 PM, Collier, Briana wrote: Jack, Please find attached below the new ?nal draft of the Twin Metals Motion to Dismiss, which includes SOL DMR, BLM and USDA OGC input. The ?ling date is June 5th. Stuart eXDects to Please let us know if you have any questions. Thankyou, Bnana Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Office of the Solicitor 1849 Street NW, Washington, DC. 20240 Of?ce: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. -- Forwarded message From: Gillespie, Stuart (ENRD) Date: Thu, May 25,2017 at 11:16 AM Subject: Twin Metals Final Draft Motion to Dismiss for Review To: "Collier, Briana" Briana Thank you again for your comments. I have attached the final version of the MTD, which I just send up to Lisa Russell for review. Please share this version with Jack. Thanks Stu Stuart C. Gillespie Trial Attorney U.S. Department of Justice Environment and Natural Resources 999 18th Street South Terrace, Suite 370 Denver, CO 80202 O: (303) 844-1382 C: (202) 598-9580 Stuart.gillespie@usdoj.gov Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:04 PM Conversation Contents Significant litigation deadlines 060517 updated clean version w/attached previous version pdf. Attachments: /126. Significant litigation deadlines 060517 updated clean version w/attached previous version pdf./1.1 Updated 052417 SignificantLitigationDeadlines.pdf "Caminiti, Mariagrazia" From: Sent: To: Subject: Attachments: "Caminiti, Mariagrazia" Mon Jun 05 2017 07:47:34 GMT-0600 (MDT) "SOL-Associate & Regional Solicitors" , Jack Haugrud , "Jorjani, Daniel" , Joshua Campbell , Edward T Keable , "SOL-Assistant & Field Solicitors" Significant litigation deadlines 060517 updated clean version w/attached previous version pdf. Updated 052417 SignificantLitigationDeadlines.pdf Here is the link for the 060517 updated and clean significant litigation deadlines doc in google docs. Also attached below is the redline-strikeout of the 052417 version w/changes, updates and deleted sections included for comparison and for your information. cheers,mg -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:06 PM Conversation Contents DMR Friday List Attachments: /127. DMR Friday List/1.1 2017.06.02DMRFridayList.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Fri Jun 02 2017 16:16:29 GMT-0600 (MDT) Jack Haugrud Tom Bovard , Dennis Daugherty , Richard McNeer DMR Friday List 2017.06.02DMRFridayList.docx Jack, I've attached our Friday list for your reference. Have a great weekend! --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:06 PM Conversation Contents Fwd: Twin Metals Memo Attachments: /128. Fwd: Twin Metals Memo/1.1 Twin Metals Project.docx Douglas Domenech From: Sent: To: Subject: Attachments: Douglas Domenech Thu Jun 01 2017 12:52:16 GMT-0600 (MDT) Jorjani Daniel , Keable Edward , Haugrud Kevin , Cason James Fwd: Twin Metals Memo Twin Metals Project.docx Sent from my iPhone Begin forwarded message: From: "Benedetto, Kathleen" Date: June 1, 2017 at 12:04:55 PM EDT To: Douglas Domenech Subject: Twin Metals Memo The people opposed to the project believe the underground mining operation will contaminate the Boundary Waters Canoe Wilderness area. Within the Wilderness area just northeast of the project area is a lake called Nickle lake that is on trend with the defined deposit. -Kathleen Benedetto Special Assistant to the Secretary Department of the Interior Bureau of Land Management (202) 208-5934 Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:07 PM Conversation Contents TIME SENSITIVE request for Twin Metals Options Paper Attachments: /130. TIME SENSITIVE request for Twin Metals Options Paper/1.1 2017.04.21 Twin Metals litigation briefing paper.docx /130. TIME SENSITIVE request for Twin Metals Options Paper/1.2 2017.04.21 Twin Metals leasing decision options paper.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Thu Jun 01 2017 08:52:46 GMT-0600 (MDT) Jack Haugrud Richard McNeer , Briana Collier , Roy Fuller , "Sklar, Ryan" TIME SENSITIVE request for Twin Metals Options Paper 2017.04.21 Twin Metals litigation briefing paper.docx 2017.04.21 Twin Metals leasing decision options paper.docx Jack, I'm not sure you previously had time to review the Twin Metals briefing materials and options paper we prepared in April. You may recall that we used the materials to brief Kathy Benedetto about the case and the options, but did not let her keep the materials. She is asking for the options paper now because the WH has expressed interest in the Twin Metals matter and Doug Domenich wants to talk to the WH today. Could we share a copy of the options paper with Kathy? Thanks. --Karen ---------- Forwarded message ---------From: Collier, Briana Date: Thu, Jun 1, 2017 at 10:19 AM Subject: Fwd: TIME SENSITIVE request for Twin Metals Options Paper To: Karen Hawbecker , Richard McNeer Cc: Ryan Sklar , Roy Fuller Hi Karen and Richard, Kathy Benedetto asked for the Twin Metals option paper at this morning's BLM Chief of Staff meeting. She said that there is now White House interest and that Doug Domenich would likely be speaking to the White House about the matter today. Could you please ask Jack if we can share the options paper with Kathy? The document attached below is the latest version that I have. I'm copying Roy and Ryan so that they will be in the loop on this. I will be training and in meetings with Ryan until after lunch, but will try to check in on my email then. Thanks very much, Briana Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 1849 C Street NW, Washington, D.C. 20240 Office: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. ---------- Forwarded message ---------From: Hawbecker, Karen Date: Thu, Apr 27, 2017 at 6:25 PM Subject: Question re: Friday Meeting with Kathy Benedetto: Twin Metals Options Paper and Litigation Briefing Paper To: Jack Haugrud Cc: Richard McNeer , Briana Collier , Joshua Hanson Jack, We've scheduled a meeting with Kathy Benedetto for tomorrow at 4 pm to get some feedback from her on the options we've identified for reversing action on the Twin Metals decision. Would you have any objections to us showing her a copy of the options paper? We would show her the draft at the meeting and collect it at the end of the meeting. Thanks. --Karen ---------- Forwarded message ---------From: Hawbecker, Karen Date: Fri, Apr 21, 2017 at 12:58 PM Subject: Twin Metals Options Paper and Litigation Briefing Paper To: Jack Haugrud Cc: Richard McNeer , Briana Collier , Joshua Hanson Jack, I've attached the updated drafts of the Twin Metals options paper and briefing paper. We'd like to get your feedback on the options paper, in particular, to make sure you're okay with the approach we've taken. Once we get your approval, we'll either schedule a meeting with you and Dan, as we discussed at our weekly meeting, or we'll schedule the briefing for Jim Cason et al, if you think these documents are ready to go. Thank you. --Karen "Haugrud, Kevin" From: Sent: To: CC: Subject: "Haugrud, Kevin" Thu Jun 01 2017 09:54:34 GMT-0600 (MDT) "Hawbecker, Karen" Richard McNeer , Briana Collier , Roy Fuller , "Sklar, Ryan" Re: TIME SENSITIVE request for Twin Metals Options Paper Okay. On Thu, Jun 1, 2017 at 10:52 AM, Hawbecker, Karen wrote: Jack, I'm not sure you previously had time to review the Twin Metals briefing materials and options paper we prepared in April. You may recall that we used the materials to brief Kathy Benedetto about the case and the options, but did not let her keep the materials. She is asking for the options paper now because the WH has expressed interest in the Twin Metals matter and Doug Domenich wants to talk to the WH today. Could we share a copy of the options paper with Kathy? Thanks. --Karen ---------- Forwarded message ---------From: Collier, Briana Date: Thu, Jun 1, 2017 at 10:19 AM Subject: Fwd: TIME SENSITIVE request for Twin Metals Options Paper To: Karen Hawbecker , Richard McNeer Cc: Ryan Sklar , Roy Fuller Hi Karen and Richard, Kathy Benedetto asked for the Twin Metals option paper at this morning's BLM Chief of Staff meeting. She said that there is now White House interest and that Doug Domenich would likely be speaking to the White House about the matter today. Could you please ask Jack if we can share the options paper with Kathy? The document attached below is the latest version that I have. I'm copying Roy and Ryan so that they will be in the loop on this. I will be training and in meetings with Ryan until after lunch, but will try to check in on my email then. Thanks very much, Briana Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 1849 C Street NW, Washington, D.C. 20240 Office: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. ---------- Forwarded message ---------From: Hawbecker, Karen Date: Thu, Apr 27, 2017 at 6:25 PM Subject: Question re: Friday Meeting with Kathy Benedetto: Twin Metals Options Paper and Litigation Briefing Paper To: Jack Haugrud Cc: Richard McNeer , Briana Collier , Joshua Hanson Jack, We've scheduled a meeting with Kathy Benedetto for tomorrow at 4 pm to get some feedback from her on the options we've identified for reversing action on the Twin Metals decision. Would you have any objections to us showing her a copy of the options paper? We would show her the draft at the meeting and collect it at the end of the meeting. Thanks. --Karen ---------- Forwarded message ---------From: Hawbecker, Karen Date: Fri, Apr 21, 2017 at 12:58 PM Subject: Twin Metals Options Paper and Litigation Briefing Paper To: Jack Haugrud Cc: Richard McNeer , Briana Collier , Joshua Hanson Jack, I've attached the updated drafts of the Twin Metals options paper and briefing paper. We'd like to get your feedback on the options paper, in particular, to make sure you're okay with the approach we've taken. Once we get your approval, we'll either schedule a meeting with you and Dan, as we discussed at our weekly meeting, or we'll schedule the briefing for Jim Cason et al, if you think these documents are ready to go. Thank you. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:07 PM Conversation Contents Agenda for DMR Weekly Meeting Attachments: /131. Agenda for DMR Weekly Meeting/1.1 2017.05.31 DMR Weekly Meeting Agenda.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Tue May 30 2017 16:57:10 GMT-0600 (MDT) Daniel Jorjani , Jack Haugrud Tom Bovard , Dennis Daugherty , Richard McNeer Agenda for DMR Weekly Meeting 2017.05.31 DMR Weekly Meeting Agenda.docx Dan and Jack, I've attached the agenda for our weekly meeting tomorrow morning. We'll see you then. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:07 PM Conversation Contents DMR Friday List Attachments: /132. DMR Friday List/1.1 2017.05.26DMRFridayList.pdf "Daugherty, Dennis" From: Sent: To: CC: Subject: Attachments: "Daugherty, Dennis" Fri May 26 2017 13:26:37 GMT-0600 (MDT) Jack Haugrud Karen Hawbecker , Tom Bovard , "McNeer, Richard" DMR Friday List 2017.05.26DMRFridayList.pdf Attached is DMR's Friday list. We'll see you after Memorial Day. Have a great one. -Dennis Daugherty Assistant Solicitor, Offshore Resources Division of Mineral Resources Office of the Solicitor Mail Stop 5358 Kevin Haugrud From: Sent: To: CC: Subject: Kevin Haugrud Fri May 26 2017 14:05:06 GMT-0600 (MDT) "Daugherty, Dennis" Karen Hawbecker , Tom Bovard , "McNeer, Richard" Re: DMR Friday List Thanks Dennis. -------- Original Message -------From: "Daugherty, Dennis" Date: Fri, May 26, 2017 3:26 PM -0400 To: Jack Haugrud CC: Karen Hawbecker , Tom Bovard , "McNeer, Richard" Subject: DMR Friday List Attached is DMR's Friday list. We'll see you after Memorial Day. Have a great one. -Dennis Daugherty Assistant Solicitor, Offshore Resources Division of Mineral Resources Office of the Solicitor Mail Stop 5358 Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:07 PM Conversation Contents Friday List Attachments: /133. Friday List/1.1 2017.05.26DMRFridayList.docx "McNeer, Richard" From: Sent: To: CC: Subject: Attachments: "McNeer, Richard" Fri May 26 2017 13:11:45 GMT-0600 (MDT) Jack Haugrud SOL-Division Of Mineral Resources Friday List 2017.05.26DMRFridayList.docx Jack: Attached are DMR's updates to the Weekly report (the Friday list). We hope you enjoy the holiday weekend. Richard Kevin Haugrud From: Sent: To: Subject: Kevin Haugrud Fri May 26 2017 15:00:17 GMT-0600 (MDT) "McNeer, Richard" Re: Friday List Thanks Richard. -------- Original Message -------From: "McNeer, Richard" Date: Fri, May 26, 2017 3:12 PM -0400 To: Jack Haugrud CC: SOL-Division Of Mineral Resources Subject: Friday List Jack: Attached are DMR's updates to the Weekly report (the Friday list). We hope you enjoy the holiday weekend. Richard Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:07 PM Conversation Contents Fwd: Twin Metals Final Draft Motion to Dismiss for Review Attachments: I134. Fwd: Twin Metals Final Draft Motion to Dismiss for Review/1.1 "Collier, Briana" From: "Collier, Briana" Sent: Thu May 25 2017 10:38:08 GMT-0600 (MDT) To: "Haugrud, Kevin" Karen Hawbecker Richard CC: McNeer Joshua Hanson Subject: Fwd: Twin Metals Final Draft Motion to Dismiss for Review AttaChments- Jack, Please ?nd attached below the new ?nal draft of the Twin Metals Motion to Dismiss, which includes SOL DMR, BLM and USDA OGC input. The ?ling date is June 5th. Stuart expects Please let us know if you have any questions. Thankyou, Bnana Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Office of the Solicitor 1849 Street NW, Washington, DC. 20240 Of?ce: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. -- Forwarded message From: Gillespie, Stuart (ENRD) Date: Thu, May 25,2017 at 11:16 AM Subject: Twin Metals Final Draft Motion to Dismiss for Review To: "Collier, Briana" Briana – Thank you again for your comments. I have attached the final version of the MTD, which I just send up to Lisa Russell for review. Please share this version with Jack. Thanks Stu Stuart C. Gillespie Trial Attorney U.S. Department of Justice Environment and Natural Resources 999 18th Street South Terrace, Suite 370 Denver, CO 80202 O: (303) 844-1382 C: (202) 598-9580 Stuart.gillespie@usdoj.gov Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:11 PM Conversation Contents Weekly Report to the Secretary - May 25, 2017 Attachments: /135. Weekly Report to the Secretary - May 25, 2017/1.1 WeeklyReporttotheSecretary05-25-17.docx "Rees, Gareth" From: Sent: To: Subject: Attachments: "Rees, Gareth" Thu May 25 2017 10:25:17 GMT-0600 (MDT) Amy Holley , "Caminiti, Mariagrazia" , Christine Bauserman , Daniel Jorjani , Douglas Domenech , Downey Magallanes , Edward Keable , Heather Swift , James Cason , Juliette Lillie , Katharine Macgregor , Kerry Rae , Kevin Haugrud , Maureen Foster , Megan Bloomgren , Micah Chambers , Michael Black , Nancy Guiden , Nikolao Pula , Richard Cardinale , Scott Cameron , Scott Hommel , Timothy Williams , Vincent Devito , Virginia Johnson Weekly Report to the Secretary - May 25, 2017 WeeklyReporttotheSecretary05-25-17.docx Good Afternoon ​All, Please find attached the weekly report to the Secretary. I have attached both the word and Google Doc versions of the reports. If there are any issues, please let me know. Thanks -Gareth C. Rees Of?ce to the Deputy Secretary US. Department of the Interior Tel: 202-208-6291 Fax: 202-208-1873 Cell: 202-957-8299 5 Weekly Report to the Secretary 05-25-17 Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:11 PM Conversation Contents sol report to the secy Attachments: /136. sol report to the secy/1.1 052417 WEEKLY REPORT TO THE SECRETARY.docx "Caminiti, Mariagrazia" From: Sent: To: Subject: Attachments: "Caminiti, Mariagrazia" Thu May 25 2017 10:16:11 GMT-0600 (MDT) "Jorjani, Daniel" , Joshua Campbell , Edward T Keable , Jack Haugrud sol report to the secy 052417 WEEKLY REPORT TO THE SECRETARY.docx as submitted.mg -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:12 PM Conversation Contents Agenda for Weekly Meeting Attachments: /137. Agenda for Weekly Meeting/1.1 2017.05.24 DMR Weekly Meeting Agenda.docx "McNeer, Richard" From: Sent: To: CC: Subject: Attachments: "McNeer, Richard" Tue May 23 2017 14:37:46 GMT-0600 (MDT) Jack Haugrud "Hawbecker, Karen" , Thomas Bovard , "Daugherty, Dennis" , Daniel Jorjani Agenda for Weekly Meeting 2017.05.24 DMR Weekly Meeting Agenda.docx Jack: Here is the agenda for tomorrow's meeting. Richard Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:12 PM Conversation Contents Twin Metals Attachments: /138. Twin Metals/1.1 2017.05#571634-v4-TMM_Draft_MTD_Amended_Complaint [bwc, jfh] rhm.docx "McNeer, Richard" From: Sent: To: CC: Subject: Attachments: "McNeer, Richard" Mon May 22 2017 13:24:34 GMT-0600 (MDT) Jack Haugrud "Hawbecker, Karen" , "Collier, Briana" , Joshua Hanson Twin Metals 2017.05#571634-v4-TMM_Draft_MTD_Amended_Complaint [bwc, jfh] rhm.docx Jack: For your review is the draft brief in support of our motion to dismiss the Quiet Title Act and APA claims. Thanks to Briana and Josh for their hard work editing the draft. Please let us know if you have edits or comments. Stu at ENRD has asked for our comments this Wednesday. Richard Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:12 PM Conversation Contents DMR Friday List Attachments: /139. DMR Friday List/1.1 2017.05.19DMRFridayList.docx "Bovard, Thomas" From: Sent: To: CC: Subject: Attachments: "Bovard, Thomas" Fri May 19 2017 14:54:42 GMT-0600 (MDT) Jack Haugrud "Hawbecker, Karen" , Dennis Daugherty , Richard McNeer DMR Friday List 2017.05.19DMRFridayList.docx Hi Jack, attached is this week's Friday list. Have a great weekend! Thanks. Tom Thomas A. Bovard Assistant Solicitor Branch of Surface Mining Division of Mineral Resources Office of the Solicitor United States Department of the Interior 1849 C Street NW Washington, DC 20240 Phone: 202.208.5730 Fax: 202.219.1789 Tom.Bovard@sol.doi.gov Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:12 PM Conversation Contents Twin Metals Attachments: /140. Twin Metals/1.1 TwinMetals-DraftrevisedM-Opargumentoutline.docx "McNeer, Richard" From: Sent: To: CC: Subject: Attachments: "McNeer, Richard" Wed May 17 2017 08:17:55 GMT-0600 (MDT) Jack Haugrud "Collier, Briana" , "Hawbecker, Karen" Twin Metals TwinMetals-DraftrevisedM-Opargumentoutline.docx Jack: FYI. Here is Briana's draft outline of an explanation for reversal of the M-Opinion. Please let us know if you have any comments. Richard Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:12 PM Conversation Contents Agenda for Wednesday meeting Attachments: /141. Agenda for Wednesday meeting/1.1 AgendaforWeeklyMeetingwithJack-17May2017.docx "Bovard, Thomas" From: Sent: To: CC: Subject: Attachments: "Bovard, Thomas" Tue May 16 2017 15:26:42 GMT-0600 (MDT) "Haugrud, Jack" "Hawbecker, Karen" , Dennis Daugherty , Richard McNeer Agenda for Wednesday meeting AgendaforWeeklyMeetingwithJack--17May2017.docx Hi Jack, attached is the agenda for our meeting tomorrow. Thanks, Tom Thomas A. Bovard Assistant Solicitor Branch of Surface Mining Division of Mineral Resources Office of the Solicitor United States Department of the Interior 1849 C Street NW Washington, DC 20240 Phone: 202.208.5730 Fax: 202.219.1789 Tom.Bovard@sol.doi.gov Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:12 PM Conversation Contents Fwd: 4/27 Twin Metals update from DOJ - status quo, MTD, extension, Zinke meeting Attachments: I142. Fwd: 4/27 Twin Metals update from DOJ - status quo, MTD, extension, Zinke meeting/5.1 2016.12.12 Fed Defendants - MTD - ?ledpdf "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Thu Apr 27 2017 15:12:23 GMT-0600 (MDT) To, Jack Haugrud Daniel Jorjani Richard McNeer Briana Collier CC: Joshua Hanson Fwd: 4/27 Twin Metals update from DOJ - status quo, MTD, extension, Zinke meeting Jack and Dan, Briana has outlined four updates from DOJ related to the Twin Metals litigation. As next steps, we would like to: Please let us know if you have any objections with our proposed next steps or if you?d like to discuss any of these further. We will also let you know if we ?nd out more about a meeting or meetings between the Antofagasta CEO and Secretary Zinke or any other high-level government of?cials. Please also let us know if you've heard anything about such a meeting with Secretary Zinke. Thank you. ?Karen -- Forwarded message From: Collier, Briana Date: Thu, Apr 27, 2017 at 4:27 PM Subject: 4/27 Twin Metals update from DOJ - status quo, MTD, extension, Zinke meeting To: Karen Hawbecker Richard McNeer Joshua Hanson Hi all, I spoke with Clare at DOJ this afternoon. Here are the updates: 4. Meeting between CEO Arriagada and Sec. Zinke - DOJ is still inquiring as to when/whether this meeting has been scheduled. Apparently Plaintiffs' counsel told Marissa that the meeting has grown to involve USDA and other agencies. Clare did not know what other agencies might be involved but we were guessing maybe State and/or a trade commission. Please let me know if you would like to discuss any of these items, or if you have next steps directions on them. Thank you. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior. Office of the Solicitor 1849 Street NW, Washington, DC. 20240 Of?ce: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution. copying. or use of this email or its contents is strictly prohibited. If you received this email in error. please notify the sender immediately and destroy all copies. "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Thu Apr 27 2017 15:29:25 GMT-0600 (MDT) To: "Hawbecker, Karen" Daniel Jorjani Richard McNeer Briana Collier Joshua Hanson . Re: 4/27 Twin Metals update from DOJ - status quo, MTD, Subject. extension, Zinke meeting On Thu, Apr 27, 2017 at 5:12 PM, Hawbecker, Karen wrote: Jack and Dan, Briana has outlined four updates from DOJ related to the Twin Metals litigation. As next steps, we would like to: Please let us know if you have any objections with our proposed next steps or if you'd like to discuss any of these further. We will also let you know if we ?nd out more about a meeting or meetings between the Antofagasta CEO and Secretary Zinke or any other high-level government of?cials. Please also let us know if you've heard anything about such a meeting with Secretary Zinke. Thank you. --Karen -- Forwarded message From: Collier, Briana Date: Thu, Apr 27,2017 at 4:27 PM Subject: 4/27 Twin Metals update from DOJ - status quo, MTD, extension, Zinke meeting To: Karen Hawbecker Richard McNeer Joshua Hanson Hi all, I spoke with Clare at DOJ this afternoon. Here are the updates: 4. Meeting between CEO Arriagada and Sec. Zinke - DOJ is still inquiring as to when/whether this meeting has been scheduled. Apparently Plaintiffs' counsel told Marissa that the meeting has grown to involve USDA and other agencies. Clare did not know what other agencies might be involved but we were guessing maybe State and/or a trade commission. Please let me know if you would like to discuss any of these items, or if you have next steps directions on them. Thank you. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 1849 Street NW, Washington, DC. 20240 Of?ce: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. Kevin Haugrud From: Kevin Haugrud Sent: Thu Apr 27 2017 22:55:22 GMT-0600 (MDT) "Hawbecker, Karen" Daniel Jorjani Richard McNeer Briana Collier CC: Joshua Hanson Re: 4/27 Twin Metals update from DOJ - status quo, MTD, extension, Zinke meeting To: Subject: Karen, I'm guessing From: Hawbecker, Karen Sent: Thursday, April 27, 2017 5:12 PM To: Jack Haugrud; Daniel Jorjani Cc: Richard McNeer; Briana Collier; Joshua Hanson Subject: Fwd: 4/27 Twin Metals update from DOJ - status quo, MTD, extension, Zinke meeting Jack and Dan, Briana has outlined four updates from DOJ related to the Twin Metals litigation. As next steps, we would like to: Please let us know if you have any objections with our proposed next steps or if you?d like to discuss any of these further. We will also let you know if we ?nd out more about a meeting or meetings between the Antofagasta CEO and Secretary Zinke or any other high-level government of?cials. Please also let us know if you've heard anything about such a meeting with Secretary Zinke. Thank you. -Karen -- Forwarded message From: Collier, Briana Date: Thu, Apr 27, 2017 at 4:27 PM Subject: 4/27 Twin Metals update from DOJ - status quo, MTD, extension, Zinke meeting To: Karen Hawbecker Richard McNeer Joshua Hanson Hi all, I spoke with Clare at DOJ this afternoon. Here are the updates: 1. 4. Meeting between CEO Arriagada and Sec. Zinke - DOJ is still inquiring as to when/whether this meeting has been scheduled. Apparently Plaintiffs' counsel told Marissa that the meeting has grown to involve USDA and other agencies. Clare did not know what other agencies might be involved but we were guessing maybe State and/or a trade commission. Please let me know if you would like to discuss any of these items, or if you have next steps directions on them. Thank you. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Office of the Solicitor 1849 Street NW, Washington. DC. 20240 Of?ce: (202) 208?4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. Karen Hawbecker From: Karen Hawbecker Sent: Fri Apr 28 2017 05:55:26 GMT-0600 (MDT) To: Kevin Haugrud Daniel Jorjani Richard McNeer Briana Collier CC: Joshua Hanson . Re: 4/27 Twin Metals update from DOJ - status quo, MTD, Subject. extension, Zinke meeting Thanks, Jack. We'll ask Kathy about the meeting. Sent from my iPad On Apr 28, 2017, at 12:55 AM, Kevin Haugrud wrote: Karen. I'm guessing From: Hawbecker, Karen Sent: Thursday, April 27, 2017 5:12 PM To: Jack Haugrud; Daniel Jorjani Cc: Richard McNeer; Briana Collier; Joshua Hanson Subject: Fwd: 4/27 Twin Metals update from DOJ - status quo, MTD, extension, Zinke meeting Jack and Dan, Briana has outlined four updates from DOJ related to the Twin Metals litigation. As next steps, we would like to: Please let us know if you have any objections with our proposed next steps or if you'd like to discuss any of these further. We will also let you know if we ?nd out more about a meeting or meetings between the Antofagasta CEO and Secretary Zinke or any other high-level government of?cials. Please also let us know if you've heard anything about such a meeting with Secretary Zinke. Thank you. --Karen -- Forwarded message From: Collier, Briana Date: Thu, Apr 27, 2017 at 4:27 PM Subject: 4/27 Twin Metals update from DOJ - status quo, MTD, extension, Zinke meeting To: Karen Hawbecker Richard McNeer Joshua Hanson Hi all, I spoke with Clare at DOJ this afternoon. Here are the updates: 1. 4. Meeting between CEO Arriagada and Sec. Zinke - DOJ is still inquiring as to when/whether this meeting has been scheduled. Apparently Plaintiffs' counsel told Marissa that the meeting has grown to involve USDA and other agencies. Clare did not know what other agencies might be involved but we were guessing maybe State and/or a trade commission. Please let me know if you would like to discuss any of these items, or if you have next steps directions on them. Thank you. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Office of the Solicitor 1849 Street NW, Washington, DC. 20240 Of?ce: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying. or use of this email or its contents is strictly prohibited. If you received this email in error. please notify the sender immediately and destroy all copies. "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Mon May 15 2017 13:45:08 GMT-0600 (MDT) To: Jack Haugrud . Fwd: 4/27 Twin Metals update from DOJ - status quo, MTD, Subject. . . . extenSIon, Zinke meeting Attachments: 2016.12.12 Fed Defendants - MTD - ?led.pdf Jack, Here is the last exchange we had with you about DOJ's interest in a MTD. I?ve attached the December MTD for your reference. I've also forward an April 17 email from Clare in which . I'll also forward an email that Briana sent to Clare a er our In erna emal exc ange ow. re ec mg on status of the December MTD. --Karen -- Forwarded message From: Hawbecker, Karen Date: Thu, Apr 27, 2017 at 5:41 PM Subject: Re: 4/27 Twin Metals update from DOJ - status quo, MTD, extension, Zinke meeting To: Richard McNeer Briana Collier Joshua Hanson I talked to Jack about these points. On Thu, Apr 27, 2017 at 5:12 PM, Hawbecker, Karen wrote: Jack and Dan, Briana has outlined four updates from DOJ related to the Twin Metals litigation. As next steps, we would like to: Please let us know if you have any objections with our proposed next steps or if you'd like to discuss any of these further. We will also let you know if we ?nd out more about a meeting or meetings between the Antofagasta CEO and Secretary Zinke or any other high-level government of?cials. Please also let us know if you've heard anything about such a meeting with Secretary Zinke. Thank you. -Karen -- Forwarded message From: Collier, Briana Date: Thu, Apr 27, 2017 at 4:27 PM Subject: 4/27 Twin Metals update from DOJ - status quo, MTD, extension, Zinke meeting To: Karen Hawbecker Richard McNeer Joshua Hanson Hi all, I spoke with Clare at DOJ this afternoon. Here are the updates: 1. 4. Meeting between CEO Arriagada and Sec. Zinke - DOJ is still inquiring as to when/whether this meeting has been scheduled. Apparently Plaintiffs' counsel told Marissa that the meeting has grown to involve USDA and other agencies. Clare did not know what other agencies might be involved but we were guessing maybe State and/or a trade commission. Please let me know if you would like to discuss any of these items, or if you have next steps directions on them. Thank you. Briana Collier Attorney-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 1849 Street NW, Washington, DC. 20240 Of?ce: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:13 PM Conversation Contents M Opinions cited in OLC memo "Haugrud, Kevin" From: Sent: To: Subject: "Haugrud, Kevin" Fri May 12 2017 16:38:47 GMT-0600 (MDT) Aaron Moody , Laura Brown M Opinions cited in OLC memo Laura, Aaron - In footnote 45 we cite a number of M Opinions. Do you have copies of those you could forward? Aaron Moody From: Sent: To: CC: Subject: Aaron Moody Sat May 13 2017 11:57:51 GMT-0600 (MDT) "Haugrud, Kevin" Laura Brown Re: M Opinions cited in OLC memo They're in a folder on the google drive, but I"m on the road today so looping Josh in the hopes he can give you access. Sent from my iPad > On May 12, 2017, at 6:38 PM, Haugrud, Kevin wrote: > > Laura, Aaron - In footnote 45 we cite a number of M Opinions. Do you have copies of those you could forward? Aaron Moody From: Sent: To: CC: Subject: Aaron Moody Sat May 13 2017 11:58:25 GMT-0600 (MDT) "Haugrud, Kevin" Laura Brown , Joshua Hanson Re: M Opinions cited in OLC memo Actually looping Josh. Sent from my iPad > On May 13, 2017, at 1:57 PM, Aaron Moody wrote: > > They're in a folder on the google drive, but I"m on the road today so > looping Josh in the hopes he can give you access. > > Sent from my iPad > >> On May 12, 2017, at 6:38 PM, Haugrud, Kevin wrote: >> >> Laura, Aaron - In footnote 45 we cite a number of M Opinions. Do you have copies of those you could forward? "Hanson, Joshua" From: "Hanson, Joshua" Sent: Sun May 14 2017 05:55:40 GMT-0600 (MDT) To: Aaron Moody cc: "Haugrud, Kevin? Laura Brown Subject: Re: Opinions cited in OLC memo Jack, Attached is the google drive folder with the M-opinions. We have yet to ?nd the 1924 so that is still missing, but the rest of them should be in the folder. Let me know if you have any questions. Josh I3 SOL Opinions On Sat, May 13, 2017 at 1:58 PM, Aaron Moody wrote: Actually looping Josh. Sent from my iPad On May 13, 2017, at 1:57 PM, Aaron Moody wrote: They're in a folder on the google drive, but l"m on the road today so looping Josh in the hopes he can give you access. Sent from my iPad On May 12, 2017, at 6:38 PM, Haugrud, Kevin wrote: Laura, Aaron - In footnote 45 we cite a number of Opinions. Do you have copies of those you could forward? Joshua F. Hanson Branch of Public Land Division of Land Resources U. S. DeparIInent of the Interior 1849 Street, N.W., Rm. 6420 Washington, DC. 20240 Phone: (202)208?3463 Email: joshua.hansongwsol.doi.gov NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this e-mail to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. Ifyou received this e-mail in error, please notify the sender immediately and destroy all copies. Kevin Haugrud From: Kevin Haugrud Sent: Mon May 15 2017 05:17:38 GMT-0600 (MDT) "Hanson, Joshua" Aaron Moody TO: CC: Laura Brown Subject: Re: Opinions cited in OLC memo Just realized I forgot to acknowledge your email. Thanks much. Laura or Aaron, do we have anyone searching for the 1924 one? (Is that something the DOI library staff can do, or were they already asked?). From: Hanson, Joshua Sent: Sunday, May 14, 2017 7:56 AM To: Aaron Moody Cc: Haugrud, Kevin; Laura Brown Subject: Re: Opinions cited in OLC memo Jack, Attached is the google drive folder with the M-opinions. We have yet to ?nd the 1924 so that is still missing, but the rest of them should be in the folder. Let me know if you have any questions. Josh SOL Opinions On Sat, May 13, 2017 at 1:58 PM, Aaron Moody wrote: Actually looping Josh. Sent from my iPad On May 13, 2017, at 1:57 PM, Aaron Moody wrote: They're in a folder on the google drive, but on the road today so looping Josh in the hopes he can give you access. Sent from my iPad On May 12, 2017, at 6:38 PM, Haugrud, Kevin wrote: Laura, Aaron - In footnote 45 we cite a number of Opinions. Do you have copies of those you could forward? Joshua F. Hanson Branch of Public Land Division of Land Resources U. S. DeparIInent of the Interior 1849 Street, N.W., Rm. 6420 Washington, DC. 20240 Phone: (202)208-3463 Email: joshua.hanson@sol.doi.gov NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this e-mail to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you received this e-mail in error, please notify the sender immediately and destroy all copies. "Moody, Aaron" From: Sent: To: CC: Subject: "Moody, Aaron" Mon May 15 2017 06:12:58 GMT-0600 (MDT) Kevin Haugrud "Hanson, Joshua" , Laura Brown Re: M Opinions cited in OLC memo We've been pretty stumped on that one. DOJ hasn't been able to find it either. We've asked the library, who doesn't have it. Steve Harris also searched, as did Lance Purvis, and Josh took several trips to the archives. I'll chat with Laura and Josh about other ideas this morning. The last resort could be to call Mark Squillace, who cites it in an law review article. Aaron G. Moody Assistant Solicitor, Branch of Public Lands Division of Land Resources Office of the Solicitor U.S. Department of the Interior 202-208-3495 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. On Mon, May 15, 2017 at 7:17 AM, Kevin Haugrud wrote: Just realized I forgot to acknowledge your email. Thanks much. Laura or Aaron, do we have anyone searching for the 1924 one? (Is that something the DOI library staff can do, or were they already asked?). From: Hanson, Joshua Sent: Sunday, May 14, 2017 7:56 AM To: Aaron Moody Cc: Haugrud, Kevin; Laura Brown Subject: Re: M Opinions cited in OLC memo Jack, Attached is the google drive folder with the M-opinions. We have yet to find the 1924 M-Op, so that is still missing, but the rest of them should be in the folder. Let me know if you have any questions. Josh SOL Opinions On Sat, May 13, 2017 at 1:58 PM, Aaron Moody wrote: Actually looping Josh. Sent from my iPad On May 13, 2017, at 1:57 PM, Aaron Moody wrote: They're in a folder on the google drive, but on the road today so looping Josh in the hopes he can give you access. Sent from my iPad On May 12, 2017, at 6:38 PM, Haugrud, Kevin wrote: Laura, Aaron - In footnote 45 we cite a number of Opinions. Do you have copies of those you could forward? Joshua F. Hanson Branch of Public Land Division of Land Resources U. S. Department of the Interior 1849 Street, N.W., Rm. 6420 Washington, DC. 20240 Phone: (202)208-3463 Email: joshua.hansonswsol.doi.gov NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this e-mail to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you received this e-mail in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:13 PM Conversation Contents DMR Friday List Attachments: /144. DMR Friday List/1.1 2017.05.12DMRFridayList.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Fri May 12 2017 16:28:45 GMT-0600 (MDT) Jack Haugrud Tom Bovard , Dennis Daugherty , Richard McNeer DMR Friday List 2017.05.12DMRFridayList.docx Jack, I've attached our Friday list. I hope you have a good weekend! See you on Monday. --Karen "Haugrud, Kevin" From: Sent: To: CC: Subject: "Haugrud, Kevin" Fri May 12 2017 16:33:47 GMT-0600 (MDT) "Hawbecker, Karen" Tom Bovard , Dennis Daugherty , Richard McNeer Re: DMR Friday List Thanks much. On Fri, May 12, 2017 at 6:28 PM, Hawbecker, Karen wrote: Jack, I've attached our Friday list. I hope you have a good weekend! See you on Monday. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:13 PM Conversation Contents pdf of changes to SLD and link to clean list Attachments: /145. pdf of changes to SLD and link to clean list/1.1 Updated051017SignificantLitigationDeadlines.pdf "Caminiti, Mariagrazia" From: Sent: To: Subject: Attachments: "Caminiti, Mariagrazia" Wed May 10 2017 16:12:46 GMT-0600 (MDT) "SOL-Associate & Regional Solicitors" , "SOL-Assistant & Field Solicitors" , Jack Haugrud , Daniel Jorjani , Edward T Keable pdf of changes to SLD and link to clean list Updated051017SignificantLitigationDeadlines.pdf please udpate as needed. Link - clean -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:13 PM Conversation Contents Agenda for DMR Weekly Meeting Attachments: /146. Agenda for DMR Weekly Meeting/1.1 2017.05.10 DMR Weekly Meeting Agenda.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Tue May 09 2017 15:38:03 GMT-0600 (MDT) Jack Haugrud , Daniel Jorjani Tom Bovard , Dennis Daugherty , Richard McNeer Agenda for DMR Weekly Meeting 2017.05.10 DMR Weekly Meeting Agenda.docx Jack and Dan, I've attached the agenda for the DMR weekly meeting tomorrow morning. We'll see you then. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:13 PM Conversation Contents Agenda for DMR Weekly Meeting Attachments: /147. Agenda for DMR Weekly Meeting/1.1 2017.05.03 DMR Weekly Meeting Agenda.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Tue May 02 2017 16:11:22 GMT-0600 (MDT) Jack Haugrud , Daniel Jorjani Tom Bovard , Richard McNeer , Susan Cason , Matthew Ballenger , Dennis Daugherty Agenda for DMR Weekly Meeting 2017.05.03 DMR Weekly Meeting Agenda.docx Jack and Dan, I've attached the agenda for our weekly meeting tomorrow morning. We'll see you then. --Karen "Haugrud, Kevin" From: Sent: To: Subject: "Haugrud, Kevin" Tue May 02 2017 16:26:57 GMT-0600 (MDT) "Hawbecker, Karen" Re: Agenda for DMR Weekly Meeting Thanks. On Tue, May 2, 2017 at 6:11 PM, Hawbecker, Karen wrote: Jack and Dan, I've attached the agenda for our weekly meeting tomorrow morning. We'll see you then. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:13 PM Conversation Contents Twin Metals "Russell, Lisa (ENRD)" From: Sent: To: CC: Subject: "Russell, Lisa (ENRD)" Fri Apr 28 2017 10:03:31 GMT-0600 (MDT) "Haugrud, Jack" "Passarelli, Edward (ENRD)" , "Bosshardt, Stacey (ENRD)" Twin Metals Hi Jack, We hear that the head of the mining company is coming up from Chile for meetings with DOI officials on May 5. We hear that they are bringing litigation counsel and want to discuss the case. If that is accurate, we should be there. But we don’t know how to staff this, because we don’t know who is hosting or attending the meeting. If they are meeting with the Secretary to discuss litigation, my Acting AAG may want to attend. Can you please let us know what information you have about this, so we can brief Jean and Jeff? Thanks -- Lisa Lisa Lynne Russell, Chief Natural Resources Section Environment and Natural Resources Division United States Department of Justice 202-305-0438 (desk) 202-598-9733 (mobile) lisa.russell@usdoj.gov CONFIDENTIALITY NOTICE: This communication may contain sensitive, privileged attorney/client communications or work product, and is not subject to disclosure. It is solely for the use of the intended recipients. Unauthorized interception, review, use or disclosure is prohibited. If you believe that you have received this e-mail in error, please notify the sender immediately, and permanently delete the email, any attachments, and all copies from your computer. "Haugrud, Kevin" From: Sent: To: CC: Subject: "Haugrud, Kevin" Fri Apr 28 2017 13:46:28 GMT-0600 (MDT) "Russell, Lisa (ENRD)" "Passarelli, Edward (ENRD)" , "Bosshardt, Stacey (ENRD)" , Karen Hawbecker Re: Twin Metals The Solicitor's Office doesn't yet have information on the meeting, but Karen Hawbecker is meeting today with some of the political team to see if we can get some info on it. I'm copying Karen so she can let you know what she finds out. On Fri, Apr 28, 2017 at 12:03 PM, Russell, Lisa (ENRD) wrote: Hi Jack, We hear that the head of the mining company is coming up from Chile for meetings with DOI officials on May 5. We hear that they are bringing litigation counsel and want to discuss the case. If that is accurate, we should be there. But we don’t know how to staff this, because we don’t know who is hosting or attending the meeting. If they are meeting with the Secretary to discuss litigation, my Acting AAG may want to attend. Can you please let us know what information you have about this, so we can brief Jean and Jeff? Thanks -- Lisa Lisa Lynne Russell, Chief Natural Resources Section Environment and Natural Resources Division United States Department of Justice 202-305-0438 (desk) 202-598-9733 (mobile) lisa.russell@usdoj.gov CONFIDENTIALITY NOTICE: This communication may contain sensitive, privileged attorney/client communications or work product, and is not subject to disclosure. It is solely for the use of the intended recipients. Unauthorized interception, review, use or disclosure is prohibited. If you believe that you have received this e-mail in error, please notify the sender immediately, and permanently delete the email, any attachments, and all copies from your computer. "Hawbecker, Karen" From: Sent: To: "Hawbecker, Karen" Fri Apr 28 2017 15:41:50 GMT-0600 (MDT) "Russell, Lisa (ENRD)" CC: Subject: "Passarelli, Edward (ENRD)" , "Haugrud, Kevin" , "Bosshardt, Stacey (ENRD)" Re: Twin Metals Hi Lisa, The two politicals I met with today were surprised to hear that the CEO for Antofagasta was planning to bring litigation counsel. They said they would look into it. There is a meeting scheduled for next Friday with the Secretary. I will let you know as soon as I confirm whether litigation counsel plans to attend. I cautioned the politicals that DOJ and SOL attorneys should be present if litigation counsel is present at Friday's meeting. --Karen On Fri, Apr 28, 2017 at 3:46 PM, Haugrud, Kevin wrote: The Solicitor's Office doesn't yet have information on the meeting, but Karen Hawbecker is meeting today with some of the political team to see if we can get some info on it. I'm copying Karen so she can let you know what she finds out. On Fri, Apr 28, 2017 at 12:03 PM, Russell, Lisa (ENRD) wrote: Hi Jack, We hear that the head of the mining company is coming up from Chile for meetings with DOI officials on May 5. We hear that they are bringing litigation counsel and want to discuss the case. If that is accurate, we should be there. But we don’t know how to staff this, because we don’t know who is hosting or attending the meeting. If they are meeting with the Secretary to discuss litigation, my Acting AAG may want to attend. Can you please let us know what information you have about this, so we can brief Jean and Jeff? Thanks -- Lisa Lisa Lynne Russell, Chief Natural Resources Section Environment and Natural Resources Division United States Department of Justice 202-305-0438 (desk) 202-598-9733 (mobile) lisa.russell@usdoj.gov CONFIDENTIALITY NOTICE: This communication may contain sensitive, privileged attorney/client communications or work product, and is not subject to disclosure. It is solely for the use of the intended recipients. Unauthorized interception, review, use or disclosure is prohibited. If you believe that you have received this e-mail in error, please notify the sender immediately, and permanently delete the email, any attachments, and all copies from your computer. "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: To: CC: Subject: Fri Apr 28 2017 16:40:02 GMT-0600 (MDT) "Russell, Lisa (ENRD)" "Passarelli, Edward (ENRD)" , "Haugrud, Kevin" , "Bosshardt, Stacey (ENRD)" Re: Twin Metals Lisa, The meeting is no longer with the Secretary. It's now with Acting Deputy Secretary Jim Cason. The time has changed to Tuesday, May 2, at 1-1:45 pm. The attendees will be: Ivan Arriagada, CEO, Antofagasta plc. Daniel Altikes, Executive Director, Antofagasta plc. Rob Lehman, Chair of the WilmerHale Public Policy Practice Andy Spielman, Chair of the WilmerHale Energy and Natural Resources Practice The WilmerHale litigation counsel (Daniel Volchok, Michael Hazel, and Paul Wolfson) will not be among those in attendance. Given this update, let us know how strongly you feel about sending a DOJ attorney to join the meeting. Thanks. -Karen On Fri, Apr 28, 2017 at 5:41 PM, Hawbecker, Karen wrote: Hi Lisa, The two politicals I met with today were surprised to hear that the CEO for Antofagasta was planning to bring litigation counsel. They said they would look into it. There is a meeting scheduled for next Friday with the Secretary. I will let you know as soon as I confirm whether litigation counsel plans to attend. I cautioned the politicals that DOJ and SOL attorneys should be present if litigation counsel is present at Friday's meeting. --Karen On Fri, Apr 28, 2017 at 3:46 PM, Haugrud, Kevin wrote: The Solicitor's Office doesn't yet have information on the meeting, but Karen Hawbecker is meeting today with some of the political team to see if we can get some info on it. I'm copying Karen so she can let you know what she finds out. On Fri, Apr 28, 2017 at 12:03 PM, Russell, Lisa (ENRD) wrote: Hi Jack, We hear that the head of the mining company is coming up from Chile for meetings with DOI officials on May 5. We hear that they are bringing litigation counsel and want to discuss the case. If that is accurate, we should be there. But we don’t know how to staff this, because we don’t know who is hosting or attending the meeting. If they are meeting with the Secretary to discuss litigation, my Acting AAG may want to attend. Can you please let us know what information you have about this, so we can brief Jean and Jeff? Thanks -- Lisa Lisa Lynne Russell, Chief Natural Resources Section Environment and Natural Resources Division United States Department of Justice 202-305-0438 (desk) 202-598-9733 (mobile) lisa.russell@usdoj.gov CONFIDENTIALITY NOTICE: This communication may contain sensitive, privileged attorney/client communications or work product, and is not subject to disclosure. It is solely for the use of the intended recipients. Unauthorized interception, review, use or disclosure is prohibited. If you believe that you have received this e-mail in error, please notify the sender immediately, and permanently delete the email, any attachments, and all copies from your computer. "Russell, Lisa (ENRD)" From: Sent: To: CC: Subject: "Russell, Lisa (ENRD)" Fri Apr 28 2017 16:46:33 GMT-0600 (MDT) "Hawbecker, Karen" "Passarelli, Edward (ENRD)" , "Haugrud, Kevin" , "Bosshardt, Stacey (ENRD)" RE: Twin Metals Thank you Karen. We’ll let you know on Monday. I think the answer is probably that we don’t need to be there, but I want to consult with the team first. Lisa From: Hawbecker, Karen [mailto:karen.hawbecker@sol.doi.gov] Sent: Friday, April 28, 2017 6:40 PM To: Russell, Lisa (ENRD) Cc: Passarelli, Edward (ENRD) ; Haugrud, Kevin ; Bosshardt, Stacey (ENRD) Subject: Re: Twin Metals Lisa, The meeting is no longer with the Secretary. It's now with Acting Deputy Secretary Jim Cason. The time has changed to Tuesday, May 2, at 1-1:45 pm. The attendees will be: o Ivan Arriagada, CEO, Antofagasta plc. o Daniel Altikes, Executive Director, Antofagasta plc. o Rob Lehman, Chair of the WilmerHale Public Policy Practice o Andy Spielman, Chair of the WilmerHale Energy and Natural Resources Practice The WilmerHale litigation counsel (Daniel Volchok, Michael Hazel, and Paul Wolfson) will not be among those in attendance. Given this update, let us know how strongly you feel about sending a DOJ attorney to join the meeting. Thanks. --Karen On Fri, Apr 28, 2017 at 5:41 PM, Hawbecker, Karen wrote: Hi Lisa, The two politicals I met with today were surprised to hear that the CEO for Antofagasta was planning to bring litigation counsel. They said they would look into it. There is a meeting scheduled for next Friday with the Secretary. I will let you know as soon as I confirm whether litigation counsel plans to attend. I cautioned the politicals that DOJ and SOL attorneys should be present if litigation counsel is present at Friday's meeting. --Karen On Fri, Apr 28, 2017 at 3:46 PM, Haugrud, Kevin wrote: The Solicitor's Office doesn't yet have information on the meeting, but Karen Hawbecker is meeting today with some of the political team to see if we can get some info on it. I'm copying Karen so she can let you know what she finds out. On Fri, Apr 28, 2017 at 12:03 PM, Russell, Lisa (ENRD) wrote: Hi Jack, We hear that the head of the mining company is coming up from Chile for meetings with DOI officials on May 5. We hear that they are bringing litigation counsel and want to discuss the case. If that is accurate, we should be there. But we don’t know how to staff this, because we don’t know who is hosting or attending the meeting. If they are meeting with the Secretary to discuss litigation, my Acting AAG may want to attend. Can you please let us know what information you have about this, so we can brief Jean and Jeff? Thanks -- Lisa Lisa Lynne Russell, Chief Natural Resources Section Environment and Natural Resources Division United States Department of Justice 202-305-0438 (desk) 202-598-9733 (mobile) lisa.russell@usdoj.gov CONFIDENTIALITY NOTICE: This communication may contain sensitive, privileged attorney/client communications or work product, and is not subject to disclosure. It is solely for the use of the intended recipients. Unauthorized interception, review, use or disclosure is prohibited. If you believe that you have received this e-mail in error, please notify the sender immediately, and permanently delete the email, any attachments, and all copies from your computer. "Hawbecker, Karen" From: Sent: To: CC: "Hawbecker, Karen" Fri Apr 28 2017 17:22:02 GMT-0600 (MDT) "Russell, Lisa (ENRD)" "Passarelli, Edward (ENRD)" , "Haugrud, Kevin" , "Bosshardt, Stacey (ENRD)" Subject: Re: Twin Metals Lisa, I've learned also that this same group may also have a meeting at the White House. I don't have any other information about that meeting. --Karen On Fri, Apr 28, 2017 at 6:46 PM, Russell, Lisa (ENRD) wrote: Thank you Karen. We’ll let you know on Monday. I think the answer is probably that we don’t need to be there, but I want to consult with the team first. Lisa From: Hawbecker, Karen [mailto:karen.hawbecker@sol.doi.gov] Sent: Friday, April 28, 2017 6:40 PM To: Russell, Lisa (ENRD) Cc: Passarelli, Edward (ENRD) ; Haugrud, Kevin ; Bosshardt, Stacey (ENRD) Subject: Re: Twin Metals Lisa, The meeting is no longer with the Secretary. It's now with Acting Deputy Secretary Jim Cason. The time has changed to Tuesday, May 2, at 1-1:45 pm. The attendees will be: o Ivan Arriagada, CEO, Antofagasta plc. o Daniel Altikes, Executive Director, Antofagasta plc. o Rob Lehman, Chair of the WilmerHale Public Policy Practice o Andy Spielman, Chair of the WilmerHale Energy and Natural Resources Practice The WilmerHale litigation counsel (Daniel Volchok, Michael Hazel, and Paul Wolfson) will not be among those in attendance. Given this update, let us know how strongly you feel about sending a DOJ attorney to join the meeting. Thanks. --Karen On Fri, Apr 28, 2017 at 5:41 PM, Hawbecker, Karen wrote: Hi Lisa, The two politicals I met with today were surprised to hear that the CEO for Antofagasta was planning to bring litigation counsel. They said they would look into it. There is a meeting scheduled for next Friday with the Secretary. I will let you know as soon as I confirm whether litigation counsel plans to attend. I cautioned the politicals that DOJ and SOL attorneys should be present if litigation counsel is present at Friday's meeting. -Karen On Fri, Apr 28, 2017 at 3:46 PM, Haugrud, Kevin wrote: The Solicitor's Office doesn't yet have information on the meeting, but Karen Hawbecker is meeting today with some of the political team to see if we can get some info on it. I'm copying Karen so she can let you know what she finds out. On Fri, Apr 28, 2017 at 12:03 PM, Russell, Lisa (ENRD) wrote: Hi Jack, We hear that the head of the mining company is coming up from Chile for meetings with DOI officials on May 5. We hear that they are bringing litigation counsel and want to discuss the case. If that is accurate, we should be there. But we don’t know how to staff this, because we don’t know who is hosting or attending the meeting. If they are meeting with the Secretary to discuss litigation, my Acting AAG may want to attend. Can you please let us know what information you have about this, so we can brief Jean and Jeff? Thanks -- Lisa Lisa Lynne Russell, Chief Natural Resources Section Environment and Natural Resources Division United States Department of Justice 202-305-0438 (desk) 202-598-9733 (mobile) lisa.russell@usdoj.gov CONFIDENTIALITY NOTICE: This communication may contain sensitive, privileged attorney/client communications or work product, and is not subject to disclosure. It is solely for the use of the intended recipients. Unauthorized interception, review, use or disclosure is prohibited. If you believe that you have received this e-mail in error, please notify the sender immediately, and permanently delete the email, any attachments, and all copies from your computer. "Hawbecker, Karen" From: Sent: To: Subject: "Hawbecker, Karen" Mon May 01 2017 19:55:43 GMT-0600 (MDT) Jack Haugrud Fwd: Twin Metals Jack, I didn't receive a follow up email from Lisa today, so I assume that DOJ does not think they need to be present at the Jim Cason meeting with the Antofagasta CEO and WilmerHale lobbyists tomorrow at 1 pm. Do you you think we should nevertheless seek to have an SOL attorney in attendance at the meeting? --Karen ---------- Forwarded message ---------From: Russell, Lisa (ENRD) Date: Fri, Apr 28, 2017 at 6:46 PM Subject: RE: Twin Metals To: "Hawbecker, Karen" Cc: "Passarelli, Edward (ENRD)" , "Haugrud, Kevin" , "Bosshardt, Stacey (ENRD)" Thank you Karen. We’ll let you know on Monday. I think the answer is probably that we don’t need to be there, but I want to consult with the team first. Lisa From: Hawbecker, Karen [mailto:karen.hawbecker@sol.doi.gov] Sent: Friday, April 28, 2017 6:40 PM To: Russell, Lisa (ENRD) Cc: Passarelli, Edward (ENRD) ; Haugrud, Kevin ; Bosshardt, Stacey (ENRD) Subject: Re: Twin Metals Lisa, The meeting is no longer with the Secretary. It's now with Acting Deputy Secretary Jim Cason. The time has changed to Tuesday, May 2, at 1-1:45 pm. The attendees will be: o Ivan Arriagada, CEO, Antofagasta plc. o Daniel Altikes, Executive Director, Antofagasta plc. o Rob Lehman, Chair of the WilmerHale Public Policy Practice o Andy Spielman, Chair of the WilmerHale Energy and Natural Resources Practice The WilmerHale litigation counsel (Daniel Volchok, Michael Hazel, and Paul Wolfson) will not be among those in attendance. Given this update, let us know how strongly you feel about sending a DOJ attorney to join the meeting. Thanks. --Karen On Fri, Apr 28, 2017 at 5:41 PM, Hawbecker, Karen wrote: Hi Lisa, The two politicals I met with today were surprised to hear that the CEO for Antofagasta was planning to bring litigation counsel. They said they would look into it. There is a meeting scheduled for next Friday with the Secretary. I will let you know as soon as I confirm whether litigation counsel plans to attend. I cautioned the politicals that DOJ and SOL attorneys should be present if litigation counsel is present at Friday's meeting. --Karen On Fri, Apr 28, 2017 at 3:46 PM, Haugrud, Kevin wrote: The Solicitor's Office doesn't yet have information on the meeting, but Karen Hawbecker is meeting today with some of the political team to see if we can get some info on it. I'm copying Karen so she can let you know what she finds out. On Fri, Apr 28, 2017 at 12:03 PM, Russell, Lisa (ENRD) wrote: Hi Jack, We hear that the head of the mining company is coming up from Chile for meetings with DOI officials on May 5. We hear that they are bringing litigation counsel and want to discuss the case. If that is accurate, we should be there. But we don’t know how to staff this, because we don’t know who is hosting or attending the meeting. If they are meeting with the Secretary to discuss litigation, my Acting AAG may want to attend. Can you please let us know what information you have about this, so we can brief Jean and Jeff? Thanks -- Lisa Lisa Lynne Russell, Chief Natural Resources Section Environment and Natural Resources Division United States Department of Justice 202-305-0438 (desk) 202-598-9733 (mobile) lisa.russell@usdoj.gov CONFIDENTIALITY NOTICE: This communication may contain sensitive, privileged attorney/client communications or work product, and is not subject to disclosure. It is solely for the use of the intended recipients. Unauthorized interception, review, use or disclosure is prohibited. If you believe that you have received this e-mail in error, please notify the sender immediately, and permanently delete the email, any attachments, and all copies from your computer. Kevin Haugrud From: Sent: To: Subject: Kevin Haugrud Mon May 01 2017 22:40:03 GMT-0600 (MDT) "Hawbecker, Karen" Re: Twin Metals Jean Williams sent an email saying DOJ would not attend. I think we do need someone from SOL there. Are you available? From: Hawbecker, Karen Sent: Monday, May 1, 2017 9:56 PM To: Jack Haugrud Subject: Fwd: Twin Metals Jack, I didn't receive a follow up email from Lisa today, so I assume that DOJ does not think they need to be present at the Jim Cason meeting with the Antofagasta CEO and WilmerHale lobbyists tomorrow at 1 pm. Do you you think we should nevertheless seek to have an SOL attorney in attendance at the meeting? --Karen ---------- Forwarded message ---------From: Russell, Lisa (ENRD) Date: Fri, Apr 28, 2017 at 6:46 PM Subject: RE: Twin Metals To: "Hawbecker, Karen" Cc: "Passarelli, Edward (ENRD)" , "Haugrud, Kevin" , "Bosshardt, Stacey (ENRD)" Thank you Karen. We’ll let you know on Monday. I think the answer is probably that we don’t need to be there, but I want to consult with the team first. Lisa From: Hawbecker, Karen [mailto:karen.hawbecker@sol.doi.gov] Sent: Friday, April 28, 2017 6:40 PM To: Russell, Lisa (ENRD) Cc: Passarelli, Edward (ENRD) ; Haugrud, Kevin ; Bosshardt, Stacey (ENRD) Subject: Re: Twin Metals Lisa, The meeting is no longer with the Secretary. It's now with Acting Deputy Secretary Jim Cason. The time has changed to Tuesday, May 2, at 1-1:45 pm. The attendees will be: o Ivan Arriagada, CEO, Antofagasta plc. o Daniel Altikes, Executive Director, Antofagasta plc. o Rob Lehman, Chair of the WilmerHale Public Policy Practice o Andy Spielman, Chair of the WilmerHale Energy and Natural Resources Practice The WilmerHale litigation counsel (Daniel Volchok, Michael Hazel, and Paul Wolfson) will not be among those in attendance. Given this update, let us know how strongly you feel about sending a DOJ attorney to join the meeting. Thanks. --Karen On Fri, Apr 28, 2017 at 5:41 PM, Hawbecker, Karen wrote: Hi Lisa, The two politicals I met with today were surprised to hear that the CEO for Antofagasta was planning to bring litigation counsel. They said they would look into it. There is a meeting scheduled for next Friday with the Secretary. I will let you know as soon as I confirm whether litigation counsel plans to attend. I cautioned the politicals that DOJ and SOL attorneys should be present if litigation counsel is present at Friday's meeting. --Karen On Fri, Apr 28, 2017 at 3:46 PM, Haugrud, Kevin wrote: The Solicitor's Office doesn't yet have information on the meeting, but Karen Hawbecker is meeting today with some of the political team to see if we can get some info on it. I'm copying Karen so she can let you know what she finds out. On Fri, Apr 28, 2017 at 12:03 PM, Russell, Lisa (ENRD) wrote: Hi Jack, We hear that the head of the mining company is coming up from Chile for meetings with DOI officials on May 5. We hear that they are bringing litigation counsel and want to discuss the case. If that is accurate, we should be there. But we don’t know how to staff this, because we don’t know who is hosting or attending the meeting. If they are meeting with the Secretary to discuss litigation, my Acting AAG may want to attend. Can you please let us know what information you have about this, so we can brief Jean and Jeff? Thanks -- Lisa Lisa Lynne Russell, Chief Natural Resources Section Environment and Natural Resources Division United States Department of Justice 202-305-0438 (desk) 202-598-9733 (mobile) lisa.russell@usdoj.gov CONFIDENTIALITY NOTICE: This communication may contain sensitive, privileged attorney/client communications or work product, and is not subject to disclosure. It is solely for the use of the intended recipients. Unauthorized interception, review, use or disclosure is prohibited. If you believe that you have received this e-mail in error, please notify the sender immediately, and permanently delete the email, any attachments, and all copies from your computer. Karen Hawbecker From: Sent: To: Subject: Karen Hawbecker Tue May 02 2017 06:45:27 GMT-0600 (MDT) Kevin Haugrud Re: Twin Metals Yes, I'm available. I'll plan to go. Sent from my iPad On May 2, 2017, at 12:39 AM, Kevin Haugrud wrote: Jean Williams sent an email saying DOJ would not attend. I think we do need someone from SOL there. Are you available? From: Hawbecker, Karen Sent: Monday, May 1, 2017 9:56 PM To: Jack Haugrud Subject: Fwd: Twin Metals Jack, I didn't receive a follow up email from Lisa today, so I assume that DOJ does not think they need to be present at the Jim Cason meeting with the Antofagasta CEO and WilmerHale lobbyists tomorrow at 1 pm. Do you you think we should nevertheless seek to have an SOL attorney in attendance at the meeting? --Karen ---------- Forwarded message ---------From: Russell, Lisa (ENRD) Date: Fri, Apr 28, 2017 at 6:46 PM Subject: RE: Twin Metals To: "Hawbecker, Karen" Cc: "Passarelli, Edward (ENRD)" , "Haugrud, Kevin" , "Bosshardt, Stacey (ENRD)" Thank you Karen. We’ll let you know on Monday. I think the answer is probably that we don’t need to be there, but I want to consult with the team first. Lisa From: Hawbecker, Karen [mailto:karen.hawbecker@sol.doi.gov] Sent: Friday, April 28, 2017 6:40 PM To: Russell, Lisa (ENRD) Cc: Passarelli, Edward (ENRD) ; Haugrud, Kevin ; Bosshardt, Stacey (ENRD) Subject: Re: Twin Metals Lisa, The meeting is no longer with the Secretary. It's now with Acting Deputy Secretary Jim Cason. The time has changed to Tuesday, May 2, at 1-1:45 pm. The attendees will be: o Ivan Arriagada, CEO, Antofagasta plc. o Daniel Altikes, Executive Director, Antofagasta plc. o Rob Lehman, Chair of the WilmerHale Public Policy Practice o Andy Spielman, Chair of the WilmerHale Energy and Natural Resources Practice The WilmerHale litigation counsel (Daniel Volchok, Michael Hazel, and Paul Wolfson) will not be among those in attendance. Given this update, let us know how strongly you feel about sending a DOJ attorney to join the meeting. Thanks. -Karen On Fri, Apr 28, 2017 at 5:41 PM, Hawbecker, Karen wrote: Hi Lisa, The two politicals I met with today were surprised to hear that the CEO for Antofagasta was planning to bring litigation counsel. They said they would look into it. There is a meeting scheduled for next Friday with the Secretary. I will let you know as soon as I confirm whether litigation counsel plans to attend. I cautioned the politicals that DOJ and SOL attorneys should be present if litigation counsel is present at Friday's meeting. --Karen On Fri, Apr 28, 2017 at 3:46 PM, Haugrud, Kevin wrote: The Solicitor's Office doesn't yet have information on the meeting, but Karen Hawbecker is meeting today with some of the political team to see if we can get some info on it. I'm copying Karen so she can let you know what she finds out. On Fri, Apr 28, 2017 at 12:03 PM, Russell, Lisa (ENRD) wrote: Hi Jack, We hear that the head of the mining company is coming up from Chile for meetings with DOI officials on May 5. We hear that they are bringing litigation counsel and want to discuss the case. If that is accurate, we should be there. But we don’t know how to staff this, because we don’t know who is hosting or attending the meeting. If they are meeting with the Secretary to discuss litigation, my Acting AAG may want to attend. Can you please let us know what information you have about this, so we can brief Jean and Jeff? Thanks -- Lisa Lisa Lynne Russell, Chief Natural Resources Section Environment and Natural Resources Division United States Department of Justice 202-305-0438 (desk) 202-598-9733 (mobile) lisa.russell@usdoj.gov CONFIDENTIALITY NOTICE: This communication may contain sensitive, privileged attorney/client communications or work product, and is not subject to disclosure. It is solely for the use of the intended recipients. Unauthorized interception, review, use or disclosure is prohibited. If you believe that you have received this e-mail in error, please notify the sender immediately, and permanently delete the email, any attachments, and all copies from your computer. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:13 PM Conversation Contents Do we need a coordination call today? "Williams, Jean From: "Williams, Jean Sent: Mon May 01 2017 09:18:05 GMT-0600 (MDT) To_ "Haugrud, Kevin" Daniel Jorjani "Wood, Jeffrey "Middleton, Brandon "Grant, Eric CC: "Russell, Lisa Subject: Do we need a coordination call today? Dan and Jack: we do not have many items for today. 1) Sade grouse 2) Twin Metals: Just to con?rm that we understand the mining company, Antofagasta, will not be bringing its litigation counsel to the meeting planned for tomorrow and so we will not be sending an ENRD attorney to attend. That's it for us. Unless you have other items, we recommend cancelling for today. Please advise. Jean E. Williams Deputy Assistant Attorney General Environment and Natural Resources Division US. Department of Justice (202) 305-0228 CONFIDENTIALITY NOTICE: This communication may contain law enforcement sensitive, privileged attorney/client communications or work product, and is not subject to disclosure. It is solely for the use of the intended recipients. Unauthorized interception, review, use or disclosure is prohibited. If you believe that you have received this e-mail in error, please notify the sender immediately, and permanently delete the email, any attachments, and all copies from your computer. "Jorjani, Daniel" From: "Jorjani, Daniel" Sent: Mon May 01 2017 09:58:02 GMT-0600 (MDT) To: "Williams, Jean "Haugrud, Kevin" "Wood, Jeffrey "Middleton, Brandon CC3 "Grant, Eric "Russell, Lisa Subject: Re: Do we need a coordination call today? Cancelling this week's call makes sense. Thank you. On Mon, May 1, 2017 at 11:18 AM, Williams, Jean (ENRD) wrote: Dan and Jack: we do not have many items for today. 1) Sage grouse: 2) Twin Metals: Just to confirm that we understand the mining company, Antofagasta, will not be bringing its litigation counsel to the meeting planned for tomorrow and so we will not be sending an ENRD attorney to attend. That?s it for us. Unless you have other items, we recommend cancelling for today. Please advise. Jean E. Williams Deputy Assistant Attorney General Environment and Natural Resources Division US. Department of Justice (202) 305-0228 CONFIDENTIALITY NOTICE: This communication may contain law enforcement sensitive, privileged attorney/client communications or work product, and is not subject to disclosure. It is solely for the use of the intended recipients. Unauthorized interception, review, use or disclosure is prohibited. If you believe that you have received this e-mail in error, please notify the sender immediately, and permanently delete the email, any attachments, and all copies from your computer. "Jorjani, Daniel" From: "Jorjani, Daniel" Sent: Mon May 01 2017 09:58:27 GMT-0600 (MDT) "Caminiti, Mariagrazia" Kevin Haugrud Subject: Fwd: Do we need a coordination call today? To: -- Forwarded message From: Jorjani, Daniel Date: Mon, May 1, 2017 at 11:58 AM Subject: Re: Do we need a coordination call today? To: "Williams, Jean Cc: "Haugrud, Kevin" "Wood, Jeffrey "Middleton, Brandon "Grant, Eric "Russell, Lisa Cancelling this week's call makes sense. Thank you. On Mon, May 1, 2017 at 11:18 AM, Williams, Jean (ENRD) wrote: Dan and Jack: we do not have many items for today. 1) Sage arouse: 2) Twin Metals: Just to confirm that we understand the mining company, Antofagasta, will not be bringing its litigation counsel to the meeting planned for tomorrow and so we will not be sending an ENRD attorney to attend. That?s it for us. Unless you have other items, we recommend cancelling for today. Please advise. Jean E. Williams Deputy Assistant Attorney General Environment and Natural Resources Division US. Department of Justice (202) 305-0228 W: This communication may contain law enforcement sensitive, privileged attorney/client communications or work product, and is not subject to disclosure. It is solely for the use of the intended recipients. Unauthorized interception, review, use or disclosure is prohibited. If you believe that you have received this e-mail in error, please notify the sender immediately, and permanently delete the email, any attachments, and all copies from your computer. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:14 PM Conversation Contents DMR Friday List Attachments: /150. DMR Friday List/1.1 2017.04.28DMRFridayList.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Fri Apr 28 2017 17:24:54 GMT-0600 (MDT) Jack Haugrud Tom Bovard , Dennis Daugherty , Matthew Ballenger , Tim Baker , Richard McNeer DMR Friday List 2017.04.28DMRFridayList.docx Jack, I've attached our Friday list for your reference. Thank you for all of your work. I hope you have a good weekend. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:14 PM Conversation Contents Fwd: Confirming Meeting with Mr. Ivan Arriagada on Tuesday, May 2 at 1:00 Attachments: /151. Fwd: Confirming Meeting with Mr. Ivan Arriagada on Tuesday, May 2 at 1:00/1.1 Rob_Lehman.pdf /151. Fwd: Confirming Meeting with Mr. Ivan Arriagada on Tuesday, May 2 at 1:00/1.2 Letter to The Honorable Ryan Zinke.pdf /151. Fwd: Confirming Meeting with Mr. Ivan Arriagada on Tuesday, May 2 at 1:00/1.3 Zinke Letter 3.22.17.pdf /151. Fwd: Confirming Meeting with Mr. Ivan Arriagada on Tuesday, May 2 at 1:00/1.4 Twin Metals Minnesota - Seth Waxman Letter to Secretary Jewell 7-1-2016.pdf /151. Fwd: Confirming Meeting with Mr. Ivan Arriagada on Tuesday, May 2 at 1:00/1.5 Twin Metals Minnesota - Seth Waxman Letter to Solicitor Tompkins 7-1-201....pdf "Hawbecker, Karen" From: Sent: To: Subject: Attachments: "Hawbecker, Karen" Fri Apr 28 2017 16:32:12 GMT-0600 (MDT) Jack Haugrud Fwd: Confirming Meeting with Mr. Ivan Arriagada on Tuesday, May 2 at 1:00 Rob_Lehman.pdf Letter to The Honorable Ryan Zinke.pdf Zinke Letter 3.22.17.pdf Twin Metals Minnesota - Seth Waxman Letter to Secretary Jewell 7-1-2016.pdf Twin Metals Minnesota - Seth Waxman Letter to Solicitor Tompkins 7-1-201....pdf ---------- Forwarded message ---------From: Benedetto, Kathleen Date: Fri, Apr 28, 2017 at 6:20 PM Subject: Fwd: Confirming Meeting with Mr. Ivan Arriagada on Tuesday, May 2 at 1:00 To: "Hawbecker, Karen" Look what I found in my stack of unopened emails. KB ---------- Forwarded message ---------From: Gulac, Catherine Date: Fri, Apr 28, 2017 at 5:19 PM Subject: Fwd: Confirming Meeting with Mr. Ivan Arriagada on Tuesday, May 2 at 1:00 To: Brendan Quinn , Kathleen Benedetto , Katharine MacGregor , Gareth Rees FYI Catherine Gulac U.S. Department of the Interior Office of the Deputy Secretary 1849 C St, NW, MS-7328 Washington, D.C. 20240 202-208-6291 Office / 202-208-1739 Direct / 202-208-1873 Fax Catherine Gulac@ios.doi.gov ---------- Forwarded message ---------From: Treiser, Raya B. Date: Thu, Apr 27, 2017 at 4:37 PM Subject: Confirming Meeting with Mr. Ivan Arriagada on Tuesday, May 2 at 1:00 To: "catherine gulac@ios.doi.gov" Cathy, It was great to talk with you earlier, thank you again for all your assistance today. I have confirmed that 1:00 – 1:45 works well for Tuesday’s meeting between Deputy Secretary Cason and Mr. Ivan Arriagada. Participants on behalf of Antofagasta plc. will include: Ivan Arriagada, CEO, Antofagasta plc. Daniel Altikes, Executive Director, Antofagasta plc. Rob Lehman, Chair of the WilmerHale Public Policy Practice Andy Spielman, Chair of the WilmerHale Energy and Natural Resources Practice We are very grateful for Mr. Cason’s time and very much look forward to the meeting. As promised, I am attaching some background materials. I realized after we spoke that these materials were attached to our original meeting request so you may already have them – I am attaching them again just in case. Have a wonderful afternoon, and I look forward to seeing you briefly tomorrow. Thank you, Raya Raya B. Treiser WilmerHale 1875 Pennsylvania Avenue NW Washington, DC 20006 USA +1 202 663 6002 (t) +1 202 663 6363 (f) raya.treiser@wilmerhale.com Please consider the environment before printing this email. This email message and any attachments are being sent by Wilmer Cutler Pickering Hale and Dorr LLP, are confidential, and may be privileged. If you are not the intended recipient, please notify us immediately—by replying to this message or by sending an email to postmaster@wilmerhale.com—and destroy all copies of this message and any attachments. Thank you. For more information about WilmerHale, please visit us at http://www.wilmerhale.com. -Kathleen Benedetto Special Assistant to the Secretary Department of the Interior Bureau of Land Management (202) 208-5934 Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:16 PM Conversation Contents Fwd: Cancellation of USFS Mineral Withdrawal by BLM - Minnesota Attachments: /152. Fwd: Cancellation of USFS Mineral Withdrawal by BLM - Minnesota/1.1 Mineral Withdrawal.pdf /152. Fwd: Cancellation of USFS Mineral Withdrawal by BLM - Minnesota/1.2 Action Request BLM Land Withdrawal; Minnesota.pdf /152. Fwd: Cancellation of USFS Mineral Withdrawal by BLM - Minnesota/1.3 Zinke memo to BLM Improving BLM planning and NEPA processes.pdf /152. Fwd: Cancellation of USFS Mineral Withdrawal by BLM - Minnesota/2.1 Mineral Withdrawal.pdf /152. Fwd: Cancellation of USFS Mineral Withdrawal by BLM - Minnesota/2.2 Action Request BLM Land Withdrawal; Minnesota.pdf /152. Fwd: Cancellation of USFS Mineral Withdrawal by BLM - Minnesota/2.3 Zinke memo to BLM Improving BLM planning and NEPA processes.pdf "Keable, Edward" From: Sent: To: CC: Subject: Attachments: "Keable, Edward" Fri Apr 28 2017 09:59:25 GMT-0600 (MDT) "Brown, Laura" , Aaron Moody , "Romanik, Peg" , Tony Sullins Kevin Haugrud , "Jorjani, Daniel" Fwd: Cancellation of USFS Mineral Withdrawal by BLM Minnesota Mineral Withdrawal.pdf Action Request BLM Land Withdrawal; Minnesota.pdf Zinke memo to BLM Improving BLM planning and NEPA processes.pdf FYI ---------- Forwarded message ---------From: Rich Sve Date: Thu, Apr 27, 2017 at 1:47 PM Subject: Cancellation of USFS Mineral Withdrawal by BLM - Minnesota To: "exsec@ios.doi.gov" , "director@blm.gov" , "edward.keable@sol.doi.gov" Cc: "agsec@usda.gov" , "douglas.w.domenech@ptt.gov" , "kathleen benedetto@ios.doi.gov" , "timothy williams@ios.doi.gov" , "kmourits@blm.gov" , "brian.dansel@osec.usda.gov" , "sknowles@blm.gov" , "ttidwell@fs.fed.us" , "katkinson@fs.fed.us" , "ccummins@fs.fed.us" , "rperiman@fs.fed.us" , "r9 superior nf @fs.fed.us" , "rukavinat@stlouiscountymn.gov" , "myron.bursheim@co.cook.mn.us" , "sts@wbsnet.org" Dear Honorable Secretary Zinke: The attached files collectively summarize and support the Northern Counties Land Use Coordinating Board’s (NCLUCB) request for the BLM to cancel a land withdrawal application by the United States Forest Service and our position that the application process needs to be rescinded and, as appropriate, repeated. Please feel free to contact me with any questions or comments you may have. Best regards, Rich Rich Sve Lake County Commissioner Rich.Sve@co.lake.mn.us 218-343-6153 -- Edward T. Keable Deputy Solicitor-General Law Office of the Solicitor U.S. Department of the Interior Phone: 202-208-4423 Fax: 202-208-5584 edward.keable@sol.doi.gov This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. Thank you. "Haugrud, Kevin" From: Sent: "Haugrud, Kevin" Fri Apr 28 2017 17:14:27 GMT-0600 (MDT) To: CC: Subject: Attachments: Briana Collier , Karen Hawbecker , Richard McNeer , Joshua Hanson Laura Brown , Aaron Moody Fwd: Cancellation of USFS Mineral Withdrawal by BLM Minnesota Mineral Withdrawal.pdf Action Request BLM Land Withdrawal; Minnesota.pdf Zinke memo to BLM Improving BLM planning and NEPA processes.pdf ---------- Forwarded message ---------From: Keable, Edward Date: Fri, Apr 28, 2017 at 11:59 AM Subject: Fwd: Cancellation of USFS Mineral Withdrawal by BLM - Minnesota To: "Brown, Laura" , Aaron Moody , "Romanik, Peg" , Tony Sullins Cc: Kevin Haugrud , "Jorjani, Daniel" FYI ---------- Forwarded message ---------From: Rich Sve Date: Thu, Apr 27, 2017 at 1:47 PM Subject: Cancellation of USFS Mineral Withdrawal by BLM - Minnesota To: "exsec@ios.doi.gov" , "director@blm.gov" , "edward.keable@sol.doi.gov" Cc: "agsec@usda.gov" , "douglas.w.domenech@ptt.gov" , "kathleen benedetto@ios.doi.gov" , "timothy williams@ios.doi.gov" , "kmourits@blm.gov" , "brian.dansel@osec.usda.gov" , "sknowles@blm.gov" , "ttidwell@fs.fed.us" , "katkinson@fs.fed.us" , "ccummins@fs.fed.us" , "rperiman@fs.fed.us" , "r9 superior nf @fs.fed.us" , "rukavinat@stlouiscountymn.gov" , "myron.bursheim@co.cook.mn.us" , "sts@wbsnet.org" Dear Honorable Secretary Zinke: The attached files collectively summarize and support the Northern Counties Land Use Coordinating Board’s (NCLUCB) request for the BLM to cancel a land withdrawal application by the United States Forest Service and our position that the application process needs to be rescinded and, as appropriate, repeated. Please feel free to contact me with any questions or comments you may have. Best regards, Rich Rich Sve Lake County Commissioner Rich.Sve@co.lake.mn.us 218-343-6153 -- Edward T. Keable Deputy Solicitor-General Law Office of the Solicitor U.S. Department of the Interior Phone: 202-208-4423 Fax: 202-208-5584 edward.keable@sol.doi.gov This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. Thank you. "Haugrud, Kevin" From: Sent: To: CC: Subject: "Haugrud, Kevin" Fri Apr 28 2017 17:15:22 GMT-0600 (MDT) "Keable, Edward" "Brown, Laura" , Aaron Moody , "Romanik, Peg" , Tony Sullins , "Jorjani, Daniel" Re: Cancellation of USFS Mineral Withdrawal by BLM - Minnesota Thanks Ed. I have also forwarded to the DMR team handling the Twin Metals litigation and Josh Hanson. On Fri, Apr 28, 2017 at 11:59 AM, Keable, Edward wrote: FYI ---------- Forwarded message ---------From: Rich Sve Date: Thu, Apr 27, 2017 at 1:47 PM Subject: Cancellation of USFS Mineral Withdrawal by BLM - Minnesota To: "exsec@ios.doi.gov" , "director@blm.gov" , "edward.keable@sol.doi.gov" Cc: "agsec@usda.gov" , "douglas.w.domenech@ptt.gov" , "kathleen benedetto@ios.doi.gov" , "timothy williams@ios.doi.gov" , "kmourits@blm.gov" , "brian.dansel@osec.usda.gov" , "sknowles@blm.gov" , "ttidwell@fs.fed.us" , "katkinson@fs.fed.us" , "ccummins@fs.fed.us" , "rperiman@fs.fed.us" , "r9 superior nf @fs.fed.us" , "rukavinat@stlouiscountymn.gov" , "myron.bursheim@co.cook.mn.us" , "sts@wbsnet.org" Dear Honorable Secretary Zinke: The attached files collectively summarize and support the Northern Counties Land Use Coordinating Board’s (NCLUCB) request for the BLM to cancel a land withdrawal application by the United States Forest Service and our position that the application process needs to be rescinded and, as appropriate, repeated. Please feel free to contact me with any questions or comments you may have. Best regards, Rich Rich Sve Lake County Commissioner Rich.Sve@co.lake.mn.us 218-343-6153 -- Edward T. Keable Deputy Solicitor-General Law Office of the Solicitor U.S. Department of the Interior Phone: 202-208-4423 Fax: 202-208-5584 edward.keable@sol.doi.gov This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. Thank you. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:17 PM Conversation Contents Question re: Friday Meeting with Kathy Benedetto: Twin Metals Options Paper and Litigation Briefing Paper Attachments: /153. Question re: Friday Meeting with Kathy Benedetto: Twin Metals Options Paper and Litigation Briefing Paper/1.1 2017.04.21 Twin Metals litigation briefing paper.docx /153. Question re: Friday Meeting with Kathy Benedetto: Twin Metals Options Paper and Litigation Briefing Paper/1.2 2017.04.21 Twin Metals leasing decision options paper.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Thu Apr 27 2017 16:25:09 GMT-0600 (MDT) Jack Haugrud Richard McNeer , Briana Collier , Joshua Hanson Question re: Friday Meeting with Kathy Benedetto: Twin Metals Options Paper and Litigation Briefing Paper 2017.04.21 Twin Metals litigation briefing paper.docx 2017.04.21 Twin Metals leasing decision options paper.docx Jack, We've scheduled a meeting with Kathy Benedetto for tomorrow at 4 pm to get some feedback from her on the options we've identified for reversing action on the Twin Metals decision. Would you have any objections to us showing her a copy of the options paper? We would show her the draft at the meeting and collect it at the end of the meeting. Thanks. --Karen ---------- Forwarded message ---------From: Hawbecker, Karen Date: Fri, Apr 21, 2017 at 12:58 PM Subject: Twin Metals Options Paper and Litigation Briefing Paper To: Jack Haugrud Cc: Richard McNeer , Briana Collier , Joshua Hanson Jack, I've attached the updated drafts of the Twin Metals options paper and briefing paper. We'd like to get your feedback on the options paper, in particular, to make sure you're okay with the approach we've taken. Once we get your approval, we'll either schedule a meeting with you and Dan, as we discussed at our weekly meeting, or we'll schedule the briefing for Jim Cason et al, if you think these documents are ready to go. Thank you. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:17 PM Conversation Contents redline changes in signficant lit doc and updated clean version link -below Attachments: /155. redline changes in signficant lit doc and updated clean version link -below/1.1 Updated042617SignificantLitigationDeadlines.pdf "Caminiti, Mariagrazia" From: Sent: To: Subject: Attachments: "Caminiti, Mariagrazia" Wed Apr 26 2017 14:33:22 GMT-0600 (MDT) "SOL-Associate & Regional Solicitors" , "SOL-Assistant & Field Solicitors" , Daniel Jorjani , Jack Haugrud , Edward T Keable redline changes in signficant lit doc and updated clean version link -below Updated042617SignificantLitigationDeadlines.pdf redline attached and update accessible here. -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:17 PM Conversation Contents Twin Metals briefing paper for the State Department Attachments: /156. Twin Metals briefing paper for the State Department/1.1 2017.04.26 DOI briefing paper on Twin Metals for State Dept. rhm.docx "Collier, Briana" From: Sent: To: CC: Subject: Attachments: "Collier, Briana" Wed Apr 26 2017 13:56:32 GMT-0600 (MDT) "Haugrud, Kevin" Richard McNeer , Karen Hawbecker , Joshua Hanson Twin Metals briefing paper for the State Department 2017.04.26 DOI briefing paper on Twin Metals for State Dept. rhm.docx Jack, Attached is a short, factual briefing paper that we prepared to send over to the State Department ahead of an upcoming meeting this week between Antofagasta CEO Ivan Arriagada and the U.S. Ambassador to Chile. Please let us know if you would like to review it or if you have any revisions. Thanks very much, Briana Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 1849 C Street NW, Washington, D.C. 20240 Office: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:17 PM Conversation Contents Agenda Attachments: /157. Agenda/1.1 AgendaforWeeklyMeetingwithJack--26April2017.docx "McNeer, Richard" From: Sent: To: CC: Subject: Attachments: "McNeer, Richard" Tue Apr 25 2017 15:10:45 GMT-0600 (MDT) Jack Haugrud , Daniel Jorjani "Hawbecker, Karen" , "Daugherty, Dennis" , Thomas Bovard Agenda AgendaforWeeklyMeetingwithJack--26April2017.docx Jack: Attached is the agenda for tomorrow's meeting. Richard Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:17 PM Conversation Contents Twin Metals Options Paper and Litigation Briefing Paper Attachments: /158. Twin Metals Options Paper and Litigation Briefing Paper/1.1 2017.04.21 Twin Metals litigation briefing paper.docx /158. Twin Metals Options Paper and Litigation Briefing Paper/1.2 2017.04.21 Twin Metals leasing decision options paper.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Fri Apr 21 2017 10:58:43 GMT-0600 (MDT) Jack Haugrud Richard McNeer , Briana Collier , Joshua Hanson Twin Metals Options Paper and Litigation Briefing Paper 2017.04.21 Twin Metals litigation briefing paper.docx 2017.04.21 Twin Metals leasing decision options paper.docx Jack, I've attached the updated drafts of the Twin Metals options paper and briefing paper. We'd like to get your feedback on the options paper, in particular (b) (5) . Once we get your approval, we'll either schedule a meeting with you and Dan, as we discussed at our weekly meeting, or we'll schedule the briefing for Jim Cason et al, if you think these documents are ready to go. Thank you. --Karen "Hawbecker, Karen" From: Sent: To: CC: Subject: "Hawbecker, Karen" Fri Apr 21 2017 13:03:12 GMT-0600 (MDT) Jack Haugrud Richard McNeer , Briana Collier , Joshua Hanson , Mariagrazia Caminiti Re: Twin Metals Options Paper and Litigation Briefing Paper Jack, I've asked Mari Grace to schedule a meeting for this group and Dan Jorjani for next Thursday in the event we need to touch base before we schedule a meeting with Jim Cason and others to discuss options and get policy direction for the litigation. If, however, you're okay with the options paper and you don't think we need a pre-meeting, let us know and we'll seek a meeting with Jim, Kate, Rich, Kathy B, Mike Nedd, Karen M, and Tim Spisak for next Friday. Thank you. --Karen On Fri, Apr 21, 2017 at 12:58 PM, Hawbecker, Karen wrote: Jack, I've attached the updated drafts of the Twin Metals options paper and briefing paper. We'd like to get your feedback on the options paper, in particular, (b) (5) . Once we get your approval, we'll either schedule a meeting with you and Dan, as we discussed at our weekly meeting, or we'll schedule the briefing for Jim Cason et al, if you think these documents are ready to go. Thank you. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:18 PM Conversation Contents Agenda for DMR Weekly Meeting Attachments: /159. Agenda for DMR Weekly Meeting/1.1 AgendaforWeeklyMeetingwithJack-14April2017.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Thu Apr 13 2017 16:45:42 GMT-0600 (MDT) Jack Haugrud , Daniel Jorjani Mariagrazia Caminiti , Tom Bovard , Dennis Daugherty , Richard McNeer , Susan Cason Agenda for DMR Weekly Meeting AgendaforWeeklyMeetingwithJack--14April2017.docx Jack and Dan, I've attached the agenda for our weekly meeting tomorrow morning. Susan Cason will be acting for Dennis. Tom will be participating by phone. We'll see you in the morning. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:18 PM Conversation Contents SLD update and redline - attached Attachments: /161. SLD update and redline - attached/2.1 Updated040517SignificantLitigationDeadlines redline.pdf "Caminiti, Mariagrazia" From: Sent: To: Subject: "Caminiti, Mariagrazia" Wed Apr 12 2017 15:37:48 GMT-0600 (MDT) "SOL-Associate & Regional Solicitors" , "SOL-Assistant & Field Solicitors" , Jack Haugrud , Edward T Keable , Daniel Jorjani SLD update and redline - attached updated today, 4/12 - attached is the redline pdf prior to updating and the link here for the new clean version. mg -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. "Caminiti, Mariagrazia" From: Sent: "Caminiti, Mariagrazia" Wed Apr 12 2017 15:38:15 GMT-0600 (MDT) "SOL-Associate & Regional Solicitors" , "SOL-Assistant & Field To: Subject: Attachments: Solicitors" , Jack Haugrud , Edward T Keable , Daniel Jorjani Re: SLD update and redline - attached Updated040517SignificantLitigationDeadlines redline.pdf On Wed, Apr 12, 2017 at 5:37 PM, Caminiti, Mariagrazia wrote: updated today, 4/12 - attached is the redline pdf prior to updating and the link here for the new clean version. mg -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:19 PM Conversation Contents Draft Twin Metals Options Paper.docx - Invitation to edit "Karen Hawbecker (via Google Docs)" From: Sent To: CC: Subject: "Karen Hawbecker (via Google Docs)" Mon Apr 10 2017 08:38:58 GMT-0600 (MDT) Draft Twin Metals Options Paper.docx - Invitation to edit Karen Hawbecker has invited you to edit the following document: a Draft Twin Metals Options Paper.docx CA We have updated the Twin Metals options paper to clarify that It is ready for a second round of review. Thank you. ?Karen Google Docs: Create and edit documents online. Google Inc 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA You have received this email because someone shared a document with you from Google Docs. Google "McNeer, Richard" From: Sent To: CC: "McNeer, Richard" Mon Apr 10 2017 10:17:40 GMT-0600 (MDT) Karen Hawbecker "Collier, Briana" Joshua Hanson Jack Haugrud Laura Brown ?Moody, Aaron? Subject: Re: Draft Twin Metals Options Paper.docx - Invitation to edit Karen: Done. Richard On Mon, Apr 10, 2017 at 10:38 AM, Karen Hawbecker (via Google Docs) wrote: Karen Hawbecker has invited you to edit the following document: Draft Twin Metals Options Paper.docx We have updated the Twin Metals options paper to clarify that . It is ?lm ready for a second round of review. Thank you. --Karen Google Docs: Create and edit documents online. Google Inc_ 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA You have received this email because someone shared a document with you from Google Docs. "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Mon Apr 10 2017 11:31:18 GMT-0600 (MDT) To: Jack Haugrud Briana Collier Joshua Hanson Richard McNeer CC: Laura Brown "Moody, Aaron" Subject: Re: Draft Twin Metals Options Paper.docx - Invitation to edit Jack, As a follow up note, Briana will add one more option for consideration to this document. She'll add it in redline. -Karen On Mon, Apr 10, 2017 at 10:38 AM, Karen Hawbecker (via Google Docs) wrote: Karen Hawbecker has invited you to edit the following document: Draft Twin Metals Options Paperdocx We have updated the Twin Metals options paper to clarify that It is ready for a second round of review. Thank you. --Karen This is a courtesy copy of an email for your record only. It's not the same email your Google collaborators received. Click here to learn more. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:21 PM Conversation Contents Significant Litigation Deadlines doc - update and redline pdf. - attached Attachments: /164. Significant Litigation Deadlines doc - update and redline pdf. - attached/1.1 Updated032917SignificantLitigationDeadlines.pdf "Caminiti, Mariagrazia" From: Sent: To: Subject: Attachments: "Caminiti, Mariagrazia" Wed Apr 05 2017 15:54:30 GMT-0600 (MDT) Jack Haugrud , Daniel Jorjani , Edward T Keable , "SOL-Associate & Regional Solicitors" , "SOLAssistant & Field Solicitors" Significant Litigation Deadlines doc - update and redline pdf. attached Updated032917SignificantLitigationDeadlines.pdf here is the link for the updated Significant Litigation Deadlines list - and attached is the pdf of redline/strikeout changes since last week. -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:21 PM Conversation Contents Agenda for DMR Weekly Meeting Attachments: /165. Agenda for DMR Weekly Meeting/1.1 2017.04.05 DMR Weekly Meeting Agenda.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Tue Apr 04 2017 17:31:17 GMT-0600 (MDT) Jack Haugrud Tom Bovard , Dennis Daugherty , Richard McNeer Agenda for DMR Weekly Meeting 2017.04.05 DMR Weekly Meeting Agenda.docx Jack, I've attached our agenda for our weekly meeting. We'll see you in the morning. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:21 PM Conversation Contents Fwd: FYI - Suit against gov pulled back "Hawbecker, Karen" From: Sent: To: Subject: "Hawbecker, Karen" Wed Mar 29 2017 17:17:24 GMT-0600 (MDT) Jack Haugrud Fwd: FYI - Suit against gov pulled back FYI ---------- Forwarded message ---------From: Hanson, Joshua Date: Wed, Mar 29, 2017 at 12:14 PM Subject: FYI - Suit against gov pulled back To: Karen Hawbecker , "Collier, Briana" Suit against gov pulled back; Plaintiffs need lawyer, $30,000 to pursue case against Dayton Submitted by admin on Tue, 03/28/2017 - 14:55 by Tom Coombe Legal action against Gov. Mark Dayton over the Twin Metals Minnesota project has been put on hold, at least temporarily. A lawsuit initiated by several area residents against Dayton and the state has been withdrawn over procedural and financial issues, a spokesman said Tuesday. “There was no good option,” said Ely area resident Gerald Tyler, one of several plaintiffs and the head of local pro-mining group Up North Jobs. “I want to prevail on the merits rather than lose on procedure.” While the group, which includes current county commissioner Tom Rukavina, contends that Dayton broke the law and colluded with environmental groups when he blocked Twin Metals from accessing state lands for exploration, members learned from the state attorney general’s office that they needed a licensed attorney to proceed with the case. Tyler said the plaintiffs currently don’t have the resources to hire an attorney and that the case is too complex for an attorney to take it on for free. The only option, according to Tyler, is to raise the money needed to pay for legal services. “We need to raise $30,000,” said Tyler. “We need help.” While some mining supporters have stepped forward to contribute to the cause, Tyler said a much larger funding effort is needed in order to proceed and get the case heard in court. In an initial Feb. 21 court fling, seven plaintiffs alleged that Dayton “colluded with anti-mining activists and federal officials to ban mining on state and federally-owned land” in the Rainy River watershed and Superior National Forest. They want court action to reverse Dayton’s 2016 executive order that denied Twin Metals access to state land for exploratory drilling, and a finding that Dayton “committed a wrongful and tortuitous act when he intentionally interfered with Franconia and Twin Metals’ leasehold interest” in federal mineral leases. The state is also accused of a “non-compensated taking” denying the mining companies due process, depriving area school districts of mineral rights revenues and burdening taxpayers with higher taxes to make up for the loss of royalties that would have been provided by the Twin Metals project. Listed as plaintiffs were Tyler, Jay Mackie, Dave Johnson, Nancy McReady, Dan Waters and former county commissioner Mike Forsman, as well as current county commissioner and former state legislator Rukavina, who lives in Pike Township. A fundraising account has been set up at Frandsen Bank and Tyler said that for now, the effort has turned to raising the money needed to proceed. “It’s up to us to go out and make it happen somehow,” he said. Tyler and his fellow plaintiffs charge that Dayton bowed to political pressure when he directed DNR Commissioner Tom Landwehr “to not authorize or enter into any new state access agreements or lease agreements for mining operations” on those state lands at issue. Twin Metals has its own lawsuit underway against the federal government, contending agencies exceeded their authority by rejecting exploration leases held by the company. -- Joshua F. Hanson Branch of Public Land Division of Land Resources U. S. Department of the Interior 1849 C Street, N.W., Rm. 6420 Washington, D.C. 20240 Phone: (202)208-3463 Email: joshua.hanson@sol.doi.gov NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this e-mail to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you received this e-mail in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:22 PM Conversation Contents Agenda for Weekly DMR Meeting Attachments: /167. Agenda for Weekly DMR Meeting/1.1 2017.03.29 DMR Weekly Meeting Agenda.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Tue Mar 28 2017 16:58:48 GMT-0600 (MDT) Jack Haugrud Tom Bovard , Dennis Daugherty , Richard McNeer Agenda for Weekly DMR Meeting 2017.03.29 DMR Weekly Meeting Agenda.docx Jack, I've attached the agenda for our weekly meeting. We'll see you in the morning. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:22 PM Conversation Contents Significant Litigation Deadlines list - updated tonight on the 28th Attachments: /168. Significant Litigation Deadlines list - updated tonight on the 28th/1.1 Updated032217SignificantLitigationDeadlines redline.pdf "Caminiti, Mariagrazia" From: Sent: To: CC: Subject: Attachments: "Caminiti, Mariagrazia" Tue Mar 28 2017 16:17:03 GMT-0600 (MDT) "SOL-Associate & Regional Solicitors" , "SOL-Assistant & Field Solicitors" , Jack Haugrud , Edward T Keable , James Schindler , Downey Magallanes , Daniel Jorjani Kimberly Edwards , Ariana Rigsby Significant Litigation Deadlines list - updated tonight on the 28th Updated032217SignificantLitigationDeadlines redline.pdf a bit early folks, but I'm out Weds-Friday and already have burdened Kim and Ariana enough - so here's the redline pdf of changes thru 6pm tonight 3/28 and the link here to the new updated version. -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:22 PM Conversation Contents Twin Metals Litigation and Superior Forest Withdrawal Attachments: I169. Twin Metals Litigation and Superior Forest Withdrawal/1.1 2017.02.15 Withdrawal Options Paper.docx I169. Twin Metals Litigation and Superior Forest Withdrawal/1.2 Attachment 1_Map Superior NF Applicationpdf I169. Twin Metals Litigation and Superior Forest Withdrawal/1.3 - jfh.docx I169. Twin Metals Litigation and Superior Forest Withdrawal/1.4 2017.03.22 Twin Metals Litigation brie?ng "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Wed Mar 22 2017 17:40:06 GMT-0600 (MDT) To: Jack Haugrud Laura Brown "Moody, Aaron" Richard McNeer CC: Joshua Hanson Briana Collier Subject: Twin Metals Litigation and Superior Forest Withdrawal 2017.02.15 Withdrawal Options Paper.docx Attachment 1_Map Attachments: Superior NF Applicationpdf - jfh.docx 2017.03.22 Twin Metals Litigation briefing Jack, We'd like to request a meeting to discuss the various moving parts related to the proposed Superior National Forest withdrawal and the Twin Metals litigation. With regard to the litigation, our objective is to We'd like to discuss a number of documents related to the proposed withdrawal and the litigation and discuss next steps. The documents are: 1. Proposed withdrawal a. the SOL withdrawal options paper, b. a map of the proposed withdrawal area, and c. BLM's withdrawal options bullets with DLR edits. (Josh sent these to you on February 15. See email chain below.) 2. Twin Metals litigation a. the draft litigation brie?ng paper that I sent to you on Febmary 9, but which we have updated to re?ect the current status of the case. b. an options paper for reversing BLM's decision rejecting the Twin Metals lease renewal application found at this Gooqu Drive link: Noam c. a documen re a am I a us quo proposa a we WI sen you separa y. Any objections to me coordinating with Mari Grace to schedule a meeting on these topics? Should we also invite Downey to this meeting? Thank you. --Karen -- Fon/varded message From: Hanson, Joshua Date: Wed, Feb 15, 2017 at 4:00 PM Subject: Re: Superior Forest Withdrawal and litigation To: "Hawbecker, Karen" Briana Collier Cc: "Haugrud, Kevin" "Brown, Laura" Richard McNeer "Moody, Aaron" Jack, Karen, and Briana, Attached is the final internal SOL withdrawal options paper and a map of the proposed withdrawal. Also included are the DLR edits to the BLM withdrawal options bullets. . Please let me know if you have addl lona is a paper, WI prow ose comments back to Karen Mouritsen. Josh On Mon, Feb 13, 2017 at 2:55 PM, Hanson, Joshua wrote: Karen and Briana, Attached is the SOL withdrawal options paper. Aaron has reviewed, but I thought you might like to add your insight as well. Josh On Thu, Feb 9, 2017 at 10:10 AM, Hanson, Joshua wrote: I can incorporate the BLM bullets and Aaron and Jack's comments into the memo that was already working on. I will send something to the group later today. On Thu, Feb 9, 2017 at 9:22 AM, Moody, Aaron wrote: All vour comments make sense to me (especiall In addition to your points, Aaron G. Moody Assistant Solicitor, Branch of Public Lands Division of Land Resources Office of the Solicitor US. Department of the Interior 202-208-3495 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. On Thu, Feb 9, 2017 at 9:08 AM, Haugrud, Kevin <'ack.hau rud sol.doi. Working from the BLM's draft is ?ne with me, but I think ov> wrote: On Thu, Feb 9, 2017 at 8:29 AM, Moody, Aaron wrote: Hi, Jack: See below. It looks like Aaron G. Moody Assistant Solicitor, Branch of Public Lands Division of Land Resources Of?ce of the Solicitor US. Department of the Interior 202-208-3495 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. -- Forwarded message From: Mouritsen, Karen Date: Thu, Feb 9,2017 at 7:24 AM Subject: Superior Ntl Forest Withdrawal and litigation To: Karen Hawbecker , Aaron Moody , Briana Collier , Joshua Hanson Cc: Elena Fink , Mitchell Leverette , Alfred Elser , Michael Nedd , "Claypool, Larry" , Barbara Eggers Hi SOL, Elena has prepared some options for addressing the withdrawal in the Superior National Forest. That is pasted in this email and also attached Can you look at this and make sure we haven't misstated any of the regulatory or legal issues here? I know we need to better address option C in the paper. The other papers are also attached. I also would like to try to arrange a meeting with you all, for Friday afternoon or Monday, to discuss the litigation on the two leases. Would any of you be available at 3 pm Eastern on Friday? I am in Phoenix so I would call you from here. If that doesn't seem possible, Elena, would you call Briana or Josh and figure something out. Thank you for your help, Karen Karen Mouritsen State Director Eastern States Office 202-912-7701 ---------- Forwarded message ---------From: Karen Mouritsen Date: Wed, Feb 8, 2017 at 2:39 PM Subject: Fwd: Withdrawal Options To: nedouglas@fs.fed.us, gcasamassa@fs.fed.us, pjohnson02@fs.fed.us, Michael Nedd , Elena Fink , Barbara Eggers , lclaypoo@blm.gov, Mitchell Leverette , aelser@blm.gov, Kathleen -FS Atkinson , civerson@fs.fed.us Per discussion. We will find out more on option C. Karen Mouritsen State Director Bureau of Land Management, Eastern States Office Cell 202-329-2030 WITHDRAWAL OPTIONS (b) (5) Joshua F. Hanson Branch of Public Land Division of Land Resources U. S. Department of the Interior 1849 Street, N.W., Rm. 5525 Washington, DC. 20240 Phone: (202)208-3463 Email: joshua.hanson@sol.doi.gov NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged. con?dential. or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this e-mail to the intended recipient. you are hereby noti?ed that any dissemination. distribution. copying. or use of this e-mail or its contents is strictly prohibited. If you received this e-mail in error. please notify the sender immediately and destroy all copies. Kevin Haugrud From: Kevin Haugrud Sent: Wed Mar 22 2017 18:02:53 GMT-0600 (MDT) To: "Hawbecker, Karen" Subject: Re: Twin Metals Litigation and Superior Forest Withdrawal Fine to schedule. I want the meeting with me. -- Original Message From: "Hawbecker, Karen" Date: Wed, March 22, 2017 7:40 PM -0400 To: Jack Haugrud CC: Laura Brown "Moody, Aaron" Richard McNeer Joshua Hanson Briana Collier Subject: Twin Metals Litigation and Superior Forest Withdrawal Jack, We'd like to request a meeting to discuss the various moving parts related to the proposed Superior National Forest withdrawal and the Twin Metals litigation. With regard to the litigation, our objective is We'd like to discuss a number of documents related to the proposed withdrawal and the litigation and discuss next steps. The documents are: 1. Proposed withdrawal a. the SOL withdrawal options paper, b. a map of the proposed withdrawal area, and c. BLM's withdrawal options bullets with DLR edits. (Josh sent these to you on February 15. See email chain below.) 2. Twin Metals litigation a. the draft litigation brie?ng paper that I sent to you on February 9, but which we have updated to re?ect the current status of the case. b. an options paper for reversing BLM's decision rejecting the Twin Metals lease renewal application found at this Google Drive link: C. a !ocumenl relalg !e slalus quo proposal we sen! you separalely. Any objections to me coordinating with Mari Grace to schedule a meeting on these topics? Should we also invite Downey to this meeting? Thank you. --Karen -- Forwarded message From: Hanson, Joshua Date: Wed, Feb 15, 2017 at 4:00 PM Subject: Re: Superior Forest Withdrawal and litigation To: "Hawbecker, Karen" Briana Collier Cc: "Haugrud, Kevin" "Brown, Laura" Richard McNeer "Moody, Aaron" Jack, Karen, and Briana, Attached is the final internal SOL withdrawal options paper and a map of the proposed withdrawal. Also included are the DLR edits to the BLM withdrawal options bullets. Please let me know if you have addi Iona IS 0 a paper, WI prow ose comments back to Karen Mouritsen. Josh On Mon, Feb 13, 2017 at 2:55 PM, Hanson, Joshua wrote: Karen and Briana, Attached is the SOL withdrawal options paper. Aaron has reviewed, but I thought you might like to add your insight as well. Josh On Thu, Feb 9, 2017 at 10:10 AM, Hanson, Joshua wrote: I can incorporate the BLM bullets and Aaron and Jack's comments into the memo that I was already working on. I will send something to the group later today. On Thu, Feb 9. 2017 at 9:22 AM. Moodv. Aaron wrote: Aaron G. Moody Assistant Solicitor, Branch of Public Lands Division of Land Resources Of?ce of the Solicitor US. Department of the Interior 202-208-3495 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. On Thu, Feb 9, 2017 at 9:08 AM. Hauqrud, Kevin wrote: On Thu, Feb 9, 2017 at 8:29 AM, Moody, Aaron wrote: Hi, Jack: See below. It looks like Aaron G. Moody Assistant Solicitor, Branch of Public Lands Division of Land Resources Of?ce of the Solicitor US. Department of the Interior 202-208-3495 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. ---------- Forwarded message ---------From: Mouritsen, Karen Date: Thu, Feb 9, 2017 at 7:24 AM Subject: Superior Ntl Forest Withdrawal and litigation To: Karen Hawbecker , Aaron Moody , Briana Collier , Joshua Hanson Cc: Elena Fink , Mitchell Leverette , Alfred Elser , Michael Nedd , "Claypool, Larry" , Barbara Eggers Hi SOL, Elena has prepared some options for addressing the withdrawal in the Superior National Forest. That is pasted in this email and also attached Can you look at this and make sure we haven't misstated any of the regulatory or legal issues here? I know we need to better address option C in the paper. The other papers are also attached. I also would like to try to arrange a meeting with you all, for Friday afternoon or Monday, to discuss the litigation on the two leases. Would any of you be available at 3 pm Eastern on Friday? I am in Phoenix so I would call you from here. If that doesn't seem possible, Elena, would you call Briana or Josh and figure something out. Thank you for your help, Karen Karen Mouritsen State Director Eastern States Office 202-912-7701 ---------- Forwarded message ---------From: Karen Mouritsen Date: Wed, Feb 8, 2017 at 2:39 PM Subject: Fwd: Withdrawal Options To: nedouglas@fs.fed.us, gcasamassa@fs.fed.us, pjohnson02@fs.fed.us, Michael Nedd , Elena Fink , Barbara Eggers , lclaypoo@blm.gov, Mitchell Leverette , aelser@blm.gov, Kathleen -FS Atkinson , civerson@fs.fed.us Per discussion. We will find out more on option C. Karen Mouritsen State Director Bureau of Land Management, Eastern States Office Cell 202-329-2030 AWAL OPTIONS WITHDR (b) (5) -- Joshua F. Hanson Branch of Public Land Division of Land Resources U. S. Department of the Interior 1849 C Street, N.W., Rm. 5525 Washington, D.C. 20240 Phone: (202)208-3463 Email: joshua.hanson@sol.doi.gov NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this e-mail to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you received this e-mail in error, please notify the sender immediately and destroy all copies. "Hawbecker, Karen" From: Sent: To: Subject: "Hawbecker, Karen" Wed Mar 22 2017 18:07:19 GMT-0600 (MDT) Kevin Haugrud Re: Twin Metals Litigation and Superior Ntl Forest Withdrawal Okay. I'll coordinate with MG to set up the meeting with you. Thanks. On Wed, Mar 22, 2017 at 8:02 PM, Kevin Haugrud wrote: Fine to schedule. I want the meeting with me. -------- Original Message -------From: "Hawbecker, Karen" Date: Wed, March 22, 2017 7:40 PM -0400 To: Jack Haugrud CC: Laura Brown , "Moody, Aaron" , Richard McNeer , Joshua Hanson , Briana Collier Subject: Twin Metals Litigation and Superior Ntl Forest Withdrawal Jack, We'd like to request a meeting to discuss the various moving parts related to the proposed Superior National Forest withdrawal and the Twin Metals litigation. With regard to the litigation, We'd like to discuss a number of documents related to the proposed withdrawal and the litigation and discuss next steps. The documents are: 1. Proposed withdrawal a. the SOL withdrawal options paper, b. a map of the proposed withdrawal area, and c. BLM's withdrawal options bullets with DLR edits. (Josh sent these to you on February 15. See email chain below.) 2. Twin Metals litigation a. the draft litigation brie?ng paper that I sent to you on February 9, but which we have updated to re?ect the current status of the case. b. an options paper for reversing decision rejecting the Twin Metals lease renewal application found at this Google Drive link: C. a !ocumenl re?alg Io plamlr? slalus quo proposal we sen! you separalely. Any objections to me coordinating with Mari Grace to schedule a meeting on these topics? Should we also invite Downey to this meeting? Thank you. --Karen -- Forwarded message From: Hanson, Joshua Date: Wed, Feb 15, 2017 at 4:00 PM Subject: Re: Superior Forest Withdrawal and litigation To: "Hawbecker, Karen" Briana Collier Cc: "Haugrud, Kevin" "Brown, Laura" Richard McNeer "Moody, Aaron" Jack, Karen, and Briana, Attached is the ?nal internal SOL withdrawal options paper and a map of the proposed withdrawal. Also included are the DLR edits to the BLM withdrawal options bullets. Please let me know if you have a liona IS 0 hat paper, WI provr ose commen ack to Karen Mouritsen. Josh On Mon, Feb 13, 2017 at 2:55 PM, Hanson, Joshua wrote: Karen and Briana, Attached is the SOL withdrawal options paper. Aaron has reviewed, but I thought you might like to add your insight as well. Josh On Thu, Feb 9, 2017 at 10:10 AM, Hanson, Joshua wrote: I can incorporate the BLM bullets and Aaron and Jack's comments into the memo that was already working on. I will send something to the group later today. On Thu, Feb 9, 2017 at 9:22 AM, Moody, Aaron wrote: vour comments make sense to me (especially A and being the same thing) Aaron G. Moody Assistant Solicitor, Branch of Public Lands Division of Land Resources Office of the Solicitor US. Department of the Interior 202-208-3495 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. On Thu. Feb 9, 2017 at 9:08 AM, Hauqrud, Kevin wrote: On Thu, Feb 9, 2017 at 8:29 AM, Moody, Aaron wrote: Hi, Jack: See below. It looks like -Aaron Aaron G. Moody Assistant Solicitor, Branch of Public Lands Division of Land Resources Office of the Solicitor U.S. Department of the Interior 202-208-3495 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. ---------- Forwarded message ---------From: Mouritsen, Karen Date: Thu, Feb 9, 2017 at 7:24 AM Subject: Superior Ntl Forest Withdrawal and litigation To: Karen Hawbecker , Aaron Moody , Briana Collier , Joshua Hanson Cc: Elena Fink , Mitchell Leverette , Alfred Elser , Michael Nedd , "Claypool, Larry" , Barbara Eggers Hi SOL, Elena has prepared some options for addressing the withdrawal in the Superior National Forest. That is pasted in this email and also attached Can you look at this and make sure we haven't misstated any of the regulatory or legal issues here? I know we need to better address option C in the paper. The other papers are also attached. I also would like to try to arrange a meeting with you all, for Friday afternoon or Monday, to discuss the litigation on the two leases. Would any of you be available at 3 pm Eastern on Friday? I am in Phoenix so I would call you from here. If that doesn't seem possible, Elena, would you call Briana or Josh and figure something out. Thank you for your help, Karen Karen Mouritsen State Director Eastern States Office 202-912-7701 ---------- Forwarded message ---------From: Karen Mouritsen Date: Wed, Feb 8, 2017 at 2:39 PM Subject: Fwd: Withdrawal Options To: nedouglas@fs.fed.us, gcasamassa@fs.fed.us, pjohnson02@fs.fed.us, Michael Nedd , Elena Fink , Barbara Eggers , lclaypoo@blm.gov, Mitchell Leverette , aelser@blm.gov, Kathleen -FS Atkinson , civerson@fs.fed.us Per discussion. We will find out more on option C. Karen Mouritsen State Director Bureau of Land Management, Eastern States Office Cell 202-329-2030 WITHDRAWAL OPTIONS (b) (5) n c n f (b) (5) -- Joshua F. Hanson Branch of Public Land Division of Land Resources U. S. Department of the Interior 1849 C Street, N.W., Rm. 5525 Washington, D.C. 20240 Phone: (202)208-3463 Email: joshua.hanson@sol.doi.gov NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this e-mail to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you received this e-mail in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:22 PM Conversation Contents 2017.03.22 Draft Twin Metals Options Paper.docx - Invitation to edit "Karen Hawbecker (via Google Docs)" "Karen Hawbecker (via Google Docs)" Sent: Wed Mar 22 2017 17:38:46 GMT-0600 (MDT) To: Subject: 7.03.22 Draft Metals Options Paper.docx - InVItatIon to Karen Hawbecker has invited you to edit the following document: 5 2017.03.22 Draft Twin Metals Options Paper.docx Jack, This is the draft options paper for reversing BLM's rejection of Twin Metal's - lease renewal application. It is ready for your review. Thank you. -Karen 1M1 Google Docs: Create and edit documents online. Google Inc. 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA I You have received this email because someone shared a document with you from Google Docs. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:22 PM Conversation Contents pdf of changes to SLD doc and link to deadlines doc Attachments: /171. pdf of changes to SLD doc and link to deadlines doc/1.1 Updated031517SignificantLitigationDeadlines.pdf "Caminiti, Mariagrazia" From: Sent: To: Subject: Attachments: "Caminiti, Mariagrazia" Wed Mar 22 2017 16:45:03 GMT-0600 (MDT) "SOL-Associate & Regional Solicitors" , "SOL-Assistant & Field Solicitors" , Edward T Keable , Jack Haugrud , James Schindler , Downey Magallanes , Daniel Jorjani pdf of changes to SLD doc and link to deadlines doc Updated031517SignificantLitigationDeadlines.pdf here is the link to the clean version to begin updating and below is attached the pdf of the changes between the 15th and 22nd.mg -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:22 PM Conversation Contents Agenda for Weekly Meeting Attachments: /172. Agenda for Weekly Meeting/1.1 2017.03.23 Agenda.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Wed Mar 22 2017 16:40:01 GMT-0600 (MDT) Jack Haugrud Tom Bovard , Dennis Daugherty , Richard McNeer , Wendy Dorman , Phyllis Leslie Agenda for Weekly Meeting 2017.03.23 Agenda.docx Jack, I've attached the agenda for our weekly meeting tomorrow. Wendy Dorman will be acting for Richard tomorrow. Richard is at M Street this week assisting BLM with the HF rule. See you tomorrow. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:23 PM Conversation Contents any comments on DAPL brief? "Navaro, Ann" From: Sent: To: Subject: if not, i'll tell doj (b) "Navaro, Ann" Mon Mar 13 2017 11:14:06 GMT-0600 (MDT) Kevin Haugrud any comments on DAPL brief? (5) Ann Navaro Acting Associate Solicitor, Division of Parks & Wildlife U.S. Department of the Interior 1849 C Street NW Washington, D.C. 20240 202-208-3125 (desk) 202-510-4271 (cell) "Haugrud, Kevin" From: Sent: To: Subject: "Haugrud, Kevin" Mon Mar 13 2017 13:01:41 GMT-0600 (MDT) "Navaro, Ann" Re: any comments on DAPL brief? (b) (5) On Mon, Mar 13, 2017 at 1:14 PM, Navaro, Ann wrote: if not, i'll tell doj (b) (5) Ann Navaro Acting Associate Solicitor, Division of Parks & Wildlife U.S. Department of the Interior 1849 C Street NW Washington, D.C. 20240 202-208-3125 (desk) 202-510-4271 (cell) Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:23 PM Conversation Contents redline/strikeout of 3/1/17 Significant Litigation Deadlines, and Clean updated 030817 - attached Attachments: /175. redline/strikeout of 3/1/17 Significant Litigation Deadlines, and Clean updated 030817 - attached/1.1 030117SignificantLitigationDeadlines (1) pdf of edits.pdf "Caminiti, Mariagrazia" From: Sent: To: Subject: Attachments: "Caminiti, Mariagrazia" Wed Mar 08 2017 13:59:58 GMT-0700 (MST) "SOL-Associate & Regional Solicitors" , "SOL-Assistant & Field Solicitors" , Jack Haugrud , Edward T Keable , Downey Magallanes , James Schindler , Daniel Jorjani redline/strikeout of 3/1/17 Significant Litigation Deadlines, and Clean updated 030817 - attached 030117SignificantLitigationDeadlines (1) pdf of edits.pdf Attached is the pdf of track changes version of last week's Deadline list and the link to this weeks. The new version is ready to update as you receive new information. mg -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:23 PM Conversation Contents Fwd: Options on Superior withdrawal Aaron Moody From: Aaron Moody Sent: Mon Mar 06 2017 16:33:44 GMT-0700 (MST) To: jack.haugrud@sol.doi.gov CC: karen.hawbecker@sol.doi.gov, laura.brown@sol.doi.gov Subject: Fwd: Options on Superior withdrawal Jack - FYI. Sent from my iPad Begin forwarded message: From: Aaron Moody Date: March 6,2017 at 6:33:02 PM EST To: "Hawbecker, Karen" Cc: "Winston, Beverly" Lara Douglas Laura Brown Briana Collier Joshua Hanson Subject: Re: Options on Superior withdrawal I don't think we have a paper to share yet, but I do think SOL should be involved in discussions about options for the proposed withdrawal. Perhaps we could set something up after the conversation with Jim and Kristin? Sent from my iPad On Mar 6, 2017, at 6:04 PM, Hawbecker, Karen wrote: Bev, My understanding is that -- aren On Mon, Mar 6, 2017 at 3:20 PM, Winston, Beverly wrote: Hi Karen, As I said in my voicemail, I am helping Kristin Bail prep for a meeting with Jim Cason tomorrow and one of the issues they will discuss is the Superior NF withdrawal. My questions are two: -- Has your staff prepared anything on BLM's options with regard to stopping the withdrawal process? -- Are there any other developments in the case that Kristin should be aware of? Thank you, Bev -- Bev Winston Bureau of Land Management Public Affairs 202-912-7239 bwinston@blm.gov Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:24 PM Conversation Contents DMR Friday List Attachments: /177. DMR Friday List/1.1 2017.03.03 DMR Friday Updates to Weekly Report.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Fri Mar 03 2017 19:02:29 GMT-0700 (MST) Jack Haugrud Tom Bovard , Dennis Daugherty , Richard McNeer DMR Friday List 2017.03.03 DMR Friday Updates to Weekly Report.docx Jack, I've attached our Friday list for your reference. I hope you have a good weekend! --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:24 PM Conversation Contents Significant litigation deadlines is updated - attached Attachments: /178. Significant litigation deadlines is updated - attached/1.1 030117SignificantLitigationDeadlines.pdf "Caminiti, Mariagrazia" From: Sent: To: CC: Subject: Attachments: "Caminiti, Mariagrazia" Wed Mar 01 2017 15:57:46 GMT-0700 (MST) Downey Magallanes , James Schindler , Edward T Keable , Jack Haugrud "SOL-Associate & Regional Solicitors" , "SOL-Assistant & Field Solicitors" Significant litigation deadlines is updated - attached 030117SignificantLitigationDeadlines.pdf 2 versions -the pdf of redline/strikeouts for general info/tracking and more importantly, the link to the new clean shared version of the document w/updates etc. Enjoy. mg -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:24 PM Conversation Contents Agenda for Weekly Meeting Attachments: /179. Agenda for Weekly Meeting/1.1 2017.03.01 Agenda.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Tue Feb 28 2017 17:29:54 GMT-0700 (MST) Jack Haugrud Tom Bovard , Dennis Daugherty , Richard McNeer Agenda for Weekly Meeting 2017.03.01 Agenda.docx Jack, I've attached the agenda for our weekly meeting tomorrow morning. We'll see you in the morning. Welcome back! --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:26 PM Conversation Contents DMR Friday List Attachments: /180. DMR Friday List/1.1 2017.02.24 DMR Friday Updates to Weekly Report.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Fri Feb 24 2017 17:31:13 GMT-0700 (MST) Jack Haugrud Tom Bovard , Dennis Daugherty , Richard McNeer DMR Friday List 2017.02.24 DMR Friday Updates to Weekly Report.docx Jack, I've attached our Friday list for your reference. I've marked in bold key points in some of the updates to help speed your review of the document. I hope that the temperature is dropping up there and the rain is turning to snow. -Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:26 PM Conversation Contents Weekly Report to the Secretary - February 23, 2016 Attachments: /181. Weekly Report to the Secretary - February 23, 2016/1.1 WeeklyReporttotheSecretary02-24-17 (1).docx "Rees, Gareth" From: Sent: To: Subject: Attachments: "Rees, Gareth" Fri Feb 24 2017 06:39:08 GMT-0700 (MST) Timothy Williams , "Caminiti, Mariagrazia" , Daniel Jorjani , Douglas Domenech , Edward Keable , Heather Swift , James Cason , Juliette Lillie , Kevin Haugrud , Megan Bloomgren , Micah Chambers , Nancy Guiden , Scott Hommel Weekly Report to the Secretary - February 23, 2016 WeeklyReporttotheSecretary02-24-17 (1).docx Good Morning All, Please find attached the weekly report to the Secretary. I have attached both the word and Google Doc versions of the reports. If there are any issues, please let me know. Thanks and sorry for the delay in distribution. -Gareth C. Rees Office to the Deputy Secretary U.S. Department of the Interior Tel: 202-208-6291 Fax: 202-208-1873 Cell: 202-957-8299 5 Weekly Report to the Secretary 02-24-17 Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:26 PM Conversation Contents Updated 022217 significant litigation deadlines list attached Attachments: /182. Updated 022217 significant litigation deadlines list attached/1.1 022217SignificantLitigationDeadlines redline strikeout changes.pdf "Caminiti, Mariagrazia" From: Sent: To: Subject: Attachments: "Caminiti, Mariagrazia" Wed Feb 22 2017 15:05:39 GMT-0700 (MST) Jack Haugrud , Edward T Keable , "SOL-Associate & Regional Solicitors" , "SOLAssistant & Field Solicitors" , Downey Magallanes , James Schindler , Daniel Jorjani Updated 022217 significant litigation deadlines list attached 022217SignificantLitigationDeadlines redline strikeout changes.pdf both a pdf of the redline/strikeout changes from last week and this week's clean version are attached or linked here..mg -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:27 PM Conversation Contents Fwd: Twin Metals Write-up Attachments: /183. Fwd: Twin Metals Write-up/1.1 2017.02.21 SuperiorNF_02.22.17+bwc + SOLDMR.docx /183. Fwd: Twin Metals Write-up/2.1 2017.02.21 SuperiorNF_02.22.17+bwc + SOLDMR agm + jfh.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Wed Feb 22 2017 13:20:11 GMT-0700 (MST) Jack Haugrud "Moody, Aaron" Fwd: Twin Metals Write-up 2017.02.21 SuperiorNF_02.22.17+bwc + SOL-DMR.docx Jack, FYI--BLM has given us a very short window to review a briefing paper they have prepared for the incoming Secretary's briefing book. It does not get into options for going forward. This version reflects Briana's and my edits. Aaron and Josh are reviewing it now. BLM plans to give this to Kristin Bail at 4 pm, so we will send our edits to BLM shortly. --Karen ---------- Forwarded message ---------From: Hawbecker, Karen Date: Wed, Feb 22, 2017 at 3:12 PM Subject: Re: Twin Metals Write-up To: "Collier, Briana" Cc: "Hanson, Joshua" , "Moody, Aaron" Here are my edits. Josh and Aaron, Will you have any more edits before we send back to BLM? On Wed, Feb 22, 2017 at 2:44 PM, Collier, Briana wrote: Hi all, Here is the write-up with my comments. Thank you, Briana Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 1849 C Street NW, Washington, D.C. 20240 Office: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Wed, Feb 22, 2017 at 2:01 PM, Winston, Beverly wrote: Hi, The short Superior update is attached. We hope to deliver it to the director at 4. Thank you for your help. Bev On Wed, Feb 22, 2017 at 12:22 PM, Hanson, Joshua wrote: Thanks. Can do. On Wed, Feb 22, 2017 at 12:21 PM, Sklar, Ryan wrote: Karen, Brianna, and Josh, ASLM has asked BLM for a brief "nutshell" on the Twin Metals/Superior National Forest matter that can be given to the soon-to-be-confirmed Secretary. ASLM needs the write up by 5 pm EST today, and it will need to be reviewed by Kristen Bail prior to then. Bev Winston (cc'ed here) is preparing a draft now. I wanted to give you the heads up that Bev will soon be asking you to review the draft and quickly send her your consolidated comments in a single document. Thanks, and sorry for the fire drill. Ryan -Ryan Sklar Acting Senior Litigation Specialist Bureau of Land Management U.S. Department of the Interior 202-208-4695 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. -- Joshua F. Hanson Branch of Public Land Division of Land Resources U. S. Department of the Interior 1849 C Street, N.W., Rm. 5525 Washington, D.C. 20240 Phone: (202)208-3463 Email: joshua.hanson@sol.doi.gov NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this e-mail to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you received this e-mail in error, please notify the sender immediately and destroy all copies. -- Bev Winston Bureau of Land Management Public Affairs 202-912-7239 bwinston@blm.gov "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Wed Feb 22 2017 13:53:55 GMT-0700 (MST) Jack Haugrud "Moody, Aaron" Fwd: Twin Metals Write-up 2017.02.21 SuperiorNF_02.22.17+bwc + SOL-DMR agm + jfh.docx Jack, This is the version with DLR and DMR combined edits that Josh sent to Bev Winston at BLM for the Kristin Bail's review. --Karen ---------- Forwarded message ---------From: Hanson, Joshua Date: Wed, Feb 22, 2017 at 3:47 PM Subject: Re: Twin Metals Write-up To: "Winston, Beverly" Cc: "Hawbecker, Karen" , "Sklar, Ryan" , "Moody, Aaron" , "Collier, Briana" Here you go Bev. I tried to get it all on one page. Could you please send us the final version that goes up to ASLM? On Wed, Feb 22, 2017 at 3:43 PM, Winston, Beverly wrote: That's wonderful. Thank you, everyone. On Wed, Feb 22, 2017 at 3:35 PM, Hawbecker, Karen wrote: Bev, Josh will send you our combined edits momentarily. --Karen On Wed, Feb 22, 2017 at 2:01 PM, Winston, Beverly wrote: Hi, The short Superior update is attached. We hope to deliver it to the director at 4. Thank you for your help. Bev On Wed, Feb 22, 2017 at 12:22 PM, Hanson, Joshua wrote: Thanks. Can do. On Wed, Feb 22, 2017 at 12:21 PM, Sklar, Ryan wrote: Karen, Brianna, and Josh, ASLM has asked BLM for a brief "nutshell" on the Twin Metals/Superior National Forest matter that can be given to the soon-to-be-confirmed Secretary. ASLM needs the write up by 5 pm EST today, and it will need to be reviewed by Kristen Bail prior to then. Bev Winston (cc'ed here) is preparing a draft now. I wanted to give you the heads up that Bev will soon be asking you to review the draft and quickly send her your consolidated comments in a single document. Thanks, and sorry for the fire drill. Ryan -Ryan Sklar Acting Senior Litigation Specialist Bureau of Land Management U.S. Department of the Interior 202-208-4695 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. -- Joshua F. Hanson Branch of Public Land Division of Land Resources U. S. Department of the Interior 1849 C Street, N.W., Rm. 5525 Washington, D.C. 20240 Phone: (202)208-3463 Email: joshua.hanson@sol.doi.gov NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this e-mail to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you received this e-mail in error, please notify the sender immediately and destroy all copies. -- -- Bev Winston Bureau of Land Management Public Affairs 202-912-7239 bwinston@blm.gov Bev Winston Bureau of Land Management Public Affairs 202-912-7239 bwinston@blm.gov -- Joshua F. Hanson Branch of Public Land Division of Land Resources U. S. Department of the Interior 1849 C Street, N.W., Rm. 5525 Washington, D.C. 20240 Phone: (202)208-3463 Email: joshua.hanson@sol.doi.gov NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this e-mail to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you received this e-mail in error, please notify the sender immediately and destroy all copies. "Haugrud, Kevin" From: Sent: To: CC: Subject: "Haugrud, Kevin" Wed Feb 22 2017 15:22:51 GMT-0700 (MST) "Hawbecker, Karen" "Moody, Aaron" Re: Twin Metals Write-up Thanks. Looks fine to me. On Wed, Feb 22, 2017 at 3:53 PM, Hawbecker, Karen wrote: Jack, This is the version with DLR and DMR combined edits that Josh sent to Bev Winston at BLM for the Kristin Bail's review. --Karen ---------- Forwarded message ---------From: Hanson, Joshua Date: Wed, Feb 22, 2017 at 3:47 PM Subject: Re: Twin Metals Write-up To: "Winston, Beverly" Cc: "Hawbecker, Karen" , "Sklar, Ryan" , "Moody, Aaron" , "Collier, Briana" Here you go Bev. I tried to get it all on one page. Could you please send us the final version that goes up to ASLM? On Wed, Feb 22, 2017 at 3:43 PM, Winston, Beverly wrote: That's wonderful. Thank you, everyone. On Wed, Feb 22, 2017 at 3:35 PM, Hawbecker, Karen wrote: Bev, Josh will send you our combined edits momentarily. --Karen On Wed, Feb 22, 2017 at 2:01 PM, Winston, Beverly wrote: Hi, The short Superior update is attached. We hope to deliver it to the director at 4. Thank you for your help. Bev On Wed, Feb 22, 2017 at 12:22 PM, Hanson, Joshua wrote: Thanks. Can do. On Wed, Feb 22, 2017 at 12:21 PM, Sklar, Ryan wrote: Karen, Brianna, and Josh, ASLM has asked BLM for a brief "nutshell" on the Twin Metals/Superior National Forest matter that can be given to the soon-to-be-confirmed Secretary. ASLM needs the write up by 5 pm EST today, and it will need to be reviewed by Kristen Bail prior to then. Bev Winston (cc'ed here) is preparing a draft now. I wanted to give you the heads up that Bev will soon be asking you to review the draft and quickly send her your consolidated comments in a single document. Thanks, and sorry for the fire drill. Ryan -Ryan Sklar Acting Senior Litigation Specialist Bureau of Land Management U.S. Department of the Interior 202-208-4695 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. -- Joshua F. Hanson Branch of Public Land Division of Land Resources U. S. Department of the Interior 1849 C Street, N.W., Rm. 5525 Washington, D.C. 20240 Phone: (202)208-3463 Email: joshua.hanson@sol.doi.gov NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this e-mail to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. -- Bev Winston Bureau of Land Management Public Affairs 202-912-7239 bwinston@blm.gov -- Bev Winston Bureau of Land Management Public Affairs 202-912-7239 bwinston@blm.gov -- Joshua F. Hanson Branch of Public Land Division of Land Resources U. S. Department of the Interior 1849 C Street, N.W., Rm. 5525 Washington, D.C. 20240 Phone: (202)208-3463 Email: joshua.hanson@sol.doi.gov NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this e-mail to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you received this e-mail in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:27 PM Conversation Contents Fwd: Enviros motion to intervene granted in Twin Metals Attachments: /184. Fwd: Enviros motion to intervene granted in Twin Metals/1.1 2017.02.21 Twin Metals-Order Granting Motion to Intervene.pdf /184. Fwd: Enviros motion to intervene granted in Twin Metals/1.2 2017.02.21 NRS#1138182-v1-DN_72_AMENDED_COMPLAINT Franconia_Minerals_(US)_LLC__Twin_Metals_Minnesota_LLC__.PDF "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Wed Feb 22 2017 13:23:22 GMT-0700 (MST) Jack Haugrud , James Schindler , Downey Magallanes , Edward T Keable Richard McNeer , Laura Brown , "Moody, Aaron" , Briana Collier , Joshua Hanson Fwd: Enviros motion to intervene granted in Twin Metals 2017.02.21 Twin Metals-Order Granting Motion to Intervene.pdf 2017.02.21 NRS-#1138182-v1-DN_72_AMENDED_COMPLAINT Franconia_Minerals_(US)_LLC__Twin_Metals_Minnesota_LLC__.PDF Yesterday, the U.S. District Court for the District of Minnesota granted a motion to intervene that the Northeastern Minnestoans for Wilderness filed on November 21, 2016. The government, at that time, took no position on the intervention motion. The court's decision to grant intervention to this group is based on Rule 24(b) permissive intervention. Twin Metals also filed an amended complaint on February 21 challenging the Forest Service non-consent and BLM's rejection of their application for lease renewal. Judge Allows Environmentalists To Intervene In Twin Metals Lawsuit. The AP(2/21) reports that “a federal judge has approved an environmental group’s request to intervene in a lawsuit over mineral rights leases for the proposed Twin Metals copper-nickel mine near Ely in northeastern Minnesota.” Judge Susan Richard Nelson held “in a ruling Tuesday that Northeastern Minnesotans for Wilderness meets the legal requirements for becoming a defendant in the lawsuit.” Coverage by the AP was also picked up by the Bristol (VA) Herald Courier (2/21), U.S. News & World Report (2/21), the Washington (DC) Times (2/21), and KSTP-TV Minneapolis-St. Paul (MN) Minneapolis-St.Paul, MN (2/21). Additional coverage was provided by the Virciinia (MN) Mesabi Dailv (2/21, Burnes). Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:27 PM Conversation Contents Secretary's report from SOL Attachments: /185. Secretary's report from SOL/1.1 022217 WEEKLY REPORT TO THE SECRETARY.docx "Caminiti, Mariagrazia" From: Sent: To: CC: Subject: Attachments: "Caminiti, Mariagrazia" Wed Feb 22 2017 13:12:30 GMT-0700 (MST) Gareth Rees Edward T Keable , Jack Haugrud Secretary's report from SOL 022217 WEEKLY REPORT TO THE SECRETARY.docx per acting secy keable - attached.mg -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:27 PM Conversation Contents DMR Friday List Attachments: /188. DMR Friday List/1.1 2017.02.17 DMR Friday Updates to Weekly Report.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Fri Feb 17 2017 17:04:47 GMT-0700 (MST) Jack Haugrud Tom Bovard , Dennis Daugherty , Richard McNeer DMR Friday List 2017.02.17 DMR Friday Updates to Weekly Report.docx Jack, I've attached our Friday list for your reference. I hope you're able to take a little time off this weekend. --Karen "Haugrud, Kevin" From: Sent: To: Subject: "Haugrud, Kevin" Fri Feb 17 2017 17:43:28 GMT-0700 (MST) "Hawbecker, Karen" Re: DMR Friday List Thanks Karen. On Fri, Feb 17, 2017 at 7:04 PM, Hawbecker, Karen wrote: Jack, I've attached our Friday list for your reference. I hope you're able to take a little time off this weekend. -Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:27 PM Conversation Contents Fwd: Superior Ntl Forest Withdrawal and litigation Attachments: /189. Fwd: Superior Ntl Forest Withdrawal and litigation/1.1 Withdrawal.OPTIONS.draft.8Feb2017.docx /189. Fwd: Superior Ntl Forest Withdrawal and litigation/1.2 BriefingMemo.SuperiorNF.Withdrawal.8Feb2017.docx /189. Fwd: Superior Ntl Forest Withdrawal and litigation/1.3 Attachment 1_Map SuperiorNF Application.pdf /189. Fwd: Superior Ntl Forest Withdrawal and litigation/1.4 Attachment 2_Pending Mineral Actions.2.2.2017.docx /189. Fwd: Superior Ntl Forest Withdrawal and litigation/5.1 2017.02.13 Withdrawal Options Paper.docx /189. Fwd: Superior Ntl Forest Withdrawal and litigation/5.2 Attachment 1_Map Superior NF Application.pdf /189. Fwd: Superior Ntl Forest Withdrawal and litigation/6.1 2017.02.15 Withdrawal Options Paper.docx /189. Fwd: Superior Ntl Forest Withdrawal and litigation/6.2 Attachment 1_Map Superior NF Application.pdf /189. Fwd: Superior Ntl Forest Withdrawal and litigation/6.3 Withdrawal.OPTIONS.draft.8Feb2017 - jfh.docx "Moody, Aaron" From: Sent: To: CC: Subject: Attachments: "Moody, Aaron" Thu Feb 09 2017 06:29:43 GMT-0700 (MST) Kevin Haugrud "Hawbecker, Karen" , Joshua Hanson , Briana Collier , "Brown, Laura" , Richard McNeer Fwd: Superior Ntl Forest Withdrawal and litigation Withdrawal.OPTIONS.draft.8Feb2017.docx BriefingMemo.SuperiorNF.Withdrawal.8Feb2017.docx Attachment 1_Map SuperiorNF Application.pdf Attachment 2_Pending Mineral Actions.2.2.2017.docx Hi, Jack: See below. It looks like BLM already started an options paper on the withdrawal. Unless you or anyone else see it differently, I'm thinking we should just work off of BLM's version (it will definitely need some tweaks, but it looks like a good start). Other thoughts? -Aaron Aaron G. Moody Assistant Solicitor, Branch of Public Lands Division of Land Resources Office of the Solicitor U.S. Department of the Interior 202-208-3495 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. ---------- Forwarded message ---------From: Mouritsen, Karen Date: Thu, Feb 9, 2017 at 7:24 AM Subject: Superior Ntl Forest Withdrawal and litigation To: Karen Hawbecker , Aaron Moody , Briana Collier , Joshua Hanson Cc: Elena Fink , Mitchell Leverette , Alfred Elser , Michael Nedd , "Claypool, Larry" , Barbara Eggers Hi SOL, Elena has prepared some options for addressing the withdrawal in the Superior National Forest. That is pasted in this email and also attached Can you look at this and make sure we haven't misstated any of the regulatory or legal issues here? I know we need to better address option C in the paper. The other papers are also attached. I also would like to try to arrange a meeting with you all, for Friday afternoon or Monday, to discuss the litigation on the two leases. Would any of you be available at 3 pm Eastern on Friday? I am in Phoenix so I would call you from here. If that doesn't seem possible, Elena, would you call Briana or Josh and figure something out. Thank you for your help, Karen Karen Mouritsen State Director Eastern States Office 202-912-7701 ---------- Forwarded message ---------From: Karen Mouritsen Date: Wed, Feb 8, 2017 at 2:39 PM Subject: Fwd: Withdrawal Options To: nedouglas@fs.fed.us, gcasamassa@fs.fed.us, pjohnson02@fs.fed.us, Michael Nedd , Elena Fink , Barbara Eggers , lclaypoo@blm.gov, Mitchell Leverette , aelser@blm.gov, Kathleen -FS Atkinson , civerson@fs.fed.us Per discussion. We will find out more on option C. Karen Mouritsen State Director Bureau of Land Management, Eastern States Office Cell 202-329-2030 AWAL OPTIONS "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Thu Feb 09 2017 07:08:12 GMT-0700 (MST) To: "Moody, Aaron" "Hawbecker, Karen" Joshua Hanson Briana Collier CC: "Brown, Laura" Richard McNeer Subject: Re: Superior Forest Withdrawal and litigation On Thu, Feb 9, 2017 at 8:29 AM, Moody, Aaron wrote: Hi, Jack: See below. It looks like BLM already started an options paper on the withdrawal. Unless you or anyone else see it differently, I'm thinking we should just work off of BLM's version (it will definitely need some tweaks, but it looks like a good start). Other thoughts? -Aaron Aaron G. Moody Assistant Solicitor, Branch of Public Lands Division of Land Resources Office of the Solicitor US. Department of the Interior 202-208-3495 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. ---------- Forwarded message ---------From: Mouritsen, Karen Date: Thu, Feb 9, 2017 at 7:24 AM Subject: Superior Ntl Forest Withdrawal and litigation To: Karen Hawbecker , Aaron Moody , Briana Collier , Joshua Hanson Cc: Elena Fink , Mitchell Leverette , Alfred Elser , Michael Nedd , "Claypool, Larry" , Barbara Eggers Hi SOL, Elena has prepared some options for addressing the withdrawal in the Superior National Forest. That is pasted in this email and also attached Can you look at this and make sure we haven't misstated any of the regulatory or legal issues here? I know we need to better address option C in the paper. The other papers are also attached. I also would like to try to arrange a meeting with you all, for Friday afternoon or Monday, to discuss the litigation on the two leases. Would any of you be available at 3 pm Eastern on Friday? I am in Phoenix so I would call you from here. If that doesn't seem possible, Elena, would you call Briana or Josh and figure something out. Thank you for your help, Karen Karen Mouritsen State Director Eastern States Office 202-912-7701 ---------- Forwarded message ---------From: Karen Mouritsen Date: Wed, Feb 8, 2017 at 2:39 PM Subject: Fwd: Withdrawal Options To: nedouglas@fs.fed.us, gcasamassa@fs.fed.us, pjohnson02@fs.fed.us, Michael Nedd , Elena Fink , Barbara Eggers , lclaypoo@blm.gov, Mitchell Leverette , aelser@blm.gov, Kathleen -FS Atkinson , civerson@fs.fed.us Per discussion. We will find out more on option C. Karen Mouritsen State Director Bureau of Land Management, Eastern States Office Cell 202-329-2030 (b) (5) "Moody, Aaron" From: "Moody, Aaron" Sent: Thu Feb 09 2017 07:22:07 GMT-0700 (MST) To: "Haugrud, Kevin" "Hawbecker, Karen" Joshua Hanson Briana Collier CC: "Brown, Laura" Richard McNeer Subject: Re: Superior Forest Withdrawal and litigation Aaron G. Moody Assistant Solicitor, Branch of Public Lands Division of Land Resources Office of the Solicitor US. Department of the Interior 202-208-3495 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. On Thu, Feb 9, 2017 at 9:08 AM, Haugrud, Kevin wrote: (b) (5) On Thu, Feb 9, 2017 at 8:29 AM, Moody, Aaron wrote: Hi, Jack: See below. It looks like BLM already started an options paper on the withdrawal. Unless you or anyone else see it differently, I'm thinking we should just work off of BLM's version (it will definitely need some tweaks, but it looks like a good start). Other thoughts? -Aaron Aaron G. Moody Assistant Solicitor, Branch of Public Lands Division of Land Resources Office of the Solicitor U.S. Department of the Interior 202-208-3495 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. ---------- Forwarded message ---------From: Mouritsen, Karen Date: Thu, Feb 9, 2017 at 7:24 AM Subject: Superior Ntl Forest Withdrawal and litigation To: Karen Hawbecker , Aaron Moody , Briana Collier , Joshua Hanson Cc: Elena Fink , Mitchell Leverette , Alfred Elser , Michael Nedd , "Claypool, Larry" , Barbara Eggers Hi SOL, Elena has prepared some options for addressing the withdrawal in the Superior National Forest. That is pasted in this email and also attached Can you look at this and make sure we haven't misstated any of the regulatory or legal issues here? I know we need to better address option C in the paper. The other papers are also attached. I also would like to try to arrange a meeting with you all, for Friday afternoon or Monday, to discuss the litigation on the two leases. Would any of you be available at 3 pm Eastern on Friday? I am in Phoenix so I would call you from here. If that doesn't seem possible, Elena, would you call Briana or Josh and figure something out. Thank you for your help, Karen Karen Mouritsen State Director Eastern States Office 202-912-7701 ---------- Forwarded message ---------From: Karen Mouritsen Date: Wed, Feb 8, 2017 at 2:39 PM Subject: Fwd: Withdrawal Options To: nedouglas@fs.fed.us, gcasamassa@fs.fed.us, pjohnson02@fs.fed.us, Michael Nedd , Elena Fink , Barbara Eggers , lclaypoo@blm.gov, Mitchell Leverette , aelser@blm.gov, Kathleen -FS Atkinson , civerson@fs.fed.us Per discussion. We will find out more on option C. Karen Mouritsen State Director Bureau of Land Management, Eastern States Office Cell 202-329-2030 WITHDRAWAL OPTIONS (b) (5) "Hanson, Joshua" From: "Hanson, Joshua" Sent: Thu Feb 09 2017 08:10:28 GMT-0700 (MST) To: "Moody, Aaron" "Haugrud, Kevin" "Hawbecker, Karen" Briana Collier CC: "Brown, Laura" Richard McNeer Subject: Re: Superior Forest Withdrawal and litigation sen! lo lle group laler logay. On Thu, Feb 9, 2017 at 9:22 AM. Moodv. Aaron wrote: Aaron G. Moody Assistant Solicitor, Branch of Public Lands Division of Land Resources Office of the Solicitor US. Department of the Interior 202-208-3495 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. On Thu, Feb 9, 2017 at 9:08 AM. Hauqrud. Kevin wrote: On Thu, Feb 9, 2017 at 8:29 AM, Moody, Aaron wrote: Hi, Jack: See below. It looks like BLM already started an options paper on the withdrawal. Unless you or anyone else see it differently, I'm thinking we should just work off of BLM's version (it will de?nitely need some tweaks, but it looks like a good start). Other thoughts? -Aaron Aaron G. Moody Assistant Solicitor, Branch of Public Lands Division of Land Resources Office of the Solicitor US. Department of the Interior 202-208-3495 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. -- Forwarded message From: Mouritsen, Karen Date: Thu, Feb 9, 2017 at 7:24 AM Subject: Superior Forest Withdrawal and litigation To: Karen Hawbecker Aaron Moody Briana Collier Joshua Hanson Cc: Elena Fink , Mitchell Leverette , Alfred Elser , Michael Nedd , "Claypool, Larry" , Barbara Eggers Hi SOL, Elena has prepared some options for addressing the withdrawal in the Superior National Forest. That is pasted in this email and also attached Can you look at this and make sure we haven't misstated any of the regulatory or legal issues here? I know we need to better address option C in the paper. The other papers are also attached. I also would like to try to arrange a meeting with you all, for Friday afternoon or Monday, to discuss the litigation on the two leases. Would any of you be available at 3 pm Eastern on Friday? I am in Phoenix so I would call you from here. If that doesn't seem possible, Elena, would you call Briana or Josh and figure something out. Thank you for your help, Karen Karen Mouritsen State Director Eastern States Office 202-912-7701 ---------- Forwarded message ---------From: Karen Mouritsen Date: Wed, Feb 8, 2017 at 2:39 PM Subject: Fwd: Withdrawal Options To: nedouglas@fs.fed.us, gcasamassa@fs.fed.us, pjohnson02@fs.fed.us, Michael Nedd , Elena Fink , Barbara Eggers , lclaypoo@blm.gov, Mitchell Leverette , aelser@blm.gov, Kathleen FS Atkinson , civerson@fs.fed.us Per discussion. We will find out more on option C. Karen Mouritsen State Director Bureau of Land Management, Eastern States Office Cell 202-329-2030 WITHDRAWAL OPTIONS (b) (5) Joshua F. Hanson Branch of Public Land Division of Land Resources U. S. Department of the Interior 1849 Street, N.W., Rm. 5525 Washington, DC. 20240 Phone: (202)208?3463 Email: joshua.hanson@sol.doi.gov NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged. con?dential. or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this e-mail to the intended recipient. you are hereby noti?ed that any dissemination. distiibution. copying. or use of this e-mail or its contents is strictly prohibited. If you received this e-mail in error. please notify the sender and destroy all copies. "Hanson, Joshua" From: "Hanson, Joshua" Sent: Mon Feb 13 2017 12:55:10 GMT-0700 (MST) To: "Hawbecker, Karen" Briana Collier "Haugrud, Kevin" "Brown, Laura" cc: Richard McNeer "Moody, Aaron" Subject: Re: Superior Forest Withdrawal and litigation Attachments. 2017.02.13 Withdrawal Options Paperdocx Attachment 1_Map Superior NF Applicationpdf Karen and Briana, Attached is the SOL withdrawal options paper. Aaron has reviewed, but I thought you might like to add your insight as well. Josh On Thu. Feb 9. 2017 at 10:10 AM. Hanson. Joshua wrote: WI sen some mg 0 egroup aer ay. On Thu. Feb 9. 2017 at 9:22 AM. Moodv. Aaron wrote: Aaron G. Moody Assistant Solicitor, Branch of Public Lands Division of Land Resources Of?ce of the Solicitor US. Department of the Interior 202-208-3495 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. On Thu, Feb 9. 2017 at 9:08 AM. Hauqrud. Kevin wrote: On Thu, Feb 9, 2017 at 8:29 AM, Moody, Aaron wrote: Hi, Jack: See below. It looks like BLM already started an options paper on the withdrawal. Unless you or anyone else see it differently, I'm thinking we should just work off of BLM's version (it will definitely need some tweaks, but it looks like a good start). Other thoughts? -Aaron Aaron G. Moody Assistant Solicitor, Branch of Public Lands Division of Land Resources Office of the Solicitor US. Department of the Interior 202-208-3495 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. -- Forwarded message From: Mouritsen, Karen Date: Thu, Feb 9,2017 at 7:24 AM Subject: Superior Forest Withdrawal and litigation To: Karen Hawbecker Aaron Moody , Briana Collier , Joshua Hanson Cc: Elena Fink , Mitchell Leverette , Alfred Elser , Michael Nedd , "Claypool, Larry" , Barbara Eggers Hi SOL, Elena has prepared some options for addressing the withdrawal in the Superior National Forest. That is pasted in this email and also attached Can you look at this and make sure we haven't misstated any of the regulatory or legal issues here? I know we need to better address option C in the paper. The other papers are also attached. I also would like to try to arrange a meeting with you all, for Friday afternoon or Monday, to discuss the litigation on the two leases. Would any of you be available at 3 pm Eastern on Friday? I am in Phoenix so I would call you from here. If that doesn't seem possible, Elena, would you call Briana or Josh and figure something out. Thank you for your help, Karen Karen Mouritsen State Director Eastern States Office 202-912-7701 ---------- Forwarded message ---------From: Karen Mouritsen Date: Wed, Feb 8, 2017 at 2:39 PM Subject: Fwd: Withdrawal Options To: nedouglas@fs.fed.us, gcasamassa@fs.fed.us, pjohnson02@fs.fed.us, Michael Nedd , Elena Fink , Barbara Eggers , lclaypoo@blm.gov, Mitchell Leverette , aelser@blm.gov, Kathleen -FS Atkinson , civerson@fs.fed.us Per discussion. We will find out more on option C. Karen Mouritsen State Director Bureau of Land Management, Eastern States Office Cell 202-329-2030 WITHDRAWAL OPTIONS (b) (5) -- Joshua F. Hanson Branch of Public Land Division of Land Resources U. S. Department of the Interior 1849 C Street, N.W., Rm. 5525 Washington, D.C. 20240 Phone: (202)208-3463 Email: joshua.hanson@sol.doi.gov NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this e-mail to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you received this e-mail in error, please notify the sender immediately and destroy all copies. -- Joshua F. Hanson Branch of Public Land Division of Land Resources U. S. Department of the Interior 1849 C Street, N.W., Rm. 5525 Washington, D.C. 20240 Phone: (202)208-3463 Email: joshua.hanson@sol.doi.gov NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this e-mail to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you received this e-mail in error, please notify the sender immediately and destroy all copies. "Hanson, Joshua" From: Sent: To: CC: Subject: Attachments: "Hanson, Joshua" Wed Feb 15 2017 14:00:25 GMT-0700 (MST) "Hawbecker, Karen" , Briana Collier "Haugrud, Kevin" , "Brown, Laura" , Richard McNeer , "Moody, Aaron" Re: Superior Ntl Forest Withdrawal and litigation 2017.02.15 Withdrawal Options Paper.docx Attachment 1_Map Superior NF Application.pdf Withdrawal.OPTIONS.draft.8Feb2017 - jfh.docx Jack, Karen, and Briana, Attached is the final internal SOL withdrawal options paper and a map of the proposed withdrawal. Also included are the DLR edits to the BLM withdrawal options bullets. . Please let me know if you have add: Iona IS 0 a paper, WI prow ose comments back to Karen Mouritsen. Josh On Mon, Feb 13, 2017 at 2:55 PM, Hanson, Joshua wrote: Karen and Briana, Attached is the SOL withdrawal options paper. Aaron has reviewed, but I thought you might like to add your insight as well. Josh On Thu, Feb 9, 2017 at 10:10 AM, Hanson, Joshua wrote: I can incorporate the BLM bullets and Aaron and Jack's comments into the memo that was already working on. I will send something to the group later today. On Thu, Feb 9, 2017 at 9:22 AM. Moodv, Aaron wrote: Aaron G. Moody Assistant Solicitor, Branch of Public Lands Division of Land Resources Office of the Solicitor US. Department of the Interior 202-208-3495 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. On Thu, Feb 9, 2017 at 9:08 AM, Haugrud, Kevin wrote: On Thu, Feb 9, 2017 at 8:29 AM, Moody, Aaron wrote: Hi, Jack: See below. It looks like BLM already started an options paper on the withdrawal. Unless you or anyone else see it differently, I'm thinking we should just work off of BLM's version (it will definitely need some tweaks, but it looks like a good start). Other thoughts? -Aaron Aaron G. Moody Assistant Solicitor, Branch of Public Lands Division of Land Resources Of?ce of the Solicitor US. Department of the Interior 202-208-3495 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. -- Forwarded message From: Mouritsen, Karen Date: Thu, Feb 9,2017 at 7:24 AM Subject: Superior Forest Withdrawal and litigation To: Karen Hawbecker Aaron Moody Briana Collier Joshua Hanson Cc: Elena Fink Mitchell Leverette Alfred Elser Michael Nedd "Claypool, Larry" Barbara Eggers Hi SOL, Elena has prepared some options for addressing the withdrawal in the Superior National Forest. That is pasted in this email and also attached Can you look at this and make sure we haven't misstated any of the regulatory or legal issues here? I know we need to better address option in the paper. The other papers are also attached. I also would like to try to arrange a meeting with you all, for Friday afternoon or Monday, to discuss the litigation on the two leases. Would any of you be available at 3 pm Eastern on Friday? I am in Phoenix so I would call you from here. If that doesn't seem possible, Elena, would you call Briana or Josh and ?gure something out. Thank you for your help, Karen Karen Mouritsen State Director Eastern States Office 202-912-7701 ---------- Forwarded message ---------From: Karen Mouritsen Date: Wed, Feb 8, 2017 at 2:39 PM Subject: Fwd: Withdrawal Options To: nedouglas@fs.fed.us, gcasamassa@fs.fed.us, pjohnson02@fs.fed.us, Michael Nedd , Elena Fink , Barbara Eggers , lclaypoo@blm.gov, Mitchell Leverette , aelser@blm.gov, Kathleen -FS Atkinson , civerson@fs.fed.us Per discussion. We will find out more on option C. Karen Mouritsen State Director Bureau of Land Management, Eastern States Office Cell 202-329-2030 WITHDRAWAL OPTIONS (b) (5) (b) (5) e -- Joshua F. Hanson Branch of Public Land Division of Land Resources U. S. Department of the Interior 1849 C Street, N.W., Rm. 5525 Washington, D.C. 20240 Phone: (202)208-3463 Email: joshua.hanson@sol.doi.gov NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this e-mail to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you received this e-mail in error, please notify the sender immediately and destroy all copies. -- Joshua F. Hanson Branch of Public Land Division of Land Resources U. S. Department of the Interior 1849 C Street, N.W., Rm. 5525 Washington, D.C. 20240 Phone: (202)208-3463 Email: joshua.hanson@sol.doi.gov NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this e-mail to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you received this e-mail in error, please notify the sender immediately and destroy all copies. -- Joshua F. Hanson Branch of Public Land Division of Land Resources U. S. Department of the Interior 1849 C Street, N.W., Rm. 5525 Washington, D.C. 20240 Phone: (202)208-3463 Email: joshua.hanson@sol.doi.gov NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this e-mail to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you received this e-mail in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:28 PM Conversation Contents Boundary Waters Canoe Area Wilderness Attachments: /190. Boundary Waters Canoe Area Wilderness/1.1 Feb_15_2017ActingSecDOILTR.pdf Rebecca Rom From: Sent: To: CC: Subject: Attachments: Rebecca Rom Wed Feb 15 2017 12:06:31 GMT-0700 (MST) Jack Haugrud Karen Mouritsen , Tom Tidwell , Tina Bailey , Kathleen Atkinson , Connie Cummins , Richard Periman Boundary Waters Canoe Area Wilderness Feb_15_2017ActingSecDOILTR.pdf Dear Acting Secretary Haugrud - Please see the attached letter from Sportsmen for the Boundary Waters concerning the Boundary Waters Canoe Area Wilderness. Becky Rom National Chair, Sportsmen for the Boundary Waters Ely, MN 55731 218.297.0360 (home) (mobile) (b) (6) Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:28 PM Conversation Contents Agenda for Weekly Meeting Attachments: /191. Agenda for Weekly Meeting/1.1 2017.02.15 Agenda.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Tue Feb 14 2017 17:13:42 GMT-0700 (MST) Jack Haugrud Tom Bovard , Dennis Daugherty , Richard McNeer Agenda for Weekly Meeting 2017.02.15 Agenda.docx Jack, I've attached our agenda for your reference. It's longer than we have time. We're interested in keeping you apprised of the many developments, but we don't want to tax your time either. Please let us know if you'd rather that we give you email updates on more items and minimize the agenda items for our weekly meeting. For now, we'll try to be brief to cover as much as we can in the hour we have tomorrow. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:28 PM Conversation Contents Twin Metals "Williams, Jean (ENRD)" From: Sent: To: Subject: "Williams, Jean (ENRD)" Tue Feb 14 2017 08:38:00 GMT-0700 (MST) "jack.haugrud@sol.doi.gov" Twin Metals We have agency agreement and Marissa should be filing for the extension today. Jean E. Williams Deputy Assistant Attorney General Environment and Natural Resources Division U.S. Department of Justice (202) 305-0228 CONFIDENTIALITY NOTICE: This communication may contain law enforcement sensitive, privileged attorney/client communications or work product, and is not subject to disclosure. It is solely for the use of the intended recipients. Unauthorized interception, review, use or disclosure is prohibited. If you believe that you have received this e-mail in error, please notify the sender immediately, and permanently delete the email, any attachments, and all copies from your computer. "Haugrud, Kevin" From: Sent: To: Subject: "Haugrud, Kevin" Tue Feb 14 2017 08:55:28 GMT-0700 (MST) "Williams, Jean (ENRD)" Re: Twin Metals Great, thanks for following up. On Tue, Feb 14, 2017 at 10:38 AM, Williams, Jean (ENRD) wrote: We have agency agreement and Marissa should be filing for the extension today. Jean E. Williams Deputy Assistant Attorney General Environment and Natural Resources Division U.S. Department of Justice (202) 305-0228 CONFIDENTIALITY NOTICE: This communication may contain law enforcement sensitive, privileged attorney/client communications or work product, and is not subject to disclosure. It is solely for the use of the intended recipients. Unauthorized interception, review, use or disclosure is prohibited. If you believe that you have received this e-mail in error, please notify the sender immediately, and permanently delete the email, any attachments, and all copies from your computer. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:31 PM Conversation Contents DMR Friday List Attachments: /193. DMR Friday List/1.1 2017.02.10 DMR Friday Updates to Weekly Report.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Fri Feb 10 2017 14:16:53 GMT-0700 (MST) Jack Haugrud Tom Bovard , Dennis Daugherty , Richard McNeer DMR Friday List 2017.02.10 DMR Friday Updates to Weekly Report.docx Jack, I've attached our Friday list for your reference. I hope to see you on Monday. Have a good weekend. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:31 PM Conversation Contents Twin Metals SOL Transition Team Briefing Paper Attachments: /194. Twin Metals SOL Transition Team Briefing Paper/1.1 2017.02.09 Twin Metals Litigation briefing.docx "Hawbecker, Karen" From: Sent: To: CC: Subject: Attachments: "Hawbecker, Karen" Thu Feb 09 2017 16:40:09 GMT-0700 (MST) Jack Haugrud Richard McNeer Twin Metals SOL Transition Team Briefing Paper 2017.02.09 Twin Metals Litigation briefing.docx Jack, We've prepared the attached briefing paper to introduce the topic of the Twin Metals litigation to the SOL transition team. We're also working on an options paper, as we discussed yesterday. I wanted to give you an opportunity to review this briefing paper before we share it with the transition team in advance of scheduling a meeting. I also want to get your views on whether we should go ahead with scheduling an initial briefing about the litigation before we complete the options paper or whether it would be best to hold off scheduling anything until the options paper is ready. Thanks. --Karen Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:32 PM Conversation Contents Fwd: Superior withdrawal pb w/2 attachments Attachments: /196. Fwd: Superior withdrawal pb w/2 attachments/1.1 Briefing Memo_Superior NF_Withdrawal_02.02.17.docx /196. Fwd: Superior withdrawal pb w/2 attachments/1.2 Attachment 2_Current and Pending Mineral Actionsv3.docx /196. Fwd: Superior withdrawal pb w/2 attachments/1.3 Attachment 1_Map Superior NF Application.pdf "Moody, Aaron" From: Sent: To: Subject: Attachments: "Moody, Aaron" Wed Feb 08 2017 08:26:03 GMT-0700 (MST) Kevin Haugrud Fwd: Superior withdrawal pb w/2 attachments Briefing Memo_Superior NF_Withdrawal_02.02.17.docx Attachment 2_Current and Pending Mineral Actionsv3.docx Attachment 1_Map Superior NF Application.pdf Aaron G. Moody Assistant Solicitor, Branch of Public Lands Division of Land Resources Office of the Solicitor U.S. Department of the Interior 202-208-3495 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. ---------- Forwarded message ---------From: Michael Nedd Date: Tue, Feb 7, 2017 at 3:04 PM Subject: Fwd: Superior withdrawal pb w/2 attachments To: Karen Mouritsen , Nick Douglas , Mitchell Leverette@blm.gov, efink@blm.gov Cc: Aaron Moody , Karen Hawbecker , Larry Claypool Karen/Elena and Nick, Here is the BP previously used to brief the DOI leadership and as discussed, we would appreciate you all working together to come up with an updated BP with respect to Withdrawal options. Please don't hesitate to contact me if you have questions. We would also appreciate receiving the updated BP by cob Thursday. Take care and have wonderful day! :-))) MDN 202-208-4201 A thought to consider "Do all the good you can, in all the ways you can, for all the people you can, while you can!" Sent from my mobile device, please excuse any typos. Onshore Federal Oil Regulations 2011-2017 Regulations Final Effective Date Internet Based Action Rule 08/31/2016 Minerals Management: Adjustment of Cost Recovery Fees 11/22/2016 Onshore Oil and Gas Operations: Federal and Indian Oil and Gas leases; Site Security (Replaces Onshore Order #3) 01/17/2017 Onshore Oil and Gas Operations: Federal and Indian Oil and Gas Leases; Measurement of Oil (Replaces Onshore Order #4) 01/17/2017 Onshore Oil and Gas Operations: Federal and Indian Oil and Gas Leases; Measurement of Gas (Replaces Onshore Order #5) 01/17/2017 Waste Prevention, Production Subject to Royalties, and Resource Conservation Rule (Replaces NTL-4A) 01/17/2017 Onshore Oil and Gas Operations: Annual Civil Penalties Inflation Adjustments 01/19/2017 Regulations Pending Hydraulic Fracturing on Federal and Indian Lands; Oil and Gas **under litigation Published Date Published 03/30/2015 Onshore Oil and Gas Operations: Federal and Indian Oil and Gas leases; Onshore Oil and Gas Order Number 1, Approval of Operations (Replaces Onshore Order #1) Published 01/10/2017 *delayed effective date 1 Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:33 PM Conversation Contents Fwd: Twin Metals Attachments: /198. Fwd: Twin Metals/1.1 Attachment 1_Map Superior NF Application (1).pdf /198. Fwd: Twin Metals/1.2 Attachment 2_Current and Pending Mineral Actionsv3.docx /198. Fwd: Twin Metals/1.3 Briefing Memo_Superior NF_Withdrawal_02.02.17.docx "Moody, Aaron" From: Sent: To: CC: Subject: Attachments: "Moody, Aaron" Thu Feb 02 2017 14:55:21 GMT-0700 (MST) Kevin Haugrud , "Brown, Laura" , James Schindler , "Keable, Edward" "Hawbecker, Karen" Fwd: Twin Metals Attachment 1_Map Superior NF Application (1).pdf Attachment 2_Current and Pending Mineral Actionsv3.docx Briefing Memo_Superior NF_Withdrawal_02.02.17.docx AllBelow is a summary of the recent meeting on the Twin Metals issue, along with BLM's most recent briefing papers on the topic. Forwarding on behalf of Karen, who's out today. Hope this helps. -Aaron Aaron G. Moody Assistant Solicitor, Branch of Public Lands Division of Land Resources Office of the Solicitor U.S. Department of the Interior 202-208-3495 NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. ---------- Forwarded message ---------From: Hanson, Joshua Date: Wed, Feb 1, 2017 at 6:02 PM Subject: Re: Twin Metals To: Karen Hawbecker Cc: "Collier, Briana" "Moody, Aaron" Karen, Today Briana and I met with Acting BLM Deputy Director Jerry Perez, AD-300 Mike Nedd, and BLM-ES State Director Karen Mouritsen (via phone) to bring Jerry up to speed on the Superior National Forest withdrawal application, the issues surrounding the typo in the federal register notice, and the litigation surrounding the 1966 leases. Karen M. gave an overview of all of the issues. The maioritv of the subsequent discussion centered aroun n. a mg to other folks that From our meeting and from Briana's conversation with Justin Katusak from BLM ESO this afternoon, it sounds like the BLM is still working on the brie?ng materials and will be incorporating additional edits from me and from Justin. Attached are the brie?ng paper with your edits and my edits as well as the map and the list of current and pending mineral actions. You may want to wait for the BLM to ?nish their revisions, which I expect we will see tomorrow. I also wonder if Regarding the other Minnesota issues related to the Forest Service's withdrawal application, here is a quick update: - BLM action to denv the renewal of Twin Metals' leases - After denying the lease renewals, the BLM and Twin Metals corresponded regarding the amount of time Twin Metals would have to remove structures and equipment and to reclaim disturbed surface lands. The BLM recognized that Twin Metals would have 180 days under the most recent lease terms. - Status of the Twin Metals litigation - A response to Twin Metals Supplemental and Amended Complaint is due to the court on March 6, 2017. as as propose a pa Ies agree 0 allow Win a 0 con inue WI current exploratory work to maintain current hydro and geological testing but not to drill new boreholes or wells), and not to require the company to remove equipment or begin reclamation, while the litigation is pending. - Administrative Record collection - The USDA OGC, the DOI SOL, and litigation coordinators from BLM and the Forest Service are coordinating on the collection of the administrative record for the pending litigation, which includes Administrative Procedure Act claims. DOI SOL has also prepared a litigation hold letter to be issued to BLM and DOI staff involved with this effort shortly. - Withdrawal application - The Forest Service applied to withdraw 230,000 acres in northern MN from mineral leasing in December 2016, and issued a Federal Register Notice of Intent to publish an EIS in January 2017. The BLM published a Federal Register Notice segregating the withdrawal lands shortly thereafter in January 2017, which contained the date error for the segregation period. - Other exploration and leasing activities in MN - The BLM has issued 31 prospecting permits in the Duluth Complex to Twin Metals and two other companies. Eighteen of these permits have pending extension requests. The BLM also has four preference right lease applications pending, and 24 new prospecting permit applications pending in the area. The BLM has made preliminary determinations on some of the pending applications but has not taken further action. --- Joshua F. Hanson Branch of Public Land Division of Land Resources U. S. Department of the Interior 1849 C Street, N.W., Rm. 5525 Washington, D.C. 20240 Phone: (202)208-3463 Email: joshua.hanson@sol.doi.gov NOTICE: This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this e-mail to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited. If you received this e-mail in error, please notify the sender immediately and destroy all copies. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 14:33 PM Conversation Contents very prelim draft of sol report to the secretary -attached Attachments: /199. very prelim draft of sol report to the secretary -attached/1.1 013117 long version formatted but unedited WEEKLY REPORT TO THE SECRETARY.docx /199. very prelim draft of sol report to the secretary -attached/2.1 013117 long version formatted but unedited WEEKLY REPORT TO THE SECRETARY.docx "Caminiti, Mariagrazia" From: Sent: To: Subject: Attachments: "Caminiti, Mariagrazia" Tue Jan 31 2017 16:13:18 GMT-0700 (MST) Jack Haugrud very prelim draft of sol report to the secretary -attached 013117 long version formatted but unedited WEEKLY REPORT TO THE SECRETARY.docx I've generally formatted the document compiling all entries by each region and division - you'll notice in navy blue a few entries -these seem to be items that should be on the significant litigation deadline list, so I'll cross check them in the morning. If they are, I'll remove them here and if they aren't, and should be added, I'll move them to that document. To give you the most amount of time to review, I'm attaching the longer draft here. To save work, if you're okay with me sharing the compiled doc with mid and upper-level managers rather than doing the Kim pass-around of the individual reports, we can incorporate that into the weekly sharing process. I'll be in bright and early to finalize this and turn to the sig lit report. mg -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. "Caminiti, Mariagrazia" From: Sent: To: Subject: Attachments: "Caminiti, Mariagrazia" Tue Jan 31 2017 16:13:42 GMT-0700 (MST) Edward T Keable , Jack Haugrud Fwd: very prelim draft of sol report to the secretary -attached 013117 long version formatted but unedited WEEKLY REPORT TO THE SECRETARY.docx sorry -Ed- meant to include you. mg ---------- Forwarded message ---------From: Caminiti, Mariagrazia Date: Tue, Jan 31, 2017 at 6:13 PM Subject: very prelim draft of sol report to the secretary -attached To: Jack Haugrud I've generally formatted the document compiling all entries by each region and division - you'll notice in navy blue a few entries -these seem to be items that should be on the significant litigation deadline list, so I'll cross check them in the morning. If they are, I'll remove them here and if they aren't, and should be added, I'll move them to that document. To give you the most amount of time to review, I'm attaching the longer draft here. To save work, if you're okay with me sharing the compiled doc with mid and upper-level managers rather than doing the Kim pass-around of the individual reports, we can incorporate that into the weekly sharing process. I'll be in bright and early to finalize this and turn to the sig lit report. mg -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. -- Marigrace Caminiti Executive Assistant to the Solicitor US Department of the Interior 1849 C Street, NW, Rm. 6352 Washington, DC 20240 202-208-4423 - main number 202-208-3111 - direct 202-208-5584 - fax 202-528-0486 or 202-359-2949 -cell/wcell ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ NOTICE: This electronic mail message (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this message or its contents is strictly prohibited. If you receive this Message in error, please notify the sender immediately and destroy all copies. DRAFT Privileged and Confidential November 22, 2017 DRAFT Privileged and Confidential November 22, 2017 DRAFT Privileged and Confidential November 22 2017 DRAFT Privileged and Confidential November 22 2017 DRAFT Privileged and Confidential November 22 2017 DRAFT Privileged and Confidential November 22 2017 DRAFT Privileged and Confidential November 22 2017 DRAFT Privileged and Confidential November 22 2017 DRAFT Privileged and Confidential November 22 2017 DRAFT Privileged and Confidential November 22 2017 DRAFT Privileged and Confidential November 22 2017 DRAFT Privileged and Confidential November 22 2017 DRAFT Privileged and Confidential November 22 2017 DRAFT Privileged and Confidential November 22 2017 DRAFT Privileged and Confidential November 22 2017 DRAFT Privileged and Confidential November 22 2017 DRAFT Privileged and Confidential November 22 2017 DRAFT Privileged and Confidential November 22 2017 DRAFT Privileged and Confidential November 22, 2017 DRAFT Privileged and 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the Assistant Secretary, Land and Minerals Management (b) (6) PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING 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PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION Date: January 12, 2018 To: Jack Haugrud Deputy Solicitor, Energy and Mineral Resources From: Tom Bovard Acting Associate Solicitor, Mineral Resources Subject: DMR Friday Updates to Weekly Report Below is a list of new or updated items that did not appear in the weekly report that may require the attention of the front office during the week of January 8-12, 2018, or thereafter: Significant Decisions: ● (b) (6) Litigation: ● (b) (6) ● (b) (6) ● (b) (6) (b) (6) ● (b) (6) Legislation: ● Nothing to report. Correspondence/Agency Actions: ● (b) (6) ● (b) (6) 2 Meetings: cc: Karen Hawbecker/Richard McNeer/Dennis Daugherty DRAFT AT TORNEY-CLIENT NOT RELEASE CASE 0:16-cv-03042-SRN-LIB Document 132 Filed 01/09/18 Page 1 of 1 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA FRANCONIA MINERALS (US) LLC; and TWIN METALS MINNESOTA LLC, Civil Action No. 16-3042 (SRN/LIB) Plaintiffs, v. ORDER DISMISSING CASE UNITED STATES OF AMERICA, et al., Defendants, and NORTHEASTERN MINNESOTANS FOR WILDERNESS, Defendant-Intervenor. Based upon the Notice of Dismissal filed by the Plaintiff herein [Doc. No. 130], and upon all of the files, records, and proceedings in this matter, the Court orders this case to be dismissed without prejudice and without costs or disbursements to any party. LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: January 9, 2018 s/Susan Richard Nelson SUSAN RICHARD NELSON United States District Judge CASE 0:16-cv-03042-SRN-LIB Document 132 Filed 01/09/18 Page 1 of 1 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA FRANCONIA MINERALS (US) LLC; and TWIN METALS MINNESOTA LLC, Civil Action No. 16-3042 (SRN/LIB) Plaintiffs, v. ORDER DISMISSING CASE UNITED STATES OF AMERICA, et al., Defendants, and NORTHEASTERN MINNESOTANS FOR WILDERNESS, Defendant-Intervenor. Based upon the Notice of Dismissal filed by the Plaintiff herein [Doc. No. 130], and upon all of the files, records, and proceedings in this matter, the Court orders this case to be dismissed without prejudice and without costs or disbursements to any party. LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: January 9, 2018 s/Susan Richard Nelson SUSAN RICHARD NELSON United States District Judge CASE 0:16-cv-03042-SRN-LIB Document 130 Filed 12/22/17 Page 1 of 2 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA FRANCONIA MINERALS (US) LLC; and TWIN METALS MINNESOTA LLC, Plaintiffs, v. UNITED STATES OF AMERICA, et al., Civil Action No. 16-3042 SRN/LIB Defendants, and NORTHEASTERN MINNESOTANS FOR WILDERNESS, Defendant-Intervenor. PLAINTIFFS’ NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), plaintiffs Franconia Minerals (US) LLC and Twin Metals Minnesota LLC file this notice voluntarily dismissing this action without prejudice. By this notice, dismissal of this action without prejudice is effective immediately. Fed. R. Civ. P. 41(a)(1)(A)(i); Adams v. USAA Cas. Ins. Co., 863 F.3d 1069, 1080 (8th Cir. 2017) (“Rule 41(a)(1) cases require no judicial approval or review as a prerequisite to dismissal; in fact, the dismissal is effective upon filing, with CASE 0:16-cv-03042-SRN-LIB Document 130 Filed 12/22/17 Page 2 of 2 no court action required.”); Williams v. Clarke, 82 F.3d 270, 272 (8th Cir. 1996) (“[A] notice of dismissal … operates as a matter of right upon notice to the court, and permission of the court is not required.”). Respectfully submitted, Dated: December 22, 2017 /s/ Daniel S. Volchok PAUL R.Q. WOLFSON (D.C. Bar #414759) (pro hac vice) DANIEL S. VOLCHOK (D.C. Bar #497341) (pro hac vice) ALBINAS J. PRIZGINTAS (D.C. Bar #1006955) (pro hac vice) WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Ave. N.W. Washington, D.C. 20006 Tel.: (202) 663-6000 Fax: (202) 663-6363 MICHAEL J. P. HAZEL (Colo. Bar #49451) (pro hac vice) WILMER CUTLER PICKERING HALE AND DORR LLP 1225 17th St., Suite 2600 Denver, Colorado 80202 Tel.: (720) 274-3135 Fax: (720) 274-3133 STEVEN J. WELLS (Atty. #163508) I. DANIEL COLTON (Atty. #223116) MARK R. KASTER (Atty. #159517) DORSEY & WHITNEY LLP 50 South Sixth St., Suite 1500 Minneapolis, Minnesota 55402 Tel.: (612) 340-2600 Fax: (612) 340-2868 -2- ATTORNEY CLIENT COMMUNICATION ATTORNEY WORK PRODUCT CONFIDENTIAL AND PRIVILEGED BUREAU: Of?ce ofthe Solicitor OFFICE: Division of Indian A??airs ISSUE: Grant of Ce rtiorari in Zapper Skagit Indian Tribe v. Lundgren (S. Ct.) Ke Points: Background: E: Prepared by: Eric Shepard. Associate Solicitor. Division of Indian Affairs. 202?208?3233 Date: December 29, 2017 NOTICE: SLIP OPINION (not the court’s final written decision) The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. ?3 tin Th 3 opinion was filed for record at on% SUSAN L. CARLSON SUPREME COURT CLERK IN THE SUPREME COURT OF THE STATE OF WASHINGTON -- In mun om? FEB 152w SHARLINE LUNDGREN and RAY LUNDGREN, wife and husband, No. 91622-5 Respondents, i V. i En Banc UPPER SKAGIT INDIAN TRIBE, Appellant. Filed FEB 1 201? JOHNSON, .?This case involves the relationship between in rem jurisdiction, Superior Court Civil Rule (CR) 19, and sovereign immunity. The issue is whether the Upper Skagit Indian Tribe?s (Tribe) assertion of sovereign immunity requires dismissal of an in rem adverse possession action to quiet title to a disputed strip of land on the boundary of property purchased by the Tribe. The superior court concluded that because it had in rem jurisdiction, it could determine ownership of the land without the Tribe?s participation. An inquiry under CR 19, as required by our cases, involves a merit-based determination that some interest will be adversely affected in the litigation. Where no interest is found to exist, especially in an in rem proceeding, nonj oinder presents no jurisdictional barriers. Lundgren v. Upper Skagz't Indian Tribe, No. 91622-5 We find that the Tribe does not have an interest in the disputed property; therefore, the Tribe?s sovereign immunity is no barrier here to this in rem proceeding. The trial court properly denied the Tribe?s motion to dismiss and granted summary judgment to the property owner. We affirm. FACTS AND PROCEDURAL HISTORY Sharline and Ray Lundgren and the Tribe own adjacent properties in Skagit County, Washington. A barbed wire fence runs along the southern portion of the Tribe?s land. The fence spans the width of the Tribe?s lot, with a gate approximately halfway along the fence line. The land between the fence and the southern boundary of the Tribe?s lot is the land at issue in this case. For ease of reference, we refer to this land as the ?disputed property.? The Lundgrens bought the 10 acres of land immediately south of the disputed property in 1981. The property had been in their extended family since 1947, when Sharline Lundgren?s grandmother first bought the property. The Lundgrens established that the fence on the disputed property has been in the same location since at least 1947, and that for as long as their property has been in the family, they have treated the fence as the boundary line. Since 1947, the Lundgren family exclusively has harvested timber, cleared brush, kept the fence clear of fallen trees, and treated the disputed property on the southern side of the fence as their own. Lundgren v. Upper Skagit Indian Tribe, No. 91622-5 The Tribe?s land had been previously owned by Annabell Brown for many decades. In 1984, she quitclaimed a 1/4 undivided interest in the property to her son David Brown. Upon her death, the rest of the property passed to her other children, Paul Brown, Vivian Jennings, and Barbara Carrell. In 2013 the Tribe bought the property from Paul Brown, Jennings, and Carrell, receiving a statutory warranty deed. The Tribe was evidently unaware of the fence when it purchased the property. The Tribe?s surveyors alerted the Tribe to the presence of the fence in October 2013 while surveying the property ?in an effort to take the land into Trust.? Clerk?s Papers (CP) at 1 15. In September 2014, the Tribe notified the Lundgrens in a letter that the fence did not represent the boundary and that they were asserting ownership rights to the entire property deeded to them in 2013. The Lundgrens initiated this lawsuit in March 2015. They asked the court to quiet title in the disputed property to them and sought injunctive relief. The Lundgrens moved for summary judgment, arguing they acquired title to the disputed property by adverse possession or by mutual recognition and acquiescence long before the Tribe bought the land. The Tribe moved to dismiss under CR 12(b)(1) for a lack of subject matter jurisdiction based on the Tribe?s Lundgren v. Upper Skagit Indian Tribe, No. 91622?5 sovereign immunity and under CR which requires joinder of a necessary and indispensable party under CR 19.2 In the trial court, Judge Dave Needy denied the Tribe?s motion to dismiss. The Tribe moved for direct discretionary review of this ruling. Judge Susan Cook later granted the Lundgrens? motion for summary judgment, holding the Lundgrens? ?claims of title ownership by adverse possession and mutual recognition and acquiescence is established. Legal title to the disputed property is owned by Plaintiffs.? CP at 159. Judge Cook noted that the fence was not hidden. Both parties 1 ?How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross claim, or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defense[] may at the option of the pleader be made by motion: . . . (7) failure to join a party under 19.? 2 Persons to Be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person?s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person?s absence may (A) as a practical matter impair or impede the person?s ability to protect that interest or (B) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the person?s claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and the person?s joinder would render the venue of the action improper, the joined party shall be dismissed from the action. Determination by Court Whenever oinder Not Feasible. If a person joinable under (1) or (2) of section hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered I by the court include:(l) to what extent a judgment rendered in the persons absence might be prejudicial to the person or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person?s absence will be adequate; (4) whether the plaintiff will have an adequate remedy if the action is dismissed for nonj oinder.? Lundgren Upper Skagit Indian Tribe, No. 91622?5 recognized the fence as the boundary line and that it had clearly been on the property for much longer than the necessary 10 years. She noted that the Lundgrens? labor on the property was established by numerous witness declarations. Importantly, she stated that ?this is as clear as a case as I?ve had on the bench.? Verbatim Report of Proceedings (VRP) (May 7, 2015) at 20. The Tribe amended its motion for discretionary review to seek review of both Judge Needy?s and Judge Cook?s orders. We accepted direct review. See Order, Lundgren Upper Skagz't Indian ribe, No. 91622?5 (Wash. Feb. 10, 2016). ANALYSIS The superior court concluded that because it had in rem jurisdiction, it could determine ownership of the land without the Tribe?s participation. See VRP (Apr. 24, 2015) at 24. While it recognized it could not join the Tribe against its will, the court found the Tribe?s attempt to use CR 19 to be ?contrary to common sense, fairness, and due process for all involved.? VRP (Apr. 24, 2015) at 32. The Tribe argues that dismissal is required for two reasons. First, it argues the superior court lacks jurisdiction because the Tribe has sovereign immunity from suit, which neither the Tribe nor Congress has waived for quiet title actions. See Appellant?s Opening Br. at 10. The Tribe differentiates between an in rem claim and in rem jurisdiction, asserting that ?jurisdiction in this case can only lie if the Court has both subject matter jurisdiction and personal jurisdiction over the claims and parties. Lundgren v. Upper Skagit Indian Tribe, No. 91622-5 Thus, the mere fact of an in rem claim does not affect or somehow avoid threshold jurisdictional questions such as sovereign immunity.? Appellant?s Reply Br. at 5. Second, it argues that even if the lower court had in rem jurisdiction to hear the case, CR 19 requires dismissal because the Tribe is a necessary and indispensable party that cannot be joined due to sovereign immunity. See Appellant?s Opening Br. at 24?30; Appellant?s Reply Br. at 1. The Lundgrens acknowledge that the Tribe has sovereign immunity. Resp?ts? Br. at 6 (?The Lundgrens admit that the Tribe is entitled to sovereign immunity?). They argue that because the court has in rem jurisdiction over the quiet title action, personal jurisdiction over the Tribe is unnecessary and its immunity is irrelevant. They also assert that because they obtained title by adverse possession before the Tribe purchased the property, ?[t]he Tribe?s sovereign immunity does not deprive the court of jurisdiction over land the Tribe never owned.? Resp?ts? Br. at 23. With regard to CR 19, the Lundgrens argue, ?[b]ecause the Court has in rem jurisdiction, sovereign immunity is not a bar to jurisdiction, the Tribe is not an indispensable party, and Civil Rule 19 does not prevent the case from proceeding.? Resp?ts? Br. at 29. Lundgren v. Upper Skagit Indian Tribe, No. 91622?5 I. In Rem Jurisdiction Superior courts in Washington have jurisdiction to exercise in rem jurisdiction to settle disputes over real property.3 Quiet title actions are proceedings in rem. Phillips v. Tompson, 73 Wash. 78, 82, 131 P. 461 (1913); see also 14 KARL B. TEGLAND, WASHINGTON PRACTICE: CIVIL PROCEDURE 5:1, at 155 (2d ed. 2009). In such proceedings, the court has jurisdiction over the property itself. See TEGLAND, supra. Personal jurisdiction over the landowner is not required. In re Acquisition of Land Other Prop. by City of Seattle, 56 Wn.2d 541, 544?45, 353 P.2d 955 (1960); see also In re Condemnation Petition City of 118 Wn. App. 674, 679 11.2, 77 P.3d 378 (2003) (noting that quiet title actions are proceedings in which the court can exercise in rem jurisdiction, and that ?[c]ourts may have jurisdiction to enter judgment with respect to property . . . located within the boundaries of the state, even if personal jurisdiction has not been obtained over the persons affected by the judgment?). A court exercising in rem jurisdiction is not necessarily deprived of its jurisdiction by a tribe?s assertion of sovereign immunity. The United States Supreme Court has recognized this principle. In County of Yakima v. Confederated 3 Article IV, section 6 of the Washington Constitution expressly establishes that our state?s superior courts ?shall have original jurisdiction in all cases at law which involve the title or possession of real property.? See also RCW 2.08.010. Lundgren 12. Upper Skagit Indian Tribe, No. 91622-5 Tribes Bands onakima Indian Nation, 502 U.S. 251, 255, 112 S. Ct. 683, 116 L. Ed. 2d 687 (1992), the county sought to foreclose property within the Yakama Indian Reservation for failure to pay ad valorum taxes. The Yakama Nation argued that state jurisdiction could not be asserted over fee-patented reservation land. The Supreme Court held that the Indian General Allotment Act allowed Yakima County to impose ad valorum taxes on reservation land. 25 U.S.C. 334-381. The Court reached that conclusion by characterizing the county?s assertion of jurisdiction over the land as in rem, rather than an assertion of in personam jurisdiction over the Yakama Nation. In other words, the Court had jurisdiction to tax on the basis of alienability of the allotted lands, and not on the basis of jurisdiction over tribal owners. See Anderson Middleton Lumber Co. v. Quinault Indian Nation, 130 Wn.2d 862, 869-72, 929 P.2d 379 (1996) (describing County of Yakima, 502 US. 251). This court has similarly upheld a superior court?s assertion of in rem jurisdiction over tribally owned fee-patented land. In Anderson, this court held that the Grays Harbor County Superior Court had in rem jurisdiction over an action to partition and quiet title to fee?patented lands within the Quinault Indian Reservation. In that case, the Quinault Indian Nation purchased a 1/6 interest in the surface estate of fee-patented land subject to a pending suit to partition and to a lis Lundgren v. Upper Skagir Indian Tribe, No. 91622-5 pendens. Relying on County of Yakima, and noting that an action to partition and quiet title is ?a much less intrusive assertion of state jurisdiction over reservation fee patented land? than taxing and foreclosing fee lands, the court concluded the ?Superior Court had proper in rem jurisdiction over [the] suit to quiet title and partition alienable and encumberable fee patented property situated within the Quinault Indian Reservation. . . . An action for partition of real property is a proceeding in rem.? Anderson, 130 Wn.2d at 872, 873. Furthermore, it was not disputed that the trial court had proper jurisdiction over this action when it was ?led. The subsequent sale of an interest in the property to an entity enjoying sovereign immunity (Quinault Nation) is of no consequence in this case because the trial court?s assertion of jurisdiction is not over the entity in personam, but over the property or, the ?res? in rem. Anderson, 130 Wn.2d at 873. The court was exercising jurisdiction over the property, not over the Quinault Indian Nation, and thus the land was ?subject to a state court in rem action which does nothing more than divide it among its legal owners according to their relative interests.? Anderson, 130 Wn.2d at 873. Because the court determined there was in rem jurisdiction, it did not need to address sovereign immunity. Relying on Anderson, Division One of the Court of Appeals held that the court could exercise in rem jurisdiction in a quiet title action in which the Stillaguamish Tribe of Indians purchased land with notice of a pending quiet title Lundgren v. Upper Skagz't Indian Tribe, No. 91622-5 action. Smale v. Noretep, 150 Wn. App. 476, 208 P.3d 1180 (2009). In Smale, the Smales sought to quiet title to property they claimed to have acquired through adverse possession against Noretep, the non-Indian original owner. After the Smales sued, Noretep sold the property by statutory warranty deed to the Stillaguamish Tribe. The deed noted the pending quiet title action, and the Smales added the Stillaguamish Tribe as a defendant. The Stillaguamish Tribe argued that sovereign immunity barred the action. The court found: Because courts exercise in rem jurisdiction over property subject to quiet title actions, our Supreme Court has held that transferring the disputed property to a tribal sovereign does not bar the continued exercise of subject matter jurisdiction over the property. Accordingly, we hold that the superior court?s continuing jurisdiction over the land claimed by the Smales for the purposes of determining ownership does not offend the Tribe?s sovereignty. Smale, 150 Wn. App. at 477. The court noted, ?The quiet title action in Anderson is similar to the quiet title action here in two crucial ways: both are proceedings in rem to determine rights in the property at issue and neither has the potential to deprive any party of land they rightfully own.? Smale, 150 Wn. App. at 483. The Smales alleged they acquired title to the land via adverse possession before the original owner sold to the Stillaguamish Tribe. If this were true, the Stillaguamish Tribe never possessed the land and thus never had land to lose. Nor were the Smales attempting to 10 Lundgren v. Upper Skagit Indian Tribe, No. 91622?5 adversely possess against a sovereign. The court concluded that, as in Anderson, the doctrine of sovereign immunity did not apply and did not bar the quiet title action. County of Yakima, Anderson, and Smale establish the principle that our superior courts have subject matter jurisdiction over in rem proceedings in certain situations where claims of sovereign immunity are asserted. 11. CR 19 Next, we turn to whether the Tribe must be joined to allow the action to proceed under CR 19. The Tribe asserts that even if the trial court had in rem jurisdiction to hear the case, CR 19 requires dismissal because the Tribe is a necessary and indispensable party that cannot be joined due to sovereign immunity. Appellant?s Opening Br. at 24. We disagree. In reaching our decision, we highlight the importance of CR 19 as a prudential standard that asks not whether a court has the power to decide a case, but rather whether it should. CR 19(a) involves a three-step analysis. Auto. United Trades Org. v. State, 175 Wn.2d 214, 222?23, 285 P.3d 52 (2012). First, the court determines whether absent persons are ?necessary? for a just adjudication. If the absentee parties are ?necessary,? the court determines whether it is feasible to order the absentee?s joinder. oinder is generally not feasible when tribal sovereign immunity is asserted. Auto. United Trades Org, 175 Wn.2d at 222 (citing Equal Emp ?t 11 Lundgren v. Upper Skagit Indian Tribe, No. 91622-5 Opportunity Comm ?n v. Peabody W. Coal Co, 400 F.3d 774, 780?81 (9th Cir. 2005)). ?If oining a necessary party is not feasible, the court then considers whether, ?in equity and good conscience,? the action should still proceed without the absentees under CR Auto. United Trades Org, 175 Wn.2d at 222. We have recognized that ?[d]ismissal under CR 12(b)(7) for failure to join an indispensable party is a ?drastic remedy? and should be ordered only when the defect cannot be cured and signi?cant prejudice to the absentees will result.? Auto. United Trades Org, 175 Wn.2d at 222?23 (citing Gildon v. Simon Prop. Grp., Inc., 158 Wn.2d 483, 494, 145 P.3d 1196 (2006) (citing 7 CHARLES ALAN WRIGHT, ARTHUR R. MILLER MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE 1609, at 130 (3d ed. 2001)). A. ?Necessary? Party A party must be joined if adjudication of the matter in the party?s ?absence may (A) as a practical matter impair or impede the person?s ability to protect that interest or (B) leave any of the persons already parties subject to substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the person?s claimed interest.? CR 19(a). The heart of the rule is the safeguarding of the absent party?s legally protected interest. Auto. United Trades Org, 175 Wn.2d at 223. 12 Lundgren v. Upper Skagit Indian Tribe, No. 91622?5 The Tribe asserts that it has a legally protected interest because it claims record title ownership of the disputed property. Appellant?s Opening Br. at 25. An inquiry under CR 19, as required by our cases, involves a merit-based determination that an interest will be adversely affected in the litigation. In an in rem action, the property at issue is the focus of the proceeding. The nature and end result of an in rem action determines often competing interests in the property. This analysis is in contrast to civil actions, where the nature and end result is relief or judgment. This difference is important here in the context of a legally protected interest because the Lundgrens are not seeking to divest a sovereign of ownership or control. Rather, they are attempting to retain what they already own. Where no interest exists, nonjoinder presents no jurisdictional barriers. While this analysis seems, in a way, to put ?the cart before the horse,? this is the relevant CR 19 analysis. Here, as our cases recognize, and as the trial court found, Sharline and Ray Lundgren acquired ownership by adverse possession long before the property was purchased by the Tribe. To ?nd sovereign immunity, some impact on a sovereign?s interest should exist. No such interest exists in this case. In the trial court, the Tribe challenged the Lundgrens? lawsuit to quiet title and defended l3 Lundgren v. Upper Skagit Indian ribe, No. 91622?5 against the motion for summary judgment.4 The Tribe claimed material issues of fact existed and challenges the summary judgment order here. Considering the facts in the light most favorable to the nonmoving party, we will affirm the trial court?s grant of summary judgment if we determine ?that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.? CR 5 The Lundgrens are entitled to judgment as a matter of law if the undisputed facts establish that the Lundgrens would have succeeded on an adverse possession claim. We hold that they have. To succeed on an adverse possession claim, possession must be open and notorious, (2) actual and uninterrupted, (3) exclusive, and (4) hostile.? I TT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989) (citing Chaplin v. Sanders, 100 Wn.2d 853, 857, 676 P.2d 431 (1984)). ?Possession of the property with each of the necessary concurrent elements must exist for the statutorily prescribed period of 10 years.? ITT Rayonier, Inc., 112 Wn.2d at 757 (citing RCW 4.16.020). Additionally, we have held that title becomes vested when the elements of adVerse possession, speci?cally the 10 year time period, are established. In Gorman v. City of Woodinville, 175 Wn.2d 68, 283 P.3d 1082 (2012), we 4 In rem actions require giving notice to any and all persons or entities who may claim an interest in the property to allow those potential claimants the opportunity to participate in the action and assert their interest. 14 Lundgren v. Upper Skagz'r Indian Tribe, No. 91622-5 recognized this principle. In that case, the claim was asserted and we found that title was acquired before the government purchased the land in question. We held that, as long as the requisites of adverse possession were met before the property was transferred to the government, RCW 4.16.160?which otherwise shields the government from claims of adverse possession?did not control. We found that the quiet title lawsuit against the city could proceed since the legal determination only con?rmed that the claim of adverse possession was satis?ed before the city acquired the property. The principles recognized in Gorman are important here because the Lundgrens? claim is based on the fact that title to the land was acquired long before the Tribe purchased the adjacent land.' The trial court, in granting summary judgment, relied on numerous declarations to ?nd in favor of the Lundgrens. The record establishes that the disputed property has been in the Lundgrens? extended family since 1947, ?rst purchased by Sharline Lundgren?s grandmother. A permanent, visible, 1,306 foot long fence marked the boundary between the two properties for decades. The Tribe argues that evidence exists that ?shows a dispute as to the parties? knowledge of the existence of the fence.? Appellant?s Opening Br. at 34. Annabell Brown?s brother?in?law, Ray Brown, confirmed that both families were aware of the boundary fence and treated it as the property line. The Tribe asserts that Annabell Brown?s son, David Brown, had no idea the fence was there. Assuming this is true, 15 Lundgren v. Upper Skagz'r Indian Tribe, No. 91622?5 David Brown?s lack of knowledge is not material to the legal issue in this case because the Lundgrens? use of the land was suf?cient to satisfy the elements of adverse possession. ?Open? and ?notorious? mean that activities or objects on the land are visible and discoverable, if not actually known, to the true owner. 17 WILLIAM B. STOEBUCK JOHN W. WEAVER, WASHINGTON PRACTICE: REAL ESTATE: PROPERTY LAW 8.11, at 523 (2d ed. 2004). ?[T]he owner is charged with constructive notice of permanent, visible objects placed on the ground, even if they are only upon the land and would be seen to intrude only by scrupulous inspection or even by professional survey.? WEAVER, supra, at 525. The evidence shows that the Lundgrens exclusively possessed and maintained the disputed property. The Tribe asserted no evidence to rebut the testimony that the Lundgrens and their predecessors have gone onto the property, cut trees, trimmed branches, and perhaps mended the fence in the last 70?plus years. Signi?cantly, Judge Cook, in granting summary judgment, stated that ?this is as clear as a case as I?ve had on the bench.? VRP (May 7, 2015) at 20. We find the material facts undisputed and af?rm the entry of order of summary judgment. B. ?Indispensable? Party Because we have found that the Tribe is not a necessary party, we need not continue the CR 19 analysis. However, it is important to note that the principle of indispensability is rooted in equitable considerations. Auto. United Trades Org, l6 Lundgren v. Upper Skagit Indian Tribe, No. 91622-5 175 Wn.2d at 227 (citing Crash)? 12. Spokane County, 137 Wn.2d 296, 309, 971 P.2d 32 (1999)). The central question is whether an action can proceed ?in equity and good conscience.? CR 19(b). The CR 19 inquiry requires ?careful ex?ercise of discretion? and is ??heavily in?uenced by the facts and circumstances of individual cases.? Auto. United Trades Org, 175 Wn.2d at 229 (quoting WRIGHT, MILLER KANE, supra, 1604, at 39). Of importance here is that dismissal would result in no adequate remedy for the plaintiff. Because of a strong aversion to dismissal, great weight is given to this factor. There is no alternative judicial forum for the Lundgrens. See Wash. Supreme Court oral argument, Lundgren 12. Upper Skagit Indian Tribe, No. 91622-5 (June 9, 2016), at 11 min., 42 sec. to 12 min., 07 sec., audio recording by TVW, Washington State?s Public Affairs Network, (explaining that although there is a tribal court, ?the Upper Skagit Indian Tribe has not waived its sovereign immunity from suit in its tribal court, so there would not be a claim in the Upper Skagit Tribal Court to be brought by the plaintiffs?). The purpose of CR 19 is to serve ??complete justice?? by permitting disputes to go forward only when all parties are present to defend their claims. Auto. United Trades Org, 175 Wn.2d at 233. But as we stated in Automotive United Trades Organization, ??complete justice? may not be served when a plaintiff is divested of all possible relief because an absent party is a sovereign.? 175 Wn.2d at 233. In 17 Lundgren v. Upper Skagit Indian Tribe, N0. 91622-5 this instance, dismissal leads to no justice at all. In Automotive United Trades Organization, we emphasized that sovereign immunity is meant to be raised as a shield by a tribe, not as a sword. Here, a survey of the property was done a month after the property was deeded to the Tribe. See Appellant?s Opening Br. at 5?6. A survey of the property before purchase would have disclosed the existence of the fence and at minimum put a purchaser on notice to determine the property boundaries. The Lundgrens had acquired title by adverse possession decades before the Tribe acquired record title in 2013. After the Lundgrens commenced the quiet title action, the Tribe claimed sovereign immunity and joinder under CR 19 to deny the Lundgrens a forum to acquire legal title to property they rightfully own. The Tribe has wielded sovereign immunity as a sword in disguise. While we do not minimize the importance of tribal sovereign immunity, allowing the Tribe to employ sovereign immunity in this way runs counter to the equitable purposes underlying compulsory joinder. See Auto. United Trades Org, 175 Wn.2d at 233-34. Finding otherwise, as correctly articulated by the trial court, is ?contrary to common sense, fairness, and due process for all involved.? 18 For the current opinion, 90 to Lundgren v. Upper Skagit Indian Tribe, No. 91622-5 VRP (Apr. 24, 2015) at 32. We af?rm the superior court. WE CONCUR: 19 Landgren v. Upper Skagit Indian Tribe No. 91622?5 STEPHENS, J. (dissenting)?It is well established that ?tribal sovereign immunity comprehensively protects recognized American Indian tribes from suit - absent explicit and ?unequivocal? waiver or abrogation.? Wright 12. Colville Tribal Enter. Corp, 159 Wn.2d 108, 112, 147 P.3d 1275 (2006) (quoting Santa Clara Pueblo v. (MartinezCt. 1670, 56 L. Ed. 2d 106 (1978)). has consciously opted to shield Indian tribes from suit,? Auto. United Trades Org. v. State, 175 Wn.2d 214, 230, 285 P.3d 52 (2012) (internal quotation marks omitted) (quoting Fluent v. Salamanea Indian Lease Auth, 928 F.2d 542, 548 (2d Cir. 1991)), because tribes are ?separate sovereigns preexisting the Constitution,? Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2030, 188 L. Ed. 2d 1071 (2014) (quoting Santa Clara Pueblo, 436 US. at 56). Brushing aside this Lundgren 1). Upper Skagit Indian Tribe, 91622?5 (Stephens, J., dissenting) fundamental principle, the majority concludes that the Upper Skagit Indian Tribe (Tribe) must either waive its sovereign immunity and defend against Sharline and. Ray Lundgren?s adverse possession claim, or else risk having judgment entered in its absence. The majority justi?es this result on the ground that personal jurisdiction over the Tribe is unnecessary in an in rem action to quiet title. Majority at 7. It also insists that the Tribe has no interest in the disputed property because the Lundgrens? claim of adverse possession predates the Tribe?s ownership, and therefore the Tribe is not a necessary party to this suit. Id. at 2, 13. I respectfully dissent. While the existence of in rem jurisdiction gives a court authority to quiet title to real property without obtaining personal jurisdiction over affected parties, Civil Rule (CR) 19 counsels against exercising this authority in the face of a valid assertion of sovereign immunity. Proceeding without regard to the Tribe?s defense, the majority gives ?insuf?cient weight? to the sovereign status of the Tribe and erroneously ?reach[es] and discount[s] the merits of [the Tribe?s] Claims.? Republic ofPhilippz'nes v. Pimentel, 553 US. 851, 855, 864, 128 S. Ct. 2180, 171 L. Ed. 2d 131 (2008). Applying the analysis of CR 19, I would conclude that the Tribe is a necessary and indispensable party that cannot be joined in this quiet title action. The result is clear under our precedent: we should dismiss this case without reaching the merits Lundgren v. Upper Skagit Indian Tribe, 91622-5 (Stephens, ., dissenting) of the Lundgrens? claims. Accordingly, I would reverse the superior court and remand for entry of an order of dismissal under CR ANALYSIS The only difference between this case and others in which we have respected assertions of tribal sovereign immunity is that the superior court?s jurisdiction to quiet title rests on in rem jurisdiction. Focusing on this jurisdictional basis, the majority looks to cases that recognize the superior court?s power to proceed. See, County of Yakima v. Confederated Tribes Bands oftke Yakima Indian Nation, 502 US. 251, 112 S. Ct. 683, 116 L. Ed. 2d 687 (1992); Anderson Middleton Lumber Co. v. Quinault Indian Nation, 130 Wn.2d 862, 929 P.2d 379 (1996); Smale v. Noretep, 150 Wn. App. 476, 208 P.3d 1180 (2009). The majority is correct that these cases support ?nding ?where claims of sovereign immunity are asserted,? a superior court has ?subject matter jurisdiction over in rem proceedings? and may determine the status of the property without obtaining in personam jurisdiction over the tribe. Majority at 11. If these cases represented the sole line of relevant authority, I might affirm. Cf. Cass County Joint Water Res. Dist. v. 1.43 Acres of Land, 2002 ND 83, 643 685, 691-95 (2002) (relying in part on County of Yakima and Anderson, and holding tribal sovereign immunity does not bar ?a purely in rem action against land held by the Tribe in fee and which is not reservation land, allotted land, aboriginal land, or trust land?); Lundgren v. Upper Skagit Indian Vibe, 91622?5 (Stephens, J., dissenting) Miccosukee Tribe of Indians v. Dep?t of Envtl. Prot. ex rel. Bel. of rs. of Internal Improvement Tr. Fund, 78 So.3d 31, 34 (Fla. Dist. Ct. App. 2011) (holding tribal ?sovereign immunity is not implicated and does not bar? an eminent domain action because it is ?an action against land held in fee by the Tribe? and there is in rem jurisdiction over the land).1 However, a ?nding that the court has in rem jurisdiction does not answer the issues before us. None of these cases address the impact of a tribe?s CR 19 claim. I. CR 19 Counsels against Exercising in Rem Jurisdiction in the Face of a Valid Assertion of Sovereign Immunity The majority acknowledges that CR 19 re?ects a prudential standard: 19 . . . asks not whether a court has the power to decide a case, but rather whether it 1 It is worth noting, however, that recent decisions question whether a court may exercise in rem jurisdiction over cases in which a tribe asserts its sovereign immunity, particularly since the Supreme Court issued its decision in Bay Mills, which reiterated the importance of sovereign immunity. See Homaatsa, Inc. v. Pubelo ofSan Felipe, 2016 WL 3382082, at >l"7 (NM. June 16, 2016) (holding ?regardless of whether Hamaatsa asserts claims that lie in rem or in personam, its action against the Pueblo is barred in accordance with federal law. Because tribal sovereign immunity divests a court of subject matter jurisdiction it does not matter whether Hamaatsa?s claim is asserted in rem or in personam? and speci?cally noting that while Anderson carved out an exception ?to tribal sovereign immunity for in rem actions,? that case was decided before Bay Mills, which ?unequivocally bars us from carving out a similar exception?); Cayuga Indian Nation v. Seneca County, 761 F.3d 218, 221 (2d Cir. 2014) (finding Bay Mills reaf?rmed the importance of sovereign immunity and that it protects a tribe from any suit absent waiver or congressional authorization, and declining ?to draw . . . a distinction between in rem and in personam proceedings?). Because I would decide this case under CR 19, I do not reexamine our precedent in light of Bay Mills. -4- Lundgren v. Upper Skagit Indian Vibe, 91622-5 (Stephens, J., dissenting) shout Majority at 11. But the majority fails to acknowledge the signi?cance of the Tribe?s interest and the Lundgrens? inability to obtain personal jurisdiction over the Tribe. Instead, the majority seems to believe that because the court has in rem jurisdiction, there is no need to engage in a full CR .19 analysis. This reasoning is ?awed. The court?s authority to exercise in rem jurisdiction does not obviate the need to determine which parties must be joined to fully and justly adjudicate the action. Which parties are necessary and indispensable is a separate question from the court?s junsdictionwne I ?nd dispositive in this case given the Tribe?s sovereign inununity. Sovereign immunity affects personal jurisdiction. See, e. g, Santa Clara Pueblo, 436 US. at 58 (??Indian Nations are exempt from suit?? (emphasis added) (quoting United States v. US. Fid. Guam C0., 309 US. 506, 512, 60 S. Ct. 653, 84 L. Ed. 894 see also Anderson, 130 Wn.2d at 876 (describing tribal sovereign immunity under the ?personal jurisdiction? section).2 Though personal jurisdiction does not 2 Sovereign immunity has been variously characterized as a matter of subject matter jurisdiction, and as a matter of personal jurisdiction. See, e. g, Miner Elea, Inc. v. Muscogee (Creek) Nation, 505 F.3d 1007, 1009 (10th Cir. 2007) (??Tribal sovereign immunity is a matter of subject matter jurisdiction.m (quoting EFW v. St. Stephen ?5 Indian High Sch, 264 F.3d 1297, 1302-03 (10th Cir. 2001)); Wright, 159 Wn.2d at 111 (?The existence of personal jurisdiction over a party asserting tribal sovereign immunity is a question of law reviewed de It is not necessary to resolve this dispute here because this case can be resolved under CR 19. Under that standard, in quiet title actions where an absent sovereign may be stripped of land to which it has a legitimate claim, an assertion of sovereign immunity is dispositive and requires dismissal. -5- Lundgren v. Upper Skagit Indian Tribe, 91622?5 (Stephens, J., dissenting) impact a superior court?s subject matter jurisdiction for in rem proceedings, In re Acquisition ofLand Other Prop. by City of Seattle, 56 Wn.2d 541, 544-45, 353 P.2d 955 (1960), it does impact a superior court?s ability to join a nonparty. See Equal Emp ?l Opportunity Comm ?n v. Peabody W. Coal 400 F.3d 774, 779 (9th Cir. 2005) (?Rule 19(a) sets forth three circumstances in which joinder is not feasible: when venue is improper, when the absentee is not subject to personal jurisdiction, and when joinder would destroy subject matter jurisdiction.? (emphasis added)); see also WILLIAM W. SCHWARZER, A. WALLACE TASHIMA JAMES M. WAGSTAFFE, FEDERAL CIVIL PROCEDURE BEFORE 7-37 (2010) oinder is not ?feasible? Where . . . the party sought to be joined is immune from suit?). Personal jurisdiction is thus very relevant to a court?s CR 19 analysis. The Tribe is not subject to personal jurisdiction because, as is conceded, it has sovereign immunity. Resp?ts? Br. at 6. Therefore, While the Tribe is incorrect that ?[in rem] jurisdiction in this case can only lie if the Court has both subject matter jurisdiction and personal jurisdiction over the claims and parties,? Appellant?s Reply Br. at 5, it is correct that personal jurisdiction, in part, dictates the outcome of this case. We must consider personal jurisdiction under the analysis of CR 19. Landgren v. Upper Skagit Indian Tribe, 91622?5 (Stephens, ., dissenting) II. The Tribe Is a Necessary and Indispensable Party We recently addressed CR 19 in a case implicating tribal sovereignty, noting that it applies ?when the joinder of absent persons is needed for a just adjudication.? Auto. United Trades Org, 175 Wn.2d at 221. ?Where the feasibility of oinder is contested, courts engage in a three?step analysis.? Id. First, the court determines whether the absent party is ??necessary?? under CR 19(a). Id. at 222. If the party is ?necessary,? the court then determines whether joinder is feasible. See id. If it is not feasible to join the party, the court ?determine[s] whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed.? CR 19(b). If the action cannot proceed ?in equity and good conscience? without the absent party, that party is considered ?indispensable.? Id. Auto. United Trades Org, 175 Wn.2d at 229. The party urging dismissal for failure to join a necessary and indispensable party bears the burden of persuasion. See Auto. United Trades Org, 175 Wn.2d at 222. ?We review a [superior] court?s decision under CR 19 for an abuse of discretion and review any legal determinations necessary to that decision de novo.? Id. We ?nd an abuse of discretion ?if the [superior] court relies on unsupported facts, takes a view that no reasonable person would take, applies the wrong legal standard, or bases its ruling on an erroneous View of the law.? Gildon 12. Simon Prop. Grp., Inc., 158 Wn.2d 483, 494, 145 P.3d 1196 (2006). Dismissal under CR 12(b)(7) is a ??drastic remedy.? Auto. Landgrerz v. Upper Skagit Indian Tribe, 91622?5 (Stephens, ., dissenting) United Trades Org, 175 Wn.2d at 222 (quoting Gildon, 158 Wn.2d at 494). Because our Civil Rule and Federal Rule of Civil Procedure (FRCP) 19 are substantially similar, we may look to federal case law for guidance. Id. at 223. Here, the superior court denied dismissal based on CR 19 without engaging in the required analysis. In its oral ruling, the court stated that although it understood it could not join the Tribe against its will, it seems to me that the Tribe is the one saying that this property, which by its appearance may be adversely possessed long before the Tribe came into it, is asking to bar litigation for the other side rather than the other way around . . . and I find that contrary to common sense, fairness, and due process for all involved. Verbatim Report of Proceedings (Apr. 24, 2015) (VRP) at 32. While the superior court?s concerns are understandable, they re?ect a desire to reach the merits of the action so that both parties can have their day in court. The majority adopts this approach unapologetically, asserting without a full analysis of the rule?s factors that CR 19 requires ?a merit-based determination,? even though this seems ?to put ?the cart before 999 the horse. Majority at 13. In fact, CR 19 precludes a court from considering the merits when one of the parties validly asserts sovereign immunity. See, e. g, Auto. United Trades Org, 17 5 Wn.2d at 224 (noting the CR 19 analysis focuses ?on whether a party claims a protected interest, not whether it actually has one?); see also Gildori, 158 Wn.2d at 494 (contrasting ?[d]ismissa1 under CR with ?trials on the merits? (emphasis added)). As the Supreme Court recognized in Pimentel, beyond the -8- Lundgren v. Upper Skagit Indian ribe, 91622?5 (Stephens, J., dissenting) threshold determination that claims are not frivolous in evaluating the CR 19 factors, ?consideration of the merits [is] itself an infringement on foreign sovereign immunity.? 553 US. at 864. Indeed, it would make no sense that a court evaluating the interests of a party who cannot be joined to an action could summarily decide the party will lose, and therefore has no interests to protect. 3 A. The Tribe Is a ?Necessary?Party A party is ?necessary? if ?the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person?s absence may. . . as a practical matter impair or impede the person?s ability to protect that interest.? CR The claimed interest must be legally protected. Auto. United 3 The Court of Appeals analysis in Smale, on which the superior court and the majority rely, is problematic in this regard when read in light of the CR 19 cases. See VRP at 31. The Smale court broadly stated that the quiet title action at issue did not have ?the potential to deprive any party of land they rightfully own? because the Smales asserted they acquired title by adverse possession before the Tribe bought the property. 150 Wn. App. at 483; see also id. at 480?81 the Smales acquired title before the suit was ?led and Noretep attempted to convey the land, Noretep had no title to convey. Thus, the tribe never had any property to lose?). The court justi?ed its consideration of the merits on the procedural posture of the case; the tribe moved to dismiss for lack of jurisdiction under CR 12(b)( 1), so the court assumed the Smales could prove adverse possession. Id. at 481 n.15. The maj ority?s reliance on Smale is concerning for two reasons. First, the majority goes further than Smale by actually resolving the merits. Compare majority at 13 (the Lundgrens ?are attempting to retain what they already own? (emphasis added)), with Smale, 150 Wn. App. at 482 (?the Smales are attempting to retain what they allegedly own? (emphasis added)). Second, no similar presumption to that under CR 12(b)(1) applies in considering CR 19 and a motion to dismiss under CR -9- Landgren 12. Upper Skagit Indian Vibe, 91622?5 (Stephens, ., dissenting) Trades Org, 175 Wn.2d at 224. As noted above, the main inquiry here is ?whether a party claims a protected interest, not whether it actually has one.? Id. In concluding that the Tribe has no interest because the Lundgrens satis?ed the elements of adverse possession, the majority takes its CR 19 analysis too far. Majority at 13-16. The Tribe claims record title ownership of the disputed property. This is a cognizable claim for a legally protected property interest. See Cady v. Kerr, 11 Wn.2d 1, 8, 1415, 118 P.2d 182 (1941) (stating that parties with a legal or equitable interest in property directly affected by a boundary dispute must be defendants in the boundary line adjudication); Reitz v. Knight, 62 Wn. App. 575, 585, 814 P.2d 1212 (1991) (?In the context of boundary line disputes, joinder ordinarily is required only of persons who own property adjacent to the disputed boundary line?); RCW 7.28.010 person having a valid subsisting interest in real property, and a right to the possession thereof, may recover the same by action in the superior court of the proper county, to be brought against the tenant in possession; if there is no such tenant, then against the person claiming the title or some interest therein? (emphasis added)); Quileate Indian tribe v. Babbitt, 18 F.3d 1456, 1458?59 (9th Cir. 1994) (?nding the Quinault Indian Nation was a necessary party because it had a Claim to escheated property within its reservation). The Tribe is clearly a necessary party to this lawsuit. -10_ Lundgren v. Upper Skagit Indian Tribe, 91622?5 (Stephens, ., dissenting) B. The Tribe Cannot Be Joined Due to Sovereign Immunin Having determined that the Tribe is a necessary party, the next question is whether the Tribe can feasibly be joined. ?Joinder is not feasible when tribal sovereign immunity applies.? Auto. United Trades Org, 175 Wn.2d at 222. Because the parties agree that the Tribe has not waived its sovereign immunity, the Tribe cannot be joined.?4 C. The Tribe Is an Indispensable Party Because the Tribe is a necessary party that cannot be joined, we must determine if the Tribe is indispensable. See Confederated Tribes ofChehalis Indian Reservation v. Lajan, 928 F.2d 1496, 1499 (9th Cir. 1991). Federal courts have consistently recognized ?that when the necessary party is immune from suit, there may be ?very little need for balancing 19(b) factors because immunity itself may be viewed as the compelling factor.? Qaileute Indian Tribe, 18 F.3d at 1460 (quoting Confederated Tribes of Chebalis Indian Reservation, 928 F.2d at 1499)). Indeed, ?cornity and respect for sovereign interests often outweigh all other factors in disposing of the joinder question? because ??society has consciously opted to shield Indian tribes from suit.? Auto. United Trades Org, 175 Wn.2d at 230 4 Sovereign immunity may be waived either by the tribe or congressional abrogation. Okla. Tax Comm ?n v. Citizen Band Potawatomi Indian Tribe of Okla, 498 US. 505, 509, 111 S. Ct. 905, 112 L. Ed. 2d 1112 (1991). As noted above, the Lundgrens admit that the Tribe is entitled to sovereign immunity. See Resp?ts? Br. at 6. They do not argue that either the Tribe or Congress waived this immunity. -11- Lundgren v. Upper Skagit Indian Tribe, 91622?5 (Stephens, ., dissenting) (internal quotation marks omitted) (quoting Fluent, 928 F.2d at 548). Courts, however, may still apply the four factors to determine whether a tribe is an indispensable party. Quileute Indian Tribe, 18 F.3d at 1460. These factors are: (1) to what extent a judgment rendered in the person?s absence might be prejudicial to the person or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person?s absence will be adequate; (4) whether the plaintiff will have an adequate remedy if the action is dismissed for nonj oinder. CR Analyzing and balancing these factors,5 I would conclude that the Tribe is an indispensable party. 1. CR Prejudice Under CR we ?assess[] the likelihood and signi?cance of any prejudice.? Auto. United Trades Org, 175 Wn.2d at 229. This factor favors the Tribe for two reasons. First, this court has found that evaluating the extent of prejudice, we accord heavy weight to the tribes? sovereign status.? Id. ?Indian tribes are ?domestic dependent nations? that exercise inherent sovereign authority over their members and territories.? Okla. Tax Comm ?n v. Citizen Band ofPotawatomi 5 The majority refuses to balance the parties? interests, choosing instead to ignore three of the four factors. Majority at 17; of. Auto United Trades Org, 175 Wn.2d at 229 (?In examining each of the four factors . . . the court determines how heavily the factor weighs in favor of, or against, dismissal.? (emphasis added)). The sole factor the majority considers conveniently favors the Lundgrens (remedy for the plaintiffs), while the three it ignores favor the Tribe (prejudice, avoiding or reducing prejudice, and adequacy of the judgment). -12- Lundgren v. Upper Skagii Indian Tribe, 91622?5 (Stephens, ., dissenting) Indian Tribe 0f0kla., 498 US. 505, 509, 111 S. Ct. 905, 112 L. Ed. 2d 1112 (1991) (quoting Cherokee Nation v. Georgia, 30 US. (5 Pet(1831)). ?Among the core aspects of sovereignty that tribes possess?w?subj ect . . . to congressional action?~is the ?common?law immunity from suit traditionally enjoyed by sovereign powers.?? Bay Mills, 134 S. Ct. at 2030 (quoting Santa Clara Pueblo, 436 US. at 58). That sovereign immunity against suit ?is ?a necessary corollary to Indian sovereignty and self?governance?? Id. (quoting Three A?l. Tribes of art Berthold Reservation v. Wold Eng PC, 476 U.S. 877, 890, 106 S. Ct. 2305, 90 L. Ed. 2d 881 (1986)). ?Where tribal sovereign immunity is concerned, ?respect for the inherent autonomy Indian tribes enjoy has been particularly enduring.? Auto. United Trades Org, 175 Wn.2d at 230 (quoting Fla. Paraplegic Ass ?n v. Miccosukee Tribe of Indians of Fla, 166 F.3d 1126, 1130 (11th Cir. 1999)). This factor strongly favors finding the Tribe to be an indispensable party. See id. at 229-31; cf. Pimentel, 553 US. at 867 (discussing cases of joinder and the governmental immunity of the United States; ?nding under the ?rst factor that ?[t]hese cases instruct us that Where sovereign immunity is asserted, and the claims of the sovereign are not frivolous, dismissal of the action must be ordered where there is a potential for injury to the interests of the absent sovereign?). -13- Landgren v. Upper Skagit Indian Tribe, 91622-5 (Stephens, ., dissenting) Importantly, a judgment entered in the Tribe?s absence would not bind the Tribe to a determination that the Lundgrens adversely possessed the disputed property. See Cady, 11 Wn.2d at 8 (explaining parties who have a direct interest in the result of a boundary line dispute must be joined ?for otherwise such persons are not bound as to any determination of the location of the boundaries?); Pit River Home Agric. Coop. Ass?n v. United States, 30 F.3d 1088, 1099 (9th Cir. 1994) (?nding the tribal council to be a necessary party in a dispute over the bene?cial owners of trust property because ?even if the Association obtained its requested relief in this action, it would not have complete relief, since judgment against the government would not bind the Council, which could assert its right to possess the Ranch?); Confederated Tribes of Chehalis Indian Reservation, 928 F.2d at 1498 (?nding that in an action challenging the United States? continuing recognition of the Quinault Indian Nation as the sole governing authority for the Quinault Indian Reservation that ?[j]udgment against the federal officials would not be binding on the Quinault Nation, which could continue to assert sovereign powers and management responsibilities over the reservation?). A determination of title to the disputed property without the Tribe being a party to the litigation casts a shadow over the Tribe?s ownership. See Qaileate Indian Tribe, 18 F.3d at 1460 (agreeing with the lower court?s conclusion ?that the -14- Lundgren v. Upper Skagz?t Indian Tribe, 91622-5 (Stephens, ., dissenting) Quinaults ?would suffer severe prejudice by not being a party to an action which could deplete the Quinaults? land interests or jeopardize their authority to govern the lands in question? (quoting Quileute Indian Tribe v. Lujan, 1992 VVL 605423, at *3 (W.D. Wash. Aug. 28, 1992) (court order)). At the same time, proceeding without the Tribe could prevent the Lundgrens from providing marketable title should they someday wish to sell their property. See Hebb v. Severson, 32 Wn.2d 159, 166, 201 P.2d 156 (1948) title is one that is free from reasonable doubt and such as reasonably well informed and intelligent purchasers, exercising ordinary business caution, would be willing to accept?). It thus-prejudices both the Tribe and the Lundgrens. See CR Pimentel, 553 US. at 869 (FRCP ?rst factor ?directs consideration of prejudice both to absent persons and those who are parties?). This factor strongly favors dismissal. 2. CR Avoiding or Reducing Prejudice A further relevant inquiry is whether the court could lessen or avoid prejudice by ?protective provisions in the judgment, by the shaping of relief, or [by] other measures.? CR The Lundgrens do not propose any way the court could lessen prejudice. I am unable to imagine a remedy that would lessen the prejudice that results from quieting title to disputed property in the absence of the record title holder. The majority fails to acknowledge that we cannot require the Tribe to waive -15- Landgren 12. Upper Skagiz? Indian Tribe, 91622-5 (Stephens, 1., dissenting) its sovereign immunity to lessen prejudice. See Confederated Tribes of Chehalz?s Indian Reservation, 928 F.2d at 1500 (?the ability to intervene if it requires waiver of immunity is not a factor that lessens prejudice? (citing Makah Indian Tribe v. Verity, 910 F.2d 555, 560 (9th Cir. 1990)). This factor also strongly favors dismissal. 3. CR Adequacy of the Judgment The third factor?the adequacy of a judgment rendered without the Tribe??- also weighs in favor of dismissal. See CR ?Adequacy? here ??refers to the public stake in settling disputes by wholes, whenever possible.? Auto. United Trades Org, 175 Wn.2d at 232 (internal quotation marks omitted) (quoting Pimentel, 553 US. at 870). party who seeks to quiet title to a piece of land must join all known persons who are claiming title in order to settle the property?s ownership without additional litigation.? 7 CHARLES ALAN WRIGHT, ARTHUR R. MILLER MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL 1621, at 334 (3d ed. 2001). As noted above, the Tribe may not be bound by a determination made in its absence, and the Lundgrens may not be able to obtain secure title absent a judgment against the Tribe. The dispute cannot be completely and de?nitively settled without joining the Tribe. -16- Landgren v. Upper Skagii Indian Tribe, 91622-5 (Stephens, .1 ., dissenting) 4. CR Remedy for the Plaintiffs Finally, I consider whether the Lundgrens would have a remedy if this case were to be dismissed. See CR I agree with the majority that this factor weighs in favor of the Lundgrens. It appears that the Lundgrens do not have another judicial forum in which they may seek relief if this claim were to be dismissed for failure to join the Tribe. See Wash. Supreme Court oral argument, Lundgren v. Upper Skagit Indian Tribe, N0. 91622-5 (June 9, 2016), at 11 min, 42 sec., recording by TVW, Washington State?s Public Affairs Network, available at (explaining that although there is a tribal court, ?the Upper Skagit Indian Tribe has not waived its sovereign immunity from suit in its tribal court, so there would not be a claim in the Upper Skagit Tribal Court to be brought by the plaintiffs?). However, the majority fails to recognize that ?lack of an alternative forum does not automatically prevent dismissal of a suit.? Makah Indian Tribe, 910 F.2d at 560. Courts respect the need to dismiss claims for inability to join a necessary and indispensable sovereign even when doing so denies the plaintiff any remedy. See, Pit River, 30 F.3d at 1102-03; Quileate Indian Tribe, 18 F.3d at 1460-61; Confederaied Tribes ofChehalis Indian Reservation, 928 F.2d at 1500; cf Pimeniel, 553 US. at 872 (?Dismissal under 19(b) will mean, in some instances, that plaintiffs will be left without a forum for definitive resolution of their -17- Lundgren v. Upper Skagit Indian Vibe, 91622-5 (Stephens, ., dissenting) claims. But that result is contemplated under the doctrine of foreign sovereign immunity?). This simply underscores that dismissal under CR 19 can be a drastic remedy, albeit a proper one. D. Balancing the CR 19(1)) Factors Balancing these four factors, I would conclude that the Tribe is a necessary and indispensable party that cannot be joined. The most logical result is that this case should be dismissed pursuant to the Tribe?s CR 12(b)(7) motion, as the Lundgrens? interest in quieting title to the disputed property yields to the Tribe?s interest in maintaining its sovereign immunity. I recognize that dismissal potentially leaves the Lundgrens without recourse. Although in our most recent CR 19 and sovereign immunity case we rejected dismissal due in part to the plaintiff? inability to obtain relief, that was a unique case in which the State attempted to assert tribal sovereign immunity ?as a sword.? Auto. United Trades Org, 175 Wn.2d at 233. We explained, ?Sovereign immunity is meant to be raised as a shield by the tribe, not wielded as a sword by the State.? Id. Dismissal in that case ?would have the effect of immunizing the State, not the tribes, from judicial review.? Id. at 234.6 Here, the Tribe has properly asserted its sovereign 6 The majority misses the mark when it asserts that the ?Tribe has wielded sovereign immunity as a sword in disguise.? Majority at 18. This statement rests on the mistaken premise that the Tribe seeks to take from the Lundgrens ?title to property they rightfully own.? Id. Even accepting as established the Lundgrens? claim that they adversely possessed the disputed property for decades before the Tribe took ownership, they never -18- Lundgren v. Upper Skagit Indian Vibe, 91622-5 (Stephens, ., dissenting) immunity as a shield to protect itself from suit. I would therefore respect the Tribe?s status as a sovereign and dismiss the case Without reaching the merits of the Lundgrens? claims. CONCLUSION I would reverse the superior court. Under the analysis of CR 19, the Tribe is a necessary and indispensable party that cannot be joined because of sovereign Accordingly, the Tribe is entitled to dismissal, and I would remand for entry of an order granting the Tribe?s motion to dismiss under CR brought a claim of ownership until now. As a putative defendant in the Lundgrens? quiet title action, the Tribe holds record title?and the validity of that ownership is not in question absent a merits adjudication. Thus, the Tribe is asserting sovereign immunity defensively, to resist being haled into court. The situation could not be more different from the State?s offensive assertion of tribal sovereign immunity in Auto. -19_ Lundgren v. Upper Skagit Indian Tribe, 91622-5 (Stephens, ., dissenting) .20- 492/? 1 0137-15-11!? I No. ______________ IN THE Supreme Court of the United States __________________________ UPPER SKAGIT INDIAN TRIBE, Petitioners, v. SHARLINE LUNDGREN AND RAY LUNDGREN, Respondents. __________________________ ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF WASHINGTON ____________________________________________ PETITION FOR A WRIT OF CERTIORARI ____________________________________________ Arthur W. Harrigan, Jr. Counsel of Record Tyler L. Farmer Xiang Li Harrigan Leyh Farmer & Thomsen LLP 999 Third Ave., Suite 4400 Seattle, WA 98104 (206) 623-1700 arthurh@harriganleyh.com LEGAL PRINTERS LLC, David S. Hawkins General Counsel Upper Skagit Indian Tribe 25944 Community Pl. Way Sedro-Woolley, WA 98284 (360) 854-7016 dhawkins@upperskagit.com Washington DC ! 202-747-2400 ! legalprinters.com QUESTION PRESENTED Does a court’s exercise of in rem jurisdiction overcome the jurisdictional bar of tribal sovereign immunity when the tribe has not waived immunity and Congress has not unequivocally abrogated it? i PARTIES TO THE PROCEEDING There are no parties to the proceeding other than those listed in the caption. Petitioner is the Upper Skagit Indian Tribe, a federally recognized Indian tribe. Petitioner was the defendant and appellant below. Respondents are Sharline and Ray Lundgren, who were the plaintiffs and respondents below. There are no parent or publicly-held corporations involved in the proceeding. ii TABLE OF CONTENTS Page(s) QUESTION PRESENTED ....................................... i PARTIES TO THE PROCEEDING ......................... ii TABLE OF AUTHORITIES .................................... v OPINIONS AND ORDERS BELOW ....................... 1 BASIS FOR JURISDICTION .................................. 1 INTRODUCTION .................................................... 1 STATEMENT OF THE CASE ................................. 5 REASONS WHY CERTIORARI IS WARRANTED .......................................................... 6 A. The decision below conflicts with the weight of authority in the split among lower courts interpreting the reach of County of Yakima ............................ 6 B. The decision below is contrary to this Court’s narrow holding in County of Yakima and the limited exceptions to tribal sovereign immunity recently reaffirmed by this Court in Bay Mills ........ 10 iii C. The question presented is an important jurisdictional issue of federal law, and this case would be a good vehicle for resolving it ................................................... 15 CONCLUSION ....................................................... 16 APPENDIX A (Reported Opinion of Washington Supreme Court in Lundgren v. Upper Skagit Indian Tribe, 187 Wash. 2d 857, 389 P.3d 569 (2017)) ............... 1a APPENDIX B (Unreported Order of Washington Superior Court Denying Defendant’s Motion to Dismiss)........................... 39a APPENDIX C (Unreported Order of Washington Supreme Court Denying Further Reconsideration)..................................... 41a iv TABLE OF CITED AUTHORITIES Page(s) Alvarado v. Table Mountain Rancheria, 509 F.3d 1008 (9th Cir. 2007) .................................. 4 Cass Cty. Joint Water Res. Dist. v. 1.43 Acres of Land in Highland Twp., 643 N.W. 2d 685 (N.D. 2002) ................................... 7 Cayuga Indian Nation of New York v. Seneca Cty., N.Y., 890 F. Supp. 2d 240 (W.D.N.Y. 2012)...................... 7 County of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251 (1992) ......................................... passim FDIC v. Meyer, 510 U.S. 471 (1994) .................................................. 2 First Bank & Tr. v. Maynahonah, 313 P.3d 1044 (Okla. Civ. App. 2013)...................... 9 Hamaatsa, Inc. v. Pueblo of San Felipe, 388 P.3d 977 (N.M. 2016) ........................................ 7 Lundgren v. Upper Skagit Indian Tribe, 187 Wash. 2d 857, 389 P.3d 569 (2017) ......... passim v Miccosukee Tribe of Indians of Florida v. Dep’t of Envtl. Prot. ex rel. Bd. of Trustees of Internal Imp. Tr. Fund, 78 So. 3d 31 (Fla. Dist. Ct. App. 2011) .................... 9 Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024 (2014) .............................................. 2 Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463 (1976) ................................................ 12 Oneida Indian Nation of New York v. Madison Cty., 401 F. Supp. 2d 219 (N.D.N.Y. 2005) ...................... 9 Pub. Serv. Co. of New Mexico v. Approximately 15.49 Acres of Land in McKinley Cty., New Mexico, 167 F. Supp. 3d 1248 (D.N.M. 2016) ....................... 9 Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) .................................................. 14 Save the Valley, LLC v. Santa Ynez Band of Chumash Indians, No. CV1502463RGKMANX, 2015 WL 12552060, (C.D. Cal. July 2, 2015) ................... 9 The Siren, 74 U.S. 152 (1868) .................................................. 14 United States v. Nordic Village, Inc., 503 U.S. 30 (1992) .................................................. 14 vi Federal Statutes 28 U.S.C. § 1257(a)................................................... 1 Other Authorities Washington Governor’s Office of Indian Affairs, Washington State Tribal Directory ....................... 14 vii OPINIONS AND ORDERS BELOW The opinion of the Washington Supreme Court that is the subject of this petition is reported at Lundgren v. Upper Skagit Indian Tribe, 187 Wash. 2d 857, 389 P.3d 569 (2017), and reproduced at Appendix A. The order of the Washington Supreme Court denying the motion for reconsideration is unreported but reproduced at Appendix C. The opinion of the Washington Superior Court denying the Upper Skagit Indian Tribe’s motion to dismiss is unreported but reproduced at Appendix B. BASIS FOR JURISDICTION The opinion of the Washington Supreme Court that is the subject of this petition was entered on February 16, 2017, and amended on June 8, 2017, before denial of the Upper Skagit Indian Tribe’s motion for reconsideration on June 12, 2017. The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a). INTRODUCTION Despite settled law about suits against federally recognized Indian tribes, the Washington State Supreme Court concluded that an action against real property of the Upper Skagit Indian Tribe (the “Tribe”) did not require an analysis of tribal sovereign immunity. In doing so, the Washington Supreme Court joined a national debate, dividing all ranks of 1 state and federal courts, about the proper interpretation of this Court’s decision in County of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 255 (1992). Indian tribes are “domestic dependent nations” that exercise “inherent sovereign authority.” Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2030 (2014). “Long before the formation of the United States, [t]ribes ‘were self-governing sovereign political communities.’” Id. at 2040 (citation omitted). A core aspect of the tribes’ sovereignty is common-law immunity from suit. Id. at 2030. Unequivocal precedent of this Court, reaffirmed most recently in Bay Mills, recognizes that a tribe may lose sovereign immunity in only two ways: (1) if Congress abrogates sovereign immunity; or (2) if the tribe waives sovereign immunity. Id. at 2030–31 (“[W]e have time and again treated the ‘doctrine of tribal immunity [as] settled law’ and dismissed any suit against a tribe absent congressional authorization (or a waiver).” (citations omitted)). Any congressional decision to abrogate immunity must be clear — “Congress must ‘unequivocally’ express that purpose.” Id. at 2031–32 (“That rule of construction reflects an enduring principle of Indian law: Although Congress has plenary authority over tribes, courts will not lightly assume that Congress in fact intends to undermine Indian self-government.” (citations omitted)). In the absence of waiver and abrogation, sovereign immunity is an absolute jurisdictional bar. See FDIC 2 v. Meyer, 510 U.S. 471, 475 (1994) (“Sovereign immunity is jurisdictional in nature.”); Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1015 (9th Cir. 2007) (“Sovereign immunity limits a federal court’s subject matter jurisdiction over actions brought against a sovereign.”). Courts below are split on the issue presented by this case: whether in rem actions against tribal property negate the jurisdictional bar of sovereign immunity when there has been neither waiver nor abrogation. The Second Circuit and the New Mexico Supreme Court correctly held that the answer is no: there is no in rem exception to tribal sovereign immunity. But in the 5-4 decision below, the Washington Supreme Court joined the North Dakota Supreme Court in reaching the opposite conclusion. The Washington Supreme Court did not attempt to justify its holding under the doctrine of sovereign immunity, nor could it have done so because neither exception applied. It is undisputed that the Tribe did not waive immunity. Lundgren, 187 Wash. 2d at 881 n.4 (Stephens, J., dissenting). There is also no basis for an abrogation argument: the Washington Supreme Court did not examine the issue and, thus, did not hold that Congress had unequivocally abrogated tribal sovereign immunity from lawsuits brought in rem, as here, to quiet title held by tribes in disputed property. See generally Lundgren, 187 Wash. 2d at 857; CP at 134, 155–57. Instead, the Washington Supreme Court held that personal jurisdiction over the Tribe was unnecessary 3 to the trial court’s power to act because the action was brought in rem. Lundgren, 187 Wash. 2d at 866–67. On this basis, the Washington Supreme Court held that the trial court did not need to address the issue of sovereign immunity. Id. The Washington Supreme Court incorrectly analyzed this Court’s decision in County of Yakima in claiming, “[t]he United States Supreme Court has recognized this principle.” Id. (citing 502 U.S. at 255). The decision below conflicts with not only the limited holding of County of Yakima but also betrays the carefully circumscribed exceptions to sovereign immunity reaffirmed in Bay Mills. As evidenced by the split in authority, the conflict will not be resolved until this Court issues a definitive ruling. And until such a ruling is made, there will be uncertainty about the scope of tribal sovereign immunity invoked in in rem proceedings throughout the country. This split in authority presents a jurisprudential issue of great significance to all tribes as well as litigants in a wide variety of in rem cases that are likely to increase exponentially as tribes engage in business ventures involving real property. The divergent views of lower courts on this issue creates the certainty of inconsistent results for litigants depending on the federal circuit or state in which the tribal property happens to be located. This case is an ideal vehicle for resolving this important federal question. There are no factual issues in dispute. And resolving the split rests 4 primarily on clarifying this Court’s holding in County of Yakima. This petition for writ of certiorari should be granted. STATEMENT OF THE CASE 1. In 2013, the Tribe bought property in Skagit County, Washington and received a statutory warranty deed. In 2015, the adjacent property owners, Sharline and Ray Lundgren, filed a quiet title action against the Tribe, alleging they had acquired title to a strip of land along the common boundary through adverse possession before the Tribe purchased the land. Lundgren, 187 Wash. 2d at 861– 63. 2. The Tribe entered a special appearance, noting that the Tribe “does not waive its inherent sovereign immunity.” Clerk’s Papers (CP) at 256. The Tribe then filed a motion to dismiss asserting sovereign immunity and, alternatively, failure to join a necessary and indispensable party under Rule 19. CP at 229–44. The trial court denied the Tribe’s motion to dismiss and granted summary judgment in favor of the plaintiffs. CP at 155–60. 3. On the Tribe’s petition for direct review, the Washington Supreme Court accepted review. In a 54 decision, the Washington Supreme Court affirmed, holding that the Tribe’s sovereign immunity did not bar suit because the nature of the quiet title action enabled the trial court to exercise in rem jurisdiction 5 over the Tribe’s property rather than in personam jurisdiction over the Tribe. Lundgren, 187 Wash. 2d at 864–68. The Washington Supreme court concluded, that when an action proceeds under the trial court’s in rem jurisdiction, the trial court “[does] not need to address sovereign immunity” because “the doctrine of sovereign immunity [does] not apply.” Id. at 867–68. The Washington Supreme Court also affirmed the trial court’s holding that the Tribe was not a necessary party within the meaning of Rule 19, and, therefore, joinder of the Tribe was not compulsory. Id. at 868–73. 4. The four dissenting justices did not reach the issue of sovereign immunity and rested their conclusions on Rule 19 grounds. Id. at 874–75 (Stephens, J., dissenting). But the dissent also recognized that “recent decisions question whether a court may exercise in rem jurisdiction over cases in which a tribe asserts its sovereign immunity.” Id. at 876 n.1. In particular, the dissent noted that, whether the majority’s holding “rests on a misreading of County of Yakima” “will certainly need to be addressed in a future case that considers the arc of United States Supreme Court precedent leading to Bay Mills.” Id. REASONS WHY CERTIORARI IS WARRANTED A. The decision below conflicts with the weight of authority in the split among lower courts interpreting the reach of County of Yakima. 6 The Washington Supreme Court’s recognition of an in rem exception to tribal sovereign immunity, joined by the North Dakota Supreme Court, directly conflicts with the Second Circuit and New Mexico Supreme Court’s decisions recognizing that sovereign immunity barred suit despite the in rem nature of the underlying proceeding. Compare Lundgren, 187 Wash. 2d at 865–66 (citing to County of Yakima for proposition that “a court exercising in rem jurisdiction is not necessarily deprived of its jurisdiction by a tribe’s assertion of sovereign immunity”), and Cass Cty. Joint Water Res. Dist. v. 1.43 Acres of Land in Highland Twp., 643 N.W. 2d 685, 691 (N.D. 2002) (holding that in rem condemnation action may proceed and citing County of Yakima for the proposition that “[c]ourts have recognized distinctions in application of the doctrine of tribal sovereign immunity based upon the in rem or in personam nature of the proceedings”), with Cayuga Indian Nation of New York v. Seneca Cty., N.Y., 890 F. Supp. 2d 240, 247–48 (W.D.N.Y. 2012) (rejecting argument that County of Yakima “stands for the proposition that tribal sovereign immunity from suit is inapplicable to in rem [foreclosure] proceedings”), aff’d, 761 F.3d 218, 221 (2d Cir. 2014) (declining to read an “implied abrogation” into County of Yakima or “draw [] novel distinctions—such as a distinction between in rem and in personam proceedings” as applied to the doctrine of tribal sovereign immunity from suit), and Hamaatsa, Inc. v. Pueblo of San Felipe, 388 P.3d 977, 985 (N.M. 2016) (rejecting characterization of County of Yakima as authorizing “the tribe’s amenability to suit in court based on a 7 concept of an in rem exception to immunity” because “in the context of tribal sovereign immunity there exists no meaningful distinction between in rem and in personam claims”). These cases diverge on an important question of federal law and cannot be distinguished on the facts. Both the New Mexico Supreme Court and dissent in the Washington Supreme Court recognized this fundamental disagreement over the proper interpretation of County of Yakima in light of Bay Mills. See Hamaatsa, 388 P.3d at 986 (acknowledging the contrary decisions by the North Dakota and Washington Supreme Courts but choosing “to follow the Second Circuit, and thereby refus[ing] to recognize an exception to tribal sovereign immunity for in rem proceedings”); Lundgren, 187 Wash. 2d at 876 n.1 (Stephens, J., dissenting) (“It is worth noting, however, that recent decisions question whether a court may exercise in rem jurisdiction over cases in which a tribe asserts its sovereign immunity, particularly since the Supreme Court issued its decision in Bay Mills, which reiterated the importance of sovereign immunity. Because I would decide this case under CR 19, I do not reexamine our precedent in light of Bay Mills. Nor do I address whether our decision in Anderson rests on a misreading of County of Yakima, though this question will certainly need to be addressed in a future case that considers the arc of United States Supreme Court precedent leading to Bay Mills.”). This split in authority over the proper interpretation of County of Yakima extends to all 8 ranks of federal and state courts and is by no means limited to the rulings of the Second Circuit and three state supreme courts. Compare Save the Valley, LLC v. Santa Ynez Band of Chumash Indians, No. CV1502463RGKMANX, 2015 WL 12552060, at *3 (C.D. Cal. July 2, 2015) (“Plaintiff has failed to provide any binding authority to show that Congress abrogated the Tribe’s immunity to in rem actions . . . . Unlike the present action, Yakima concerned an action by the local government pursuant to an express abrogation of tribal power by an act of Congress.”), Pub. Serv. Co. of New Mexico v. Approximately 15.49 Acres of Land in McKinley Cty., New Mexico, 167 F. Supp. 3d 1248, 1265 (D.N.M. 2016) (distinguishing County of Yakima on the basis that the disputed tribal land subject to the attempted condemnation was a part of an allotment rather than unrestricted land in fee as in County of Yakima), Oneida Indian Nation of New York v. Madison Cty., 401 F. Supp. 2d 219, 229 (N.D.N.Y. 2005) (“The County cannot circumvent Tribal sovereign immunity by characterizing the suit as in rem, when it is, in actuality, a suit to take the tribe’s property.”), aff’d in part, vacated in part, rev’d in part, 665 F.3d 408 (2d Cir. 2011), and First Bank & Tr. v. Maynahonah, 313 P.3d 1044, 1056 (Okla. Civ. App. 2013) (“We do not agree with [the] assertion that Yakima, and the other precedent upon which it relies, are authority that ‘plainly demonstrate that tribal sovereign immunity does not bar the exercise of in rem jurisdiction over tribal property, even when a tribe loses some part of that property as a result.’”), with Miccosukee Tribe of Indians of Florida v. Dep’t of Envtl. Prot. ex rel. Bd. of Trustees of Internal Imp. Tr. Fund, 78 So. 3d 31, 34 9 (Fla. Dist. Ct. App. 2011) (“The eminent domain action here is not an action against the Tribe itself, but instead is an action against land held in fee by the Tribe. The Department of Environmental Protection does not need personal jurisdiction over the Tribe—it needs only in rem jurisdiction over the land.”). The Washington Supreme Court, in joining the North Dakota Supreme Court, has decided an important federal question that conflicts with the decisions of the Second Circuit and New Mexico Supreme Court. This controversy is also evident among the lower federal and state courts of other jurisdictions. This Court’s intervention is necessary to clarify its holding in County of Yakima and resolve this split in authority. B. The decision below is contrary to this Court’s narrow holding in County of Yakima and the limited exceptions to tribal sovereign immunity recently reaffirmed by this Court in Bay Mills. In rem jurisdiction is neither an exception to nor a means to circumvent the Tribe’s right to assert sovereign immunity. The theory—that a trial court can acquire subject-matter jurisdiction in a quiet title action against the tribe because jurisdiction is based in rem over the tribe’s property rather than in personam over the tribe—cannot be reconciled with County of Yakima. In County of Yakima, the Yakima Indian Nation challenged whether the County of Yakima could 10 impose ad valorem taxes on “fee patented”1 lands located within the Yakima Indian Reservation. 502 U.S. at 253. This Court carefully analyzed the plain language as well as history of the Indian General Allotment Act (“GAA”) to determine whether it “contain[ed] the unmistakably clear expression of intent that is necessary to authorize state taxation of Indian lands.” Id. at 251–252, 259. Specifically, this Court examined the significance of the Burke Act proviso, an amendment enacted nearly two decades after the GAA, and confirmed that the proviso contained a clear and unmistakable congressional intent to authorize taxation of fee patented lands, which, necessarily, extended to in rem actions brought to enforce that power to tax. Id. at 259, 264 (“[W]e agree with the Court of Appeals that by specifically mentioning immunity from land taxation ‘as one of the restrictions that would be removed upon conveyance in fee,’ Congress in the Burke Act proviso ‘manifest[ed] a clear intention to permit the state to tax’ such Indian lands.” (citation omitted)). Nothing in County of Yakima, however, stands for the proposition that the in rem nature of the action was dispositive of the issue of sovereign immunity. Rather, only the finding of express abrogation in the The “fee patent” refers to the “issuance of a deed, or title, to land formerly held [in trust] by the U.S. government, to individual members of an Indian tribe.” Gary A. Sokolow, Native Americans and the Law: A Dictionary 90 (2000). 1 11 GAA, through the enactment of the Burke Act proviso, controlled and defeated immunity. That holding, however, extended only to actions concerning property transferred under the GAA. County of Yakima did not purport to—nor could it—erase immunity in all in rem actions. This Court’s discussion of in rem jurisdiction arose only to explain why its earlier decision in Moe v. Confederated Salish and Kootenai Tribes2 was consistent with its holding that the GAA expressly authorized suits to enforce state taxation of fee patented lands. Id. at 265 (“[B]ecause the jurisdiction is in rem rather than in personam, it is assuredly not Moe-condemned . . . .”). But this discussion does not support an interpretation that tribal sovereign immunity turns on the in rem nature of the underlying proceeding. In Moe, this Court rejected the State of Montana’s claim that the GAA expressly authorized taxation of Indians residing or conducting business on reservation land, which Montana alleged gave rise to in personam jurisdiction over reservation Indians to enforce that power to tax. 425 U.S. 463, 478 (1976) (“By its terms [the GAA] does not reach Indians residing or producing income from lands held in trust for the Tribe, which make up about onehalf of the land area of the reservation. If the General Allotment Act itself establishes Montana’s jurisdiction as to those Indians living on ‘fee patented’ lands, then for All jurisdictional purposes civil and criminal the Flathead Reservation has been substantially diminished in size.”). 2 12 The exception to sovereign immunity recognized in County of Yakima was based not on the in rem nature of the action but on the express abrogation of immunity in the GAA. After all, if in rem jurisdiction were alone sufficient to circumvent sovereign immunity, this Court’s careful discussion of the plain language and history of the GAA in County of Yakima would have been unnecessary and moot. The fundamental principle underlying this distinction is that, absent waiver, abrogation must be unequivocal. In the case of fee patented lands, abrogation was an express element of the statute creating the program. County of Yakima relies on this express abrogation in the GAA, which is necessarily limited to fee patented lands as the sole subject of abrogation. Here, it is undisputed that the GAA has no application: the Tribe acquired the disputed land from a private owner through a statutory warranty deed, not from the federal government through the fee patenting system authorized under the GAA. The theory that a tribe’s sovereign immunity turns on whether the judicial proceedings are in rem or in personam conflicts with County of Yakima. And the in rem exception adopted by the Washington Supreme Court also conflicts with this Court’s decision in Bay Mills, which reaffirmed as “settled law” the only two exceptions to the avowedly “broad principle” of sovereign immunity. 134 S. Ct. at 2030–31 (“[W]e have time and again treated the ‘doctrine of tribal immunity [as] settled law’ and dismissed any suit against a tribe absent congressional authorization (or a waiver).”). 13 Further, the distinction between in rem and in personam jurisdiction is pure fiction as it relates to suits against sovereigns. Cf. The Siren, 74 U.S. 152, 154 (1868) (“[T]here is no distinction between suits against the government directly, and suits against its property.”); United States v. Nordic Village, Inc., 503 U.S. 30, 38 (1992) (“we have never applied an in rem exception to the sovereign-immunity bar” in the context of a state’s Eleventh Amendment sovereign immunity). The Washington Supreme Court has decided an important federal question directly in conflict with this Court’s decisions in County of Yakima and Bay Mills. If allowed to stand, the decision below will have far-reaching implications for the sovereign immunity rights of the 29 federally-recognized Indian tribes in Washington State.3 Cf. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65 n.19 (1978) (recognizing that “many of the poorer tribes with limited resources and income could ill afford to shoulder the burdens of” “[t]he cost of civil litigation”). This Court’s intervention is necessary to correct the Washington Supreme Court’s misapplication of binding precedent. See Washington Governor’s Office of Indian Affairs, Washington State Tribal Directory at 2–4 (June 20, 2017), available at http://www.goia.wa.gov/TribalDirectory/TribalDirectory.pdf. 3 14 C. The question presented is an important jurisdictional issue of federal law, and this case would be a good vehicle for resolving it. The Washington Supreme Court’s decision improperly abrogates tribal sovereign immunity, conflicts with this Court’s precedent, and intensifies the emerging division among state supreme courts and federal circuit courts. The decision below is an ideal vehicle for resolving the important federal question of whether the exercise of in rem jurisdiction overcomes the absolute defense of sovereign immunity asserted by a federally recognized Indian tribe absent waiver by the tribe or unequivocal abrogation by Congress. The relevant facts are not in dispute, and resolution of the case primarily turns on clarifying this Court’s holding in County of Yakima. Because this case raises recurring issues involving in rem actions initiated against federally recognized Indian tribes, further delay before resolving the split in authority will have significant, negative implications for tribal sovereignty as well as profound jurisdictional consequences, including an unwarranted drain on judicial resources in cases where jurisdiction should be barred. This Court should accept review to resolve the split in authority, conform the Washington Supreme Court’s decision to the unambiguous precedent of this Court, and restore the broad scope of tribal sovereign immunity. 15 CONCLUSION This petition for writ of certiorari should be granted. Respectfully submitted, Arthur W. Harrigan, Jr. Counsel of Record Tyler L. Farmer Xiang Li Harrigan Leyh Farmer & Thomsen LLP 999 Third Ave., Suite 4400 Seattle, WA 98104 (206) 623-1700 arthurh@harriganleyh.com David S. Hawkins General Counsel Upper Skagit Indian Tribe 25944 Community Pl. Way Sedro-Woolley, WA 98284 (360) 854-7016 dhawkins@upperskagit.com September 8, 2017 16 APPENDIX A SUPREME COURT OF WASHINGTON SHARLINE LUNDGREN and RAY LUNDGREN, wife and husband, Respondents. No. 91622-5 Skagit County No. 15-2-00334-1 OPINION v. UPPER SKAGIT INDIAN TRIBE, Appellant. Appeal from the Superior Court of the State of Washington for Skagit County. No. 15-2-00334 – Dave Needy and Susan Cook, Judges. ARGUED JUNE 9, 2016 FILED FEBRUARY 16, 2017 AMENDED JUNE 8, 2017 RECONSIDERATION DENIED JUNE 12, 2017 Before: En Banc: JOHNSON (Opinion), OWENS, WIGGINS, GONZÁLEZ, YU, STEPHENS (Dissenting), McCloud, Fairhurst, and Madsen, Supreme Court Justices. JOHNSON, J. 1a *861¶1 This case involves the relationship between in rem jurisdiction, Superior Court Civil Rule (CR) 19, and sovereign immunity. The issue is whether the Upper Skagit Indian Tribe’s (Tribe) assertion of sovereign immunity requires dismissal of an in rem adverse possession action to quiet title to a disputed strip of land on the boundary of property purchased by the Tribe. The superior court concluded that because it had in rem jurisdiction, it could determine ownership of the land without the Tribe’s participation. An inquiry under CR 19, as required by our cases, involves a merit-based determination that some interest will be adversely affected in the litigation. Where no interest is found to exist, especially in an in rem proceeding, nonjoinder presents no jurisdictional barriers. We find that the Tribe does not have an interest in the disputed property; therefore, the Tribe’s sovereign immunity is no barrier here to this in rem proceeding. The trial court properly denied the Tribe’s motion to **571 dismiss and granted summary judgment to the property owner. We affirm. FACTS AND PROCEDURAL HISTORY ¶2 Sharline and Ray Lundgren and the Tribe own adjacent properties in Skagit County, Washington. A barbed wire fence runs along the southern portion of the Tribe’s land. The fence spans the width of the Tribe’s lot, with a gate approximately halfway along the fence line. The land between the fence and the southern boundary of the Tribe’s *862 lot is the land at issue in this case. For ease of reference, we refer to this land as the “disputed property.” 2a ¶3 The Lundgrens bought the 10 acres of land immediately south of the disputed property in 1981. The property had been in their extended family since 1947, when Sharline Lundgren’s grandmother first bought the property. The Lundgrens established that the fence on the disputed property has been in the same location since at least 1947, and that for as long as their property has been in the family, they have treated the fence as the boundary line. Since 1947, the Lundgren family exclusively has harvested timber, cleared brush, kept the fence clear of fallen trees, and treated the disputed property on the southern side of the fence as their own. ¶4 The Tribe’s land had been previously owned by Annabell Brown for many decades. In 1984, she quitclaimed a 1/4 undivided interest in the property to her son David Brown. Upon her death, the rest of the property passed to her other children, Paul Brown, Vivian Jennings, and Barbara Carrell. In 2013 the Tribe bought the property from Paul Brown, Jennings, and Carrell, receiving a statutory warranty deed. The Tribe was evidently unaware of the fence when it purchased the property. The Tribe’s surveyors alerted the Tribe to the presence of the fence in October 2013 while surveying the property “in an effort to take the land into Trust.” Clerk’s Papers (CP) at 115. ¶5 In September 2014, the Tribe notified the Lundgrens in a letter that the fence did not represent the boundary and that they were asserting ownership rights to the entire property deeded to them in 2013. 3a The Lundgrens initiated this lawsuit in March 2015. They asked the court to quiet title in the disputed property to them and sought injunctive relief. The Lundgrens moved for summary judgment, arguing they acquired title to the disputed property by adverse possession or by mutual recognition and acquiescence long before the Tribe bought the land. The Tribe moved to dismiss under CR 12(b)(1) for a lack of subject matter jurisdiction *863 based on the Tribe’s sovereign immunity and under CR 12(b)(7),1 which requires joinder of a necessary and indispensable party under CR 19.2 How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross claim, or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defense[ ] may at the option of the pleader be made by motion: ... (7) failure to join a party under [CR] 19. 2 (a) Persons to Be Joined if Feasible. A person who is subject to service or process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (A) as a practical matter impair or impede the person’s ability to protect that interest or (B) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the person’s claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and the person’s joinder would 1 4a **572 ¶6 In the trial court, Judge Dave Needy denied the Tribe’s motion to dismiss. The Tribe moved for direct discretionary review of this ruling. Judge Susan Cook later granted the Lundgrens’ motion for summary judgment, holding the Lundgrens’ “claims of title ownership by adverse possession and mutual recognition and acquiescence is established. Legal title to the disputed property is owned by Plaintiffs.” CP at 159. Judge Cook noted that the fence was not hidden. Both parties recognized the fence as the boundary line and that it had clearly been on the property for much longer than the necessary 10 years. She noted that the Lundgrens’ labor on the property was established by *864 numerous witness declarations. Importantly, she stated that “this is as clear as a case as I’ve had on the bench.” Verbatim Report of Proceedings (VRP) (May 7, 2015) at 20. The Tribe amended its motion for discretionary review to render the venue of the action improper, the joined party shall be dismissed from the action. “(b) Determination by Court Whenever Joinder Not Feasible. If a person joinable under (1) or (2) of section (a) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: (1) to what extent a judgment rendered in the persons absence might be prejudicial to the person or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person’s absence will be adequate; (4) whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.” 5a seek review of both Judge Needy’s and Judge Cook’s orders. We accepted direct review. See Order, Lundgren v. Upper Skagit Indian Tribe, No. 91622-5 (Wash. Feb. 10, 2016). ANALYSIS ¶7 The superior court concluded that because it had in rem jurisdiction, it could determine ownership of the land without the Tribe’s participation. See VRP (Apr. 24, 2015) at 24. While it recognized it could not join the Tribe against its will, the court found the Tribe’s attempt to use CR 19 to be “contrary to common sense, fairness, and due process for all involved.” VRP (Apr. 24, 2015) at 32. ¶8 The Tribe argues that dismissal is required for two reasons. First, it argues the superior court lacks jurisdiction because the Tribe has sovereign immunity from suit, which neither the Tribe nor Congress has waived for quiet title actions. See Appellant’s Opening Br. at 10. The Tribe differentiates between an in rem claim and in rem jurisdiction, asserting that “jurisdiction in this case can only lie if the Court has both subject matter jurisdiction and personal jurisdiction over the claims and parties. Thus, the mere fact of an in rem claim does not affect or somehow avoid threshold jurisdictional questions such as sovereign immunity.” Appellant’s Reply Br. at 5. Second, it argues that even if the lower court had in rem jurisdiction to hear the case, CR 19 requires dismissal because the Tribe is a necessary and indispensable party that cannot be 6a joined due to sovereign immunity. See Appellant’s Opening Br. at 24-30; Appellant’s Reply Br. at 1. ¶9 The Lundgrens acknowledge that the Tribe has sovereign immunity. Resp’ts’ Br. at 6 (“The Lundgrens admit that the Tribe is entitled to sovereign immunity.”). They argue *865 that because the court has in rem jurisdiction over the quiet title action, personal jurisdiction over the Tribe is unnecessary and its immunity is irrelevant. They also assert that because they obtained title by adverse possession before the Tribe purchased the property, “[t]he Tribe’s sovereign immunity does not deprive the court jurisdiction over land the Tribe never owned.” Resp’ts’ Br. at 23. With regard to CR 19, the Lundgrens argue, “[b]ecause the Court has in rem jurisdiction, sovereign immunity is not a bar to jurisdiction, the Tribe is not an indispensable party, and Civil Rule 19 does not prevent the case from proceeding.” Resp’ts’ Br. at 29. I. In Rem Jurisdiction ¶10 Superior courts in Washington have jurisdiction to exercise in rem jurisdiction to settle disputes over real property.3 Quiet title actions are proceedings in rem. Phillips v. Tompson, 73 Wash. 78, 82, 131 P. 461 (1913); see also 14 Karl B. Tegland, Article IV, section 6 of the Washington Constitution expressly establishes that our state’s superior courts “shall have original jurisdiction in all cases at law which involve the title or possession of real property.” See also RCW 2.08.010. 3 7a Washington Practice: Civil Procedure § 5:1, at 155 (2d ed. 2009). In such proceedings, the court has jurisdiction over the property itself. See Tegland, supra. Personal jurisdiction over the landowner is not required. In re Acquisition of Land & Other Prop. by City of Seattle, 56 Wash.2d 541, 544-45, 353 P.2d 955 (1960); see also **573 In re Condemnation Petition City of Lynnwood, 118 Wash. App. 674, 679 & n.2, 77 P.3d 378 (2003) (noting that quiet title actions are proceedings in which the court can exercise in rem jurisdiction, and that “[c]ourts may have jurisdiction to enter judgment with respect to property . . . located within the boundaries of the state, even if personal jurisdiction has not been obtained over the persons affected by the judgment”). *¶11 A court exercising in rem jurisdiction is not necessarily deprived of its jurisdiction by a tribe’s assertion *866 of sovereign immunity. The United States Supreme Court has recognized this principle. In County of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 255, 112 S. Ct. 683, 116 L. Ed. 2d 687 (1992), the county sought to foreclose property within the Yakama Indian Reservation for failure to pay ad valorum taxes. The Yakama Nation argued that state jurisdiction could not be asserted over fee-patented reservation land. The Supreme Court held that the Indian General Allotment Act allowed Yakima County to impose ad valorum taxes on reservation land. 25 U.S.C. §§ 334381. The Court reached that conclusion by characterizing the county’s assertion of jurisdiction over the land as in rem, rather than an assertion of in personam jurisdiction over the Yakama Nation. In 8a other words, the Court had jurisdiction to tax on the basis of alienability of the allotted lands, and not on the basis of jurisdiction over tribal owners. See Anderson & Middleton Lumber Co. v. Quinault Indian Nation, 130 Wash.2d 862, 869-72, 929 P.2d 379 (1996) (describing County of Yakima, 502 U.S. 251). ¶12 This court has similarly upheld a superior court’s assertion of in rem jurisdiction over tribally owned fee-patented land. In Anderson, this court held that the Grays Harbor County Superior Court had in rem jurisdiction over an action to partition and quiet title to fee-patented lands within the Quinault Indian Reservation. In that case, the Quinault Indian nation purchased a 1/6 interest in the surface estate of feepatented land subject to a pending suit to partition and to a lis pendens. Relying on County of Yakima, and noting that an action to partition and quiet title is “a much less intrusive assertion of state jurisdiction over reservation fee patented land” than taxing and foreclosing fee lands, the court concluded the “Superior Court had proper in rem jurisdiction over [the] suit to quiet title and partition alienable and encumberable fee patented property situated within the Quinault Indian Reservation…. An action for partition of real property is a proceeding *867 in rem.” Anderson, 130 Wash.2d at 872, 873, 929 P.2d 379. Furthermore, it was not disputed that the trial court had proper jurisdiction over this action when it was filed. The subsequent sale of an interest in the property to an entity enjoying sovereign immunity (Quinault Nation) is of no consequence in this case because the trial court’s assertion of jurisdiction is not 9a over the entity in personam, but over the property or the “res” in rem. Anderson, 130 Wash.2d at 873, 929 P.2d 379. The court was exercising jurisdiction over the property, not over the Quinault Indian nation, and thus the land was “subject to a state court in rem action which does nothing more than divide it among its legal owners according to their relative interests.” Anderson, 130 Wash.2d at 873, 929 P.2d 379. Because the court determined there was in rem jurisdiction, it did not need to address sovereign immunity. ¶13 Relying on Anderson, Division One of the Court of Appeals held that the court could exercise in rem jurisdiction in the quiet title action in which the Stillaguamish Tribe of Indians purchased land with notice of a pending quiet title action. Smale v. Noretep, 150 Wash. App. 476, 208 P.3d 1180 (2009). In Smale, the Smales sought to quiet title to property they claimed to have acquired through adverse possession against Noretep, the non-Indian original owner. After the Smales sued, Noretep sold the property by statutory warranty deed to the Stillaguamish Tribe. The deed noted the pending quiet title action, and the Smales added the Stillaguamish Tribe as a defendant. The Stillaguamish Tribe argued that sovereign immunity barred the action. The court found: Because courts exercise in rem jurisdiction over property subject to quiet title actions, our Supreme Court has held that transferring **574 the disputed property to a tribal sovereign does not bar the 10a continued exercise of subject matter jurisdiction over the property. Accordingly, we hold that the superior court’s continuing jurisdiction over the land claimed by the Smales for *868 the purposes of determining ownership does not offend the Tribe’s sovereignty. * Smale, 150 Wash. App. at 477, 208 P.3d 1180. ¶14 The court noted, “The quiet title action in Anderson is similar to the quiet title action here in two crucial ways: both are proceedings in rem to determine rights in the property at issue and neither has the potential to deprive any party of land they rightfully own.” Smale, 150 Wash. App. at 483, 208 P.3d 1180. The Smales alleged they acquired title to the land via adverse possession before the original owner sold to the Stillaguamish Tribe. If this were true, the Stillaguamish Tribe never possessed the land and thus never had land to lose. Nor were the Smales attempting to adversely possess against a sovereign. The court concluded that, as in Anderson, the doctrine of sovereign immunity did not apply and did not bar the quiet title action. County of Yakima, Anderson, and Smale establish the principle that our superior courts have subject matter jurisdiction over in rem proceedings in certain situations where claims of sovereign immunity are asserted. II. CR 19 ¶15 Next, we turn to whether the Tribe must be joined to allow the action to proceed under CR 19. The Tribe asserts that even if the trial court had in rem jurisdiction to hear the case, CR 19 requires dismissal 11a because the Tribe is a necessary and indispensable party that cannot be joined due to sovereign immunity. Appellant’s Opening Br. at 24. We disagree. In reaching our decision, we highlight the importance of CR 19 as a prudential standard that asks not whether a court has the power to decide a case, but rather whether it should. ¶16 CR 19(a) involves a three-step analysis. Auto. United Trades Org. v. State, 175 Wash.2d 214, 22223, 285 P.3d 52 (2012). First, the court determines whether absent persons are “necessary” for a just adjudication. If the absentee parties are “necessary,” the court determines whether *869 it is feasible to order the absentee’s joinder. Joinder is generally not feasible when tribal sovereign immunity is asserted. Auto. United Trades Org., 175 Wash.2d at 222 (citing Equal Emp’t Opportunity Comm’n v. Peabody W. Coal Co., 400 F.3d 774, 780-81 (9th Cir. 2005)). “If joining a necessary party is not feasible, the court then considers whether, ‘in equity and good conscience,’ the action should still proceed without the absentees under CR 19(b).” Auto. United Trades Org., 175 Wash.2d at 222. We have recognized that “[d]ismissal under CR 12(b)(7) for failure to join an indispensable party is a ‘drastic remedy’ and should be ordered only when the defect cannot be cured and significant prejudice to the absentees will result.” Auto. United Trades Org., 175 Wash.2d at 222-23 (citing Gildon v. Simon Prop. Grp., Inc., 158 Wash.2d 483, 494, 145 P.3d 1196 (2006) (citing 7 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1609, at 130 (3d ed. 2001))). 12a A. “Necessary” Party ¶17 A party must be joined if adjudication of the matter in the party’s “absence may (A) as a practical matter impair or impede the person’s ability to protect that interest or (B) leave any of the persons already parties subject to substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the person’s claimed interest.” CR 19(a). The heart of the rule is the safeguarding of the absent party’s legally protected interest. Auto. United Trades Org., 175 Wash.2d at 223, 285 P.3d 52. * ¶18 The Tribe asserts that it has a legally protected interest because it claims record title ownership of the disputed property. Appellant’s Opening Br. at 25. An inquiry under CR 19, as required by our cases, involves a merit-based determination that an interest will be adversely affected in the litigation. In an in rem action, the property at issue is the focus of the proceeding. The nature and end result of an in rem action **575 determines often competing interests in the property. This analysis is in contrast to civil actions, where the nature and end result is relief or *870 judgment. This difference is important here in the context of a legally protected interest because the Lundgrens are not seeking to divest a sovereign of ownership or control. Rather, they are attempting to retain what they already own. Where no interest exists, nonjoinder presents no jurisdictional barriers. While this analysis seems, in a way, to put “the cart before the horse,” this is the relevant CR 19 analysis. Here, as our cases recognize, and as the trial court found, 13a Sharline and Ray Lundgren acquired ownership by adverse possession long before the property was purchased by the Tribe. To find sovereign immunity, some impact on a sovereign’s interest should exist. No such interest exists in this case. In the trial court, the Tribe challenged the Lundgrens’ lawsuit to quiet title and defended against the motion for summary judgment.4 The Tribe claimed material issues of fact existed and challenges the summary judgment order here. Considering the facts in the light most favorable to the nonmoving party, we will affirm the trial court’s grant of summary judgment if we determine “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CR 56(c). The Lundgrens are entitled to judgment as a matter of law if the undisputed facts establish that the Lundgrens would have succeeded on an adverse possession claim. We hold that they have. ¶19 To succeed on an adverse possession claim, possession must be “(1) open and notorious, (2) actual and uninterrupted, (3) exclusive, and (4) hostile.” ITT Rayonier, Inc. v. Bell, 112 Wash.2d 754, 757, 774 P.2d 6 (1989) (citing Chaplin v. Sanders, 100 Wash.2d 853, 857, 676 P.2d 431 (1984)). “Possession of the property with each of the necessary concurrent elements must exist for the statutorily prescribed period of 10 years.” In rem actions require giving notice to any and all persons or entities who may claim an interest in the property to allow those potential claimants the opportunity to participate in the action and assert their interest. 4 14a ITT Rayonier, Inc., 112 Wash.2d at 757 (citing RCW 4.16.020). Additionally, we have *871 held that title becomes vested when the elements of adverse possession, specifically the 10 year time period, are established. In Gorman v. City of Woodinville, 175 Wash.2d 68, 283 P.3d 1082 (2012), we recognized this principle. In that case, the claim was asserted and we found that title was acquired before the government purchased the land in question. We held that, as long as the requisites of adverse possession were met before the property was transferred to the government, RCW 4.16.160—which otherwise shields the government from claims of adverse possession— did not control. We found that the quiet title lawsuit against the city could proceed since the legal determination only confirmed that the claim of adverse possession was satisfied before the city acquired the property. The principles recognized in Gorman are important here because the Lundgrens’ claim is based on the fact that title to the land was acquired long before the Tribe purchased the adjacent land. ¶20 The trial court, in granting summary judgment, relied on numerous declarations to find in favor of the Lundgrens. The record establishes that the disputed property has been in the Lundgrens’ extended family since 1947, first purchased by Sharline Lundgren’s grandmother. A permanent, visible, 1,306 foot long fence marked the boundary between the two properties for decades. The Tribe argues that evidence exists that “shows a dispute as to the parties’ knowledge of the existence of the fence.” Appellant’s Opening Br. at 34. Annabell Brown’s 15a brother- in-law, Ray Brown, confirmed that both families were aware of the boundary fence and treated it as the property line. The Tribe asserts that Annabell Brown’s son, David Brown, had no idea the fence was there. Assuming this is true, David Brown’s lack of knowledge is not material to the legal issue in this case because the Lundgrens’ use of the land was sufficient to satisfy the elements of adverse possession. “Open” and “notorious” mean that activities or objects on the land are visible and discoverable, if not actually known, to the true owner. 17 Wil**576 liam B. Stoebuck & John W. Weaver, *872 Washington Practice: Real Estate: Property Law § 8.11, at 523 (2d ed. 2004). “[T]he owner is charged with constructive notice of permanent, visible objects placed on the ground, even if they are only slightly upon the land and would be seen to intrude only by scrupulous inspection or even by professional survey.” Stoebuck & Weaver, supra, at 525. The evidence shows that the Lundgrens exclusively possessed and maintained the disputed property. The Tribe asserted no evidence to rebut the testimony that the Lundgrens and their predecessors have gone onto the property, cut trees, trimmed branches, and perhaps mended the fence in the last 70-plus years. Significantly, Judge Cook, in granting summary judgment, stated that “this is as clear as a case as I’ve had on the bench.” VRP (May 7, 2015) at 20. We find the material facts undisputed and affirm the entry of order of summary judgment. B. “Indispensable” Party *¶21 Because we have found that the Tribe is not 16a a necessary party, we need not continue the CR 19 analysis. However, it is important to note that the principle of indispensability is rooted in equitable considerations. Auto. United Trades Org., 175 Wash.2d at 227 (citing Crosby v. Spokane County, 137 Wash.2d 296, 309, 971 P.2d 32 (1999)). The central question is whether an action can proceed “in equity and good conscience.” CR 19(b). The CR 19 inquiry requires “careful exercise of discretion” and is “ ‘heavily influenced by the facts and circumstances of individual cases.’ ” Auto. United Trades Org., 175 Wash.2d at 229 (quoting Wright, Miller & Kane, supra, § 1604, at 39). Of importance here is that dismissal would result in no adequate remedy for the plaintiff. Because of a strong aversion to dismissal, great weight is given to this factor. There is no alternative judicial forum for the Lundgrens. See Wash. Supreme Court oral argument, Lundgren v. Upper Skagit Indian Tribe, No. 91622-5 (June 9, 2016), at 11 min., 42 sec. to 12 min., 07 sec., audio recording by TVW, Washington State’s Public Affairs Network, http://www.tvw.org (explaining that although there is a tribal court, “the Upper Skagit Indian Tribe has not waived its sovereign immunity from suit in its tribal court, so there would not be a claim in the Upper Skagit Tribal Court to be brought by the plaintiffs”). ¶22 The purpose of CR 19 is to serve “ ‘complete justice’ ” by permitting disputes to go forward only when all parties are present to defend their claims. Auto. United Trades Org., 175 Wash.2d at 233. But as we stated in Automotive United Trades Organization, “ ‘complete justice’ may not be served when a plaintiff 17a is divested of all possible relief because an absent party is a sovereign.” 175 Wash.2d at 233. In this instance, dismissal leads to no justice at all. In Automotive United Trades Organization, we emphasized that sovereign immunity is meant to be raised as a shield by a tribe, not as a sword. Here, a survey of the property was done a month after the property was deeded to the Tribe. See Appellant’s Opening Br. at 5-6. A survey of the property before purchase would have disclosed the existence of the fence and at minimum put a purchaser on notice to determine the property boundaries. The Lundgrens had acquired title by adverse possession decades before the Tribe acquired record title in 2013. After the Lundgrens commenced the quiet title action, the Tribe claimed sovereign immunity and joinder under CR 19 to deny the Lundgrens a forum to acquire legal title to property they rightfully own. The Tribe has wielded sovereign immunity as a sword in disguise. While we do not minimize the importance of tribal sovereign immunity, allowing the Tribe to employ sovereign immunity in this way runs counter to the equitable purposes underlying compulsory joinder. See Auto. United Trades Org., 175 Wash.2d at 233-34, 285 P.3d 52*. Finding otherwise, as correctly articulated by the trial court, is “contrary to common sense, fairness, and due process for all involved.” VRP (Apr. 24, 2015) at 32. We affirm the superior court. WE CONCUR: Owens, J. Wiggins, J. 18a **577 González, J. Yu, J. STEPHENS, J. (dissenting) *874 ¶23 It is well established that “tribal sovereign immunity comprehensively protects recognized American Indian tribes from suit absent explicit and ‘unequivocal’ waiver or abrogation.” Wright v. Colville Tribal Enter. Corp., 159 Wash.2d 108, 112, 147 P.3d 1275 (2006) (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59, 98 S.Ct. 1670, 56 L.Ed. 2d 106 (1978)). “ ‘[S]ociety has consciously opted to shield Indian tribes from suit,’ ” Auto. United Trades Org. v. State, 175 Wash.2d 214, 230, 285 P.3d 52 (2012) (internal quotation marks omitted) (quoting Fluent v. Salamanca Indian Lease Auth., 928 F.2d 542, 548 (2d Cir. 1991)), because tribes are “ ‘separate sovereigns pre- existing the Constitution,’ ” Michigan v. Bay Mills Indian Cmty., __ U.S. __, 134 S.Ct. 2024, 2030, 188 L.Ed. 2d 1071 (2014) (quoting Santa Clara Pueblo, 436 U.S. at 56, 98 S.Ct. 1670). Brushing aside this fundamental principle, the majority concludes that the Upper Skagit Indian Tribe (Tribe) must either waive its sovereign immunity and defend against Sharline and Ray Lundgren’s adverse possession claim, or else risk having judgment entered in its absence. The majority justifies this result on the ground that personal jurisdiction over the Tribe is unnecessary in an in rem action to quiet title. Majority at 579-80. It also insists that the Tribe has no interest in the disputed property because the Lundgrens’ claim of adverse possession predates the Tribe’s ownership, and therefore the Tribe is not a 19a necessary party to this suit. Id. at 577, 581. ¶24 I respectfully dissent. While the existence of in rem jurisdiction gives a court authority to quiet title to real property without obtaining personal jurisdiction over affected parties, Civil Rule (CR) 19 counsels against exercising this authority in the face of a valid assertion of sovereign immunity. Proceeding without regard to the Tribe’s defense, the majority gives “insufficient weight” to the sovereign status of the Tribe and erroneously “reach[es] and discount[s] the merits of [the Tribe’s] claims.” Republic of Philippines v. Pimentel, 553 U.S. 851, 855, 864, 128 S.Ct. 2180, 171 L.Ed. 2d 131 (2008). *875 ¶25 Applying the analysis of CR 19, I would conclude that the Tribe is a necessary and indispensable party that cannot be joined in this quiet title action. The result is clear under our precedent: we should dismiss this case without reaching the merits of the Lundgrens’ claims. Accordingly, I would reverse the superior court and remand for entry of an order of dismissal under CR 12(b)(7). ANALYSIS ¶26 The only difference between this case and others in which we have respected assertions of tribal sovereign immunity is that the superior court’s jurisdiction to quiet title rests on in rem jurisdiction. Focusing on this jurisdictional basis, the majority looks to cases that recognize the superior court’s power to proceed. See, e.g., County of Yakima v. Confederated Tribes & Bands of the Yakima Indian 20a Nation, 502 U.S. 251, 112 S.Ct. 683, 116 L.Ed. 2d 687 (1992); Anderson & Middleton Lumber Co. v. Quinault Indian Nation, 130 Wash.2d 862, 929 P.2d 379 (1996); Smale v. Noretep, 150 Wash. App. 476, 208 P.3d 1180 (2009). The majority is correct that these cases support finding “where claims of sovereign immunity are asserted,” a superior court has “subject matter jurisdiction over in rem proceedings” and may determine the status of the property without obtaining in personam jurisdiction over the tribe. Majority at 580-81. If these cases represented the sole line of relevant authority, I might affirm. Cf. Cass County Joint Water Res. Dist. v. 1.43 Acres of Land, 2002 ND 83, 643 N.W.2d 685, 691-95 (2002) (relying in part on County of Yakima and Anderson, and holding tribal sovereign immunity does not bar “a purely in rem *876 action against land held by the Tribe in fee and which is not reservation land, allotted land, aboriginal land, or trust land”); Miccosukee Tribe of Indians v. Dep’t of Envtl. Prot. ex rel. Bd. of Trs. of Internal Improvement Tr. Fund, 78 So.3d 31, 34 (Fla. Dist. Ct. App. 2011) (holding tribal “sovereign immunity is not implicated and does not bar” an eminent domain action because it is “an action against land **578 held in fee by the Tribe” and there is in rem jurisdiction over the land).1 However, a It is worth noting, however, that recent decisions question whether a court may exercise in rem jurisdiction over cases in which a tribe asserts its sovereign immunity, particularly since the Supreme Court issued its decision in Bay Mills, which reiterated the importance of sovereign immunity. See Hamaatsa, Inc. v. Pubelo of San Felipe, 2016 WL 3382082, at *7 (N.M. June 16, 2016) (holding “regardless of whether Hamaatsa 1 21a finding that the court has in rem jurisdiction does not answer the issues before us. None of these cases address the impact of a tribe’s CR 19 claim. I. CR 19 Counsels against Exercising in Rem Jurisdiction in the Face of a Valid Assertion of Sovereign Immunity ¶27 The majority acknowledges that CR 19 reflects a prudential standard: “CR 19 ... asks not whether a court has the power to decide a case, but rather whether it should.” Majority at 11. But the majority fails to acknowledge the significance of the Tribe’s interest and the Lundgrens’ inability to obtain personal jurisdiction over the Tribe. Instead, the majority seems to believe that because the court has in rem jurisdiction, there is no need to engage in a full CR 19 analysis. This reasoning is flawed. The court’s authority to exercise in rem jurisdiction does not asserts claims that lie in rem or in personam, its action against the Pueblo is barred in accordance with federal law. Because tribal sovereign immunity divests a court of subject matter jurisdiction it does not matter whether Hamaatsa's claim is asserted in rem or in personam” and specifically noting that while Anderson carved out an exception “to tribal sovereign immunity for in rem actions,” that case was decided before Bay Mills, which “unequivocally bars us from carving out a similar exception”); Cayuga Indian Nation v. Seneca County, 761 F.3d 218, 221 (2d Cir. 2014) (finding Bay Mills reaffirmed the importance of sovereign immunity and that it protects a tribe from any suit absent waiver or congressional authorization, and declining “to draw ... a distinction between in rem and in personam proceedings”). Because I would decide this case under CR 19, I do not reexamine our precedent in light of Bay Mills. 22a obviate the need to determine which parties must be joined to fully and justly adjudicate the action. Which parties are necessary and indispensable is a separate question from the court’s jurisdiction—one I find dispositive in this case given the Tribe’s sovereign immunity. *877 ¶28 Sovereign immunity affects personal jurisdiction. See, e.g., Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. 1670 (“ ‘Indian Nations are exempt from suit’ ” (emphasis added) (quoting United States v. U.S. Fid. & Guar. Co., 309 U.S. 506, 512, 60 S.Ct. 653, 84 L.Ed. 894 (1940))); see also Anderson, 130 Wash.2d at 876, 929 P.2d 379 (describing tribal sovereign immunity under the “personal jurisdiction” section).2 Though personal jurisdiction does not impact a superior court’s subject matter jurisdiction for in rem proceedings, In re Acquisition of Land & Other Prop. by City of Seattle, 56 Wash.2d 541, 544-45, 353 P.2d Sovereign immunity has been variously characterized as a matter of subject matter jurisdiction, and as a matter of personal jurisdiction. See, e.g., Miner Elec., Inc. v. Muscogee (Creek) Nation, 505 F.3d 1007, 1009 (10th Cir. 2007) (“‘Tribal sovereign immunity is a matter of subject matter jurisdiction.’” (quoting E.F.W. v. St. Stephen's Indian High Sch., 264 F.3d 1297, 1302-03 (10th Cir. 2001))); Wright, 159 Wash.2d at 111, 147 P.3d 1275 (“The existence of personal jurisdiction over a party asserting tribal sovereign immunity is a question of law reviewed de novo.”). It is not necessary to resolve this dispute here because this case can be resolved under CR 19. Under that standard, in quiet title actions where an absent sovereign may be stripped of land to which it has a legitimate claim, an assertion of sovereign immunity is dispositive and requires dismissal. 2 23a 955 (1960), it does impact a superior court’s ability to join a nonparty. See Equal Emp’l Opportunity Comm’n v. Peabody W. Coal Co., 400 F.3d 774, 779 (9th Cir. 2005) (“Rule 19(a) sets forth three circumstances in which joinder is not feasible: when venue is improper, when the absentee is not subject to personal jurisdiction, and when joinder would destroy subject matter jurisdiction.” (emphasis added)); see also William W. Schwarzer, A. Wallace Tashima & James M. Wagstaffe, Federal Civil Procedure Before Trial 7-37 (2010) (“Joinder is not ‘feasible’ where ... the party sought to be joined is immune from suit”). Personal jurisdiction is thus very relevant to a court’s CR 19 analysis. ¶29 The Tribe is not subject to personal jurisdiction because, as is conceded, it has **579 sovereign immunity. Resp’ts’ Br. at 6. Therefore, while the Tribe is incorrect that “[in rem] jurisdiction in this case can only lie if the Court has both subject matter jurisdiction and personal jurisdiction over the claims and parties,” Appellant’s Reply Br. at 5, it is *878 correct that personal jurisdiction, in part, dictates the outcome of this case. We must consider personal jurisdiction under the analysis of CR 19. II. The Tribe Is a Necessary and Indispensable Party ¶30 We recently addressed CR 19 in a case implicating tribal sovereignty, noting that it applies “when the joinder of absent persons is needed for a just adjudication.” Auto. United Trades Org., 175 Wash.2d at 221, 285 P.3d 52. “Where the feasibility of 24a joinder is contested, courts engage in a three-step analysis.” Id. First, the court determines whether the absent party is “ ‘necessary’ ” under CR 19(a). Id. at 222, 285 P.3d 52. If the party is “necessary,” the court then determines whether joinder is feasible. See id. If it is not feasible to join the party, the court “determine[s] whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed.” CR 19(b). If the action cannot proceed “in equity and good conscience” without the absent party, that party is considered “indispensable.” Id.; Auto. United Trades Org., 175 Wash.2d at 229, 285 P.3d 52. ¶31 The party urging dismissal for failure to join a necessary and indispensable party bears the burden of persuasion. See Auto. United Trades Org., 175 Wash.2d at 222, 285 P.3d 52. “We review a [superior] court’s decision under CR 19 for an abuse of discretion and review any legal determinations necessary to that decision de novo.” Id. We find an abuse of discretion “if the [superior] court relies on unsupported facts, takes a view that no reasonable person would take, applies the wrong legal standard, or bases its ruling on an erroneous view of the law.” Gildon v. Simon Prop. Grp., Inc., 158 Wash.2d 483, 494, 145 P.3d 1196 (2006). Dismissal under CR 12(b)(7) is a “ ‘drastic remedy.’ ” Auto. United Trades Org., 175 Wash.2d at 222, 285 P.3d 52 (quoting Gildon, 158 Wash.2d at 494, 145 P.3d 1196). Because our Civil Rule and Federal Rule of Civil Procedure (FRCP) 19 are substantially similar, we may look to federal case law for guidance. Id. at 223, 285 P.3d 52. 25a ¶32 Here, the superior court denied dismissal based on CR 19 without engaging in the required analysis. In its oral *879 ruling, the court stated that although it understood it could not join the Tribe against its will, it seems to me that the Tribe is the one saying that this property, which by its appearance may be adversely possessed long before the Tribe came into it, is asking to bar litigation for the other side rather than the other way around ... and I find that contrary to common sense, fairness, and due process for all involved. Verbatim Report of Proceedings (Apr. 24, 2015) (VRP) at 32. While the superior court’s concerns are understandable, they reflect a desire to reach the merits of the action so that both parties can have their day in court. The majority adopts this approach unapologetically, asserting without a full analysis of the rule’s factors that CR 19 requires “a merit-based determination,” even though this seems “to put ‘the cart before the horse.’ ” Majority at575. In fact, CR 19 precludes a court from considering the merits when one of the parties validly asserts sovereign immunity. See, e.g., Auto. United Trades Org., 175 Wash.2d at 224, 285 P.3d 52 (noting the CR 19 analysis focuses “on whether a party claims a protected interest, not whether it actually has one”); see also Gildon, 158 Wash.2d at 494, 145 P.3 1196 (contrasting “[d]ismissal under CR 12(b) (7)” with “trials on the merits” (emphasis added)). As the Supreme recognized in Pimentel, beyond the threshold determination that claims are not frivolous in evaluating the CR 19 factors, “consideration of the merits [is] itself an infringement on foreign sovereign 26a immunity.” 553 U.S. at 864, 128 S.Ct 2180. Indeed, it would make no sense that a court evaluating the interests of a party who cannot be joined to an action could summarily decide the party will lose, and therefore has no interests to protect.3 A. The Tribe Is a “Necessary” Party **580 880 ¶33 A party is “necessary” if “the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in The Court of Appeals analysis in Smale, on which the superior court and the majority rely, is problematic in this regard when read in light of the CR 19 cases. See VRP at 31. The Smale court broadly stated that the quiet title action at issue did not have “the potential to deprive any party of land they rightfully own” because the Smales asserted they acquired title by adverse possession before the Tribe bought the property. 150 Wash. App. at 483, 208 P.3d 1180; see also id. at 480-81, 208 P.3d 1180 (“[I]f the Smales acquired title before the suit was filed and Noretep attempted to convey the land, Noretep had no title to convey. Thus, the tribe never had any property to lose.”). The court justified its consideration of the merits on the procedural posture of the case; the tribe moved to dismiss for lack of jurisdiction under CR 12(b)(1), so the court assumed the Smales could prove adverse possession. Id. at 481 n. 15, 208 P.3d 1180. The majority's reliance on Smale is concerning for two reasons. First, the majority goes further than Smale by actually resolving the merits. Compare majority at 581 (the Lundgrens “are attempting to retain what they already own” (emphasis added)), with Smale, 150 Wash. App. at 482, 208 P.3d 1180 (“the Smales are attempting to retain what they allegedly own” (emphasis added)). Second, no similar presumption to that under CR 12(b)(1) applies in considering CR 19 and a motion to dismiss under CR 12(b)(7). 3 27a the person’s absence may ... as a practical matter impair or impede the person’s ability to protect that interest.” CR 19(a)(2) (A). The claimed interest must be legally protected. Auto. United Trades Org., 175 Wash.2d at 224, 285 P.3d 52. As noted above, the main inquiry here is “whether a party claims a protected interest, not whether it actually has one.” Id. ¶34 In concluding that the Tribe has no interest because the Lundgrens satisfied the elements of adverse possession, the majority takes its CR 19 analysis too far. Majority at 581-82. The Tribe claims record title ownership of the disputed property. This is a cognizable claim for a legally protected property interest. See Cady v. Kerr, 11 Wash.2d 1, 8, 14-15, 118 P.2d 182 (1941) (stating that parties with a legal or equitable interest in property directly affected by a boundary dispute must be defendants in the boundary line adjudication); Reitz v. Knight, 62 Wash. App. 575, 585, 814 P.2d 1212 (1991) ( “In the context of boundary line disputes, joinder ordinarily is required only of persons who own property adjacent to the disputed boundary line.”); RCW 7.28.010 (“[a]ny person having a valid subsisting interest in real property, and a right to the possession thereof, may recover the same by action in the superior court of the proper county, to be brought against the tenant in possession; if there is no such tenant, then against the person*881 claiming the title or some interest therein” (emphasis added)); Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1458-59 (9th Cir. 1994) (finding the Quinault Indian Nation was a necessary party because it had a claim to escheated property within 28a its reservation). The Tribe is clearly a necessary party to this lawsuit. B. The Tribe Cannot Be Joined Due to Sovereign Immunity ¶35 Having determined that the Tribe is a necessary party, the next question is whether the Tribe can feasibly be joined. “Joinder is not feasible when tribal sovereign immunity applies.” Auto. United Trades Org., 175 Wash.2d at 222, 285 P.3d 52. Because the parties agree that the Tribe has not waived its sovereign immunity, the Tribe cannot be joined.4 C. The Tribe Is an Indispensable Party ¶36 Because the Tribe is a necessary party that cannot be joined, we must determine if the Tribe is indispensable. See Confederated Tribes of Chehalis Indian Reservation v. Lujan, 928 F.2d 1496, 1499 (9th Cir. 1991). ¶37 Federal courts have consistently recognized “that when the necessary party is immune from suit, there may be ‘very little need for balancing [FRCP] Sovereign immunity may be waived either by the tribe or congressional abrogation. Okla. Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed. 2d 1112 (1991). As noted above, the Lundgrens admit that the Tribe is entitled to sovereign immunity. See Resp'ts' Br. at 6. They do not argue that either the Tribe or Congress waived this immunity. 4 29a 19(b) factors because immunity itself may be viewed as the **581 compelling factor.’ ” Quileute Indian Tribe, 18 F.3d at 1460 (quoting Confederated Tribes of Chehalis Indian Reservation, 928 F.2d at 1499)). Indeed, “comity and respect for sovereign interests often outweigh all other factors in disposing of the joinder question” because “ ‘society has consciously opted to shield Indian tribes from suit.’ ” Auto. United Trades Org., 175 Wash.2d at 230, 285 P.3d 52 (internal quotation marks omitted) (quoting *882 Fluent, 928 F.2d at 548). Courts, however, may still apply the four factors to determine whether a tribe is an indispensable party. Quileute Indian Tribe, 18 F.3d at 1460. These factors are: (1) to what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person’s absence will be adequate; (4) whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. CR 19(b). Analyzing and balancing these factors,5 The majority refuses to balance the parties' interests, choosing instead to ignore three of the four factors. Majority at 582-83; cf. Auto United Trades Org., 175 Wash.2d at 229, 285 P.2d 52 (“In examining each of the four factors ... the court 5 30a I would conclude that the Tribe is an indispensable party. 1. CR 19(b)(1): Prejudice ¶38 Under CR 19(b)(1), we “assess[ ] the likelihood and significance of any prejudice.” Auto. United Trades Org., 175 Wash.2d at 229, 285 P.3d 52. This factor favors the Tribe for two reasons. First, this court has found that “[i]n evaluating the extent of prejudice, we accord heavy weight to the tribes’ sovereign status.” Id. “Indian tribes are ‘domestic dependent nations’ that exercise inherent sovereign authority over their members and territories.” Okla. Tax Comm’n v. Citizen Band of Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed. 2d 1112 (1991) (quoting Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17, 8 L.Ed. 25 (1831)). “Among the core aspects of sovereignty that tribes possess—subject ... to congressional action—is the ‘common-law immunity from suit traditionally enjoyed by sovereign powers.’ ” Bay Mills, 134 S. Ct. at 2030 (quoting *883 Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. 1670). That sovereign immunity against suit “is ‘a necessary corollary to Indian sovereignty and self-governance.’ ” Id. (quoting Three Affil. Tribes of Fort Berthold Reservation v. Wold determines how heavily the factor weighs in favor of, or against, dismissal.” (emphasis added)). The sole factor the majority considers conveniently favors the Lundgrens (remedy for the plaintiffs), while the three it ignores favor the Tribe (prejudice, avoiding or reducing prejudice, and adequacy of the judgment). 31a Eng’g, PC, 476 U.S. 877, 890, 106 S.Ct. 2305, 90 L.Ed. 2d 881 (1986)). “Where tribal sovereign immunity is concerned, ‘respect for the inherent autonomy Indian tribes enjoy has been particularly enduring.’ ” Auto. United Trades Org., 175 Wash.2d at 230, 285 P.3d 52 (quoting Fla. Paraplegic Ass’n v. Miccosukee Tribe of Indians of Fla., 166 F.3d 1126, 1130 (11th Cir. 1999)). This factor strongly favors finding the Tribe to be an indispensable party. See id. at 229-31, 285 P.3d 52; cf. Pimentel, 553 U.S. at 867, 128 S.Ct. 2180 (discussing cases of joinder and the governmental immunity of the United States; finding under the first factor that “[t]hese cases instruct us that where sovereign immunity is asserted, and the claims of the sovereign are not frivolous, dismissal of the action must be ordered where there is a potential for injury to the interests of the absent sovereign”). ¶39 Importantly, a judgment entered in the Tribe’s absence would not bind the Tribe to a determination that the Lundgrens adversely possessed the disputed property. See Cady, 11 Wash.2d at 8, 118 P.2d 182, (explaining parties who have a direct interest in the result of a boundary line dispute must be joined “for otherwise such persons are not bound as to any determination of the location of the boundaries”); Pit River Home & Agric. Coop. Ass’n v. United States, 30 F.3d 1088, 1099 (9th Cir. 1994) (finding the tribal council to be a necessary party in a dispute over the beneficial owners of trust property because “even if the Association obtained its requested relief in this action, it would not have complete relief, since judgment against **582 the government would not bind the Council, which could 32a assert its right to possess the Ranch”); Confederated Tribes of Chehalis Indian Reservation, 928 F.2d at 1498 (finding that in an action challenging the United States’ continuing recognition of the Quinault Indian Nation as the sole governing authority for the Quinault *884 Indian Reservation that “[j]udgment against the federal officials would not be binding on the Quinault Nation, which could continue to assert sovereign powers and management responsibilities over the reservation”). ¶40 A determination of title to the disputed property without the Tribe being a party to the litigation casts a shadow over the Tribe’s ownership. See Quileute Indian Tribe, 18 F.3d at 1460 (agreeing with the lower court’s conclusion “that the Quinaults ‘would suffer severe prejudice by not being a party to an action which could deplete the Quinaults’ land interests or jeopardize their authority to govern the lands in question’ ” (quoting Quileute Indian Tribe v. Lujan, C91-558C, 1992 WL 605423, at *3 (W.D. Wash. Aug. 28, 1992) (court order)). At the same time, proceeding without the Tribe could prevent the Lundgrens from providing marketable title should they someday wish to sell their property. See Hebb v. Severson, 32 Wash.2d 159, 166, 201 P.2d 156 (1948) (“[M]arketable title is one that is free from reasonable doubt and such as reasonably well informed and intelligent purchasers, exercising ordinary business caution, would be willing to accept.”). It thus prejudices both the Tribe and the Lundgrens. See CR 19(b)(1); Pimentel, 553 U.S. at 869, 128 S.Ct. 2180 (FRCP 19(b)‘s first factor “directs consideration of prejudice both to absent persons and those who are 33a parties”). This factor strongly favors dismissal. 2. CR 19(b)(2): Avoiding or Reducing Prejudice ¶41 A further relevant inquiry is whether the court could lessen or avoid prejudice by “protective provisions in the judgment, by the shaping of relief, or [by] other measures.” CR 19(b)(2). The Lundgrens do not propose any way the court could lessen prejudice. I am unable to imagine a remedy that would lessen the prejudice that results from quieting title to disputed property in the absence of the record title holder. The majority fails to acknowledge that we cannot require the Tribe to waive its sovereign immunity *885 to lessen prejudice. See Confederated Tribes of Chehalis Indian Reservation, 928 F.2d at 1500 (“the ability to intervene if it requires waiver of immunity is not a factor that lessens prejudice” (citing Makah Indian Tribe v. Verity, 910 F.2d 555, 560 (9th Cir. 1990)). This factor also strongly favors dismissal. 3. CR 19(b)(3): Judgment Adequacy of the ¶42 The third factor—the adequacy of a judgment rendered without the Tribe—also weighs in favor of dismissal. See CR 19(b)(3). “Adequacy” here “ ‘refers to the public stake in settling disputes by wholes, whenever possible.’ ” Auto. United Trades Org., 175 Wash.2d at 232, 285 P.3d 52 (internal quotation marks omitted) (quoting Pimentel, 553 U.S. at 870, 128 S.Ct.2180). “A party who seeks to quiet title to a piece of land must join all known persons who are 34a claiming title in order to settle the property’s ownership without additional litigation.” 7 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 1621, at 334 (3d ed. 2001). As noted above, the Tribe may not be bound by a determination made in its absence, and the Lundgrens may not be able to obtain secure title absent a judgment against the Tribe. The dispute cannot be completely and definitively settled without joining the Tribe. 4. CR 19(b)(4): Plaintiffs Remedy for the ¶43 Finally, I consider whether the Lundgrens would have a remedy if this case were to be dismissed. See CR 19(b)(4). I agree with the majority that this factor weighs in favor of the Lundgrens. It appears that the Lundgrens do not have another judicial forum in which they may seek relief if this claim were to be dismissed for failure to join the Tribe. See Wash. Supreme Court oral argument, Lundgren v. Upper Skagit Indian Tribe, No. 91622-5 (June 9, 2016), at 11 min., 42 sec., recording by TVW, Washington State’s Public Affairs Network, available at http://www.tvw.org (explaining that although **583 there is a tribal court, “the Upper *886 Skagit Indian Tribe has not waived its sovereign immunity from suit in its tribal court, so there would not be a claim in the Upper Skagit Tribal Court to be brought by the plaintiffs”). However, the majority fails to recognize that “lack of an alternative forum does not automatically prevent dismissal of a suit.” Makah Indian Tribe, 910 F.2d at 560. Courts respect the need 35a to dismiss claims for inability to join a necessary and indispensable sovereign even when doing so denies the plaintiff any remedy. See, e.g., Pit River, 30 F.3d at 1102-03; Quileute Indian Tribe, 18 F.3d at 1460-61; Confederated Tribes of Chehalis Indian Reservation, 928 F.2d at 1500; cf. Pimentel, 553 U.S. at 872, 128 S.Ct. 2180 (“Dismissal under [FRCP] 19(b) will mean, in some instances, that plaintiffs will be left without a forum for definitive resolution of their claims. But that result is contemplated under the doctrine of foreign sovereign immunity.”). This simply underscores that dismissal under CR 19 can be a drastic remedy, albeit a proper one. D. Balancing the CR 19(b) Factors ¶44 Balancing these four factors, I would conclude that the Tribe is a necessary and indispensable party that cannot be joined. The most logical result is that this case should be dismissed pursuant to the Tribe’s CR 12(b)(7) motion, as the Lundgrens’ interest in quieting title to the disputed property yields to the Tribe’s interest in maintaining its sovereign immunity. I recognize that dismissal potentially leaves the Lundgrens without recourse. Although in our most recent CR 19 and sovereign immunity case we rejected dismissal due in part to the plaintiff’s inability to obtain relief, that was a unique case in which the State attempted to assert tribal sovereign immunity “as a sword.” Auto. United Trades Org., 175 Wash.2d at 233, 285 P.3d 52. We explained, “Sovereign immunity is meant to be raised as a shield by the tribe, not wielded as a sword by the State.” Id. Dismissal in that case “would have the effect of 36a immunizing the State, *887 not the tribes, from judicial review.” Id. at 234.6 Here, the Tribe has properly asserted its sovereign immunity as a shield to protect itself from suit. I would therefore respect the Tribe’s status as a sovereign and dismiss the case without reaching the merits of the Lundgrens’ claims. CONCLUSION ¶45 I would reverse the superior court. Under the analysis of CR 19, the Tribe is a necessary and indispensable party that cannot be joined because of sovereign immunity. Accordingly, the Tribe is entitled to dismissal, and I would remand for entry of an order granting the Tribe’s motion to dismiss under CR 12(b)(7). WE CONCUR: Gordon McCloud, J. The majority misses the mark when it asserts that the “Tribe has wielded sovereign immunity as a sword in disguise.” Majority at 576. This statement rests on the mistaken premise that the Tribe seeks to take from the Lundgrens “title to property they rightfully own.” Id. Even accepting as established the Lundgrens' claim that they adversely possessed the disputed property for decades before the Tribe took ownership, they never brought a claim of ownership until now. As a putative defendant in the Lundgrens' quiet title action, the Tribe holds record title—and the validity of that ownership is not in question absent a merits adjudication. Thus, the Tribe is asserting sovereign immunity defensively, to resist being haled into court. The situation could not be more different from the State's offensive assertion of tribal sovereign immunity in Auto. 6 37a Fairhurst, C.J. Madsen, J. 38a APPENDIX B Note for Motion Calendar: Friday, April 24, 2015 at 1:30 P.M. IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR SKAGIT COUNTY SHARLINE LUNDGREN and RAY LUNDGREN, husband and wife, NO.: 15-2-00334-1 Plaintiffs, v. UPPER SKAGIT INDIAN TRIBE, ORDER DENYING DEFENDANT’S MOTION TO DISMISS [PROPOSED] Defendant. _____________________________ THIS MATTER came before the Court on Defendant Upper Skagit Indian Tribe’s Motion to Dismiss for Injunctive Relief and Underlying Complaint and in the Alternative to Stay These Proceedings Pending Appellate Review. The Court has considered the files and pleadings herein, including, without limitation, the following: 1. Upper Skagit Indian Tribe’s Motion to Dismiss for Injunctive Relief and Underlying 39a Complaint and in the Alternative to Stay These Proceedings Pending Appellate Review; 2. Declaration of David S. Hawkins in Support of Upper Skagit Indian Tribe’s Motion to Dismiss for Injunctive Relief and Underlying Complaint and in the Alternative to Stay These Proceedings Pending Appellate Review with Exhibit; 3. Plaintiffs’ Opposition to Upper Skagit Indian Tribe’s Motion to Dismiss for Injunctive Relief and Underlying Complaint and in the Alternative to Stay These Proceedings Pending Appellate Review; 4. The Declarations of Sharline Lundgren, Earline Swanson, Ray Brown and Robert Thomas filed in Support of Plaintiff’s Motion for Summary Judgment; and 5. Reply, if any. It is hereby ORDERED that Upper Skagit Indian Tribe’s Motion to Dismiss for Injunctive Relief and Underlying Complaint and in the Alternative to Stay These Proceedings Pending Appellate Review is DENIED. DATED this 24th day of April, 2015. DAVE NEEDY Judge Skagit County Superior Court 40a APPENDIX C THE SUPREME COURT OF WASHINGTON SHARLINE LUNDGREN and RAY LUNDGREN, wife and husband, Respondents, v. UPPER SKAGIT INDIAN TRIBE, No. 91622-5 Skagit County No. 15-2-00334-1 Appellant. ORDER DENYING FURTHER RECONSIDERATION The Court considered “APPELLANT’S MOTION FOR RECONSIDERATION”. The Court entered an order amending opinion in the above cause on June 8, 2017. Now, therefore, it is hereby ORDERED: That further reconsideration is denied. Dated at Olympia, Washington this 12 -day of June 2017, 2017. For the Court MARY FAIRHURST, Chief Justice Washington State Supreme Court 41a CASE 0:16-cv-03042-SRN-LIB Document 130 Filed 12/22/17 Page 1 of 2 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA FRANCONIA MINERALS (US) LLC; and TWIN METALS MINNESOTA LLC, Plaintiffs, v. UNITED STATES OF AMERICA, et al., Civil Action No. 16-3042 SRN/LIB Defendants, and NORTHEASTERN MINNESOTANS FOR WILDERNESS, Defendant-Intervenor. PLAINTIFFS’ NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), plaintiffs Franconia Minerals (US) LLC and Twin Metals Minnesota LLC file this notice voluntarily dismissing this action without prejudice. By this notice, dismissal of this action without prejudice is effective immediately. Fed. R. Civ. P. 41(a)(1)(A)(i); Adams v. USAA Cas. Ins. Co., 863 F.3d 1069, 1080 (8th Cir. 2017) (“Rule 41(a)(1) cases require no judicial approval or review as a prerequisite to dismissal; in fact, the dismissal is effective upon filing, with CASE 0:16-cv-03042-SRN-LIB Document 130 Filed 12/22/17 Page 2 of 2 no court action required.”); Williams v. Clarke, 82 F.3d 270, 272 (8th Cir. 1996) (“[A] notice of dismissal … operates as a matter of right upon notice to the court, and permission of the court is not required.”). Respectfully submitted, Dated: December 22, 2017 /s/ Daniel S. Volchok PAUL R.Q. WOLFSON (D.C. Bar #414759) (pro hac vice) DANIEL S. VOLCHOK (D.C. Bar #497341) (pro hac vice) ALBINAS J. PRIZGINTAS (D.C. Bar #1006955) (pro hac vice) WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Ave. N.W. Washington, D.C. 20006 Tel.: (202) 663-6000 Fax: (202) 663-6363 MICHAEL J. P. HAZEL (Colo. Bar #49451) (pro hac vice) WILMER CUTLER PICKERING HALE AND DORR LLP 1225 17th St., Suite 2600 Denver, Colorado 80202 Tel.: (720) 274-3135 Fax: (720) 274-3133 STEVEN J. WELLS (Atty. #163508) I. DANIEL COLTON (Atty. #223116) MARK R. KASTER (Atty. #159517) DORSEY & WHITNEY LLP 50 South Sixth St., Suite 1500 Minneapolis, Minnesota 55402 Tel.: (612) 340-2600 Fax: (612) 340-2868 -2- CASE 0:16-cv-03042-SRN-LIB Document 129 Filed 12/22/17 Page 1 of 2 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA ) ) ) ) ) CIVIL NO. 16-3042 SRN/LIB ) ) ) ) ) ) ) ) ) ) ) ) ) ) FRANCONIA MINERALS (US) LLC and TWIN METALS MINNESOTA LLC, Plaintiffs, v. UNITED STATES OF AMERICA; U.S. DEPARTMENT OF THE INTERIOR; SALLY JEWELL, Secretary of the U.S. Department of the Interior; HILARY C. TOMPKINS, Solicitor, U.S. Department of the Interior; and BUREAU OF LAND MANAGEMENT, Defendants. NOTICE Federal Defendants hereby give notice that on December 22, 2017, the Acting Solicitor of the Department of the Interior issued a new opinion, M-37049, entitled “Reversal of M-37036,” which replaces M-37036. A copy of the new opinion is attached as Exhibit A. In light of this new opinion, the Department of the Interior has indicated that the BLM Eastern States Office will be issuing a decision that rescinds its December 15, 2016 decision rejecting the Plaintiffs’ lease renewal application, thereby reinstating the renewal application as it was before the December 15, 2016 decision was issued and also reinstating the two leases (MNES 1352 and MNES 1353) that were issued in 2004, subject to a future decision by BLM on the renewal application. 1 CASE 0:16-cv-03042-SRN-LIB Document 129 Filed 12/22/17 Page 2 of 2 The legal opinion M-37036, BLM’s December 15, 2016 decision rejecting the lease renewal application, and the two leases (MNES 1352 and MNES 1353) are the subjects of this litigation. Federal Defendants are analyzing the effects that the new opinion has on this litigation and may move for further relief or dismissal on additional jurisdictional or other grounds depending on our review. Dated: December 22, 2017 Respectfully submitted, JEFFREY H. WOOD Acting Assistant Attorney General Environment & Natural Resources Division CLARE BORONOW (Admitted to MD bar) Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Natural Resources Section 999 18th Street South Terrace, Suite 370 Denver, CO 80202 Email: clare.boronow@usdoj.gov ph: (303) 844-1362 /s/ Sean C. Duffy MARISSA A. PIROPATO (MA 651630) SEAN C. DUFFY (NY Bar No. 4103131) Trial Attorneys Natural Resources Section 601 D Street NW Washington, DC 20004 Email: sean.c.duffy@usdoj.gov ph: (202) 305-0445 Attorneys for Federal Defendants 2 CASE Document 129-1 Filed 12/22/17 Page 1 of 20 EXHIBIT A CASE Document 129-1 Filed 12/22/17 Page 2 of 20 United States Department ofthe Interior OFFICE OF THE 202-10 lx?l Kill it) 2-2 2017 M-3 7049 Memorandum To: Director, Bureau of Land Management From: Principal Deputy Solicitor Exercising the Authority of the Solicitor Pursuant to Secretarial Order 3345 Subject: Reversal ofM-37036, ?Twin Metals Minnesota Application to Renew Preference Right Leases and On October 21, 2012, Twin Metals Minnesota (Twin Metals) filed an application with the Bureau of Land Management (BLM) to renew hardrock mineral leases 352 and located within the Superior National Forest in Northeastern Minnesota. On March 8, 2016, the former Solicitor issued an M-Opinion entitled, ?Twin Metals Minnesota Application to Renew Preference Right Leases and concluding that the BLM had discretion to either grant or deny Twin Metals? pending application to renew the two hardrock mineral leases. Twin Metals ?led suit on September 12, 2016, challenging the M?Opinion. After the United States Department ongriculture Forest Service (Forest Service) withheld its consent to renew the leases, the BLM cancelled the leases in December 2016. In response to the decision not to renew their leases, Twin Metals asked for reconsideration ofM-37036. After further review of the relevant documents and underlying legal framework, we believe that 37036 erred in concluding that BLM has discretion to grant or deny Twin Metals? lease renewal application. Accordingly, this Memorandum withdraws and replaces For the reasons set forth below, the terms of the original leases issued to Twin Metals? predecessor-in?interest in 1966 remain the operative provisions governing lease renewal. The original 1966 leases provide Twin Metals with a non?discretionary right to a third renewal, subject to readjusted terms and conditions as allowed by the 1966 leases. Accordingly, while the United States maintains discretion to impose reasonable new terms and conditions in the lease renewal agreements, the BLM does not have the discretion to deny the renewal application. CASE Document 129-1 Filed 12/22/17 Page 3 of 20 Background Statutory Authority for Issuance of the Leases The leases are located in northern Minnesota on acquired Weeks Actl lands, as well as lands reserved from the public domain, that are managed as part of the National Forest System by the Forest Service. The Secretary?s authority, as delegated to the BLM, for mineral disposition on the acquired lands is found in section 402 of Reorganization Plan No. 3 of 1946,2 and 16 U.S.C. 520, which governs mineral disposition on Weeks Act lands. The Secretary?s authority, as delegated to the BLM, for mineral disposition on reserved National Forest System lands in Minnesota is 16 U.S.C. 508b. Under these provisions, leasing for hardrock mineral development is allowed only if the Secretary of Agriculture has consented to the issuance of the lease.3 Negotiation and Issuance of the 1966 Leases The history of the original lease negotiations and the subsequent renewals is an important factor in determining the intent of the parties with respect to the right of renewal. The history began in 1952 when Twin Metals? predecessor-in-interest, the International Nickel Company, Inc. (INCO), followed successful prospecting activity by approaching the Department of the Interior (Department) regarding applying for hardrock mineral leases. The two parties began negotiating potential terms in 1953, and INCO originally sought a 50-year lease from the Department.4 The lease negotiations did not end for over ten years, in part because the parties disagreed on three major issues: Term INCO sought a 50-year term to increase certainty for its investors while the BLM wanted a maximum 20-year primary term;5 Royalty rates the Department wanted higher royalty rates than INCO was willing to agree to pay;6 and Production assurances the BLM sought assurance that INCO would begin production during the lease term.7 Pub. L. No. 61-436, 6, 36 Stat. 961, 962 (191 l) (codi?ed as amended at 16 U.S.C. 515). 2 60 Stat. 1097, 1099-1100, Section 402 (May 16, 1946). 3 See 121.; 16 U.S.C. 508(b). 4 Memorandum from United States Geological Survey (USGS) Chief, Conservation Division to ?le, ?Nickel Leasing? (Aug. 13, 1953). 5 Memorandum from P.W. Guild, BLM Chief, Branch of Ferrous Metals to ?le, ?Meeting in Congressman Blatnik?s of?ce re Cu-Ni deposits in Minnesota? (July 9, 1965). 6 Memorandum from USGS Chief, Conservation Division to USGS Associate Director, ?Proposed preference right lease to lntemational Nickel Company, Inc.? (Oct. 29, 1965). 7 Memorandum from BLM Director to D01 Assistant Secretary, Mineral Resources, ?Proposed Preference Right Leases to lntemational Nickel Company, Inc.? (Oct. 5, 1965). CASE Document 129-1 Filed 12/22/17 Page 4 of 20 After several years of exchanging drafts of potential lease terms, the parties reached a compromise agreement on these issues: 0 INCO agreed to accept the 20-year primary term; 0 The BLM agreed to accept a lower yet escalating minimum royalty rate; and The BLM received some production assurances in the form of adjustable royalty rates on future production that would ?uctuate depending on how soon the lessee began producing.8 As a result of these and other compromises, the original MNES-01352 and MNES-01353 leases awarded to INCO on June 1, 1966, were unique, borrowing terms but not utilizing, the Standard Lease Form in place at the time. The royalty and renewal provisions were particularly distinctive. The ?rst section of the leases provides the lessee with the exclusive right to mine on the leasehold for a primary term of 20 years and the right to renewals at 10-year intervals after the primary term: Rights of Lessee. In consideration of the rents and royalties to be paid and conditions and covenants to be observed as herein set forth the Lessor grants to the Lessee . . . the exclusive right to mine, remove, and dispose of all the copper and/or nickel minerals and associated minerals . . . in, upon, or under [the described lands] . . . together with the right to construct and maintain thereon such structures and other facilities as may be necessary or convenient for the mining, preparation, and removal of said minerals, for a period of twenty (20) years with a right in the Lessee to renew the same for successive periods often (10) yearsgeach in accordance with regulation 43 CFR 3221.409 and the provisions of this lease. The regulation referenced in the renewal clause provides in pertinent part that the ?lessee will be granted a right of renewal for successive periods, not exceeding 10 years each, under such reasonable terms and conditions as the Secretary of the Interior may Section 2 of the leases then sets forth most of the lessee?s obligations, covering rental and royalty payments, bonding, inspection, payment of taxes, and non-discrimination provisions, among other things. Of importance for Twin Metals to hold the leases without production, section 2(c) provides for minimum royalty payments in lieu of production. Those provisions state that, beginning after the tenth year of the primary term, the lessee is required to mine a quantity of minerals such that the royalties would be equal to $5 per annum per acre for the primary term and $10 per annum per 8 See Memorandum from USGS Assistant Chief, Conservation Division, to ?le, ?Phone call from Julian Feiss re meeting with International Nickel? (Aug. l8, Memorandum from USGS Director to the Secretary of the Interior, ?Congressman John A. Blatnik may telephone the Secretary? (Jan. 10, I966) (discussing the parties? differing positions on royalty rates and recommending a ?performance clause? be added as a ??reentry? clause for royalty adjustment that might be introduced permitting reevaluation and lowering of the royalty rates if justi?ed after some operating experience?). 9 Section 1(a) of Lease (emphasis added). 1? 43 C.F.R. 3221.40) (1966). CASE Document 129-1 Filed 12/22/17 Page 5 of 20 acre during each renewal or, in lieu of that production, pay royalties equal to the minimum royalty.?l Section 2(c) also allows the lessor in its discretion to waive, reduce or suspend the minimum royalty payment for reasonable periods of time in the interest of conservation.? Pursuant to this section, INCO and its successors have paid over $1.4 million dollars in royalties to the government. Section 5, entitled ?Renewal Terms,? is also unique by describing in detail rights to readjust royalty rates and other terms upon renewal. As more fully discussed in the analysis section below, section 5 creates a production incentive for the lessee by providing BLM with only limited readjustment rights if the lessee was producing by the end of the initial 20-year term. On the other hand, if the lessee was not producing before the initial term ended (and if BLM had not extended the period for commencement of production), then BLM would have the right, starting with the ?rst renewal, to readjust terms and conditions without these limitations. Finally, section 14, entitled ?Royalty Adjustment,? is unique by providing another production incentive. It requires lowering the royalty rate in the second ten years of the primary lease term and in the ?rst three renewals if the lessee sinks a shaft or otherwise commences commercial development within ?ve years of obtaining all the necessary permits and authorizations.? Activity during the Primary Term of the 1966 Leases INCO ful?lled the royalty rate reduction provisions of section 14 by sinking a 1,100 foot mine shaft on lands leased under MNES-01352 in 1967 to obtain bulk sampling. But no production occurred under the leases during the 20-year primary term. Under the terms of section 2(c) of the 1966 leases, minimum royalty payments became due beginning with the 1976-1977 lease year. The BLM granted requests for waivers of the minimum royalty payments for a ?ve- year period, from June 1, 1976, through May 31, 1981, because the State of Minnesota was conducting environmental studies of the proposed mining operations during that time period, which prevented INCO from proceeding with development of the leases.14 INCO again requested a waiver of minimum royalty payments for the ?ve-year period between June 1, 1981, and May 31, 1986, citing copper and nickel prices too low to allow for development. The BLM denied this second request, reasoning in part that the royalty payment was the only diligence requirement in the leases: The provision for minimum royalty in lieu of production requirements was a lease term arrived at through pre-lease negotiations between the Bureau and INCO. The intention of the minimum royalty is to spur development of the resource and, in effect, is the only diligence requirement contained in the subject leases. Waiver of minimum royalty removes all incentive for the timely development of the leases.15 See 2(0) of the 1966 leases. 12 Id '3 Section l4 of the 1966 leases. '4 Memorandum from BLM Associate District Manager, Milwaukee, to the State Director, Eastern States Of?ce, ?Recommendation Regarding an Application for Minimum Royalty Waiver Submitted by INCO Alloys International, Inc.? (Aug. 28, I985CASE Document 129-1 Filed 12/22/17 Page 6 of 20 Beginning in 1985, after the BLM denied the waiver request, INCO started submitting minimum royalty payments as required by the leases. The 1989 Lease Renewals INCO timely ?led its ?rst lease renewal application on May 14, 1986.'6 After receiving legal advice from the Of?ce of the Solicitor con?rming that the lease could be renewed despite the lack of production,'7 the BLM requested the consent of the Forest Service, and the Forest Service agreed to the renewals, ?nding the terms and conditions of the original leases to be ?adequate to prevent or mitigate unacceptable impacts and that no additional conditions need to be added prior to their renewal provided that none of the terms and conditions related to [Forest Service surface] authority are diminished in any manner?? A?er then receiving the recommendations of the BLM Assistant District Manager in Milwaukee, the BLM issued a decision renewing the leases on September 12, 1988, and enclosed a new lease form for IN signature.'9 The new lease would have altered several terms and conditions of the leases, including raising the base royalty rate to 5% and lowering the minimum royalty payment to $3 per acre per year. Before the new lease was signed, the BLM took the unusual step of withdrawing the leasing decision ?because the new lease forms submitted for signature will alter the terms and conditions of the original leases.?20 The withdrawal of the decision was made after an internal reassessment of the renewal form against the original lease terms. An internal BLM memorandum explained that the minimum royalty rate should not be lowered to $3 per acre as the then-current regulations '6 The regulations at 43 C.F.R. 3522.1-1 (1985) state that renewal applications ?must be ?led in the appropriate land of?ce within 90 days prior to the expiration of the lease term.? The ?within 90 days? language in this regulatory provision allows lease renewal applications to be ?led at any time before the expiration of the lease term. The lessee ?led an application for extension of the term of the leases on May 14, 1986?30 days before the end of the primary twenty-year term on June 14, 1986, which was ?within 90 days? of the lease expiration. Consequently, the renewal application was timely ?led. '7 Memorandum ?'om Associate Solicitor, Energy and Resources, to Deputy State Director, Mineral Resources, Eastern States Of?ce, BLM, ?Application for Minimum Royalty Waiver Submitted by INCO Alloys International, Incorporated for Leases ES 01352 and ES 01353? (Apr. 2, 1986). '8 Decision of United States Department of Agriculture (USDA), Forest Service, Superior National Forest Supervisor, Clay Beal, ?Finding of Categorical Exclusion, Conditions of Extending Bureau of Land Management Leases? (Feb. 6, 1987). The Regional Forester subsequently af?rmed the agency?s consent to the 1989 lease renewals. Decision of United States Department of Agriculture (USDA), Forest Service, Eastern Region, Regional Forester, Floyd J. Marita, Preference Right Leases, ES 01352 and ES 01353 Inco Alloys International, Inc. (Superior NF MN) (June 19, I987). '9 Memorandum ?'om BLM Assistant District Manager for Energy and Minerals, Milwaukee to State Director, Eastern States Of?ce, ?Recommendations for Lease Renewals, International Nickel Corporation Leases ES-1352 and (July 9, 1986); Decision by Bureau of Land Management Deputy State Director for Mineral Resources, Eastern States Of?ce to INCO Alloys lntemational, Inc., ?Preference Right Leases Renewed, Lease Forms Transmitted for Signature? (Sept. 12, I988). 20 Decision by BLM Deputy State Director for Mineral Resources, Eastern States Of?ce to INCO Alloys lntemational, Inc., ?Decision Vacated? (Oct. 27, 1988). CASE Document 129-1 Filed 12/22/17 Page 7 of 20 directed, but should be set at the $10 per acre rate outlined in the 1966 leases, as ?[t]his high minimum royalty payment was agreed to through intensive negotiations and is intended to serve as the ?production incentive? or ?diligent development? provision in the leases, and should not be changed.?21 Likewise, with such a production incentive, the memorandum stated that it would be ?inappropriate? to impose an additional production requirement on the lessee in the lease renewal, especially ?when no other hardrock leases in our District contain such a requirement.?22 The memorandum concludes, ?Because of the highly negotiated terms and conditions of these two leases, which contain many references to requirements to be applied during lease renewal periods, I recommend that these leases be renewed under the existing terms and conditions and in their present form, not on the new lease form.?23 Based on this recommendation, the BLM withdrew its initial leasing decision as noted above. A few months later, the BLM granted renewal application in a new decision. This decision expressly stated that the renewal was on the same terms and conditions of the original leases: ?The Forest Service and the Bureau of Land Management have agreed to the renewal of the enclosed Preference Right Leases MNES 1352 and MNES 1353 under the existing terms and conditions of the original lease. Enclosed are lease renewal forms transmitted for your signature and return to this of?ce.?24 The forms the BLM transmitted for signature were the Standard Form 3520-7 (December 1984), with some terms written in and other terms referencing the 1966 leases, which were attached in full to the standard forms. On the standard forms, the BLM typed in single and double asterisks next to section 2 and and included text later in section 14, entitled ?Special Stipulations,? that corresponded to the single and double asterisks. These provisions stated that the ?terms and conditions of the production royalties remains [sic] as stated in the attached original lease agreement,? and that ?[t]he minimum annual production and minimum royalty is $10.00 per acre or a fraction thereof as stated in the attached original lease agreement.?25 The forms also contain a standard renewal provision stating that the lease is effective ?for a period of ten years . . . with preferential right in the lessee to renew for successive periods of ten years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.?26 During this time period, INCO ?led to assign its interests in the leases to American Copper and Nickel Company, Inc. (?American Copper?) in May 1988. The BLM granted the assignments, effective January 1, 1991. Although exploration work continued, neither INCO nor American Copper began production on the leases during the ?rst renewal period. 2' Memorandum from BLM Assistant District Manager for Solid Minerals, Rolla, Vincent Vogt, to the State Director, Eastern States Of?ce, ?Recommendations for Lease Renewals, lntemational Nickel Corporation Hardrock Mineral Leases MNES-1352 and (Oct. 14, 1988Decision by BLM Deputy State Director for Mineral Resources, Eastern States Of?ce to Alloys International, Inc., ?Preference Right Leases Renewed, Lease Forms Transmitted for Signature? (Apr. 25, 1989). 25 1989 lease renewal forms, at 2?3. 26 Id. at 1. CASE Document 129-1 Filed 12/22/17 Page 8 of 20 The 2004 Lease Renewals American Copper timely applied for a second renewal of the leases on March 15, 1999.27 The Forest Service consented to the renewals, ?nding the terms and conditions to be suf?cient.28 The BLM issued its decision granting the lease renewals on November 12, 2003, and directed American Copper to sign the enclosed Preference Right Lease forms and return them to the BLM of?ce within 30 days.29 As lease forms, the BLM again provided Standard Form 3520-7 (December 1984), with identical typed-in provisions to those of the 1989 leases, and again attached the 1966 leases in full.30 The leases were renewed with an effective date of January 1, 2004. On April 7, 2004, American Copper ?led to assign its interests in the leases to Beaver Bay Joint Venture. The BLM approved the assignment on March 30, 2005, to be effective April 1, 2005. Although exploration work continued, neither American Copper nor Beaver Bay Joint Venture began production on the leases during the second renewal period. The 2012 Renewal Application and Issuance of M-37036 On October 21, 2012, Beaver Bay Joint Venture timely ?led for a third renewal of the leases.? Through BLM-approved assignments and transfers, Franconia Minerals (US) LLC (Franconia) later became the current leaseholder of and Franconia is a wholly- owned subsidiary of Twin Metals. In processing the 2012 application for renewal, the BLM identi?ed the need for a legal opinion to determine whether it had discretion to grant or deny the lease renewal. The Solicitor issued M- Opinion 37036 on March 8, 2016, in response to the request.32 In M-3 7036, the Solicitor disagreed with Twin Metals? assertion that the original lease terms governed and provided a perpetual right to renew the leases every ten years. The M-Opinion found that the more recent 2004 lease terms governed renewal, and while the ?2004 lease terms give the lessee preference over other potential lessees to lease the lands in question, they do not entitle the lessee to non- 27 The lessee applied for a second renewal on March 15, 1999, which was 109 days before the end of the ?rst lease renewal on July 1, 1999. The 1999 regulations instruct lessees to ?[?ile an application [for renewal] at least 90 days before the lease term expires.? 43 CPR. 3511.27 (1999). Consequently, the 1999 renewal applications were timely ?led. 28 Decision of the USDA Forest Service, Regional Forester, Randy Moore, to BLM State Director, Eastern States Of?ce, ?Renewal of Preference Right Leases MNES 1352 and MNES 1353? (July 18, 2003). 29 Decision of BLM Chief of Use Authorization, Division of Resources Planning, Use and Protection, to American Copper and Nickel Co., ?Additional Requirements to be Met? (Nov. 12, 2003). 30 See 2004 lease renewal forms, at 2?3. 31 The 2012 renewal application was submitted 438 days before the end of the second renewal on January 1, 2014. The ?ling requirements in the current regulations are the same as those in the 1999 regulations. Id. (2014). Consequently, the 2012 application was timely ?led. 32 Twin Metals Minnesota Application to Renew Preference Right Leases and M-37036 (Mar. 8, 2016). CASE Document 129-1 Filed 12/22/17 Page 9 of 20 discretionary renewal of the leases.?33 The M-Opinion also concluded that even if the terms of the 1966 leases governed, they did not provide a non-discretionary right to renewal. Instead, M-37036 found that ?[u]nder the original 1966 lease terms . . . the lessee was required to commence production within the twenty-year primary term to qualify for three renewals of right.?34 Because no production has occurred, the M-Opinion concluded that no right to renewal existed: ?Twin Metals Minnesota does not have a non-discretionary right to renewal, but rather the BLM has discretion to grant or deny the pending renewal application.? After receiving the M-Opinion, the BLM requested the Forest Service?s consent determination on the lease renewals.35 After taking public comment on the question, the Forest Service submitted a letter to the BLM Director on December 14, 2016, stating it did not consent to renewal of the leases.36 As a result of the Forest Service?s denial of consent, the BLM issued a decision denying renewal of the leases on December 15, 2016.37 Analysis Twin Metals has consistently asserted that the renewal provisions of its 1966 leases govern and provide a right of renewal every ten years as long as it complies with the terms of the leases. In contrast, M-3 7036 concluded that Twin Metal?s renewal rights were governed by the terms of the 2004 lease forms, and that those terms were unambiguous and provided Twin Metals only with the right to be considered for a renewal at the discretion of the Forest Service and the BLM. In addition, M-37036 asserted that even if the terms of the 1966 leases governed, Twin Metals still would not be entitled to a non-discretionary right of renewal because it did not begin production within its extended primary term. As discussed below, Twin Metals is entitled to a third renewal. First, the renewal terms of the 2004 lease form do not govern. The form is ambiguous, and the intent of the parties to keep operative the terms of the 1966 leases becomes clear once the decision ?les are examined.38 M-37036 also misconstrues the terms of the 1966 leases. They do in fact provide for a third, non-discretionary right to renewal without regard to whether production has begun. Accordingly, Twin Metals has the right to renewed leases, subject to the imposition of reasonable new terms and conditions as allowed by the 1966 leases. In the sections below, we ?rst discuss why the 1966 renewal terms govern, and then discuss the meaning of those terms. 331d. at 13. 341d. at 2. 35 Letter from Karen Mouritsen, State Director, BLM Eastern States Of?ce, to Kathleen Atkinson, Regional Forester, Eastern Region, Forest Service (June 3, 2016). 36 Letter from Thomas L. Tidwell, Chief, Forest Service, to Neil Komze, Director, BLM (Dec. 14, 2016). 37 Decision by BLM State Director, Eastern States Of?ce, Karen Mouritsen, to Twin Metals Minnesota Chief Operating Of?ce, Ian Duckworth, ?Lease Renewal Application Rejected? (Dec. 15, 2016). 38 M-37036 did not examine this extrinsic evidence because of its underlying premise that the 2004 lease forms were unambiguous. CASE Document 129-1 Filed 12/22/17 Page 10 of 20 Twin Metals? Renewal Application is Governed by the Renewal Terms of the 1966 Leases M-37036 concluded that the renewal rights of Twin Metals are governed by the terms of BLM stande form 3520-7 (Dec. 1984) rather than the terms of the 1966 leases. To reach this conclusion, M-3 7036 found that the 2004 lease forms ?are each complete, integrated documents that contain all necessary lease terms and are duly signed by the lessee and lessor.?39 The M- Opinion states that the lease forms only incorporate two portions of the 1966 leases through section 14 of the 2004 lease form, and that ?[n]either of these imported provisions includes the lease renewal provisions of the 1966 leases.?4O Consequently, according to M-37036, since the time that the 2004 lease form was executed, ?the renewal provisions of the 1966 leases have no longer applied and the only renewal terms are those described in the 2004 leases . . . M-37036 treats the 1989 lease renewal, which was identical to the one issued in 2004, very differently. The M-Opinion ?nds that ?the 1989 renewal was effectively a ten-year extension of the 1966 lease terms . . . 3?42 In other words, M-37036 recognized that the 1989 form incorporated all the provisions of the 1966 leases, including the renewal terms, while opining that the identically worded form in 2004 did not.43 M-3 7036 misapprehends the meaning and effect of the 2004 lease forms. As discussed below, the 2004 lease terms are ambiguous as to the extent to which the provisions of the 1966 leases are incorporated. Properly analyzed, examining both the text of the leases and the intent of the parties as expressed during negotiations, the renewal provisions found in the 1966 leases remain operative, and provide the non-discretionary right to a third renewal. The normal principles of contract construction lead to the foregoing conclusion.44 When construing a contract, we must ?rst examine the plain meaning of its express terms.45 The task is to determine the intent of the parties at the time they contracted, as evidenced by the contract itself.46 If the terms are clear and unambiguous, the provisions must be given their plain meaning 39 M-37036 at 6. 40 [d 4' Id. M-37036 then opined that the renewal language used in the 2004 lease form made the renewal discretionary, stating that the ?Department has consistently interpreted this provision as not entitling the lessee to an automatic right of renewal . . . Id. at 5. We do not address in this replacement opinion the meaning of the 2004 lease renewal language because, as explained later, the parties intended the renewal terms of the 1966 leases to remain operativediscussed below, see footnote 62 and accompanying text, attempts to distinguish the two situations by ?nding that the 1989 renewal differs ?because the discretion was limited in 1989 but not in 2004.? Id at 6. We discuss below that the discretion did not vary between the two renewals and, even if BLM had differing discretion, it intended the 2004 renewal to maintain the terms of the original I966 leases, just as the 1989 renewal had done. 44 The normal rules of contract construction govern the interpretation of agreements between the government and a private party. Thoman v. Bureau of Land Mgmt. (on recon), 155 IBLA 266, 267 (2001) (citing Anthony v. United States, 987 F.2d 670, 673 (10th Cir. 1993)); Press Machinery Corp. v. Smith R.P.M. Corp., 727 .2d 781, 784 (8th Cir. 1984)). 45 Textron Def Sys. v. Widnall, 143 F.3d 1465, 1468 (Fed. Cir. 1998). 46 Greco v. Dep ?t of Army, 852 F.2d 558, 560 (Fed. Cir. 1988). CASE Document 129-1 Filed 12/22/17 Page 11 of 20 and extrinsic evidence is inadmissible to interpret them.47 However, where contract terms are unclear or ambiguous, an examination of extrinsic evidence is appropriate to properly interpret the contract in accordance with the parties? intent.48 Applying these principles, it is evident that the 2004 leases are ambiguous and extrinsic evidence must be examined to determine the intent of the parties. Rather than being ?complete, integrated documents,? the leases attach without full explanation the entirety of the 1966 leases and do not include an integration clause that states that the 2004 lease forms are the complete expression of the parties? agreement.49 These facts alone warrant an examination of extrinsic evidence to determine the intent of the parties.50 The lack of an integration clause in the 2004 leases is particularly important given the parties? interpretation of the identically wordedl989 leases that the Department has consistently acknowledged as incorporating the 1966 lease terms in their entirety.? The use of the identical form in 2004 without explanation and without an integration clause at the very least creates an ambiguity as to whether the parties intended the 2004 leases to be treated the same as the 1989 leases or completely differently as interpreted by M-3 703 6.52 Even absent that ambiguity, the text of section 14 in the 2004 leases is ambiguous. Section 14 contains two special stipulations that incorporate the 1966 leases: Sec. 14. Special Stipulations The terms and conditions of the production royalties remains [sic] as stated in the attached original lease agreement. 47 McAbee Constr., Inc. v. United States, 97 F.3d 1431, 1435 (Fed. Cir. 1996). 43 BP Amoco Chem. Co. v. Flint Hills Res, LLC, 600 F. Supp. 2d 976, 981 (ND. 111. 2009); see also 5-24 Corbin on Contracts 24.7. Terms may be ambiguous where the language is susceptible to more than one meaning, where the language is unclear or vague, or where the language can reasonably be construed differently by those who have examined the language in the context of the contract as a whole. Thoman, 155 IBLA at 267 (2001) (citing WH Smith Hotel Services v. Wendy's Int'l, Inc., 25 F.3d 422, 427 (7th Cir. 1994) (?Contractual language will be deemed ambiguous only when it is reasonably susceptible to different Collins v. Harrison-Bode, 303 F.3d 429, 433 (2d Cir. 2002) (?Contract language is ambiguous if it is ?capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated 49 ?Integration clauses, also known as merger clauses, are contract provisions that generally state that the agreement as written constitutes the entire agreement between the parties and supersedes any prior representations.? Jacobson v. Hofgard, 168 F. Supp. 3d 187, 201 (D.D.C. 2016) (citing 6 Peter Linzer, Corbin on Contracts (Joseph M. Perillo ed., 2010) at 68). 50 Starter Corp. v. Converse, Inc., 170 F.3d 286, 295 (2d Cir. 1999) (?When a contract lacks an express integration clause [courts] must ?determine whether the parties intended their agreement to be an integrated contract by reading the writing in light of the surrounding circumstances.??) (emphasis added); see also, McAbee Constr., Inc. v. United States, 97 F.3d 1431, 1434 (Fed. Cir. 1996) (?extrinsic evidence is ?especially pertinent where the writing itself contains no recitals or other evidence testifying to its intended completeness and ?nality??). 5' See M-37036 at 6. 52 The historical interpretation given to a contract by the parties is strong evidence of its meaning. Inc. v. Covell, 727 F.2d 1145, 150 (DC. Cir. 1983). 10 CASE Document 129-1 Filed 12/22/17 Page 12 of 20 The minimum annual production and minimum royalty is $10.00 per acre or a fraction thereof as stated in the attached original lease agreement.53 The ?rst quoted stipulation is ambiguous because it does not precisely state which sections of the 1966 lease are being incorporated. Instead it provides that the ?terms and conditions of the production royalties? remain as stated in the original 1966 leases. Those terms and conditions are interspersed throughout the 1966 leases, and are addressed in section 2 (setting the initial rate and minimum royalty payments, among other things), section 5 (setting out the authority and limitations on adjusting royalty rates at renewals), and section 14 (setting out additional limitations on royalty adjustments). By not specifying which of these sections were incorporated and how, the 2004 lease form is ambiguous. Were only the provisions of section 2 intended to be incorporated? Or were the provisions of sections 5 and 14 also to be included? M-37036 assumed the former. Despite section 5 addressing the adjustment of royalties and other terms during renewals, M-37036 assumed that section 5 of the 1966 leases was not incorporated and had no bearing in analyzing the 2004 leases.54 It addressed the meaning of section 5 solely as an alternative argument. Yet this assumption is unwarranted because the ?terms and conditions? of the production royalties are not addressed without sections 5 and 14, so they should be incorporated in some fashion. Precisely how they should be incorporated is also ambiguous given that the royalty and other adjustment provisions of section 5 are intertwined with the renewal provisions of section 1 of the 1966 leases.55 In short, the meaning of the 2004 leases is ambiguous.56 Given this ambiguity, extrinsic evidence beyond the ?four comers? of the document may be considered to ascertain the intent of the contracting parties.57 Examining the decision ?les of the BLM resolves the ambiguity. The record shows that the BLM renewed the leases in 1989 under the same terms as the 1966 leases, and did so again in 2004. The circumstances surrounding the 1989 renewal provide important context for understanding the 2004 renewal. The decision ?le for the 1989 renewal conclusively establishes that the BLM intended to renew the leases in 1989 on the same terms as the original 1966 leases. The BLM initially issued a decision document in September of 1988 that would have renewed the leases on different terms from the original 1966 leases, but the BLM quickly reassessed the matter and 53 2004 Leases at 14. 5" See M-37036 at 6 (?Neither of these imported provisions includes the lease renewal provisions of the I966 leases?); id. at 7 there is no con?icting renewal provision [to the one in the 2004 lease form] referenced elsewhere in the 2004 leases?). ?5 The interrelationship is seen directly in the text of section 5, which refers to the ?successive? renewals that are provided by section I of the 1966 leases. 56 Given the already described ambiguity that is inherent in the 2004 lease forms, this opinion does not address whether there are other potential ambiguities in those forms. 57 See, Daewoo Eng'g Constr. Co. v. United States, 557 F.3d 1332, I337 (Fed. Cir. 2009) (?Where the meaning of a written instrument is unclear, courts look to extrinsic evidence to resolve the question?). 11 CASE Document 129-1 Filed 12/22/17 Page 13 of 20 formally vacated its decision ?because the new lease forms submitted for signature will alter the terms and conditions of the original leases.?58 The unusual act of BLM vacating its initial renewal decision was based, in part, on a recommendation memorandum from the Assistant District Manager for Solid Minerals. The memorandum concluded that ?[b]ecause of the highly negotiated terms and conditions of these two leases, which contain many references to requirements to be applied during lease renewal periods, I recommend that these leases be renewed under the existing terms and conditions and in their present form, not on the new lease form.?59 A few months after vacating its initial decision, the BLM issued a revised decision renewing the leases under the same terms as the original leases. The decision stated unambiguously that it intended to renew the leases with the same terms and conditions as the original leases: ?The Forest Service and the Bureau of Land Management have agreed to the renewal of the enclosed Preference Right Leases MNES 1352 and MNES 1353 under the existing terms and conditions of the original leases. Enclosed are lease renewal forms transmitted for your signature and return to this of?ce.?60 The forms the BLM transmitted for signature were Standard Forms 3520-7 (December 1984), with the original 1966 leases attached and incorporated by reference into the standard forms through two special stipulations included as section 14 of the forms (the same form and special stipulations that would be used in the 2004 renewals). In sum, the 1989 leases, although using Standard Form 3520-7, renewed the 1966 leases without alteration of the operative terms. This fact was acknowledged in When the 2004 renewal was made, there is no statement or other indication in the ?les that the BLM or the company intended to change any of the terms of the 1989 leases. To the contrary, the record shows that the leases were expected to be renewed on the same terms. Before granting the 2004 lease renewals, the Division of Solid Minerals stated by internal memorandum that have no objection to Preference Right Leases MNES-1352 and MN ES-1353 being renewed for ten years, as stipulated within the lease language.?62 The BLM of?cial making this recommendation was the same of?cial who recommended renewing the leases in 1989 on the same terms as the 1966 leases. His reference to the ?lease language? therefore was informed by his knowledge of the 1989 leases and refers to the terms of the governing 1966 leases. Later, the 58 Decision by BLM Deputy State Director for Mineral Resources, Eastern States Of?ce to INCO Alloys lntemational, Inc., ?Decision Vacated? (Oct. 27, 1988). 59 Memorandum ??om BLM Assistant District Manager for Solid Minerals, Rolla, Vincent Vogt, to the State Director, Eastern States Of?ce, ?Recommendations for Lease Renewals, lntemational Nickel Corporation Hardrock Mineral Leases MNES-1352 and (Oct. 14, 1988). 60 Decision by BLM Deputy State Director for Mineral Resources, Eastern States Of?ce to INCO Alloys lntemational, Inc., ?Preference Right Leases Renewed, Lease Forms Transmitted for Signature? (Apr. 25, 1989) (emphasis added). 6' M-37036 at 6, 12. 62 Memorandum ?'om BLM Assistant Field Manager for Solid Minerals, Rolla, Vincent Vogt, to State Director, Eastern States Of?ce, ?Renewal of Preference Right Leases MNES-1352 and (Apr. 12, I999). 12 CASE Document 129-1 Filed 12/22/17 Page 14 of 20 Forest Service also stated that it had no objection to the renewal, as ?[t]he terms, conditions and stipulations have been reviewed, and it has been determined that they are suf?cient to protect the resources of the United States.?63 The BLM issued its decision granting the lease renewals on November 12, 2003, changing neither the terms of the lease renewals nor the conditions and stipulations, and provided the same standard form for signature as the BLM provided to the lessee in 1989.64 The BLM did not indicate any change to the contracts in its decision, and the course of dealings between the parties had establi6sshed the common basis of understanding that the 1966 lease terms were to remain in effect. While M-3 7036 attempted to distinguish between the 1989 and 2004 renewals to explain how two identically worded leases could have drastically different meanings, the attempt fails. As noted earlier, M-3 7036 concludes that the two renewals differ ?because the discretion was limited in 1989 but not in 2004.?66 But even if that were true, it does not follow that BLM intended to exercise its discretion by drastically altering the meaning of the same lease forms in 2004 (without mentioning the fact to the lessee or even in its own internal ?les). As discussed above, there is simply no evidence that either the BLM or the Forest Service intended in the 2004 renewal to deviate from the terms previously in effect in the 1989 renewal the terms of the original 1966 leases). The 2004 renewal could, and did, as discussed above, renew the leases under the same terms as in 1989, thereby retaining the renewal terms of the 1966 leases. In sum, we have found no documents or other evidence that indicate in any way that the 2004 renewals were to be on altered terms or conditions from the 1989 leases. Because the 1989 leases renewed the leases under the same terms and conditions as the original 1966 leases, those terms remain o6p7erative in the 2004 renewal and, as discussed below, entitle Twin Metals to a third renewal. 63 Decision of the USDA Forest Service, Regional Forester, Randy Moore, to BLM State Director, Eastern States Of?ce, ?Renewal of Preference Right Leases MNES 1352 and MNES 1353? (July 18, 2003). 64 Decision of BLM Chief of Use Authorization, Division of Resources Planning, Use and Protection, to American Copper and Nickel Co., ?Additional Requirements to be Met? (Nov. 12, 2003). 65 The courts have recognized that the parties? own construction of an ambiguous written instrument is important when determining its meaning. See DDB Tee/13., L.L.C. v. MLB Advanced Media, L.P., 517 F.3d 1284, 1292 (Fed. Cir. 2008); 1 Richard A. Lord, Williston on Contracts 32:14 (4th ed. 1999) parties' own practical interpretation of the contract-~how they actually acted, thereby giving meaning to their contract during the course of performing it- -can be an important aid to the court?). ?6 M-37036 at 6. The M-Opinion reasons that the 1989 renewal, unlike the 2004 renewal, had to be on the same terms as the original 1966 leases because it served as an extension of time for commencement of production as authorized by the second sentence of section 5 of the 1966 leases. M-37036 at 6. That provision states that a renewal made while the extension is in effect must be ?without readjustment except of royalties payable . . . 1966 Lease, 5 (second sentence). Accordingly, to comply with the dictates of section 5 of the 1966 Leases, the M- Opinion concludes that the 1989 renewal had to be on the same terms as the 1966 leases. The M-Opinion concludes that the 2004 renewal, in contrast, did not have to be on the same terms because it could not and did not provide an extension. It is important to note that nothing on the face of the 1989 lease form states that it serves as an extension, and there is no evidence in the decision ?les that the lessee sought an extension or that BLM granted one. 67 Because the parties intended for the renewal terms of the 1966 leases to remain operative, there is no need to address the meaning of the renewal provision used in the 2004 standard form, which provides for a ?preferential l3 CASE Document 129-1 Filed 12/22/17 Page 15 of 20 The 1966 Lease Terms Provide for a Third Right of Renewal The renewal terms of the 1966 leases are not ambiguous in providing Twin Metals with a non- discretionary right to a third renewal, subject to the United States? right to impose reasonable new terms and conditions. Section 1 of the 1966 leases sets out the overall renewal rights, and it provides ?a right in the Lessee to renew the same for successive periods of ten (10) years each in accordance with regulation 43 C.F.R. 3221.4(0 and the provisions of this lease.?68 The referenced regulation is similarly unambiguous in providing a right to successive renewals, in relevant part providing lessees with: right of renewal for successive periods, not exceeding 10 years each, under such reasonable terms and conditions as the Secretary of the Interior may prescribe, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereof.69 Thus, section 1 of the 1966 leases, by its own terms and by reference to section 3221.4(0 of the regulations, establishes that the lessee has a right of renewal for successive ten-year periods, and that the renewals are subject to the provisions of the lease, including provisions regarding subsequent terms and conditions. No other provision of the leases negates this right of renewal. Accordingly, the 1966 leases provide the lessee with a non-discretionary right of renewal for successive ten-year periods, as long as the lessee complies with the lease terms. M-37036 reached a different conclusion by ?nding that section 5 of the leases conditioned the lessee?s right of renewal upon the lessee having begun production by the end of the primary term. But the text of section 5 does not support this interpretation. Instead, section 5 merely provides terms that govern the extent to which the leases are subject to readjustment at the time of renewal; it does not abrogate the non-discretionary right of renewal provided by section 1. The text of section 5 provides: Renewal Terms. The Lessor shall have the right to reasonably readjust and ?x royalties payable hereunder at the end of the primary term of this lease and thereafter at the end of each successive renewal thereof unless otherwise provided by the law at the time of the right in the lessee to renew for successive periods of 10 years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.? 68 I966 leases 1. 69 43 CPR. 3221 (I966). M-37036 suggests that the last sentence of section 3221.4(f) supports its conclusion that production is a condition of renewal. M-37036 at ll?l2. The last sentence of section 3221.4(f) states: ?An application for renewal of the lease must be ?led in a manner similar to that prescribed for extension of a [prospecting] permit in 322 M-37036 reasons from this language that because section 3221.3(a) required a person seeking an extension of a prospecting permit to show that he has ?diligently performed prospecting activities,? section 3221.4(0 must analogously require a person who is ?ling for renewal of a lease to make ?a showing of diligence in performing production.? M-37036 at M-37036 provided no administrative or judicial precedent to support this interpretation, and it fails upon closer examination. Section 3221.4(f) incorporated section 3221.3(a) only to the extent it dealt with the ?manner? of ?ling 3221.3(a) required ?ling an application in triplicate and with a ?ling fee within 90 days of the permit expiration); it does not incorporate the substantive criteria under which a prospecting permit extension is adjudicated. It thus provides no support for the conclusion that a production requirement is a condition of renewal. 14 CASE Document 129-1 Filed 12/22/17 Page 16 of 20 expiration of any such period, and to readjust other terms and conditions of the lease, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover; provided, however, that the Lessee shall have the right to three successive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day. The Secretary of the Interior may grant extensions of time for commencement of production in the interest of conservation or upon a satisfactory showing by the Lessee that the lease cannot be successfully operated at a pro?t or for other reasons, and the Lessee shall be entitled to renewal as herein provided without readjustment except of royalties payable hereunder if at the end of the primary or renewal period such an extension shall be in effect, but the Lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time. If the Lessee shall be entitled to renewal without readjustment except of royalties payable hereunder, the Secretary of the Interior may in his discretion increase the royalty rate prescribed in subsection of Section 2 up to, but not exceeding 5% during the ?rst ten-year renewal period, (ii) 6% during the second ten-year renewal period, and 7% during the third ten-year renewal period. The extent of readjustment of royalty, if any to be made under this section shall be determined prior to the commencement of the renewal period. Rather than conditioning the right of renewal upon production as M-37036 argues, section 5 sets forth the degree to which the BLM may readjust the terms, conditions, and royalty rates during lease renewals, and creates an incentive for early production by limiting discretion during the ?rst three lease renewals if production has begun. The ?rst sentence in section 5 has engendered the most commentary, but its meaning is evident from the text. Parsed out, the initial clause grants the BLM two rights: 1. The right to reasonably readjust and ?x royalties at the end of the primary term of the lease and at the end of each successive renewal thereof unless otherwise provided by the law at the time of the expiration of any such period; and 2. The right to readjust other terms and conditions of the lease, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover. These rights are subject to one condition set out in the proviso clause. The proviso provides an incentive to production by restricting the right to adjust the terms of the leases during the ?rst three renewals if production has begun during the primary term: That the Lessee has the right to three successive ten-year renewals of the lease with any readjustment in the royalties payable limited to that provided in the 1966 lease and with no readjustment of any of the other terms and conditions of this lease unless at the end of the 15 CASE Document 129-1 Filed 12/22/17 Page 17 of 20 primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day. Under the terms of this proviso, the consequence of a failure to begin production within the primary term is not the loss of the right to renew, as M-37036 asserted, but the loss of the right to a renewal with extremely limited readjustments. Despite the plain wording of this proviso, M-37036 attempted to argue that the ?unless? clause at the end of the sentence ?quali?es the very right to renew.?70 According to that M-Opinion, this ?proper? meaning was demonstrated by deleting text from the provision: [T]he proper meaning of the proviso is clear when the last clause is placed next to the provision it actually quali?es: ?[T]he Lessee shall have the right to three successive ten- year renewals of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day.?? Under this interpretation, the ?nal ?unless? phrase in the proviso imposes a production requirement that negates sub silentio the renewal rights provided in section 1 of the leases. This interpretation is not correct. Deleting the text from the proviso does not clarify its meaning, it simply (and not surprisingly) changes the meaning. The deleted text works with the ?unless? phrase to form one restrictive modi?er that states how the right to three successive renewals will be limited if production has begun. In other words, the ?unless? phrase does not qualify the right to renewal but is part and parcel of the restrictive modi?er describing precisely how the readjustment rights were to be limited if production had begun. Deleting the text thus changes, rather than clari?es, the meaning of the proviso. Moreover, the interpretation suggested by M-37036 does not account for the fact that the entire sentence is a proviso to the ?rst clause. The ?rst clause describes the readjustment authority at renewal and evinces no intention to circumscribe the renewal rights set out in section 1 of the leases or create a production condition on renewal. The proviso is properly interpreted as qualifying this clause,72 but the interpretation suggested by M-3 7036 elevates the proviso into a separate, standalone provision that creates a production condition, which negates the section 1 renewal rights. Such an interpretation is not warranted by the text or placement of the proviso. The remaining two sentences of section 5 reinforce that the right to renew is not impacted by section 5, but merely the amount of readjustments that can be made with a renewal. The second sentence has three clauses. The ?rst clause gives the Secretary of the Interior broad discretion to grant extensions of time for commencement of production in the interest of conservation, upon a showing that the lease cannot be operated for a pro?t, or ?for other reasons.? The second clause makes clear that a consequence of granting an extension is that the lessee will continue to enjoy the 7" M-37036 at 9. 7' 1d. (alteration and ellipsis in original). 72 See, e. Bamhart v. Thomas, 540 vs. 20, 26 (2003) limiting clause or phrase should ordinarily be read as modifying only the noun or phrase that it immediately follows?). 16 CASE Document 129-1 Filed 12/22/17 Page 18 of 20 favorable limitations on lease readjustments if renewal occurs while the extension is in effect: ?the Lessee shall be entitled to renewal as herein provided without readjustment except of royalties payable.? The third clause provides that ?the Lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time? (emphasis added). The phrase ?such renewals? refers back to the preceding clause, which references renewals without readjustment of the terms and conditions.73 In other words, the second sentence of section 5 takes as a given the right to renew the lease; it is only the terms and conditions of a renewal that are affected by the authorized extension of time for commencement of production. Finally, the third sentence of section 5 is straightforward. It provides a schedule for the rate readj ustments when the lessee is entitled to renewal without readjustment except of royalties. It limits rate readj ustments to: 5% during the ?rst ten-year renewal period; 0 6% during the second ten-year renewal period; and 7% during the third ten-year renewal period. As re?ected by this analysis of section 5, its provisions set out the right of BLM to readjust royalty rates and lease terms and conditions at the time of renewal, but creates a production incentive for the lessee by providing BLM with only limited readjustment rights if the lessee begins production by the end of the primary term (or by the end of an extension if one is granted). The commencement of production is thus a condition precedent to limiting readjustment rights, but it is not a condition precedent to the right to a renewal. M-3 7036 attempts to support its interpretation that section 5 imposes a production condition on renewal with a number of subsidiary arguments. The M-Opinion argues, for example, that its position is longstanding and supported by a 1986 memorandum from an Associate Solicitor.74 While that 1986 Opinion answered the narrow renewal question before it correctly, ?nding that BLM could renew the leases in the absence of production, its reasoning is faulty and was not even relied upon in M-3 7036. More speci?cally, the 1986 Opinion improperly focused only on the second sentence of section 5, without reference to section 1 of the lease or even the other sentences of section 5. It summarily concluded that the ?nal clause of the second sentence (which states that ?the lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time?) precludes all subsequent renewals. As discussed above, that is an 73 M-37036 asserts that the last clause of the second sentence supports its interpretation, apparently viewing the phrase ?shall not be entitled to subsequent such renewals? as effectively meaning ?shall not be entitled to any renewals.? The M-Opinion?s construction does not square with the actual wording of the clause. 74 M-37036 at 12 (citing Memorandum from Associate Solicitor, Energy and Resources, signed by Kenneth G. Lee, Assistant Solicitor, Branch of Eastern Resources, to Deputy State Director, Mineral Resources, Eastern States Office, BLM, ?Application for Minimum Royalty Waiver Submitted by INCO Alloys lntemational, Incorporated for Leases ES 01352 and ES 01353? (Apr. 2, I986) (1986 Opinion?. 17 CASE Document 129-1 Filed 12/22/17 Page 19 of 20 improper reading that ignores what the clause is qualifying and gives no meaning to the phase ?such renewals,? instead transforming it into ?all renewals.? Moreover, the BLM appropriately did not follow the advice given in the 1986 Opinion when it renewed the leases for a second time in 2004. The 1986 Opinion thus provides no support for concluding that production is a precondition to the right to renew. M-3 7036 also argues that the lease requirement to pay minimum royalties in lieu of production does not negate the precondition of production for mandatory renewals.75 While it is certainly true that BLM could impose both requirements, the very case cited in the M-Opinion shows that when BLM intends to impose a production requirement, it will do so explicitly. In General Chemicals (Soda Ash) Partners,76 the BLM had imposed a minimum royalty payment in a sodium lease but also included an express production precondition for renewal, stating that ?[t]he authorized officer will reject an application for renewal of this lease if, at the end of the lease?s current term, sodium is not being produced.?77 General Chemicals underscores that the BLM will explicitly include a production precondition when it so intends.78 There is no such provision in the leases at issue. Moreover, the historical record of the 1966 lease implementation shows that production was not made a condition of renewal. For example, as stated in the background section above, the BLM denied IN requested waiver of minimum royalty payments precisely because there was no production requirement in the lease: The provision for minimum royalty in lieu of production requirements was a lease term arrived at through pre-lease negotiations between the Bureau and IN CO. The intention of the minimum royalty is to spur development of the resource and, in effect, is the only diligence requirement contained in the subject leases. Waiver of minimum royalty removes all incentive for the timely development of the leases.79 Later, when processing the 1989 renewal application, the BLM wrote in an internal memorandum that it would be ?inappropriate? to impose a production requirement upon the lessee in the lease renewal, especially ?when no other hardrock leases in our District contain such a requirement.?80 75 M-37036 at l2?l3. 761761BLA 1 (2008). 77 Id. at 5. 78 M-37036 suggests that General Chemicals supports its position because the Board in that case found that the payment of minimum royalties did not satisfy the lease?s production requirement. M37036 at 13 (citing General Chemicals, 176 IBLA. at 9.). Given that the lease in General Chemicals included an express production requirement, while the leases at issue do not, the case is clearly distinguishable and actually supports the conclusion reached here that no production requirement is imposed by the leases. 79 Memorandum ??om BLM Associate District Manager, Milwaukee to the State Director, Eastern States Of?ce, ?Recommendation Regarding an Application for Minimum Royalty Waiver Submitted by INCO Alloys International, Inc.? (Aug. 28, 1985), at 2. 80 Memorandum from BLM Assistant District Manager for Solid Minerals, Rolla, Vincent Vogt, to the State Director, Eastern States Of?ce, ?Recommendations for Lease Renewals, lntemational Nickel Corporation Hardrock Mineral Leases 352 and 353? (Oct. 14, I988) at 2. l8 CASE Document 129-1 Filed 12/22/17 Page 20 of 20 Finally, makes in essence a public policy argument that a lease without a production precondition would allow for speculative holding of mineral rights in contravention of Congress?s intent to encourage mineral development and ?provide a fair return to the American taxpayer.?3' But the leases here do provide incentives for production by imposing minimum royalty payments and authorizing greater revisions of the royalty rates and other terms when there has been no production. The American public has received over $1.4 million dollars in royalty payments, and Twin Metals has asserted that it has spent over $400 million in exploration activity. The public policy concern is unfounded in this instance. In summary, neither the terms of the 1966 leases, the course ofconduct of the parties over the last 50 years, nor public policy suggest that a production precondition is required. Conclusion M-37036 improperly interpreted the leases at issue and is withdrawn. As discussed above, the terms of the original leases issued to Twin Metals? predecessor-in?interest in 1966 remain operative in the 2004 lease renewal. The original 1966 leases provide Twin Metals with a non? discretionary right to a third renewal, subject to the United States? right to impose reasonable terms and conditions as authorized by the 1966 leases. Accordingly, the BLM does not have the discretion to deny the renewal application. [5aniel H. Jorjd i 8? M-37036 at 11. 19 United States Department ofthe Interior OFFICE OF THE SOLICITOR 202-11} RI Ix?I-l-l :ngC 2-2 2017 M-3 7049 Memorandum To: Director, Bureau of Land Management From: Principal Deputy Solicitor Exercising the Authority of the Solicitor Pursuant to Secretarial Order 3345 Subject: Reversal ofM-3 7036, ?Twin Metals Minnesota Application to Renew Preference Right Leases and On October 21, 2012, Twin Metals Minnesota (Twin Metals) filed an application with the Bureau of Land Management (BLM) to renew hardrock mineral leases 352 and located within the Superior National Forest in Northeastern Minnesota. On March 8, 2016, the former Solicitor issued an M-Opinion entitled, ?Twin Metals Minnesota Application to Renew Preference Right Leases and concluding that the BLM had discretion to either grant or deny Twin Metals? pending application to renew the two hardrock mineral leases. Twin Metals ?led suit on September 12, 2016, challenging the M?Opinion. After the United States Department of Agriculture Forest Service (Forest Service) withheld its consent to renew the leases, the BLM cancelled the leases in December 2016. In response to the decision not to renew their leases, Twin Metals asked for reconsideration ofM-37036. After further review of the relevant documents and underlying legal framework, we believe that 37036 erred in concluding that BLM has discretion to grant or deny Twin Metals? lease renewal application. Accordingly, this Memorandum withdraws and replaces 703 6. For the reasons set forth below, the terms of the original leases issued to Twin Metals? predecessor-in?interest in 1966 remain the operative provisions governing lease renewal. The original 1966 leases provide Twin Metals with a non?discretionary right to a third renewal, subject to readjusted terms and conditions as allowed by the 1966 leases. Accordingly, while the United States maintains discretion to impose reasonable new terms and conditions in the lease renewal agreements, the BLM does not have the discretion to deny the renewal application. Background Statutory Authority for Issuance of the Leases The leases are located in northern Minnesota on acquired Weeks Actl lands, as well as lands reserved from the public domain, that are managed as part of the National Forest System by the Forest Service. The Secretary?s authority, as delegated to the BLM, for mineral disposition on the acquired lands is found in section 402 of Reorganization Plan No. 3 of 1946,2 and 16 U.S.C. 520, which governs mineral disposition on Weeks Act lands. The Secretary?s authority, as delegated to the BLM, for mineral disposition on reserved National Forest System lands in Minnesota is 16 U.S.C. 508b. Under these provisions, leasing for hardrock mineral development is allowed only if the Secretary of Agriculture has consented to the issuance of the lease.3 Negotiation and Issuance of the 1966 Leases The history of the original lease negotiations and the subsequent renewals is an important factor in determining the intent of the parties with respect to the right of renewal. The history began in 1952 when Twin Metals? predecessor-in-interest, the International Nickel Company, Inc. (INCO), followed successful prospecting activity by approaching the Department of the Interior (Department) regarding applying for hardrock mineral leases. The two parties began negotiating potential terms in 1953, and INCO originally sought a 50-year lease from the Department.4 The lease negotiations did not end for over ten years, in part because the parties disagreed on three major issues: Term INCO sought a 50-year term to increase certainty for its investors while the BLM wanted a maximum 20-year primary term;5 Royalty rates the Department wanted higher royalty rates than INCO was willing to agree to pay;6 and Production assurances the BLM sought assurance that INCO would begin production during the lease term.7 Pub. L. No. 61-436, 6, 36 Stat. 961, 962 (191 l) (codi?ed as amended at 16 U.S.C. 515). 2 60 Stat. 1097, 1099-1100, Section 402 (May 16, 1946). 3 See 121.; 16 U.S.C. 508(b). 4 Memorandum from United States Geological Survey (USGS) Chief, Conservation Division to ?le, ?Nickel Leasing? (Aug. 13, 1953). 5 Memorandum from P.W. Guild, BLM Chief, Branch of Ferrous Metals to ?le, ?Meeting in Congressman Blatnik?s of?ce re Cu-Ni deposits in Minnesota? (July 9, 1965). 6 Memorandum from USGS Chief, Conservation Division to USGS Associate Director, ?Proposed preference right lease to lntemational Nickel Company, Inc.? (Oct. 29, 1965). 7 Memorandum from BLM Director to D01 Assistant Secretary, Mineral Resources, ?Proposed Preference Right Leases to lntemational Nickel Company, Inc.? (Oct. 5, 1965). After several years of exchanging drafts of potential lease terms, the parties reached a compromise agreement on these issues: 0 INCO agreed to accept the 20-year primary term; 0 The BLM agreed to accept a lower yet escalating minimum royalty rate; and The BLM received some production assurances in the form of adjustable royalty rates on future production that would ?uctuate depending on how soon the lessee began producing.8 As a result of these and other compromises, the original MNES-01352 and MNES-01353 leases awarded to INCO on June 1, 1966, were unique, borrowing terms but not utilizing, the Standard Lease Form in place at the time. The royalty and renewal provisions were particularly distinctive. The ?rst section of the leases provides the lessee with the exclusive right to mine on the leasehold for a primary term of 20 years and the right to renewals at 10-year intervals after the primary term: Rights of Lessee. In consideration of the rents and royalties to be paid and conditions and covenants to be observed as herein set forth the Lessor grants to the Lessee . . . the exclusive right to mine, remove, and dispose of all the copper and/or nickel minerals and associated minerals . . . in, upon, or under [the described lands] . . . together with the right to construct and maintain thereon such structures and other facilities as may be necessary or convenient for the mining, preparation, and removal of said minerals, for a period of twenty (20) years with a right in the Lessee to renew the same for successive periods often (10) yearsgeach in accordance with regulation 43 CFR 3221.409 and the provisions of this lease. The regulation referenced in the renewal clause provides in pertinent part that the ?lessee will be granted a right of renewal for successive periods, not exceeding 10 years each, under such reasonable terms and conditions as the Secretary of the Interior may Section 2 of the leases then sets forth most of the lessee?s obligations, covering rental and royalty payments, bonding, inspection, payment of taxes, and non-discrimination provisions, among other things. Of importance for Twin Metals to hold the leases without production, section 2(c) provides for minimum royalty payments in lieu of production. Those provisions state that, beginning a?er the tenth year of the primary term, the lessee is required to mine a quantity of minerals such that the royalties would be equal to $5 per annum per acre for the primary term and $10 per annum per 8 See Memorandum from USGS Assistant Chief, Conservation Division, to ?le, ?Phone call from Julian Feiss re meeting with International Nickel? (Aug. l8, Memorandum from USGS Director to the Secretary of the Interior, ?Congressman John A. Blamik may telephone the Secretary? (Jan. 10, I966) (discussing the parties? differing positions on royalty rates and recommending a ?performance clause? be added as a ??reentry? clause for royalty adjustment that might be introduced permitting reevaluation and lowering of the royalty rates if justi?ed after some operating experience?). 9 Section 1(a) of Lease (emphasis added). 1? 43 C.F.R. 3221.40) (1966). acre during each renewal or, in lieu of that production, pay royalties equal to the minimum royalty.?l Section 2(c) also allows the lessor in its discretion to waive, reduce or suspend the minimum royalty payment for reasonable periods of time in the interest of conservation.? Pursuant to this section, INCO and its successors have paid over $1.4 million dollars in royalties to the government. Section 5, entitled ?Renewal Terms,? is also unique by describing in detail rights to readjust royalty rates and other terms upon renewal. As more fully discussed in the analysis section below, section 5 creates a production incentive for the lessee by providing BLM with only limited readjustment rights if the lessee was producing by the end of the initial 20-year term. On the other hand, if the lessee was not producing before the initial term ended (and if BLM had not extended the period for commencement of production), then BLM would have the right, starting with the ?rst renewal, to readjust terms and conditions without these limitations. Finally, section 14, entitled ?Royalty Adjustment,? is unique by providing another production incentive. It requires lowering the royalty rate in the second ten years of the primary lease term and in the ?rst three renewals if the lessee sinks a shaft or otherwise commences commercial development within ?ve years of obtaining all the necessary permits and authorizations.? Activity during the Primary Term of the 1966 Leases INCO ful?lled the royalty rate reduction provisions of section 14 by sinking a 1,100 foot mine shaft on lands leased under MNES-01352 in 1967 to obtain bulk sampling. But no production occurred under the leases during the 20-year primary term. Under the terms of section 2(c) of the 1966 leases, minimum royalty payments became due beginning with the 1976-1977 lease year. The BLM granted requests for waivers of the minimum royalty payments for a ?ve- year period, from June 1, 1976, through May 31, 1981, because the State of Minnesota was conducting environmental studies of the proposed mining operations during that time period, which prevented INCO from proceeding with development of the leases.14 INCO again requested a waiver of minimum royalty payments for the ?ve-year period between June 1, 1981, and May 31, 1986, citing copper and nickel prices too low to allow for development. The BLM denied this second request, reasoning in part that the royalty payment was the only diligence requirement in the leases: The provision for minimum royalty in lieu of production requirements was a lease term arrived at through pre-lease negotiations between the Bureau and INCO. The intention of the minimum royalty is to spur development of the resource and, in effect, is the only diligence requirement contained in the subject leases. Waiver of minimum royalty removes all incentive for the timely development of the leases.15 See 2(0) of the 1966 leases. 12 Id '3 Section l4 of the 1966 leases. '4 Memorandum from BLM Associate District Manager, Milwaukee, to the State Director, Eastern States Of?ce, ?Recommendation Regarding an Application for Minimum Royalty Waiver Submitted by INCO Alloys International, Inc.? (Aug. 28, I985Beginning in 1985, after the BLM denied the waiver request, INCO started submitting minimum royalty payments as required by the leases. The 1989 Lease Renewals INCO timely ?led its ?rst lease renewal application on May 14, 1986.'6 After receiving legal advice from the Of?ce of the Solicitor con?rming that the lease could be renewed despite the lack of production,'7 the BLM requested the consent of the Forest Service, and the Forest Service agreed to the renewals, ?nding the terms and conditions of the original leases to be ?adequate to prevent or mitigate unacceptable impacts and that no additional conditions need to be added prior to their renewal provided that none of the terms and conditions related to [Forest Service surface] authority are diminished in any manner?? A?er then receiving the recommendations of the BLM Assistant District Manager in Milwaukee, the BLM issued a decision renewing the leases on September 12, 1988, and enclosed a new lease form for IN signature.'9 The new lease would have altered several terms and conditions of the leases, including raising the base royalty rate to 5% and lowering the minimum royalty payment to $3 per acre per year. Before the new lease was signed, the BLM took the unusual step of withdrawing the leasing decision ?because the new lease forms submitted for signature will alter the terms and conditions of the original leases.?20 The withdrawal of the decision was made after an internal reassessment of the renewal form against the original lease terms. An internal BLM memorandum explained that the minimum royalty rate should not be lowered to $3 per acre as the then-current regulations '6 The regulations at 43 C.F.R. 3522.1-I (1985) state that renewal applications ?must be ?led in the appropriate land of?ce within 90 days prior to the expiration of the lease term.? The ?within 90 days? language in this regulatory provision allows lease renewal applications to be ?led at any time before the expiration of the lease term. The lessee ?led an application for extension of the term of the leases on May I4, 1986?30 days before the end of the primary twenty-year term on June I4, I986, which was ?within 90 days? of the lease expiration. Consequently, the renewal application was timely ?led. '7 Memorandum ?'om Associate Solicitor, Energy and Resources, to Deputy State Director, Mineral Resources, Eastern States Of?ce, BLM, ?Application for Minimum Royalty Waiver Submitted by INCO Alloys International, Incorporated for Leases ES 01352 and ES 01353? (Apr. 2, 1986). '8 Decision of United States Department of Agriculture (USDA), Forest Service, Superior National Forest Supervisor, Clay Beal, ?Finding of Categorical Exclusion, Conditions of Extending Bureau of Land Management Leases? (Feb. 6, 1987). The Regional Forester subsequently af?rmed the agency?s consent to the I989 lease renewals. Decision of United States Department of Agriculture (USDA), Forest Service, Eastern Region, Regional Forester, Floyd J. Marita, Preference Right Leases, ES 01352 and ES 01353 Inco Alloys International, Inc. (Superior NF MN) (June I9, I987). '9 Memorandum ?'om BLM Assistant District Manager for Energy and Minerals, Milwaukee to State Director, Eastern States Of?ce, ?Recommendations for Lease Renewals, International Nickel Corporation Leases ES-1352 and (July 9, 1986); Decision by Bureau of Land Management Deputy State Director for Mineral Resources, Eastern States Of?ce to INCO Alloys lntemational, Inc., ?Preference Right Leases Renewed, Lease Forms Transmitted for Signature? (Sept. 12, I988). 20 Decision by BLM Deputy State Director for Mineral Resources, Eastern States Of?ce to INCO Alloys International, Inc., ?Decision Vacated? (Oct. 27, I988). directed, but should be set at the $10 per acre rate outlined in the 1966 leases, as ?[t]his high minimum royalty payment was agreed to through intensive negotiations and is intended to serve as the ?production incentive? or ?diligent development? provision in the leases, and should not be changed.?21 Likewise, with such a production incentive, the memorandum stated that it would be ?inappropriate? to impose an additional production requirement on the lessee in the lease renewal, especially ?when no other hardrock leases in our District contain such a requirement.?22 The memorandum concludes, ?Because of the highly negotiated terms and conditions of these two leases, which contain many references to requirements to be applied during lease renewal periods, I recommend that these leases be renewed under the existing terms and conditions and in their present form, not on the new lease form.?23 Based on this recommendation, the BLM withdrew its initial leasing decision as noted above. A few months later, the BLM granted renewal application in a new decision. This decision expressly stated that the renewal was on the same terms and conditions of the original leases: ?The Forest Service and the Bureau of Land Management have agreed to the renewal of the enclosed Preference Right Leases MNES 1352 and MNES 1353 under the existing terms and conditions of the original lease. Enclosed are lease renewal forms transmitted for your signature and return to this of?ce.?24 The forms the BLM transmitted for signature were the Standard Form 3520-7 (December 1984), with some terms written in and other terms referencing the 1966 leases, which were attached in full to the standard forms. On the standard forms, the BLM typed in single and double asterisks next to section 2 and and included text later in section 14, entitled ?Special Stipulations,? that corresponded to the single and double asterisks. These provisions stated that the ?terms and conditions of the production royalties remains [sic] as stated in the attached original lease agreement,? and that ?[t]he minimum annual production and minimum royalty is $10.00 per acre or a fraction thereof as stated in the attached original lease agreement.?25 The forms also contain a standard renewal provision stating that the lease is effective ?for a period of ten years . . . with preferential right in the lessee to renew for successive periods of ten years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.?26 During this time period, INCO ?led to assign its interests in the leases to American Copper and Nickel Company, Inc. (?American Copper?) in May 1988. The BLM granted the assignments, effective January 1, 1991. Although exploration work continued, neither INCO nor American Copper began production on the leases during the ?rst renewal period. 2' Memorandum from BLM Assistant District Manager for Solid Minerals, Rolla, Vincent Vogt, to the State Director, Eastern States Of?ce, ?Recommendations for Lease Renewals, lntemational Nickel Corporation Hardrock Mineral Leases MNES-1352 and (Oct. 14, 1988Decision by BLM Deputy State Director for Mineral Resources, Eastern States Of?ce to Alloys lntemational, Inc., ?Preference Right Leases Renewed, Lease Forms Transmitted for Signature? (Apr. 25, 1989). 25 1989 lease renewal forms, at 2?3. 26 Id. at 1. The 2004 Lease Renewals American Copper timely applied for a second renewal of the leases on March 15, 1999.27 The Forest Service consented to the renewals, ?nding the terms and conditions to be suf?cient.28 The BLM issued its decision granting the lease renewals on November 12, 2003, and directed American Copper to sign the enclosed Preference Right Lease forms and return them to the BLM of?ce within 30 days.29 As lease forms, the BLM again provided Standard Form 3520-7 (December 1984), with identical typed-in provisions to those of the 1989 leases, and again attached the 1966 leases in full.30 The leases were renewed with an effective date of January 1, 2004. On April 7, 2004, American Copper ?led to assign its interests in the leases to Beaver Bay Joint Venture. The BLM approved the assignment on March 30, 2005, to be effective April 1, 2005. Although exploration work continued, neither American Copper nor Beaver Bay Joint Venture began production on the leases during the second renewal period. The 2012 Renewal Application and Issuance of M-37036 On October 21, 2012, Beaver Bay Joint Venture timely ?led for a third renewal of the leases.? Through BLM-approved assignments and transfers, Franconia Minerals (US) LLC (Franconia) later became the current leaseholder of and Franconia is a wholly- owned subsidiary of Twin Metals. In processing the 2012 application for renewal, the BLM identi?ed the need for a legal opinion to determine whether it had discretion to grant or deny the lease renewal. The Solicitor issued M- Opinion 37036 on March 8, 2016, in response to the request.32 In M-3 7036, the Solicitor disagreed with Twin Metals? assertion that the original lease terms governed and provided a perpetual right to renew the leases every ten years. The M-Opinion found that the more recent 2004 lease terms governed renewal, and while the ?2004 lease terms give the lessee preference over other potential lessees to lease the lands in question, they do not entitle the lessee to non- 27 The lessee applied for a second renewal on March 15, 1999, which was 109 days before the end of the ?rst lease renewal on July 1, 1999. The 1999 regulations instruct lessees to ?[?ile an application [for renewal] at least 90 days before the lease term expires.? 43 CPR. 3511.27 (1999). Consequently, the 1999 renewal applications were timely ?led. 28 Decision of the USDA Forest Service, Regional Forester, Randy Moore, to BLM State Director, Eastern States Of?ce, ?Renewal of Preference Right Leases MNES 1352 and MNES 1353? (July 18, 2003). 29 Decision of BLM Chief of Use Authorization, Division of Resources Planning, Use and Protection, to American Copper and Nickel Co., ?Additional Requirements to be Met? (Nov. 12, 2003). 30 See 2004 lease renewal forms, at 2?3. 31 The 2012 renewal application was submitted 438 days before the end of the second renewal on January 1, 2014. The ?ling requirements in the current regulations are the same as those in the 1999 regulations. Id. (2014). Consequently, the 2012 application was timely ?led. 32 Twin Metals Minnesota Application to Renew Preference Right Leases and M-37036 (Mar. 8, 2016). discretionary renewal of the leases.?33 The M-Opinion also concluded that even if the terms of the 1966 leases governed, they did not provide a non-discretionary right to renewal. Instead, M-37036 found that ?[u]nder the original 1966 lease terms . . . the lessee was required to commence production within the twenty-year primary term to qualify for three renewals of right.?34 Because no production has occurred, the M-Opinion concluded that no right to renewal existed: ?Twin Metals Minnesota does not have a non-discretionary right to renewal, but rather the BLM has discretion to grant or deny the pending renewal application.? After receiving the M-Opinion, the BLM requested the Forest Service?s consent determination on the lease renewals.35 After taking public comment on the question, the Forest Service submitted a letter to the BLM Director on December 14, 2016, stating it did not consent to renewal of the leases.36 As a result of the Forest Service?s denial of consent, the BLM issued a decision denying renewal of the leases on December 15, 2016.37 Analysis Twin Metals has consistently asserted that the renewal provisions of its 1966 leases govern and provide a right of renewal every ten years as long as it complies with the terms of the leases. In contrast, M-3 7036 concluded that Twin Metal?s renewal rights were governed by the terms of the 2004 lease forms, and that those terms were unambiguous and provided Twin Metals only with the right to be considered for a renewal at the discretion of the Forest Service and the BLM. In addition, M-37036 asserted that even if the terms of the 1966 leases governed, Twin Metals still would not be entitled to a non-discretionary right of renewal because it did not begin production within its extended primary term. As discussed below, Twin Metals is entitled to a third renewal. First, the renewal terms of the 2004 lease form do not govern. The form is ambiguous, and the intent of the parties to keep operative the terms of the 1966 leases becomes clear once the decision ?les are examined.38 M-37036 also misconstrues the terms of the 1966 leases. They do in fact provide for a third, non-discretionary right to renewal without regard to whether production has begun. Accordingly, Twin Metals has the right to renewed leases, subject to the imposition of reasonable new terms and conditions as allowed by the 1966 leases. In the sections below, we ?rst discuss why the 1966 renewal terms govern, and then discuss the meaning of those terms. 331d. at 13. 341d. at 2. 35 Letter from Karen Mouritsen, State Director, BLM Eastern States Of?ce, to Kathleen Atkinson, Regional Forester, Eastern Region, Forest Service (June 3, 2016). 36 Letter from Thomas L. Tidwell, Chief, Forest Service, to Neil Komze, Director, BLM (Dec. 14, 2016). 37 Decision by BLM State Director, Eastern States Of?ce, Karen Mouritsen, to Twin Metals Minnesota Chief Operating Of?ce, Ian Duckworth, ?Lease Renewal Application Rejected? (Dec. 15, 2016). 38 M-37036 did not examine this extrinsic evidence because of its underlying premise that the 2004 lease forms were unambiguous. Twin Metals? Renewal Application is Governed by the Renewal Terms of the 1966 Leases M-37036 concluded that the renewal rights of Twin Metals are governed by the terms of BLM standard form 3520-7 (Dec. 1984) rather than the terms of the 1966 leases. To reach this conclusion, M-3 7036 found that the 2004 lease forms ?are each complete, integrated documents that contain all necessary lease terms and are duly signed by the lessee and lessor.?39 The M- Opinion states that the lease forms only incorporate two portions of the 1966 leases through section 14 of the 2004 lease form, and that ?[n]either of these imported provisions includes the lease renewal provisions of the 1966 leases.?4O Consequently, according to M-37036, since the time that the 2004 lease form was executed, ?the renewal provisions of the 1966 leases have no longer applied and the only renewal terms are those described in the 2004 leases . . . M-37036 treats the 1989 lease renewal, which was identical to the one issued in 2004, very differently. The M-Opinion ?nds that ?the 1989 renewal was effectively a ten-year extension of the 1966 lease terms . . . 3?42 In other words, M-37036 recognized that the 1989 form incorporated all the provisions of the 1966 leases, including the renewal terms, while opining that the identically worded form in 2004 did not.43 M-3 7036 misapprehends the meaning and effect of the 2004 lease forms. As discussed below, the 2004 lease terms are ambiguous as to the extent to which the provisions of the 1966 leases are incorporated. Properly analyzed, examining both the text of the leases and the intent of the parties as expressed during negotiations, the renewal provisions found in the 1966 leases remain operative, and provide the non-discretionary right to a third renewal. The normal principles of contract construction lead to the foregoing conclusion.44 When construing a contract, we must ?rst examine the plain meaning of its express terms.45 The task is to determine the intent of the parties at the time they contracted, as evidenced by the contract itself.46 If the terms are clear and unambiguous, the provisions must be given their plain meaning 39 M-37036 at 6. 40 [d 4' Id. M-37036 then opined that the renewal language used in the 2004 lease form made the renewal discretionary, stating that the ?Department has consistently interpreted this provision as not entitling the lessee to an automatic right of renewal . . . Id. at 5. We do not address in this replacement opinion the meaning of the 2004 lease renewal language because, as explained later, the parties intended the renewal terms of the 1966 leases to remain operativediscussed below, see footnote 62 and accompanying text, attempts to distinguish the two situations by ?nding that the 1989 renewal differs ?because the discretion was limited in 1989 but not in 2004.? Id at 6. We discuss below that the discretion did not vary between the two renewals and, even if BLM had differing discretion, it intended the 2004 renewal to maintain the terms of the original I966 leases, just as the 1989 renewal had done. 44 The normal rules of contract construction govern the interpretation of agreements between the government and a private party. Thoman v. Bureau of Land Mgmt. (on recon), 155 IBLA 266, 267 (2001) (citing Anthony v. United States, 987 F.2d 670, 673 (10th Cir. 1993)); Press Machinery Corp. v. Smith R.P.M. Corp., 727 .2d 781, 784 (8th Cir. 1984)). 45 Textron Def Sys. v. Widnall, 143 F.3d 1465, 1468 (Fed. Cir. 1998). 46 Greco v. Dep ?t of Army, 852 F.2d 558, 560 (Fed. Cir. 1988). and extrinsic evidence is inadmissible to interpret them.47 However, where contract terms are unclear or ambiguous, an examination of extrinsic evidence is appropriate to properly interpret the contract in accordance with the parties? intent.48 Applying these principles, it is evident that the 2004 leases are ambiguous and extrinsic evidence must be examined to determine the intent of the parties. Rather than being ?complete, integrated documents,? the leases attach without full explanation the entirety of the 1966 leases and do not include an integration clause that states that the 2004 lease forms are the complete expression of the parties? agreement.49 These facts alone warrant an examination of extrinsic evidence to determine the intent of the parties.50 The lack of an integration clause in the 2004 leases is particularly important given the parties? interpretation of the identically wordedl989 leases that the Department has consistently acknowledged as incorporating the 1966 lease terms in their entirety.? The use of the identical form in 2004 without explanation and without an integration clause at the very least creates an ambiguity as to whether the parties intended the 2004 leases to be treated the same as the 1989 leases or completely differently as interpreted by M-3 703 6.52 Even absent that ambiguity, the text of section 14 in the 2004 leases is ambiguous. Section 14 contains two special stipulations that incorporate the 1966 leases: Sec. 14. Special Stipulations The terms and conditions of the production royalties remains [sic] as stated in the attached original lease agreement. 47 McAbee Constr., Inc. v. United States, 97 F.3d 1431, 1435 (Fed. Cir. 1996). 43 BP Amoco Chem. Co. v. Flint Hills Res, LLC, 600 F. Supp. 2d 976, 981 (ND. 111. 2009); see also 5-24 Corbin on Contracts 24.7. Terms may be ambiguous where the language is susceptible to more than one meaning, where the language is unclear or vague, or where the language can reasonably be construed differently by those who have examined the language in the context of the contract as a whole. Thoman, 155 IBLA at 267 (2001) (citing WH Smith Hotel Services v. Wendy's Int'l, Inc., 25 F.3d 422, 427 (7th Cir. 1994) (?Contractual language will be deemed ambiguous only when it is reasonably susceptible to different Collins v. Harrison-Bode, 303 F.3d 429, 433 (2d Cir. 2002) (?Contract language is ambiguous if it is ?capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated 49 ?Integration clauses, also known as merger clauses, are contract provisions that generally state that the agreement as written constitutes the entire agreement between the parties and supersedes any prior representations.? Jacobson v. Hofgard, 168 F. Supp. 3d 187, 201 (D.D.C. 2016) (citing 6 Peter Linzer, Corbin on Contracts (Joseph M. Perillo ed., 2010) at 68). 50 Starter Corp. v. Converse, Inc., 170 F.3d 286, 295 (2d Cir. 1999) (?When a contract lacks an express integration clause [courts] must ?determine whether the parties intended their agreement to be an integrated contract by reading the writing in light of the surrounding circumstances.??) (emphasis added); see also, McAbee Constr., Inc. v. United States, 97 F.3d 1431, 1434 (Fed. Cir. 1996) (?extrinsic evidence is ?especially pertinent where the writing itself contains no recitals or other evidence testifying to its intended completeness and ?nality??). 5' See M-37036 at 6. 52 The historical interpretation given to a contract by the parties is strong evidence of its meaning. Inc. v. Covell, 727 F.2d 1145, 150 (DC. Cir. 1983). 10 The minimum annual production and minimum royalty is $10.00 per acre or a fraction thereof as stated in the attached original lease agreement.53 The ?rst quoted stipulation is ambiguous because it does not precisely state which sections of the 1966 lease are being incorporated. Instead it provides that the ?terms and conditions of the production royalties? remain as stated in the original 1966 leases. Those terms and conditions are interspersed throughout the 1966 leases, and are addressed in section 2 (setting the initial rate and minimum royalty payments, among other things), section 5 (setting out the authority and limitations on adjusting royalty rates at renewals), and section 14 (setting out additional limitations on royalty adjustments). By not specifying which of these sections were incorporated and how, the 2004 lease form is ambiguous. Were only the provisions of section 2 intended to be incorporated? Or were the provisions of sections 5 and 14 also to be included? M-37036 assumed the former. Despite section 5 addressing the adjustment of royalties and other terms during renewals, M-37036 assumed that section 5 of the 1966 leases was not incorporated and had no bearing in analyzing the 2004 leases.54 It addressed the meaning of section 5 solely as an alternative argument. Yet this assumption is unwarranted because the ?terms and conditions? of the production royalties are not ?illy addressed without sections 5 and 14, so they should be incorporated in some fashion. Precisely how they should be incorporated is also ambiguous given that the royalty and other adjustment provisions of section 5 are intertwined with the renewal provisions of section 1 of the 1966 leases.55 In short, the meaning of the 2004 leases is ambiguous.56 Given this ambiguity, extrinsic evidence beyond the ?four comers? of the document may be considered to ascertain the intent of the contracting parties.57 Examining the decision ?les of the BLM resolves the ambiguity. The record shows that the BLM renewed the leases in 1989 under the same terms as the 1966 leases, and did so again in 2004. The circumstances surrounding the 1989 renewal provide important context for understanding the 2004 renewal. The decision ?le for the 1989 renewal conclusively establishes that the BLM intended to renew the leases in 1989 on the same terms as the original 1966 leases. The BLM initially issued a decision document in September of 1988 that would have renewed the leases on different terms from the original 1966 leases, but the BLM quickly reassessed the matter and 53 2004 Leases at 14. 5" See M-37036 at 6 (?Neither of these imported provisions includes the lease renewal provisions of the I966 leases?); id. at 7 there is no con?icting renewal provision [to the one in the 2004 lease form] referenced elsewhere in the 2004 leases?). ?5 The interrelationship is seen directly in the text of section 5, which refers to the ?successive? renewals that are provided by section I of the 1966 leases. 56 Given the already described ambiguity that is inherent in the 2004 lease forms, this opinion does not address whether there are other potential ambiguities in those forms. 57 See, Daewoo Eng'g Constr. Co. v. United States, 557 F.3d 1332, I337 (Fed. Cir. 2009) (?Where the meaning of a written instrument is unclear, courts look to extrinsic evidence to resolve the question?). 11 formally vacated its decision ?because the new lease forms submitted for signature will alter the terms and conditions of the original leases.?58 The unusual act of BLM vacating its initial renewal decision was based, in part, on a recommendation memorandum from the Assistant District Manager for Solid Minerals. The memorandum concluded that ?[b]ecause of the highly negotiated terms and conditions of these two leases, which contain many references to requirements to be applied during lease renewal periods, I recommend that these leases be renewed under the existing terms and conditions and in their present form, not on the new lease form.?59 A few months after vacating its initial decision, the BLM issued a revised decision renewing the leases under the same terms as the original leases. The decision stated unambiguously that it intended to renew the leases with the same terms and conditions as the original leases: ?The Forest Service and the Bureau of Land Management have agreed to the renewal of the enclosed Preference Right Leases MNES 1352 and MNES 1353 under the existing terms and conditions of the original leases. Enclosed are lease renewal forms transmitted for your signature and return to this of?ce.?60 The forms the BLM transmitted for signature were Standard Forms 3520-7 (December 1984), with the original 1966 leases attached and incorporated by reference into the standard forms through two special stipulations included as section 14 of the forms (the same form and special stipulations that would be used in the 2004 renewals). In sum, the 1989 leases, although using Standard Form 3520-7, renewed the 1966 leases without alteration of the operative terms. This fact was acknowledged in When the 2004 renewal was made, there is no statement or other indication in the ?les that the BLM or the company intended to change any of the terms of the 1989 leases. To the contrary, the record shows that the leases were expected to be renewed on the same terms. Before granting the 2004 lease renewals, the Division of Solid Minerals stated by internal memorandum that have no objection to Preference Right Leases MNES-1352 and MN ES-1353 being renewed for ten years, as stipulated within the lease language.?62 The BLM of?cial making this recommendation was the same of?cial who recommended renewing the leases in 1989 on the same terms as the 1966 leases. His reference to the ?lease language? therefore was informed by his knowledge of the 1989 leases and refers to the terms of the governing 1966 leases. Later, the 58 Decision by BLM Deputy State Director for Mineral Resources, Eastern States Of?ce to INCO Alloys lntemational, Inc., ?Decision Vacated? (Oct. 27, 1988). 59 Memorandum ??om BLM Assistant District Manager for Solid Minerals, Rolla, Vincent Vogt, to the State Director, Eastern States Of?ce, ?Recommendations for Lease Renewals, lntemational Nickel Corporation Hardrock Mineral Leases MNES-1352 and (Oct. 14, 1988). 60 Decision by BLM Deputy State Director for Mineral Resources, Eastern States Office to INCO Alloys lntemational, Inc., ?Preference Right Leases Renewed, Lease Forms Transmitted for Signature? (Apr. 25, 1989) (emphasis added). 6' M-37036 at 6, 12. 62 Memorandum ?'om BLM Assistant Field Manager for Solid Minerals, Rolla, Vincent Vogt, to State Director, Eastern States Of?ce, ?Renewal of Preference Right Leases MNES-1352 and (Apr. 12, I999). 12 Forest Service also stated that it had no objection to the renewal, as ?[t]he terms, conditions and stipulations have been reviewed, and it has been determined that they are suf?cient to protect the resources of the United States.?63 The BLM issued its decision granting the lease renewals on November 12, 2003, changing neither the terms of the lease renewals nor the conditions and stipulations, and provided the same standard form for signature as the BLM provided to the lessee in 1989.64 The BLM did not indicate any change to the contracts in its decision, and the course of dealings between the parties had establi6sshed the common basis of understanding that the 1966 lease terms were to remain in effect. While M-3 7036 attempted to distinguish between the 1989 and 2004 renewals to explain how two identically worded leases could have drastically different meanings, the attempt fails. As noted earlier, M-3 7036 concludes that the two renewals differ ?because the discretion was limited in 1989 but not in 2004.?66 But even if that were true, it does not follow that BLM intended to exercise its discretion by drastically altering the meaning of the same lease forms in 2004 (without mentioning the fact to the lessee or even in its own internal ?les). As discussed above, there is simply no evidence that either the BLM or the Forest Service intended in the 2004 renewal to deviate from the terms previously in effect in the 1989 renewal the terms of the original 1966 leases). The 2004 renewal could, and did, as discussed above, renew the leases under the same terms as in 1989, thereby retaining the renewal terms of the 1966 leases. In sum, we have found no documents or other evidence that indicate in any way that the 2004 renewals were to be on altered terms or conditions from the 1989 leases. Because the 1989 leases renewed the leases under the same terms and conditions as the original 1966 leases, those terms remain o6p7erative in the 2004 renewal and, as discussed below, entitle Twin Metals to a third renewal. 63 Decision of the USDA Forest Service, Regional Forester, Randy Moore, to BLM State Director, Eastern States Of?ce, ?Renewal of Preference Right Leases MNES 1352 and MNES 1353? (July 18, 2003). 64 Decision of BLM Chief of Use Authorization, Division of Resources Planning, Use and Protection, to American Copper and Nickel Co., ?Additional Requirements to be Met? (Nov. 12, 2003). 65 The courts have recognized that the parties? own construction of an ambiguous written instrument is important when determining its meaning. See DDB Tee/13., L.L.C. v. MLB Advanced Media, L.P., 517 F.3d 1284, 1292 (Fed. Cir. 2008); 1 Richard A. Lord, Williston on Contracts 32:14 (4th ed. 1999) parties' own practical interpretation of the contract-~how they actually acted, thereby giving meaning to their contract during the course of performing it- -can be an important aid to the ?6 M-37036 at 6. The M-Opinion reasons that the 1989 renewal, unlike the 2004 renewal, had to be on the same terms as the original 1966 leases because it served as an extension of time for commencement of production as authorized by the second sentence of section 5 of the 1966 leases. M-37036 at 6. That provision states that a renewal made while the extension is in effect must be ?without readjustment except of royalties payable . . . 1966 Lease, 5 (second sentence). Accordingly, to comply with the dictates of section 5 of the 1966 Leases, the M- Opinion concludes that the 1989 renewal had to be on the same terms as the 1966 leases. The M-Opinion concludes that the 2004 renewal, in contrast, did not have to be on the same terms because it could not and did not provide an extension. It is important to note that nothing on the face of the 1989 lease form states that it serves as an extension, and there is no evidence in the decision ?les that the lessee sought an extension or that BLM granted one. 67 Because the parties intended for the renewal terms of the 1966 leases to remain operative, there is no need to address the meaning of the renewal provision used in the 2004 standard form, which provides for a ?preferential 13 The 1966 Lease Terms Provide for a Third Right of Renewal The renewal terms of the 1966 leases are not ambiguous in providing Twin Metals with a non- discretionary right to a third renewal, subject to the United States? right to impose reasonable new terms and conditions. Section 1 of the 1966 leases sets out the overall renewal rights, and it provides ?a right in the Lessee to renew the same for successive periods of ten (10) years each in accordance with regulation 43 C.F.R. 3221.4(0 and the provisions of this lease.?68 The referenced regulation is similarly unambiguous in providing a right to successive renewals, in relevant part providing lessees with: right of renewal for successive periods, not exceeding 10 years each, under such reasonable terms and conditions as the Secretary of the Interior may prescribe, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereof.69 Thus, section 1 of the 1966 leases, by its own terms and by reference to section 3221.4(0 of the regulations, establishes that the lessee has a right of renewal for successive ten-year periods, and that the renewals are subject to the provisions of the lease, including provisions regarding subsequent terms and conditions. No other provision of the leases negates this right of renewal. Accordingly, the 1966 leases provide the lessee with a non-discretionary right of renewal for successive ten-year periods, as long as the lessee complies with the lease terms. M-37036 reached a different conclusion by ?nding that section 5 of the leases conditioned the lessee?s right of renewal upon the lessee having begun production by the end of the primary term. But the text of section 5 does not support this interpretation. Instead, section 5 merely provides terms that govern the extent to which the leases are subject to readjustment at the time of renewal; it does not abrogate the non-discretionary right of renewal provided by section 1. The text of section 5 provides: Renewal Terms. The Lessor shall have the right to reasonably readjust and ?x royalties payable hereunder at the end of the primary term of this lease and thereafter at the end of each successive renewal thereof unless otherwise provided by the law at the time of the right in the lessee to renew for successive periods of 10 years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.? 68 I966 leases 1. 69 43 CPR. 3221 (I966). M-37036 suggests that the last sentence of section 3221.4(f) supports its conclusion that production is a condition of renewal. M-37036 at ll?l2. The last sentence of section 3221.4(f) states: ?An application for renewal of the lease must be ?led in a manner similar to that prescribed for extension of a [prospecting] permit in 322 M-37036 reasons from this language that because section 3221.3(a) required a person seeking an extension of a prospecting permit to show that he has ?diligently performed prospecting activities,? section 3221.4(0 must analogously require a person who is ?ling for renewal of a lease to make ?a showing of diligence in performing production.? M-37036 at M-37036 provided no administrative or judicial precedent to support this interpretation, and it fails upon closer examination. Section 3221.4(f) incorporated section 3221.3(a) only to the extent it dealt with the ?manner? of ?ling 3221.3(a) required ?ling an application in triplicate and with a ?ling fee within 90 days of the permit expiration); it does not incorporate the substantive criteria under which a prospecting permit extension is adjudicated. It thus provides no support for the conclusion that a production requirement is a condition of renewal. 14 expiration of any such period, and to readjust other terms and conditions of the lease, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover; provided, however, that the Lessee shall have the right to three successive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day. The Secretary of the Interior may grant extensions of time for commencement of production in the interest of conservation or upon a satisfactory showing by the Lessee that the lease cannot be successfully operated at a pro?t or for other reasons, and the Lessee shall be entitled to renewal as herein provided without readjustment except of royalties payable hereunder if at the end of the primary or renewal period such an extension shall be in effect, but the Lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time. If the Lessee shall be entitled to renewal without readjustment except of royalties payable hereunder, the Secretary of the Interior may in his discretion increase the royalty rate prescribed in subsection of Section 2 up to, but not exceeding 5% during the ?rst ten-year renewal period, (ii) 6% during the second ten-year renewal period, and 7% during the third ten-year renewal period. The extent of readjustment of royalty, if any to be made under this section shall be determined prior to the commencement of the renewal period. Rather than conditioning the right of renewal upon production as M-37036 argues, section 5 sets forth the degree to which the BLM may readjust the terms, conditions, and royalty rates during lease renewals, and creates an incentive for early production by limiting discretion during the ?rst three lease renewals if production has begun. The ?rst sentence in section 5 has engendered the most commentary, but its meaning is evident from the text. Parsed out, the initial clause grants the BLM two rights: 1. The right to reasonably readjust and ?x royalties at the end of the primary term of the lease and at the end of each successive renewal thereof unless otherwise provided by the law at the time of the expiration of any such period; and 2. The right to readjust other terms and conditions of the lease, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover. These rights are subject to one condition set out in the proviso clause. The proviso provides an incentive to production by restricting the right to adjust the terms of the leases during the ?rst three renewals if production has begun during the primary term: That the Lessee has the right to three successive ten-year renewals of the lease with any readjustment in the royalties payable limited to that provided in the 1966 lease and with no readjustment of any of the other terms and conditions of this lease unless at the end of the 15 primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day. Under the terms of this proviso, the consequence of a failure to begin production within the primary term is not the loss of the right to renew, as M-37036 asserted, but the loss of the right to a renewal with extremely limited readjustments. Despite the plain wording of this proviso, M-37036 attempted to argue that the ?unless? clause at the end of the sentence ?quali?es the very right to renew.?70 According to that M-Opinion, this ?proper? meaning was demonstrated by deleting text from the provision: [T]he proper meaning of the proviso is clear when the last clause is placed next to the provision it actually quali?es: ?[T]he Lessee shall have the right to three successive ten- year renewals of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day.?? Under this interpretation, the ?nal ?unless? phrase in the proviso imposes a production requirement that negates sub silentio the renewal rights provided in section 1 of the leases. This interpretation is not correct. Deleting the text from the proviso does not clarify its meaning, it simply (and not surprisingly) changes the meaning. The deleted text works with the ?unless? phrase to form one restrictive modi?er that states how the right to three successive renewals will be limited if production has begun. In other words, the ?unless? phrase does not qualify the right to renewal but is part and parcel of the restrictive modi?er describing precisely how the readjustment rights were to be limited if production had begun. Deleting the text thus changes, rather than clari?es, the meaning of the proviso. Moreover, the interpretation suggested by M-37036 does not account for the fact that the entire sentence is a proviso to the ?rst clause. The ?rst clause describes the readjustment authority at renewal and evinces no intention to circumscribe the renewal rights set out in section 1 of the leases or create a production condition on renewal. The proviso is properly interpreted as qualifying this clause,72 but the interpretation suggested by M-3 7036 elevates the proviso into a separate, standalone provision that creates a production condition, which negates the section 1 renewal rights. Such an interpretation is not warranted by the text or placement of the proviso. The remaining two sentences of section 5 reinforce that the right to renew is not impacted by section 5, but merely the amount of readjustments that can be made with a renewal. The second sentence has three clauses. The ?rst clause gives the Secretary of the Interior broad discretion to grant extensions of time for commencement of production in the interest of conservation, upon a showing that the lease cannot be operated for a pro?t, or ?for other reasons.? The second clause makes clear that a consequence of granting an extension is that the lessee will continue to enjoy the 7" M-37036 at 9. 7' 1d. (alteration and ellipsis in original). 72 See, e. Bamhart v. Thomas, 540 vs. 20, 26 (2003) limiting clause or phrase should ordinarily be read as modifying only the noun or phrase that it immediately follows?). 16 favorable limitations on lease readjustments if renewal occurs while the extension is in effect: ?the Lessee shall be entitled to renewal as herein provided without readjustment except of royalties payable.? The third clause provides that ?the Lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time? (emphasis added). The phrase ?such renewals? refers back to the preceding clause, which references renewals without readjustment of the terms and conditions.73 In other words, the second sentence of section 5 takes as a given the right to renew the lease; it is only the terms and conditions of a renewal that are affected by the authorized extension of time for commencement of production. Finally, the third sentence of section 5 is straightforward. It provides a schedule for the rate readj ustments when the lessee is entitled to renewal without readjustment except of royalties. It limits rate readj ustments to: 5% during the ?rst ten-year renewal period; 0 6% during the second ten-year renewal period; and 7% during the third ten-year renewal period. As re?ected by this analysis of section 5, its provisions set out the right of BLM to readjust royalty rates and lease terms and conditions at the time of renewal, but creates a production incentive for the lessee by providing BLM with only limited readjustment rights if the lessee begins production by the end of the primary term (or by the end of an extension if one is granted). The commencement of production is thus a condition precedent to limiting readjustment rights, but it is not a condition precedent to the right to a renewal. M-3 7036 attempts to support its interpretation that section 5 imposes a production condition on renewal with a number of subsidiary arguments. The M-Opinion argues, for example, that its position is longstanding and supported by a 1986 memorandum from an Associate Solicitor.74 While that 1986 Opinion answered the narrow renewal question before it correctly, ?nding that BLM could renew the leases in the absence of production, its reasoning is faulty and was not even relied upon in M-3 7036. More speci?cally, the 1986 Opinion improperly focused only on the second sentence of section 5, without reference to section 1 of the lease or even the other sentences of section 5. It summarily concluded that the ?nal clause of the second sentence (which states that ?the lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time?) precludes all subsequent renewals. As discussed above, that is an 73 M-37036 asserts that the last clause of the second sentence supports its interpretation, apparently viewing the phrase ?shall not be entitled to subsequent such renewals? as effectively meaning ?shall not be entitled to any renewals.? The M-Opinion?s construction does not square with the actual wording of the clause. 74 M-37036 at 12 (citing Memorandum from Associate Solicitor, Energy and Resources, signed by Kenneth G. Lee, Assistant Solicitor, Branch of Eastern Resources, to Deputy State Director, Mineral Resources, Eastern States Office, BLM, ?Application for Minimum Royalty Waiver Submitted by INCO Alloys lntemational, Incorporated for Leases ES 01352 and ES 01353? (Apr. 2, 1986) (1986 Opinion?. 17 improper reading that ignores what the clause is qualifying and gives no meaning to the phase ?such renewals,? instead transforming it into ?all renewals.? Moreover, the BLM appropriately did not follow the advice given in the 1986 Opinion when it renewed the leases for a second time in 2004. The 1986 Opinion thus provides no support for concluding that production is a precondition to the right to renew. M-3 7036 also argues that the lease requirement to pay minimum royalties in lieu of production does not negate the precondition of production for mandatory renewals.75 While it is certainly true that BLM could impose both requirements, the very case cited in the M-Opinion shows that when BLM intends to impose a production requirement, it will do so explicitly. In General Chemicals (Soda Ash) Partners,76 the BLM had imposed a minimum royalty payment in a sodium lease but also included an express production precondition for renewal, stating that ?[t]he authorized officer will reject an application for renewal of this lease if, at the end of the lease?s current term, sodium is not being produced.?77 General Chemicals underscores that the BLM will explicitly include a production precondition when it so intends.78 There is no such provision in the leases at issue. Moreover, the historical record of the 1966 lease implementation shows that production was not made a condition of renewal. For example, as stated in the background section above, the BLM denied IN requested waiver of minimum royalty payments precisely because there was no production requirement in the lease: The provision for minimum royalty in lieu of production requirements was a lease term arrived at through pre-lease negotiations between the Bureau and IN CO. The intention of the minimum royalty is to spur development of the resource and, in effect, is the only diligence requirement contained in the subject leases. Waiver of minimum royalty removes all incentive for the timely development of the leases.79 Later, when processing the 1989 renewal application, the BLM wrote in an internal memorandum that it would be ?inappropriate? to impose a production requirement upon the lessee in the lease renewal, especially ?when no other hardrock leases in our District contain such a requirement.?80 75 M-37036 at l2?l3. 761761BLA (2008). 77 Id. at 5. 78 M-37036 suggests that General Chemicals supports its position because the Board in that case found that the payment of minimum royalties did not satisfy the lease?s production requirement. M37036 at 13 (citing General Chemicals, 176 IBLA. at 9.). Given that the lease in General Chemicals included an express production requirement, while the leases at issue do not, the case is clearly distinguishable and actually supports the conclusion reached here that no production requirement is imposed by the leases. 79 Memorandum ??om BLM Associate District Manager, Milwaukee to the State Director, Eastern States O?ice, ?Recommendation Regarding an Application for Minimum Royalty Waiver Submitted by INCO Alloys International, Inc.? (Aug. 28, 1985), at 2. 80 Memorandum from BLM Assistant District Manager for Solid Minerals, Rolla, Vincent Vogt, to the State Director, Eastern States Of?ce, ?Recommendations for Lease Renewals, lntemational Nickel Corporation Hardrock Mineral Leases 352 and 353? (Oct. 14, I988) at 2. l8 Finally, 7036 makes in essence a public policy argument that a lease without a production precondition would allow for speculative holding of mineral rights in contravention of Congress?s intent to encourage mineral development and ?provide a fair return to the American taxpayer?? But the leases here do provide incentives for production by imposing minimum royalty payments and authorizing greater revisions of the royalty rates and other terms when there has been no production. The American public has received over $1.4 million dollars in royalty payments, and Twin Metals has asserted that it has spent over $400 million in exploration activity. The public policy concern is unfounded in this instance. In summary, neither the terms of the 1966 leases, the course ot?conduct of the parties over the last 50 years, nor public policy suggest that a production precondition is required. Conclusion M-37036 improperly interpreted the leases at issue and is withdrawn. As discussed above, the terms of the original leases issued to Twin Metals? predecessor-in?interest in 1966 remain operative in the 2004 lease renewal. The original 1966 leases provide Twin Metals with a non? discretionary right to a third renewal, subject to the United States? right to impose reasonable terms and conditions as authorized by the 1966 leases. Accordingly, the BLM does not have the discretion to deny the renewal application. Daniel H. Jorjal i 8? M-37036 at 11. 19 United States Department ofthe Interior OFFICE OF THE SOLICITOR 202-11} RI Ix?I-l-l :ngC 2-2 2017 M-3 7049 Memorandum To: Director, Bureau of Land Management From: Principal Deputy Solicitor Exercising the Authority of the Solicitor Pursuant to Secretarial Order 3345 Subject: Reversal ofM-3 7036, ?Twin Metals Minnesota Application to Renew Preference Right Leases and On October 21, 2012, Twin Metals Minnesota (Twin Metals) filed an application with the Bureau of Land Management (BLM) to renew hardrock mineral leases 352 and located within the Superior National Forest in Northeastern Minnesota. On March 8, 2016, the former Solicitor issued an M-Opinion entitled, ?Twin Metals Minnesota Application to Renew Preference Right Leases and concluding that the BLM had discretion to either grant or deny Twin Metals? pending application to renew the two hardrock mineral leases. Twin Metals ?led suit on September 12, 2016, challenging the M?Opinion. After the United States Department of Agriculture Forest Service (Forest Service) withheld its consent to renew the leases, the BLM cancelled the leases in December 2016. In response to the decision not to renew their leases, Twin Metals asked for reconsideration ofM-37036. After further review of the relevant documents and underlying legal framework, we believe that 37036 erred in concluding that BLM has discretion to grant or deny Twin Metals? lease renewal application. Accordingly, this Memorandum withdraws and replaces 703 6. For the reasons set forth below, the terms of the original leases issued to Twin Metals? predecessor-in?interest in 1966 remain the operative provisions governing lease renewal. The original 1966 leases provide Twin Metals with a non?discretionary right to a third renewal, subject to readjusted terms and conditions as allowed by the 1966 leases. Accordingly, while the United States maintains discretion to impose reasonable new terms and conditions in the lease renewal agreements, the BLM does not have the discretion to deny the renewal application. Background Statutory Authority for Issuance of the Leases The leases are located in northern Minnesota on acquired Weeks Actl lands, as well as lands reserved from the public domain, that are managed as part of the National Forest System by the Forest Service. The Secretary?s authority, as delegated to the BLM, for mineral disposition on the acquired lands is found in section 402 of Reorganization Plan No. 3 of 1946,2 and 16 U.S.C. 520, which governs mineral disposition on Weeks Act lands. The Secretary?s authority, as delegated to the BLM, for mineral disposition on reserved National Forest System lands in Minnesota is 16 U.S.C. 508b. Under these provisions, leasing for hardrock mineral development is allowed only if the Secretary of Agriculture has consented to the issuance of the lease.3 Negotiation and Issuance of the 1966 Leases The history of the original lease negotiations and the subsequent renewals is an important factor in determining the intent of the parties with respect to the right of renewal. The history began in 1952 when Twin Metals? predecessor-in-interest, the International Nickel Company, Inc. (INCO), followed successful prospecting activity by approaching the Department of the Interior (Department) regarding applying for hardrock mineral leases. The two parties began negotiating potential terms in 1953, and INCO originally sought a 50-year lease from the Department.4 The lease negotiations did not end for over ten years, in part because the parties disagreed on three major issues: Term INCO sought a 50-year term to increase certainty for its investors while the BLM wanted a maximum 20-year primary term;5 Royalty rates the Department wanted higher royalty rates than INCO was willing to agree to pay;6 and Production assurances the BLM sought assurance that INCO would begin production during the lease term.7 Pub. L. No. 61-436, 6, 36 Stat. 961, 962 (191 l) (codi?ed as amended at 16 U.S.C. 515). 2 60 Stat. 1097, 1099-1100, Section 402 (May 16, 1946). 3 See 121.; 16 U.S.C. 508(b). 4 Memorandum from United States Geological Survey (USGS) Chief, Conservation Division to ?le, ?Nickel Leasing? (Aug. 13, 1953). 5 Memorandum from P.W. Guild, BLM Chief, Branch of Ferrous Metals to ?le, ?Meeting in Congressman Blatnik?s of?ce re Cu-Ni deposits in Minnesota? (July 9, 1965). 6 Memorandum from USGS Chief, Conservation Division to USGS Associate Director, ?Proposed preference right lease to lntemational Nickel Company, Inc.? (Oct. 29, 1965). 7 Memorandum from BLM Director to D01 Assistant Secretary, Mineral Resources, ?Proposed Preference Right Leases to lntemational Nickel Company, Inc.? (Oct. 5, 1965). After several years of exchanging drafts of potential lease terms, the parties reached a compromise agreement on these issues: 0 INCO agreed to accept the 20-year primary term; 0 The BLM agreed to accept a lower yet escalating minimum royalty rate; and The BLM received some production assurances in the form of adjustable royalty rates on future production that would ?uctuate depending on how soon the lessee began producing.8 As a result of these and other compromises, the original MNES-01352 and MNES-01353 leases awarded to INCO on June 1, 1966, were unique, borrowing terms but not utilizing, the Standard Lease Form in place at the time. The royalty and renewal provisions were particularly distinctive. The ?rst section of the leases provides the lessee with the exclusive right to mine on the leasehold for a primary term of 20 years and the right to renewals at 10-year intervals after the primary term: Rights of Lessee. In consideration of the rents and royalties to be paid and conditions and covenants to be observed as herein set forth the Lessor grants to the Lessee . . . the exclusive right to mine, remove, and dispose of all the copper and/or nickel minerals and associated minerals . . . in, upon, or under [the described lands] . . . together with the right to construct and maintain thereon such structures and other facilities as may be necessary or convenient for the mining, preparation, and removal of said minerals, for a period of twenty (20) years with a right in the Lessee to renew the same for successive periods often (10) yearsgeach in accordance with regulation 43 CFR 3221.409 and the provisions of this lease. The regulation referenced in the renewal clause provides in pertinent part that the ?lessee will be granted a right of renewal for successive periods, not exceeding 10 years each, under such reasonable terms and conditions as the Secretary of the Interior may Section 2 of the leases then sets forth most of the lessee?s obligations, covering rental and royalty payments, bonding, inspection, payment of taxes, and non-discrimination provisions, among other things. Of importance for Twin Metals to hold the leases without production, section 2(c) provides for minimum royalty payments in lieu of production. Those provisions state that, beginning a?er the tenth year of the primary term, the lessee is required to mine a quantity of minerals such that the royalties would be equal to $5 per annum per acre for the primary term and $10 per annum per 8 See Memorandum from USGS Assistant Chief, Conservation Division, to ?le, ?Phone call from Julian Feiss re meeting with International Nickel? (Aug. l8, Memorandum from USGS Director to the Secretary of the Interior, ?Congressman John A. Blamik may telephone the Secretary? (Jan. 10, I966) (discussing the parties? differing positions on royalty rates and recommending a ?performance clause? be added as a ??reentry? clause for royalty adjustment that might be introduced permitting reevaluation and lowering of the royalty rates if justi?ed after some operating experience?). 9 Section 1(a) of Lease (emphasis added). 1? 43 C.F.R. 3221.40) (1966). acre during each renewal or, in lieu of that production, pay royalties equal to the minimum royalty.?l Section 2(c) also allows the lessor in its discretion to waive, reduce or suspend the minimum royalty payment for reasonable periods of time in the interest of conservation.? Pursuant to this section, INCO and its successors have paid over $1.4 million dollars in royalties to the government. Section 5, entitled ?Renewal Terms,? is also unique by describing in detail rights to readjust royalty rates and other terms upon renewal. As more fully discussed in the analysis section below, section 5 creates a production incentive for the lessee by providing BLM with only limited readjustment rights if the lessee was producing by the end of the initial 20-year term. On the other hand, if the lessee was not producing before the initial term ended (and if BLM had not extended the period for commencement of production), then BLM would have the right, starting with the ?rst renewal, to readjust terms and conditions without these limitations. Finally, section 14, entitled ?Royalty Adjustment,? is unique by providing another production incentive. It requires lowering the royalty rate in the second ten years of the primary lease term and in the ?rst three renewals if the lessee sinks a shaft or otherwise commences commercial development within ?ve years of obtaining all the necessary permits and authorizations.? Activity during the Primary Term of the 1966 Leases INCO ful?lled the royalty rate reduction provisions of section 14 by sinking a 1,100 foot mine shaft on lands leased under MNES-01352 in 1967 to obtain bulk sampling. But no production occurred under the leases during the 20-year primary term. Under the terms of section 2(c) of the 1966 leases, minimum royalty payments became due beginning with the 1976-1977 lease year. The BLM granted requests for waivers of the minimum royalty payments for a ?ve- year period, from June 1, 1976, through May 31, 1981, because the State of Minnesota was conducting environmental studies of the proposed mining operations during that time period, which prevented INCO from proceeding with development of the leases.14 INCO again requested a waiver of minimum royalty payments for the ?ve-year period between June 1, 1981, and May 31, 1986, citing copper and nickel prices too low to allow for development. The BLM denied this second request, reasoning in part that the royalty payment was the only diligence requirement in the leases: The provision for minimum royalty in lieu of production requirements was a lease term arrived at through pre-lease negotiations between the Bureau and INCO. The intention of the minimum royalty is to spur development of the resource and, in effect, is the only diligence requirement contained in the subject leases. Waiver of minimum royalty removes all incentive for the timely development of the leases.15 See 2(0) of the 1966 leases. 12 Id '3 Section l4 of the 1966 leases. '4 Memorandum from BLM Associate District Manager, Milwaukee, to the State Director, Eastern States Of?ce, ?Recommendation Regarding an Application for Minimum Royalty Waiver Submitted by INCO Alloys International, Inc.? (Aug. 28, I985Beginning in 1985, after the BLM denied the waiver request, INCO started submitting minimum royalty payments as required by the leases. The 1989 Lease Renewals INCO timely ?led its ?rst lease renewal application on May 14, 1986.'6 After receiving legal advice from the Of?ce of the Solicitor con?rming that the lease could be renewed despite the lack of production,'7 the BLM requested the consent of the Forest Service, and the Forest Service agreed to the renewals, ?nding the terms and conditions of the original leases to be ?adequate to prevent or mitigate unacceptable impacts and that no additional conditions need to be added prior to their renewal provided that none of the terms and conditions related to [Forest Service surface] authority are diminished in any manner?? A?er then receiving the recommendations of the BLM Assistant District Manager in Milwaukee, the BLM issued a decision renewing the leases on September 12, 1988, and enclosed a new lease form for IN signature.'9 The new lease would have altered several terms and conditions of the leases, including raising the base royalty rate to 5% and lowering the minimum royalty payment to $3 per acre per year. Before the new lease was signed, the BLM took the unusual step of withdrawing the leasing decision ?because the new lease forms submitted for signature will alter the terms and conditions of the original leases.?20 The withdrawal of the decision was made after an internal reassessment of the renewal form against the original lease terms. An internal BLM memorandum explained that the minimum royalty rate should not be lowered to $3 per acre as the then-current regulations '6 The regulations at 43 C.F.R. 3522.1-I (1985) state that renewal applications ?must be ?led in the appropriate land of?ce within 90 days prior to the expiration of the lease term.? The ?within 90 days? language in this regulatory provision allows lease renewal applications to be ?led at any time before the expiration of the lease term. The lessee ?led an application for extension of the term of the leases on May I4, 1986?30 days before the end of the primary twenty-year term on June I4, I986, which was ?within 90 days? of the lease expiration. Consequently, the renewal application was timely ?led. '7 Memorandum ?'om Associate Solicitor, Energy and Resources, to Deputy State Director, Mineral Resources, Eastern States Of?ce, BLM, ?Application for Minimum Royalty Waiver Submitted by INCO Alloys International, Incorporated for Leases ES 01352 and ES 01353? (Apr. 2, 1986). '8 Decision of United States Department of Agriculture (USDA), Forest Service, Superior National Forest Supervisor, Clay Beal, ?Finding of Categorical Exclusion, Conditions of Extending Bureau of Land Management Leases? (Feb. 6, 1987). The Regional Forester subsequently af?rmed the agency?s consent to the I989 lease renewals. Decision of United States Department of Agriculture (USDA), Forest Service, Eastern Region, Regional Forester, Floyd J. Marita, Preference Right Leases, ES 01352 and ES 01353 Inco Alloys International, Inc. (Superior NF MN) (June I9, I987). '9 Memorandum ?'om BLM Assistant District Manager for Energy and Minerals, Milwaukee to State Director, Eastern States Of?ce, ?Recommendations for Lease Renewals, International Nickel Corporation Leases ES-1352 and (July 9, 1986); Decision by Bureau of Land Management Deputy State Director for Mineral Resources, Eastern States Of?ce to INCO Alloys lntemational, Inc., ?Preference Right Leases Renewed, Lease Forms Transmitted for Signature? (Sept. 12, I988). 20 Decision by BLM Deputy State Director for Mineral Resources, Eastern States Of?ce to INCO Alloys International, Inc., ?Decision Vacated? (Oct. 27, I988). directed, but should be set at the $10 per acre rate outlined in the 1966 leases, as ?[t]his high minimum royalty payment was agreed to through intensive negotiations and is intended to serve as the ?production incentive? or ?diligent development? provision in the leases, and should not be changed.?21 Likewise, with such a production incentive, the memorandum stated that it would be ?inappropriate? to impose an additional production requirement on the lessee in the lease renewal, especially ?when no other hardrock leases in our District contain such a requirement.?22 The memorandum concludes, ?Because of the highly negotiated terms and conditions of these two leases, which contain many references to requirements to be applied during lease renewal periods, I recommend that these leases be renewed under the existing terms and conditions and in their present form, not on the new lease form.?23 Based on this recommendation, the BLM withdrew its initial leasing decision as noted above. A few months later, the BLM granted renewal application in a new decision. This decision expressly stated that the renewal was on the same terms and conditions of the original leases: ?The Forest Service and the Bureau of Land Management have agreed to the renewal of the enclosed Preference Right Leases MNES 1352 and MNES 1353 under the existing terms and conditions of the original lease. Enclosed are lease renewal forms transmitted for your signature and return to this of?ce.?24 The forms the BLM transmitted for signature were the Standard Form 3520-7 (December 1984), with some terms written in and other terms referencing the 1966 leases, which were attached in full to the standard forms. On the standard forms, the BLM typed in single and double asterisks next to section 2 and and included text later in section 14, entitled ?Special Stipulations,? that corresponded to the single and double asterisks. These provisions stated that the ?terms and conditions of the production royalties remains [sic] as stated in the attached original lease agreement,? and that ?[t]he minimum annual production and minimum royalty is $10.00 per acre or a fraction thereof as stated in the attached original lease agreement.?25 The forms also contain a standard renewal provision stating that the lease is effective ?for a period of ten years . . . with preferential right in the lessee to renew for successive periods of ten years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.?26 During this time period, INCO ?led to assign its interests in the leases to American Copper and Nickel Company, Inc. (?American Copper?) in May 1988. The BLM granted the assignments, effective January 1, 1991. Although exploration work continued, neither INCO nor American Copper began production on the leases during the ?rst renewal period. 2' Memorandum from BLM Assistant District Manager for Solid Minerals, Rolla, Vincent Vogt, to the State Director, Eastern States Of?ce, ?Recommendations for Lease Renewals, lntemational Nickel Corporation Hardrock Mineral Leases MNES-1352 and (Oct. 14, 1988Decision by BLM Deputy State Director for Mineral Resources, Eastern States Of?ce to Alloys lntemational, Inc., ?Preference Right Leases Renewed, Lease Forms Transmitted for Signature? (Apr. 25, 1989). 25 1989 lease renewal forms, at 2?3. 26 Id. at 1. The 2004 Lease Renewals American Copper timely applied for a second renewal of the leases on March 15, 1999.27 The Forest Service consented to the renewals, ?nding the terms and conditions to be suf?cient.28 The BLM issued its decision granting the lease renewals on November 12, 2003, and directed American Copper to sign the enclosed Preference Right Lease forms and return them to the BLM of?ce within 30 days.29 As lease forms, the BLM again provided Standard Form 3520-7 (December 1984), with identical typed-in provisions to those of the 1989 leases, and again attached the 1966 leases in full.30 The leases were renewed with an effective date of January 1, 2004. On April 7, 2004, American Copper ?led to assign its interests in the leases to Beaver Bay Joint Venture. The BLM approved the assignment on March 30, 2005, to be effective April 1, 2005. Although exploration work continued, neither American Copper nor Beaver Bay Joint Venture began production on the leases during the second renewal period. The 2012 Renewal Application and Issuance of M-37036 On October 21, 2012, Beaver Bay Joint Venture timely ?led for a third renewal of the leases.? Through BLM-approved assignments and transfers, Franconia Minerals (US) LLC (Franconia) later became the current leaseholder of and Franconia is a wholly- owned subsidiary of Twin Metals. In processing the 2012 application for renewal, the BLM identi?ed the need for a legal opinion to determine whether it had discretion to grant or deny the lease renewal. The Solicitor issued M- Opinion 37036 on March 8, 2016, in response to the request.32 In M-3 7036, the Solicitor disagreed with Twin Metals? assertion that the original lease terms governed and provided a perpetual right to renew the leases every ten years. The M-Opinion found that the more recent 2004 lease terms governed renewal, and while the ?2004 lease terms give the lessee preference over other potential lessees to lease the lands in question, they do not entitle the lessee to non- 27 The lessee applied for a second renewal on March 15, 1999, which was 109 days before the end of the ?rst lease renewal on July 1, 1999. The 1999 regulations instruct lessees to ?[?ile an application [for renewal] at least 90 days before the lease term expires.? 43 CPR. 3511.27 (1999). Consequently, the 1999 renewal applications were timely ?led. 28 Decision of the USDA Forest Service, Regional Forester, Randy Moore, to BLM State Director, Eastern States Of?ce, ?Renewal of Preference Right Leases MNES 1352 and MNES 1353? (July 18, 2003). 29 Decision of BLM Chief of Use Authorization, Division of Resources Planning, Use and Protection, to American Copper and Nickel Co., ?Additional Requirements to be Met? (Nov. 12, 2003). 30 See 2004 lease renewal forms, at 2?3. 31 The 2012 renewal application was submitted 438 days before the end of the second renewal on January 1, 2014. The ?ling requirements in the current regulations are the same as those in the 1999 regulations. Id. (2014). Consequently, the 2012 application was timely ?led. 32 Twin Metals Minnesota Application to Renew Preference Right Leases and M-37036 (Mar. 8, 2016). discretionary renewal of the leases.?33 The M-Opinion also concluded that even if the terms of the 1966 leases governed, they did not provide a non-discretionary right to renewal. Instead, M-37036 found that ?[u]nder the original 1966 lease terms . . . the lessee was required to commence production within the twenty-year primary term to qualify for three renewals of right.?34 Because no production has occurred, the M-Opinion concluded that no right to renewal existed: ?Twin Metals Minnesota does not have a non-discretionary right to renewal, but rather the BLM has discretion to grant or deny the pending renewal application.? After receiving the M-Opinion, the BLM requested the Forest Service?s consent determination on the lease renewals.35 After taking public comment on the question, the Forest Service submitted a letter to the BLM Director on December 14, 2016, stating it did not consent to renewal of the leases.36 As a result of the Forest Service?s denial of consent, the BLM issued a decision denying renewal of the leases on December 15, 2016.37 Analysis Twin Metals has consistently asserted that the renewal provisions of its 1966 leases govern and provide a right of renewal every ten years as long as it complies with the terms of the leases. In contrast, M-3 7036 concluded that Twin Metal?s renewal rights were governed by the terms of the 2004 lease forms, and that those terms were unambiguous and provided Twin Metals only with the right to be considered for a renewal at the discretion of the Forest Service and the BLM. In addition, M-37036 asserted that even if the terms of the 1966 leases governed, Twin Metals still would not be entitled to a non-discretionary right of renewal because it did not begin production within its extended primary term. As discussed below, Twin Metals is entitled to a third renewal. First, the renewal terms of the 2004 lease form do not govern. The form is ambiguous, and the intent of the parties to keep operative the terms of the 1966 leases becomes clear once the decision ?les are examined.38 M-37036 also misconstrues the terms of the 1966 leases. They do in fact provide for a third, non-discretionary right to renewal without regard to whether production has begun. Accordingly, Twin Metals has the right to renewed leases, subject to the imposition of reasonable new terms and conditions as allowed by the 1966 leases. In the sections below, we ?rst discuss why the 1966 renewal terms govern, and then discuss the meaning of those terms. 331d. at 13. 341d. at 2. 35 Letter from Karen Mouritsen, State Director, BLM Eastern States Of?ce, to Kathleen Atkinson, Regional Forester, Eastern Region, Forest Service (June 3, 2016). 36 Letter from Thomas L. Tidwell, Chief, Forest Service, to Neil Komze, Director, BLM (Dec. 14, 2016). 37 Decision by BLM State Director, Eastern States Of?ce, Karen Mouritsen, to Twin Metals Minnesota Chief Operating Of?ce, Ian Duckworth, ?Lease Renewal Application Rejected? (Dec. 15, 2016). 38 M-37036 did not examine this extrinsic evidence because of its underlying premise that the 2004 lease forms were unambiguous. Twin Metals? Renewal Application is Governed by the Renewal Terms of the 1966 Leases M-37036 concluded that the renewal rights of Twin Metals are governed by the terms of BLM standard form 3520-7 (Dec. 1984) rather than the terms of the 1966 leases. To reach this conclusion, M-3 7036 found that the 2004 lease forms ?are each complete, integrated documents that contain all necessary lease terms and are duly signed by the lessee and lessor.?39 The M- Opinion states that the lease forms only incorporate two portions of the 1966 leases through section 14 of the 2004 lease form, and that ?[n]either of these imported provisions includes the lease renewal provisions of the 1966 leases.?4O Consequently, according to M-37036, since the time that the 2004 lease form was executed, ?the renewal provisions of the 1966 leases have no longer applied and the only renewal terms are those described in the 2004 leases . . . M-37036 treats the 1989 lease renewal, which was identical to the one issued in 2004, very differently. The M-Opinion ?nds that ?the 1989 renewal was effectively a ten-year extension of the 1966 lease terms . . . 3?42 In other words, M-37036 recognized that the 1989 form incorporated all the provisions of the 1966 leases, including the renewal terms, while opining that the identically worded form in 2004 did not.43 M-3 7036 misapprehends the meaning and effect of the 2004 lease forms. As discussed below, the 2004 lease terms are ambiguous as to the extent to which the provisions of the 1966 leases are incorporated. Properly analyzed, examining both the text of the leases and the intent of the parties as expressed during negotiations, the renewal provisions found in the 1966 leases remain operative, and provide the non-discretionary right to a third renewal. The normal principles of contract construction lead to the foregoing conclusion.44 When construing a contract, we must ?rst examine the plain meaning of its express terms.45 The task is to determine the intent of the parties at the time they contracted, as evidenced by the contract itself.46 If the terms are clear and unambiguous, the provisions must be given their plain meaning 39 M-37036 at 6. 40 [d 4' Id. M-37036 then opined that the renewal language used in the 2004 lease form made the renewal discretionary, stating that the ?Department has consistently interpreted this provision as not entitling the lessee to an automatic right of renewal . . . Id. at 5. We do not address in this replacement opinion the meaning of the 2004 lease renewal language because, as explained later, the parties intended the renewal terms of the 1966 leases to remain operativediscussed below, see footnote 62 and accompanying text, attempts to distinguish the two situations by ?nding that the 1989 renewal differs ?because the discretion was limited in 1989 but not in 2004.? Id at 6. We discuss below that the discretion did not vary between the two renewals and, even if BLM had differing discretion, it intended the 2004 renewal to maintain the terms of the original I966 leases, just as the 1989 renewal had done. 44 The normal rules of contract construction govern the interpretation of agreements between the government and a private party. Thoman v. Bureau of Land Mgmt. (on recon), 155 IBLA 266, 267 (2001) (citing Anthony v. United States, 987 F.2d 670, 673 (10th Cir. 1993)); Press Machinery Corp. v. Smith R.P.M. Corp., 727 .2d 781, 784 (8th Cir. 1984)). 45 Textron Def Sys. v. Widnall, 143 F.3d 1465, 1468 (Fed. Cir. 1998). 46 Greco v. Dep ?t of Army, 852 F.2d 558, 560 (Fed. Cir. 1988). and extrinsic evidence is inadmissible to interpret them.47 However, where contract terms are unclear or ambiguous, an examination of extrinsic evidence is appropriate to properly interpret the contract in accordance with the parties? intent.48 Applying these principles, it is evident that the 2004 leases are ambiguous and extrinsic evidence must be examined to determine the intent of the parties. Rather than being ?complete, integrated documents,? the leases attach without full explanation the entirety of the 1966 leases and do not include an integration clause that states that the 2004 lease forms are the complete expression of the parties? agreement.49 These facts alone warrant an examination of extrinsic evidence to determine the intent of the parties.50 The lack of an integration clause in the 2004 leases is particularly important given the parties? interpretation of the identically wordedl989 leases that the Department has consistently acknowledged as incorporating the 1966 lease terms in their entirety.? The use of the identical form in 2004 without explanation and without an integration clause at the very least creates an ambiguity as to whether the parties intended the 2004 leases to be treated the same as the 1989 leases or completely differently as interpreted by M-3 703 6.52 Even absent that ambiguity, the text of section 14 in the 2004 leases is ambiguous. Section 14 contains two special stipulations that incorporate the 1966 leases: Sec. 14. Special Stipulations The terms and conditions of the production royalties remains [sic] as stated in the attached original lease agreement. 47 McAbee Constr., Inc. v. United States, 97 F.3d 1431, 1435 (Fed. Cir. 1996). 43 BP Amoco Chem. Co. v. Flint Hills Res, LLC, 600 F. Supp. 2d 976, 981 (ND. 111. 2009); see also 5-24 Corbin on Contracts 24.7. Terms may be ambiguous where the language is susceptible to more than one meaning, where the language is unclear or vague, or where the language can reasonably be construed differently by those who have examined the language in the context of the contract as a whole. Thoman, 155 IBLA at 267 (2001) (citing WH Smith Hotel Services v. Wendy's Int'l, Inc., 25 F.3d 422, 427 (7th Cir. 1994) (?Contractual language will be deemed ambiguous only when it is reasonably susceptible to different Collins v. Harrison-Bode, 303 F.3d 429, 433 (2d Cir. 2002) (?Contract language is ambiguous if it is ?capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated 49 ?Integration clauses, also known as merger clauses, are contract provisions that generally state that the agreement as written constitutes the entire agreement between the parties and supersedes any prior representations.? Jacobson v. Hofgard, 168 F. Supp. 3d 187, 201 (D.D.C. 2016) (citing 6 Peter Linzer, Corbin on Contracts (Joseph M. Perillo ed., 2010) at 68). 50 Starter Corp. v. Converse, Inc., 170 F.3d 286, 295 (2d Cir. 1999) (?When a contract lacks an express integration clause [courts] must ?determine whether the parties intended their agreement to be an integrated contract by reading the writing in light of the surrounding circumstances.??) (emphasis added); see also, McAbee Constr., Inc. v. United States, 97 F.3d 1431, 1434 (Fed. Cir. 1996) (?extrinsic evidence is ?especially pertinent where the writing itself contains no recitals or other evidence testifying to its intended completeness and ?nality??). 5' See M-37036 at 6. 52 The historical interpretation given to a contract by the parties is strong evidence of its meaning. Inc. v. Covell, 727 F.2d 1145, 150 (DC. Cir. 1983). 10 The minimum annual production and minimum royalty is $10.00 per acre or a fraction thereof as stated in the attached original lease agreement.53 The ?rst quoted stipulation is ambiguous because it does not precisely state which sections of the 1966 lease are being incorporated. Instead it provides that the ?terms and conditions of the production royalties? remain as stated in the original 1966 leases. Those terms and conditions are interspersed throughout the 1966 leases, and are addressed in section 2 (setting the initial rate and minimum royalty payments, among other things), section 5 (setting out the authority and limitations on adjusting royalty rates at renewals), and section 14 (setting out additional limitations on royalty adjustments). By not specifying which of these sections were incorporated and how, the 2004 lease form is ambiguous. Were only the provisions of section 2 intended to be incorporated? Or were the provisions of sections 5 and 14 also to be included? M-37036 assumed the former. Despite section 5 addressing the adjustment of royalties and other terms during renewals, M-37036 assumed that section 5 of the 1966 leases was not incorporated and had no bearing in analyzing the 2004 leases.54 It addressed the meaning of section 5 solely as an alternative argument. Yet this assumption is unwarranted because the ?terms and conditions? of the production royalties are not ?illy addressed without sections 5 and 14, so they should be incorporated in some fashion. Precisely how they should be incorporated is also ambiguous given that the royalty and other adjustment provisions of section 5 are intertwined with the renewal provisions of section 1 of the 1966 leases.55 In short, the meaning of the 2004 leases is ambiguous.56 Given this ambiguity, extrinsic evidence beyond the ?four comers? of the document may be considered to ascertain the intent of the contracting parties.57 Examining the decision ?les of the BLM resolves the ambiguity. The record shows that the BLM renewed the leases in 1989 under the same terms as the 1966 leases, and did so again in 2004. The circumstances surrounding the 1989 renewal provide important context for understanding the 2004 renewal. The decision ?le for the 1989 renewal conclusively establishes that the BLM intended to renew the leases in 1989 on the same terms as the original 1966 leases. The BLM initially issued a decision document in September of 1988 that would have renewed the leases on different terms from the original 1966 leases, but the BLM quickly reassessed the matter and 53 2004 Leases at 14. 5" See M-37036 at 6 (?Neither of these imported provisions includes the lease renewal provisions of the I966 leases?); id. at 7 there is no con?icting renewal provision [to the one in the 2004 lease form] referenced elsewhere in the 2004 leases?). ?5 The interrelationship is seen directly in the text of section 5, which refers to the ?successive? renewals that are provided by section I of the 1966 leases. 56 Given the already described ambiguity that is inherent in the 2004 lease forms, this opinion does not address whether there are other potential ambiguities in those forms. 57 See, Daewoo Eng'g Constr. Co. v. United States, 557 F.3d 1332, I337 (Fed. Cir. 2009) (?Where the meaning of a written instrument is unclear, courts look to extrinsic evidence to resolve the question?). 11 formally vacated its decision ?because the new lease forms submitted for signature will alter the terms and conditions of the original leases.?58 The unusual act of BLM vacating its initial renewal decision was based, in part, on a recommendation memorandum from the Assistant District Manager for Solid Minerals. The memorandum concluded that ?[b]ecause of the highly negotiated terms and conditions of these two leases, which contain many references to requirements to be applied during lease renewal periods, I recommend that these leases be renewed under the existing terms and conditions and in their present form, not on the new lease form.?59 A few months after vacating its initial decision, the BLM issued a revised decision renewing the leases under the same terms as the original leases. The decision stated unambiguously that it intended to renew the leases with the same terms and conditions as the original leases: ?The Forest Service and the Bureau of Land Management have agreed to the renewal of the enclosed Preference Right Leases MNES 1352 and MNES 1353 under the existing terms and conditions of the original leases. Enclosed are lease renewal forms transmitted for your signature and return to this of?ce.?60 The forms the BLM transmitted for signature were Standard Forms 3520-7 (December 1984), with the original 1966 leases attached and incorporated by reference into the standard forms through two special stipulations included as section 14 of the forms (the same form and special stipulations that would be used in the 2004 renewals). In sum, the 1989 leases, although using Standard Form 3520-7, renewed the 1966 leases without alteration of the operative terms. This fact was acknowledged in When the 2004 renewal was made, there is no statement or other indication in the ?les that the BLM or the company intended to change any of the terms of the 1989 leases. To the contrary, the record shows that the leases were expected to be renewed on the same terms. Before granting the 2004 lease renewals, the Division of Solid Minerals stated by internal memorandum that have no objection to Preference Right Leases MNES-1352 and MN ES-1353 being renewed for ten years, as stipulated within the lease language.?62 The BLM of?cial making this recommendation was the same of?cial who recommended renewing the leases in 1989 on the same terms as the 1966 leases. His reference to the ?lease language? therefore was informed by his knowledge of the 1989 leases and refers to the terms of the governing 1966 leases. Later, the 58 Decision by BLM Deputy State Director for Mineral Resources, Eastern States Of?ce to INCO Alloys lntemational, Inc., ?Decision Vacated? (Oct. 27, 1988). 59 Memorandum ??om BLM Assistant District Manager for Solid Minerals, Rolla, Vincent Vogt, to the State Director, Eastern States Of?ce, ?Recommendations for Lease Renewals, lntemational Nickel Corporation Hardrock Mineral Leases MNES-1352 and (Oct. 14, 1988). 60 Decision by BLM Deputy State Director for Mineral Resources, Eastern States Office to INCO Alloys lntemational, Inc., ?Preference Right Leases Renewed, Lease Forms Transmitted for Signature? (Apr. 25, 1989) (emphasis added). 6' M-37036 at 6, 12. 62 Memorandum ?'om BLM Assistant Field Manager for Solid Minerals, Rolla, Vincent Vogt, to State Director, Eastern States Of?ce, ?Renewal of Preference Right Leases MNES-1352 and (Apr. 12, I999). 12 Forest Service also stated that it had no objection to the renewal, as ?[t]he terms, conditions and stipulations have been reviewed, and it has been determined that they are suf?cient to protect the resources of the United States.?63 The BLM issued its decision granting the lease renewals on November 12, 2003, changing neither the terms of the lease renewals nor the conditions and stipulations, and provided the same standard form for signature as the BLM provided to the lessee in 1989.64 The BLM did not indicate any change to the contracts in its decision, and the course of dealings between the parties had establi6sshed the common basis of understanding that the 1966 lease terms were to remain in effect. While M-3 7036 attempted to distinguish between the 1989 and 2004 renewals to explain how two identically worded leases could have drastically different meanings, the attempt fails. As noted earlier, M-3 7036 concludes that the two renewals differ ?because the discretion was limited in 1989 but not in 2004.?66 But even if that were true, it does not follow that BLM intended to exercise its discretion by drastically altering the meaning of the same lease forms in 2004 (without mentioning the fact to the lessee or even in its own internal ?les). As discussed above, there is simply no evidence that either the BLM or the Forest Service intended in the 2004 renewal to deviate from the terms previously in effect in the 1989 renewal the terms of the original 1966 leases). The 2004 renewal could, and did, as discussed above, renew the leases under the same terms as in 1989, thereby retaining the renewal terms of the 1966 leases. In sum, we have found no documents or other evidence that indicate in any way that the 2004 renewals were to be on altered terms or conditions from the 1989 leases. Because the 1989 leases renewed the leases under the same terms and conditions as the original 1966 leases, those terms remain o6p7erative in the 2004 renewal and, as discussed below, entitle Twin Metals to a third renewal. 63 Decision of the USDA Forest Service, Regional Forester, Randy Moore, to BLM State Director, Eastern States Of?ce, ?Renewal of Preference Right Leases MNES 1352 and MNES 1353? (July 18, 2003). 64 Decision of BLM Chief of Use Authorization, Division of Resources Planning, Use and Protection, to American Copper and Nickel Co., ?Additional Requirements to be Met? (Nov. 12, 2003). 65 The courts have recognized that the parties? own construction of an ambiguous written instrument is important when determining its meaning. See DDB Tee/13., L.L.C. v. MLB Advanced Media, L.P., 517 F.3d 1284, 1292 (Fed. Cir. 2008); 1 Richard A. Lord, Williston on Contracts 32:14 (4th ed. 1999) parties' own practical interpretation of the contract-~how they actually acted, thereby giving meaning to their contract during the course of performing it- -can be an important aid to the ?6 M-37036 at 6. The M-Opinion reasons that the 1989 renewal, unlike the 2004 renewal, had to be on the same terms as the original 1966 leases because it served as an extension of time for commencement of production as authorized by the second sentence of section 5 of the 1966 leases. M-37036 at 6. That provision states that a renewal made while the extension is in effect must be ?without readjustment except of royalties payable . . . 1966 Lease, 5 (second sentence). Accordingly, to comply with the dictates of section 5 of the 1966 Leases, the M- Opinion concludes that the 1989 renewal had to be on the same terms as the 1966 leases. The M-Opinion concludes that the 2004 renewal, in contrast, did not have to be on the same terms because it could not and did not provide an extension. It is important to note that nothing on the face of the 1989 lease form states that it serves as an extension, and there is no evidence in the decision ?les that the lessee sought an extension or that BLM granted one. 67 Because the parties intended for the renewal terms of the 1966 leases to remain operative, there is no need to address the meaning of the renewal provision used in the 2004 standard form, which provides for a ?preferential 13 The 1966 Lease Terms Provide for a Third Right of Renewal The renewal terms of the 1966 leases are not ambiguous in providing Twin Metals with a non- discretionary right to a third renewal, subject to the United States? right to impose reasonable new terms and conditions. Section 1 of the 1966 leases sets out the overall renewal rights, and it provides ?a right in the Lessee to renew the same for successive periods of ten (10) years each in accordance with regulation 43 C.F.R. 3221.4(0 and the provisions of this lease.?68 The referenced regulation is similarly unambiguous in providing a right to successive renewals, in relevant part providing lessees with: right of renewal for successive periods, not exceeding 10 years each, under such reasonable terms and conditions as the Secretary of the Interior may prescribe, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereof.69 Thus, section 1 of the 1966 leases, by its own terms and by reference to section 3221.4(0 of the regulations, establishes that the lessee has a right of renewal for successive ten-year periods, and that the renewals are subject to the provisions of the lease, including provisions regarding subsequent terms and conditions. No other provision of the leases negates this right of renewal. Accordingly, the 1966 leases provide the lessee with a non-discretionary right of renewal for successive ten-year periods, as long as the lessee complies with the lease terms. M-37036 reached a different conclusion by ?nding that section 5 of the leases conditioned the lessee?s right of renewal upon the lessee having begun production by the end of the primary term. But the text of section 5 does not support this interpretation. Instead, section 5 merely provides terms that govern the extent to which the leases are subject to readjustment at the time of renewal; it does not abrogate the non-discretionary right of renewal provided by section 1. The text of section 5 provides: Renewal Terms. The Lessor shall have the right to reasonably readjust and ?x royalties payable hereunder at the end of the primary term of this lease and thereafter at the end of each successive renewal thereof unless otherwise provided by the law at the time of the right in the lessee to renew for successive periods of 10 years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.? 68 I966 leases 1. 69 43 CPR. 3221 (I966). M-37036 suggests that the last sentence of section 3221.4(f) supports its conclusion that production is a condition of renewal. M-37036 at ll?l2. The last sentence of section 3221.4(f) states: ?An application for renewal of the lease must be ?led in a manner similar to that prescribed for extension of a [prospecting] permit in 322 M-37036 reasons from this language that because section 3221.3(a) required a person seeking an extension of a prospecting permit to show that he has ?diligently performed prospecting activities,? section 3221.4(0 must analogously require a person who is ?ling for renewal of a lease to make ?a showing of diligence in performing production.? M-37036 at M-37036 provided no administrative or judicial precedent to support this interpretation, and it fails upon closer examination. Section 3221.4(f) incorporated section 3221.3(a) only to the extent it dealt with the ?manner? of ?ling 3221.3(a) required ?ling an application in triplicate and with a ?ling fee within 90 days of the permit expiration); it does not incorporate the substantive criteria under which a prospecting permit extension is adjudicated. It thus provides no support for the conclusion that a production requirement is a condition of renewal. 14 expiration of any such period, and to readjust other terms and conditions of the lease, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover; provided, however, that the Lessee shall have the right to three successive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day. The Secretary of the Interior may grant extensions of time for commencement of production in the interest of conservation or upon a satisfactory showing by the Lessee that the lease cannot be successfully operated at a pro?t or for other reasons, and the Lessee shall be entitled to renewal as herein provided without readjustment except of royalties payable hereunder if at the end of the primary or renewal period such an extension shall be in effect, but the Lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time. If the Lessee shall be entitled to renewal without readjustment except of royalties payable hereunder, the Secretary of the Interior may in his discretion increase the royalty rate prescribed in subsection of Section 2 up to, but not exceeding 5% during the ?rst ten-year renewal period, (ii) 6% during the second ten-year renewal period, and 7% during the third ten-year renewal period. The extent of readjustment of royalty, if any to be made under this section shall be determined prior to the commencement of the renewal period. Rather than conditioning the right of renewal upon production as M-37036 argues, section 5 sets forth the degree to which the BLM may readjust the terms, conditions, and royalty rates during lease renewals, and creates an incentive for early production by limiting discretion during the ?rst three lease renewals if production has begun. The ?rst sentence in section 5 has engendered the most commentary, but its meaning is evident from the text. Parsed out, the initial clause grants the BLM two rights: 1. The right to reasonably readjust and ?x royalties at the end of the primary term of the lease and at the end of each successive renewal thereof unless otherwise provided by the law at the time of the expiration of any such period; and 2. The right to readjust other terms and conditions of the lease, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover. These rights are subject to one condition set out in the proviso clause. The proviso provides an incentive to production by restricting the right to adjust the terms of the leases during the ?rst three renewals if production has begun during the primary term: That the Lessee has the right to three successive ten-year renewals of the lease with any readjustment in the royalties payable limited to that provided in the 1966 lease and with no readjustment of any of the other terms and conditions of this lease unless at the end of the 15 primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day. Under the terms of this proviso, the consequence of a failure to begin production within the primary term is not the loss of the right to renew, as M-37036 asserted, but the loss of the right to a renewal with extremely limited readjustments. Despite the plain wording of this proviso, M-37036 attempted to argue that the ?unless? clause at the end of the sentence ?quali?es the very right to renew.?70 According to that M-Opinion, this ?proper? meaning was demonstrated by deleting text from the provision: [T]he proper meaning of the proviso is clear when the last clause is placed next to the provision it actually quali?es: ?[T]he Lessee shall have the right to three successive ten- year renewals of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day.?? Under this interpretation, the ?nal ?unless? phrase in the proviso imposes a production requirement that negates sub silentio the renewal rights provided in section 1 of the leases. This interpretation is not correct. Deleting the text from the proviso does not clarify its meaning, it simply (and not surprisingly) changes the meaning. The deleted text works with the ?unless? phrase to form one restrictive modi?er that states how the right to three successive renewals will be limited if production has begun. In other words, the ?unless? phrase does not qualify the right to renewal but is part and parcel of the restrictive modi?er describing precisely how the readjustment rights were to be limited if production had begun. Deleting the text thus changes, rather than clari?es, the meaning of the proviso. Moreover, the interpretation suggested by M-37036 does not account for the fact that the entire sentence is a proviso to the ?rst clause. The ?rst clause describes the readjustment authority at renewal and evinces no intention to circumscribe the renewal rights set out in section 1 of the leases or create a production condition on renewal. The proviso is properly interpreted as qualifying this clause,72 but the interpretation suggested by M-3 7036 elevates the proviso into a separate, standalone provision that creates a production condition, which negates the section 1 renewal rights. Such an interpretation is not warranted by the text or placement of the proviso. The remaining two sentences of section 5 reinforce that the right to renew is not impacted by section 5, but merely the amount of readjustments that can be made with a renewal. The second sentence has three clauses. The ?rst clause gives the Secretary of the Interior broad discretion to grant extensions of time for commencement of production in the interest of conservation, upon a showing that the lease cannot be operated for a pro?t, or ?for other reasons.? The second clause makes clear that a consequence of granting an extension is that the lessee will continue to enjoy the 7" M-37036 at 9. 7' 1d. (alteration and ellipsis in original). 72 See, e. Bamhart v. Thomas, 540 vs. 20, 26 (2003) limiting clause or phrase should ordinarily be read as modifying only the noun or phrase that it immediately follows?). 16 favorable limitations on lease readjustments if renewal occurs while the extension is in effect: ?the Lessee shall be entitled to renewal as herein provided without readjustment except of royalties payable.? The third clause provides that ?the Lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time? (emphasis added). The phrase ?such renewals? refers back to the preceding clause, which references renewals without readjustment of the terms and conditions.73 In other words, the second sentence of section 5 takes as a given the right to renew the lease; it is only the terms and conditions of a renewal that are affected by the authorized extension of time for commencement of production. Finally, the third sentence of section 5 is straightforward. It provides a schedule for the rate readj ustments when the lessee is entitled to renewal without readjustment except of royalties. It limits rate readj ustments to: 5% during the ?rst ten-year renewal period; 0 6% during the second ten-year renewal period; and 7% during the third ten-year renewal period. As re?ected by this analysis of section 5, its provisions set out the right of BLM to readjust royalty rates and lease terms and conditions at the time of renewal, but creates a production incentive for the lessee by providing BLM with only limited readjustment rights if the lessee begins production by the end of the primary term (or by the end of an extension if one is granted). The commencement of production is thus a condition precedent to limiting readjustment rights, but it is not a condition precedent to the right to a renewal. M-3 7036 attempts to support its interpretation that section 5 imposes a production condition on renewal with a number of subsidiary arguments. The M-Opinion argues, for example, that its position is longstanding and supported by a 1986 memorandum from an Associate Solicitor.74 While that 1986 Opinion answered the narrow renewal question before it correctly, ?nding that BLM could renew the leases in the absence of production, its reasoning is faulty and was not even relied upon in M-3 7036. More speci?cally, the 1986 Opinion improperly focused only on the second sentence of section 5, without reference to section 1 of the lease or even the other sentences of section 5. It summarily concluded that the ?nal clause of the second sentence (which states that ?the lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time?) precludes all subsequent renewals. As discussed above, that is an 73 M-37036 asserts that the last clause of the second sentence supports its interpretation, apparently viewing the phrase ?shall not be entitled to subsequent such renewals? as effectively meaning ?shall not be entitled to any renewals.? The M-Opinion?s construction does not square with the actual wording of the clause. 74 M-37036 at 12 (citing Memorandum from Associate Solicitor, Energy and Resources, signed by Kenneth G. Lee, Assistant Solicitor, Branch of Eastern Resources, to Deputy State Director, Mineral Resources, Eastern States Office, BLM, ?Application for Minimum Royalty Waiver Submitted by INCO Alloys lntemational, Incorporated for Leases ES 01352 and ES 01353? (Apr. 2, 1986) (1986 Opinion?. 17 improper reading that ignores what the clause is qualifying and gives no meaning to the phase ?such renewals,? instead transforming it into ?all renewals.? Moreover, the BLM appropriately did not follow the advice given in the 1986 Opinion when it renewed the leases for a second time in 2004. The 1986 Opinion thus provides no support for concluding that production is a precondition to the right to renew. M-3 7036 also argues that the lease requirement to pay minimum royalties in lieu of production does not negate the precondition of production for mandatory renewals.75 While it is certainly true that BLM could impose both requirements, the very case cited in the M-Opinion shows that when BLM intends to impose a production requirement, it will do so explicitly. In General Chemicals (Soda Ash) Partners,76 the BLM had imposed a minimum royalty payment in a sodium lease but also included an express production precondition for renewal, stating that ?[t]he authorized officer will reject an application for renewal of this lease if, at the end of the lease?s current term, sodium is not being produced.?77 General Chemicals underscores that the BLM will explicitly include a production precondition when it so intends.78 There is no such provision in the leases at issue. Moreover, the historical record of the 1966 lease implementation shows that production was not made a condition of renewal. For example, as stated in the background section above, the BLM denied IN requested waiver of minimum royalty payments precisely because there was no production requirement in the lease: The provision for minimum royalty in lieu of production requirements was a lease term arrived at through pre-lease negotiations between the Bureau and IN CO. The intention of the minimum royalty is to spur development of the resource and, in effect, is the only diligence requirement contained in the subject leases. Waiver of minimum royalty removes all incentive for the timely development of the leases.79 Later, when processing the 1989 renewal application, the BLM wrote in an internal memorandum that it would be ?inappropriate? to impose a production requirement upon the lessee in the lease renewal, especially ?when no other hardrock leases in our District contain such a requirement.?80 75 M-37036 at l2?l3. 761761BLA (2008). 77 Id. at 5. 78 M-37036 suggests that General Chemicals supports its position because the Board in that case found that the payment of minimum royalties did not satisfy the lease?s production requirement. M37036 at 13 (citing General Chemicals, 176 IBLA. at 9.). Given that the lease in General Chemicals included an express production requirement, while the leases at issue do not, the case is clearly distinguishable and actually supports the conclusion reached here that no production requirement is imposed by the leases. 79 Memorandum ??om BLM Associate District Manager, Milwaukee to the State Director, Eastern States O?ice, ?Recommendation Regarding an Application for Minimum Royalty Waiver Submitted by INCO Alloys International, Inc.? (Aug. 28, 1985), at 2. 80 Memorandum from BLM Assistant District Manager for Solid Minerals, Rolla, Vincent Vogt, to the State Director, Eastern States Of?ce, ?Recommendations for Lease Renewals, lntemational Nickel Corporation Hardrock Mineral Leases 352 and 353? (Oct. 14, I988) at 2. l8 Finally, 7036 makes in essence a public policy argument that a lease without a production precondition would allow for speculative holding of mineral rights in contravention of Congress?s intent to encourage mineral development and ?provide a fair return to the American taxpayer?? But the leases here do provide incentives for production by imposing minimum royalty payments and authorizing greater revisions of the royalty rates and other terms when there has been no production. The American public has received over $1.4 million dollars in royalty payments, and Twin Metals has asserted that it has spent over $400 million in exploration activity. The public policy concern is unfounded in this instance. In summary, neither the terms of the 1966 leases, the course ot?conduct of the parties over the last 50 years, nor public policy suggest that a production precondition is required. Conclusion M-37036 improperly interpreted the leases at issue and is withdrawn. As discussed above, the terms of the original leases issued to Twin Metals? predecessor-in?interest in 1966 remain operative in the 2004 lease renewal. The original 1966 leases provide Twin Metals with a non? discretionary right to a third renewal, subject to the United States? right to impose reasonable terms and conditions as authorized by the 1966 leases. Accordingly, the BLM does not have the discretion to deny the renewal application. Daniel H. Jorjal i 8? M-37036 at 11. 19 CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 1 of 14 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA * * * * * * * * * * * * * * * * * * * Franconia Minerals (US), LLC, et al., Plaintiffs, vs. PRETRIAL CONFERENCE NOTICE AND ORDER United States of America, et al., Defendants. Court File No. 16-cv-3042 (SRN/LIB) * * * * * * * * * * * * * * * * * * * NOTICE TO COUNSEL Counsel should be aware and anticipate that the method to be used for the resolution of MOST discovery issue disputes and all other non-dispositive motions is presumed to be by “formal” motion practice. See, Local Rule 7.1(a-b) - Civil Motion Practice - of the Local Rules for the District Court of Minnesota.1 Counsel should also be aware and anticipate that Pretrial Conferences, “formal” motion practice, any other matter that needs to be conducted in open Court upon the record, and Settlement Conferences will all be scheduled for and take place in the Federal Courthouse for the Division where the case is venued except that all 3rd and 4th Division case proceedings will be held at the Federal Courthouse in St. Paul, Minnesota, unless otherwise notified. *********** In accordance with the provisions of Rules 16 and 26 of the Federal Rules of Civil Procedure, in conformity with the Civil Justice Reform Act Implementation Plan for the District of Minnesota, which was adopted by Order dated August 23, 1993, and pursuant to the Electronic Case Filing 1 Informal procedures for the resolution of discovery disputes may be considered, but only with prior permission of the Court, and not pursuant to any ex parte requests. CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 2 of 14 Procedures for the District of Minnesota/Civil authorized by Order dated May 13, 2004, a Pretrial Conference2 in this matter is set for Wednesday, January 17, 2018, at 1:30 p.m., before United States Magistrate Judge Leo I. Brisbois, in Courtroom 3, Gerald W. Heaney Federal Building and U.S. Courthouse, 515 W. First St., Duluth Minnesota. In order to facilitate matters, it is -ORDERED: 1. Unless otherwise directed, in accordance with Rule 26(f), Federal Rules of Civil Procedure, counsel for the parties shall meet and confer for direct talks (e-mail and letter exchanges will not be considered direct talks) no later than fourteen (14) days prior to the date of the Pretrial Conference for the purpose of: a. Preparing an agenda of matters to be discussed at the Pretrial Conference. b. Preparing a joint proposed Pretrial Schedule for the case that shall include a plan for discovery setting forth specific parameters for anticipated discovery, including the number of depositions, the volume of documents expected to be produced, the volume of written discovery, and the extent of expert discovery. c. Preparing a joint plan to control excessive litigation costs and delays. Such a plan shall include such matters as focusing 2 The Pretrial Conference requires the personal appearance of at least one attorney of record for each party. Other counsel of record for a party may participate by conference call, if they desire and if conference call technologies are available to the Court. - 2 - CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 3 of 14 the initial discovery on preliminary issues that might be case dispositive, instituting document control and retrieval mechanisms to contain costs, stipulating to facts to eliminate unnecessary discovery, adopting procedures for orderly discovery, and scheduling alternating periods for party discovery and any other matters counsel may agree upon to control excessive litigation costs and delays. The parties should also consider whether electronic discovery will be a significant part of pretrial discovery and discuss a plan or protocol for electronic discovery which will control costs for all parties. The parties are directed to the Court’s Electronic Discovery Guide as a resource to aid their discussions. The Guide can be found at http://www.mnd.uscourts.gov/FORMS/Clerks_Office/eDiscoveryGuide.pdf. d. Preparing a joint schedule to submit to the Magistrate Judge for the Pretrial Conference which sets forth suggested time periods for fact discovery, for the joinder of parties and for expert discovery; cut-off dates for both nondispositive and dispositive Motions; and a trial readiness date. e. Considering whether or not they will consent to trial by the Magistrate Judge. If consent is given, specify preferred date certain for trial setting. [Date is subject to confirmation by the - 3 - CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 4 of 14 Magistrate Judge's Courtroom Deputy.] Consent by the parties to trial by the Magistrate Judge may also be given at a future time as well. Counsel's attention is drawn to the attached Pretrial Scheduling Order template form which is to be used in preparing and submitting the Proposed Pretrial Scheduling Order. The Proposed Pretrial Scheduling Order is not to be filed on CM/ECF, but it shall be submitted d irectl y to Magi s trate Judge Leo I. Brisbois at e-mail addres s : brisbois_chambers@mnd.uscourts.gov. 2. After counsel have met and conferred on the matters set forth above, they will file and submit a Joint Rule 26(f) Report (see Local Rule approved forms) setting forth each of the matters agreed upon at least three (3) business days prior to the Pretrial Conference. To the extent that counsel cannot agree upon any of the items set forth in Paragraph 1 above, then within the Joint Rule 26(f) Report each party shall submit its own proposal for each item of disagreement for review by the Magistrate Judge. The Joint Rule 26(f) Report shall be filed on CM/ECF and a courtesy copy submitted directly to Magistrate Judge Leo I. Brisbois at e-mail address: brisbois_chambers@mnd.uscourts.gov. 3. In addition to the foregoing, at least three (3) business days prior to the Pretrial Conference, the Defendant(s) shall advise the Plaintiff(s) of any applicable insurance coverage and the limits of the same, and, if the Plaintiff has placed a medical condition, physical or mental, into controversy, then the Plaintiff shall provide a listing of all pertinent treating physicians, if any, and duly executed Medical Authorizations. See, O’Sullivan v. State of Minnesota, 176 F.R.D. 325 (D. - 4 - CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 5 of 14 Minn. 1997). Each party shall also file on CM/ECF, by no later than three (3) business days prior to the Pretrial Conference, a concise Statement of the Case setting forth that party’s: a. version of the facts of the case; b. a listing of particularized facts which support the claimed liability or defenses, including any applicable statutes as identified by number; and c. an itemization and explanation of any claimed damages. This Statement of the Case is to be signed by counsel and filed on CM/ECF pursuant to the Electronic Case Filing Procedures of the District of Minnesota and served on opposing counsel. 4. In addition, subjects contemplated by Rule 16(c), Federal Rules of Civil Procedure, will be discussed as part of the 26(f) meet and confer. Without limiting the generality of the foregoing, in advance of the Pretrial Conference the parties should consider: a. Limitations and restrictions on expert testimony; b. The appropriateness and timing of Summary Judgment; c. The control and scheduling of discovery; d. Resort to alternative dispute resolution techniques; e. Reasonable limits on the time allowed for presenting evidence at trial; and - 5 - CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 6 of 14 f. Counsel are expressly directed to seriously discuss settlement at the time of the 26(f) “meet and confer.” The results of that discussion shall be reported to the Court at the time of the initial Pretrial Conference, and EACH ATTORNEY SHALL SUBMIT AT LEAST THREE (3) BUSINESS DAYS PRIOR TO THE SCHEDULED PRETRIAL CONFERENCE A CONFIDENTIAL LETTER PROVIDING THAT PARTY’S CONFIDENTIAL ASSESSMENT AS TO WHEN PRIMARILY NECESSARY DISCOVERY MIGHT BE DONE SO AS TO SUGGEST WHAT AN OPTIMAL TIME WOULD BE FOR A SETTLEMENT CONFERENCE SO THAT SETTLEMENT EFFORTS WOULD BE MOST FRUITFUL. This confidential letter shall be submitted directly to Magistrate Judge Leo I. B r i s b o i s a t e - m a i l a d d r e s s : brisbois_chambers@mnd.uscourts.gov. 5. Following the Pretrial Conference, an Order establishing a schedule for all Pretrial proceedings, and such other matters as contemplated by Rule 16, shall be entered by the Court. 6. This Pretrial Conference will not be continued pursuant to an independent Stipulation or agreement of counsel or by an informal unilateral application by a party. A continuance may be granted only by this Court and only for good cause shown. However, the right to act upon a request - 6 - CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 7 of 14 for a continuance of the Pretrial Conference, ex parte, if exigent circumstances so warrant, is reserved to the Court. 7. Counsel's attention is specifically drawn to the provisions of Rule 16(f), Federal Rules of Civil Procedure. BY THE COURT: DATED: November 27, 2017 s/Leo I. Brisbois Leo I. Brisbois U.S. MAGISTRATE JUDGE - 7 - CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 8 of 14 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA * * * * * * * * * * * * * * * * * * * , Plaintiff, vs. PRETRIAL SCHEDULING ORDER , Defendant. Court File No. -cv- (SRN/LIB) * * * * * * * * * * * * * * * * * * Pursuant to Pretrial Conference convened on ______________, 2017, and in accordance with provisions of Rule 16, Federal Rules of Civil Procedure, and the Local Rules of this Court, to administer the course of this litigation in a manner which promotes the interests of justice, economy and judicial efficiency, the following Pretrial Schedule will govern these proceedings. The Schedule may be modified only upon formal Motion and a showing of good cause as required by Local Rules 7.1 and 16.3. Counsel shall also comply with the Electronic Case Filing Procedures For The District of Minnesota, pursuant to Order Adopting Electronic Case Filing, dated May 13, 2004. THEREFORE, It is -ORDERED: - 8 - CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 9 of 14 I. That all pre-discovery disclosures required by Rule 26(a)(1) shall be completed on or before [INSERT DATE]. The period during which the parties must conduct all discovery (whether fact or expert) shall terminate on [INSERT DATE].3 Disputes with regard to pre-discovery disclosures or discovery shall be called immediately to the Court's attention by the making of an appropriate Motion, and shall not be relied upon by any party as a justification for not adhering to this Pretrial Scheduling Order. No further or additional discovery shall be permitted after the above date except upon motion and by leave of the Court for good cause shown, and any independent Stipulations or agreements between counsel which contravene the provisions of this Order will not be recognized. However, upon agreement of counsel, or with leave of the Court, depositions in lieu of in-Court testimony may be taken after the close of discovery. II. That all Motions which seek to amend the pleadings or add parties must be filed and the Hearing thereon completed on or before [INSERT DATE].4 III. That all other nondispositive Motions shall be filed and the Hearing thereon completed prior to [INSERT DATE - this date should be 30 days after the discovery deadline], by calling 3 See, Local Rule 16.2(d)(3) of the United States District Court For the District of Minnesota Local Rules. 4 This deadline does not apply to motions to amend pleadings to assert a claim for punitive damages. Motions which seek to assert claims for punitive damages must be filed and the Hearing thereon completed prior to the discovery deadline in Paragraph I. - 9 - CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 10 of 14 Victoria L. Miller at 218-529-3520, Courtroom Deputy for Magistrate Judge Leo I. Brisbois. All nondispositive Motions shall be scheduled, filed and served in compliance with Local Rule 7.1(a) and (b) and the Electronic Case Filing Procedures For The District of Minnesota. No discovery Motion shall be heard unless the moving party complies with the requirements of Local Rule 37.1. IV. A Settlement Conference pursuant to Local Rule 16.5(b) in the above-entitled matter is set before Magistrate Judge Leo I. Brisbois [the DATE, TIME and LOCATION WILL BE DETERMINED BY THE COURT], on __________________, 2017, at ______ a.m., in [Courtroom No. 3, Gerald W. Heaney Federal Building and U.S. Courthouse, 515 W. First St., Duluth, Minnesota] [Courtroom No. 2, Edward J. Devitt Federal Building and U.S. Courthouse, 118 South Mill St., Fergus Falls, Minnesota] [Devitt Courtroom, Warren E. Burger Federal Building and U.S. Courthouse, 316 N. Robert St., St. Paul, Minnesota]. A separate Notice of this Settlement Conference shall be issued outlining the parties’ obligations for preparation and for appearance of the Conference. V. That no more than [INSERT NUMBER] Interrogatories (counted in accordance with Rule 33(a), Federal Rules of Civil Procedure), shall be served by any party. [If the parties have stipulated to limitations on either the scope or number of discovery requests pursuant to Rule 34 and Rule 36, the terms of such stipulation should be inserted here as well.]. - 10 - CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 11 of 14 VI. That no more than [INSERT NUMBER] depositions (excluding expert depositions) shall be taken by any party without prior Order of the Court. VII. That within the foregoing period allotted for discovery, but no later than the dates set forth below, the parties shall retain and disclose to opposing counsel all persons they intend to call as expert witnesses at trial.5 Each party's disclosure shall identify each expert and state the subject matter on which the expert is expected to testify. The disclosure shall be accompanied by a written report prepared and signed by the expert witness.6 As required by Rule 26(a)(2)(B), Federal Rules of Civil Procedure, the report shall contain: a. The qualifications of the witness, including a list of all publications authored by the witness within the preceding 10 years; b. The compensation to be paid for the study and testimony; c. A listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years; d. A complete statement of all opinions to be expressed and the basis and reasons therefor; e. The data or other information considered by the witness in forming the opinions; and 5 This includes any witnesses who were retained for purposes of conducting an examination pursuant to Rule 35. 6 If no written report is required by Rule 26(a)(2)(B), the disclosures shall still comply with Rule 26(a)(2)(C). - 11 - CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 12 of 14 f. Any exhibits to be used as a summary of or support for the opinions. The Plaintiff's disclosures shall be made on or before [INSERT DATE]. The Defendant's disclosures shall be made on or before [INSERT DATE]. VIII. That the parties [do] [do not] contemplate taking expert depositions. No more than [INSERT NUMBER] experts may be deposed by any party without prior Order of the Court. IX. That each party shall fully supplement all discovery responses according to Rule 26(e), Federal Rules of Civil Procedure. Any evidence responsive to a discovery request which has not been disclosed on or before the discovery cutoff or other dates established herein, except for good cause shown, shall be excluded from evidence at trial. X. Counsel for the moving party shall contact Susan Del Monte, Courtroom Deputy for the Hon. Susan Richard Nelson at 651-848-1070 no later than [INSERT DATE - this date shall be the same date as the deadline for completion of all fact and expert discovery]7 to schedule a Hearing for a dispositive motion, if any. Counsel are reminded that at least two to three months advance notice is necessary to place a dispositive motion on the calendar. All dispositive motions and supporting 7 The parties should attempt to schedule dispositive motions after all discovery has been completed and to schedule all dispositive motions for the same hearing and should strive to avoid duplication in their briefing. If the parties believe early or piecemeal dispositive motion practice is necessary, they should seek permission of the District Judge. - 12 - CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 13 of 14 papers ( motion, notice of motion, memorandum of law, affidavits, exhibits and proposed order) shall be filed and served in compliance with the Electronic Case Filing Procedures for the District of Minnesota and in compliance with Local Rule 7.1; however, unless otherwise directed by the Court, the moving party’s motion papers shall not be filed until 42 days prior to the scheduled Hearing date. When a motion, response or reply brief is filed on CM/ECF, two (2) paper courtesy copies (three-hole punched, with dividers clearly marked between exhibits) of the pleading and all supporting documents shall be mailed or delivered to chambers contemporaneously with the documents being posted on CM/ECF. Notwithstanding the foregoing, no party shall file a dispositive motion before the close of discovery without first obtaining permission from the undersigned. Permission shall be sought by electronically filing a letter of no more than three (3) pages briefly setting forth the basis for the motion, whether discovery relating to the issue or issues to be addressed by the motion is complete, and why judicial efficiency would be served by allowing the motion to proceed at this time. The other party or parties may file brief letters in support of or in response to the request. Denial of a request for permission to file an early dispositive motion shall not be taken as an indication of the Court’s view about the merits of the proposed motion. XI. - 13 - CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 14 of 14 That this case shall be ready for Trial on [INSERT DATE8 - this date should be four (4) months after the date for dispositive motions], or 30 days after the Court renders its Order on any dispositive Motion (whichever is later), at which time the case will be placed on the Court's [Jury] [non-Jury] Trial calendar. That the anticipated length of Trial is [INSERT NUMBER of days/weeks]. BY THE COURT: DATED: ___________________________ Leo I. Brisbois U.S. MAGISTRATE JUDGE 8 THIS DATE IS NOT A TRIAL SETTING DATE. The parties will be notified by the Calendar Clerk of the assigned Judge to a case by way of a Notice of Trial as to when this case will be placed on the Trial Calendar. The above date is merely a notice to all parties to consider the case ready for trial as of this date. DO NOT PREPARE FOR TRIAL UNTIL NOTIFIED. - 14 - U.S. Department of Justice United States Attorney District of Minnesota 600 United States Courthouse 300 South Fourth Street Minneapolis, MN 55415 Telephone (612) 664-5600 Fax (612) 664-5787 December 6, 2017 VIA ECF The Honorable Leo I. Brisbois United States District Court 515 West 1st Street, Room 412 Duluth, MN 55802-1397 Re: Sierra Club et al. v. United States Forest Service, et al., Case No. 0:17-cv-00909-JNE-LIB (D. Minn.) Your Honor: A Pretrial Conference Notice and Order was lodged in Sierra Club et al. v. United States Forest Service, et al., on November 27, 2017, scheduling a Pretrial Conference for January 3, 2018, and directing the parties to prepare a report under Rule 26(f). Similar orders have been entered in two related cases, and letters materially similar to this letter are being filed in those cases. See Minn. Ctr. for Entl. Advocacy, et al. v. Tooke,1 et al., Civ No. 0:17-cv-00905-JNE-LIB; Ctr. for Biological Diversity, et al. v. Zinke, Civ. No. 0:17-cv-00914-JNE-LIB. No such order has been entered in a third related case, WaterLegacy v. U.S. Forest Service, et al., Civ. No. 0:17-cv-00276-JNE-LIB. The parties in the three cases in which orders have been lodged have conferred and respectfully request that the Pretrial Conference in this case and the other two cases be continued. This letter is being submitted on behalf of all counsel, who have reviewed it and concur in its contents. The parties believe that good cause exists for a continuance. There are outstanding motions to dismiss for lack of subject matter jurisdiction in all four cases. If the motions are granted, there will be no need for pretrial conferences. If the motions are not granted, there will be no resulting delay or prejudice to any party because these actions are “action[s] for review on an administrative record” under Rule 26(a)(1)(B). As a result, they would ordinarily be exempt from the requirements of Rule 26(f). See Fed. R. Civ. P. Tony Tooke replaced Thomas Tidwell as Chief of the United States Forest Service and “is automatically substituted as a party” pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. 1 December 6, 2017 Page 2 26(f)(1). Instead, these types of actions typically involve no discovery or disputed facts, and are resolved through cross motions for summary judgment based on an administrative record. See, e.g., Voyageurs Nat’l Park Ass’n v. Norton, 381 F.3d 759, 766 (8th Cir. 2004) (“It is well-established that judicial review under the [Administrative Procedure Act] is limited to the administrative record that was before the agency when it made its decision.”). As a result, the parties anticipate proposing a schedule for lodging the administrative record, providing a period of time for resolving any disputes regarding the content of the administrative record, and setting forth a briefing schedule for cross motions for summary judgment in any of the cases in which the motions to dismiss are not granted. The parties believe that establishing such a schedule would be most practical and efficient after rulings on those motions. But if the Court prefers to proceed with pretrial conferences before such rulings, the parties in the three cases in which conferences have been scheduled respectfully suggest that it might be most efficient to hold them, along with a conference in the fourth case, on the same date. Thank you for your consideration of this request. Sincerely, GREGORY G. BROOKER Acting United States Attorney s/ David W. Fuller BY: DAVID W. FULLER Assistant U.S. Attorney Attorney ID Number 390922 600 United States Courthouse 300 South Fourth Street Minneapolis, MN 55415 Phone: 612-664-5600 Email: David.Fuller@usdoj.gov CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 1 of 14 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA * * * * * * * * * * * * * * * * * * * Franconia Minerals (US), LLC, et al., Plaintiffs, vs. PRETRIAL CONFERENCE NOTICE AND ORDER United States of America, et al., Defendants. Court File No. 16-cv-3042 (SRN/LIB) * * * * * * * * * * * * * * * * * * * NOTICE TO COUNSEL Counsel should be aware and anticipate that the method to be used for the resolution of MOST discovery issue disputes and all other non-dispositive motions is presumed to be by “formal” motion practice. See, Local Rule 7.1(a-b) - Civil Motion Practice - of the Local Rules for the District Court of Minnesota.1 Counsel should also be aware and anticipate that Pretrial Conferences, “formal” motion practice, any other matter that needs to be conducted in open Court upon the record, and Settlement Conferences will all be scheduled for and take place in the Federal Courthouse for the Division where the case is venued except that all 3rd and 4th Division case proceedings will be held at the Federal Courthouse in St. Paul, Minnesota, unless otherwise notified. *********** In accordance with the provisions of Rules 16 and 26 of the Federal Rules of Civil Procedure, in conformity with the Civil Justice Reform Act Implementation Plan for the District of Minnesota, which was adopted by Order dated August 23, 1993, and pursuant to the Electronic Case Filing 1 Informal procedures for the resolution of discovery disputes may be considered, but only with prior permission of the Court, and not pursuant to any ex parte requests. CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 2 of 14 Procedures for the District of Minnesota/Civil authorized by Order dated May 13, 2004, a Pretrial Conference2 in this matter is set for Wednesday, January 17, 2018, at 1:30 p.m., before United States Magistrate Judge Leo I. Brisbois, in Courtroom 3, Gerald W. Heaney Federal Building and U.S. Courthouse, 515 W. First St., Duluth Minnesota. In order to facilitate matters, it is -ORDERED: 1. Unless otherwise directed, in accordance with Rule 26(f), Federal Rules of Civil Procedure, counsel for the parties shall meet and confer for direct talks (e-mail and letter exchanges will not be considered direct talks) no later than fourteen (14) days prior to the date of the Pretrial Conference for the purpose of: a. Preparing an agenda of matters to be discussed at the Pretrial Conference. b. Preparing a joint proposed Pretrial Schedule for the case that shall include a plan for discovery setting forth specific parameters for anticipated discovery, including the number of depositions, the volume of documents expected to be produced, the volume of written discovery, and the extent of expert discovery. c. Preparing a joint plan to control excessive litigation costs and delays. Such a plan shall include such matters as focusing 2 The Pretrial Conference requires the personal appearance of at least one attorney of record for each party. Other counsel of record for a party may participate by conference call, if they desire and if conference call technologies are available to the Court. - 2 - CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 3 of 14 the initial discovery on preliminary issues that might be case dispositive, instituting document control and retrieval mechanisms to contain costs, stipulating to facts to eliminate unnecessary discovery, adopting procedures for orderly discovery, and scheduling alternating periods for party discovery and any other matters counsel may agree upon to control excessive litigation costs and delays. The parties should also consider whether electronic discovery will be a significant part of pretrial discovery and discuss a plan or protocol for electronic discovery which will control costs for all parties. The parties are directed to the Court’s Electronic Discovery Guide as a resource to aid their discussions. The Guide can be found at http://www.mnd.uscourts.gov/FORMS/Clerks_Office/eDiscoveryGuide.pdf. d. Preparing a joint schedule to submit to the Magistrate Judge for the Pretrial Conference which sets forth suggested time periods for fact discovery, for the joinder of parties and for expert discovery; cut-off dates for both nondispositive and dispositive Motions; and a trial readiness date. e. Considering whether or not they will consent to trial by the Magistrate Judge. If consent is given, specify preferred date certain for trial setting. [Date is subject to confirmation by the - 3 - CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 4 of 14 Magistrate Judge's Courtroom Deputy.] Consent by the parties to trial by the Magistrate Judge may also be given at a future time as well. Counsel's attention is drawn to the attached Pretrial Scheduling Order template form which is to be used in preparing and submitting the Proposed Pretrial Scheduling Order. The Proposed Pretrial Scheduling Order is not to be filed on CM/ECF, but it shall be submitted d irectl y to Magi s trate Judge Leo I. Brisbois at e-mail addres s : brisbois_chambers@mnd.uscourts.gov. 2. After counsel have met and conferred on the matters set forth above, they will file and submit a Joint Rule 26(f) Report (see Local Rule approved forms) setting forth each of the matters agreed upon at least three (3) business days prior to the Pretrial Conference. To the extent that counsel cannot agree upon any of the items set forth in Paragraph 1 above, then within the Joint Rule 26(f) Report each party shall submit its own proposal for each item of disagreement for review by the Magistrate Judge. The Joint Rule 26(f) Report shall be filed on CM/ECF and a courtesy copy submitted directly to Magistrate Judge Leo I. Brisbois at e-mail address: brisbois_chambers@mnd.uscourts.gov. 3. In addition to the foregoing, at least three (3) business days prior to the Pretrial Conference, the Defendant(s) shall advise the Plaintiff(s) of any applicable insurance coverage and the limits of the same, and, if the Plaintiff has placed a medical condition, physical or mental, into controversy, then the Plaintiff shall provide a listing of all pertinent treating physicians, if any, and duly executed Medical Authorizations. See, O’Sullivan v. State of Minnesota, 176 F.R.D. 325 (D. - 4 - CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 5 of 14 Minn. 1997). Each party shall also file on CM/ECF, by no later than three (3) business days prior to the Pretrial Conference, a concise Statement of the Case setting forth that party’s: a. version of the facts of the case; b. a listing of particularized facts which support the claimed liability or defenses, including any applicable statutes as identified by number; and c. an itemization and explanation of any claimed damages. This Statement of the Case is to be signed by counsel and filed on CM/ECF pursuant to the Electronic Case Filing Procedures of the District of Minnesota and served on opposing counsel. 4. In addition, subjects contemplated by Rule 16(c), Federal Rules of Civil Procedure, will be discussed as part of the 26(f) meet and confer. Without limiting the generality of the foregoing, in advance of the Pretrial Conference the parties should consider: a. Limitations and restrictions on expert testimony; b. The appropriateness and timing of Summary Judgment; c. The control and scheduling of discovery; d. Resort to alternative dispute resolution techniques; e. Reasonable limits on the time allowed for presenting evidence at trial; and - 5 - CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 6 of 14 f. Counsel are expressly directed to seriously discuss settlement at the time of the 26(f) “meet and confer.” The results of that discussion shall be reported to the Court at the time of the initial Pretrial Conference, and EACH ATTORNEY SHALL SUBMIT AT LEAST THREE (3) BUSINESS DAYS PRIOR TO THE SCHEDULED PRETRIAL CONFERENCE A CONFIDENTIAL LETTER PROVIDING THAT PARTY’S CONFIDENTIAL ASSESSMENT AS TO WHEN PRIMARILY NECESSARY DISCOVERY MIGHT BE DONE SO AS TO SUGGEST WHAT AN OPTIMAL TIME WOULD BE FOR A SETTLEMENT CONFERENCE SO THAT SETTLEMENT EFFORTS WOULD BE MOST FRUITFUL. This confidential letter shall be submitted directly to Magistrate Judge Leo I. B r i s b o i s a t e - m a i l a d d r e s s : brisbois_chambers@mnd.uscourts.gov. 5. Following the Pretrial Conference, an Order establishing a schedule for all Pretrial proceedings, and such other matters as contemplated by Rule 16, shall be entered by the Court. 6. This Pretrial Conference will not be continued pursuant to an independent Stipulation or agreement of counsel or by an informal unilateral application by a party. A continuance may be granted only by this Court and only for good cause shown. However, the right to act upon a request - 6 - CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 7 of 14 for a continuance of the Pretrial Conference, ex parte, if exigent circumstances so warrant, is reserved to the Court. 7. Counsel's attention is specifically drawn to the provisions of Rule 16(f), Federal Rules of Civil Procedure. BY THE COURT: DATED: November 27, 2017 s/Leo I. Brisbois Leo I. Brisbois U.S. MAGISTRATE JUDGE - 7 - CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 8 of 14 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA * * * * * * * * * * * * * * * * * * * , Plaintiff, vs. PRETRIAL SCHEDULING ORDER , Defendant. Court File No. -cv- (SRN/LIB) * * * * * * * * * * * * * * * * * * Pursuant to Pretrial Conference convened on ______________, 2017, and in accordance with provisions of Rule 16, Federal Rules of Civil Procedure, and the Local Rules of this Court, to administer the course of this litigation in a manner which promotes the interests of justice, economy and judicial efficiency, the following Pretrial Schedule will govern these proceedings. The Schedule may be modified only upon formal Motion and a showing of good cause as required by Local Rules 7.1 and 16.3. Counsel shall also comply with the Electronic Case Filing Procedures For The District of Minnesota, pursuant to Order Adopting Electronic Case Filing, dated May 13, 2004. THEREFORE, It is -ORDERED: - 8 - CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 9 of 14 I. That all pre-discovery disclosures required by Rule 26(a)(1) shall be completed on or before [INSERT DATE]. The period during which the parties must conduct all discovery (whether fact or expert) shall terminate on [INSERT DATE].3 Disputes with regard to pre-discovery disclosures or discovery shall be called immediately to the Court's attention by the making of an appropriate Motion, and shall not be relied upon by any party as a justification for not adhering to this Pretrial Scheduling Order. No further or additional discovery shall be permitted after the above date except upon motion and by leave of the Court for good cause shown, and any independent Stipulations or agreements between counsel which contravene the provisions of this Order will not be recognized. However, upon agreement of counsel, or with leave of the Court, depositions in lieu of in-Court testimony may be taken after the close of discovery. II. That all Motions which seek to amend the pleadings or add parties must be filed and the Hearing thereon completed on or before [INSERT DATE].4 III. That all other nondispositive Motions shall be filed and the Hearing thereon completed prior to [INSERT DATE - this date should be 30 days after the discovery deadline], by calling 3 See, Local Rule 16.2(d)(3) of the United States District Court For the District of Minnesota Local Rules. 4 This deadline does not apply to motions to amend pleadings to assert a claim for punitive damages. Motions which seek to assert claims for punitive damages must be filed and the Hearing thereon completed prior to the discovery deadline in Paragraph I. - 9 - CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 10 of 14 Victoria L. Miller at 218-529-3520, Courtroom Deputy for Magistrate Judge Leo I. Brisbois. All nondispositive Motions shall be scheduled, filed and served in compliance with Local Rule 7.1(a) and (b) and the Electronic Case Filing Procedures For The District of Minnesota. No discovery Motion shall be heard unless the moving party complies with the requirements of Local Rule 37.1. IV. A Settlement Conference pursuant to Local Rule 16.5(b) in the above-entitled matter is set before Magistrate Judge Leo I. Brisbois [the DATE, TIME and LOCATION WILL BE DETERMINED BY THE COURT], on __________________, 2017, at ______ a.m., in [Courtroom No. 3, Gerald W. Heaney Federal Building and U.S. Courthouse, 515 W. First St., Duluth, Minnesota] [Courtroom No. 2, Edward J. Devitt Federal Building and U.S. Courthouse, 118 South Mill St., Fergus Falls, Minnesota] [Devitt Courtroom, Warren E. Burger Federal Building and U.S. Courthouse, 316 N. Robert St., St. Paul, Minnesota]. A separate Notice of this Settlement Conference shall be issued outlining the parties’ obligations for preparation and for appearance of the Conference. V. That no more than [INSERT NUMBER] Interrogatories (counted in accordance with Rule 33(a), Federal Rules of Civil Procedure), shall be served by any party. [If the parties have stipulated to limitations on either the scope or number of discovery requests pursuant to Rule 34 and Rule 36, the terms of such stipulation should be inserted here as well.]. - 10 - CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 11 of 14 VI. That no more than [INSERT NUMBER] depositions (excluding expert depositions) shall be taken by any party without prior Order of the Court. VII. That within the foregoing period allotted for discovery, but no later than the dates set forth below, the parties shall retain and disclose to opposing counsel all persons they intend to call as expert witnesses at trial.5 Each party's disclosure shall identify each expert and state the subject matter on which the expert is expected to testify. The disclosure shall be accompanied by a written report prepared and signed by the expert witness.6 As required by Rule 26(a)(2)(B), Federal Rules of Civil Procedure, the report shall contain: a. The qualifications of the witness, including a list of all publications authored by the witness within the preceding 10 years; b. The compensation to be paid for the study and testimony; c. A listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years; d. A complete statement of all opinions to be expressed and the basis and reasons therefor; e. The data or other information considered by the witness in forming the opinions; and 5 This includes any witnesses who were retained for purposes of conducting an examination pursuant to Rule 35. 6 If no written report is required by Rule 26(a)(2)(B), the disclosures shall still comply with Rule 26(a)(2)(C). - 11 - CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 12 of 14 f. Any exhibits to be used as a summary of or support for the opinions. The Plaintiff's disclosures shall be made on or before [INSERT DATE]. The Defendant's disclosures shall be made on or before [INSERT DATE]. VIII. That the parties [do] [do not] contemplate taking expert depositions. No more than [INSERT NUMBER] experts may be deposed by any party without prior Order of the Court. IX. That each party shall fully supplement all discovery responses according to Rule 26(e), Federal Rules of Civil Procedure. Any evidence responsive to a discovery request which has not been disclosed on or before the discovery cutoff or other dates established herein, except for good cause shown, shall be excluded from evidence at trial. X. Counsel for the moving party shall contact Susan Del Monte, Courtroom Deputy for the Hon. Susan Richard Nelson at 651-848-1070 no later than [INSERT DATE - this date shall be the same date as the deadline for completion of all fact and expert discovery]7 to schedule a Hearing for a dispositive motion, if any. Counsel are reminded that at least two to three months advance notice is necessary to place a dispositive motion on the calendar. All dispositive motions and supporting 7 The parties should attempt to schedule dispositive motions after all discovery has been completed and to schedule all dispositive motions for the same hearing and should strive to avoid duplication in their briefing. If the parties believe early or piecemeal dispositive motion practice is necessary, they should seek permission of the District Judge. - 12 - CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 13 of 14 papers ( motion, notice of motion, memorandum of law, affidavits, exhibits and proposed order) shall be filed and served in compliance with the Electronic Case Filing Procedures for the District of Minnesota and in compliance with Local Rule 7.1; however, unless otherwise directed by the Court, the moving party’s motion papers shall not be filed until 42 days prior to the scheduled Hearing date. When a motion, response or reply brief is filed on CM/ECF, two (2) paper courtesy copies (three-hole punched, with dividers clearly marked between exhibits) of the pleading and all supporting documents shall be mailed or delivered to chambers contemporaneously with the documents being posted on CM/ECF. Notwithstanding the foregoing, no party shall file a dispositive motion before the close of discovery without first obtaining permission from the undersigned. Permission shall be sought by electronically filing a letter of no more than three (3) pages briefly setting forth the basis for the motion, whether discovery relating to the issue or issues to be addressed by the motion is complete, and why judicial efficiency would be served by allowing the motion to proceed at this time. The other party or parties may file brief letters in support of or in response to the request. Denial of a request for permission to file an early dispositive motion shall not be taken as an indication of the Court’s view about the merits of the proposed motion. XI. - 13 - CASE 0:16-cv-03042-SRN-LIB Document 126 Filed 11/28/17 Page 14 of 14 That this case shall be ready for Trial on [INSERT DATE8 - this date should be four (4) months after the date for dispositive motions], or 30 days after the Court renders its Order on any dispositive Motion (whichever is later), at which time the case will be placed on the Court's [Jury] [non-Jury] Trial calendar. That the anticipated length of Trial is [INSERT NUMBER of days/weeks]. BY THE COURT: DATED: ___________________________ Leo I. Brisbois U.S. MAGISTRATE JUDGE 8 THIS DATE IS NOT A TRIAL SETTING DATE. The parties will be notified by the Calendar Clerk of the assigned Judge to a case by way of a Notice of Trial as to when this case will be placed on the Trial Calendar. The above date is merely a notice to all parties to consider the case ready for trial as of this date. DO NOT PREPARE FOR TRIAL UNTIL NOTIFIED. - 14 - U.S. Department of Justice United States Attorney District of Minnesota 600 United States Courthouse 300 South Fourth Street Minneapolis, MN 55415 Telephone (612) 664-5600 Fax (612) 664-5787 December 6, 2017 VIA ECF The Honorable Leo I. Brisbois United States District Court 515 West 1st Street, Room 412 Duluth, MN 55802-1397 Re: Sierra Club et al. v. United States Forest Service, et al., Case No. 0:17-cv-00909-JNE-LIB (D. Minn.) Your Honor: A Pretrial Conference Notice and Order was lodged in Sierra Club et al. v. United States Forest Service, et al., on November 27, 2017, scheduling a Pretrial Conference for January 3, 2018, and directing the parties to prepare a report under Rule 26(f). Similar orders have been entered in two related cases, and letters materially similar to this letter are being filed in those cases. See Minn. Ctr. for Entl. Advocacy, et al. v. Tooke,1 et al., Civ No. 0:17-cv-00905-JNE-LIB; Ctr. for Biological Diversity, et al. v. Zinke, Civ. No. 0:17-cv-00914-JNE-LIB. No such order has been entered in a third related case, WaterLegacy v. U.S. Forest Service, et al., Civ. No. 0:17-cv-00276-JNE-LIB. The parties in the three cases in which orders have been lodged have conferred and respectfully request that the Pretrial Conference in this case and the other two cases be continued. This letter is being submitted on behalf of all counsel, who have reviewed it and concur in its contents. The parties believe that good cause exists for a continuance. There are outstanding motions to dismiss for lack of subject matter jurisdiction in all four cases. If the motions are granted, there will be no need for pretrial conferences. If the motions are not granted, there will be no resulting delay or prejudice to any party because these actions are “action[s] for review on an administrative record” under Rule 26(a)(1)(B). As a result, they would ordinarily be exempt from the requirements of Rule 26(f). See Fed. R. Civ. P. Tony Tooke replaced Thomas Tidwell as Chief of the United States Forest Service and “is automatically substituted as a party” pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. 1 December 6, 2017 Page 2 26(f)(1). Instead, these types of actions typically involve no discovery or disputed facts, and are resolved through cross motions for summary judgment based on an administrative record. See, e.g., Voyageurs Nat’l Park Ass’n v. Norton, 381 F.3d 759, 766 (8th Cir. 2004) (“It is well-established that judicial review under the [Administrative Procedure Act] is limited to the administrative record that was before the agency when it made its decision.”). As a result, the parties anticipate proposing a schedule for lodging the administrative record, providing a period of time for resolving any disputes regarding the content of the administrative record, and setting forth a briefing schedule for cross motions for summary judgment in any of the cases in which the motions to dismiss are not granted. The parties believe that establishing such a schedule would be most practical and efficient after rulings on those motions. But if the Court prefers to proceed with pretrial conferences before such rulings, the parties in the three cases in which conferences have been scheduled respectfully suggest that it might be most efficient to hold them, along with a conference in the fourth case, on the same date. Thank you for your consideration of this request. Sincerely, GREGORY G. BROOKER Acting United States Attorney s/ David W. Fuller BY: DAVID W. FULLER Assistant U.S. Attorney Attorney ID Number 390922 600 United States Courthouse 300 South Fourth Street Minneapolis, MN 55415 Phone: 612-664-5600 Email: David.Fuller@usdoj.gov UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA ) ) ) ) ) CIVIL NO. 16-3042 SRN/LIB ) ) ) ) ) ) ) ) ) ) ) ) ) ) FRANCONIA MINERALS (US) LLC and TWIN METALS MINNESOTA LLC, Plaintiffs, v. UNITED STATES OF AMERICA; U.S. DEPARTMENT OF THE INTERIOR; SALLY JEWELL, Secretary of the U.S. Department of the Interior; HILARY C. TOMPKINS, Solicitor, U.S. Department of the Interior; and BUREAU OF LAND MANAGEMENT, Defendants. NOTICE Federal Defendants hereby give notice that on December 22, 2017, the Acting Solicitor of the Department of the Interior issued a new opinion entitled “Reversal of M37036,” which replaces M-37036. A copy of the new opinion is attached as Exhibit A. In light of this new opinion, the Department of the Interior has indicated that the BLM Eastern States Office will be issuing a decision that rescinds its December 15, 2016 decision rejecting the Plaintiffs’ lease renewal application, thereby reinstating the renewal application as it was before the December 15, 2016 decision was issued and also reinstating the two leases (MNES 1352 and MNES 1353) that were issued in 2004. The legal opinion M-37036, BLM’s December 15, 2016 decision rejecting the lease renewal application, and the two leases (MNES 1352 and MNES 1353) are the 1 subjects of this litigation. Federal Defendants are analyzing the effects that the new opinion and additional actions have on this litigation and may move for further relief or the same relief on additional grounds depending on our review. Dated: December 22, 2017 Respectfully submitted, JEFFREY H. WOOD Acting Assistant Attorney General Environment & Natural Resources Division CLARE BORONOW (Admitted to MD bar) Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Natural Resources Section 999 18th Street South Terrace, Suite 370 Denver, CO 80202 Email: clare.boronow@usdoj.gov ph: (303) 844-1362 /s/ Sean C. Duffy MARISSA A. PIROPATO (MA 651630) SEAN C. DUFFY (NY Bar No. 4103131) Trial Attorneys Natural Resources Section 601 D Street NW Washington, DC 20004 Email: sean.c.duffy@usdoj.gov ph: (202) 305-0445 Attorneys for Federal Defendants 2 DRAFT Privileged and Con?dential Twin lVIetals Talking Points minerals cobalt and platinum. in Superior National Forest in Nonhem Minnesota New M-Opinion, M-___, Reverses M-37036 Regarding Twin Metals’ Renewal Rights for Preference Right Leases Within the Superior National Forest, Minnesota TALKING POINTS (b) (5) DRAFT Privileged and Confidential Twin Metals Talking Points New M-Opinion, M-___, Reverses M-37036 Regarding Twin Metals’ Renewal Rights for Preference Right Leases Within the Superior National Forest, Minnesota TALKING POINTS (b) (5) M-37049 Memorandum To: Director, Bureau of Land Management From: Solicitor Subject: Reversal of M-37036, “Twin Metals Minnesota Application to Renew Preference Right Leases (MNES-01352 and MNES-01353)” (b) (5) 1 20 M-37049 Memorandum To: Director, Bureau of Land Management From: Solicitor Subject: Reversal of M-37036, “Twin Metals Minnesota Application to Renew Preference Right Leases (MNES-01352 and MNES-01353)” (b) (5) 1 Reversal of Twin Metals Opinion, M-37036 DRAFT Privileged and Con?dential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8 2017 DRAFT Privileged and Con?dential December 8, 2017 DRAFT Privileged and Con?dential December 8, 2017 DRAFT Privileged and Con?dential December 8, 2017 DRAFT Privileged and Con?dential December 8, 2017 10 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Con?dential December 8, 2017 12 DRAFT Privileged and Con?dential December 8, 2017 DRAFT Privileged and Con?dential December 8, 2017 DRAFT Privileged and Con?dential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Con?dential December 8, 2017 - I. p?i \l DRAFT Privileged and Con?dential December 8, 2017 18 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Con?dential December 8, 2017 M- Memorandum To: Director: Bureau of Land Management From: Solicitor Subject: Reversal of M-37036, ?Twin Metals Minnesota Application to Renew Preference Right Leases and p?n DRAFT Privileged and Con?dential December 8, 2017 DRAFT Privileged and Con?dential December 8, 2017 DRAFT Privileged and Con?dential December 8, 2017 DRAFT Privileged and Con?dential December 8, 2017 um DRAFT Privileged and Con?dential December 8, 2017 E: 6 DRAFT Privileged and Con?dential December 8, 2017 DRAFT Privileged and Con?dential December 8, 2017 DRAFT Privileged and Con?dential December 8, 2017 DRAFT Privileged and Con?dential December 8, 2017 DRAFT Privileged and Con?dential December 8, 2017 1 p?n DRAFT Privileged and Con?dential December 8, 2017 Eastem States Of?ce. "Renewal of Preference Right Leases MNES-1352 and (Apr. 12. 1999). DRAFT Privileged and Con?dential December 8, 2017 DRAFT Privileged and Con?dential December 8, 2017 I. DRAFT Privileged and Con?dential December 8, 2017 DRAFT Privileged and Confidential DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Con?dential December 8, 2017 18 DRAFT Privileged and Con?dential December 8, 2017 19 DRAFT Privileged and Con?dential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential M-3 7049 Memorandum To: Director: Bureau of Land Management From: Solicitor Subject: Reversal of M-37036, ?Twin Metals Minnesota Application to Renew Preference Right Leases and p?n M-3 7049 Memorandum To: Director: Bureau of Land Management From: Solicitor Subject: Reversal of M-37036, ?Twin Metals Minnesota Application to Renew Preference Right Leases and p?n Reversal of Twin Metals Opinion, 31-37036 BLM PRESS STATEMENT (IF ASKED) Reversal of Twin Metals Opinion, 31-37036 BLM PRESS STATEMENT (IF ASKED) United States Department of the Interior BUREAU OF LAND MANAGEMENT Eastem States 20 Street. SE Suite 950 Washington. DC 20003 .blm. gov DRAFT ATTORNEY-CLIENT NOT RELEASE Attachment cc: Ms. Brenda Halter. Forest Supervisor. Superior National Forest Mr. Richard Periman, Deputy Forest Supervisor. Superior National Forest US Department of the Interior Bureau of Land Management News Release Eastern States Of?ce DRAFT: December 21. 2017 Contact: Winston For Immediate Release 202-208-4602 DRAFT Privileged and Con?dential December 6, 2017 DRAFT Privileged and Confidential December 6, 2017 DRAFT Privileged and Confidential December 6, 2017 DRAFT Privileged and Confidential December 6, 2017 DRAFT Privileged and Confidential December 6, 2017 DRAFT Privileged and Confidential December 6, 2017 DRAFT Privileged and Confidential December 6, 2017 DRAFT Privileged and Confidential December 6, 2017 DRAFT Privileged and Confidential December 6, 2017 DRAFT Privileged and Confidential December 6, 2017 DRAFT Privileged and Confidential December 6, 2017 DRAFT Privileged and Confidential December 6, 2017 DRAFT Privileged and Confidential December 6, 2017 DRAFT Privileged and Confidential December 6, 2017 DRAFT Privileged and Confidential December 6, 2017 DRAFT Privileged and Confidential December 6, 2017 DRAFT Privileged and Confidential December 6, 2017 DRAFT Privileged and Confidential December 6, 2017 DRAFT Privileged and Confidential December 6, 2017 DRAFT Privileged and Con?dential December 6. 2017 Commented DRAFT Privileged and Con?dential December 6. 2017 Commented [c3w3]: Commented Commented [crews]: Formatted: Font: 10 pt Formatted: Font: 10 pt Formatted: Font: 10 pt Formatted: Font: 10 pt Formatted: Font: 10 pt Formatted: Font: 10 pt Formatted: Font: 10 pt Formatted: Font: 10 pt I 1 Formatted: Font: 10 pt x! 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"Twin Metals Minnesota Application to Renew Preference Right Leases 352 and Commented DRAFT Privileged and Con?dential December 6. 2017 DRAFT Privileged and Con?dential I I DRAFT Privileged and Con?dential I I DRAFT Privileged and Con?dential I I DRAFT Privileged and Con?dential I I DRAFT Privileged and Con?dential I I DRAFT Privileged and Con?dential I I DRAFT Privileged and Con?dential I I DRAFT Privileged and Con?dential I I DRAFT Privileged and Con?dential I I DRAFT Privileged and Con?dential I I DRAFT Privileged and Con?dential I I DRAFT Privileged and Con?dential I I DRAFT Privileged and Con?dential I I DRAFT Privileged and Con?dential I I DRAFT Privileged and Con?dential I I DRAFT Privileged and Con?dential I I DRAFT Privileged and Con?dential December 6. 2017 Formatted: 1/ 19 l/ Formatted: Font :10pt Formatted: Font :10pt Formatted: Formatted: Font Font :10pt :10pt Font :10pt Formatted: 4'7 Font :10pt DRAFT Privileged and Con?dential December 8, 2017 M- Memorandum To: Director: Bureau of Land Management From: Solicitor Subject: Reversal of M-37036, ?Twin Metals Minnesota Application to Renew Preference Right Leases and p?n DRAFT Privileged and Confidential December 8 2017 DRAFT Privileged and Confidential December 8 2017 DRAFT Privileged and Confidential December 8 2017 DRAFT Privileged and Confidential December 8 2017 DRAFT Privileged and Confidential December 8 2017 DRAFT Privileged and Confidential December 8 2017 DRAFT Privileged and Confidential December 8 2017 DRAFT Privileged and Confidential December 8 2017 DRAFT Privileged and Confidential December 8 2017 DRAFT Privileged and Confidential December 8 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Con?dential December 8, 2017 DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Con?dential December 8. 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and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Con?dential December 8, 2017 18 DRAFT Privileged and Con?dential December 8, 2017 19 DRAFT Privileged and Con?dential December 8, 2017 DRAFT Privileged and Con?dential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 DRAFT Privileged and Confidential December 8, 2017 Twin Metals Talking Points Wednesday, December 20, 2017 I. II. OSMRE A. B. BLM Farrell-Cooper Civil Penalty Adjustment Rulemaking A. Venting and flaring rules and litigation C. Hydraulic Fracturing Rescission Rule D. Twin Metals E. CEMEX F. 2018 Civil Monetary Penalty Inflation Adjustments Rule G. Sage Grouse oil and gas prioritization IM B. WEA v. Zinke (D.N.M) settlement proposal; Draft IM on Oil & Gas Leasing. H. Interim Offsite Compensatory Mitigation for Oil, Gas, Geothermal and Energy Rights-of-Way Authorizations IM III. BOEM A. Announcement of Oil and Gas Draft Proposed Plan C. D. Cape Wind relinquishment and met tower decommissioning E. NOAA Marine Mammal Incidental Take Regulation B. NHPA & BOEM archaeological reports BOEM Air Quality rule IV. BSEE A. B. C. D. E. E. Taylor Contractor Enforcement Anadarko/Chevron ROW Dispute Rules Update Tennessee Gas Pipeline Civil Penalty AR Project Update New M-Opinion, M-___, Reverses M-37036 Regarding Twin Metals’ Renewal Rights for Preference Right Leases Within the Superior National Forest, Minnesota (b) (5) DRAFT New M-Opinion, M-___, Reverses M-37036 Regarding Twin Metals’ Renewal Rights for Preference Right Leases Within the Superior National Forest, Minnesota TALKING POINTS (b) (5) DRAFT United States Department of the Interior BUREAU OF LAND MANAGEMENT Eastem States 20 Street. SE Suite 950 Washington. DC 20003 .blin. gov DRAFT ATTORNEY-CLIENT NOT RELEASE Kathleen Atkinson Regional Forester 626 East Wisconsin Avenue Milwaukee. Wisconsin 53202 United States Department of the Interior BUREAU OF LAND MANAGEMENT Eastem States 20 Street. SE Suite 950 Washington. DC 20003 .blin. gov DRAFT ATTORNEY-CLIENT NOT RELEASE Kathleen Atkinson Regional Forester 626 East Wisconsin Avenue Milwaukee. Wisconsin 53202 murmur" a ?Mon llu :u tn: United States Department of the Interior BUREAU OF LAND IVIANAGEMENT Eastern States 30 Street. SE Suite 950 DC 20003 "Uknnv es 0 b11110 gov DRAFT ATTORNEY-CLIENT NOT RELEASE PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION November 2017 Division of Mineral Resources Litigation Report to the Assistant Secretary, Land and Minerals Management (b) (5) 1 PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION \l PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION 19 PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION 26 PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED REGARDING PENDING LITIGATION 00 PRIVILEGED REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION Seth P. Waxman July 1, 2016 The Honorable Hilary C. Tompkins Solicitor Department of the Interior 1849 C Street N.W. Washington, D.C. 20240 Re: +1 202 663 6800 (t) +1 202 663 6363 (f) seth.waxman@wilmerhale.com Solicitor’s Opinion M-37036 Dear Solicitor Tompkins: I write on behalf of Twin Metals Minnesota in response to your opinion M-37036, dated March 8, 2016 (the “Solicitor’s Opinion” or “Opinion”). The Opinion concludes (p.1) that Twin Metals “does not have a non-discretionary right to renewal” of hardrock leases MNES-01352 and MNES-01353, but rather that the Bureau of Land Management “has discretion to grant or deny the pending renewal application.” For the reasons given herein, Twin Metals submits that that conclusion is wrong and that the Opinion should be withdrawn. INTRODUCTION In 1966, after ten years of extensive negotiations, BLM and Twin Metals’ predecessor in interest executed two hardrock mineral leases with respect to land in the Superior National Forest in northern Minnesota. Consistent with the lengthy negotiations that preceded them, the leases set forth comprehensive—and unique— terms. One of those terms is a right to renew the lease (in fact, to successive renewals). This right is critical to the parties’ overall bargain: The investment required of the lessee under the leases is enormous. But because of recognized operational problems in the area, producing minerals in the short term would have been impossible. The leases thus would serve no rational purpose absent a non-discretionary right to renew; no company would undertake the necessary investment for exploration and development knowing that it could be unilaterally deprived of any ability to recoup that investment. Recognizing this, section 1 of the leases provides an unambiguous “right in the Lessee to renew … for successive periods of ten … years.” 1966 Leases §1(a). This renewal right is textually unqualified save for the requirement of being consistent “with regulation 43 C.F.R. § 3221.4(f) and the provisions of this lease,” id.—both of which, as explained below, support the conclusion that BLM has no discretion to deny the right of renewal. The Honorable Hilary Tompkins July 1, 2016 Page 2 In accordance with section 1, BLM in 1989 granted a ten-year renewal of the leases, renewing “under the existing terms and conditions of the original leases.” Ex. 1 (BLM Letter) at 1 (Apr. 25, 1989). To effect this renewal, BLM presented the lessee with short, standard forms, forms that attached the 1966 leases in full. The parties executed those forms. In 2004, the parties again renewed the leases by executing short, standard forms—the very same forms as in 1989—to which they again attached the 1966 leases in full. Importantly, the parties completed this renewal without any discussion, much less negotiation, of any contract terms. The renewal was routine and administrative in nature. In 2012, Twin Metals applied for a third ten-year renewal. BLM subsequently asked your office whether it has the discretion to grant or deny the application. In response, your office issued the Opinion, taking the position (p.1) that Twin Metals “does not have a non-discretionary right to renewal.” Respectfully, that position rests on three overarching errors. First, the Opinion erroneously concludes that the renewal provision in the 2004 standard forms controls. In fact, the 1966 leases control. The Opinion’s contrary view depends on its assertion (p.6) that the 2004 forms are “integrated” contracts. But they are not; the 2004 forms lack any integration clause (a point the Opinion does not acknowledge), and there is no other basis on which to conclude that the 2004 forms— divorced from the 1966 leases that the parties attached—were integrated contracts. In light of this, the Opinion’s refusal to consider extrinsic evidence conflicts with established law. Once the forms are considered in light of that evidence (i.e., the relevant surrounding circumstances), the only reasonable conclusion is the parties’ written agreement when they renewed the leases in 2004 was the standard forms and the complete 1966 leases that the parties attached. Second, the Opinion (p.10) erroneously construes the 1966 leases as establishing (in section 5) a “condition precedent” to any renewal, namely production within the original 20-year term. That interpretation renders meaningless the renewal right in section 1—a right that the Opinion never confronts. The interpretation also runs afoul of the plain text of section 5. By contrast, Twin Metals’ interpretation of the leases gives effect to the text and purposes of both sections: Section 1 provides Twin Metals with a non-discretionary right to renew, while section 5 governs the terms of any renewal, and specifically addresses the scope of BLM’s authority to adjust royalties and other conditions under specified circumstances. The Honorable Hilary Tompkins July 1, 2016 Page 3 Third, having concluded that the 2004 standard forms control the renewal analysis, the Opinion concludes (p.7) that the undefined phrase “preferential right” in those forms is unambiguous. That conclusion conflicts with both relevant case law and a prior Solicitor’s opinion. Because the phrase is ambiguous, extrinsic evidence must be considered, and it confirms that the parties’ intent in executing the 2004 forms was to re-confirm that Twin Metals has a non-discretionary right to renew. Even if extrinsic evidence did not resolve the ambiguity, the rule of contra proferentem would require that this phrase be construed against BLM, which drafted the 2004 standard forms. Because the Opinion’s ultimate conclusion flows from these three errors, the conclusion is unsustainable, and the Opinion should be withdrawn. BACKGROUND A. The Act Of 1950 Leases MNES-01352 and MNES-01353 were issued under the Act of 1950, a law authorizing mining in the Superior National Forest. See Pub. L. No. 81-594, 64 Stat. 311 (codified at 16 U.S.C. §508b). In the words of the accompanying Senate report, the law was “special legislation to meet a special situation.” S. Rep. No. 81-1778, at 2 (1950). The statute authorizes the Secretary of the Interior, with the consent of the Secretary of Agriculture, to “permit the prospecting for and the development and utilization of … mineral resources” on national forest land in Minnesota. 64 Stat. at 312. As the legislative history makes clear, Congress intended not just to “permit” mining, but to encourage it as a “highly desirable” activity, S. Rep. No. 81-1778, at 2—i.e., one that yields substantial benefits for the general public. Congress enacted the Act of 1950 against the backdrop of the executive branch’s failure to honor and protect mining companies’ legitimate reliance interests, resulting in severe economic consequences for those companies. As the Act’s legislative history recounts, mining permits had been granted in Minnesota before 1950, under a ruling from the Solicitor of the Department of Agriculture. S. Rep. No. 81-1778, at 2; H.R. Rep. No. 81-795, at 2 (1949). But that ruling was later reversed, forcing mining companies to liquidate their investments. S. Rep. No. 81-1778, at 2; H.R. Rep. No. 81795, at 2. It was Congress’s dissatisfaction with this outcome—“investment losses resulting from cancellation of mining permits in the Minnesota forests,” S. Rep. No. 811778, at 2—that spurred passage of the Act of 1950. In particular, Congress’s view was that companies that “have made investments for the mining and removal of mineral substances from the described lands should be given the privilege of renewing or retaining their permits or leases.” H.R. Rep. No. 81-792, at 2 (1949). The Honorable Hilary Tompkins July 1, 2016 Page 4 B. 1966 Leases And Renewals 1. 1966 Leases The International Nickel Company (“INCO”) is Twin Metals’ predecessor in interest. Shortly after Congress enacted the Act of 1950, INCO acquired prospecting permits for the lands at issue here. See Ex. 2 (INCO Letter) at 1, 8-9 (Mar. 27, 1956). INCO invested significant money and effort in prospecting on those lands, ultimately discovering a valuable copper and nickel deposit—and thereby acquiring vested mineral rights. In 1956, INCO sought a lease with BLM to have those vested rights formalized. See Ex. 2 (INCO Letter) at 1, 8-9. This gave rise to a decade of what BLM later labeled “intensive negotiations.” Ex. 3 (BLM Memo re Recommendation for Lease Renewals) at 1 (Oct. 14, 1988); see also id. at 2 (noting the “highly negotiated terms and conditions” of the 1966 leases). During those negotiations, INCO was clear that it was “not considered possible to set forth minimum production requirements in the leases” in light of “special problems … involved in developing mining operations in the area.” Ex. 4 (1965 Memo) at 1, 2 (Apr. 15, 1965). In lieu of such a requirement, the parties negotiated and INCO agreed to pay minimum royalties that were significantly higher than normal. This was to ensure—again as BLM itself later confirmed—that INCO retained a financial incentive for development. See Ex. 3 at 1 (“Th[e] high minimum royalty payment … is intended to serve as the ‘production incentive’ or ‘diligent development’ provision in the leases[.]”). On June 14, 1966, INCO and BLM memorialized their agreement, executing the 1966 leases. Consistent with the extensive negotiations that preceded them, the 1966 leases are unique; the parties opted not to use BLM’s standard leasing forms, instead tailoring the leases to address the recognized development challenges in mining operations in the area. In line with Congress’s concern when it enacted the Act of 1950 about protecting mining companies’ investments—and in line with the type of investment required for hardrock minerals in unexplored areas, the very first section (indeed the very first subsection) of the 1966 leases gives the lessee not only the exclusive right to mine on the subject lands, but also the right to renew the lease. More specifically, section 1 (entitled “Rights of Lessee”) provides that the lessee has: a right … to renew … for successive periods of ten (10) years each in accordance with regulation 43 CFR § 3221.4(f) and the provisions of this lease. The Honorable Hilary Tompkins July 1, 2016 Page 5 1966 Leases §1(a). Like section 1 itself, the regulation cited at the end of this language provided that a “lease will be issued for a period not exceeding 20 years,” and that the “lessee will be granted a right of renewal for successive periods, not exceeding 10 years each, under such reasonable terms and conditions as the Secretary of the Interior may prescribe.” 43 C.F.R. §3221.4(f) (1966) (emphasis added). Section 2 of the leases then sets forth comprehensive terms—ranging from rental rates and royalties to the payment of taxes and non-discrimination provisions. Consistent with the parties’ negotiations, section 2(c) establishes a higher-than-usual minimum royalty requirement. Pursuant to this section, INCO and its successors have paid over $1.4 million dollars in royalties to the government. Finally, section 5 of the leases—entitled “Renewal Terms”—authorizes BLM to “readjust” lease terms during “each successive renewal,” except as otherwise provided. As BLM later confirmed, neither section 5 nor any other provision of the 1966 leases establishes “a production requirement.” Ex. 3 at 1. Section 5 instead creates a production incentive, providing that if INCO was producing by the end of the initial 20year term, then BLM would only have limited readjustment rights during the first three renewals. In particular, upon renewal BLM would only be able to readjust the royalty provisions by specified amounts, and would not be able to adjust other terms and conditions at all. See 1966 Leases §5. If instead INCO was not producing before the initial term ended, then BLM would have the right, starting with the first renewal, to readjust terms and conditions without these limitations. Id. 2. 1989 Renewal In 1986, INCO timely applied for the first ten-year renewal of the 1966 leases. Three years later, BLM used standard-form documents to renew the leases—notably stating that it was “agree[ing] to the renewal … under the existing terms and conditions of the original leases.” Ex. 1 at 1. Not surprisingly in light of this, the 1966 leases were attached in full to the standard forms, with certain provisions expressly referenced therein. See 1989 Renewal Forms §14 (referring to the “attached original lease agreement”). Underscoring the fact that the renewal was under the terms of the 1966 leases, BLM, during the process leading up to renewal, withdrew an earlier decision that would have altered the terms of those leases. More specifically, in 1986 an official at BLM’s Milwaukee office submitted a memo offering “recommendations regarding the renewal of the leases.” Ex. 5 (BLM Letter) at 1 (July 9, 1986). These recommendations would have changed the 1966 lease terms in various ways, including by requiring that “INCO … produce 1% of the reserves … by the date of lease expiration.” Id. at 2. “Failure to The Honorable Hilary Tompkins July 1, 2016 Page 6 comply” with that requirement, the memo recommended, “would result in the termination of both leases.” Id. As the 1986 memo recommended, BLM initially sent lease-renewal forms that would have altered the terms and conditions of the original leases. See Ex. 6 (Sept. 12, 1988). A month later, however—after “further review of the leases and their case files”—another official at BLM’s Milwaukee office wrote to “revise our recommendations concerning the subject renewals.” Ex. 3 at 1. He rejected the 1986 memo’s call to revise the lease terms (including by adding a production requirement), instead recommending that “these leases be renewed under the existing terms and conditions.” Id. at 2. As to a production requirement, he noted that “these INCO leases contain a high minimum royalty payment requirement, which was agreed would serve as the production incentive,” and further concluded that a production requirement would be “inappropriate.” Id. BLM promptly embraced these recommendations, withdrawing the lease-renewal forms previously sent to INCO. The withdrawal letter explained that “the new lease forms submitted for signature [would have] alter[ed] the terms and conditions of the original leases.” Ex. 7 (BLM Vacatur Decision) at 1 (Nov. 7, 1988). Instead, BLM sent short standard lease forms, together with full copies of the 1966 leases, explaining, as mentioned, that the renewal was “under the existing terms and conditions of the original leases.” Ex. 1 at 1. The 1989 standard forms referred to the lessee’s “preferential right” to renew, but did not define the phrase. 1989 Renewal Forms part I. The forms did not include an integration clause.1 3. 2004 Renewal After the 1989 renewal, American Copper and Nickel, Inc. acquired leases MNES-01352 and MNES-01353. In 1999, it timely applied for a second ten-year renewal. BLM renewed the leases in 2004, using the very same standard forms the 1 While INCO’s renewal application was pending, BLM asked the Solicitor’s Office whether it could renew the leases even though production had not begun. In a memo dated April 2, 1986, an assistant solicitor concluded that the lease could be extended “for a period not exceeding 10 years,” but that “[i]f production does not occur during th[at] period of extension, no further extensions will be allowed.” Att. to Solicitor’s Opinion at 1. As explained herein, that reading of the leases was wrong—and BLM recognized it was wrong, because even though production had not yet begun by 2004 (which would have prohibited renewal according to the assistant solicitor), BLM because renewed the leases that year. The Honorable Hilary Tompkins July 1, 2016 Page 7 parties had executed in 1989 (and again attaching the 1966 leases in full). See 2004 Renewal Forms. Although the 1989 and 2004 forms were the same, the processes leading up to the renewals in those two years were significantly different. As just discussed, in 1989 BLM engaged in significant internal discussions, seeking advice on renewal before issuing certain lease forms and then withdrawing those and issuing others. In 2004, by contrast, there was no significant discussion about renewal terms, either within the government or between the parties. Instead, BLM—speaking through the same official who oversaw the 1989 renewal (Vincent Vogt)—simply recommended that the leases be renewed “for ten years, as stipulated within the lease language.” Ex. 8 (BLM Letter) at 1 (Apr. 12, 1999). Similarly, the Forest Service stated that it “has no objection to the renewal of the above preference right leases. The terms, conditions and stipulations have been reviewed, and it has been determined that they are sufficient to protect the resources of the United States.” Ex. 9 (Forest Service Memo) at 1 (July 18, 2003). Like the (identical) 1989 standard forms, the 2004 forms did not include an integration clause, and they referred to the lessee’s “preferential right” to renew without defining that phrase. C. Solicitor’s Opinion Twin Metals acquired the leases at issue in 2011. The following year, it applied for a third ten-year renewal. BLM then asked your office “whether it has the discretion to grant or deny Twin Metals Minnesota’s pending application for renewal.” Solicitor’s Opinion 1. Both at an in-person presentation on January 14, 2016, and by memorandum dated January 26, 2016, Twin Metals detailed for your office its position that BLM has no discretion to deny lease renewal. Twin Metals also responded to questions raised by you and by letter from the Northeastern Minnesotans for Wilderness. On March 8, 2016, your office issued the Opinion, taking the position (p.1) that Twin Metals “does not have a non-discretionary right to renewal, but rather the BLM has discretion to grant or deny the pending renewal application.” As explained at the outset of this letter, that position rests on three principal conclusions. First, the Opinion asserts (p.6) that the 2004 standard forms are “complete, integrated documents,” and thus their renewal provision governs the analysis here. In making this assertion, the Opinion does not acknowledge the lack of any integration clause in the 2004 standard forms. The Opinion does recognize that the 1966 leases The Honorable Hilary Tompkins July 1, 2016 Page 8 were attached and referred to in the 2004 standard forms, but it concludes that the parties incorporated “only two provisions from the 1966 leases.” Id. It does not explain how that could be true, however, given that: (1) the 1989 renewal was “under the existing terms and conditions of the original leases,” Ex. 1 at 1, and (2) the 2004 forms were the same ones used in 1989. Second, based solely on the phrase “preferential right,” the Opinion (p.5) interprets the 2004 standard forms as granting Twin Metals only a “a right to be preferred against other parties.” According to the Opinion (id.), the department has “consistently interpreted” the phrase “preferential right” “as not entitling the lessee to an automatic right of renewal.” The Opinion rejects as “without merit” (p.7) Twin Metals’ argument that that phrase is in fact is ambiguous. The Opinion accordingly refuses (p.6) to consider any of the extrinsic evidence that Twin Metals maintained confirms that “BLM intended to simply renew the leases under the exact same terms of the 1966 leases.” Third, the Opinion concludes (p.8) that even if the 1966 leases governed, “they do not prohibit the BLM from exercising its discretion to decide whether to renew the leases.” Ignoring the unqualified renewal right in section 1, the Opinion focuses on section 5, which reads: The Lessor shall have the right to reasonably readjust and fix royalties payable hereunder at the end of the primary term of this lease and thereafter at the end of each successive renewal thereof unless otherwise provided by the law at the time of the expiration of any such period, and to readjust other terms and conditions of the lease, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover; provided, however, that the Lessee shall have the right to three successive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production[.] 1966 Leases §5 (emphasis added). The Opinion (p.10) reads section 5 to mean that “production is the condition precedent for the lessee to obtain any lease renewals of right.” In particular, the Opinion (p.9) interprets the emphasized “unless” clause to qualify “the very right to renew” rather than the right described in the immediately preceding phrase, i.e., the right to renew with BLM’s readjustment authority limited as described in the balance of section 5. The Honorable Hilary Tompkins July 1, 2016 Page 9 ARGUMENT I. UNDER THE 1966 LEASES, WHICH GOVERN THE ANALYSIS HERE, T WIN METALS HAS A NON-DISCRETIONARY RIGHT TO RENEW A. The Parties Incorporated The 1966 Leases In Full Into The 2004 Standard Forms The Solicitor’s Opinion concludes (p.6) that whether Twin Metals has a nondiscretionary right to renew the leases at issue is governed by the renewal provision in the 2004 standard forms, rather than its counterpart in the 1966 leases, because the 2004 standard forms are supposedly “complete, integrated documents.” That is not correct. “A written contract is considered integrated when the parties intend it to constitute the complete and final expression of their agreement.” Starter Corp. v. Converse, Inc., 170 F.3d 286, 295 (2d Cir. 1999) (citing Farnsworth, Contracts §7.3 (2d ed. 1990)). “When a contract lacks an express integration clause [courts] must ‘determine whether the parties intended their agreement to be an integrated contract by reading the writing in light of the surrounding circumstances.’” Id. (emphasis added); see also, e.g., McAbee Constr., Inc. v. United States, 97 F.3d 1431, 1434 (Fed. Cir. 1996) (“extrinsic evidence is ‘especially pertinent … where … the writing itself contains no recitals or other evidence testifying to its intended completeness and finality’”); Montwood Corp. v. Hot Springs Theme Park Corp., 766 F.2d 359, 362 (8th Cir. 1985) (“absence [of an integration clause] is relevant in determining whether the parties intended to integrate their entire agreement into the document” at issue). Here, the 2004 standard forms lack an integration clause—a point not mentioned in the Solicitor’s Opinion. That “very basic fact,” United Precision Prods. Co. v. Avco Corp., 540 F. App’x 489, 493 (6th Cir. 2013), requires consideration of extrinsic evidence.2 Once extrinsic evidence is considered, it is clear that the parties did not intend the 2004 forms to be a “complete and final expression of their agreement.” Starter Corp., 170 F.3d at 295. The forms are short, boilerplate documents, and hence unlikely to encompass all of the parties’ intended terms for such a consequential and complex undertaking. Furthermore, the 2004 forms’ execution was preceded by virtually no discussion—much less actual negotiation—of any contract terms. Again, particularly 2 Even where there is an integration clause, that is not necessarily “conclusive,” and courts will still look to the “surrounding circumstances.” United States v. Basin Elec. Power Coop., 248 F.3d 781, 809 (8th Cir. 2001) (citing Restatement (Second) of Contracts §209 cmt. b (1981)). The Honorable Hilary Tompkins July 1, 2016 Page 10 given the monumental economic interests at stake, this factor further weighs heavily against a finding of integration. See, e.g., ARB (American Research Bureau), Inc. v. ESystems, Inc., 663 F.2d 189, 199 (D.C. Cir. 1980) (“The length of the contract, its exhaustive detail, and the prolonged period of negotiation preceding its signing, collectively considered, support [the] conclusion” that the contract was integrated.). It is all the more implausible that in 2004 the parties intended to depart from the terms of the 1966 leases given that: (1) those leases were attached to the 2004 forms (as they were with the 1989 forms), and (2) all of the 1966 lease terms were in effect when the 2004 renewal was executed. See Ex. 1 at 1 (government agreeing to the 1989 renewal “under the existing terms and conditions of the original leases”). The Opinion disputes this second point, asserting (p.6) that “only two provisions from the 1966 leases” were incorporated in 2004, via “two special stipulations.” But that cannot be right. As just mentioned, the government acknowledged that the 1989 renewal was “under the existing terms and conditions of the original leases,” i.e., all of those existing terms. And the 1989 forms contained the exact same stipulations that the Opinion points to in the 2004 forms as evidence that only the provisions mentioned in those stipulations were incorporated. See 1989 Renewal Forms §14. The Opinion’s conclusion, in short, is that by filling out the same form in 2004 that they had filled out in 1989, in the same way that they had in 1989, and by attaching the same complete copy of the 1966 leases that they had attached in 1989, the parties—without a word to one another on the topic—agreed not only to do something different than what they had done in 1989, but also to do something far-reaching, namely to significantly revise the deal they had both lived under for nearly four decades. That is extraordinarily unlikely. The Opinion appears to address this point in asserting (p.6) that “the 1989 and 2004 renewals differ … because the BLM’s discretion was limited in 1989 but not in 2004.” It was “limited in 1989,” according to the Opinion, because “the 1989 renewal served as a one-time extension of time for commencement of production, as authorized under section 5 of the 1966 leases.” Id. A threshold flaw in this assertion is its premise that section 5 created a production requirement. In fact, as BLM recognized, that section created a production incentive, see Ex. 3 at 1, while also adopting higher-thannormal royalty payments in lieu of a production requirement. In any event, the Opinion points to nothing even suggesting that the 1989 renewal was an extension rather than an actual renewal. No extension was requested, and the relevant contemporaneous documents—including the leases themselves—use the term “renewal,” not “extension.” Indeed, the leases use that term in the title (which surely describe what the document is), as well as in the very opening sentence of text: “This … Lease Renewal … is effective … Jul[y] 01, 1989….” 1989 Renewal Forms at 1. The cover sheet transmitting the forms likewise repeatedly used the term “renewal,” stating: “The Forest Service The Honorable Hilary Tompkins July 1, 2016 Page 11 and [BLM] have agreed to the renewal of the enclosed Preference Right Leases …. Enclosed are lease renewal forms transmitted for your signature and return to this office.” Ex. 1 at 1; see also Ex. 5 at 1 (BLM letter repeatedly using the word renewal); Ex. 3 (same); Ex. 7 (same); Ex. 10 (similar for Agriculture Department memo dated June 19, 1986). This consistent terminology confirms that the 1989 renewal was just that, and not a production extension. In fact, the Opinion appears to recognize this, as it says the 1989 renewal was only “effectively” an extension (p.6). Even if the 1989 renewal were an extension, moreover, the 2004 renewal would have to be as well, because again—although the Opinion ignores this crucial fact—those two renewals are identical. Hence, if the 1989 renewal “limited” BLM’s discretion (Opinion 6), then so did the 2004 renewal. There is no basis to distinguish between the two. And given the government’s acknowledgement at the time that the 1989 renewal was done under all the terms and conditions of the original leases, see Ex. 1, it cannot now retroactively deny that the identical 2004 renewal was as well. The Opinion also claims (p.6) that “nothing in the … 2004 leases … states that the 1966 terms somehow govern over the terms expressly set out in the 2004 leases.” That flips contract law on its head. As a leading treatise explains, “two or more agreements, though of a similar nature and made between the same parties, will not be read together when the later one expressly states that it supersedes or annuls the prior one.” 11 Lord, Williston on Contracts §30:26 (4th ed. 2012) (emphasis added). Hence, the question is not, as the Opinion contends (p.6), whether the 2004 forms “expressly set out” that the 1966 Leases govern. The question instead is whether the 2004 standard forms “expressly state[]” that they have “supersede[d] or annul[ed]” the 1966 leases. They do not. The “subsequent writing” should therefore be “construed in harmony with the original contract.” Fairbrook Leasing, Inc. v. Mesaba Aviation, Inc., 295 F. Supp. 2d 1063, 1075 (D. Minn. 2003). Put simply, the only reasonable conclusion is that the 1989 and 2004 documents were identical because the two renewals were identical: Each incorporated all of the terms in the attached 1966 leases. That conclusion makes sense because the 1966 leases, as discussed, were the product of extensive negotiations, carried out over a decade. Given the enormous effort that went into hammering out the terms of those leases, it would be entirely sensible for the parties to want to retain them. See Arborjet, Inc. v. Rainbow Treecare Sci. Advancements, Inc., 794 F.3d 168, 172 (1st Cir. 2015) (Souter, J.) (“Common sense is as much a part of contract interpretation as is the dictionary or the arsenal of canons.”); Westchester Fire Ins. Co. v. Wallerich, 563 F.3d 707, 712 (8th Cir. 2009) (“The language must be considered within its context, and with common sense.”). The Honorable Hilary Tompkins July 1, 2016 Page 12 Because the parties incorporated the 1966 leases in 2004, it is the renewal provision in the leases that controls. B. The 1966 Leases Establish A Non-Discretionary “Right In The Lessee To Renew … For Successive” Ten-Year Periods The analysis of whether the 1966 leases gives Twin Metals a non-discretionary right to renew the lease “begins with the language of the written agreement.” NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004). In conducting that analysis, the contract must be “construe[d] … as a whole so as not to render any terms meaningless.” Affordable Cmtys. of Mo. v. Federal Nat’l Mortg. Ass’n, 714 F.3d 1069, 1075 (8th Cir. 2013) (quotation marks omitted). Only Twin Metals’ interpretation of the leases is consistent with these tenets. As explained below, section 1 of the leases governs whether Twin Metals has a right to renew—and it answers that question in the affirmative, unambiguously establishing a non-discretionary and unqualified right to successive renewals. Section 5 then governs the terms of any renewal, addressing the scope of BLM’s readjustment authority under certain conditions. This reading “harmonize[s] and give[s] reasonable meaning to all of [the contract’s] parts.” NVT Techs., 370 F.3d at 1159. The interpretation adopted by the Solicitor’s Opinion’s, by contrast, renders meaningless the renewal right established in section 1, and improperly reads critical language out of section 5. 1. Section 1 Entitled “Rights of Lessee,” section 1 of the 1966 leases establishes “a right in the Lessee to renew … for successive periods of ten (10) years each in accordance with regulation 43 CFR § 3221.4(f) and the provisions of this lease.” 1966 Leases §1(a). This language is clear: Twin Metals has a “right … to renew” for “successive” ten-year periods. Nothing in the other “provisions of th[e] lease” or the cited regulation diminishes that right. The Opinion nowhere attempts to give meaning to the renewal language in section 1. Indeed, although the Opinion describes section 1 as one of “[t]he three relevant provisions in the 1966 leases” (p.4), it then ignores that section’s renewal language in its eight pages of analysis. That is remarkable because the entire issue here The Honorable Hilary Tompkins July 1, 2016 Page 13 is the scope of the renewal right under the leases. The Opinion’s complete disregard of the language that speaks directly to the “right in the Lessee to renew” is telling.3 2. Section 5 According to the Opinion (pp.8, 10), section 5 of the 1966 leases contains a “conditional renewal provision,” under which “production is the condition precedent for the lessee to obtain any lease renewals of right.” That is not correct. As discussed above, BLM repeatedly acknowledged over the years that the 1966 leases do not contain a production requirement—and affirmatively reversed course after attempting to impose one as part of the 1989 renewal. BLM’s acknowledgements were wellfounded, given that a production requirement would have been wholly irrational. As INCO made clear in the negotiations preceding the 1966 leases, the area covered by the leases poses special challenges, such that production within the original 20-year lease term would be impossible. Given that, it defies reason and common sense to conclude that INCO would have agreed to condition its renewal rights on production. It did not. The text of section 5 makes this clear. To begin with, the section’s title, “Renewal Terms,” leaves no doubt that the section speaks to the terms of any renewal, not to whether Twin Metals has an unconditional right to renew in the first place. See, e.g., In re Coffman, 766 F.3d 1246, 1251 (11th Cir. 2014) (“title[s] and headings are permissible indicators of meaning” (alteration in original)). A sentence-by-sentence analysis of the section confirms that conclusion. a. sentence one The first sentence of section 5 consists of two principal clauses, separated by a semi-colon. The first clause grants BLM certain “readjust[ment]” rights upon renewal, while the second imposes a limitation on those rights: The Lessor [BLM] shall have the right to reasonably readjust and fix royalties payable hereunder at the end of the primary term of this lease and thereafter at the end of each successive renewal thereof unless otherwise provided by law at the time of the expiration of any such period, and to readjust other terms and conditions of the lease, including the revision 3 Underscoring the extent to which it seeks to avoid engaging with the section 1 renewal language, the Opinion states (p.10) that Twin Metals “reads … section 5 to grant the lessee a non-discretionary right of renewal.” That is wrong. Twin Metals’ consistent position has been that the “non-discretionary right of renewal” is granted by section 1, with section 5 governing (as its title states) the “Renewal Terms.” The Honorable Hilary Tompkins July 1, 2016 Page 14 of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover; provided, however, that the Lessee [Twin Metals] shall have the right to three successive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day. The structure of this sentence leaves no doubt about its meaning: The clause before the semi-colon establishes a general rule, namely that each time the lease is renewed BLM can “reasonably readjust … royalties” and “readjust other terms and conditions.” The clause after the semi-colon then creates an exception to that general rule—for the first “three successive ten-year renewals,” BLM’s royalty readjustments are capped and adjustment of other terms and conditions is barred—but adds that this exception does not apply if the lessee has not “begun production” by the end of the original 20-year lease term. Hence, the consequence of a failure to begin production within that term is not denial of any right to renew, as the Opinion asserts. As explained, the right to renew is granted in section 1 (which, again, the Opinion ignores), and there is no basis to conclude that this separate section (which nowhere refers to section 1) limits that right. Rather, under section 5 the consequence of a failure to begin production within the original term is that even for the first three renewals, BLM can reasonably adjust royalties without regard to the specified caps as well as reasonably adjust “other terms and conditions.”4 The Opinion offers a different reading of the first sentence of section 5. It states (p.9) that the “unless” clause at the end of the sentence “qualifies the very right to renew.” This meaning is supposedly demonstrated by “plac[ing]” the clause “next to 4 Based apparently on section 5’s reference to “three … renewals,” the Opinion states at the outset (p.1) that the 1966 leases offered “the possibility of three ten-year renewals” in total, i.e., no more than three renewals under any circumstances. See also id. at 11. In reality, the “three … renewals” reference refers to the number of renewals with limited BLM royalty readjustments that the lessee would be entitled to if it began production during the original 20-year lease term. The Opinion’s assertion on this point just underscores that its reading renders section 1 meaningless. That section establishes a right to “successive” renewals—without further limitation. Section 5 similarly refers in the opening clause to (unlimited) “successive” renewals. The Honorable Hilary Tompkins July 1, 2016 Page 15 the provision it actually qualifies: ‘[T]he Lessee shall have the right to three successive ten-year renewals of this lease … unless at the end of the primary term of this lease the Lessee shall not have begun production.’” Id. (alteration and ellipsis in original). This reading is untenable. To begin with, the “unless” clause appears in the part of the sentence following the semi-colon. But as the Opinion repeatedly recognizes, everything after the semi-colon is a proviso (hence the phrase “provided, however, that”). That is important because a proviso, by definition, is not a standalone provision; it instead qualifies “the matter immediately preceding” it. Black’s Law Dictionary 1420 (10th ed. 2014); accord, e.g., Barnhart v. Thomas, 540 U.S. 20, 26 (2003) (“[A] limiting clause or phrase … should ordinarily be read as modifying only the noun or phrase that it immediately follows.”); Rintoul v. Sun Life Assurance Co. of Can., 142 F.2d 776, 778 (7th Cir. 1944) (“A proviso is construed to apply to the provision or clause immediately preceding.”). Under the Opinion’s reading, however, the proviso is a standalone provision: It creates a freestanding “right to renew,” unconnected to the material before the semi-colon—material that “describes the BLM’s right to readjust the royalties and other terms and conditions at the renewal stage.” Opinion 9. That does not make sense. A clause establishing a freestanding right to renew is not in any proper sense of the word a “proviso” to a clause regarding BLM’s readjustment rights. By contrast, Twin Metals’ reading respects the second clause’s status as a proviso. As explained, under this reading the second clause confers not a right to renew simpliciter, but rather a right to renew with limits on BLM’s readjustment authority. That is a proper proviso, because the immediately preceding clause is what gives BLM the right to make those readjustments in the first place. The Opinion’s reading also requires that a portion of the first sentence of section 5 be deleted entirely. As noted, the Opinion states that: the proper meaning of the proviso is clear when the last clause is placed next to the provision it actually qualifies: “[T]he Lessee shall have the right to three successive ten-year renewals of this lease … unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day.” Opinion 9 (alteration and ellipsis in original). But this is not what the contract says. Upon reinserting (and emphasizing) the language that the Opinion replaced with an ellipsis, the sentence reads: The Honorable Hilary Tompkins July 1, 2016 Page 16 provided, however, that the Lessee shall have the right to three successive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production. 1966 Leases §5 (emphasis added). The Opinion’s approach is not legitimate; text cannot simply be deleted for purposes of interpretation. And doing so here is particularly inappropriate because the deleted text is a restrictive modifier, describing which “right to … renew[]” depends on production “hav[ing] begun.” Deleting the restrictive modifier thus effects a significant substantive change in the contract. The Opinion (p.9) rejects this analysis on the ground that the use of the word “and” between the two readjustment phrases (i.e., readjustment of royalties and readjustment of other terms and conditions) “ties them together as a single modifier to the right-to-renew language.” The Opinion asserts that because of this, the “unless” clause “cannot merely qualify the readjustment phrases, … but must apply to the overall right of renewal.” Id. But the Opinion does not explain why that conclusion necessarily (or logically) follows, and it does not. That the right to renew described in section 5 includes two benefits—limited readjustment of royalties by BLM and no readjustment of other terms and conditions—rather than one has no bearing on what the “unless” clause modifies. This point, and the Opinion’s erroneous reading of the first sentence of section 5 more generally, is illustrated with a simpler hypothetical. Imagine an airline ticket that stated: The ticket holder shall have the right to board the aircraft with one large carry-on and one personal item unless the overhead compartments are full. As shown by the side-by-side immediately comparison below, this sentence has the same basic structure as the section 5 proviso. The phrase “[t]he ticket holder shall have the right to board the aircraft” corresponds to “the Lessee shall have the right to successive … renewals”; the phrase “with one large carry-on item and one personal item” corresponds to “with any readjustment in the royalties…” (i.e., all of the italicized language in the prior block quotation); and the two “unless” clauses correspond: The Honorable Hilary Tompkins July 1, 2016 Page 17 1966 Leases [1] the Lessee shall have the right to three successive ten-year renewals of this lease [2] with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease [3] unless at the end of the primary term of this lease the Lessee shall not have begun production Airline Ticket [1] The ticket holder shall have the right to board the aircraft [2] with one large carryon and one personal item [3] unless the overhead compartments are full. Under the Opinion’s reasoning, this airline provision would mean that if the overhead compartments are full, then the passenger has no right to board the aircraft at all. It would have that meaning because under the Opinion’s reasoning, the “ticket holder shall have the right to board” language creates a freestanding “right to board,” just like section 5 supposedly creates a freestanding “right to renew,” and the “unless the overhead compartments are full” language modifies that freestanding right (just like the “unless” clause in section 5 supposedly “qualifies the very right to renew,” Opinion 9). But that is obviously not what the airline ticket means. It means instead that when the overhead compartments are full, the person may still board the plane, but has no right to do so with one large carry-on item and one personal item. Likewise, section 5 says that if production has not begun, the lessee still has the right to renew, but does not have the right to do it with caps on BLM’s royalty-readjustment authority and a prohibition on BLM’s adjustment of other terms and conditions. Even this hypothetical, however, addresses only one of the Opinion’s errors, namely deleting the crucial restrictive modifier. The hypothetical does not address two additional errors mentioned above: the Opinion’s failure to give any meaning to section 1 of the 1966 leases, and the Opinion’s failure to account for the fact that the material after the semi-colon in section 5’s first sentence is a proviso. Those two errors can be illustrated by making three additional assumptions about the airline ticket. First, assume the hypothetical language above appears in a section of the ticket entitled “Terms of Boarding,” just as section 5 of the leases is entitled “Renewal Terms.” Second, assume there is a separate section of the ticket entitled “Ticketholder’s Rights,” just as section 1(a) of the leases is entitled “Rights of Lessee,” and that this separate section states: “The Ticketholder shall have the right to board the aircraft in accordance with FAA regulations and the provisions of this ticket.” The Honorable Hilary Tompkins July 1, 2016 Page 18 Third, assume that the original airline provision (regarding boarding with one carry-on and one personal item) is a proviso, with the immediately preceding language stating that the airline “may limit carry-on items for safety or other reasons.” Putting these assumptions together with the original language, the ticket would say: Section 1. Ticket holder’s Rights: The ticket holder shall have the right to board the aircraft in accordance with FAA regulations and the provisions of this ticket. Section 5. Terms of Boarding: The airline may limit ticket holders’ carryon items for safety or other reasons; provided, however, that the ticket holder shall have the right to board the aircraft with one large carry-on and one personal item unless the overhead compartments are full. Again, under the Opinion’s reasoning, the proper reading of section 5 of the ticket would be that if the overhead compartments are full, the ticketholder has no right to board at all—notwithstanding that section 1 is what creates the right to board, notwithstanding that the section 5 right is only a right to board with a large carry-on and a personal item (and hence only that right is qualified by the “unless” clause), and notwithstanding that this reading gives no effect to the proviso’s status as such. That reading is indefensible as to the airline ticket, and it is indefensible as to the 1966 leases. b. sentence two The Solicitor’s Opinion asserts (p.9) that its “conclusion is further reinforced by the second sentence of section 5.” That sentence states: The Secretary of the Interior may grant extensions of time for commencement of production in the interest of conservation or upon a satisfactory showing by the Lessee that the lease cannot be successfully operated at a profit or for other reasons, and the Lessee shall be entitled to renewal as herein provided without readjustment except of royalties payable hereunder if at the end of the primary or renewal period such an extension shall be in effect, but the Lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time. This sentence’s meaning is straightforward—particularly when one recalls that the preceding sentence provided that if production had not commenced by the end of the original lease term then the lessee’s right to have BLM’s adjustment authority limited during the first three renewals did not apply, that is, BLM could make reasonable adjustments for all renewals. The second sentence then says that if the Secretary The Honorable Hilary Tompkins July 1, 2016 Page 19 extends the time for commencing production, and the extension is in effect when the time comes to renew, then the lessee has the right to renew “without readjustment except of royalties payable hereunder.” The final clause (“but the Lessee”) then provides that this “without-readjustment” right does not extend to later renewals unless production begins before the end of the extension period. Although the Opinion agrees with Twin Metals’ reading of most of the sentence, it reads the last clause (“but the Lessee…”) differently—and that difference leads the Opinion to state (p.10) that the sentence “reinforces the preceding sentence’s condition precedent that there must be production before the lessee has a ‘right’ to subsequent renewals.” The flaw in that interpretation is that it reads out of the contract the critical word “such” in the “but the Lessee” clause. Again, the clause states that “but the Lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time.” Hence, the clause does not, as the Opinion asserts, make production a condition precedent to any renewals. It instead makes production a condition precedent to “such renewals.” The “such” refers to the “renewals” described earlier in the same sentence, i.e., “renewal … without readjustment except of royalties payable hereunder.” As with the first sentence of section 5, then, the Opinion’s reading of the second sentence depends on deleting crucial language in the contract. That is not permissible. c. sentence three The third sentence of section 5 specifies the limits on royalty adjustments that BLM may make under the circumstances specified in the first two sentences. In particular, it states that “[i]f the Lessee shall be entitled to renewal without readjustment except of royalties payable hereunder, the Secretary of the Interior may in his discretion increase the royalty rates” by percentages specified in the balance of the sentence. Regarding this sentence, the Opinion states (p.10) only that “without production, there would be no such entitlement.” That is true but as explained, the “entitlement” to which the third sentence refers is “renewal … without readjustment except of royalties.” Under the Opinion’s reading, by contrast, the “entitlement” is to renew at all. Because that is not how the third sentence defines the relevant “entitlement,” that sentence likewise refutes the Opinion’s interpretation. * * * Sections 1 and 5 of the 1966 leases have distinct terms and purposes. Section 1 establishes Twin Metals’ unqualified “right … to renew” for unlimited “successive The Honorable Hilary Tompkins July 1, 2016 Page 20 periods of ten … years.” Section 5 governs the terms of such renewals—without imposing a production requirement. The Opinion’s contrary reading cannot be reconciled with the contractual text. C. The Opinion’s Remaining Arguments Lack Merit The Opinion offers various other arguments in support of its conclusion that section 5 imposes a production requirement, and more generally that BLM has discretion to deny renewal. None of these arguments has merit. 1. The Opinion states (p.11) that its interpretation “is consistent with the regulation regarding renewal applications cited in the lease.” In fact, the cited regulation, 43 C.F.R. §3221.4(f) (1966), supports Twin Metals’ interpretation. Far from suggesting any authority to deny renewal (whether based on a production requirement or otherwise), §3221.4(f) stated: “The lessee will be granted a right of renewal for successive periods, not exceeding 10 years each, under such reasonable terms and conditions as the Secretary of the Interior may prescribe” (emphasis added). The word “will” makes clear that renewal is non-discretionary. The Solicitor’s Opinion (p.8) quotes this language from the regulation but argues that it merely led BLM to “include[] a conditional renewal provision in section 5 of the 1966 leases.” That argument fails for the reasons already discussed, namely that section 5 concerns only the terms of renewal. The argument also repeats the Opinion’s fundamental error of ignoring the renewal provision in section 1. The Opinion cannot simply write out central provisions of the contract. The Opinion also discusses this regulation’s last sentence, which prescribes procedural requirements for a lease-renewal application. Specifically, the sentence states: “An application for renewal of the lease must be filed in a manner similar to that prescribed for extension of a [prospecting] permit in § 3221.3(a)” (emphasis added). The Opinion (p.11) reasons from this language that because §3221.3(a) requires a person seeking an extension of a prospecting permit to show that he or she has “diligently performed prospecting activities,” §3221.4(f) must require a person who is filing for renewal of a lease to make “a showing of diligence in performing … production.” That is meritless. The last sentence of the regulation draws a link between a lease renewal and a prospecting application only for purposes of the “manner” in which each “must be filed.” The requirement that a prospecting applicant show diligence is not part of the “manner” in which an application is filed. In any event, the fact that a lessee has not begun The Honorable Hilary Tompkins July 1, 2016 Page 21 production does not demonstrate a lack of “diligence in performing the lease activities.” Opinion 11. Diligence means “[e]arnest and persistent application to an undertaking; steady effort.” American Heritage Dictionary of the English Language 523 (3d ed. 1992). Given the extreme challenges involved in mining in the relevant areas, a lessee can certainly make a “steady effort” and yet not start production within the original lease term—a reality recognized by section 5 of the 1966 leases, which as discussed authorized the Secretary of the Interior to grant extensions of time for the beginning of production. 2. The Opinion suggests (p.11) that its interpretation of the 1966 leases is consistent with congressional intent. As discussed, however, Congress authorized mining in the Superior National Forest by means of “special legislation to meet a special situation with respect to investment losses resulting from cancellation of mining permits in the Minnesota forests.” S. Rep. No. 81-1778, at 2. Congress recognized the devastating effect that withdrawal of mining authorization can have on a company, and emphasized the importance of security in mining investments. See id. It thus stated that those companies “who have made investments for the mining and removal of mineral substances from the described lands should be given the privilege of renewing or retaining their permits or leases.” H.R. Rep. No. 792, at 2. For the government to suddenly reverse course after Twin Metals and its predecessors have held the leases for half a century—and invested $400 million in acquisition, exploration, technical development, and other preliminary activities to define the mineral deposit and prepare for future development of the resource—utterly fails to respect congressional intent in this regard.5 3. Citing no authority, the Opinion asserts (p.11) that Congress was concerned about ensuring “a fair return to the American taxpayer.” To begin with, as just explained what spurred Congress to act was concern about harm to mining companies. But even assuming the Opinion is correct on this point, that does not justify the Opinion’s conclusion. Taxpayers have received a fair return under the leases, and if the leases are renewed they would continue to do so. The leases provide that return via significantly higher-than-usual minimum royalties—pursuant to which Twin Metals and its predecessors have paid over $1.4 million to the taxpayers. 4. Relatedly, the Opinion rejects (p.13) Twin Metals’ explanation that the 1966 leases include higher-than-usual minimum royalty payments in lieu of a production requirement. But the authority the Opinion relies for this point, General Chemicals 5 The $400 million expenditure also refutes the Opinion’s suggestion that Twin Metals has not been “diligent” in preparing for production. The Honorable Hilary Tompkins July 1, 2016 Page 22 (Soda Ash) Partners, 176 I.B.L.A. 1 (2008), is inapposite because it involved starkly different contractual language (and mineral rights). The appellant in General Chemicals argued that under both a department regulation and the terms of the relevant lease, payment of minimum royalties satisfied the lease’s production requirement. See id. at 9. The Board disagreed based on a provision of the relevant lease stating that “[t]he authorized officer will reject an application for renewal of this lease if, at the end of the lease’s current term, sodium is not being produced.” Id. at 5. That phrase is a clear production requirement—but there is nothing remotely like it in the 1966 leases. If anything, then, General Chemicals undermines the Opinion’s conclusion, by showing that the department knows how to include a production requirement in its leases when it wants to, and that it did not do so here. The Opinion also states in a footnote (p.12 n.19) that “[t]he original leases do not mention minimum royalties as a way to fulfill the production requirement.” That omission is unsurprising given that there is no production requirement. Moreover, the Opinion’s implication that the original leases draw no link between production and minimum royalties is wrong: Section 2(c) states that the lessee agreed, “[b]eginning after the tenth year of the lease …, to mine each year from the area covered by the lease a quantity” that would produce a specified royalty, “or in lieu thereof to pay … as royalty” certain specified amounts. 5. Finally, the Opinion notes (p.12) that a 1986 memorandum by an assistant solicitor “concluded that the BLM is not required to renew the 1966 leases as a matter of right if there has been no production.” The assistant solicitor concluded that the original leases could be “extended … for a period not exceeding 10 years,” but that “[i]f production does not occur during th[at] period of extension, no further extensions will be allowed.” Att. to Solicitor’s Opinion at 1. For the reasons discussed above, that opinion is wrong. Section 5 of the 1966 leases does not place a ten-year limit (or any other limit) on the extensions of time that may be granted to start production, nor do the leases cap the permissible number of renewals in the event production has not begun (let alone cap it at one). The 1986 opinion is also tenuous authority indeed given that BLM itself disagreed with the assistant solicitor, renewing the leases for a second time in 2004 despite the absence of production—a step the assistant solicitor’s opinion said was prohibited. II. EVEN I F THE 2004 R ENEWAL FORMS CONTROL, TWIN METALS HAS A NONDISCRETIONARY RIGHT TO RENEW Even if the 2004 renewal forms had superseded the 1966 leases, the Opinion’s analysis would still fail. Because the renewal provision in the 2004 standard forms is The Honorable Hilary Tompkins July 1, 2016 Page 23 ambiguous, extrinsic evidence must be considered. And for the reasons set forth above, as well as in Twin Metals’ letter and memorandum to you dated January 26, 2016, the relevant extrinsic evidence confirms the parties’ intent: that Twin Metals has a nondiscretionary right to successive renewals. The 2004 forms provide for a “preferential right in the lessee to renew for successive periods of 10 years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.” The Opinion (p.7) interprets this provision to give BLM “discretion to decide whether to renew the leases.” This interpretation rests exclusively on the undefined phrase “preferential right.” That phrase, the Opinion asserts, is unambiguous, giving Twin Metals only the right to be preferred against other parties if BLM decides to continue leasing, and not an entitlement to renewal. Id. at 5, 7. That reasoning is flawed. As the D.C. Circuit has held: “The meaning of the term [‘preference right lease’] is, in fact, ambiguous.” Natural Res. Def. Council, Inc. v. Berklund, 609 F.2d 553, 557 (D.C. Cir. 1979) (per curiam), cited in Utah Int’l, Inc. v. Andrus, 488 F. Supp. 976, 983-984 (D. Colo. 1980). Indeed, a source on which the Opinion itself relies for its conclusion (p.5)—a 1982 Solicitor’s opinion—confirms that the phrase is susceptible to two different meanings. See Sodium Lease Renewals, 89 Interior Dec. 173, 177-178 (1982). There, the Solicitor acknowledged that “preference right” can refer either to a “noncompetitive ‘entitlement lease[]’” or the right to be “preferred against third parties.” Id. at 177, 178. The Opinion here does not discuss Berklund—which also noted that “the term [‘preference right lease’] has … been construed by the agency consistently for nearly 60 years to mean an automatic entitlement of a prospecting permittee who establishes the presence of commercial quantities of coal in the area covered by the permit,” 609 F.2d at 558-559 (emphasis added). The Opinion does discuss Sodium Lease Renewals, trying to distinguish it by arguing (p.7) that the analysis there “focused on the rights obtained in the initial leasing decision.” That is irrelevant. The question is whether the undefined phrase “preferential right” is “‘susceptible of more than one reasonable interpretation.’” Giove v. Department of Transp., 230 F.3d 1333, 1341 (Fed. Cir. 2000). Both Berklund and Sodium Lease Renewals show that it is.6 Where a provision in a contract is ambiguous, courts resort to extrinsic evidence to resolve the ambiguity by “determin[ing] the intent and meaning of the parties.” 6 These opinions also refute the Opinion’s erroneous suggestion (p.7 n.13) that Twin Metals is arguing that the term is ambiguous “merely because the parties disagree on the correct interpretation.” WILMERHALE The Honorable Hilary Tompkins July 1, 2016 Page 24 Sonthland Metals, Inc. v. American Castings, LLC, 800 F.3d 452, 459 (8th Cir. 2015); accord 11 thtz?ston on Contracts ?30:7 (an ambiguous contract must be interpreted in light of ?relevant extrinsic evidence of the parties? intent and the meaning of the words that they used?). For the reasons Twin Metals has already given, both here and in its prior memorandum the extrinsic evidence con?rms the parties? intent in executing the 2004 standard forms: that Twin Metals has a non?discretionary right to renewal. The Opinion says nothing to the contrary. Moreover, here again Twin Metals? interpretation accords with common sense. It was clear in 2004 that Twin Metals would not be able to start producing by 2014, within the ten-year renewal period. It would have been wholly irrational for Twin Metals nonetheless to have signed a renewal and spent hundreds of millions of dollars if the renewal did not ensure that it would have an opportunity to mine the minerals. Twin Metals Memo 10-11. Finally, even if extrinsic evidence did not resolve the ambiguity here, the rule of contra proferentem would apply. See, Mata v. United States, 114 Fed. Cl. 736, 746 (2014). Under that doctrine, ?[w]hen a dispute arises as to the interpretation of a contract contra proferentem requires that ambiguous or unclear terms that are subject to more than one reasonable interpretation be construed against the party who drafted the document.? Turner Constr. Co. United States, 367 F.3d 1319, 1321 (Fed. Cir. 2004). Here, of course, BLM drafted the 2004 standard forms (which were not negotiated with Twin Metals? predecessor). If any ambiguity remains after consulting extrinsic evidence, then, the phrase ?preferential right? must be construed against BLM, to mean a non-discretionary right to renewal rather than simply a right to be preferred over other parties in the event renewal is granted. CONCLUSION Solicitor?s Opinion M-37036 should be withdrawn. Yours sincerely, M79. Seth P. Waxman Enclosures I 1353; . 4wu'. mm.me m. 397'- cu ?Musd?higux?-tw?wa a - . -- i a 1130* .. I 67%11 .. POI . Mar 1956 '1 - - But-emu. lama ?mgamm . off. #5116.- Imam- 25,139: - - Maris-in - - I - gm. rem-tows .10th- - .. . mm; 1354; new. the? 311$ sistaint' 1360' 613%? '39. as?dqr?san?? with'fa?ch l?fh?er-g-?hB-??d? . wail,? .. Him} ?5:sz sf axipliiaa?imii? f0 ?t of mi?graljlaa .. i swanky-usu?ht Agenti'zf?j 533: I f3"? i Pan-?31 7 . - . .. Unin States I - ?'ri?aapaxhivi?s reigx?eaitn- - Qxhi'hms": e??swa, titw?; this gouge-lid; "1-3333; a; $634.19 oi" tim- inah???6.13 ?ara?hmr? my Whining 218m) m: ?by; ?bwiing$he if: Nubia land- ?sh-e: . mama Mimi-63? We 3?81. . .. . . warms-=9 pacii?ri?g .Jl-a??iai?' i . Elf-aw? .. ?g atafis?i?? '3 - 7:22; I I - . gala"th max-ma?a" Eithibi?15291; fh?iig? -. - - .amas ma rum-e 151'? . . . 39$ .9: @916? ?Paw. 19:53 .a'.me-mga. .- . . 1 $91; . - fMe?arandum manager sq;1d Minerals, . for '??aia?f 0f - OFFICE- Tn: -$tat?7birettbr (97o) the;assistant bruary-l, I988, th?i?ol 3% g?er??neu?d'in attord?hte wiih Tri?ihal +0 hgir.?asg.fiy?s, __H?m?ni?jindi?at?dgi? and a aih? ihe k?yaitv fat?fi QT '?ro -on 1n: Shdish?uidf?dt _Item 6-fec??me?d5 th? impasition of a ?rdduction reduif?m??i! simil?FIfb development" requirement intlud?d id all Fe?Eral C961 leases. ?As mantioned.?r?uiously, these high minimum deS?rye ?g inte?iiVe; i5 i?app??pri?i ?nch 3? quugkemeht as ?heh?n__ Hh?r?hh?df?ck-ieaSes in Our Digtrict cantain sucn~a '?ing lease OD. gwu??me*a tall: Betau?e-bf the highly m? .whichxconiain many referenc95'io?ren_ 5 'egistihg-tetmg and . new leaSe farm. If you have-any-quegixgngi gr-mpositgcn 0f minimum Royalties WiLn~ out recuirements :were with Inca went ahead w; the as$ujiuckj imcnt that i? would be . .. 0'1 1'1 "3 "Er-'1 .1 (rum 5: .3. .., . Lag.oporationu in tne a?ea qnired to Operations an informed that mineral leases 9n the Same area are generally fg?Vmg??3?? -influ?nned by-many factars.m du??ionWand-the abili?y 1?3? insoLun spenduiunag premiumu -- areag_for Qw Accordingly theSe matters are net? 9 Side-(tilt: ?w-mlcf?; Willi. *an.e??nomi? ?s?ata a?d?myivate lands in? '1 wiijitn?9ndicTiTpi?2di. ?ni?h ?33 total in Qf'Gne milii?n_ vaern? 5f the .ig?33y?;op1ng Shale-. We are 0 qomplete_the_work preliminarg_?@ ?ne develegme?t-a?? t9 . 96? thisi??eai-= I .minimumiprdan?ti?anK?f' 6&3 iin??ng ?me?ge? ?hfbf ?7a?3?h??l?aSES7arefv - isftim? or it$.ability? ,t?iri?a??g?g?dz 'preS??t7?irq The-peridd gg?f?mggm?gumil - .. 4 Mamcfandum I To: State . =Fromi Assi?tantjp mjget5?6r Energy and Hiaerals; Milwaukee' Leases i3 issued}: to the International :Nic?k?el Thefse l?ase's? granted. to the -ni?kelgr.a?ds associated: minerals .from (53113. the USDA, Service. Mineral leases-a. corporation (ERGO) j; I I: I I. -?anagem??t16?"these"1ands ta your irecommenda?ion?:n?gi it" renewal-g of the] leases . 'i'f proud-mg; the following .9f the I. l. g?m?nt Service? IN REFER 5T0: I is daunties; MinnEQOtai ?The sur?a?e_ the corpgration 7 .nq' .prcducti-on Was realized from the" In .r?e'v -. shguldjrequirE' wit-H; the. auhe;r1_. 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Right Lease ?ghEWalS .uTra?_Lip?edj?6r15ig?ature MNES 1352 and MNES i353 the exi?ti TL ?=f?fms ate transmitt?de you: ComplEtioh?a?d 30I?ays. tFaiLd?e to c?mply bf this t?h?wal . d??iSiOHVWill BBCOWE fihal330 "lfto-thezl?terior Edard.of Land Appeals, Office bf an appeal 1 ydut NQEice of Appeal . .. 0f5r?aS??Sw5 i-i. .7 serwedldn-the foice- the . sgna a . . onsj-Wfitten arguments} or briefs t0 the foiee an'ag?Ea1, thef?-muSt be strict:' compliance Wi?h the ami Deputy'state-Directar . for'Minefaeresources 2 Enclosures . .i 5':5 a - (a ?3 - - - . :7 LL. 2 - i T?c?ditienzs and skim: Shave-Ibie?hmiemd; and if 1353*?! .isfuiajg?ct. mm 25%:15 any; - *0 . aim: Sze-M?g-Mfge] . mm? 'wk-M Mum-v Win?"- . . . nt.?f _$?rvioe Regimn Kilw??k?h;;?i??0??in 53203- - w; .- 282a DEW Jim 3? m: I. - as inc. Hm ixgzaaternas?ates=or?1?e. Bataan cf our ?g dongent t9 ?ne ranewal_?f the ahave ngted'l?ab??lf?r _:Tpgrigd, 'Eh? and Go??iti?n? are I the Swarm? i?a-tia?ai Famst. Elan: . 'i 2:15:9933312' da'tsad- June 6: 4391;33:91? which a; gpur bffiae?' any areag i?en?ifiad-in Eh? - ?term? Again-ma A?pro-priation Mt. Seth P. Waxman July 1, 2016 The Honorable Hilary C. Tompkins Solicitor Department of the Interior 1849 C Street N.W. Washington, D.C. 20240 Re: +1 202 663 6800 (t) +1 202 663 6363 (f) seth.waxman@wilmerhale.com Solicitor’s Opinion M-37036 Dear Solicitor Tompkins: I write on behalf of Twin Metals Minnesota in response to your opinion M-37036, dated March 8, 2016 (the “Solicitor’s Opinion” or “Opinion”). The Opinion concludes (p.1) that Twin Metals “does not have a non-discretionary right to renewal” of hardrock leases MNES-01352 and MNES-01353, but rather that the Bureau of Land Management “has discretion to grant or deny the pending renewal application.” For the reasons given herein, Twin Metals submits that that conclusion is wrong and that the Opinion should be withdrawn. INTRODUCTION In 1966, after ten years of extensive negotiations, BLM and Twin Metals’ predecessor in interest executed two hardrock mineral leases with respect to land in the Superior National Forest in northern Minnesota. Consistent with the lengthy negotiations that preceded them, the leases set forth comprehensive—and unique— terms. One of those terms is a right to renew the lease (in fact, to successive renewals). This right is critical to the parties’ overall bargain: The investment required of the lessee under the leases is enormous. But because of recognized operational problems in the area, producing minerals in the short term would have been impossible. The leases thus would serve no rational purpose absent a non-discretionary right to renew; no company would undertake the necessary investment for exploration and development knowing that it could be unilaterally deprived of any ability to recoup that investment. Recognizing this, section 1 of the leases provides an unambiguous “right in the Lessee to renew … for successive periods of ten … years.” 1966 Leases §1(a). This renewal right is textually unqualified save for the requirement of being consistent “with regulation 43 C.F.R. § 3221.4(f) and the provisions of this lease,” id.—both of which, as explained below, support the conclusion that BLM has no discretion to deny the right of renewal. The Honorable Hilary Tompkins July 1, 2016 Page 2 In accordance with section 1, BLM in 1989 granted a ten-year renewal of the leases, renewing “under the existing terms and conditions of the original leases.” Ex. 1 (BLM Letter) at 1 (Apr. 25, 1989). To effect this renewal, BLM presented the lessee with short, standard forms, forms that attached the 1966 leases in full. The parties executed those forms. In 2004, the parties again renewed the leases by executing short, standard forms—the very same forms as in 1989—to which they again attached the 1966 leases in full. Importantly, the parties completed this renewal without any discussion, much less negotiation, of any contract terms. The renewal was routine and administrative in nature. In 2012, Twin Metals applied for a third ten-year renewal. BLM subsequently asked your office whether it has the discretion to grant or deny the application. In response, your office issued the Opinion, taking the position (p.1) that Twin Metals “does not have a non-discretionary right to renewal.” Respectfully, that position rests on three overarching errors. First, the Opinion erroneously concludes that the renewal provision in the 2004 standard forms controls. In fact, the 1966 leases control. The Opinion’s contrary view depends on its assertion (p.6) that the 2004 forms are “integrated” contracts. But they are not; the 2004 forms lack any integration clause (a point the Opinion does not acknowledge), and there is no other basis on which to conclude that the 2004 forms— divorced from the 1966 leases that the parties attached—were integrated contracts. In light of this, the Opinion’s refusal to consider extrinsic evidence conflicts with established law. Once the forms are considered in light of that evidence (i.e., the relevant surrounding circumstances), the only reasonable conclusion is the parties’ written agreement when they renewed the leases in 2004 was the standard forms and the complete 1966 leases that the parties attached. Second, the Opinion (p.10) erroneously construes the 1966 leases as establishing (in section 5) a “condition precedent” to any renewal, namely production within the original 20-year term. That interpretation renders meaningless the renewal right in section 1—a right that the Opinion never confronts. The interpretation also runs afoul of the plain text of section 5. By contrast, Twin Metals’ interpretation of the leases gives effect to the text and purposes of both sections: Section 1 provides Twin Metals with a non-discretionary right to renew, while section 5 governs the terms of any renewal, and specifically addresses the scope of BLM’s authority to adjust royalties and other conditions under specified circumstances. The Honorable Hilary Tompkins July 1, 2016 Page 3 Third, having concluded that the 2004 standard forms control the renewal analysis, the Opinion concludes (p.7) that the undefined phrase “preferential right” in those forms is unambiguous. That conclusion conflicts with both relevant case law and a prior Solicitor’s opinion. Because the phrase is ambiguous, extrinsic evidence must be considered, and it confirms that the parties’ intent in executing the 2004 forms was to re-confirm that Twin Metals has a non-discretionary right to renew. Even if extrinsic evidence did not resolve the ambiguity, the rule of contra proferentem would require that this phrase be construed against BLM, which drafted the 2004 standard forms. Because the Opinion’s ultimate conclusion flows from these three errors, the conclusion is unsustainable, and the Opinion should be withdrawn. BACKGROUND A. The Act Of 1950 Leases MNES-01352 and MNES-01353 were issued under the Act of 1950, a law authorizing mining in the Superior National Forest. See Pub. L. No. 81-594, 64 Stat. 311 (codified at 16 U.S.C. §508b). In the words of the accompanying Senate report, the law was “special legislation to meet a special situation.” S. Rep. No. 81-1778, at 2 (1950). The statute authorizes the Secretary of the Interior, with the consent of the Secretary of Agriculture, to “permit the prospecting for and the development and utilization of … mineral resources” on national forest land in Minnesota. 64 Stat. at 312. As the legislative history makes clear, Congress intended not just to “permit” mining, but to encourage it as a “highly desirable” activity, S. Rep. No. 81-1778, at 2—i.e., one that yields substantial benefits for the general public. Congress enacted the Act of 1950 against the backdrop of the executive branch’s failure to honor and protect mining companies’ legitimate reliance interests, resulting in severe economic consequences for those companies. As the Act’s legislative history recounts, mining permits had been granted in Minnesota before 1950, under a ruling from the Solicitor of the Department of Agriculture. S. Rep. No. 81-1778, at 2; H.R. Rep. No. 81-795, at 2 (1949). But that ruling was later reversed, forcing mining companies to liquidate their investments. S. Rep. No. 81-1778, at 2; H.R. Rep. No. 81795, at 2. It was Congress’s dissatisfaction with this outcome—“investment losses resulting from cancellation of mining permits in the Minnesota forests,” S. Rep. No. 811778, at 2—that spurred passage of the Act of 1950. In particular, Congress’s view was that companies that “have made investments for the mining and removal of mineral substances from the described lands should be given the privilege of renewing or retaining their permits or leases.” H.R. Rep. No. 81-792, at 2 (1949). The Honorable Hilary Tompkins July 1, 2016 Page 4 B. 1966 Leases And Renewals 1. 1966 Leases The International Nickel Company (“INCO”) is Twin Metals’ predecessor in interest. Shortly after Congress enacted the Act of 1950, INCO acquired prospecting permits for the lands at issue here. See Ex. 2 (INCO Letter) at 1, 8-9 (Mar. 27, 1956). INCO invested significant money and effort in prospecting on those lands, ultimately discovering a valuable copper and nickel deposit—and thereby acquiring vested mineral rights. In 1956, INCO sought a lease with BLM to have those vested rights formalized. See Ex. 2 (INCO Letter) at 1, 8-9. This gave rise to a decade of what BLM later labeled “intensive negotiations.” Ex. 3 (BLM Memo re Recommendation for Lease Renewals) at 1 (Oct. 14, 1988); see also id. at 2 (noting the “highly negotiated terms and conditions” of the 1966 leases). During those negotiations, INCO was clear that it was “not considered possible to set forth minimum production requirements in the leases” in light of “special problems … involved in developing mining operations in the area.” Ex. 4 (1965 Memo) at 1, 2 (Apr. 15, 1965). In lieu of such a requirement, the parties negotiated and INCO agreed to pay minimum royalties that were significantly higher than normal. This was to ensure—again as BLM itself later confirmed—that INCO retained a financial incentive for development. See Ex. 3 at 1 (“Th[e] high minimum royalty payment … is intended to serve as the ‘production incentive’ or ‘diligent development’ provision in the leases[.]”). On June 14, 1966, INCO and BLM memorialized their agreement, executing the 1966 leases. Consistent with the extensive negotiations that preceded them, the 1966 leases are unique; the parties opted not to use BLM’s standard leasing forms, instead tailoring the leases to address the recognized development challenges in mining operations in the area. In line with Congress’s concern when it enacted the Act of 1950 about protecting mining companies’ investments—and in line with the type of investment required for hardrock minerals in unexplored areas, the very first section (indeed the very first subsection) of the 1966 leases gives the lessee not only the exclusive right to mine on the subject lands, but also the right to renew the lease. More specifically, section 1 (entitled “Rights of Lessee”) provides that the lessee has: a right … to renew … for successive periods of ten (10) years each in accordance with regulation 43 CFR § 3221.4(f) and the provisions of this lease. The Honorable Hilary Tompkins July 1, 2016 Page 5 1966 Leases §1(a). Like section 1 itself, the regulation cited at the end of this language provided that a “lease will be issued for a period not exceeding 20 years,” and that the “lessee will be granted a right of renewal for successive periods, not exceeding 10 years each, under such reasonable terms and conditions as the Secretary of the Interior may prescribe.” 43 C.F.R. §3221.4(f) (1966) (emphasis added). Section 2 of the leases then sets forth comprehensive terms—ranging from rental rates and royalties to the payment of taxes and non-discrimination provisions. Consistent with the parties’ negotiations, section 2(c) establishes a higher-than-usual minimum royalty requirement. Pursuant to this section, INCO and its successors have paid over $1.4 million dollars in royalties to the government. Finally, section 5 of the leases—entitled “Renewal Terms”—authorizes BLM to “readjust” lease terms during “each successive renewal,” except as otherwise provided. As BLM later confirmed, neither section 5 nor any other provision of the 1966 leases establishes “a production requirement.” Ex. 3 at 1. Section 5 instead creates a production incentive, providing that if INCO was producing by the end of the initial 20year term, then BLM would only have limited readjustment rights during the first three renewals. In particular, upon renewal BLM would only be able to readjust the royalty provisions by specified amounts, and would not be able to adjust other terms and conditions at all. See 1966 Leases §5. If instead INCO was not producing before the initial term ended, then BLM would have the right, starting with the first renewal, to readjust terms and conditions without these limitations. Id. 2. 1989 Renewal In 1986, INCO timely applied for the first ten-year renewal of the 1966 leases. Three years later, BLM used standard-form documents to renew the leases—notably stating that it was “agree[ing] to the renewal … under the existing terms and conditions of the original leases.” Ex. 1 at 1. Not surprisingly in light of this, the 1966 leases were attached in full to the standard forms, with certain provisions expressly referenced therein. See 1989 Renewal Forms §14 (referring to the “attached original lease agreement”). Underscoring the fact that the renewal was under the terms of the 1966 leases, BLM, during the process leading up to renewal, withdrew an earlier decision that would have altered the terms of those leases. More specifically, in 1986 an official at BLM’s Milwaukee office submitted a memo offering “recommendations regarding the renewal of the leases.” Ex. 5 (BLM Letter) at 1 (July 9, 1986). These recommendations would have changed the 1966 lease terms in various ways, including by requiring that “INCO … produce 1% of the reserves … by the date of lease expiration.” Id. at 2. “Failure to The Honorable Hilary Tompkins July 1, 2016 Page 6 comply” with that requirement, the memo recommended, “would result in the termination of both leases.” Id. As the 1986 memo recommended, BLM initially sent lease-renewal forms that would have altered the terms and conditions of the original leases. See Ex. 6 (Sept. 12, 1988). A month later, however—after “further review of the leases and their case files”—another official at BLM’s Milwaukee office wrote to “revise our recommendations concerning the subject renewals.” Ex. 3 at 1. He rejected the 1986 memo’s call to revise the lease terms (including by adding a production requirement), instead recommending that “these leases be renewed under the existing terms and conditions.” Id. at 2. As to a production requirement, he noted that “these INCO leases contain a high minimum royalty payment requirement, which was agreed would serve as the production incentive,” and further concluded that a production requirement would be “inappropriate.” Id. BLM promptly embraced these recommendations, withdrawing the lease-renewal forms previously sent to INCO. The withdrawal letter explained that “the new lease forms submitted for signature [would have] alter[ed] the terms and conditions of the original leases.” Ex. 7 (BLM Vacatur Decision) at 1 (Nov. 7, 1988). Instead, BLM sent short standard lease forms, together with full copies of the 1966 leases, explaining, as mentioned, that the renewal was “under the existing terms and conditions of the original leases.” Ex. 1 at 1. The 1989 standard forms referred to the lessee’s “preferential right” to renew, but did not define the phrase. 1989 Renewal Forms part I. The forms did not include an integration clause.1 3. 2004 Renewal After the 1989 renewal, American Copper and Nickel, Inc. acquired leases MNES-01352 and MNES-01353. In 1999, it timely applied for a second ten-year renewal. BLM renewed the leases in 2004, using the very same standard forms the 1 While INCO’s renewal application was pending, BLM asked the Solicitor’s Office whether it could renew the leases even though production had not begun. In a memo dated April 2, 1986, an assistant solicitor concluded that the lease could be extended “for a period not exceeding 10 years,” but that “[i]f production does not occur during th[at] period of extension, no further extensions will be allowed.” Att. to Solicitor’s Opinion at 1. As explained herein, that reading of the leases was wrong—and BLM recognized it was wrong, because even though production had not yet begun by 2004 (which would have prohibited renewal according to the assistant solicitor), BLM because renewed the leases that year. The Honorable Hilary Tompkins July 1, 2016 Page 7 parties had executed in 1989 (and again attaching the 1966 leases in full). See 2004 Renewal Forms. Although the 1989 and 2004 forms were the same, the processes leading up to the renewals in those two years were significantly different. As just discussed, in 1989 BLM engaged in significant internal discussions, seeking advice on renewal before issuing certain lease forms and then withdrawing those and issuing others. In 2004, by contrast, there was no significant discussion about renewal terms, either within the government or between the parties. Instead, BLM—speaking through the same official who oversaw the 1989 renewal (Vincent Vogt)—simply recommended that the leases be renewed “for ten years, as stipulated within the lease language.” Ex. 8 (BLM Letter) at 1 (Apr. 12, 1999). Similarly, the Forest Service stated that it “has no objection to the renewal of the above preference right leases. The terms, conditions and stipulations have been reviewed, and it has been determined that they are sufficient to protect the resources of the United States.” Ex. 9 (Forest Service Memo) at 1 (July 18, 2003). Like the (identical) 1989 standard forms, the 2004 forms did not include an integration clause, and they referred to the lessee’s “preferential right” to renew without defining that phrase. C. Solicitor’s Opinion Twin Metals acquired the leases at issue in 2011. The following year, it applied for a third ten-year renewal. BLM then asked your office “whether it has the discretion to grant or deny Twin Metals Minnesota’s pending application for renewal.” Solicitor’s Opinion 1. Both at an in-person presentation on January 14, 2016, and by memorandum dated January 26, 2016, Twin Metals detailed for your office its position that BLM has no discretion to deny lease renewal. Twin Metals also responded to questions raised by you and by letter from the Northeastern Minnesotans for Wilderness. On March 8, 2016, your office issued the Opinion, taking the position (p.1) that Twin Metals “does not have a non-discretionary right to renewal, but rather the BLM has discretion to grant or deny the pending renewal application.” As explained at the outset of this letter, that position rests on three principal conclusions. First, the Opinion asserts (p.6) that the 2004 standard forms are “complete, integrated documents,” and thus their renewal provision governs the analysis here. In making this assertion, the Opinion does not acknowledge the lack of any integration clause in the 2004 standard forms. The Opinion does recognize that the 1966 leases The Honorable Hilary Tompkins July 1, 2016 Page 8 were attached and referred to in the 2004 standard forms, but it concludes that the parties incorporated “only two provisions from the 1966 leases.” Id. It does not explain how that could be true, however, given that: (1) the 1989 renewal was “under the existing terms and conditions of the original leases,” Ex. 1 at 1, and (2) the 2004 forms were the same ones used in 1989. Second, based solely on the phrase “preferential right,” the Opinion (p.5) interprets the 2004 standard forms as granting Twin Metals only a “a right to be preferred against other parties.” According to the Opinion (id.), the department has “consistently interpreted” the phrase “preferential right” “as not entitling the lessee to an automatic right of renewal.” The Opinion rejects as “without merit” (p.7) Twin Metals’ argument that that phrase is in fact is ambiguous. The Opinion accordingly refuses (p.6) to consider any of the extrinsic evidence that Twin Metals maintained confirms that “BLM intended to simply renew the leases under the exact same terms of the 1966 leases.” Third, the Opinion concludes (p.8) that even if the 1966 leases governed, “they do not prohibit the BLM from exercising its discretion to decide whether to renew the leases.” Ignoring the unqualified renewal right in section 1, the Opinion focuses on section 5, which reads: The Lessor shall have the right to reasonably readjust and fix royalties payable hereunder at the end of the primary term of this lease and thereafter at the end of each successive renewal thereof unless otherwise provided by the law at the time of the expiration of any such period, and to readjust other terms and conditions of the lease, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover; provided, however, that the Lessee shall have the right to three successive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production[.] 1966 Leases §5 (emphasis added). The Opinion (p.10) reads section 5 to mean that “production is the condition precedent for the lessee to obtain any lease renewals of right.” In particular, the Opinion (p.9) interprets the emphasized “unless” clause to qualify “the very right to renew” rather than the right described in the immediately preceding phrase, i.e., the right to renew with BLM’s readjustment authority limited as described in the balance of section 5. The Honorable Hilary Tompkins July 1, 2016 Page 9 ARGUMENT I. UNDER THE 1966 LEASES, WHICH GOVERN THE ANALYSIS HERE, T WIN METALS HAS A NON-DISCRETIONARY RIGHT TO RENEW A. The Parties Incorporated The 1966 Leases In Full Into The 2004 Standard Forms The Solicitor’s Opinion concludes (p.6) that whether Twin Metals has a nondiscretionary right to renew the leases at issue is governed by the renewal provision in the 2004 standard forms, rather than its counterpart in the 1966 leases, because the 2004 standard forms are supposedly “complete, integrated documents.” That is not correct. “A written contract is considered integrated when the parties intend it to constitute the complete and final expression of their agreement.” Starter Corp. v. Converse, Inc., 170 F.3d 286, 295 (2d Cir. 1999) (citing Farnsworth, Contracts §7.3 (2d ed. 1990)). “When a contract lacks an express integration clause [courts] must ‘determine whether the parties intended their agreement to be an integrated contract by reading the writing in light of the surrounding circumstances.’” Id. (emphasis added); see also, e.g., McAbee Constr., Inc. v. United States, 97 F.3d 1431, 1434 (Fed. Cir. 1996) (“extrinsic evidence is ‘especially pertinent … where … the writing itself contains no recitals or other evidence testifying to its intended completeness and finality’”); Montwood Corp. v. Hot Springs Theme Park Corp., 766 F.2d 359, 362 (8th Cir. 1985) (“absence [of an integration clause] is relevant in determining whether the parties intended to integrate their entire agreement into the document” at issue). Here, the 2004 standard forms lack an integration clause—a point not mentioned in the Solicitor’s Opinion. That “very basic fact,” United Precision Prods. Co. v. Avco Corp., 540 F. App’x 489, 493 (6th Cir. 2013), requires consideration of extrinsic evidence.2 Once extrinsic evidence is considered, it is clear that the parties did not intend the 2004 forms to be a “complete and final expression of their agreement.” Starter Corp., 170 F.3d at 295. The forms are short, boilerplate documents, and hence unlikely to encompass all of the parties’ intended terms for such a consequential and complex undertaking. Furthermore, the 2004 forms’ execution was preceded by virtually no discussion—much less actual negotiation—of any contract terms. Again, particularly 2 Even where there is an integration clause, that is not necessarily “conclusive,” and courts will still look to the “surrounding circumstances.” United States v. Basin Elec. Power Coop., 248 F.3d 781, 809 (8th Cir. 2001) (citing Restatement (Second) of Contracts §209 cmt. b (1981)). The Honorable Hilary Tompkins July 1, 2016 Page 10 given the monumental economic interests at stake, this factor further weighs heavily against a finding of integration. See, e.g., ARB (American Research Bureau), Inc. v. ESystems, Inc., 663 F.2d 189, 199 (D.C. Cir. 1980) (“The length of the contract, its exhaustive detail, and the prolonged period of negotiation preceding its signing, collectively considered, support [the] conclusion” that the contract was integrated.). It is all the more implausible that in 2004 the parties intended to depart from the terms of the 1966 leases given that: (1) those leases were attached to the 2004 forms (as they were with the 1989 forms), and (2) all of the 1966 lease terms were in effect when the 2004 renewal was executed. See Ex. 1 at 1 (government agreeing to the 1989 renewal “under the existing terms and conditions of the original leases”). The Opinion disputes this second point, asserting (p.6) that “only two provisions from the 1966 leases” were incorporated in 2004, via “two special stipulations.” But that cannot be right. As just mentioned, the government acknowledged that the 1989 renewal was “under the existing terms and conditions of the original leases,” i.e., all of those existing terms. And the 1989 forms contained the exact same stipulations that the Opinion points to in the 2004 forms as evidence that only the provisions mentioned in those stipulations were incorporated. See 1989 Renewal Forms §14. The Opinion’s conclusion, in short, is that by filling out the same form in 2004 that they had filled out in 1989, in the same way that they had in 1989, and by attaching the same complete copy of the 1966 leases that they had attached in 1989, the parties—without a word to one another on the topic—agreed not only to do something different than what they had done in 1989, but also to do something far-reaching, namely to significantly revise the deal they had both lived under for nearly four decades. That is extraordinarily unlikely. The Opinion appears to address this point in asserting (p.6) that “the 1989 and 2004 renewals differ … because the BLM’s discretion was limited in 1989 but not in 2004.” It was “limited in 1989,” according to the Opinion, because “the 1989 renewal served as a one-time extension of time for commencement of production, as authorized under section 5 of the 1966 leases.” Id. A threshold flaw in this assertion is its premise that section 5 created a production requirement. In fact, as BLM recognized, that section created a production incentive, see Ex. 3 at 1, while also adopting higher-thannormal royalty payments in lieu of a production requirement. In any event, the Opinion points to nothing even suggesting that the 1989 renewal was an extension rather than an actual renewal. No extension was requested, and the relevant contemporaneous documents—including the leases themselves—use the term “renewal,” not “extension.” Indeed, the leases use that term in the title (which surely describe what the document is), as well as in the very opening sentence of text: “This … Lease Renewal … is effective … Jul[y] 01, 1989….” 1989 Renewal Forms at 1. The cover sheet transmitting the forms likewise repeatedly used the term “renewal,” stating: “The Forest Service The Honorable Hilary Tompkins July 1, 2016 Page 11 and [BLM] have agreed to the renewal of the enclosed Preference Right Leases …. Enclosed are lease renewal forms transmitted for your signature and return to this office.” Ex. 1 at 1; see also Ex. 5 at 1 (BLM letter repeatedly using the word renewal); Ex. 3 (same); Ex. 7 (same); Ex. 10 (similar for Agriculture Department memo dated June 19, 1986). This consistent terminology confirms that the 1989 renewal was just that, and not a production extension. In fact, the Opinion appears to recognize this, as it says the 1989 renewal was only “effectively” an extension (p.6). Even if the 1989 renewal were an extension, moreover, the 2004 renewal would have to be as well, because again—although the Opinion ignores this crucial fact—those two renewals are identical. Hence, if the 1989 renewal “limited” BLM’s discretion (Opinion 6), then so did the 2004 renewal. There is no basis to distinguish between the two. And given the government’s acknowledgement at the time that the 1989 renewal was done under all the terms and conditions of the original leases, see Ex. 1, it cannot now retroactively deny that the identical 2004 renewal was as well. The Opinion also claims (p.6) that “nothing in the … 2004 leases … states that the 1966 terms somehow govern over the terms expressly set out in the 2004 leases.” That flips contract law on its head. As a leading treatise explains, “two or more agreements, though of a similar nature and made between the same parties, will not be read together when the later one expressly states that it supersedes or annuls the prior one.” 11 Lord, Williston on Contracts §30:26 (4th ed. 2012) (emphasis added). Hence, the question is not, as the Opinion contends (p.6), whether the 2004 forms “expressly set out” that the 1966 Leases govern. The question instead is whether the 2004 standard forms “expressly state[]” that they have “supersede[d] or annul[ed]” the 1966 leases. They do not. The “subsequent writing” should therefore be “construed in harmony with the original contract.” Fairbrook Leasing, Inc. v. Mesaba Aviation, Inc., 295 F. Supp. 2d 1063, 1075 (D. Minn. 2003). Put simply, the only reasonable conclusion is that the 1989 and 2004 documents were identical because the two renewals were identical: Each incorporated all of the terms in the attached 1966 leases. That conclusion makes sense because the 1966 leases, as discussed, were the product of extensive negotiations, carried out over a decade. Given the enormous effort that went into hammering out the terms of those leases, it would be entirely sensible for the parties to want to retain them. See Arborjet, Inc. v. Rainbow Treecare Sci. Advancements, Inc., 794 F.3d 168, 172 (1st Cir. 2015) (Souter, J.) (“Common sense is as much a part of contract interpretation as is the dictionary or the arsenal of canons.”); Westchester Fire Ins. Co. v. Wallerich, 563 F.3d 707, 712 (8th Cir. 2009) (“The language must be considered within its context, and with common sense.”). The Honorable Hilary Tompkins July 1, 2016 Page 12 Because the parties incorporated the 1966 leases in 2004, it is the renewal provision in the leases that controls. B. The 1966 Leases Establish A Non-Discretionary “Right In The Lessee To Renew … For Successive” Ten-Year Periods The analysis of whether the 1966 leases gives Twin Metals a non-discretionary right to renew the lease “begins with the language of the written agreement.” NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004). In conducting that analysis, the contract must be “construe[d] … as a whole so as not to render any terms meaningless.” Affordable Cmtys. of Mo. v. Federal Nat’l Mortg. Ass’n, 714 F.3d 1069, 1075 (8th Cir. 2013) (quotation marks omitted). Only Twin Metals’ interpretation of the leases is consistent with these tenets. As explained below, section 1 of the leases governs whether Twin Metals has a right to renew—and it answers that question in the affirmative, unambiguously establishing a non-discretionary and unqualified right to successive renewals. Section 5 then governs the terms of any renewal, addressing the scope of BLM’s readjustment authority under certain conditions. This reading “harmonize[s] and give[s] reasonable meaning to all of [the contract’s] parts.” NVT Techs., 370 F.3d at 1159. The interpretation adopted by the Solicitor’s Opinion’s, by contrast, renders meaningless the renewal right established in section 1, and improperly reads critical language out of section 5. 1. Section 1 Entitled “Rights of Lessee,” section 1 of the 1966 leases establishes “a right in the Lessee to renew … for successive periods of ten (10) years each in accordance with regulation 43 CFR § 3221.4(f) and the provisions of this lease.” 1966 Leases §1(a). This language is clear: Twin Metals has a “right … to renew” for “successive” ten-year periods. Nothing in the other “provisions of th[e] lease” or the cited regulation diminishes that right. The Opinion nowhere attempts to give meaning to the renewal language in section 1. Indeed, although the Opinion describes section 1 as one of “[t]he three relevant provisions in the 1966 leases” (p.4), it then ignores that section’s renewal language in its eight pages of analysis. That is remarkable because the entire issue here The Honorable Hilary Tompkins July 1, 2016 Page 13 is the scope of the renewal right under the leases. The Opinion’s complete disregard of the language that speaks directly to the “right in the Lessee to renew” is telling.3 2. Section 5 According to the Opinion (pp.8, 10), section 5 of the 1966 leases contains a “conditional renewal provision,” under which “production is the condition precedent for the lessee to obtain any lease renewals of right.” That is not correct. As discussed above, BLM repeatedly acknowledged over the years that the 1966 leases do not contain a production requirement—and affirmatively reversed course after attempting to impose one as part of the 1989 renewal. BLM’s acknowledgements were wellfounded, given that a production requirement would have been wholly irrational. As INCO made clear in the negotiations preceding the 1966 leases, the area covered by the leases poses special challenges, such that production within the original 20-year lease term would be impossible. Given that, it defies reason and common sense to conclude that INCO would have agreed to condition its renewal rights on production. It did not. The text of section 5 makes this clear. To begin with, the section’s title, “Renewal Terms,” leaves no doubt that the section speaks to the terms of any renewal, not to whether Twin Metals has an unconditional right to renew in the first place. See, e.g., In re Coffman, 766 F.3d 1246, 1251 (11th Cir. 2014) (“title[s] and headings are permissible indicators of meaning” (alteration in original)). A sentence-by-sentence analysis of the section confirms that conclusion. a. sentence one The first sentence of section 5 consists of two principal clauses, separated by a semi-colon. The first clause grants BLM certain “readjust[ment]” rights upon renewal, while the second imposes a limitation on those rights: The Lessor [BLM] shall have the right to reasonably readjust and fix royalties payable hereunder at the end of the primary term of this lease and thereafter at the end of each successive renewal thereof unless otherwise provided by law at the time of the expiration of any such period, and to readjust other terms and conditions of the lease, including the revision 3 Underscoring the extent to which it seeks to avoid engaging with the section 1 renewal language, the Opinion states (p.10) that Twin Metals “reads … section 5 to grant the lessee a non-discretionary right of renewal.” That is wrong. Twin Metals’ consistent position has been that the “non-discretionary right of renewal” is granted by section 1, with section 5 governing (as its title states) the “Renewal Terms.” The Honorable Hilary Tompkins July 1, 2016 Page 14 of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover; provided, however, that the Lessee [Twin Metals] shall have the right to three successive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day. The structure of this sentence leaves no doubt about its meaning: The clause before the semi-colon establishes a general rule, namely that each time the lease is renewed BLM can “reasonably readjust … royalties” and “readjust other terms and conditions.” The clause after the semi-colon then creates an exception to that general rule—for the first “three successive ten-year renewals,” BLM’s royalty readjustments are capped and adjustment of other terms and conditions is barred—but adds that this exception does not apply if the lessee has not “begun production” by the end of the original 20-year lease term. Hence, the consequence of a failure to begin production within that term is not denial of any right to renew, as the Opinion asserts. As explained, the right to renew is granted in section 1 (which, again, the Opinion ignores), and there is no basis to conclude that this separate section (which nowhere refers to section 1) limits that right. Rather, under section 5 the consequence of a failure to begin production within the original term is that even for the first three renewals, BLM can reasonably adjust royalties without regard to the specified caps as well as reasonably adjust “other terms and conditions.”4 The Opinion offers a different reading of the first sentence of section 5. It states (p.9) that the “unless” clause at the end of the sentence “qualifies the very right to renew.” This meaning is supposedly demonstrated by “plac[ing]” the clause “next to 4 Based apparently on section 5’s reference to “three … renewals,” the Opinion states at the outset (p.1) that the 1966 leases offered “the possibility of three ten-year renewals” in total, i.e., no more than three renewals under any circumstances. See also id. at 11. In reality, the “three … renewals” reference refers to the number of renewals with limited BLM royalty readjustments that the lessee would be entitled to if it began production during the original 20-year lease term. The Opinion’s assertion on this point just underscores that its reading renders section 1 meaningless. That section establishes a right to “successive” renewals—without further limitation. Section 5 similarly refers in the opening clause to (unlimited) “successive” renewals. The Honorable Hilary Tompkins July 1, 2016 Page 15 the provision it actually qualifies: ‘[T]he Lessee shall have the right to three successive ten-year renewals of this lease … unless at the end of the primary term of this lease the Lessee shall not have begun production.’” Id. (alteration and ellipsis in original). This reading is untenable. To begin with, the “unless” clause appears in the part of the sentence following the semi-colon. But as the Opinion repeatedly recognizes, everything after the semi-colon is a proviso (hence the phrase “provided, however, that”). That is important because a proviso, by definition, is not a standalone provision; it instead qualifies “the matter immediately preceding” it. Black’s Law Dictionary 1420 (10th ed. 2014); accord, e.g., Barnhart v. Thomas, 540 U.S. 20, 26 (2003) (“[A] limiting clause or phrase … should ordinarily be read as modifying only the noun or phrase that it immediately follows.”); Rintoul v. Sun Life Assurance Co. of Can., 142 F.2d 776, 778 (7th Cir. 1944) (“A proviso is construed to apply to the provision or clause immediately preceding.”). Under the Opinion’s reading, however, the proviso is a standalone provision: It creates a freestanding “right to renew,” unconnected to the material before the semi-colon—material that “describes the BLM’s right to readjust the royalties and other terms and conditions at the renewal stage.” Opinion 9. That does not make sense. A clause establishing a freestanding right to renew is not in any proper sense of the word a “proviso” to a clause regarding BLM’s readjustment rights. By contrast, Twin Metals’ reading respects the second clause’s status as a proviso. As explained, under this reading the second clause confers not a right to renew simpliciter, but rather a right to renew with limits on BLM’s readjustment authority. That is a proper proviso, because the immediately preceding clause is what gives BLM the right to make those readjustments in the first place. The Opinion’s reading also requires that a portion of the first sentence of section 5 be deleted entirely. As noted, the Opinion states that: the proper meaning of the proviso is clear when the last clause is placed next to the provision it actually qualifies: “[T]he Lessee shall have the right to three successive ten-year renewals of this lease … unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day.” Opinion 9 (alteration and ellipsis in original). But this is not what the contract says. Upon reinserting (and emphasizing) the language that the Opinion replaced with an ellipsis, the sentence reads: The Honorable Hilary Tompkins July 1, 2016 Page 16 provided, however, that the Lessee shall have the right to three successive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production. 1966 Leases §5 (emphasis added). The Opinion’s approach is not legitimate; text cannot simply be deleted for purposes of interpretation. And doing so here is particularly inappropriate because the deleted text is a restrictive modifier, describing which “right to … renew[]” depends on production “hav[ing] begun.” Deleting the restrictive modifier thus effects a significant substantive change in the contract. The Opinion (p.9) rejects this analysis on the ground that the use of the word “and” between the two readjustment phrases (i.e., readjustment of royalties and readjustment of other terms and conditions) “ties them together as a single modifier to the right-to-renew language.” The Opinion asserts that because of this, the “unless” clause “cannot merely qualify the readjustment phrases, … but must apply to the overall right of renewal.” Id. But the Opinion does not explain why that conclusion necessarily (or logically) follows, and it does not. That the right to renew described in section 5 includes two benefits—limited readjustment of royalties by BLM and no readjustment of other terms and conditions—rather than one has no bearing on what the “unless” clause modifies. This point, and the Opinion’s erroneous reading of the first sentence of section 5 more generally, is illustrated with a simpler hypothetical. Imagine an airline ticket that stated: The ticket holder shall have the right to board the aircraft with one large carry-on and one personal item unless the overhead compartments are full. As shown by the side-by-side immediately comparison below, this sentence has the same basic structure as the section 5 proviso. The phrase “[t]he ticket holder shall have the right to board the aircraft” corresponds to “the Lessee shall have the right to successive … renewals”; the phrase “with one large carry-on item and one personal item” corresponds to “with any readjustment in the royalties…” (i.e., all of the italicized language in the prior block quotation); and the two “unless” clauses correspond: The Honorable Hilary Tompkins July 1, 2016 Page 17 1966 Leases [1] the Lessee shall have the right to three successive ten-year renewals of this lease [2] with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease [3] unless at the end of the primary term of this lease the Lessee shall not have begun production Airline Ticket [1] The ticket holder shall have the right to board the aircraft [2] with one large carryon and one personal item [3] unless the overhead compartments are full. Under the Opinion’s reasoning, this airline provision would mean that if the overhead compartments are full, then the passenger has no right to board the aircraft at all. It would have that meaning because under the Opinion’s reasoning, the “ticket holder shall have the right to board” language creates a freestanding “right to board,” just like section 5 supposedly creates a freestanding “right to renew,” and the “unless the overhead compartments are full” language modifies that freestanding right (just like the “unless” clause in section 5 supposedly “qualifies the very right to renew,” Opinion 9). But that is obviously not what the airline ticket means. It means instead that when the overhead compartments are full, the person may still board the plane, but has no right to do so with one large carry-on item and one personal item. Likewise, section 5 says that if production has not begun, the lessee still has the right to renew, but does not have the right to do it with caps on BLM’s royalty-readjustment authority and a prohibition on BLM’s adjustment of other terms and conditions. Even this hypothetical, however, addresses only one of the Opinion’s errors, namely deleting the crucial restrictive modifier. The hypothetical does not address two additional errors mentioned above: the Opinion’s failure to give any meaning to section 1 of the 1966 leases, and the Opinion’s failure to account for the fact that the material after the semi-colon in section 5’s first sentence is a proviso. Those two errors can be illustrated by making three additional assumptions about the airline ticket. First, assume the hypothetical language above appears in a section of the ticket entitled “Terms of Boarding,” just as section 5 of the leases is entitled “Renewal Terms.” Second, assume there is a separate section of the ticket entitled “Ticketholder’s Rights,” just as section 1(a) of the leases is entitled “Rights of Lessee,” and that this separate section states: “The Ticketholder shall have the right to board the aircraft in accordance with FAA regulations and the provisions of this ticket.” The Honorable Hilary Tompkins July 1, 2016 Page 18 Third, assume that the original airline provision (regarding boarding with one carry-on and one personal item) is a proviso, with the immediately preceding language stating that the airline “may limit carry-on items for safety or other reasons.” Putting these assumptions together with the original language, the ticket would say: Section 1. Ticket holder’s Rights: The ticket holder shall have the right to board the aircraft in accordance with FAA regulations and the provisions of this ticket. Section 5. Terms of Boarding: The airline may limit ticket holders’ carryon items for safety or other reasons; provided, however, that the ticket holder shall have the right to board the aircraft with one large carry-on and one personal item unless the overhead compartments are full. Again, under the Opinion’s reasoning, the proper reading of section 5 of the ticket would be that if the overhead compartments are full, the ticketholder has no right to board at all—notwithstanding that section 1 is what creates the right to board, notwithstanding that the section 5 right is only a right to board with a large carry-on and a personal item (and hence only that right is qualified by the “unless” clause), and notwithstanding that this reading gives no effect to the proviso’s status as such. That reading is indefensible as to the airline ticket, and it is indefensible as to the 1966 leases. b. sentence two The Solicitor’s Opinion asserts (p.9) that its “conclusion is further reinforced by the second sentence of section 5.” That sentence states: The Secretary of the Interior may grant extensions of time for commencement of production in the interest of conservation or upon a satisfactory showing by the Lessee that the lease cannot be successfully operated at a profit or for other reasons, and the Lessee shall be entitled to renewal as herein provided without readjustment except of royalties payable hereunder if at the end of the primary or renewal period such an extension shall be in effect, but the Lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time. This sentence’s meaning is straightforward—particularly when one recalls that the preceding sentence provided that if production had not commenced by the end of the original lease term then the lessee’s right to have BLM’s adjustment authority limited during the first three renewals did not apply, that is, BLM could make reasonable adjustments for all renewals. The second sentence then says that if the Secretary The Honorable Hilary Tompkins July 1, 2016 Page 19 extends the time for commencing production, and the extension is in effect when the time comes to renew, then the lessee has the right to renew “without readjustment except of royalties payable hereunder.” The final clause (“but the Lessee”) then provides that this “without-readjustment” right does not extend to later renewals unless production begins before the end of the extension period. Although the Opinion agrees with Twin Metals’ reading of most of the sentence, it reads the last clause (“but the Lessee…”) differently—and that difference leads the Opinion to state (p.10) that the sentence “reinforces the preceding sentence’s condition precedent that there must be production before the lessee has a ‘right’ to subsequent renewals.” The flaw in that interpretation is that it reads out of the contract the critical word “such” in the “but the Lessee” clause. Again, the clause states that “but the Lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time.” Hence, the clause does not, as the Opinion asserts, make production a condition precedent to any renewals. It instead makes production a condition precedent to “such renewals.” The “such” refers to the “renewals” described earlier in the same sentence, i.e., “renewal … without readjustment except of royalties payable hereunder.” As with the first sentence of section 5, then, the Opinion’s reading of the second sentence depends on deleting crucial language in the contract. That is not permissible. c. sentence three The third sentence of section 5 specifies the limits on royalty adjustments that BLM may make under the circumstances specified in the first two sentences. In particular, it states that “[i]f the Lessee shall be entitled to renewal without readjustment except of royalties payable hereunder, the Secretary of the Interior may in his discretion increase the royalty rates” by percentages specified in the balance of the sentence. Regarding this sentence, the Opinion states (p.10) only that “without production, there would be no such entitlement.” That is true but as explained, the “entitlement” to which the third sentence refers is “renewal … without readjustment except of royalties.” Under the Opinion’s reading, by contrast, the “entitlement” is to renew at all. Because that is not how the third sentence defines the relevant “entitlement,” that sentence likewise refutes the Opinion’s interpretation. * * * Sections 1 and 5 of the 1966 leases have distinct terms and purposes. Section 1 establishes Twin Metals’ unqualified “right … to renew” for unlimited “successive The Honorable Hilary Tompkins July 1, 2016 Page 20 periods of ten … years.” Section 5 governs the terms of such renewals—without imposing a production requirement. The Opinion’s contrary reading cannot be reconciled with the contractual text. C. The Opinion’s Remaining Arguments Lack Merit The Opinion offers various other arguments in support of its conclusion that section 5 imposes a production requirement, and more generally that BLM has discretion to deny renewal. None of these arguments has merit. 1. The Opinion states (p.11) that its interpretation “is consistent with the regulation regarding renewal applications cited in the lease.” In fact, the cited regulation, 43 C.F.R. §3221.4(f) (1966), supports Twin Metals’ interpretation. Far from suggesting any authority to deny renewal (whether based on a production requirement or otherwise), §3221.4(f) stated: “The lessee will be granted a right of renewal for successive periods, not exceeding 10 years each, under such reasonable terms and conditions as the Secretary of the Interior may prescribe” (emphasis added). The word “will” makes clear that renewal is non-discretionary. The Solicitor’s Opinion (p.8) quotes this language from the regulation but argues that it merely led BLM to “include[] a conditional renewal provision in section 5 of the 1966 leases.” That argument fails for the reasons already discussed, namely that section 5 concerns only the terms of renewal. The argument also repeats the Opinion’s fundamental error of ignoring the renewal provision in section 1. The Opinion cannot simply write out central provisions of the contract. The Opinion also discusses this regulation’s last sentence, which prescribes procedural requirements for a lease-renewal application. Specifically, the sentence states: “An application for renewal of the lease must be filed in a manner similar to that prescribed for extension of a [prospecting] permit in § 3221.3(a)” (emphasis added). The Opinion (p.11) reasons from this language that because §3221.3(a) requires a person seeking an extension of a prospecting permit to show that he or she has “diligently performed prospecting activities,” §3221.4(f) must require a person who is filing for renewal of a lease to make “a showing of diligence in performing … production.” That is meritless. The last sentence of the regulation draws a link between a lease renewal and a prospecting application only for purposes of the “manner” in which each “must be filed.” The requirement that a prospecting applicant show diligence is not part of the “manner” in which an application is filed. In any event, the fact that a lessee has not begun The Honorable Hilary Tompkins July 1, 2016 Page 21 production does not demonstrate a lack of “diligence in performing the lease activities.” Opinion 11. Diligence means “[e]arnest and persistent application to an undertaking; steady effort.” American Heritage Dictionary of the English Language 523 (3d ed. 1992). Given the extreme challenges involved in mining in the relevant areas, a lessee can certainly make a “steady effort” and yet not start production within the original lease term—a reality recognized by section 5 of the 1966 leases, which as discussed authorized the Secretary of the Interior to grant extensions of time for the beginning of production. 2. The Opinion suggests (p.11) that its interpretation of the 1966 leases is consistent with congressional intent. As discussed, however, Congress authorized mining in the Superior National Forest by means of “special legislation to meet a special situation with respect to investment losses resulting from cancellation of mining permits in the Minnesota forests.” S. Rep. No. 81-1778, at 2. Congress recognized the devastating effect that withdrawal of mining authorization can have on a company, and emphasized the importance of security in mining investments. See id. It thus stated that those companies “who have made investments for the mining and removal of mineral substances from the described lands should be given the privilege of renewing or retaining their permits or leases.” H.R. Rep. No. 792, at 2. For the government to suddenly reverse course after Twin Metals and its predecessors have held the leases for half a century—and invested $400 million in acquisition, exploration, technical development, and other preliminary activities to define the mineral deposit and prepare for future development of the resource—utterly fails to respect congressional intent in this regard.5 3. Citing no authority, the Opinion asserts (p.11) that Congress was concerned about ensuring “a fair return to the American taxpayer.” To begin with, as just explained what spurred Congress to act was concern about harm to mining companies. But even assuming the Opinion is correct on this point, that does not justify the Opinion’s conclusion. Taxpayers have received a fair return under the leases, and if the leases are renewed they would continue to do so. The leases provide that return via significantly higher-than-usual minimum royalties—pursuant to which Twin Metals and its predecessors have paid over $1.4 million to the taxpayers. 4. Relatedly, the Opinion rejects (p.13) Twin Metals’ explanation that the 1966 leases include higher-than-usual minimum royalty payments in lieu of a production requirement. But the authority the Opinion relies for this point, General Chemicals 5 The $400 million expenditure also refutes the Opinion’s suggestion that Twin Metals has not been “diligent” in preparing for production. The Honorable Hilary Tompkins July 1, 2016 Page 22 (Soda Ash) Partners, 176 I.B.L.A. 1 (2008), is inapposite because it involved starkly different contractual language (and mineral rights). The appellant in General Chemicals argued that under both a department regulation and the terms of the relevant lease, payment of minimum royalties satisfied the lease’s production requirement. See id. at 9. The Board disagreed based on a provision of the relevant lease stating that “[t]he authorized officer will reject an application for renewal of this lease if, at the end of the lease’s current term, sodium is not being produced.” Id. at 5. That phrase is a clear production requirement—but there is nothing remotely like it in the 1966 leases. If anything, then, General Chemicals undermines the Opinion’s conclusion, by showing that the department knows how to include a production requirement in its leases when it wants to, and that it did not do so here. The Opinion also states in a footnote (p.12 n.19) that “[t]he original leases do not mention minimum royalties as a way to fulfill the production requirement.” That omission is unsurprising given that there is no production requirement. Moreover, the Opinion’s implication that the original leases draw no link between production and minimum royalties is wrong: Section 2(c) states that the lessee agreed, “[b]eginning after the tenth year of the lease …, to mine each year from the area covered by the lease a quantity” that would produce a specified royalty, “or in lieu thereof to pay … as royalty” certain specified amounts. 5. Finally, the Opinion notes (p.12) that a 1986 memorandum by an assistant solicitor “concluded that the BLM is not required to renew the 1966 leases as a matter of right if there has been no production.” The assistant solicitor concluded that the original leases could be “extended … for a period not exceeding 10 years,” but that “[i]f production does not occur during th[at] period of extension, no further extensions will be allowed.” Att. to Solicitor’s Opinion at 1. For the reasons discussed above, that opinion is wrong. Section 5 of the 1966 leases does not place a ten-year limit (or any other limit) on the extensions of time that may be granted to start production, nor do the leases cap the permissible number of renewals in the event production has not begun (let alone cap it at one). The 1986 opinion is also tenuous authority indeed given that BLM itself disagreed with the assistant solicitor, renewing the leases for a second time in 2004 despite the absence of production—a step the assistant solicitor’s opinion said was prohibited. II. EVEN I F THE 2004 R ENEWAL FORMS CONTROL, TWIN METALS HAS A NONDISCRETIONARY RIGHT TO RENEW Even if the 2004 renewal forms had superseded the 1966 leases, the Opinion’s analysis would still fail. Because the renewal provision in the 2004 standard forms is The Honorable Hilary Tompkins July 1, 2016 Page 23 ambiguous, extrinsic evidence must be considered. And for the reasons set forth above, as well as in Twin Metals’ letter and memorandum to you dated January 26, 2016, the relevant extrinsic evidence confirms the parties’ intent: that Twin Metals has a nondiscretionary right to successive renewals. The 2004 forms provide for a “preferential right in the lessee to renew for successive periods of 10 years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.” The Opinion (p.7) interprets this provision to give BLM “discretion to decide whether to renew the leases.” This interpretation rests exclusively on the undefined phrase “preferential right.” That phrase, the Opinion asserts, is unambiguous, giving Twin Metals only the right to be preferred against other parties if BLM decides to continue leasing, and not an entitlement to renewal. Id. at 5, 7. That reasoning is flawed. As the D.C. Circuit has held: “The meaning of the term [‘preference right lease’] is, in fact, ambiguous.” Natural Res. Def. Council, Inc. v. Berklund, 609 F.2d 553, 557 (D.C. Cir. 1979) (per curiam), cited in Utah Int’l, Inc. v. Andrus, 488 F. Supp. 976, 983-984 (D. Colo. 1980). Indeed, a source on which the Opinion itself relies for its conclusion (p.5)—a 1982 Solicitor’s opinion—confirms that the phrase is susceptible to two different meanings. See Sodium Lease Renewals, 89 Interior Dec. 173, 177-178 (1982). There, the Solicitor acknowledged that “preference right” can refer either to a “noncompetitive ‘entitlement lease[]’” or the right to be “preferred against third parties.” Id. at 177, 178. The Opinion here does not discuss Berklund—which also noted that “the term [‘preference right lease’] has … been construed by the agency consistently for nearly 60 years to mean an automatic entitlement of a prospecting permittee who establishes the presence of commercial quantities of coal in the area covered by the permit,” 609 F.2d at 558-559 (emphasis added). The Opinion does discuss Sodium Lease Renewals, trying to distinguish it by arguing (p.7) that the analysis there “focused on the rights obtained in the initial leasing decision.” That is irrelevant. The question is whether the undefined phrase “preferential right” is “‘susceptible of more than one reasonable interpretation.’” Giove v. Department of Transp., 230 F.3d 1333, 1341 (Fed. Cir. 2000). Both Berklund and Sodium Lease Renewals show that it is.6 Where a provision in a contract is ambiguous, courts resort to extrinsic evidence to resolve the ambiguity by “determin[ing] the intent and meaning of the parties.” 6 These opinions also refute the Opinion’s erroneous suggestion (p.7 n.13) that Twin Metals is arguing that the term is ambiguous “merely because the parties disagree on the correct interpretation.” WILMERHALE The Honorable Hilary Tompkins July 1, 2016 Page 24 Sonthland Metals, Inc. v. American Castings, LLC, 800 F.3d 452, 459 (8th Cir. 2015); accord 11 thtz?ston on Contracts ?30:7 (an ambiguous contract must be interpreted in light of ?relevant extrinsic evidence of the parties? intent and the meaning of the words that they used?). For the reasons Twin Metals has already given, both here and in its prior memorandum the extrinsic evidence con?rms the parties? intent in executing the 2004 standard forms: that Twin Metals has a non?discretionary right to renewal. The Opinion says nothing to the contrary. Moreover, here again Twin Metals? interpretation accords with common sense. It was clear in 2004 that Twin Metals would not be able to start producing by 2014, within the ten-year renewal period. It would have been wholly irrational for Twin Metals nonetheless to have signed a renewal and spent hundreds of millions of dollars if the renewal did not ensure that it would have an opportunity to mine the minerals. Twin Metals Memo 10-11. Finally, even if extrinsic evidence did not resolve the ambiguity here, the rule of contra proferentem would apply. See, Mata v. United States, 114 Fed. Cl. 736, 746 (2014). Under that doctrine, ?[w]hen a dispute arises as to the interpretation of a contract contra proferentem requires that ambiguous or unclear terms that are subject to more than one reasonable interpretation be construed against the party who drafted the document.? Turner Constr. Co. United States, 367 F.3d 1319, 1321 (Fed. Cir. 2004). Here, of course, BLM drafted the 2004 standard forms (which were not negotiated with Twin Metals? predecessor). If any ambiguity remains after consulting extrinsic evidence, then, the phrase ?preferential right? must be construed against BLM, to mean a non-discretionary right to renewal rather than simply a right to be preferred over other parties in the event renewal is granted. CONCLUSION Solicitor?s Opinion M-37036 should be withdrawn. Yours sincerely, M79. Seth P. Waxman Enclosures I 1353; . 4wu'. mm.me m. 397'- cu ?Musd?higux?-tw?wa a - . -- i a 1130* .. I 67%11 .. POI . Mar 1956 '1 - - But-emu. lama ?mgamm . off. #5116.- Imam- 25,139: - - Maris-in - - I - gm. rem-tows .10th- - .. . mm; 1354; new. the? 311$ sistaint' 1360' 613%? '39. as?dqr?san?? with'fa?ch l?fh?er-g-?hB-??d? . wail,? .. Him} ?5:sz sf axipliiaa?imii? f0 ?t of mi?graljlaa .. i swanky-usu?ht Agenti'zf?j 533: I f3"? i Pan-?31 7 . - . .. Unin States I - ?'ri?aapaxhivi?s reigx?eaitn- - Qxhi'hms": e??swa, titw?; this gouge-lid; "1-3333; a; $634.19 oi" tim- inah???6.13 ?ara?hmr? my Whining 218m) m: ?by; ?bwiing$he if: Nubia land- ?sh-e: . mama Mimi-63? We 3?81. . .. . . warms-=9 pacii?ri?g .Jl-a??iai?' i . Elf-aw? .. ?g atafis?i?? '3 - 7:22; I I - . gala"th max-ma?a" Eithibi?15291; fh?iig? -. - - .amas ma rum-e 151'? . . . 39$ .9: @916? ?Paw. 19:53 .a'.me-mga. .- . . 1 $91; . - fMe?arandum manager sq;1d Minerals, . for '??aia?f 0f - OFFICE- Tn: -$tat?7birettbr (97o) the;assistant bruary-l, I988, th?i?ol 3% g?er??neu?d'in attord?hte wiih Tri?ihal +0 hgir.?asg.fiy?s, __H?m?ni?jindi?at?dgi? and a aih? ihe k?yaitv fat?fi QT '?ro -on 1n: Shdish?uidf?dt _Item 6-fec??me?d5 th? impasition of a ?rdduction reduif?m??i! simil?FIfb development" requirement intlud?d id all Fe?Eral C961 leases. ?As mantioned.?r?uiously, these high minimum deS?rye ?g inte?iiVe; i5 i?app??pri?i ?nch 3? quugkemeht as ?heh?n__ Hh?r?hh?df?ck-ieaSes in Our Digtrict cantain sucn~a '?ing lease OD. gwu??me*a tall: Betau?e-bf the highly m? .whichxconiain many referenc95'io?ren_ 5 'egistihg-tetmg and . new leaSe farm. If you have-any-quegixgngi gr-mpositgcn 0f minimum Royalties WiLn~ out recuirements :were with Inca went ahead w; the as$ujiuckj imcnt that i? would be . .. 0'1 1'1 "3 "Er-'1 .1 (rum 5: .3. .., . Lag.oporationu in tne a?ea qnired to Operations an informed that mineral leases 9n the Same area are generally fg?Vmg??3?? -influ?nned by-many factars.m du??ionWand-the abili?y 1?3? insoLun spenduiunag premiumu -- areag_for Qw Accordingly theSe matters are net? 9 Side-(tilt: ?w-mlcf?; Willi. *an.e??nomi? ?s?ata a?d?myivate lands in? '1 wiijitn?9ndicTiTpi?2di. ?ni?h ?33 total in Qf'Gne milii?n_ vaern? 5f the .ig?33y?;op1ng Shale-. We are 0 qomplete_the_work preliminarg_?@ ?ne develegme?t-a?? t9 . 96? thisi??eai-= I .minimumiprdan?ti?anK?f' 6&3 iin??ng ?me?ge? ?hfbf ?7a?3?h??l?aSES7arefv - isftim? or it$.ability? ,t?iri?a??g?g?dz 'preS??t7?irq The-peridd gg?f?mggm?gumil - .. 4 Mamcfandum I To: State . =Fromi Assi?tantjp mjget5?6r Energy and Hiaerals; Milwaukee' Leases i3 issued}: to the International :Nic?k?el Thefse l?ase's? granted. to the -ni?kelgr.a?ds associated: minerals .from (53113. the USDA, Service. Mineral leases-a. corporation (ERGO) j; I I: I I. -?anagem??t16?"these"1ands ta your irecommenda?ion?:n?gi it" renewal-g of the] leases . 'i'f proud-mg; the following .9f the I. l. g?m?nt Service? IN REFER 5T0: I is daunties; MinnEQOtai ?The sur?a?e_ the corpgration 7 .nq' .prcducti-on Was realized from the" In .r?e'v -. shguldjrequirE' wit-H; the. auhe;r1_. I 'r?i??nsi5t?nt with the requirements set ?brin at 43 GER I_2(b) LEGO subuld'B? regainedzby.lease stipulation oriconditionyo? reneWal px??ention_?ith?r le??ed pxdperty by is H?7jyi? . - er acre persyear; and.shauld he grad d.aga *y.a?crue ta - $h?uld remain. at per 1e3aSe until fits Iatime; b6nd-_ for each inc-rean .120 a: level Ieg?f?b payment. of Z, ;a?a ,1 i .wf I - Exhibit I i I CE . .- 350' Sire-(GEgri?iEpTNQ;;2;59635h5f558 Pr?ference'Right'Leases "u??e-Nev Y?fk CI. 0. O. nc? Right Lease ?ghEWalS .uTra?_Lip?edj?6r15ig?ature MNES 1352 and MNES i353 the exi?ti TL ?=f?fms ate transmitt?de you: ComplEtioh?a?d 30I?ays. tFaiLd?e to c?mply bf this t?h?wal . d??iSiOHVWill BBCOWE fihal330 "lfto-thezl?terior Edard.of Land Appeals, Office bf an appeal 1 ydut NQEice of Appeal . .. 0f5r?aS??Sw5 i-i. .7 serwedldn-the foice- the . sgna a . . onsj-Wfitten arguments} or briefs t0 the foiee an'ag?Ea1, thef?-muSt be strict:' compliance Wi?h the ami Deputy'state-Directar . for'Minefaeresources 2 Enclosures . .i 5':5 a - (a ?3 - - - . :7 LL. 2 - i T?c?ditienzs and skim: Shave-Ibie?hmiemd; and if 1353*?! .isfuiajg?ct. mm 25%:15 any; - *0 . aim: Sze-M?g-Mfge] . mm? 'wk-M Mum-v Win?"- . . . nt.?f _$?rvioe Regimn Kilw??k?h;;?i??0??in 53203- - w; .- 282a DEW Jim 3? m: I. - as inc. Hm ixgzaaternas?ates=or?1?e. Bataan cf our ?g dongent t9 ?ne ranewal_?f the ahave ngted'l?ab??lf?r _:Tpgrigd, 'Eh? and Go??iti?n? are I the Swarm? i?a-tia?ai Famst. Elan: . 'i 2:15:9933312' da'tsad- June 6: 4391;33:91? which a; gpur bffiae?' any areag i?en?ifiad-in Eh? - ?term? Again-ma A?pro-priation Mt. United States Forest Washington Of?ce 20] 14th Street, SW Department of Service Washington, DC 20250 Agriculture File Code: 2670 Date: DEC ?9 mm Neil Kornze Director Bureau of Land Management 1849 C. Street NW, Rm. 5665 Washington, DC 20240 Dear Director Kornze: On June 3, 2016, the Bureau of Land Management requested the Forest Service (FS) provide a decision on whether it consents to renewal of two leases currently held by Twin Metals Minnesota (TMM) for lands within the Superior National Forest (SNF) in northern Minnesota. These two Preference Right leases, MNES-01352 and lie directly adjacent to and within three miles ofthe Boundary Waters Canoe Area Wilderness (BWCAW), respectively. The PS has considered the environmental conditions, nature and uses of the BWCAW by the public and tribes, economic bene?ts of mineral development and wilderness recreation, potential environmental consequences of mineral development on the leases, public opinion, rarity of copper-nickel sul?de ore mining in this region, and current laws and policy to inform the agency?s decision. Based on this analysis, I ?nd unacceptable the inherent potential risk that development of a regionally-untested copper-nickel sul?de ore mine within the same watershed as the BWCAW might cause serious and irreplaceable harm to this unique, iconic, and irreplaceable wilderness area. Therefore, the FS does not consent to renewal of Preference Right leases MNES-OIBSZ and MNES-013S3. A summary ofthe basis for my decision follows. The BWCAW Is an Irreplaceable Resource The 1.1 million acre the BWCAW is located in the northern third of the SNF in Minnesota, extending nearly 200 miles along the international boundary with Canada. It is the only large- scale protected sub-boreal forest in the lower 48 United States. The SNF holds 20 percent of the National Forest System?s fresh water supply. These healthy forests with extremely high water quality also provide a host of watershed bene?ts, such as purifying water, sustaining surface water and ground water flow, maintaining ?sh habitats, controlling erosion, and stabilizing streambanks. In addition to the existing high quality of the waters, the dramatic hydrogeology and interconnectedness of forests, lakes, streams, and wetlands make the region unique and susceptible to degradation. The BWCAW includes nearly 2,000 pristine lakes ranging in size from 10 acres to 10,000 acres, and more than 1,200 miles of canoe routes. With Voyageurs National Park and Quetico Provincial Park, BWCAW is part of an international network of conserved land and wilderness. Quetico Provincial Park, located in Ontario, Canada, Caring for the Land and Serving People PnntedortI-tecycledl?aper Neil Kornze 2 lies within the same Rainy River watershed as the BWCAW. Quetico Provincial Park is an iconic wilderness class park, world renowned as a destination for backcountry canoeing with over 2,000 lakes and over one million acres of remote water-based wilderness. Together, Quetico and BWCAW form a core wilderness area of over two million acres. Located northwest of the BWCAW, Voyageurs National Park was established by Congress in 197'] to preserve and interpret fur trade history and the importance ofcanoe travel routes in northern Minnesota. The park is at the southern edge of the boreal forest, and lies within the same Rainy River watershed as the BWCAW. It features spectacular canoeing and boating routes along with hiking trails exploring portage routes used by American Indians, early for traders, and gold miners. Approximately 240,000 people visit Voyageurs National Park every year. Just south ofthe BWCAW the Laurentian Divide separates three river systems: one ?owing north to Hudson Bay; the Laurentian system flowing eastward towards the Atlantic through the Great Lakes, and the Mississippi system, flowing south to the Gulf of Mexico. two leases subject to F8 decision are located in the Rainy River Watershed, which drains into the BWCAW, Quetico Provincial Park and Voyageurs National Park. There are four HUC (Hydrologic Unit Code} -10 sub-watersheds in the area of the leases and potential project site? Birch Lake, Stony River, Isabella River and Kawishiwi River. Surface water flows north and west from Birch Lake and the Kawishiwi River watershed through Kawishiwi River and several lakes into BWCAW. Water from the Stony River and the Isabella River watersheds ?ows into the Birch Lake watershed. The Natural Environment The SNF provides abundant and diverse habitat for thousands ofbreeding, wintering, and migratory species ofterrestrial and aquatic wildlife, including over 100 species of migratory breeding birds in a zone with North America?s greatest diversity of songbirds and forest- dependent warblers. The SNF also has one of the largest populations of gray wolves outside of Alaska, common loons, and moose. It has popular game species such as walleye, trout, deer, ruffed grouse, fisher, and beaver; and numerous rare species such as great gray owl, black- baeked woodpecker, ram?s-head Iadyslipper and other orchids, and lake sturgeon. The SNF also has a great diversity and abundance of species common to the boreal forest bieme, including three-toed woodpecker, boreal owl, boreal chickadee, lynx, moose, and grizzled skipper butter?y. All these species provide a wide array of crucial ecological, social and economic bene?ts and uses - from big game hunting and fishing to wildlife watching and research. The BWCAW is also home to three threatened or endangered species: Canada lynx, northern long-cared bat, and gray wolf. Over the decades the BWCAW has been protected, it has provided refugia for species under stress or with declining populations, such as moose. In the face of climate change, the BWCAW may be critical to the continued existence of these species within Minnesota. Cultural Resources and Treaty Rights Associated with the BWCAW The BWCAW region has been home to Native Americans for millennia. The Minnesota Chippewa Tribe and three associated Bands the Grand Portage Band, the Fond du Lac Band, Neil Kornze 3 and the Bois Forte Band -- retain hunting, ?shing, and other usu?'uctuary rights throughout the entire northeast portion of the State of Minnesota under the 1854 Treaty of LaPointe. In the Ceded Territory all Bands have a legal interest in protecting natural resources, and the FS shares in federal trust responsibility to maintain treaty resources. Many resident Ojibwe, who ceded lands that became the BWCAW, continue to visit ancestral sites and traditional gathering and ?shing locations within the wilderness. Tribes rely on natural resources like ?sh, wildlife and wild plants such as wild rice for subsistence and to support them spiritually, culturally, medieinally, and economically. The northern border of the BWCAW is situated along a winding, 120-mile canoe route known locally as the Border Route, or Voyageurs I-lighway. This historic canoe route, bordered on the north by Ontario?s Quetico Provincial Park, on the east by Grand Portage National Monument, and on the west by Voyageurs National Park, was utilized extensively by pie-contact Native Americans, European fur traders, and tribal groups such as the Dakota, Cree, and Ojibwa. There are approximately 1,500 cultural resource sites identi?ed on National Forest System (NFS) lands within the BWCAW. Many more cultural resources are believed to exist within the wilderness; as of2015 only about 3 percent ofthe landscape has been intensively surveyed. Cultural resource sites include historic Ojibwe village sites, French and British period fur trade sites dating from 1730-1830, Woodland period village sites {2,000-500 years old} situated on wild rice lakes, Native American pictograph panel sites, Archaic period (8,000~3,000 years old) sites with copper tools, and large Paleoindian quarry sites such as those recently discovered on Knife Lake where Native Americans shaped stone tools up to 10,000 years ago. Wilderness Designation The irreplaceable natural qualities of the BWCAW were recognized nearly a century ago in 1926 when the Department of Agriculture ?rst set aside the area to preserve its primitive character. The Wilderness Act of 1964 of?cially designated land inside today?s BWCAW as part of the National Wilderness Preservation System. The Boundary Waters Canoe Area Wilderness Act of 1978 expanded the wilderness area to 1,090,000 acres. The 1978 Act also established a separate Boundary Waters Canoe Area Mining Protection Area (MPA) to protect existing natural values and high standards of entdronmental quality from the adverse impacts associated with mineral development. Sec. 9, Pub. L. 95-495, 92 Stat. 1649, 1655 Congress provided very clear direction regarding the purposes of the BWCAW and MPA: (1) provide for the protection and management of the ?sh and wildlife of the wilderness so as to enhance public enjoyment and appreciation of the unique biotic resources of the region, protect and enhance the natural values and environmental quality of the lakes, streams, shorelines and associated forest areas of the wilderness, (3) maintain high water quality in such areas, (4) minimize to the maximum extent possible, the environmental impacts associated with mineral development affecting such See. 2, Pub. L. 95-495, 92 Stat. 1649 (197?8). Neil Kornze 4 The BWCAW Act bans authorization of federal mineral development within the BWCAW and MPA. However, the BWCAW Act does not govern federal mineral development on other NFS lands. Instead, the authorities governing federal mineral development on SNF lands outside the BWCAW and MPA are 16 U.S.C. 508b and Section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099-1 100. A decision withholding FS consent to the lease renewals is fully consistent with this statutory framework. World Renowned Research Laboratory Because of its unique quality and character, the BWCAW is a living laboratory supporting dozens of research projects each year. Scientists of all disciplines rely on scarce areas like the BWCAW to support scientific inquiry and serve as control areas in the study of water quality, climate change effects, and natural ecological processes. The BWCAW is internationally known as a laboratory for ground-breaking research on forest fires, landscape patterns, biodiversity, wildlife, soils, nutrient cycles, other ecosystem processes, lakes, climate change, and recreational use of wilderness. This body of work is widely cited by scientists around the world. As an example, Miron llinselman?s work on forest fires in BWCAW, published during the 1970s- 1990s, has been cited in more than 1,700 published studies. More recent BWCAW-related studies by Frelich and Reich have already been cited in 1,300 studies in 7'0 peer-reviewed science journals published in 20 countries on 4 continents. New results from BWCAW research are regularly presented at prestigious international meetings on scientific study. Recreation Values ofthe BWCAW The BWCAW is one of the most visited areas in the entire National Wilderness Preservation System, and the System?s only large lake-land wilderness. It provides an experience unique within the continental United States. The thousands of lakes and hundreds oi?miles of streams comprise about 190,000 acres (20 percent) of the surface area and provide for long distance travel by watercraft. The opportunity to pursue and experience expansive solitude, challenge and personal immersion in nature are integral to the BWCAW experience. Winter BWCAW visitors enjoy opportunities for skiing, dog-sledding, camping and ice fishing. Fishing is one of the most popular BWCAW activities throughout the year due to the range of species found in its waters, including smallmouth bass, northern pike, walleye, and lake trout. Social and Economic Environment TMM's leases are. located near Ely, in St. Louis and Lake Counties. The population of St. Louis County is concentrated in and around the City of Duluth, approximately 100 miles south of the lease area. The Iron Range communities of Ely, Hibbing, and Virginia are smaller secondary population centers. The 2010 U.S. Census shows area population has declined by nearly 10 percent since 1980, while Minnesota?s population as a whole has increased by more than 30 percent. At least some of this population decline may be attributable to a loss ofiron industry jobs. The Fond du Lac, Grand Portage, and Bois Forte reservations are exceptions to the regional trend - populatioas there have increased since 1990. The median income of area communities is signi?cantly lower than that of the State as a whole. It is also the case that the median income of the area?s secondary population centers is generally Neil Kornze 5 lower than that of St. Louis County as a whole. In some of these communities, such as Ely and 'I?ower, the median household income is more than half of the state median. In many individual communities, poverty rates are as high as or higher than statewide (with the exceptions ofthe secondary population centers of Hoyt Lakes, Soudan, and Tower). Mining employment in St. Louis County declined from more than 12,000 jobs in 1930 to approximately 3,000 jobs in 2009. However, since mining employment can vary greatly from one year to the next, this decline does not represent a steady reduction. Mining-related employment is volatile and fluctuates due to changes in the market price ofeommodities being extracted. During the same time period, service-related employment (which includes the North American Industry Classi?cation System categories for professional services, management, health care, education, artsfentertainment, and accommodationftood) in the study area has increased substantially, mirroring broader state and national trends. Tourism is rooted in the region?s unique recreation opportunities such as the BWCAW, and is broadly dependent on hunting, ?shing, boating, sightseeing, and wilderness experiences provided by the region?s hi gh-quality natural environment. Industries associated with tourism (arts, entertainment, recreation, accommodation, and food services) account for nearly 13 percent of all employment in St. Louis County. The landscape and recreational opportunities attracts retirees and new residents. Fishing in Minnesota lakes and rivers generates $2.8 billion in direct annual expenditures and contributes more than $640 million a year in tax revenues to the treasuries ofthe state and federal governments. The BWCAW itself has provided millions of visitors with a unique water- based recreation experience and provided an economic driver to local communities and the state of Minnesota. Leases MN 138-01352 and MNES-01353 are surrounded by 29 resorts, out?tters, campgrounds and hundreds of homes and cabins. Similarly, Voyageurs National Park and Quetieo Provincial Park both support vibrant tourism industries. In 2015, 150,000 people visited the BWCAW. Economic benefits generated from recreation in the BWCAW average approximately $44.5 million annually. Continued economic returns rely on sustaining BWCAW's natural resource quality and wilderness character. The Role with Respect to l-Iardrock Mineral Leases two leases include a mixture lands reserved from the public domain and acquired NFS lands, with the vast majority being reserved lands. 16 U.S.C. 508b applies to reserved NFS lands and provides in pertinent part: ?the Secretary ofthe Interior is authorized to permit the prospecting for and the development and utilization of [hard rock] mineral resources: provided, that the development and utilization of such mineral deposits shall not be permitted by the Secretary of the Interior except with the consent of the Secretary of Agriculture." Section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099, applies to acquired NFS lands and provides in pertinent part: Neil Kornze 6 ?The functions of the Secretary of Agriculture and the Department of Agriculture with respect to the uses ofmineral deposits in certain lands pursuant to l6 U.S.C. 520 are hereby transferred to the Secretary ofthe Interior and shall be performed by him or by such officers and agencies of the Department of the Interior as he may designate: Provided, That mineral development on [lands acquired pursuant to the Weeks Act] shall be authorized by the Secretary of the Interior only when he is advised by the Secretary of Agriculture that such development will not interfere with the primary purposes for which the land was acquired and only in accordance with such conditions as may be specified by the Secretary of Agriculture in order to protect such purposes.? In pertinent part, 16 U.S.C. 520 provides: The Secretary ongriculture is authorized, under general regulations to be prescribed by him, to permit the prospecting, development, and utilization of the mineral resources of the lands acquired under the Act of March first, nineteen hundred and eleven, known as the Weeks law, upon such terms and for speci?ed periods or otherwise, as he may deem to be for the best interests of the United States.. .. Under the Weeks Act, 16 U.S.C. 515, the Secretary of Agriculture is authorized to purchase lands for the purposes of "the regulation of the flow of navigable streams or the production of timber." The Department of the Interior adopted regulations providing for disposal of mineral resources pursuant to 16 U.S.C. 508b and Section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099, by means ofa leasing system governed by 43 CPR. part 3500. 43 C.F.R. 3501 . 1) (3). The Department of the Interior?s regulations provide that BLM's issuance of leases for hard rock minerals, including deposits of copper, nickel and associated minerals, on lands administered by another surface managing agency is ?[s]ubject to the consent ofthe surface managing agency," 43 C.F.R. 3503. I 3(a) which in the case lands is the United States Department of Agriculture, Forest Service. 16 U.S.C. 1609(a). Specifically, 43 C.F.R. 3503.13(a) relates to lands acquired under the Weeks Act while 43 C.F.R. 3503.1 3(e) relates to the reserved lands. On March 8, 2016, Department of Interior Solicitor Hilary Tompkins issued memorandum M- 37036 (M-Opinion) in response to a BLM request asking "whether it has the discretion to grant or deny Twin Metals Minnesota?s pending application for renewal of two hardrock preference right leases in northern Minnesota." The M-Opinion advises the BLM determining that, ?Neither of the statutory authorities under which ES-01352 and are issued?section 402 of Reorganization Plan No.3 of 1946, 60 Stat. 1097, 1099-1100, and 16 U.S.C. 508b? creates an entitlement to a lease or otherwise mandates the issuance of leases? and the contrary, both authorities expressly condition leasing on surface owner consent (in this instance the Forest Service) and thus are discretionary.? Therefore, on June 3, 2016, the BLM advised the Forest Service: light of the legal determination that the government has discretion in granting or denying the TMM lease renewal application, in accordance with 43 CFR 3503.20, 16 U.S.C. 503b, Section 402 of Reorganization Plan No. 3 0111946, 60 Stat. 1097, 1099, and 16 USC 520, the Neil Kornze 7 BLM requests that the USDA Forest Service provide, in writing, a decision on whether it consents or does not consent to the renewal of the leases." Irrespective of the M-Opinion, the consent to any hardroek lease renewal is mandated by 16 U.S.C. 508b and Section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099. Pursuant to 16 U.S.C. 508b, the Secretary of Agriculture's right to consent to "the development and utilization of [hardroek] mineral resources" is coextensive with the Secretary of the Interior's authority to permit "the development and utilization of [hardrock] mineral resources.? The fact that the Secretary of the Interior has implemented the authority 16 508b confers to permit "the development and utilization of [hardrock] mineral resources" by means ofa regulatory scheme containing a number ofdecision points simply means that the Secretary of Agriculture's statutory consent authority with respect to hardrock mineral development and utilization authority expressed in terms identical to the Department of Interior's authority similarly extends to the same universe of decision points providing these decisions have the potential to affect NF surface resources. Whereas pursuant to Section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099, the Secretary of the Interior's authority per 16 U.S.C. 520 "to permit the development of the [hardrock] mineral resources of the lands acquired under the Weeks is contingent upon the Secretary ongriculture's determination that "such development will not interfere with the pritnary purposes for which the land was It is well established that mineral "development" is authorized by a lease, whether it is one issued in the ?rst instance or a subsequent renewal. Indeed, the M-Opinion explicitly recognizes that "the entire purpose" ofa mineral lease is "for the lessee to develop the minerals. Another M-Opinion finds that since the 1970's hardrock prospecting permits for NFS lands, which are the precursor for the issuance of hardrock mineral leases including MNES-01352 and MNES-01353, have uniformly included the condition that "no mineral development of any type is authorized hereby." ltd-36993, Options Regarding Applications for Hardroek Mineral Prospecting Permits on Acquired Lands Near a Unit of the National Park System (1998 WL 3515279?? (April 16, 1998)). rl/fr'ssotn'r' Coalitionfor the Environment. 124 lBl..A 21 l, 217 (1992) ("mineral developtnent may only be authorized upon issuance ofa [hardrock] lease); John A. Nefedfy Contra {.?ostn Youth Association. 80 IBLA 1' 4, 26 (1984) (concurring opinion) (development under a hardrock lease "is a logically foreseen result of successful prospecting"). So again, the fact that the Secretary of the Interior has implemented the authority Section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099, confers to permit the development of hardrock mineral resources on lands acquired pursuant to the Weeks Act by means of a regulatory scheme containing a number of decision points simply means that the Secretary of Agriculture's consent authority with respect to hardrock mineral development authority expressed in terms identical to Interior's authority similarly extends to the same universe of decision points providing those decisions have the potential to affect NFS surface resources. Ofcourse, under Section 402 of Reorganization Plan No. 3 of 1.946, 60 Stat. 1097, 1099, the Secretary of Agriculture cannot block mineral development absent a ?nding that "such development will interfere with the primary purposes for which the land was acquired. Here, since the small percentage of acquired lands subject to TMM's two leases were purchased in accordance with the Weeks Act, those primary purposes were "the regulation of the flow of navigable streams or the production of timber." As discussed below, TMM hopes to construct Neil Kornze 8 and operate an underground mine on its two leases not a strip mine. At this juncture the FS consequently cannot definitively say that the mineral development which TMM hopes to conduct on its leases will interfere with those purposes. Uncertainty about this question is of little import, however, since the lands subject to TMM's leases are an admixture of lands reserved from the public domain and acquired lands with the reserved lands being in excess of 90% of the acreage included in both leases. Further, there is no reason to believe that TMM's mineral development exclusively could be con?ned to the acquired lands. The FS's conclusion that the agency should exercise the absolute discretion that 16 .S.C. 5033b confers upon it to withhold consent to the renewal ofTMM's leases insofar as the reserved lands are concerned accordingly has preclusive effect with respect to the lands acquired pursuant to the Weeks Act. The Role ofForest Plans The PS develops land and resource management plans to provide a framework that protects renewable surface resources. This framework balances both economic and environmental considerations to provide for multiple uses and sustained yield renewable surface resources. The 2004 SNF Plan at states: "Exploration and development of mineral and mineral material resources is allowed on NFS land, except for federally owned minerals in designated wilderness and the Mining Protection Area.? The Plan also provides that the FS will manage the BWCAW in a manner that perpetuates and protects its unique natural ecosystems, provides an enduring wilderness resource for future generations, and provides opportunities for a primitive and unconfined recreation experience. Although forest plans provide a framework. they do ?not authorize projects or activities or commit the Forest Service to take action" (36 CPR. Instead, forest plans provide broad management guidance and ensure all program elements and legal requirements are considered prior to critical project level decisions, such as a decision to authorize timber harvesting, grazing or mining operations. As the Supreme Court has determined, forest plans: . .do not command anyone to do anything or to refrain from doing anything; they do not grant, withhold, or modify any formal legal license, power, or authority; they do not subject anyone to any civil or criminal liability; they create no legal rights or obligations. Thus, for example, the Plan does not give anyone a legal right to cut trees, nor does it abolish anyone?s legal authority to object to trees being cut. Ohio Forestry Ass v. Sierra Club, 523 US. ?26, 733 (1998).? Following Forest Plan approval, proposals are evaluated on a case-by-case basis. Proposals inconsistent with Plan direction may not be authorized (16 U.S.C. ?1604(i)). However, a proposal might reveal the need to amend plan direction that would otherwise stand as an impediment to a proposal. Yet a proposal's consistency with applicable Plan standards and guidelines is not an assurance that the proposal will be authorized. The F8 retains discretionary judgment concerning overall multiple use, sustained yield management of NFS lands. Further, denial of a proposal consistent with applicable Plan standards and guidelines does not require alteration of the applicable direction. Neil Kornze 9 The SNF Plan does not prohibit mineral development within the management area where leases are located. But the FS is not bound to approve TMM's application for renewal of its leases either. Neither the statute nor regulations governing forest plans mandate the approval ofproposals consistent with a Forest plan. Moreover, as discussed above, pursuant to the express terms of 16 U.S.C. and Section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 109.9, the FS retains discretion to withhold consent to TMM's lease renewals given the leases' purpose is mineral development. as recognized by the M-Opinion. Speci?cally, the PS denial of consent to TMM's lease renewals is warranted for the reasons set out in the M-Opinion and also because the bar in both 16 U.S.C. 508b and Section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097', 1099, against mineral development absent the consent of the Secretary of Agriculture applies with equal force to the initial issuance of the lease and any renewal of that lease. Accordingly, the FS may consider any potential negative environmental impacts that might ?ow from mineral development on those leases and their effect on future national forest conditions. National Environmental Policy Act (NEPA) Applicability NEPA ensures federal agencies take into account signi?cant environmental matters in their decision making, and that they disclose to the public that the agency has considered environmental concerns. An environmental impact statement (HIS) must be prepared when an agency proposes to undertake a major lederal action that may signi?cantly affect the quality of the human environment. In summary, NEPA tasks agencies to assess changes in the physical environment caused by the action it proposes to authorize. Council on Environmental Quality (CEQ) regulations implementing NEPA are clear that a proposal ?exists at that stage in the development ofan action when an agency subject to the Act has a goal and is actively preparing to make a decision on one or more alternative means of accomplishing that goai and the effects can be meaningfully evaluated.? 40 CPR. 1508.23. This provision is reinforced by CEQ's instruction that major federal actions ?includes actions with 40 C.F.R. 1508.13. FS NEPA regulations establish a four part test for determining when NEPA obligations arise, including whether ?[t]he Forest Service has a goal and is actively preparing to make a decision on one or more alternative means of accomplishing that goal and the effects can be meaningfully 36 CPR. Thus, when the FS declines to authorize a private application, the mere contemplation of that application does not constitute a federal proposal and the is not required to conduct an environmental analysis under NEPA. As it is my determination not to consent to issuance of lease renewals based on the application before the agency at this time, preparation of an environmental analysis is not required. As further explained below, no signi?cant environmental effects will occur as a result of the agency?s no-consent determination. This outcome is entirely in keeping with NEPA and its implementing regulations. Situations like this pose the unusual question of whether NEPA requires consideration of environmental effects of federal actions that foreclose development or use of natural resources. NEPA does not require a federal agency to consider effects arising from an action it has declined to allow third parties to undertake when that does not represent change in the physical environment caused by the federal Neil Kornze 10 action itself. In other words, only federal actions with significant environmental effects trigger NEPA's detailed statement requirement. Actions which do nothing to alter the natural physical environment and maintain the environmental status quo are not subject to NEPA. The F3 routinely prescreens non-mineral, special use authorization applications and agency regulations direct that non?conforming uses do not need to receive further evaluation and processing. See 36 CPR. 251.54ie) The F8 does not have regulations governing consideration ofdiscretionary mineral leasing applications. but agency practice is consistent. As recently as 2014. Regional Forester Atkinson rejected a request for consent to a prospecting permit on the Hiawatha National Forest without preparing a NEPA document. Diverting scarce budgetary resources to prepare NEPA documents for proposals that will not move forward trivializes NEPA and diminishes its utility in providing useful environmental analysis for actions that the agency accepts and actively evaluates for approval. In these circumstances. the Court of Appeals? Eighth Circuit holding that a decision to refrain from using herbicides as a method of vegetation control is not a "proposal or action to which NEPA can apply? pertains. Minnesota Pesticide Information and Educ. inc. v. Espy, 29 F.3d 442. 443 (8th Cir. 1994). NFS Land Management Perspectives Halfol'a century has passed since leases were issued in 1966. The original leases were issued prior to statutes such as the National Historic Preservation Act of 1966, National Environmental Policy Act of 1969. Clean Water Act of 1972, Endangered Species Act of 1973. National Forest Management Act of 1976. and Boundary Waters Canoe Area Wilderness Act of 1978. Without these laws in place the environmental consequences of potential ?commercial development [of the nickel and copper deposit] by a large-scale mining operation? originally envisioned by BLM in 1956 on what are now leases received markedly less consideration in comparison with current requirements. Given changes in policy and information availability, it is not unreasonable to anticipate a higher level of interest and concern regarding these consequences than when leases were originally issued. as demonstrated in the examples to follow. In 1991 the Minnesota Department ofNatural Resources recognized the value ofthe BWCAW for its scenic beauty and solitude by establishing a State Mineral Management Corridor. In light ofsurface water ?ow and recreational uses, no surface disturbance or state leases may be offered in the Corridor. The State Mineral Management Corridor overlaps with federal lease MNES- 1353. The federal relationship with Native American tribes has also evolved signi?cantly over the 50 years since the TMM leases were issued. The PS has a legal obligation to acknowledge rights of Tribes and tribal members, including off-reservation rights to hunt. ?sh, gather and continue cultural and spiritual practices. Such recognition did not occur until the late 1970s when Indians began to assert their rights to off-reservation resources in federal court, including those rights to ?sh and gather wild rice. Lac (.Toztt'ie Or'eiftes Band afLake Superior Chippewa Indians v. State of Wis, 653 F. Supp. 1420 (WI). Wis. 1987) (LCD Lac Comte Drafter; Band ofLake Neil Kornzc 1 Superior Chippenw Indians v. State ofl?Vis.. 668 F. Supp. 1233 (WI). 1Wis. 1987) (LCO 1W). No documentation suggests that consultation occurred or treaty rights were considered in the 1966 decision to grant the two leases. Finally, since the last renewal of leases in 2004, we have gained experience with copper sul?de ore mining in different parts of the country. It is clear that these types of mines pose substantial risk of failure and environmental mitigation and remediation technologies are limited, and often ineffective, as discussed later in this letter. Awareness of the environmental effects of mining, specifically those from copper-nickel mining, has increased since 2004. While economic values are important to area communities and the nation, preserving Wilderness Areas and their associated qualities also have national and local support and precedent. Evaluation of the Present Lease Application In light of the M-Opinion?s legal conclusion that TMM does not have the right to automatic renewal ofits leases WES-01352 and MINES-01353, on March 8, 2016 the BLM noti?ed TMM that the agency would review the company?s lease renewal application using the same criteria that are employed in deciding whether to grant initial hardrock mineral leases. The letter also speci?ed that as part of its consideration of lease renewal application, the BLM would ask the FS whether it consents to the leases? renewal. In response to the BLM's June 3, 2016 letter making that request ofthe PS, the agency began considering whether to consent to the renewal of leases based upon the agency's recognition that it has full discretion to consent or withhold consent to the renewal of two leases. As noted above, CEQ and FS NEPA regulations make clear that an application must be accepted by the agency as a proposal before NEPA obligations are triggered. At this time, the PS will not consent to lease renewal based on the submitted application and therefore does not have a goal that it is actively pursuing to authorize such activities. For this reason, no NEPA analysis is required. Acid Mine Drainage Bedrock geochemistry in northeastern Minnesota plays a large role in the low buffering capacity of the lakes and streams in the region. Both the Minnesota Pollution Control Agency and the Environmental Protection Agency (EPA) have identi?ed the surlace waters of northeastern Minnesota as sensitive to changes in pH, acid deposition, and acid runoff. Unlike surface waters bounded by carbonate bedrock, or relatively thick carbonate rich glacial till where neutralization of acid runoff occurs through dissolution of limestone and exsolution of carbon dioxide from water, the waters of northeastern Minnesota are largely underlain by igneous and metamorphic bedrock with thin overlying soils and surficial deposits with little acid neutralization capacity. A risk ofmining development is acid mine drainage (AMD). AMD generally occurs when sul?de minerals present in ore bodies and rock overburden are exposed to air and water. The exposure to air (oxidation) and water (hydrolysis) creates sulfuric acid, which subsequently increases water pH and leaches harmful metals such as copper, zinc, lead, cadmium, iron and nickel. PS data indicates between 20,000 and 50,000 mines currently generate acid on lands managed by the agency. Negative impacts from these mines affect 8,000 to 16,000 km of Neil Kornze l2 streams. While AMD can originate naturally from the ore body itself, its likelihood is dramatically increased by the generation of any mining product (stockpiles, overburden, and tailings) exposed to air and water, and can continue for decades. llardrock mines in sul?de bearing mineralization are known worldwide for producing AMD that requires continuous management and perpetual water treatment. Production of AMD is prevalent in all mining operation elements: construction, waste rock, tailings, and mine structures such as pits and underground workings. Acid drainage is one of the most signi?cant potential environmental impacts at hardrock mine sites. Water from a mine site could potentially enter streams and lakes through wastewater treatment plant discharges, uncollectcd runoff and leakage, concentrate spills, pipeline spills, truck accidents, spillway releases, tailings dam failures, water collection and treatment operation failures, and post-closure failures. All carry some risk to the environment. The magnitude and setting of a failure would drive the significance of the environmental risk and its potential impact. The AMD increases lake and stream acidity, with potential risks to aquatic life including sport ?sheries. A decline in water quality and aquatic species would have a negative effect on recreational visitors to the BWCAW. For example, the USGS estimated that in 2010 approximately 3,000 miles of streams degraded by acid mine drainage led to approximately $67 million in lost sport ?shing revenue each year. Mining accidents are inherently unpredictable and can result front geotechnical failures or human error. Other circumstances that can affect the likelihood of mining failures or discharges include changing metals markets, ?nancial crises, political events, and climate change. In addition, climatic trends affecting the frequency and magnitude of storm events and seasonal temperatures could lead to unpredicted environmental changes in vegetative composition, water quality and quantity, and wildlife habitat making the environment more susceptible to damage resulting from mining operations. There is a direct flow of water from the lands subject to TMM's leases to the BWCAW. Speci?cally, the leases are located within the South Kawishiwi River Watershed and the Birch Lake Watershed which both are catchments of the Rainy River Watershed. Water flows from the lands embraced by the northern lease into the South Kawishiwi River which in turn flows into Birch Lake. Water from the lands embraced by the southern lease also flows into Birch Lake and Birch Lake empties into the main Kawishiwi River and then into the BWCAW. leases overlay the Duluth Complex known for nickel-eopper-platinum group element ore deposits. Due to the inherent sul?de chemistry of this ore type, mining facilities and byproducts can produce signi?cant amounts of acid. Consistent with the footprint and infrastructure of similar mines, as well as publieally available preliminary information from TMM about this specific site, potential project area could include underground mine(s) producing mainly copper and nickel, plus smaller amounts of other metals. project would require a concentrator facility (potentially 1-2 miles west of the mine(s)), a tailing storage facility (potentially 13 miles southwest of concentrator}, and connecting utility corridors. The utility corridors would include roads, rail lines, power transmission lines, natural gas pipelines, tailing Neil Kornze and concentrate pipelines, and water pipelines. TMM's Pre-Feasibility Study also reveals that its project would involve four delineated ore bodies Maturi, Maturi Southwest, Birch Lake, and Spruce Road all of which are north and east ofthe Laurentian Divide and thus in the watershed draining towards BWCAW. mining operations are expected to dispose of some waste rock and tailings underground. Other waste rock and tailings would be disposed of using surface facilities. All of the waste rock and tailings derived from the sulfide ore bodies on the leases would have a high likelihood of oxidizing and becoming sources of AMD. Technical Report on Pre-Feasibility Study shows that subsurface mining operations would occur north of the Divide and present BWCAW contamination risks. That is also true of ore processing concentrator facilities. But Technical Report on Pre-Feasibility Study shows that tailings disposal facilities potentially would be south of Laurentian Divide in the Superior Watershed, which drains away from the BWCAW. There are limitations in understanding the full contours of the mineral operations that ultimately might occur on leases, including the location ofimportant features such as its tailings disposal facilities. The pro-feasibility study is an economic feasibility analysis, not final proposal to mine the hardrock mineral deposits. But pursuant to the terms ofboth 16 U.S.C. 50% and Section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099-1100, the FS's consent is required for hardrock mineral development and the purpose of any lease, whether it is one issued in the first instance or a subsequent renewal, is mineral development. Indeed, the M- Opinion explicitly recognizes that "the entire purpose" ofa mineral lease is "for the lessee to develop the minerals. Another M-Opinion reports that since the 19?05 hardrock prospecting permits for NFS lands, which are the precursor for the issuance of Preference Right hardrock mineral leases including and WES-01353, have been issued subject to the condition that "no mineral development of any type is authorized hereby.? Pvt-36993, Options Regarding Applications for Hardrock Mineral Prospecting Permits on Acquired Lands Near A Unit OfThe National Park System (1998 WL 3515279? (April 16, l998)). See also John A. Nejedly Contra Costa Youth Association, 80 IBLA 14, 26 (1984) (concurring opinion) (development under a preference right lease "is a logically foreseen result of successful prospecting"). Another factor relevant to assessing the likelihood of AMD if TMM develops a mine on the lands subject to the two leases it seeks to renew is that the waters in the Rainy River watershed flow largely through bedrock fractures with limited carbonate rock surface area. Therefore the watershed has low capacity to buffer AMD. In sum, given the hydrology and hydrogeology of this area, the likelihood of these ore bodies being exposed to water is very high, and given these particular ore bodies? composition, resulting drainage from the mine workings and mining wastes are likely to be highly acidic. Lessons from Similar Copper Sulfide Mines Contamination from mining operations can also occur instantaneously via catastrophic failure of the type that occurred in 2014 at the Mount Polley Mine in British Columbia, Canada and at other copper mines. A review of water quality impacts from 14 operating U.S. copper sulfide Neil Kornze l4 mines found: 100% of the mines experienced pipeline spills or accidental releases; 13 of 14 mines? water collection and treatment systems failed to control contaminated mine seepage resulting in signi?cant water quality impacts; tailings spills occurred at 9 operations; and a partial failure of tailing impoundments occurred at 4 mines. The inherent risks of mining hardrock mineral deposits on the lands leased to TMM set a high bar for potential mineral development within this watershed due to potentially severe consequences for the BWCAW resulting from such failures. Because of the hydrology and hydrogeology of this particular area, should contamination occur, it could cover a very broad region. Recent reviews of similar mining proposals in Minnesota and Alaska highlight inherent risks of metal mining to natural resources, and provide examples of risks associated with long term effectiveness ofplanned containment strategies. In Minnesota, the Final Environmental Impact Statement for nearby NorthMet Mining Project and Land Exchange recognizes that no matter the depth of analysis and planned containment strategies there remain uncertainties associated with mine development, operation and long-term water and waste rock treatment. Similarly, the EPA, in a Proposal Determination Pursuant to Section 404(c) of the Clean Water Act for the Pebble Mine in Alaska, warns that, ?There is also real uncertainty as to whether severe accidents or failures, such as a complete wastewater treatment plant failure or a tailings dam failure, could be adequately prevented over a management horizon of centuries, or even in perpetuity, particularly in such a geographically remote area subject to climate extremes. If such events were to occur, they would have profound ecological rami?cations." While the rami?cations ofthese risks are possibly greater in the case of the Pebble Mine, due to its location, the BWCAW shares many similarities in terms of hydrogeology, extreme weather and remoteness. Unique Attributes of Copper Sulfide Ore Mining in the BWCAW Region Many operating copper mines in the United States are situated in the arid southwest or other drier areas of the Nation. Northern Minnesota has an established history of taconite mining indeed, the region to the west ofthe lease sites is known as the ?Iron Range." However, taconite is an iron-bearing oxide ore. Mining ofthe copper-nickel sul?de ore found on leases is untested in Northern Minnesota. This lack of experience with copper-nickel sulfide ore mines in environments with the complex hydrogeology of northern Minnesota complicates assessment of the consequences of mining operations on leases, which could occur if those leases are renewed. Another variable in assessing the consequences of these operations is climate change. In Minnesota, mean annual temperatures are expected to continue rising and precipitation is expected to increase, along with the size and magnitude of weather events. An increase in precipitation and water supply in association with significant events could exacerbate the likelihood of AMD and water resource contamination. The projected changes in climate and associated impacts and vulnerabilities would have important implications for economically important timber species, forest dependent wildlife and plants, recreation, and long-range planning. The combined impacts of contaminants from mineral development and climate change could impact the ecosystem resilience of the BWCAW and the Superior National Forest outside of the wilderness. Neil Kornze 15 The NorthMet Mining Project and Land Exchange, the first copper?nickel mine proposed in Minnesota, has similar concerns regarding AM climate change, and water quality. These concerns were addressed in NorthMet?s final EIS through engineering, permitting, and monitoring requirements. Significantly, the NorthMet project is located in an area either previously disturbed andt?or surrounded by brown-?eld taeonite open pit mines and waste piles in the Laurentian Watershed, which drains away from the BWCAW. In contrast, leases are in close proximity to the BWCAW and within its high quality watershed resource ofoutstanding value. The inherent and legislated wilderness values and untrammeled qualities of the BWCAW contrast with the extensively disturbed surroundings of NorthMet?s location. Additionally, if there is any potential for NorthMet?s copper-nickel mining project to affect the BWCAW and MPA, this potential would be far less than that associated with any copper-nickel mining operations TMM might ultimately conduct. If TMM ultimately conducts mining operations on lands subject to its two leases and they result in AM D, metal leaching, and water contamination, very few of the available containment and remediation strategies would be compatible with maintaining the quality and character. Available containment and remediation strategies such as sediment basins, water diversions, or construction and long-term operation of water treatment plants have the potential to deleteriously affect the BWCAW. Of particular concern, given the location of leases, is the effectiveness of available methods to counteract AMD in the case of seepage, spills, or facility failures. Water is the basic transport medium for contaminants. Consequently, all measures aimed at controlling AMI) generation and migration involve controlling water flow. To reduce the generation and release ofAM D, the infiltration of meteoric water (rain and snow) can be retarded through the use ofsealing layers and the installation of under-drains, respectively. Diversion ofeontaminatcd water most commonly requires installation of ditches or sedimentation ponds. But even with the use of these measures successful long-term isolation of intercepted contaminated groundwater is, at best, very dif?cult to achieve. Moreover, even if available remediation techniques to handle contaminated water, such as flushing, containment and evaporation, discharge through wetlands, neutralization and precipitation, desalination, water treatment plant construction and operation, utilization of ditches or sedimentation ponds, and installation of cut-off walls, trenches or wells, are effective, very few, if any, of them are compatible with maintaining the quality and character of BWCAW and MPA, as required by the Boundary Water Canoe Area Wilderness Act. Given the leases? proximity to the boundary (adjacent to in one case and less than 3 miles distant in the other) and the direct transport route of surface water from Birch Lake and the Kawishiwi River, it is reasonable to expect direct effects of any mining operations on those leases to the BWCAW and MPA. Potential Impacts to Water, Fish, and Wildlife As noted above, the potential for environmental harm is inherent to copper-nickel and other sul?de-bearing ore mining operations. This potential exists during all phases ofmine development, mineral extraction and processing, and long?term mine closure and remediation. Expected environmental hamt could encompass damage to both surface and ground water resources, including changes in water quantity, quality, and ?ow direction, contamination with acid and leached metals resulting from AMD and tailings disposal facility failures, and more. It Neil Kornze I 6 is also well established that this environmental damage can adversely affect ?sh populations and aquatic ecosystems directly and by indirect effects on food supplies and habitat. Recognizing this potential harm, the second edition Rainy-Lake of the Woods State of the Basin Report (2014) recommends scientifically examining the effect of new mining proposals on water quality in the Rainy River Watershed. leaseholds lie within the Rainy River's Birch Lake Sub-Watershed (HUC 10) which the SNF has identified as a priority watershed per the Watershed Condition Framework. The Framework is a comprehensive approach for: l) evaluating the condition of watersheds, 2) strategically implementing integrated restoration, and 3) tracking and monitoring outcome based program accomplishments. According to the Watershed Restoration Action Plan for Birch Lake the watershed is currently functioning at risk, based on fair ratings for aquatic biotic condition, water quality condition, aquatic habitat condition, soil condition, and tire effects/Tire regime condition. The Action Plan recognizes that further development in the watershed has the potential to move the watershed from its suboptimal level of functioning at risk to the worst level of impaired functioning. As noted previously, the BWCAW and SNF are home to dozens of sensitive species. Three species, the Canada Lynx, gray wolf and northern long?cared bat, are listed as threatened. Crueially, the BWCAW and SN are considered critical habitat for the threatened Canada Lynx, which requires spruce-fir boreal forest with dense understory. Canada cover large areas, traveling extensively throughout the year, meaning that development and habitat fragmentation can affect the viability of populations. The threatened northern long-cared bat lives in both Lake and St. Louis County, where leases are located. The northern long-cared bat spends its winter hibernating in caves. In summer it roosts in both live and dead trees, as well as eaves. Northern long-cared bat populations are under signi?cant stress from White-nose which has caused drastic declines in bat populations across the country. Increased impacts to their habitat could exacerbate population decline. The gray wolf population in the western Great Lakes, including the BWCAW, was re-listcd as threatened in 2014 by the Fish and Wildlife Service. Gray wolves also cover large areas to hunt, so wolf populations can be impacted by development and habitat fragmentation. Other animals benefit from wolves living in northern Minnesota as carcasses wolves leave behind feed many other animals. Northern Minnesota is one of the few places in the continental US. where visitors can see moose. However, the state?s iconic moose population continues to decline decreasing by approximately 60 percent in the last decade, according to Minnesota?s State Department of Natural Resources. Given this population decline, the U.S. Fish and Wildlife Service (FWS) initiated a status review for the US. population of northwestern moose those in Michigan and Minnesota). The status review was initiated as a result of a positive 90-day finding on a petition to list moose under the Endangered Species Act. FWS determined information in the petition provided substantial scienti?c or commercial information indicating that species listing may be warranted. Neil Kornze l7 Moose often gather around ponds, lake shores, bogs and streams where they feed on aquatic vegetation. They are under stress from climatic change, likely due to a greatly increased number of ticks brought about by warmer summers. Therefore they are ever more dependent on the extensive, high quality habitat available in the BWCAW. Additional development, such as mining activity and associated road building, in the vicinity of the BWCAW could lead to habitat fragmentation that may further stress the moose population. While contamination waters by acid and leached metals could lead to habitat degradation that would also add to the moose population?s stress. The potential impacts of mining activities also could affect other species dependent upon forested areas through habitat fragmentation, increased dispersal of invasive plant and animal species, and alterations to wildlife migration and residence patterns. Social and Economic Considerations The State of Minnesota has primary responsibility under the Clean Water Act of1972 to protect the water quality of the BWCAW and identi?es the wilderness area as an ?outstanding resource value water? under Minnesota Rules (Minn. R. 7050.0180). That section also provides that person may cause or allow a new or expanded discharge of any sewage, industrial waste, or other waste to waters within the Boundary Waters Canoe Area Wilderness.? On March 6, 2016, Minnesota Governor Mark Dayton sent, and publicly released, a letter to TMM stating that he had directed the State?s Department ofNatural Resources ?not to authorize or enter into any new state access or lease agreements for mining operations on those state lands? near the BWCAW. The Governor stated he has grave concerns about the use of state surface lands for mining near the BWCAW: concern is for the inherent risks associated with any mining operation in close proximity to the BWCAW and about the State ofMinnesota's actively promoting advancement ofsuch operations by permitting access to state lands." "As you know the BWCAW is a crownjewel in Minnesota and a national treasure. It is the most visited wilderness in the eastern US, and a magni?cently unique assemblage of forest and waterbodies, an extraordinary legacy of wilderness adventure, and the home to iconic species like moose and wolves. I have an obligation to ensure it is not diminished in any way. Its uniqueness and fragility require that we exercise special care when we evaluate significant land use changes in the area, and I am unwilling to take risks with that Minnesota environmental icon." As a partner in managing and conserving natural resources within the State of Minnesota, the takes Governor Dayton?s statements seriously. The shares many of the Governor?s concerns. These shared concerns also support the decision to withhold consent to renewal of leases MN 01352 and MNES-JDI 53. The FS was aware of negative public sentiment regarding other mineral related projects on nearby SNF lands and many people?s concern about the possible renewal of leases WINES-01352 and MNES-01353. Consequently, on June 13, 2016 the announced it would provide a 30-day public input period commencing June 20, 2016 and including a listening session on July 13, Neil Kornze 18 2016 to better understand public views about renewal of two leases. A second listening session on July 19, 2016 was subsequently announced. Individuals and organizations expressed passionate views both in support of and opposition to renewing the leases during the input period and listening sessions. In addition, TMM submitted comments for the record during the public input period. Overall the FS received over 30,000 separate communications is response to the listening sessions. In total, this input provided FS decision makers the fullest possible understanding of public views and concerns regarding the proposed lease renewals. Local sentiment is similarly mixed regarding the desirability of TMM developing a mine on the lands subject to its two leases. Northeastern Minnesota has a long history ofmining, and much of the local economy along the Iron Range remains dependent on iron mining. Ely, Virginia, and other local communities, have a long-standing social identity associated with mining. During the two listening sessions, elected of?cials, union representatives, and miners expressed their concerns regarding the future of these communities, mining-associated tax revenues that support schools and local services, and high-payingjobs for future generations. These mining proponents often cited the potential economic bene?ts of mining, should TMM develop a mine on its leases. They also stated that young people and families are leaving the area due to a depressed local economy. Mining proponents also referred to the need for strategic metals for American industry and national defense, including their use in sustainable technologies such as wind turbines and hybrid cars. Those who oppose development ofa mine on the lands subject to its two leases emphasize the copper-nickel mining industry?s history of causing serious environmental harm, the potential mine?s proximity to the BWCAW, the interconnected hydrology of the leased lands and the BWCAW, and the probable negative impacts to water quality, quantity and aquatic ecosystems from any mine TMM establishes. These mining opponents often stated that mining has created a boom-bust economy that only now has stabilized with the creation of sustainable recreation-basedjobs reliant on an unspoiled environment. They also raised concerns about the probable negative impacts any TMM mine would have on the quality of individuals? future recreational experiences in the BWCAW, maintenance of the BWCAW's wilderness character, and preservation of the BWCAW for future generations. In its Technical Report on Pre-Feasibility Study, TMM estimates the company?s initial capital investment for mine construction will be billion while over the projected 30-year lite of the mine its total capital investment will be $5.41 billion. TMM also estimates the potential economic contributions of mining the copper-nickel deposits underlying its two leases could include the need for close to 12 million labor hours during the estimated three-year mine construction period and approximately 850 full-time jobs when the mine becomes operational. Based on accepted multipliers ofdirect and indirect economic contribution, mining operations predicated upon its two leases might generate approximately 1300-1300 additional indirect jobs in the region?s economy. Conversely, across the country, counties with designated wilderness areas are associated with rapid population growth, greater employment, and enhanced personal income growth, relative to Neil Kornze 19 counties lacking wilderness areas. This is attributable to the increasing mobility of service jobs, and many entrepreneurs? preference to locate their businesses in areas offering a high quality of life. Speci?cally, up to 150,000 visitors visit the BWCAW annually. Economic bene?ts generated by BWCAW-related recreation have been estimated at approximately $44.5 million annually. The wilderness recreation-based tourism and any derivative economic return is dependent upon preserving the natural quality and wilderness character. With passage ofthe Boundary Waters Canoe Area Wilderness Act in 1978, the business model of industries and communities associated with the BWCAW shifted. Timber production was halted. Many resorts located within the wilderness were bought out by the federal government and others received financial assistance to shift to a wilderness based business model. Gateway communities such as Ely, Tofte and Grand Marais have also shifted to wilderness based economies. While the transition has been long and often difficult these communities are new highly dependent on revenue generated by the BWCAW for economic sustainability. Potential unforeseen impacts to natural resources and water quality within the BWCAW would likely result in substantial economic impacts to established local businesses and communities now dependent upon a wilderness based business model. On April 15, 2015, Congresswoman Betty McCollum introduced the National Park and Wilderness Waters Protection Act (HR. 1796). The Act would withdraw all federal lands in the Rainy River Watershed from the mining laws, the mineral leasing laws, and the laws governing the disposal of mineral materials, subject to valid existing rights. The Act also would impose additional restrictions on the issuance of any lease or permit for mineral related activities. In a February 2, 2016, letter to the Secretaries of Agriculture and the Interior and the Director of CEO, Congresswoman McCollum urged them ?to immediately take action to protect two of America?s natural treasures the BWCAW and Voyageurs National Park.? Speci?cally, Congresswoman McCollum requested the denial of requested lease renewals and administrative withdrawal of the Rainy River watershed. Former Vice President?and former Minnesota Senator?~Walter Mondale also has advocated that the Department of the Interior deny the renewal ofTMM?s leases and withdraw all federal minerals in the watershed. On April I, 2016, he wrote that ?Arizona has its Grand Canyon, Wyoming its Yellowstone, California, its Yosemite. These wonders come to mind unbidden as images of a place when those states are named. The Boundary Waters is such an image for Minnesota." Vice President Mondale goes on to say: ?Vice President Hubert Humphrey and I were deeply committed to protection of the Boundary Waters and its precious waters. Although we were mindful of the need forjobs, we knew that it was important to protect the magnificence of the Boundary Waters. The Twin Metals mining proposal lacks this balance. That means that today Ijoin Minnesota?s Gov. Mark Dayton and urge the federal land management agencies to continue the work of nearly 100 years and to ensure that the Boundary Waters wilderness remains the place it is today." Then in a July 1, 2016 letter characterizing the BWCWA as pristine and irreplaceable wilderness, Vice President Mondale warned that the kind of heavy-metal mining that TMM proposes: Neil Kornze 20 . .is in a destructive class all its own. Enormous amounts of unusable waste rock containing sul?des are left behind on the surface. A byproduct of this kind of mining is sulfuric acid, which often finds its way into nearby waterways. Similar mines around the country have already poisoned lakes and thousands ofmiles of streams. The consequence of acid mine drainage polluting the pristine Boundary Waters would be catastrophic. It is a risk we simply can?t take." Conclusion The FS understands the important economic and national security benefits provided by mineral extraction and supports mining as a legitimate activity on NFS lands. However, mining is not appropriate on all places within the NF or on every acre lands. When evaluating whether to consent to issuance of an initial lease or the lease's renewal, the FS may consider the unique ecological and cultural attributes of all NF lands that might be adversely affected by mineral development on the leasehold along with the social and economic consequences that could ?ow from both a decision to consent and to withhold consent. The PS also has an affirmative responsibility to protect and maintain the character and quality of the BWCAW and MPA for present and future generations. Sec. 2, Pub. L. 95-495, 92 Stat. 1649 (1978). Thus the agency may weigh the possible benefits ofTMM?s potential mineral development against the possible harm 'l'MM?s potential mineral development might do to the uniquely valuable landscape. potential mineral development on its two leaseholds might contribute markedly to employment and economic growth in St. Louis County, Lake County, and nearby areas. Copper- nickel mining conducted by TMM also would furnish metals important to US. industries and modern technology. Deposits of copper are relatively abundant in the United States and many operating copper mines in the United States are situated in arid or drier areas of the Nation where their potential for environmental harm may be reduced. The United States Geological Survey reported that as of 201 5 there was only one operating nickel mine in the United States but nonetheless nickel was in oversupply and three other US. mining projects that would supply nickel were in development. The BWCAW contributes to the cultural and economic sustainability of communities within the State of Minnesota, the Nation and beyond and to the ecological sustainability of unique landscapes and rare species dependent upon those landscapes that are valued within the State of Minnesota, the Nation and beyond. The BWCAW is irreplaceable, but likely irreparable in the event of its significant degradation. Based on information provided by TMM to date its Technical Pre-Feasibility Report), existing science, and examination ofsimilar proposals, there is no reason to doubt that the mining operations hopes to eventually conduct could result in AMD and concomitant meta] leaching both during and after mineral development given the sought after copper-nickel ore is sultidic. This fact is very signi?cant given two leases are adjacent or proximate to the BWCAW and within the same watershed as the wilderness. It might be possible for TMM to develop a mine which employs mitigation and containment strategies that reduce the mines potential to cause AMD and leached metals that could harm the wilderness. However, at the very least it is equally possible that available water treatment technologies would be unable to prevent the spread of any AMD and leached metals in the watershed. Further, there appears to be even Neil Kornze 2] less likelihood that any contamination of the BWCAW resulting from mining operations could later be remediated, especially not in a manner compatible with the wilderness character. Moreover, any degree of contamination of the BWCAW by AMD and leached metals has the potential to seriously degrade the wilderness area?s character and quality. Thus, even if the probability that mining operations might generate and release of AMD and leached metals was very low, which the FS does not believe to be the ease, the environmental harm to the BWCAW that could result from any contamination of the area with AMD and leached metals might be extreme. Failing to prevent such damage also is contrary to Congress" determination that it is necessary to ?protect the special qualities of the as a natural forest-lakeland wilderness ecosystem of major esthetic, cultural, scientific, recreational and educational value to the Nation.? Sec. 1, Pub. L. 95-495, 92 Stat. 1649 (I 973). Balancing what are primarily economic benefits of the mining operations that TMM hopes to conduct in connection with the renewal of its two leases against even a remote possibility of damaging the unique ecosystem that Minnesota elected of?cials have ?ttineg called irreplaceable and a national treasure?makes it clear that it is incumbent upon the PS to withhold consent to the renewal of leases WES-01352 and WINES-01353. This decision withholding consent to the renewal of'TMM's leases is subject to discretionary review by the Under Secretary for Natural Resources and Environment pursuant to 36 CPR. but not appeal pursuant to 36 CPR. part 214 (36 C.F.R. No additional information may be considered by the Under Secretary for Natural Resources and Environment in connection with the discretionary review ofthis decision (36 C.F.R. 214.19(b) Sincerely, ?waZW THOMAS L. TIDWELL Chief United States Department of the Interior BUREAU OF LAND MANAGEMENT Eastern States 20 M Street, SE Suite 950 Washington, DC 20003 http://www.es.blm.gov DRAFT ATTORNEY-CLIENT PRIVILEGE—DO NOT RELEASE Kathleen Atkinson Regional Forester 626 East Wisconsin Avenue Milwaukee, Wisconsin 53202 Dear Ms. Atkinson: (b) (5) Attachment cc: Ms. Brenda Halter. Forest Supewisor. Superior National Forest Mr. Richard Periman, Deputy Forest Supervisor. Superior National Forest murmur" a ?Mon llu :u tn: United States Department of the Interior BUREAU OF LAND IVIANAGEMENT Eastern States 30 Street. SE Suite 950 DC 20003 "Uknnv es 0 b11110 gov DRAFT ATTORNEY-CLIENT NOT RELEASE Wednesday, December 13, 2017 I. OSMRE A. WEG FOIA--addressing two previously granted rulemaking petitions C. Use of SMCRA TDN process to collaterally attack BLM leases B. II. D. BLM Usibelli informal review decision A. Venting and flaring rules and litigation C. Juliana v. U.S. (D. Ore.), on mandamus, U.S. v. U.S. Dist. Ct. (9th Cir.). D. Hydraulic Fracturing Rescission Rule E. Havasupai Tribe v. Provencio (9th Cir.) F. Twin Metals G. CEMEX B. III. West Virginia ethics issue BOEM WEA v. Zinke (D.N.M) settlement proposal; Draft IM on Oil & Gas Leasing. A. BOEM Lifecycle GHG analysis/substitution effects C. Cape Wind relinquishment and met tower decommissioning B. D. E. NHPA & BOEM archaeological reports BOEM Air Quality rule Royalty Policy Committee powerpoint F. IV. Bay State Wind FAST-41 BSEE A. B. C. D. E. BSEE rules (severability clause) Civil Penalty Adjustment rulemakings Helicopter Fuel report Legislative proposal--confidentiality Taylor DRAFT Privileged and Con?dential December 8. 2017 DRAFT Privileged and Con?dential December 8. 2017 DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential December 8. 2017 DRAFT Privileged and Con?dential I 7 DRAFT Privileged and Con?dential December 8. 2017 DRAFT Privileged and Con?dential I 7 DRAFT Privileged and Con?dential I 7 I DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential December 8. 2017 10 DRAFT Privileged and Con?dential December 8. 2017 DRAFT Privileged and Con?dential December 8. 2017 DRAFT Privileged and Con?dential I 7 DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential December 8. 2017 15 DRAFT Privileged and Con?dential I 7 16 DRAFT Privileged and Con?dential December 8. 2017 DRAFT Privileged and Con?dential I 7 I 18 DRAFT Privileged and Con?dential December 8. 2017 19 UNITED STATES Of the INTERIOR release OFFICE OF THE SECRETARY For Release JUNE 14, 1966 c.er GRANTS LEASES FOR NICKEL AND COPPER MINING The Department of the Interior announced today that mining leases have been granted to The International Nickel Company, Inc., on 4,894 acres within 0 the Superior National Forest in Lake and St. Louis Counties, Minnesota, to produce copper and nickel ore. "The company has assured Department officials that it will proceed rapidly with operations, offering promise of new economic life for an area beset with increasing Job layoffs," said Secretary of the Interior Stewart L. yUdall. The leases make possible development work leading to the anticipated large- scale production of copper and nickel in the area near Ely, Minn. They grant mining rights to the company for 20 years, renewable for 30 years at 10?year intervals if the pr0perty is brought into production within the initial 20-year term. The company must, within the first year, conduct drilling Operations and ship ores to pilot plants for metallurgical process research. The leases call for royalty payments to the Government, based on the value of the minerals mined, beginning at four percent and escalating over the years of the contract. The royalty structure is designed to stimulate early and rapid development of the properties. In executing the leases, the Department of the Interior has collaborated with the Department of Agriculture\and other government agencies in requiring precautions to protect surface resources in the mining area. The leased land is outside the famous Boundary Waters Canoe Area. JUN 341956 D. We? JUN 24 1966 8. cAzo?t? The company has conducted exploration work for some 15 years under rprospecting permits issued by the Government. In taking core samples, the company found mineral deposits in quantities legally sufficient to establish preference rights to lease. Since the Government's rejection of a lease proposal in 1956, prospecting permits have been renewed on an annual basis. If any of the copper is processed outside of the United States, the Government may demand that an equivalent amount be returned to the United States for use in the companyfs domestic operations, or for sale. Copper so returned would be priced on the same basis as if it had been processed entirely in the United States. I The ore deposits range from 33 feet to about 815 feet in thickness. The Department of the Interior, through its Bureau of Land Management, has responsibility for mineral leasing on National Forest lands as well as on public domain lands under the Bureau's direct jurisdiction. 2 P.N. 81339?66 HJOR Ill 1300 PROPOS LEASE years 20-yr. - 10-yr. renewals Royalty 3.b.01 Rent 25? let yr. $1.00 until production common 50! 2nd 3rd yre. $1.00 yr. a main. lone - last 10 yr. Hone - let 10 yr. Royalty $5.00 11 - 25 yr. $5.yre yre Additional None - let 10 yr. None - let 10 yr. Royalty 0.31 or green value of minerals. Same except at request. or Add 15 if gross value of either party rate to be associated minerals exceeds 20% investigated if value of of Ou-ll value. associated exceeds 301 of Reta investigated 25th year. aggregate motel value. overriding Not to exceed 1/2 Federal royalty Not to exceed 1! of 3011337 gross value. Renml rem readjusted Right to 3 successive 20-yr. periods after lO-yr. tom after 13 let 50~yr. term 20 yrs. with no change in terms unless not in production the let 20-yr. term on either one lease or the other. Secretary grant extension of time to Wampum. lionepol; and Fair Price In out Glenn National In Out kergenoy Clause Hm 'h F?w W- Reply to: Subject: To: Eastern 310 g:2t Wisconsin Avenue Region iilwaukee, Wisconsin 53203 United State:<:> Department of Agriculture Forest Service ?in: 1 .3 IRES 2820 Date:?5 BLH Preference Right Leases, ES 01352 and ES 0135 Inco Alloys International, Inc. (Superior NF - HR) Director, Eastern States Office, Bureau of Land Management Subject to the reclamation situation being resolved (see our letter dated 6/15), we consent to the renewal of the above noted leases for a 10-year period. The existing lease terms and conditions are adequate. This decision is supported by the Superior National Forest Plan and Environmental Impact Statement, dated June 6, 1986, a copy of which is on file at your office. Ho further analysis is necessary. The lands are not located within any areas identified in the Department of the Interior and Related Agencies Appropriation Act FLOYD J. MARITA Regional Forester CC: Superior NF HKE District Office Inco Alloys International, Inc. - FOR YOUR INFORMATION ONLY CWilliams "ff 0 United States Forest B-9 Department of Service Agriculture Caring for the Land and Serving the People Reply to: 2820 Date: ilk-Tug}? Subject: Bond Relinquishment, ES 01352, 01353 To: Director, ELM-BSD Your 3500 (971) FAJ letter of May 13, 1987, requests our recommendation regarding termination of bonds for these leases in Minnesota (Superior NF). . We recommend against termination of bonds for E8 01352 and ES 01353. Current reclamation needs for these leases include permanent closure of a vertical shaft measuring 10?x18'x1000', and restoration of about ten acres of cleared land associated with the shaft and a surface rock sampling area. We can recommend for bond termination only after reclamation is complete, as needed work is covered under a different bond. MW GORDON H. Director of Lands, Watershed and Minerals Management 00: Superior NF ELM Mke JJacks:es DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 294. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 294. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privilege DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 294. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential . 7k) 7 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential .Vk 7 DRAFT Privileged and Con?dential . 7k) 7 DRAFT Privileged and Con?dential November 294. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 294. 2017 DRAFT Privileged and Con?dential November 234. 2017 UNITED STATES Of the INTERIOR release OFFICE OF THE SECRETARY For Release JUNE 14, 1966 c.er GRANTS LEASES FOR NICKEL AND COPPER MINING The Department of the Interior announced today that mining leases have been granted to The International Nickel Company, Inc., on 4,894 acres within 0 the Superior National Forest in Lake and St. Louis Counties, Minnesota, to produce copper and nickel ore. "The company has assured Department officials that it will proceed rapidly with operations, offering promise of new economic life for an area beset with increasing Job layoffs," said Secretary of the Interior Stewart L. yUdall. The leases make possible development work leading to the anticipated large- scale production of copper and nickel in the area near Ely, Minn. They grant mining rights to the company for 20 years, renewable for 30 years at 10?year intervals if the pr0perty is brought into production within the initial 20-year term. The company must, within the first year, conduct drilling Operations and ship ores to pilot plants for metallurgical process research. The leases call for royalty payments to the Government, based on the value of the minerals mined, beginning at four percent and escalating over the years of the contract. The royalty structure is designed to stimulate early and rapid development of the properties. In executing the leases, the Department of the Interior has collaborated with the Department of Agriculture\and other government agencies in requiring precautions to protect surface resources in the mining area. The leased land is outside the famous Boundary Waters Canoe Area. JUN 341956 D. We? JUN 24 1966 8. cAzo?t? The company has conducted exploration work for some 15 years under rprospecting permits issued by the Government. In taking core samples, the company found mineral deposits in quantities legally sufficient to establish preference rights to lease. Since the Government's rejection of a lease proposal in 1956, prospecting permits have been renewed on an annual basis. If any of the copper is processed outside of the United States, the Government may demand that an equivalent amount be returned to the United States for use in the companyfs domestic operations, or for sale. Copper so returned would be priced on the same basis as if it had been processed entirely in the United States. I The ore deposits range from 33 feet to about 815 feet in thickness. The Department of the Interior, through its Bureau of Land Management, has responsibility for mineral leasing on National Forest lands as well as on public domain lands under the Bureau's direct jurisdiction. 2 P.N. 81339?66 HJOR Ill 1300 PROPOS LEASE years 20-yr. - 10-yr. renewals Royalty 3.b.01 Rent 25? let yr. $1.00 until production common 50! 2nd 3rd yre. $1.00 yr. a main. lone - last 10 yr. Hone - let 10 yr. Royalty $5.00 11 - 25 yr. $5.yre yre Additional None - let 10 yr. None - let 10 yr. Royalty 0.31 or green value of minerals. Same except at request. or Add 15 if gross value of either party rate to be associated minerals exceeds 20% investigated if value of of Ou-ll value. associated exceeds 301 of Reta investigated 25th year. aggregate motel value. overriding Not to exceed 1/2 Federal royalty Not to exceed 1! of 3011337 gross value. Renml rem readjusted Right to 3 successive 20-yr. periods after lO-yr. tom after 13 let 50~yr. term 20 yrs. with no change in terms unless not in production the let 20-yr. term on either one lease or the other. Secretary grant extension of time to Wampum. lionepol; and Fair Price In out Glenn National In Out kergenoy Clause Hm 'h F?w W- Reply to: Subject: To: Eastern 310 g:2t Wisconsin Avenue Region iilwaukee, Wisconsin 53203 United State:<:> Department of Agriculture Forest Service ?in: 1 .3 IRES 2820 Date:?5 BLH Preference Right Leases, ES 01352 and ES 0135 Inco Alloys International, Inc. (Superior NF - HR) Director, Eastern States Office, Bureau of Land Management Subject to the reclamation situation being resolved (see our letter dated 6/15), we consent to the renewal of the above noted leases for a 10-year period. The existing lease terms and conditions are adequate. This decision is supported by the Superior National Forest Plan and Environmental Impact Statement, dated June 6, 1986, a copy of which is on file at your office. Ho further analysis is necessary. The lands are not located within any areas identified in the Department of the Interior and Related Agencies Appropriation Act FLOYD J. MARITA Regional Forester CC: Superior NF HKE District Office Inco Alloys International, Inc. - FOR YOUR INFORMATION ONLY CWilliams "ff 0 United States Forest B-9 Department of Service Agriculture Caring for the Land and Serving the People Reply to: 2820 Date: ilk-Tug}? Subject: Bond Relinquishment, ES 01352, 01353 To: Director, ELM-BSD Your 3500 (971) FAJ letter of May 13, 1987, requests our recommendation regarding termination of bonds for these leases in Minnesota (Superior NF). . We recommend against termination of bonds for E8 01352 and ES 01353. Current reclamation needs for these leases include permanent closure of a vertical shaft measuring 10?x18'x1000', and restoration of about ten acres of cleared land associated with the shaft and a surface rock sampling area. We can recommend for bond termination only after reclamation is complete, as needed work is covered under a different bond. MW GORDON H. Director of Lands, Watershed and Minerals Management 00: Superior NF ELM Mke JJacks:es DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 294. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 294. 2017 DRAFT Privileged and Con?dential November 294. 2017 DRAFT Privilege DRAFT Privileged and Con?dential .Vk 7 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 294. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 234. 2017 DRAFT Privileged and Con?dential November 234. 2017 USDA USDA USDA USDA USDA USDA DRAFT Privileged and Con?dential December 6. 2017 DRAFT Privileged and Con?dential December 6. 2017 DRAFT Privileged and Con?dential December 6. 2017 DRAFT Privileged and Con?dential December 6. 2017 DRAFT Privileged and Con?dential December 6. 2017 DRAFT Privileged and Con?dential December 6. 2017 DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential December 6. 2017 DRAFT Privileged and Con?dential December 6. 2017 DRAFT Privileged and Con?dential December 6. 2017 DRAFT Privileged and Con?dential December 6. 2017 DRAFT Privileged and Con?dential I . I DRAFT Privileged and Con?dential December 6. 2017 DRAFT Privileged and Con?dential December 6. 2017 DRAFT Privileged and Con?dential December 6. 2017 DRAFT Privileged and Con?dential December 6. 2017 DRAFT Privileged and Con?dential December 6. 2017 DRAFT Privileged and Con?dential December 6. 2017 DRAFT Privileged and Con?dential December 6. 2017 DRAFT Privileged and Con?dential December 6. 2017 DRAFT Privileged and Confidential December 5, 2017 DRAFT Privileged and Confidential December 5, 2017 DRAFT Privileged and Confidential December 5, 2017 DRAFT Privileged and Confidential December 5, 2017 DRAFT Privileged and Confidential December 5, 2017 DRAFT Privileged and Confidential December 5, 2017 DRAFT Privileged and Confidential December 5, 2017 DRAFT Privileged and Confidential December 5, 2017 DRAFT Privileged and Confidential December 5, 2017 DRAFT Privileged and Confidential December 5, 2017 DRAFT Privileged and Confidential December 5, 2017 DRAFT Privileged and Confidential December 5, 2017 DRAFT Privileged and Confidential December 5, 2017 DRAFT Privileged and Confidential December 5, 2017 DRAFT Privileged and Confidential December 5, 2017 DRAFT Privileged and Confidential December 5, 2017 DRAFT Privileged and Confidential December 5, 2017 DRAFT Privileged and Confidential December 5, 2017 DRAFT Privileged and Confidential December 5, 2017 DRAFT Privileged and Con?dential December 2017 DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential December 2017 DRAFT Privileged and Con?dential December 2017 DRAFT Privileged and Con?dential December 2017 DRAFT Privileged and Con?dential 0 DRAFT Privileged and Con?dential 0 DRAFT Privileged and Con?dential 0 DRAFT Privileged and Con?dential 0 DRAFT Privileged and Con?dential 0 DRAFT Privileged and Con?dential 0 DRAFT Privileged and Con?dential 0 DRAFT Privileged and Con?dential 0 DRAFT Privileged and Con?dential 0 DRAFT Privileged and Con?dential 0 DRAFT Privileged and Con?dential 0 DRAFT Privileged and Con?dential 0 DRAFT Privileged and Con?dential 0 DRAFT Privileged and Con?dential 0 DRAFT Privileged and Con?dential 0 DRAFT Privileged and Con?dential 0 Wednesday, December 6, 2017 DMR Priorities BLM • • • Juliana (oral argument on Monday) VF rules (delay rule publish Friday/revision rule addressing OMB comments—BLM shooting for next week to adopt/incorporate/resolve their edits) VF litigation (Merits brief due on Monday—(b) (5) 705 appeal • • • notice filed Monday) HF rescission rule (Inter-agency comments due Friday) Twin Metals M-Op CEMEX settlement BOEM • Air quality rule (3:30 pm briefing for Walter) BSEE • • Well Control Rule (to Exec Sec end of day today) Subpart H/Production Safety Systems Rule (to Exec Sec end of day today) OSM • Farrell-Cooper settlement Wednesday, December 6, 2017 I. OSMRE II. BLM A. Farrell Cooper negotiations A. Twin Metals M-Opinion C. WEA v. Zinke (D.N.M) settlement proposal; Draft IM on Oil & Gas Leasing. B. D. E. III. BOEM Juliana v. U.S. (D. Ore.), on mandamus, U.S. v. U.S. Dist. Ct. (9th Cir.). Hydraulic Fracturing Rescission Rule. A. BOEM Air Quality rule C. D. Cape Wind relinquishment and met tower decommissioning E. Northstar EIS B. IV. Venting and flaring rules and litigation Royalty Policy Committee request Liberty DPP consultation BSEE A. B. C. D. Well Control and Production Safety Systems rules (severability clause) Civil Penalty Adjustment rulemakings Tennessee Gas Pipeline Administrative Record Project E. Archaeological Survey Orders E. Taylor DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT – Privileged and Confidential November 24, 2017 MMemorandum To: Director, Bureau of Land Management From: Solicitor Subject: Reversal of M-37036, “Twin Metals Minnesota Application to Renew Preference Right Leases (MNES-01352 and MNES-01353)” (b) (5) 1 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Con?dential November 24. 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Con?dential November 24. 2017 15 DRAFT Privileged and Con?dential November 24. 2017 r. DRAFT Privileged and Con?dential November 24. 2017 Confidential Confidential Confidential DRAFT Privileged and Con?dential November 24. 2017 M- Memorandum To: Director: Bureau of Land Management From: Solicitor Subject: Reversal of M-37036, ?Twin Metals Minnesota Application to Renew Preference Right Leases and DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Con?dential November 24. 2017 1V1- Memorandlun To: Director. Bureau of Land Management From: Solicitor Subject: Reversal of M-3 7036. "Twin Metals Minnesota Application to Renew Preference Right Leases 352 and DRAFT Privileged and Con?dential I 3' 0 7 DRAFT Privileged and Con?dential I 3' 0 7 DRAFT Privileged and Con?dential I 3' 0 7 DRAFT Privileged and Con?dential I 3' 0 7 DRAFT Privileged and Con?dential I 3' 0 7 DRAFT Privileged and Con?dential I 3' 0 7 DRAFT Privileged and Con?dential I 3' 0 7 DRAFT Privileged and Con?dential I 3' 0 7 DRAFT Privileged and Con?dential I 3' 0 7 DRAFT Privileged and Con?dential I 3' 0 7 DRAFT Privileged and Con?dential I 3' 0 7 DRAFT Privileged and Con?dential I 3' 0 7 DRAFT Privileged and Con?dential I 3' 0 7 DRAFT Privileged and Con?dential I 3' 0 7 DRAFT Privileged and Con?dential I 3' 0 7 DRAFT Privileged and Con?dential I 3' 0 7 DRAFT Privileged and Con?dential I 3' 0 7 DRAFT Privileged and Con?dential I 3' 0 7 DRAFT Privileged and Con?dential I 3' 0 7 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Confidential November 24, 2017 DRAFT Privileged and Con?dential M- Memorandum To: Director. Bureau of Land Management From: Solicitor Subject: Reversal of M-3 703 6, ?Twin Metals Mimiesota Application to Renew Preference Right Leases and p?n DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential LA) DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential 1 DRAFT Privileged and Con?dential p?n DRAFT Privileged and Con?dential - DRAFT Privileged and Con?dential DRAFT Privileged and Con?dential 1 DRAFT Privileged and Con?dential u: DRAFT Privileged and Con?dential I. I. l- I. DRAFT Privileged and Con?dential 1 \l DRAFT Privileged and Confidential CASE 0:16-cv-03042-SRN-LIB Document 72-2 Filed 02/21/17 Page 1 of 9 Supplemental and Amended Complaint EXHIBIT 2 CASE Document 72-2 Filed 02/21/17 Page 2 of 9 . wyf?A?w??) UNITED STATES ?rm Number A N. 37 DEPARTMENT OF THE INTERIOR BUREAU 0? LAND MANAGEMENT If 6 Renewal Preference Right: LEASE MNES 1352 PART I. LEASE RIGHTS GRANTED. 9.. This [3 LeaSe xii] Lease Renewal entered into by and between the UNITED STATES OF AMERICA, through the Bureau of Land Management, hereinafter called lessor, and (Name and Address) INCQ-i?Alloys International, Inc . One New York Plaza New York, New York 10004 hereinafter called lessee, is effective (date) 0 1 . for a period of ten years, Sodium, Sulphur, Hardrock -- . with preferential right in the lessee to renew for successive periods of ten years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period. Potassium, PhosPhate, Gifsom'te - and for so long thereafter as lessee complies with the terms and conditions of this lease which are subject to at the end of each year period, unless otherwise provided by law. Sec. 1. This lease is issued pursuant and subject to the terms and provisions of the: Mineral Leasing Act of 1920. as amended, and supplemented, 41 Stat. 437. 30 u.s.c; 181-287, hereinafter referred to as the Act; Mineral Leasing Act for Acquired Lands. Act of August 7, 1947, 61 Stat. 913, 30 U.S.C. 351?359; Reorganization Plan No. 3 of 1946, 60 Stat. 1099 and 43 1201; . (Other) and to the regulations and general mining orders of the Secretary of the interior in force on the date this lease issued. Sec. 2. Lessor, in consideration of any'bonuses; rents, and royalties to be paid, and the conditions and covenants to be ob- served as herein set forth, hereby grants and leases to lessee the exclusive right and privilege to explore for, drill for, 'mine, extract,rremove, beneficiate, concentrate, or otherwise process and dispose of the copper deposits .?iCkel and associated minerals hereinafter referred to as "leased deposits,? in, upon, or under the following described lands: see attached containing . 2, 610.07 acres, more or less, together with the right to construct such plants, structures,'equipment and appliances and the right to use such on-lease rights-of-way which may be necessary and convenient in the exercise of the rights_and privileges granted,-subject to the conditions herein provided. Phosphate . In accordance with Section 11 of the Act (30 U.S.C. 213), lessee may use deposits of silica, limestone, or other rock in the processing or refining of the phosphates, phosphate rock, and associated or? related minerals mined from the leased lands or other lands Upon payments of royalty as set forth on the attachment to this lease. leases only.) Form 3520?7 (December 1984) CASE Document 72-2 Filed 02/21/17 Page 3 of 9 PART II. TERMS AND CONDITIONS Sec. 1. RENTAL RATE?Lessee shall pay lessor rental annually and in advance for each acre or fraction, thereof during the continuance of the lease at the rate indicated below: Sulphur, Gilsonite Cl 50 cents for the first lease year and each succeeding lease year; Hardrock - Lj $1 for the first lease year and $1 for each succeeding "ease year; Phosphate - 53 25 cents for the first lease year, 50 cents for the second and third lease years, and $1 for 'each and every lease year thereafter; Potassium, Sodium l: 25 cents for the first calendar year or fraction thereof, 50 cents for the second, third, fourth, and fifth calendar years reSpectively, and $1 for the sixth and each suc? ceeding calendar year; or Sodium, Sulphur, Asphalt, and Hardroclt Renewal Leases - l. 00 for each lease year; RENTAL CREDITS The rental for any year will be credited against the first royalties as they accrue under the lease during the year for which rental was paid. Sec. 2. PRODUCTION ROYALTIES Lessee shall pay lessor a production royalty in accordance with the attached schedule. such production royalty is due the last day of the month next following the month in which the minerals are sold or removed from the leased lands. MINIMUM ANNUAL PRODUCTION AND MINIMUM ROY- ALTY - (1) Lessee shall groduce tin fn annual basis a minimum amount of 5? ?19 e? except when production is interruptr?i b??9filte?llfh??elements, or casu? alties not attributable to the lessee. Lessor may permit suspension of operations under the lease when marketing conditions are such that the lease cannot be operated ex- cept at a loss. (2) At the request of the lessee, made prior to initiation of the lease year, the authorized officer may allow in writing the payment of a $3.00 per acre or fraction thereof minimum royalty in lieu of production for any particular lease year. Minimum royalty payments shall be credited to production royalties for that year. Sec. 3. REDUCTION AND SUSPENSION -In accordance with Section 39 of the Mineral Leasing Act, 30 U.S.C. 209, the lessor reserves the authority to waive, suspend 0r re? duce rental or minimum royalty, or to reduce royalty, and reserves the authority to assent to or order the suspension of this lease. we. 4. BONDS Lessee shall maintain in the proper office lease bond in 'the amount of 5.0 . - or in lieu'thereof, an acceptable statewide or nationwide bOnd. The authorized officer may require an increase in this a- mount when additional coverage is determined appropriate. ?r Sec. 5. DOCUMENTS, EVIDENCE AND INSPECTION At \t such times and in such form as lessor may prescribe, lessee . shall furnish detailed statements? showing the amounts and quality of all products removed and sold from theiease, the proceeds therefrom, and the amount used for production purposes or unavoidably lost. Lessee shall keep open at all reasonable times for the inspection of any duly authorized officer of lessor, the leased premises and all surface and underground improve- ments, work, machinery, ore stockpiles, equipment, and all books, accounts, maps, and records relative to operations, surveys, or investigations on or under the leased lands. Lessee shall either submit or provide lessor access to and copying of documents reasonably necessary to verify lessee compliance with terms and conditions of the lease. _While this lease remains in effect, information obtained under this Section shall be closed to ins?pectim by the public in accordance with the Freedom of Information Act (5 U.S.C. 552). Sec. 6. DAMAGES T0 PROPERTY AND CONDUCT OF OPERATIONS - Lessee shall exercise reasonable dili- gence, skill, and care in the operation of the property, and carry on all Operations in accordance with approved methods and practices as provided in the operating regulations, hav- ing due regard for the prevention of injury to life, health or property, and of waste or damage to any water or mineral deposits. Lessee shall not conduct exploration or operations, other than casual use, prior to receipt of .necessary permits or approval of plans of operations by lessor. Lessee shall Carry on all operations in acc0rdance with approved methods and practices as provided in'the operating regulations, and the approved mining plans in a manner that minimizes adverse impacts to the land, air, and water, to cultural, biological, visual, minerals, and other resources, and to other land uses or users. Lessee shalltake measures deemed necessary by lessor to accomplish the intent of this lease term. Such measures may include, but are not limited to, modification to proposed siting or design of facilities, timing of operations, and specification of interim and final reclamation procedures. Lessor reserves to itself the right to lease, sell, or other- wise dispose of the surface or other mineral deposits in the lands and the right to continue existing uses and to author- ize future uses upon or in the leased lands, including issu- ing leases for mineral deposits not covered hereunder or the approval of eascments or rights -of-way. Lessor shall condi- tion such uses to prevent unnecessary or unreasonable inter- ference with rights of lessee as may be consistent with con- cepts of multiple use and multiple mineral development. Sec. 7. PROTECTION OF DIVERSE INTERESTS, AND EQUAL OPPORTUNITY Lessee shall: pay when due all taxes legally assessed and levied under the laws of the State or the United States; accord all employees complete freedom of purchase; pay all wanes at least twice each month in lawful money of the United States; maintain a_ safe working environment in accordance with standard industry practices; restrict the workday to not more than,8 hours in any one day for underground workers, except in emergencies; and take measures necessary to protect the health and safety of the public. No person under the age of 16 years shall be employed in any mine belowthe surface. To the extent that laws of the State in which the lands are CASE Document 72-2 Filed 02/21/17 Page 4 of 9 required by the authorized officer. Sec. 14. tuc-?wiwgp .. . . . - situated are more restrictive than the provisions in this paragraph, then the State laws apply. Lessee will comply with all provisions of Executive Order No. 11246 of September 24, 1965, as amended, and the rules, regulations, and relevant orders of the Secretary of Labor. Neither lessee nor lessee's subcontractors shall maintain segregated facilities. Sec, 8. TRANSFERS - This lease may be transferred in whole or in part to any person, association or corpora- tion qualified to hold such lease interest: RELINQUISHMENT The lessee may relinquish in writing at any time all rights under this lease or any portion thereof as provided in the regulations. acceptance of the relinquishment, lessee shall be relieved of all future obligations under the lease or the relinquished portion thereof, whichever is applicable. Sec. 9. DELIVERY OF PREMISES, REMOVAL OF MA- CHINERY, EQUIPMENT, ETC. At such time as all or portiOnS of this lease are returned to lessor, lessee shall deliver up to lessor the [and leased, underground timbering, and such other supports and structures necessary for the preserVation of the mine workings on the leased premises or deposits and place all Wells in condition for suspension ?or abandonment. Within 180 days thereof, leasee shall remove from-the premises all other structures, machinery, equipment, tools, and materials ,that it elects to or ?33 Any such structures, machinery, equipment, tools, and materials remaining on the leased lands beyond 180 days, or approved extension thereof, shall become the property of the lessm, but lessee shall either remove any or all such property or shall continue to be liable for the cost of removal and disposal in the amount actually incurred by the lessor. If the surface is canned by third parties, lessor shall waive the requirement. for removal, provided the third parties do not object to such. SPECIAL STIPULATIONS - Upon lessor's - waiver. Lessee shall, prior to the termination of bond liability or at any other time when required and in accord- ance with all applicable laws and regulations, reclaim all lands the surface of which has been disturbed.'disposra of all debris or solid waste, repair the _offsite and onsite damage caused by lessee?s activity 0r activities on the leasad lands, and reclaim access roads or trails. Sec. 10. PROCEEDINGS IN CASE OF DEFALILT -?lf lessee fails to comply with applicable laws, now existing'regula- lions, Or the terms, conditions and stipulations of this lease, and the noncompliance continues for 30 days after written notice thereof, this lease shall be subject to cancellation by the lessor only by indicial proceedings. ?This provision shall not be construed to prevent the exercise by lessor of any other legal and equitable remedy, including waiver of the default. Any such remedy or waiver'shall not prevent later cancellation for the ?same default occuring at any' other time. _Sec. 11. HEIRS AND ?Each obligation of.thls lease. shall extend to and be binding upon, and every benefit hereof shall inure to, the heirs, executors, administrators, successms, or assigns of the reSpective parties hereto. Sec. 12. INDEMNIFICATION Lessee shall indemnify and hold harmless the United States from any and all claims arising out of the lessee?s activitiesand operations under this lease. 13. SPECIAL STATUTES This lease is subject to the Federal Water Pollution Control Act (33 U.S.C. 1151? 1175), the Clean Air Act (42 U.S.C. 1857 et. seq.), and to all other applicable laws pertaining to exploration activ- ities'. mining operations and reclamation. - The terms and conditions of the production royalties remains as stated in the attached original lease agreement. The minimum annual production and minimum royalty is $10.00 per acre or a fraction thereof as stated in the attached original lease agreement. (Section 14 continued on reverse) CASE Document 72-2 Filed 02/21/17 Sec. 14. SPECIAL STIPULATIONS - (Cont.) Page 5 of 9 [Mfg WYS WC Company or Lessee Name 1 (Signature 0/ Lessee) U?a?aw?vj THE Uru'rzn STATES or AMERICA By (Signing Ol/icer) .Deputy .State Director 'for Mineral Resources (Title) a (Tide) flow (Dale) (Dale) Title 18 U.S.C. Section 100i. makes it a crime lor any person knowingly and willfully to make to any department or agency of the United States any false, fictitious or fraudulent statements or representations as to any matter within its jurisdiction. NOTICE I The Privacy Act of 1974 and the regulations -in 43 CFR 2.48(d) provides that you bc't'utinshed the following information incoonec- tion with information required under the terms of this lease. AUTHORITY: 30 use. 131 et seq.; 43 CFR 3500. PRINCIPAL PURPOSE: The information will be used to~ verify your compliance with the lease terms and in calculating royalty payments. ROUTINE USES: - (1) Evaluation of the effects of theoperations on the environment. (2) Statistical reports to Congress. and (5) Information from the record and/or the record may be released or transferred to appropriate Federal, State or local - agencies in allocating mineral revenue, for investigations of energy programs; and when relevant to civil, criminal pr regu- latory investigations or prosecutions, 'as well as routine regu- latory responsibility. EFFECT OF NOT INFORMATION: Disclosure of this information is mendatory only it the lessee elects to mine, extract, remove and/or dispose of the leased deposits. The Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.) requires us to inform you that: This information is being collected for use in calculating royalty payments and in verification of compliance with lease terms. "Response to this request is mandatory only-l! the lessee elects to mine,, extract, remove and/or dispose of the leased deposits. 4N Government mum o?loa: ins-erasures"! CASE Document 72-2 Filed 02/21/17 Page 6 of 9 -- 0 UNITED STATES 3"?1 "Mb" DEPARTMENT OF THE INTERIOR BUREAU OF LAND MANAGEMENT Renewal Preference Right LEASE MNES 1353 PART I. LEASE This Lease Lease Renewal entered into by and between the UNITED STATES OF AIERICA, through the Bureau of Land Management, hereinafter called lessor, and (Name and Address) INCO Alloys International, Inc. One New York Plaza New York, New York 10004 hereinafter called lessee, is effective (date) 0 1 for a period of ten years, Sodium, Sulphur, Hardrock - @with preferential right in the lessee to renew for successive periods of ten years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period. Potassium, Phosphate, Gilsom?te - and for so long thereafter as lessee complies with the terms and conditions of this lease which are subject to readjustment at the end of each year period, unless otherwise provided by law. Sec. 1. This lease is issued pursuant and subject to the terms and provisions of the: Mineral Leasing Act of 1920, as amended, and supplemented, 41 Stat. 437, 30 U.S.C. 181-287, hereinafter referred to as the Act; Mineral Leasing Act for Acquired Lands, Act of August 7, 1947, 61 Stat. 913, 30 U.S.C. 351-359; Reorganization Plan No.3 of 1946, 60 Stat. 1099 and 43 U.S.C. 1201; [3 (Other) and to the regulations and general mining orders of the Secretary of the Interior in force on the date this lease issued. Sec. 2. Lessor, in consideration of any'bonuses, rents, and royalties to be paid, and the conditions and covenants to be ob- served as herein set forth, hereby grants and leases to lessee the exclusive right and privilege to explore for, drill for, mine, extract, remove, beneficiate, concentrate, or otherwise process and dispose of the copper depoits nickel and associated minerals hereinafter referred to as ?leased deposits," in, upon, or under the following described lands: see attached containing 2? 254 71 acres, more or less, together with the right to construct such works, buildings, plants, structures, equipment and appliances and the right to use such on-lease rights-of-way which may be necessary and convenient in the exercise of the rights and privileges granted, subject to the conditions herein provided. Phosphate In accordance with Section 11 of the Act (30 U.S.C. 213). lessee may use deposits of silica. limestone. or other lock in the processing or refining of the phosphates, phosphate rock, and associated or? related minerals mined from the leased lands or other lands upon payments of royalty as set forth on the attachment to this lease. (Pbospbate leases only.) Form 3520?7 (December 1984) a I CASE Document 72-2 Filed 02/21/17 Page 7 0f 9 PART II. TERMS AND CONDITIONS Sec. 1. RENTAL RATE -Lessee shall pay lessor rental annually and in advance for each acre or fraction thereof during the continuance of the lease at the rate indicated below: Sulphur, Gilsonite - 50 cents for the first lease year and each succeeding lease year; Hardroclr $1 for the first lease year and $1 for each succeeding lease year; Phosphate - 25 cents for the first lease year, 50 cents for the second and third lease years, and $1 for each and every lease year thereafter; Potassium, Sodium - 25 cents for the first calendar year or fraction thereof, 50 cents for the second, third, fourth, and fifth calendar years respectively, and $1 for the sixth and each suc- needing calendar year; or Sodium, Sulphur, Asphalt, and Hardrock Renewal Leases - 1, 00 for each lease year; RENTAL CREDITS The rental for any year will be credited against the first royalties as they accrue under the lease during the year for which rental was paid. Sec. 2. PRODUCTION Lessee shall pay lessor a production royalty in accordance with the attached schedule. Such production royalty is due the last day of the month next following the month in which the minerals are sold or removed from the leased lands. MINIMUM ANNUAL PRODUCTION AND MINIMUM ROY- ALTY (1) Lessee shall roduce 11 annual basis a minimum amount of nig?ei except when duction is interru ted basgte?lresml'l?ilsa - pro ens, or casu alties not attributable to the lessee. Lessor may permit suspension of operations under the lease when marketing conditions are such that the lease cannot be operated ex- cept at a loss. (2) At the request of the lessee, made priOr to initiation of the lease year, the authOrized officer may allow in writing the payment of a $3.00 per acre or fraction thereof minimum royalty in lieu of production for any particular lease year. Minimum royalty payments shall be credited to production royalties for that year Sec. 3. REDUCTION AND SUSPENSION ?In accordance with Section 39 of the Mineral Leasing Act, 30 U.S.C. 209, the lessor reserves the authority to waive, suspend or re- duce rental or minimum royalty, or to reduce royalty, and reserves the authority to assent to or order the suspension of this lease. we 4. BONDS Lessee shall maintain in the proper office a lease bond in the amount of 5.0 or in lieu thereof, an acceptable statewide or nationwide bond. The authorized officer may require an increase in this a- mount when additional coverage is determined approPriate. Sec. 5. DOCUMENTS, EVIDENCE AND INSPECTION - At such times and in such form as lessor may prescribe, lessee A shall furnish detailed statements showing the amounts and quality of all products removed and sold from the, lease, the proceeds therefrom, and the amount used for production purposes or unavoidably lost. Lessee shall keep open at all reasonable times for the inspection of any duly authorized officer of lessor, the leased premises and all surface and underground improve- ments, work, machinery, ore stockpiles, equipment, and all books, accounts, maps, and records relative to operations, surveys, or investigations on or under the leased lands. Lessee shall either submit or provide lessor access to and copying of documents reasonably necessary to verify lessee compliance with terms and canditions of the lease. While this lease remains in effect, infarmation obtained under this section shall be closed to inspection by the public in accordance with the Freedom of Information Act 5 U.S.C. 552). Sec. 6. DAMAGES TO PROPERTY AND CONDUCT OF OPERATIONS - Lessee shall exercise reasonable dili- gence, skill, and care in the operation of the property, and carry on all operations in accordance with approved methods and practices as provided in the operating regulations, hav- ing due regard for the prevention of injury to life, health or property, and of waste or damage to any water or mineral deposits. Lessee shall not conduct exploration or operations, other than casual use, prior to receipt of necessary permits or approval of plans of operations by lessor. Lessee shall carry on all operations in accordance with approved methods and practices as provided in the operating regulations, and the approved mining plans in a manner that minimizes adverse impacts to the land, air, and water, to cultural, biological, visual, minerals, and other resources, and to other land uses or users. Lessee shall take measures deemed necessary by lessor to accomplish the intent of this lease term. Such measures may include, but are not limited to, modification to proposed siting or design of facilities, timing of operations, and specification of interim and final reclamation procedures. Lessor reserves to itself the right to lease, sell, or other- wise dispose of the surface or other mineral deposits in the lands and the right to continue existing uses and to author- ize future uses upon or in the leased lands, including issu- ing leases for mineral deposits not covered hereunder or the approval of easements or rights of-way. Lessor shall condi- tion such uses to prevent unnecessary or unreasonable inter- ference with rights of lessee as may be consistent with con- cepts of multiple use and multiple mineral development. Sec. 7. PROTECTION OF DIVERSE INTERESTS, AND EQUAL OPPORTUNITY - Lessee shall: pay when due all taxes legally assessed and levied under the laws of the State or the United States; accord all employees complete freedom of purchase; pay all wages at least twice each month in lawful money of the United States; maintain a safe working environment in accordance with standard industry practices; restrict the workday to not more than_8 hours in any one day for underground workers, except in emergencies; and take measures necessary to protect the health and safety of the public. No person under the age of 16 years shall be employed in any mine below the surface. To the extent that laws of the State in which the lands are 0 situated are more restrictive than the provisions in this paragraph, then the State laws apply. Lessee will comply with all provisions of Executive Order No. 11246 of September 24, 1965, as amended, and the rules, regulations, and relevant orders of the Secretary of Labor. Neither lessee nor lessee?s subcontractors shall maintain segregated facilities. Sec 8. TRANSFERS This lease may be transferred in whole or in part to any person, association or corpora- tion qualified to hold such lease interest. RELINQUISHMENT - The lessee may relinquish in writing at any time all rights under this lease or any portion thereof as provided in the regulations. Upon lessor?s acceptanco of the relinquishment, lessee shall be relieved of all future obligations under the lease or the relinquished portion thereof, whichever is applicable. Sec. 9. DELIVERY OF PREMISES, REMOVAL OF MA- CHINERY, EQUIPMENT, ETC. - At such time as all or portions of this lease are returned to lessor, lessee shall deliver up to lessor the land leased, underground timbering, and such other supports and structures necessary for the preservation of the mine workings on the leased premises or deposits and place all wells in condition for suspension or abandonment. Within 180 days thereof, lessee shall remove from the premises all other structures, machinery, equipment, tools, and materials that it elects to or as required by the authorized officer. Any such structures, machinery, equipment, tools, and materials remaining on the leased lands beyond 180 days, or approved extension thereof, shall become the property of the lessor, but lessee shall either remove any or all such property or shall continue to be liable for the cost of removal and disposal in the amount actually incurred by the lessor. If the surface is owned by third parties, lessor shall waive the requirement For removal, provided the third parties do not object to such Sec. 14. SPECIAL STIPULATIONS CASE Document 72-2 Filed 02/21/17 Page 8 of 9 .. m? - waiver. Lessee shall, prior to the termination of bond liability or at any other time when required and in accord- ance with all applicable laws and regulations, reclaim all lands the surface of which has been disturbed, dispose of all debris or solid waste, repair the offsite and onsite damage caused by lessee?s activity or activities on the leased lands, and reclaim access roads or trails. Sec. 10. PROCEEDINGS IN CASE OF DEFAULT ?If lessee fails to comply with applicable laws, now existingIregula- tions, or the terms, conditions and stipulations of this lease. and the noncompliance continues for 30 days after written notice thereof, this lease shall be subject to cancellation by the lessor only by judicial proceedings. This provision shall not be construed to prevent the exercise by lessor of any other legal and equitable remedy, including waiver of the default. Any such remedy or waiver'shall not prevent later cancellation for the same default occuring at any other time. Sec. 11. HEIRS AND SUCCESSORS-IN-INTEREST - Each obligation of this lease. shall extend to and be binding upon, and every benefit hereof shall inure to, the heirs, executors, administrators, successors, or assigns of the respective parties hereto. Sec. 12. INDEMNIFICATION - Lessee shall indemnify and hold harmless the United States from any and all claims arising out of the lessee?s activities and operations under this lease. Sec. 13. SPECIAL STATUTES - This lease is subject to the Federal Water Pollution Control Act (33 U.S.C. 1151? 1175), the Clean Air Act (42 U.S.C. 1857 et. seq.), and to all other applicable laws pertaining to exploration activ- ities, mining operations and reclamation. The terms and conditions of the production royalties remains as stated in the attached original lease agreement. The minimum annual production and minimum royalty is $10.00 per acre or a fraction thereof as stated in the attached original lease agreement. (Section 14 continued on reverse) Document 72-2 Filed 02/21/17 Page 9 of 9 Sec. 14. SPECIAL STIPULATIONS (Cont.) fit/C0 #44015 Company or Lessee Name 127%; If (l (Signature 0/ Lessee) 52114 10M 51% 3 C7 ?7 (THE) 5/ M41 7 (Dale) THE UNITED STATES or AMERICA By (Signing O/Iicer) Deputy State Director for Mineral Resources {Title} :Jth 2 7 1939 (Date) Title 18 U.S.C. Section 1001. makes it a crime for any person knowingly and willfully to make to any department or agency of the United States any false, fictitious or fraudulent statements or representations as to any matter within its jurisdiction. NOTICE The Privacy Act of 1974 and the regulations in 43 CFR 2.48(d) provides that you be furinshed the following information inconnec- tion with information required under the terms of this lease. AUTHORITY: 30 U.S.C. 181 et seq.; 43 CFR 3500. DRINCIPAL PURPOSE: The information will be used to verify your compliance with the lease terms and in calculating royalty payments. ROUTINE USES: (1) Evaluation of the effects of theoperations on the environment. (2) Statistical reports to Congrees. (3X4) and (5) Information from the record and/or the record may be released or transferred to appropriate Federal, State or local agencies in allocating mineral revenue, for investigations of energy programs; and when relevant to civil, criminal or regu- latory investigations or prosecutions, as well as routine regu- . latory responsibility. EFFECT OF NOT PROVIDING INFORMATION: Disclosure of this information is mandatory only if the lessee elects to mine, extract, remove and/or dispose of the leased deposits. 'me Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.) requires us to inform you that: This information is being collected for use in calculating royalty payments and in verification of compliance with lease terms. Response to this request is mandatory only if the lessee elects. to mine, extract, remove and/or dispose of the leased deposits. (3 em mu oeu- uses-amuse? CASE 0:16-cv-03042-SRN-LIB Document 72-3 Filed 02/21/17 Page 1 of 12 Supplemental and Amended Complaint EXHIBIT 3 CASE Document 72-3 Filed 02/21/17 Page 2 of 12 I BUREAUOF MAW Dm_ It: means. UNITED STATES DEC 1 200 Serial Number DEPARTMENT on THE BUREAU or? LAND MANAGEMENT I PREFERENCE RIGHT LEASE RENEWAL 241.135 1352 PART I. LEASE RIGHTS GRANTED. This [3 Lease Lease Renewal entered into by and between the UNITED STATES OF through the Bureau of Land Management, hereinafter called lessor, and {Name and Address)- Amer?ican Copper E- Nickel Company 922 19th Street Golden Colorado S?u?l JAN 1 2904 . 1 hereinafter called lessee, is effective (date) . . for 3 Permit of 0' ream. Sodium, Sulphur, Hurdroclr 12E with preferential right in the lessee to renew for successive periods of 10 years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period. Potassium, Phosphate, Gilsom'lc - CI and for so long thereafter as lessee complies with the terms-and conditions of this lease which are subject to readjustment at the end of each year period. unless ether-wise provided by law. Sec. 1. This lease is issued pursuant and subject to the terms and provisions of the: Mineral Leasing Act of 1920, as amended. and supplemented, 41 Stat. 43?, 3t} U.S.C. 181?237, hereinafter referrer! to no the Act; Mineral Leasing Act for Acquired Lands, Act of August 194?. 61 Stat. 913. 30 U.S.C. 351?359; Em Reorganization Plan No. 3 of 1945, 60 Stat. 1099 and 43 U.S.C. 12m; (Other) mm; to the regulations and general mining orders of the Secretary of the Interior in force on the date this lees-e issued. Sec. 2.. Lessor. in consideration of any'honuses. rents, and royalties to he paid' and the conditions and covenants to be ob- served as herein set forth, hereby grants and leases to lessee the exclusive right and privilege to explore for, drill for, mine, extract, remove, beneficiate, concentrate, or otherwise process and disperse of the copper deposits nickel 6 associated minerals hereinafter referred to as "teased deposits,? in, upon. or under the following described land: SEE ATTACHED containing 2,510 .07 acre-3,; more or less, together with the right to construct such works, buildings, plants, structures, equipment and appliances and the right to use such err-lease rights-claws}! which may be necessary and convenient in the exercise of the rights and privileges granted,? subject to the conditions herein provided. Phosphate In accordance with Section 11 of the Act (30 U.S.C. 213), leasee may use deposits of silica, limestone. or other rock in the processing or refining of the phosphates, phosphate rock, and associated or related minerals mined from the leased lands or other lands upon payments of royalty as set forth on the-attachment to this lease. {Phosphate leases only.) E?s-rm 3313?? (December 1934} CASE Document 72-3 Filed 02/21/17 Page 3 of 12 C- In Lake County: Township 51 North, Range 11 West of the Fourth Principal Meri?ien: . Section 3, Lot 2 emu?1x11 of SPIul/ll- Ell/2 Section 5, Lots 1 end 2 3-1/2 of . Lot 6 7 nib. ?NE-l/li of sw?l/u 3-1/2 of SW-l/li of SE~l/h Section 6, Lots 13, 22, 23 and 2% Section 7, Lots ?Section 8, Lots 2 and 6 Section 9 All except Hal/2 Section 1 Lots 2, 7, 9, 12, 13, 11Section 19, Lots Township 62 North, Range 11 West of the Fourth Principe Meridian: - - . - .Section 27, of SH-l/h Section 32, Lot Section 33, Lots 6 and 7 Section In St. Louie'COunty: - Township 61 North, Range 12 West of the Fourth Principal Meridian: - Section 25, Lot 2 sw-i/h of sw-l/u .uh . CASE Document 72-3 Filed 02/21/17 Page 4 of 12 PART II. TERMS AND CONDITIONS Sec- 1. RENTAL RATE ?Lessee shall pay lessor rental annually and in advance for each acre' or fraction thereof during the continuance of the lease at the rate indicated below: Sulphur, Gilsonite 50 cents for the first lease year and each succeeding lease year; Hon-frock I CI $1 for the first lease year and $1 for each succeeding 'Tease year; Phosphate 25 cents for the first lease year, 50 cents for the second I I and third lease years, and $1 for 'each and every lease year thereafter; Potassium, Sodium l: 25 cents for the first calendar year or fraction thereof, cents for the second, third, fourth, and fifth calendar years respectively, and $1 for the sixth and each suc? ceeding calendar year; or Sodium Sulphur, Asphalt, and Hordrocfr Renewal Leases -- 3 1.00 for each lease year; RENTAL. CREDITS - The rental for any year will be credited against the first royalties as they accrue under the lease during the year for which rental was paid. Sec. 2. PRODUCTION ROYALTIESH Lessee shall pay lessor a production royalty in accordance with the attached schedule. Such produotion royalty is due the last day of the month next following the month in which the minerals are sold or removed from the leased lands. MINIMUM ANNUAL. AND MINIMUM ROY- ALTY (1) Lessee shall roduce ?fn annual basis a minimum amount of except when production is interruptdti or casu- alties not attributable to the lessee. Lessor may permit suspension of operations under the lease when marketing conditions are such that the lease cannot he operated ex- cept at a loss. At the request of the lessee, made prior to initiation of the lease year, the authorized officer may allow in Writing~ the payment of a $3.00 per acre or fraction thereof minimum royalty in lieu of production for any particular lease year. Minimum royalty payments shall be credited to production royaltiea for that year. See. 3. REDUCTION AND SUSPENSION In accordance with Section 39 of the Mineral Leasing Act, 30 U.S.C. 209, the lessor reserves the authority to waive, suspend or re- duce rental or minimum royalty. or to reduce royalty, and reserves the authority to assent to or order the suspension of this lease. or; 4 UDNDE - shall maintain in the proper office .- lease bond in the manual of 5 5,000+ - or in lieu thereof. an acceptable statewide or nationwide bond- The authorized officer may require an increase in this a- rount when additional coverage is determined appropriate. Sec. 5. DOCUMENTS, EVIDENCE AND INSPECTION - At such times and in such form as lessor may prescribe, lessee shall furnish detailed statements showing the amounts and quality of all products removed and sold from the. Isaac, the proceeds therefrom. and_the amount used for production purposes or unavoidably lost. Lessee shall keep open at all reasonable times for the inspection of any duly authorized officer of lessor, the leased premises and all surface and underground improve- ments, work, machinery, ore stockpiles, equipment, and all books, accounts, maps, and records relative to operations, surveys, or investigations on or_ under the leased lands. Lessee shall either submit or provide lessor access to and copying of documents reasonably necessary to verify lessee compliance with terms and conditions of the lease. While this lease remains in effect, information obtained under this section shall be closed to ins'pEction by the public in accordance with the Freedom of Information Act (5- U.s.c. 552). - Eric. 6. DAMAGES TD PROPERTY AND CONDUCT OF OPERATIONS r- Lessee shall exercise reasonable dili- gence, skill, and care in the operation of the property. and carry on all operations in accordance- with approved methods and practices as provided in the operating regulations, hav- ing due regard for the prevention of injury to life, health . or property, and of waste or damage to any water or mineral deposits. Lessee shall not conduct exploration or operations, other than casual use, prior to receipt of necessary permits or approval of plans of operations by lessar. Lessee shall carry on all operations in accordance with approved methods and practices as provided in?the operating regulations, and the approved mining plans in a manner that minimizes adverse impacts to the land, air, and water, to culturalI biological, visual, minerals, and other resources, and to other land uses or users. Lessee shalltalte measures deemed necessary by lessor to accomplish the intent of this lease term. Such measures may include, but are not limited to, modification to proposed siting or design of facilities, timing of operations, and specification of interim and final reclamation procedures. Lessor reserves to itself the right to lease, sell, or other- wise dispose of the surface or other mineral deposits in the lands and the right to continue existing uses and to author- ise future uses upon or in the leased lands, including issu- ing leases for mineral deposits not covered hereunder or the approval of easements or rights ofavay. Lessor shall condir tion such uses to prevent unnecessary or unreasonable inter- ference with rights of lessee as may be consistent with con- cepts of multiple use and multiple mineral development. Sec. T. PROTECTION OF DIVERSE INTERESTS, AND EQUAL OPPORTUNITY Lessee shall: pay when due all taxes legally assessed and levied under the laws of the State or the United States; accord all employees complete freedom of purchaseI pay all wanes at least twice each month in lawful money of the United States; maintain a safe working enviroruuent in accordance with standard industry practices; restrict the workday to not more thanrli hours in any one day for underground workers, except in emergencies; and take measures accessory to protect the health and safety of the public. No person under the age of 16 years shall be employed in any mine below the surface. Tn'lhe extent that laws of the State in which the lands are CASE Document 72-3 Filed 02/21/17 Page situated are more restrictive than the provisions in this paragraph, than the State laws apply. Lessee will comply with all provisions of Executive Order No. 11246 of September 24, 1965, as amended, and the rules, regulations, and relevant orders of the Secretary of Labor. Neither lessee nor lessee?s subcontractors shall maintain segregated facilities. Sec 3. TRANSFERS This lease may be transferred in whole or in part to any parson, association or corpora- tion qualified to hold such leaso interest. RELINQUISHMENT The lessee mapr relinquish in writing at any time all rights under this lease or an}.I portion thereof as provided in the regulations. Upon lessor?s acceptance of the relinquishment, lessee shall be relieved of all future obligations under the lease or the relinquished portion thereof. whichever is applicable. Sec. 9. DELIVERY OF PREMISES, REMOVAL CIF MA- Cl-llNEt??t?r?, EQUIPMENT, ETC. a At such time as all or portions of this lease are returned to lessar. lessee shall deliver up to lessor the land leased, underground timbering, and Such other supports and structures necessary for the preservation of the mine workings on the leased premises or deposits and place all wells in condition for suSpension or abandonment. Within 180 days thereof. lessee shall remove from the premises all other structures, machinery, equipment, tools, and materials that it elects to or as required by the authorized officer. Any such structures, equipment, tools, and materials remaining on the leased lands beyond 130 days, or approved extension thereof, shall become the property of the lessor. but lessee shall either remove any or all such property or shall continue to be liable for the cost of removal and disposal in the amount actually incurred by the lessor. If the surface is oivncd by third parties, lessor shall waive the requirement . {or ramoval, provided the third parties do not object to such Sec. 14. I. v. waiver. Lessee shall, prior to the termination of how. liability or at any other time when required and in accord- ance with all applicable laws and regulations, reclaim all lands the surface of which has been disturbed, dispose of all debris or solid waste, repair the _offsite and onsite damage caused by lessee's activity or activities on the leased lands, and reclaim access roads or trails. Sec. PROCEEDINGS 1N CASE OF DEFAULT ?If lessee fails to comply with applicable lawn, now existing__regula- tions, or the tenns,conditions and stipulations of this lease, and the noncompliance continues for 30 days after written notice thereof, this lease shall be subject to cancellation by the lessor only by judicial proceedings. This provision shall not be construed to prevent the exercise by lessor of any other legal and equitable remedy, including waiver of the default. Any sash rernedy or waiver'shall not prevent later cancellation for the same default accruing at any other time. Sec. II. HEIRS AND ?Each obligation of this lease.shall extend to and be binding upon, and emeryr benefit hereof shall inure to.I the heirs, executors, administrators. successors. or assigns of the respective parties hereto.? Sec. 12. Lessee shall indemnify and hold harmless the United States from any and all claims arising onto]? the lessee?s activities and operations under this lease. Seo. 13. SPECIAL STATUTES This lease is subject t? the Federal Water Pollution Control Act (33 use. 1151?7 1175), the Clean Air Act (42 U.S.C. 135? et. seq.}. and to all other applicable laws pertaining to exploration activ? ities; mining operations and reclamation. The terms and conditions of the production royalties remains as stated in the attached original lease agreement. The minimum annual production and minimum royalty is $10.00 per acre or: a fraction thereof as stated in the attached original lease agreemeat. (Section 14 continued on reverse) CASE Document 72-3 Filed 02/21/17 Page 6 of 12 0 Sec. 14. SPECIAL STJPULATIONS - (ContJ 24M (mt! Q?i? a! Mme; ?g Company or Name . 270qu (Signature of Lessee} UNITED STATES OF AMERICA Br L/z?n QXM [Signing Officer) - ?gemar I?'t'tioiri?z?ea Officer; (Title) (Title) Nougaw? 2.6. ?003, 052003 [Dare-J (Date) Title IE U.3.C. makes' il a Efim? [or any [35:59? and Willi-LII?? to make to any department or agency of the United States any false, fictilipue or fraudulent stateimmls nr- rEpresentotione as to any matter wi'thjn its jurisdiction. NOTICE 'The Privacy Act of 191?! and the regulations in 43 CFR 2.43m) provides that you be furinshed' the following information in connot- tion with informalicm required under the terms of this lease. AUTHOHHY: 30 U312. lot et seq.; 43 CFR 3500. PURPOSE: The information will be used your compliance with the tease terms and in calculating royalty payments. ROUTINE USES: Evaluation of the etfecte or theuperetions on the environment. Statistical reports to Congress. and Information From the racnfd andfm the record may he released or transferred to appropriate Federal, State at focal agencies in allocating mineral revenue, investigaiions of energy programs; and when relevant to civil. criminal or Hagu- latory investigations or as well as routine flu-gun l?lory UF- NOT PROVIDING INFORMATION: Disalusure of this is mandatory only it" the lessee- elects to mine, extract, remove andfor dispose of the leased deposits. The Paperwork Reduction Act of 1980 [44 U.S.C. 3501 et seq.) requires us to inform you that: This inromation is being collected for use in calculating royalty payments. and In verification of compliance with lease term; 'Reeponse to this request is mandatory onlyif the lessee elects to mine, extract, iamove and/or dispose of the leased deposits. ?our-mull"! my..th Drum: CASE Document 72-3 Filed 02/21/17 Page 7 of 12 CASE Document 72-3 Filed 02/21/17 Page 8 of 12 - Was?aw; t1 - I Cf, a mist ti api- Seriat Number UNITED STATES DEPARTMENT OF THE INTERIOR BUREAU OF LAND MANAGEMENT PREFERENCE RIGHT LEASE RENEWAL HNES 1353 PART l. LEASE RIGHTS GRANTED. This Lease Lease Renewal entered into by and between the STATES OF AMERICA, through the of Land Management, hereinafter called lessor, and (Home and Address} i. American COpPer E. Nickel. Company 922 19th Street' 'e 001' radio 80401 hereinafter ggi?edllesseefis effectiVe {date}. 1 for a period of 10 years, Sodium, Sulphur, Hordroctt i with preferential right in the lessee to renew for successive periods of as may be preacribed by the Secretary of the Interior, unleas otherwise provided by law at the expiration of any period. 10 years under such terms and conditions Potassium, Phosphate, Gitsonife CI and for so long thereafter as lessee complies with the terms and conditions of this lease which are subject to readjustment at the end of each year period, unless otherwise provided by law. Sec. 1. This lease is issned pursuant and subject to the terms and provisions of the: [3 Mineral Leasing Act of 1920, as amended, and supplemented, 41 Stat. 43?, 3t} U.S.C. 181?2877. hereinafter referred to as the Act; . [3 Mineral Leasing Act for Acquired Lands, Act of August 194?. 61 Stat. 913, 3D 11.3.13. 351?359; Reorganization Plan No. 3 of 1946. 150 Stat. 1099 and 43 U.S.C. 1201; If] (Other) the'regulations and general mining orders of the Secretary of the Interior in force on the date this lease issued. and Sec. 2. Lessor, in consideration of any'honuses, rents, and royalties to be paid, and the conditions and covenants to be oh" served as herein set forth, hereby grants and leases to lessee the exclusive right and privilege to explore 'for, drill'for, mine, extract, remove, beneficiate, concentrate, or otherwise process and dispose of the copper1 deposits ni?kf?l 5 associated minerals hereinafter referred to as "leased deposits,? in, upon, or under the following described lands: SEE A TTACHE Containing 2, 251}. 71 acres, more or less, together with the right to construct such works, buildings, plants, structures, equipment and appliances and the right to use such on?lease tights?of-way which may be necessafy and convenient the exercise-of the rights and privileges granted,.suhject to the Conditions herein provided. Ft. are . In accordance with Section ll of the Act (30 U.S.C. 213), lessee may use deposits of silica, limestone, or other rock in the processing or relining of the phosphates, phosphate rock, and associated or' related minerals mined from the leased lands or otherlands upon payments of royalty as set forth on theattachment to this lease. (Phosphate lenses catty.) 3520?? (Decernber 1934] CASE Document 72-3 Filed 02/21/17 Page 33-" I In Lake- County: . Township 62 North} Range 10 west of the Fourth Principal Meridian: . - i?eV Section 19, All Section 20, 3w;1/4 Section 29, N~l/2 - Section 3'0, . Lot of sw-1/u) Township 62 North, Range 11_Wesi; of the Fourth Principal Meridian: . Section 214, Lot "f .SE-l/u of swelfh Sui/2 of Section 25, 11?1/9 . w_1/2 of swul/h [undivided oneehalf jtherest I of SEnl/? Section. 26, 3-1/2 of NE?l/u of sw?l/u - - of inter-est CASE Document 72-3 Filed 02/21/17 Page 10 of 12 PART ll. TERMS AND CONDITIONS 1. RENTAL. RATE Lessee shall pay lessor rental annually and in advance for each acre or fraction thereof during the continuance of the leaselat the rate indicated below: Sulphur, Gilsonife - D50 cents for the first lease year and each succeeding lease year; Hordroclc I3 51 for the first lease year and $1 for each sucoeeding lease year; Phosphate El 25 cents for the first lease year, 50 cents for the second and third lease years, and $1 for 'each and every lease year thereafter; Potassium, Sodium l: 25 cents for the first calendar year or fraction thereof, 50 cents for the second, third, fourth, and fifth calendar years respectively, and $1 for the sixth and each suc- ceeding calendar year; or Sodium, Sulphur, Asphalt, and Hordroclc Renewal Lenses I3 3 . 00 for each lease year; RENTAL CREDITS ?The rental for any year will be credited against the first royalties as they accrue under the lease during the year for which rental was paid. Rec. 2. PRODUCTION Lessae shall lessor a production royalty in accordance" with the . sched schedule. Such production royalty is due the last day of the month next following the month in which the minerals are sold or removed from the leased lands. mmuum ANNUAL PRODUCTION AND MINIMUM ROY- ALTY - Lessee gigs-?311} ergducgig?e annual basis a minimum amount of exce when production is interruptedl $55391 Ihr casu- alties not attributable to the lessoe. Lossor may permit suspension of operations under the lease-when marketing conditions are such that the lease cannot be operated ex- cept at a loss. (2) At the request of the lessee, made prior to initiation of the lease year, the authorized officer may allow in writing the payment of a $3.00 per acre or fraction thereof minimum royalty in lieu of production for- any particular lease year. Minimum royalty payments shall be credited to production royalties for that year. Sec. 3. REDUCTION AND SUSPENSION In ascordance with Section 39 of the Mineral Leasing Act, 30 U.S.C. 209, the lessor reserves the authority to Waive, suspend or re- duce rental or minimum royalty, or to reduce royalty, and reserves the authority to assent to or order the suspension of this lease. Sec. 4. BONDS Lessee shall maintain in the proper office a lease bond in the amount of 5,000 'l or in lieu'thereof, an acceptable statewide or nationwide bond. The authorized officer may require an increase in this or "when additional coverage is determined appropriate. I See. 5: DOCUMENTS, EVIDENCE AND INSPECTION All such times and in such form as lessor may prescribe, lessee If?. shall furnish detailed statements showing the amounts and quality of all products removed and sold from the lease, the proceeds therefrom, and the amount usedlfor production purposes or unavoidably lost. Lessee shall keep open at all reasonable times for the inapection of any dulylauthorized officer of lessor, the leased premises and all surface and underground improve- ments, work, machinery, Ore stockpiles, equipment, and all books, accounts, maps, and records relative to operations, surveys, or investigations on or under the leased lands. Lessee shall either submit or provide lessor accesa to and copying of documents reasonably necessary to verify lessee Compliance with terms and conditions of the lease. While this lease remains in effect, information obtained under this section shall be closed to inspection by the public in accordance with the Freedom of Information Act [5 11.5.0. 552}. Sec. 5. DAMAGES T0 PROPERTY AND CONDUCT OF OPERATIONS - Lessee shall exercise reasonable dili- gence, skill, and care in the operation of the property, and carry on all operations in accordance with approved methods and practices as provided in the operating regulations, hav- ing due regard for the prevention of injury to life, health or property, and of waste or damage to any water or minteral deposits. Lessoe shall not conduct exploration or operations, other than casual use, prior to receipt of necessary permits or approval of plans of Operations by lessor. Lessee shall carry on all operations in accordance with approved methods and practices as provided in'the operating regulations, and the approved mining plans in a manner that . minimizes adverse impacts to the land, air, and water, to cultural, biological, visual, minerals, and other resources,- and to dther land usas or users. Lessee shalltalre measures deemed necessary by lessor to accomplish the intent of this lease term. Such measures may include, but are not limited to, modification to proposed siting at design of facilities, timing of operations, and specification of interim and final, reclamation prosedures. Lessor reServes to itself the right to lease, sell, or other- wise dispose of the surface or other mineral deposits in the lands and the right to continue existing uses and to author- ize future uses upon or in the leased lands, including issu- ing leases for mineral deposits not covered hereunder or the approval of easements 0r rights-oi-way. Lessor shall condi- tion such uses to prevent unnecessary or unreasonable inter- ference with rights of lessee as may'be consistent with con- cepts of multiple use and multiple mineral development. Sec. T. 0F DIVERSE ANC- EQUAL OPPORTUNITY Lessee shall: pay when due all taxes legally assessed and levied under the laws of the State or the United States; ascord all employees cowplete freedom of purchase; pay all wanes at least twice each month in lawful money of the United States; maintain a safe working environment in ascordance with standard industry practices; restrict the werhday to not more than 8 hours in any one day for underground workers, except in emergencies; and take measures necessary to protect the health and safety of the public. No person under the age of 16 years shall be employed in any mine below the surface. To the extent that laws of the State in which the lands are CASE Document 72-3 Filed 02/21/17 Page 11 of 12 situated are more restrictive than the provisions in this paragraph, then the State laws apply. Lessee will comply with all provisions of Executive Order No. 11246 of September 24, 1965, as amended, and the rules, regulations, and relevant orders of the Secretary of Labor. Neither lessee nor lessee?s subcontractors shall maintain segregated facilities. Sec, 8. TRANSFERS This lease may be transferred in whole or in part to any person, association or Corpora- tion qualified to held such lease interest. (11) RELINQUISHMENT The lessee may relinquish in writing at any time all rights under this lease or any portion thereof as provided in the regulations. Upon lessor?s acceptance of the relinquishment. lessee shall be relieved of all future obligations under the lease or the relinquished portion is applicable. SEC. 9. DELIVERY OF PREMISES, REMOVAL OF CHINERY, EQUIPMENT, ETC. ?At such time as all 'or portions of this lease are returned to lessor, lessee shall deliver up to lessor the land leased, underground timbering, and such other supports and structures necessary for the preservation of the mine workings on the leased premises or deposits and place all viells in condition for suspension or abandonment. Within 130 days thereof, lessee shall remove from the premises all other structures, machinery, equipment, tools, and materials that it elects to or as required by the authorized officer. Any such structures, machinery, equipment, tools, and materials remaining on the leased lands beyond 180 days, or approved extension thereof, shall become the property of the lessor, but lessee shall other remove any or all such property or shall continue to be. liable for the cost of removal and disposal in the amount actually incurred by the lessor. If the surface is owned by third parties, lessor shall waive the requirernent for removal, provided the third parties do not object to such Sec. 14. SPECIAL STIFULATIONS waiver. Lessee shall, prior to the termination of bond liability or at any other time when required and in ance with all applicable laws and regulations, reclaim lands the surface of which has been disturbed, dispose of all debris or solid waste, repair the _offsite and onsite damage caused by lessoe?s activity or activities on the leased lands, and, reclaim access roads or trails. SEC. 10. PROCEEDINGS IN CASE OF DEFHULT -lf lessee fails to comply with applicable laws, now existing regula- tions, or the terius,conditions and stipulations of this lease, and the noncompliance continues for 30 days after written notice thereof, this lease shall be subject to cancellation by the lessor only by judicial proceedings. This provision shall not be construed to prevent the exercise by lessor of any other legal and equitable remedy, including waiver of the default. Any such remedy or waiver?shall not'prevent later cancellation for the same default occuring at any other time. sec. 11. HEIRS AND Each obligation of this leaseshall extend to and be. binding upon, and every benefit hereof shall inure to, the heirs, executors,'administrators, successors, or assigns of the respective parties hereto. Sec. 12. INDEMNIFICATION - Lessee shall indemnify and hold harmless the United States from any and all claims arising out of the lessee?s activities and operations under this lease. . Sec. 13. SPECIAL STATUTES This lease is subject t" the Federal. Water Pollution Control Act {33 U.S.C. 1152 the Clean Air Act (42 U.S.C. 1857 et. seq.), and tr. all other applicable laws pertaining to exploration activ-- ities', mining operations and reclamation. it The terms and conditions of the productiOn royalties remains as stated in the attached original lease agreement. ?i The minimum annual production and minimum royalty is $10.00 per acre or a fraction thereof as stated in the Iattac ed original lease agreement. (Section 14 continued on reverse) CASE Document 72-3 Filed 02/21/17 Page 12 of 12 - Sec. 14. SPECIAL - (Calm) g. 1 Amos rm formed is} A/race?. [owe/v Company or Lessee Name 2902M Niagara}? of Lea-sod - (Tide) 142? 2003 {Date} THE UNITED STATES on AMERICA By lilo {Sign ing Of?cer) Kathi-mad of?ces (Title) BE 0 52003 (Dare) Title 18 U.S.C. Section 11301, makes it erime for any person knowingly and to make to any department or ageney of the United States any false. fictitious er fraudulent statements of rcpresentations as to any matter within its jurisdiction. NOTICE 'The Privacy Act of 1974 and the regulations in 43 CFR 2.48M) provides that you be the following information in connec- tion with information required under the terms of this lease. AUTHORITY: 30 U.S.C. 131 et seq.; 43 CFR 350D. PRINCIPAL PURPOSE: The intermntion will be used to-Yerify your compliance wilh the lease terms and in calculating royalty payments. ROUTINE USES: - Evaluation of the effects of thenperauans on the environment. Statistical reports to CongreSS. {33(4) and Information from the record andfor the record may be ?sed or transferred to appropriate FederalJ State or local ates in allocating mineral revenue, for incestigations of L. Lg}! programs; and when relevant to civil, criminal or regu- latory inv?stigations or prosecutions, as well as routine fegu- lalory responsibility. EFFECT OF NOT INFORMATION: Disclosure of this ininrmation is mandatory only if the IESsee elects to mine. extract, remove andfor dispose oi the leased doposits. The Paperwork Reduction Act of 1930 (44 3501 et seq.) I'Equirea us to inform you that: This information is being collected for use in calculating royaltyIr payments and in verification of compliance with lease terms. Response to this request is mandatory the lessee electr- to mine, extract, remove andfor dispose of the 'IeaSEd deposits. Government omn. M- Memorandum To: Director. Bureau of Land Management From: Solicitor Subject: Reversal of M-37036. "Twin Metals Minnesota Application to Renew Preference Right Leases (WES-01352 and On October 21. 2012. Twin Metals Minnesota (TMM ?led an a lication with the Bureau of Date: November 17, 2017 To: Jack Haugrud Deputy Solicitor, Energy and Mineral Resources From: Tom Bovard Acting Associate Solicitor, Mineral Resources Subject: DMR Friday Updates to Weekly Report Below is a list of new or updated items that did not appear in the weekly report that may require the attention of the front office during the week of November 20-24, 2017, or thereafter: (b) (5) DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential DRAFT Privileged and Confidential Wednesday, November 15, 2017 I. II. OSMRE A. B. BLM BLM coal report C. D. Venting and flaring rulemaking F. Wyoming v. Zinke (10th Cir.) (hydraulic fracturing rule challenge) BOEM Twin Metals Hydraulic Fracturing rescission rule A. 5-year DPP C. Security Act B. IV. WVDEP ethics determination A. B. III. Farrell Cooper negotiations D. BOEM Air Quality Rulemaking BSEE NRDC meeting A. Alaska suspensions B. Well Control Rule (and NEPA) D. SEMS jurisdiction for artificial islands in state waters C. Production Safety Systems rule E. Taylor F. Monforte and Presido G. Whistleblower PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION October 2017 Division of Mineral Resources Litigation Report to the Assistant Secretary, Land and Minerals Management (b) (5) 1 PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATION REGARDING PENDING LITIGATION Wednesday, November 8, 2017 I. OSMRE A. Wyoming, Pennsylvania, Kentucky and Oklahoma program amendments C. Utah program amendment B. D. II. E. BLM Clean Water Act & SMCRA UMWAF memo A. Twin Metals C. Venting and flaring litigation and rulemaking WEA v. Zinke (D.N.M.) (quarterly lease sale case) D. Hydraulic Fracturing rescission rule E. Wyoming v. Zinke (10th Cir.) (hydraulic fracturing rule) F. Drafting Service for Onshore Minerals Bill (ASTRO Act) B. III. Grant to Tennessee for program development BOEM A. 5-year DPP C. BOEM Air Quality Rulemaking B. D. E. Northstar Supplemental DPP ASTRO Act Order of recourse IV. BSEE A. B. C. D. E. SEMS jurisdiction for artificial islands in state waters Well Control and Subpart H Rule developments Taylor and DOJ Monforte/Presido Director's question re meetings M- Memorandum To: From: Subject: Director. Bureau of Land Management Solicitor Reversal of M-37036. "Twin Metals Minnesota Application to Renew Preference Right Leases (WES-01352 and M- Memorandum To: From: Subject: Director. Bureau of Land Management Solicitor Reversal of M-37036. "Twin Metals Minnesota Application to Renew Preference Right Leases (WES-01352 and M- Memorandum To: From: Subject: Director. Bureau of Land Management Solicitor Reversal of M-37036. "Twin Metals Minnesota Application to Renew Preference Right Leases (WES-01352 and Date: November 3, 2017 To: Jack Haugrud Deputy Solicitor, Energy and Mineral Resources From: Karen Hawbecker Associate Solicitor, Mineral Resources Subject: DMR Friday Updates to Weekly Report Below is a list of new or updated items that did not appear in the weekly report that may require the attention of the front office during the week of November 6-10, 2017, or thereafter: Significant Decisions: ● (b) (5) Litigation: ● (b) (5) Legislation: Correspondence/Agency Actions: 0 (b) (5) ● (b) (5) ● (b) (5) Meetings: ● (b) (5) cc: Tom Bovard/Richard McNeer/Dennis Daugherty 4 United States Department of the Interior OFFICE OF THE SOLICITOR 1829 C STREET N.W., MS-6554 WASHINGTON, D.C. 20240 Attorney-Client Privileged Communication October 13, 2017 Memorandum To: Ryan Zinke, Secretary, DOI David Bernhardt, Deputy Secretary, DOI James Cason, Associate Deputy Secretary, DOI Elinor Renner, Immediate Office of the Secretary, DOI Caroline Boulton, Immediate Office of the Secretary, DOI Julie Lillie, Immediate Office of the Secretary, DOI Downey Magallanes, Immediate Office of the Secretary, DOI Margaret Bradley, Immediate Office of the Secretary, DOI David Alspach, Immediate Office of the Secretary, DOI Katherine MacGregor, Acting Assistant Secretary for Lands and Minerals, DOI Rich Cardinale, Chief of Staff, DOI Michael D. Nedd, Acting Director, BLM John Ruhs, Acting Deputy Director, Operations, BLM Brian Steed, Deputy Director, Policy, BLM Kathleen Benedetto, Senior Adviser, BLM Cally Younger, Counselor, BLM Peter Mali, Acting Chief of Staff, BLM Anita Bilbao, Associate State Director, Utah State Office, BLM Brendan Quinn, Special Assistant to the Associate Deputy Secretary, DOI Jeff Brune, Senior Advisor, BLM Kelly Orr, Senior Advisor, BLM Paul Ross, Senior Public Affairs Specialist, DOI Timothy Spisak, Acting Director, Energy, Minerals & Realty Management, BLM Mitchell Leverette, Acting State Director, Eastern States Office (ESO), BLM Alfred Elser, Acting Chief, Division of Solid Minerals, BLM Karen Mouritsen, Acting State Director, Alaska State Office, BLM Elena Fink, ESO Deputy State Director, Natural Resources, BLM Brian Smith, State Records Administrator, ESO, BLM Dean Gettinger, District Manager, Northeastern States District, BLM Trey Mitchell, Acting Assistant District Manager, Northeastern States District, BLM Franconia Minerals LLC v. United States Litigation Hold Notice – October 13, 2017 Kurt Wadzinski, District Records Administrator, Northeastern States District, BLM Timothy Howell, Mining Engineer, Rolla Resource Office, BLM Craig Leff, Office of Wildland Fire, DOI Megan Crandall, Supervisory Public Affairs Specialist, BLM Joshua Campbell, Advisor, SOL Daniel Jorjani, Acting Solicitor & Principal Deputy Solicitor, SOL Jack Haugrud, Deputy Solicitor, Energy & Mineral Resources, SOL Karen Hawbecker, Associate Solicitor, Division of Mineral Resources, SOL Richard McNeer, Assistant Solicitor, Division of Mineral Resources, SOL Roy Fuller, Attorney-Adviser, Division of Mineral Resources, SOL Kendra Nitta, Attorney-Adviser, Division of Mineral Resources, SOL Stephen Mahoney, Attorney-Adviser, Pittsburgh Field Office, SOL From: Briana Collier, Attorney-Adviser, SOL Division of Mineral Resources Joshua Hanson, Attorney-Adviser, SOL Division of Land Resources Ryan Sklar, Attorney-Adviser, SOL Division of Land Resources Justin Katusak, Acting Litigation Coordinator, BLM Subject: Litigation Hold and Retention of Records Required Franconia Minerals (US) LLC et al. v. United States et al., No. 0:16-cv-03042-SRNLIB, United States District Court for the District of Minnesota Leases number MNES 001352 and MNES 001353 (b) (5) 2    ranconia Minerals LLC v. United States Litigation Hold Notice October 13, 2017 ranconia Minerals LLC v. United States Litigation Hold Notice October 13, 2017 ranconia Minerals LLC v. United States Litigation Hold Notice October 13, 2017 ranconia Minerals LLC v. United States Litigation Hold Notice October 13, 2017 ranconia Minerals LLC v. United States Litigation Hold Notice October 13, 2017 United States Department of the Interior OFFICE OF THE SOLICITOR 1829 C STREET N.W., MS-6554 WASHINGTON, D.C. 20240 Attorney-Client Privileged Communication May 9, 2017 Memorandum To: Ryan Zinke, Secretary, DOI James Cason, Acting Deputy Secretary, DOI Kathy Benedetto, Special Assistant to the Secretary, DOI/BLM Katherine MacGregor, Acting Assistant Secretary for Lands and Minerals, DOI Rich Cardinale, Chief of Staff, ASLM DOI Mike Nedd, Acting Director, BLM John Ruhs, Acting Deputy Director, Operations, BLM Shannon Stewart, Acting Chief of Staff, BLM Brendan Quinn, Special Assistant to the Acting Deputy Secretary, DOI Jeff Brune, Senior Advisor, BLM Kelly Orr, Senior Advisor, BLM Paul Ross, Senior Public Affairs Specialist, DOI Timothy Spisak, Acting Director, Energy, Minerals & Realty Management, BLM Mitchell Leverette, Chief, Division of Solid Minerals, BLM Alfred Elser, Division of Solid Minerals, BLM Karen Mouritsen, State Director, Eastern States Office (ESO), BLM Elena Fink, ESO Deputy State Director, Natural Resources, BLM Brian Smith, State Records Administrator, Eastern States Office, BLM Dean Gettinger, District Manager, Northeastern States District, BLM Trey Mitchell, Acting Assistant District Manager, Northeastern States District, BLM Kurt Wadzinski, District Records Administrator, Northeastern States District, BLM Timothy Howell, Mining Engineer, Rolla Resource Office, BLM Matthew Allen, Assistant Director Communications and Public Relations, BLM Craig Leff, Office of Wildland Fire, DOI Megan Crandall, Supervisory Public Affairs Specialist, BLM Jack Haugrud, Acting Solicitor, DOI Karen Hawbecker, Associate Solicitor, Division of Mineral Resources, DOI Kendra Nitta, Attorney-Adviser, Division of Mineral Resources, DOI Stephen Mahoney, Attorney-Adviser, Pittsburgh Field Office, DOI Franconia Minerals LLC v. United States Litigation Hold Notice – May 9, 2017 From: Briana Collier, Attorney-Adviser, SOL Division of Mineral Resources Joshua Hanson, Attorney-Adviser, SOL Division of Land Resources Ryan Sklar, Litigation Coordinator, Washington Office, BLM Justin Katusak, Litigation Coordinator, Eastern States Office, BLM Subject: Litigation Hold and Retention of Records Required Franconia Minerals (US) LLC et al. v. United States et al., No. 0:16-cv-03042-SRNLIB, United States District Court for the District of Minnesota Leases number MNES 001352 and MNES 001353 (b) (5) 2 ranconia Minerals LLC v. United States Litigation Hold Notice May 9, 2017 ranconia Minerals LLC v. United States Litigation Hold Notice May 9, 2017 ranconia Minerals LLC v. United States Litigation Hold Notice May 9, 2017 ranconia Minerals LLC v. United States Litigation Hold Notice May 9, 2017 Franconia Minerals LLC v. United States Litigation Hold Notice – May 9, 2017 I ACKNOWLEDGE THAT I HAVE RECEIVED, READ, AND UNDERSTAND THIS NOTICE AND THAT I WILL COMPLY WITH THE INSTRUCTIONS IT PROVIDES. _____________________________ Employee Name & Job Title _____________________________ Employee Signature ______________________ Date 7 M-Opinion reversal arguments Commented Commented UNITED STATES DISTRICT COURT FOR THE DISTRICT OF FRANCONIA MINERALS (US) LLC and TWIN IVIETALS MINNESOTA LLC. Plaintiffs. V. UNITED STATES OF AMERICA. 9! Defendants. and NORTHEASTERN MINNESOTAN FOR WILDERNESS. Defendant-Intervenor. CIVIL NO. 16-3042 1t1011. .1 Commented p?l DJ Commented Commented Commented CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 1 of 62 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA FRANCONIA MINERALS (US) LLC; and TWIN METALS MINNESOTA LLC, Plaintiffs, v. UNITED STATES OF AMERICA, et al., Civil Action No. 16-3042 SRN/LIB Defendants, and NORTHEASTERN MINNESOTANS FOR WILDERNESS, Defendant-Intervenor. PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 2 of 62 TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES ............................................................................... iii INTRODUCTION .................................................................................................1 STATEMENT ........................................................................................................2 A. Prospecting Permits And Valuable Mineral Discovery ..................2 B. Governing Federal Law And The 1966 Leases ...............................3 C. 1989 And 2004 Renewals .................................................................4 D. 2012 Renewal Application ................................................................5 E. This Action ........................................................................................6 SUMMARY OF ARGUMENT ..............................................................................6 STANDARD OF REVIEW ....................................................................................8 ARGUMENT .........................................................................................................8 I. II. THIS COURT HAS JURISDICTION OVER FRANCONIA’S QTA CLAIM ...........................................................................................................9 A. Franconia’s QTA Claim Seeks Adjudication Of Rights In Real Property ............................................................................. 10 B. The Tucker Act Does Not Affect This Court’s Jurisdiction Over Franconia’s QTA Claim ................................... 16 THIS COURT HAS JURISDICTION OVER PLAINTIFFS’ APA CLAIMS ...................................................................................................... 20 A. The Tucker Act Does Not “Impliedly Forbid” The Relief Plaintiffs Seek Under The APA.......................................... 21 1. Plaintiffs’ rights and requested remedies are not derived solely from contract ................................................. 22 i CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 3 of 62 2. III. The Tucker Act does not create an exclusive remedy for all contract claims in the Court of Federal Claims ..................................................................... 24 B. There Is No Adequate Alternative Remedy ................................. 28 C. The Forest Service’s Decision To Deny Consent To Lease Renewal Is Reviewable ....................................................... 30 1. There are meaningful standards against which to judge the Forest Service’s decision .................................. 32 2. The nature of the Forest Service’s decision confirms that it is not committed to agency discretion .............................................................................. 40 PLAINTIFFS HAVE SUFFICIENTLY STATED CLAIMS FOR RELIEF UNDER THE APA .......................................................................... 42 A. Count II Sufficiently Claims That The Applicable Regulation Grants A Non-discretionary Right To Renewal .......................................................................................... 44 B. Count III Sufficiently Claims That The Leases Grant A Non-discretionary Right To Renewal ........................................ 47 C. 1. The terms of the Leases govern the renewal right ................ 48 2. The 2004 lease renewals include a nondiscretionary right to renewal ............................................. 49 3. The Leases do not impose a production requirement as a condition precedent to renewal ............... 49 Count IV Sufficiently Claims That The Forest Service’s Denial Of Consent Violates The APA ........................... 51 CONCLUSION ................................................................................................... 52 CERTIFICATE OF COMPLIANCE ii CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 4 of 62 TABLE OF AUTHORITIES CASES Page(s) Abdelwahab v. Frazier, 578 F.3d 817 (8th Cir. 2009) ...................................... 34 Alaska Department of Natural Resources v. United States, 816 F.3d 580 (9th Cir. 2016).................................................................... 11 Barlow v. Collins, 397 U.S. 159 (1970) ............................................................. 20 Block v. North Dakota ex rel. Board of University & School Lands, 461 U.S. 273 (1983) ............................................................... 16, 18 Bowen v. Massachusetts, 487 U.S. 879 (1988) ...................................... 25, 26, 30 Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986) .................................................................................................. 20, 31 Branson Label, Inc. v. City of Branson, Missouri, 793 F.3d 910 (8th Cir. 2015) .............................................................................................8 Cadorette v. United States, 988 F.2d 215 (1st Cir. 1993) ................................ 12 Central Platte Natural Resources District v. U.S. Department of Agriculture, 643 F.3d 1142 (11th Cir. 2011)........................................... 29 Christopher Village, L.P. v. United States, 360 F.3d 1319 (Fed. Cir. 2004) ........................................................................................ 29 Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) ........................................................................................................ 31 City of Oakland v. Lynch, 798 F.3d 1159 (9th Cir. 2015) ................................ 30 Colorado Environmental Coalition v. Wenker, 353 F.3d 1221 (10th Cir. 2004) ........................................................................................ 33 County of Suffolk v. United States, 19 Cl. Ct. 295 (1990) ................................ 30 Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073 (9th Cir. 2013) ..................... 36 Dunbar Corp. v. Lindsey, 905 F.2d 754 (4th Cir. 1990)................................... 12 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) ................ 38, 39, 40 iii CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 5 of 62 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).................. 42 FDIC v. Hulsey, 22 F.3d 1472 (10th Cir. 1994) ................................................ 14 Foster v. United States, 607 F.2d 943 (Ct. Cl. 1979) ........................................ 14 Friends of Norbeck v. U.S. Forest Service, 661 F.3d 969 (8th Cir. 2011) ................................................................................................... 31, 38 Ginsberg v. United States, 707 F.2d 91 (4th Cir. 1983) ............................. 12, 15 Heckler v. Chaney, 470 U.S. 821 (1985) ............................................................ 41 Home Builders Ass’n of Greater Chicago v. U.S. Army Corps of Engineers, 335 F.3d 607 (7th Cir. 2003) ................................................. 33 International Engineering Co. v. Richardson, 512 F.2d 573 (D.C. Cir. 1975) ........................................................................................ 30 International Union, United Automotive, Aerospace & Agricultural Implement Workers of America v. Brock, 783 F.2d 237 (D.C. Cir. 1986) .................................................................. 36 Johnson v. U.S. Department of Agriculture, 734 F.2d 774 (11th Cir. 1984) ........................................................................................ 19 King v. Burwell, 135 S. Ct. 2480 (2015)............................................................ 42 Kinscherff v. United States, 586 F.2d 159 (10th Cir. 1978) ............................. 12 Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015) ...................................... 20 Mafrige v. United States, 893 F. Supp. 691 (S.D. Tex. 1995) .............. 10, 13, 14 MCI Telecommunications Corp. v. AT&T Co., 512 U.S. 218 (1994) ............... 42 McKay v. United States, 516 F.3d 848 (10th Cir. 2008) ............................ 17, 18 McMaster v. United States, 177 F.3d 936 (11th Cir. 1999) ............................. 12 Megapulse, Inc. v. Lewis, 672 F.2d 959 (D.C. Cir. 1982) ..................... 22, 23, 24 Motor Vehicle Manufacturers Ass’n of U.S., Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983).......................... 51 National Wildlife Federation v. EPA, 980 F.2d 765 (D.C. Cir. 1992) ......................................................................................................... 35 iv CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 6 of 62 Natural Resources Defense Council, Inc. v. Berklund, 609 F.2d 553 (D.C. Cir. 1979) ........................................................................... 46, 49 North Star Alaska v. United States, 14 F.3d 36 (9th Cir. 1994) ..................... 28 O’Hagan v. United States, 86 F.3d 776 (8th Cir. 1996) ............................. 19, 29 Ochoa v. Holder, 604 F.3d 546 (8th Cir. 2010) ................................................. 31 Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654 (D.C. Cir. 1975) ......................................................................................................... 30 Patterson v. Buffalo National River, 76 F.3d 221 (8th Cir. 1996) ............. 12, 13 Pelfresne v. Village of Williams Bay, 865 F.2d 877 (7th Cir. 1989) ................ 19 Perry Capital LLC v. Mnuchin, 848 F.3d 1072 (D.C. Cir. 2017) ..................... 29 Pinnacle Armor, Inc. v. United States, 648 F.3d 708 (9th Cir. 2011) ....................................................................................... 35, 37, 40, 41 R.J. Reynolds Tobacco Co. v. U.S. Department of Agriculture, 130 F. Supp. 3d 356 (D.D.C. 2015) ................................................................. 43 Reese Brothers, Inc. v. U.S. Postal Service, 905 F. Supp. 2d 223 (D.D.C. 2012) ............................................................................................ 41 San Antonio Savings Ass’n v. Commissioner, 887 F.2d 577 (5th Cir. 1989) .......................................................................................... 19 Sang Goo Park v. Attorney General, 846 F.3d 645 (3d Cir. 2017) ............. 35, 39 School Board of Avoyelles Parish v. U.S. Department of Interior, 647 F.3d 570 (5th Cir. 2011).................................................................... 12 Shaughnessy v. Eidsmo, 23 N.W.2d 362 (Minn. 1946) .................................... 19 Sierra Club v. Clinton, 689 F. Supp. 2d 1147 (D. Minn. 2010) ....................... 43 Slaaten v. Cliff’s Drilling Co., 748 F.2d 1275 (8th Cir. 1984) ................... 10, 14 Starter Corp. v. Converse, Inc., 170 F.3d 286 (2d Cir. 1999) ........................... 49 Steenholdt v. FAA, 314 F.3d 633 (D.C. Cir. 2003)............................................ 37 v CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 7 of 62 Suburban Mortgage Associates, Inc. v. U.S. Department of Housing & Urban Development, 480 F.3d 1116 (Fed. Cir. 2007) ......................................................................................................... 30 Tamenut v. Mukasey, 521 F.3d 1000 (8th Cir. 2008) ......... 31, 32, 34, 39, 40, 41 Tovar v. Essentia Health, 857 F.3d 771 (8th Cir. 2017) .....................................8 Toxco Inc. v. Chu, 724 F. Supp. 2d 16 (D.D.C. 2010) ....................................... 41 Transohio Savings Bank v. Director, Office of Thrift Supervision, 967 F.2d 598 (D.C. Cir. 1992) .......................................... 24, 25, 27, 28, 30 United States v. Bedford Associates, 657 F.2d 1300 (2d Cir. 1981) ................ 12 United States v. Lambert, 146 F.2d 469 (2d Cir. 1944) ................................... 19 United States v. Mottaz, 476 U.S. 834 (1986) ................................................... 16 United States v. Security Industry Bank, 459 U.S. 70 (1982) ......................... 45 United States v. Sperry Corp., 493 U.S. 52 (1989) ........................................... 19 United States v. Woods, 134 S. Ct. 557 (2013) ................................................. 26 Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014) ......................... 42 V S Ltd. Partnership v. Department of Housing & Urban Development, 235 F.3d 1109 (8th Cir. 2000) .......................................... 28 Wilson v. Arkansas Department of Human Services, 850 F.3d 368 (8th Cir. 2017) .............................................................................................8 STATUTES AND REGULATIONS 5 U.S.C. §701 ............................................................................................... 31, 33, 41 §702 ............................................................................................... 20, 24, 26 §704 ..................................................................................................... 28, 29 16 U.S.C. §508b ................................................................................ 32, 33, 35, 36 28 U.S.C. §1346 ................................................................................................... 11, 24 §1491 ............................................................................................. 16, 24, 25 §2409a ................................................................................. 9, 10, 11, 16, 18 vi CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 8 of 62 30 U.S.C. §22 et seq. ....................................................................................................1 §181 et seq. ..................................................................................................1 §201 ..............................................................................................................1 §351 et seq. ..................................................................................................1 Tucker Act, 24 Stat. 505 (1887)......................................................................... 26 Minn. Stat. Ann. §93.055................................................................................... 14 43 C.F.R. Pt. 3220 (1966) ..................................................................................... 1, 35 §3221.4 (1966) ........................................................ 3, 22, 23, 35, 44, 46, 47 §3325.0-3 (1966) ....................................................................................... 35 §3325.2 (1966) .................................................................................... 36, 46 §3325.3 (1966) .......................................................................................... 35 LEGISLATIVE MATERIALS H.R. Rep. No. 81-795 (1949) .............................................................................. 34 H.R. Rep. No. 92-1559 (1972) ...................................................................... 10, 11 S. Rep. No. 81-1778 (1950) ............................................................................ 3, 34 S. Rep. No. 92-575 (1971) .................................................................................. 18 OTHER AUTHORITIES Assistant Secretary, Land & Water Resources Assistant Secretary, Energy & Minerals, GFS(MIN) SO-2 (1982) (Sept. 17, 1981), 1981 WL 29121 ............................................................................. 44 Forest Service Manual, available at https://www.fs.fed.us/im/ directives/dughtml/fsm.html (last modified Nov. 3, 1997) .............. 37, 38 Superior National Forest Land and Resource Management Plan (2004), available at https://www.fs.usda.gov/main/superior/ landmanagement/planning ..................................................................... 38 vii CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 9 of 62 INTRODUCTION Federal law and policy have long recognized that the nation has a strong interest—from both an economic and a national-security perspective— in the development of hardrock minerals on public lands. Prospecting for and developing those minerals, however, is difficult, expensive, and timeconsuming. For over a century, therefore, federal law has given developers an incentive to overcome those difficulties and explore for unknown geologic deposits on public lands. That incentive is secure mineral tenure. The precise form of the mineral-tenure right has varied over time, but the principle is settled: The discovery of valuable minerals entitles a prospector to an enduring property right in the mineral estate. See Am. Compl. ¶¶30-39, 53-57 (discussing 30 U.S.C. §§22 et seq., 181 et seq., 201(b), 351 et seq.; 43 C.F.R. Pt. 3220 (1966)). This right does not necessarily mean that the developer will be allowed to extract the minerals; it must submit a mine plan to the relevant government agencies, which will conduct the required environmental review (including soliciting public comment). But the property right remains critically important. Without it, no rational prospector would undertake the extraordinary investment of time and money—in this case, decades and hundreds of millions of dollars—necessary for mineral exploration and development. Put simply, secure mineral tenure is the foundation of hardrock mineral development. -1- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 10 of 62 The government’s conduct here impermissibly redefines this mineraltenure right, from one that is secure and enduring to one that can be revoked for any reason, or no reason at all. As this case illustrates, that change has far-reaching consequences: The government has denied plaintiffs any chance for a return on the $400 million they have invested—in reliance on their rights under federal law and leases that embodied those rights—to develop one of the largest untapped copper and nickel reserves in the world. It has also prejudiced plaintiffs’ mineral rights on other federal, state, and private lands. And it has jeopardized local and national interests that are crucial to the economy and national security. Defendants’ efforts to pretermit plaintiffs’ challenges to this unlawful conduct should be rejected. STATEMENT A. Prospecting Permits And Valuable Mineral Discovery Plaintiffs Franconia Minerals (US) LLC and Twin Metals Minnesota LLC are Minnesota mining companies who, along with their predecessors in interest, have been prospecting for hardrock minerals in northeastern Minnesota for over five decades. In the 1950s, plaintiffs’ predecessor applied for prospecting permits in that region. Am. Compl. ¶58. After obtaining the consent of the Forest Service, the Interior Department granted those applications. Id. ¶59. -2- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 11 of 62 Plaintiffs’ predecessor subsequently discovered a valuable mineral deposit in the region. Am. Compl. ¶60. This deposit lies outside both the Boundary Waters Canoe Area Wilderness, where mining is prohibited, and the congressional “buffer zone” established around the Wilderness. Id. ¶¶51, 52. It lies instead inside an area where, according to the Senate report that accompanied the Act of 1950, mining was encouraged as a “highly desirable” activity. S. Rep. No. 81-1778, at 2 (1950). B. Governing Federal Law And The 1966 Leases By virtue of their valuable mineral discovery, plaintiffs’ predecessors obtained property rights in the mineral estate under federal law. See 43 C.F.R. §3221.4(a), (f) (1966); Am. Compl. ¶¶53-57, 110, 118. Specifically, they were entitled to a lease for the minerals in the subject lands—a lease that included a “right of renewal.” 43 C.F.R. §3221.4(a), (f) (1966). In 1966, plaintiffs’ predecessors secured two such leases, executed by the Bureau of Land Management (“BLM”) on behalf of the Interior Department: MNES01352 and MNES-01353 (“the Leases”). Am. Compl. ¶¶2, 63. The Forest Service (which as noted fully consented at the prospecting stage) retained only limited authority during the later renewal stage; its role was restricted to suggesting terms and conditions in connection with any renewals, including conditions “for the protection of the surface of the land.” 43 C.F.R. §3221.4(f) (1966); see Am. Compl. ¶72. This limited authority balanced the -3- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 12 of 62 government’s interests and the lessee’s: Because renewal could not be denied outright, the lessee’s mineral tenure was secure. But if over time the Forest Service developed concerns about impacts on the surface, it could, in connection with a lease renewal, suggest lease stipulations to address those concerns. The Leases, which expressly refer to the right-of-renewal regulation, grant plaintiffs the “exclusive right to mine, remove, and dispose” of all the copper, nickel, and associated minerals in lands covered by the Leases for a period of 20 years, with a “right in the Lessee to renew the same for successive periods” of 10 years. Am. Compl. Ex. 1 at 1 (Leases §1(a)). C. 1989 And 2004 Renewals In accordance with federal law and the Leases, BLM renewed the Leases in 1989 and 2004. Each renewal attached the Leases in full, and retained all of their terms and conditions. Am. Compl. ¶¶70, 82. (Defendantintervenor disputes that the renewals incorporated all of the Leases’ terms, but that dispute cannot be resolved in its favor on a motion to dismiss.) As part of both lease-renewal processes, BLM received the Forest Service’s agreement that the Leases’ terms and conditions sufficed to protect the surface resources of the United States. Am. Compl. ¶¶72, 80. Neither agency suggested that the Forest Service could withhold consent entirely. Id. ¶¶72, 79. -4- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 13 of 62 The 1989 and 2004 renewals did not mean that plaintiffs could begin mining. As noted earlier, mining cannot occur until after plaintiffs present an actual mine plan to the relevant government agencies, which will then undergo extensive and rigorous environmental review, including analysis of potential effects on natural resources as well as social, cultural, and economic resources. The renewals simply gave the parties an opportunity—expressly provided in the Leases—to revisit certain terms and conditions. D. 2012 Renewal Application Plaintiffs submitted a third renewal request in 2012, following the same process used for the two previous ones. Am. Compl. ¶¶6-7, 86. This time, however, the government—facing intense pressure from organizations opposed to mining in northeastern Minnesota—changed the rules. Id. ¶¶10, 88. BLM sought an opinion from the Solicitor of the Interior on whether it had discretion to deny renewal of the Leases outright. Id. ¶89. On March 8, 2016, then-Solicitor Hilary Tompkins issued an opinion (the “Solicitor’s Opinion”) concluding that BLM had such discretion. Id. ¶90. Armed with the Solicitor’s Opinion, BLM asked the Forest Service whether it consented to lease renewal. Am. Compl. ¶93; see also id. ¶59. Claiming “absolute discretion” to withhold consent, the Forest Service declined to consent to renewal of the Leases. Id. ¶102. Its decision was based not on anything about plaintiffs’ mine plan—that would have been -5- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 14 of 62 impossible since no plan has been submitted—but rather on unsupported generalized concerns about the “inherent potential risk” of mining. Id. ¶102. Indeed, the Forest Service acknowledged that it had not conducted an environmental review of the impacts of lease renewal. Dkt. 53 (“FS Decision”) at 9, 11; see Am. Compl. ¶¶102-103. The day after the Forest Service denied consent, BLM rejected plaintiffs’ application for lease renewal. Am. Compl. ¶¶104-105. Its sole justification was the Forest Service’s refusal to consent to renewal. Id. E. This Action Plaintiffs filed this action challenging the lawfulness of the government’s refusal to renew the Leases. The operative complaint includes four claims. Count I seeks a declaration of plaintiffs’ rights in the mineral estate under the Quiet Title Act. Counts II and III challenge, under the Administrative Procedure Act, BLM’s refusal to renew the Leases as a violation of both federal law and the Leases. Count IV challenges, also under the APA, the Forest Service’s denial of consent to renewal of the Leases. SUMMARY OF ARGUMENT The government and permissive intervenor Northeastern Minnesotans for Wilderness (“NMW”) move to dismiss the operative complaint. Each principally challenges this Court’s subject-matter jurisdiction—i.e., its power to vindicate the security of plaintiffs’ real-property rights—based largely on -6- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 15 of 62 the flawed premise that plaintiffs’ claims “derive solely from [the] lease agreements.” U.S. Mem. 9. Defendants assert that plaintiffs’ sole remedy is to abandon their decades-long project and seek damages in the Court of Federal Claims. Those arguments fail for several reasons. First, as the complaint makes clear, plaintiffs’ rights arise from both federal law and the Leases. See Am. Compl. ¶¶53-57, 110, 118. Second, plaintiffs lack an adequate alternative remedy at law, because the possibility of damages is no substitute for plaintiffs’ right to secure mineral tenure, including the opportunity to develop the minerals that they and their predecessors discovered and have developed. Third, even if this case were a “contract action” (U.S. Mem. 8), nothing precludes this Court from adjudicating plaintiffs’ QTA or APA claims. Finally, there are meaningful standards for this Court to review the lawfulness of the Forest Service’s refusal to consent to renewal of the Leases. NMW also argues, under Rule 12(b)(6), that the Leases do not give plaintiffs a non-discretionary right to renew (Mem. 18-20). This is not the proper occasion to resolve that issue, but to the extent the Court is inclined to address NMW’s argument without hearing from the actual counterparty to the Leases (the government), the argument should be rejected. -7- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 16 of 62 STANDARD OF REVIEW In evaluating a facial attack on the Court’s subject-matter jurisdiction under Rule 12(b)(1), the Court “merely [needs] to look and see if plaintiff has sufficiently alleged a basis of subject matter jurisdiction.” Branson Label, Inc. v. City of Branson, Mo., 793 F.3d 910, 914 (8th Cir. 2015). “[T]he court restricts itself to the face of the pleadings and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6).” Id. In evaluating a motion to dismiss under Rule 12(b)(6), the court “accept[s] as true the factual allegations contained in the complaint and grant[s] [plaintiffs] the benefit of all reasonable inferences that can be drawn from those allegations.” Tovar v. Essentia Health, 857 F.3d 771, 774 (8th Cir. 2017). Dismissal is improper if the complaint “contain[s] sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Wilson v. Arkansas Dep’t of Human Servs., 850 F.3d 368, 371 (8th Cir. 2017). ARGUMENT In reliance on their rights under both federal law and the Leases, plaintiffs have invested hundreds of millions of dollars to develop one of the largest untapped copper and nickel reserves in the world. Yet before plaintiffs could reap any reward from that enormous investment, the -8- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 17 of 62 government nullified the vested and valuable real property right that had belonged to them and their predecessors for over half a century—and in so doing jeopardized the jobs for generations that would come with a future mining project. The government’s actions, which depart with no adequate explanation from decades of consistent agency practice, not only threaten plaintiffs’ rights but also threaten to undermine more generally the incentives for hardrock mineral development long enshrined in federal law. Defendants’ arguments for dismissal of plaintiffs’ challenges to the government’s unlawful conduct lack merit. The motions to dismiss should be denied. I. THIS COURT HAS JURISDICTION OVER FRANCONIA’S QTA CLAIM In count I, brought under the Quiet Title Act, Franconia asserts property rights in the mineral estate that it holds by virtue of the mineral discovery and subsequent leases with the United States. The government, by refusing to renew the Leases, denies that Franconia has such property rights. This claim therefore falls squarely under the QTA, which waives sovereign immunity and provides a cause of action against the United States “to adjudicate a disputed title to real property in which the United States claims an interest.” 28 U.S.C. §2409a(a). -9- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 18 of 62 A. Franconia’s QTA Claim Seeks Adjudication Of Rights In Real Property 1. As a threshold matter, neither the government nor NMW appears to dispute that a mineral estate—which is what Franconia claims a property right in—is “real property” under the QTA. 28 U.S.C. §2409a(a). For good reason: It is “easily resolved” that “[m]ineral deposits … fall within §2409a(a)’s definition of real property.” Mafrige v. United States, 893 F. Supp. 691, 697 (S.D. Tex. 1995) (citing cases). Indeed, the QTA’s legislative history indicates that “[t]he quieting of … title to minerals” was specifically contemplated as being within the statute’s ambit. H.R. Rep. No. 92-1559, at 6 (1972). That conclusion also accords with settled law outside the QTA context, recognizing that a mineral estate is real property. As the Eighth Circuit explained, “[u]nder a typical mineral lease, the lessee acquires a ‘working interest’ in the mineral estate, which is a real property interest.” Slaaten v. Cliff’s Drilling Co., 748 F.2d 1275, 1277 (8th Cir. 1984). 2. Defendants nonetheless argue that Franconia’s claimed real- property interest does not suffice for QTA purposes. They contend that Franconia does not claim “fee owner[ship]” (U.S. Mem. 15; see NMW Mem. 7), and that the “renewable leasehold interest” by which Franconia holds its property right is insufficient (NMW Mem. 7; see U.S. Mem. 15). These arguments are refuted by the statutory text, legislative history, and - 10 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 19 of 62 interpretive case law, all of which confirm that the QTA permits adjudication of rights in mineral estates even if those rights are less than fee simple and are held through a lease from the government. The QTA’s text contemplates civil actions in cases involving property interests that are less than fee simple. For example, the statute requires the complaint to “set forth with particularity the nature of the right, title, or interest which the plaintiff claims in the real property, the circumstances under which it was acquired, and the right, title, or interest claimed by the United States.” 28 U.S.C. §2409a(d) (emphasis added). Other statutory provisions underscore the point, speaking in terms of “interests” or “estates” in property. See id. §§1346(f), 2409a(e). Those provisions make clear that a plaintiff may assert a QTA claim based on an interest in real property that is less than fee simple. The legislative history and interpretive case law confirm the point. The House Report issued during consideration of the QTA, for example, states that “the terms of the proposed statute” include “[t]he quieting of title where the plaintiff claims an estate less than a fee simple [such as] an easement or the title to minerals.” H.R. Rep. No. 92-1559, at 6 (emphasis added). And courts consistently hold that the QTA provides jurisdiction over claims involving property interests “less than a fee simple interest.” Alaska Dep’t of Nat. Res. v. United States, 816 F.3d 580, 585 (9th Cir. 2016); accord, e.g., - 11 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 20 of 62 School Bd. of Avoyelles Parish v. U.S. Dep’t of Interior, 647 F.3d 570, 580 (5th Cir. 2011); United States v. Bedford Assocs., 657 F.2d 1300, 1316 (2d Cir. 1981); Kinscherff v. United States, 586 F.2d 159, 161 (10th Cir. 1978). Even the cases on which defendants rely (U.S. Mem. 15-16; NMW Mem. 7-8) are to the same effect. For example, in Ginsberg v. United States, 707 F.2d 91 (4th Cir. 1983), the court held that the QTA “‘plainly contemplates litigation against the United States to adjudicate disputes about lesser interests, such as … the Government’s lease,’” id. at 93 (quoting Bedford Assocs., 657 F.2d at 1316). And in McMaster v. United States, 177 F.3d 936 (11th Cir. 1999), the court recognized that the United States’ “interfere[nce] with [a plaintiff’s] easement rights”—clearly an interest less than fee simple—would be sufficient under the QTA, id. at 940.1 The Eighth Circuit, moreover, has adjudicated a QTA dispute involving an easement, which again is an interest less than fee simple. Patterson v. Buffalo Nat’l River, 76 F.3d 221 (8th Cir. 1996). In so doing, the court, despite having an obligation to evaluate its own jurisdiction, did not identify The other cases defendants cite (U.S. Mem. 15-16; NMW Mem. 7-8) are not to the contrary. See Cadorette v. United States, 988 F.2d 215, 223-224 (1st Cir. 1993) (explaining that the QTA permits adjudication of “title or ownership” disputes, and acknowledging that QTA claims can involve various degrees of “title”); Dunbar Corp. v. Lindsey, 905 F.2d 754, 759 (4th Cir. 1990) (plaintiff’s claim was not barred by the QTA where it alleged only a “nonownership interest in real property”). 1 - 12 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 21 of 62 a jurisdictional deficiency in the plaintiffs’ QTA claim, which asserted that the plaintiffs had an easement across government land. See id. at 223. Defendants also assert that plaintiffs “do not dispute” that the United States is the “fee owner of the federal minerals” (U.S. Mem. 15) or has “fee title to the mineral estate” (NMW Mem. 7). But both support this assertion by citing only plaintiffs’ complaint, which states merely that “[t]he United States claims fee simple ownership.” Am. Compl. ¶109 (emphasis added). That does not mean there is no dispute over the property interest here. There manifestly is: Plaintiffs claim a property interest in the mineral estate under both the relevant regulation and the Leases, whereas the government denies that plaintiffs have any such property interest and that it owns all rights in the property. That controversy surely involves “disputed title” within the meaning of the QTA. 3. The only remaining question is whether Franconia’s mineral rights are within the QTA’s scope even though they are held by lease with the United States. The answer is yes. In the most closely analogous case, Mafrige, the court squarely held that mineral rights under a federal lease give rise to a real-property interest sufficient for QTA purposes. See 893 F. Supp. at 696-698. The government there moved to dismiss the complaint (which sought to adjudicate an oil and gas company’s rights under a mineral lease) on the ground that the “claim - 13 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 22 of 62 [was] not cognizable under the” QTA. Id. at 696. Rejecting that argument, the court determined that Texas law had “long held that oil and gas leases convey interests in real property,” and that in this regard state law accorded with federal law. Id. at 697-698. Analogizing to QTA claims about easements, the court held that a leasehold interest sufficed to create “disputed title to real property.” Id. at 698. “That a lease conveys only a ‘property interest’ in the minerals, and not complete ownership,” the court made clear, “is inconsequential under § 2409a(a). A party need only claim some ownership interest in the property to create a ‘disputed title to real property.’” Id. Mafrige’s analysis is consistent with cases in other jurisdictions— including the Eighth Circuit—concluding that a mineral lease is an interest in real property. See Slaaten, 748 F.2d at 1277; FDIC v. Hulsey, 22 F.3d 1472, 1484 (10th Cir. 1994) (“An oil and gas lease is a grant of an estate in real property.”); Foster v. United States, 607 F.2d 943, 949 (Ct. Cl. 1979) (“[P]laintiffs’ leasehold interest in the reserved mineral rights is … an estate in real property.”). Minnesota law likewise treats mineral leaseholds as property interests sufficient to allow quiet title actions, authorizing an “[a]ction to quiet title to lands covered by mineral lease.” Minn. Stat. Ann. §93.055. - 14 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 23 of 62 Defendants argue, however, that even if a leasehold interest is “a kind of ‘title’” (NMW Mem. 8), the QTA still does not apply because Franconia alleges a breach of contract, which is insufficient to “cast[] doubt on the title or ownership of the property” (U.S. Mem. 15). That contention—that a breach-of-contract claim can never raise a title dispute under the QTA—is wrong. If a private party entered into a contract to buy a plot of land from the government, for example, and the government took the money but refused to turn over the land, the buyer could surely claim a title dispute under the QTA. The case cited by defendants to support this argument (Ginsberg) provides no support. The court there simply noted that the dispute in that particular case did not implicate title. See 707 F.2d at 93. Rather, the claim was by a landlord who essentially asserted that his tenant, a government agency, owed him more rent. See id. at 92. The court rightly held that that breach-of-contract claim did not implicate a title dispute. But that holding hardly supports defendants’ sweeping assertion that all title disputes fall outside the QTA merely because they involve a contract. In short, there is no basis for defendants’ argument that a dispute over property rights held by lease is not cognizable under the QTA. - 15 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 24 of 62 B. The Tucker Act Does Not Affect This Court’s Jurisdiction Over Franconia’s QTA Claim The QTA’s sovereign-immunity waiver excludes “actions which may be or could have been brought under” several other statutes. 28 U.S.C. §2409a(a). Those statutes include the Tucker Act. Id. §1491. But contrary to what the government (though not NMW) contends (U.S. Mem. 8), the QTA’s exclusion of Tucker Act cases does not deprive the Court of jurisdiction here, because the remedy Franconia seeks—adjudication and declaration of its mineral rights—is not available under the Tucker Act. The Supreme Court has explained that before the QTA was enacted, plaintiffs who had property disputes with the government but were “willing to settle for monetary damages … could sue in the Court of Claims and attempt to make out a constitutional claim for just compensation.” Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 280-281 (1983). Finding that state of affairs insufficient, Congress enacted the QTA to authorize an action for an adjudication and declaration of rights in real property. Id. at 282. Because Franconia asserts an existing property interest in the mineral estate, and does not seek damages, its claim is properly brought under the QTA. See id. at 280-282; see also United States v. Mottaz, 476 U.S. 834, 850-851 (1986) (suit was brought under QTA because plaintiff - 16 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 25 of 62 claimed ownership and “[a] Tucker Act-based lands suit would seek damages”). The government cites McKay v. United States, 516 F.3d 848 (10th Cir. 2008), to argue (Mem. 11-12, 14-15) that Franconia’s QTA claim is at its essence a “contract claim,” for which exclusive jurisdiction rests in the Court of Federal Claims, or CFC. That argument fails for several reasons. To begin with, the plaintiff in McKay sought only to “enforce contract rights through contract remedies,” invoking no “rights based on independent, noncontractual sources.” 516 F.3d at 851. Here, by contrast, Franconia’s rights are not limited to the Leases; to the contrary, at their essence those rights arise from a federal regulation that entitles plaintiffs to a renewable leasehold interest in the mineral estate. See supra pp.3-4; infra Part II.A.1. McKay is thus inapposite. The government cites (U.S. Mem. 12; see also NMW Mem. 11) cases holding that a contract claim does not become something else simply because “resolution of [the] … claim may turn on the interpretation of a statute.” But that proposition has no bearing here. Rather, the Leases and the regulation each provides an independent basis for relief. In any event, McKay was wrongly decided and should not be followed. Two key errors underlie that decision. First, the court relied on Tenth Circuit APA precedent holding that the Tucker Act provides the exclusive - 17 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 26 of 62 remedy for all contract claims. 516 F.3d at 851. Those APA decisions are themselves erroneous because as discussed below (pp.24-28), the Tucker Act does not establish an exclusive remedy for all contract claims against the United States, but instead gives the CFC exclusive jurisdiction over claims for money damages over $10,000. That conferral of exclusive jurisdiction has no relevance to a case like this one, where the plaintiff does not seek money damages. See infra Part II.B.2 Second, McKay stated that “the necessity of permitting the Government to carry out its functions unhampered by direct judicial intervention outweighs the possible disadvantage to the citizen in being relegated to the recovery of money damages after the event.” 516 F.3d at 851. Whatever the merits of that rationale in the APA context from which McKay drew it, it does not translate to the QTA, where Congress specifically provided a remedy for disputes with the sovereign over real property. See Block, 461 U.S. at 282. A basis for Congress’s provision of that specific remedy was its recognition of the unique and fundamental importance of real property rights. See S. Rep. No. 92-575, at 1 (1971) (noting the “[g]rave inequity” when McKay also voiced concern about the possibility of “compel[ing] [the government] to perform obligations it prefers to breach and compensate financially.” 516 F.3d at 851. But no such government compulsion will ever occur under the QTA because the act (consistent with the Fifth Amendment) explicitly allows the government to maintain possession of disputed property rights by paying “just compensation.” 28 U.S.C. §2409a(b). 2 - 18 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 27 of 62 citizens are “excluded, without benefit of a recourse to the courts, from lands they have reason to believe are rightfully theirs”). Unlike the money that is often at issue in contract claims, real property is not fungible. See United States v. Sperry Corp., 493 U.S. 52, 62 n.9 (1989); San Antonio Sav. Ass’n v. Comm’r, 887 F.2d 577, 591 (5th Cir. 1989); Pelfresne v. Village of Williams Bay, 865 F.2d 877, 883 (7th Cir. 1989); Johnson v. U.S. Dep’t of Agric., 734 F.2d 774, 788 (11th Cir. 1984); United States v. Lambert, 146 F.2d 469, 472 (2d Cir. 1944) (Hand, J.). For that reason, as the Eighth Circuit has held, “monetary relief fails to provide adequate compensation for an interest in real property.” O’Hagan v. United States, 86 F.3d 776, 783 (8th Cir. 1996); accord, e.g., Pelfresne, 865 F.2d at 883 (“monetary compensation is an inadequate substitute” for real property); Shaughnessy v. Eidsmo, 23 N.W.2d 362, 368 (Minn. 1946) (explaining that “damages for the breach of a contract for … any interest in land is always considered inadequate,” and that this rule arose due to the “peculiar respect and consideration which has been accorded to land in the English law”), cited in O’Hagan, 86 F.3d at 783. Cases like this one, therefore, involving a direct conflict between Franconia’s property right in the mineral estate and the United States’ asserted rights, are precisely the kind that the QTA was meant to address. - 19 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 28 of 62 II. THIS COURT HAS JURISDICTION OVER PLAINTIFFS’ APA CLAIMS The Administrative Procedure Act provides that a “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action …, is entitled to judicial review.” 5 U.S.C. §702. Counts II, III, and IV of plaintiffs’ complaint raise APA challenges to BLM’s and the Forest Service’s conduct that resulted in the denial of lease renewal. That conduct has caused and will cause plaintiffs significant harm, because they made enormous investments to explore for and define mineral deposits in the relevant lands, as well as to acquire mineral rights on contiguous lands. Am. Compl. ¶¶6, 92, 117. Plaintiffs made these investments in reliance on federal law and the Leases, each of which secured their rights to the mineral estate. Plaintiffs are entitled to judicial review of the agency decisions invalidating those federally conferred rights. Indeed, the APA creates a “‘strong presumption’ favoring judicial review of administrative action,” Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015), a presumption that can only be overcome “upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent,” Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 670, 671 (1986); accord Barlow v. Collins, 397 U.S. 159, 166 (1970) (“preclusion of judicial review … is not lightly to be inferred”). Despite this strong presumption, defendants argue (U.S. Mem. 8-14; NMW Mem. 9-12) that the Tucker Act implicitly bars plaintiffs’ APA claims - 20 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 29 of 62 because those claims are essentially “contract claims,” for which exclusive jurisdiction rests in the CFC. Defendants additionally argue (U.S. Mem. 1617; NMW Mem. 12) that this Court lacks jurisdiction because an action for damages under the Tucker Act provides an “adequate remedy.” Finally, defendants argue (U.S. Mem. 16-20; NMW Mem. 21-26) that plaintiffs’ claim against the Forest Service (count IV) fails because the Forest Service supposedly had complete discretion to refuse consent to renewal of the Leases—thus nullifying investments worth hundreds of millions of dollars made by plaintiffs and their predecessors—for any reason or no reason at all. None of those arguments has merit. A. The Tucker Act Does Not “Impliedly Forbid” The Relief Plaintiffs Seek Under The APA Plaintiffs allege that the government’s termination of their property interest in the mineral estate violated their rights under federal law and the Leases, and thus seek to set aside unlawful agency action under the APA. Defendants respond that this case is a garden-variety contract dispute, and assert that the APA provides no authority for such a dispute to be heard in this Court. That argument fails for two independent reasons elaborated below. First, it ignores plaintiffs’ complaint, which makes clear that plaintiffs’ mineral rights arise from federal law and the Leases. See Am. Compl. ¶¶53- - 21 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 30 of 62 57, 110, 118, 121. In particular, the complaint alleges that the challenged agency actions—including the Solicitor’s Opinion, the Forest Service’s refusal to consent (and its assumption that it had consent rights at all), and the BLM’s ultimate denial of lease renewal—violate a federal regulation as well as the terms of the Leases. Second, even if plaintiffs’ APA claims were all “contract claims,” this Court would still have jurisdiction. Out-of-circuit cases interpreting the Tucker Act as prohibiting all contract actions seeking any remedy other than damages are wrongly decided: The text of the Tucker Act contains no such limitation, and the APA expressly authorizes review here. 1. Plaintiffs’ rights and requested remedies are not derived solely from contract The D.C. Circuit has developed a framework for determining whether an APA action is “‘at its essence’ a contract action,” a framework that “depends both on the source of the rights upon which the plaintiff bases its claims, and upon the type of relief sought (or appropriate).” Megapulse, Inc. v. Lewis, 672 F.2d 959, 968 (D.C. Cir. 1982). Here, both prongs show that plaintiffs’ APA claims are not barred. a. As to the source of rights, the complaint explains that plaintiffs’ mineral rights were established pursuant to 43 C.F.R. §3221.4 (1966), which articulated longstanding federal mineral law and policy. See Am. Compl. - 22 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 31 of 62 ¶¶53-57, 110, 118, 121. Under that regulation, plaintiffs were entitled, as a “[r]eward for discovery,” to a lease for the mineral deposit, with a nondiscretionary “right of renewal for successive periods.” 43 C.F.R. §3221.4(a), (f). This non-discretionary renewal right, guaranteeing plaintiffs the security required for long-term exploration and production of minerals, is, as explained, critical to the stability of the nation’s hardrock-mining regulatory regime. Without such security, no rational entity would undertake the extraordinary investment of time and resources that is necessary for mineral exploration and development. The source of plaintiffs’ rights is thus federal law—grounded in sound mineral policy. To be sure, plaintiffs also claim rights arising from the Leases. But those rights are in addition to rights claimed under federal law, and hence do not bar review here. As the D.C. Circuit has explained (in a case defendants rely on), “the mere fact that a court may have to rule on a contract issue does not, by triggering some mystical metamorphosis, automatically transform an action” to set aside agency action under the APA into a so-called contract action. Megapulse, 672 F.2d at 968. Where, as here, agency action violates federal law, the action is reviewable under the APA—even if “that same action might also amount to a breach of contract.” Id. at 971. b. Nor do the remedies sought support defendants’ argument. The government asserts (Mem. 13-14) that review is barred because the - 23 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 32 of 62 complaint seeks an order for renewal of the Leases, which the government says is tantamount to the contractual remedy of specific performance. But as the D.C. Circuit has explained, relying on a case that both defendants cite (Megapulse), “federal district courts [are not] forbidden from granting injunctive relief merely because that relief might be the equivalent of ordering specific performance of a government contract.” Transohio Savings Bank v. Director, Office of Thrift Supervision, 967 F.2d 598, 611 (D.C. Cir. 1992) (citing Megapulse, 672 F.2d at 941). 2. The Tucker Act does not create an exclusive remedy for all contract claims in the Court of Federal Claims Defendants also contend (U.S. Mem. 8; NMW Mem. 9) that all “contract claims” against the government fall outside the APA because the Tucker Act gives the CFC exclusive subject-matter jurisdiction over all such claims. In reality, the Tucker Act creates an exclusive remedy only where claims founded on a contract seek money damages in excess of $10,000. See 28 U.S.C. §1491(a)(1); id. §1346. Courts in other circuits that have reached the opposite conclusion have done so, sometimes reluctantly, based on an erroneous interpretation of the statutory text. a. The APA waives sovereign immunity for actions “seeking relief other than money damages” unless “any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” 5 U.S.C. §702. - 24 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 33 of 62 Resting on out-of-circuit decisions, defendants argue that the Tucker Act “impliedly forbids” parties from bringing APA claims based on contracts in federal district court. That contention, as the D.C. Circuit has explained, “rest[s] on the premise that the Tucker Act gives the Claims Court exclusive jurisdiction over all contract claims against the government.” Transohio, 967 F.2d at 612 (emphasis added). That premise, however, is unfounded—as both the statutory text and Supreme Court case law confirm. The Tucker Act gives the CFC jurisdiction “to render judgment upon any claim against the United States founded … upon any express or implied contract with the United States.” 28 U.S.C. §1491(a)(1). But the statute nowhere states that this jurisdiction is exclusive jurisdiction. The Supreme Court made that precise point in Bowen v. Massachusetts, 487 U.S. 879 (1988): It is often assumed that the Claims Court has exclusive jurisdiction of Tucker Act claims for more than $10,000. That assumption is not based on any language in the Tucker Act granting such exclusive jurisdiction to the Claims Court. Rather, that court’s jurisdiction is ‘exclusive’ only to the extent that Congress has not granted any other court authority to hear the claims that may be decided by the Claims Court. Id. at 910 n.48 (emphasis added). This language shows that review is available here, because through the APA, Congress has “granted any other court authority to hear the claims” that plaintiffs advance. Id. The APA gives district courts broad authority to hear claims—including claims based - 25 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 34 of 62 on a contract—against federal agencies “seeking relief other than money damages.” 5 U.S.C. §702. Again, Bowen confirms this point. There, Massachusetts sought an injunction in district court compelling the federal government to pay the Commonwealth for expenditures that it claimed were reimbursable under Medicaid. 487 U.S. at 882-883, 887. The federal government raised a jurisdictional challenge, arguing that the APA did not provide a sovereignimmunity waiver because the CFC had exclusive jurisdiction over Massachusetts’ claim. Id. at 890-891. The Supreme Court rejected that argument, noting that the APA’s “generous review positions” “must be given a hospitable interpretation.” Id. at 904. Moreover, in describing the forms of relief that were not “money damages” under 5 U.S.C. §702—and thus fell within the scope of the APA’s review provisions—the Supreme Court expressly mentioned “equitable actions for monetary relief under a contract.” Id. at 895. In other words, a contract claim seeking equitable relief (even monetary relief) can be heard in district court under the APA.3 The government cites (Mem. 8-9) legislative history to 1976 amendments to the APA for the proposition that the Tucker Act—a statute enacted nearly 100 years earlier, see 24 Stat. 505 (1887)—was meant “to foreclose specific performance of government contracts.” The views of the 1976 Congress about what the 1887 Congress intended in enacting the Tucker Act are irrelevant. As the Supreme Court has repeatedly stated, such “[p]ost-enactment legislative history (a contradiction in terms) is not a legitimate tool of statutory interpretation.” United States v. Woods, 134 3 - 26 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 35 of 62 b. The contrary (non-Supreme-Court) case law on which defendants rely suffers from a significant analytical inconsistency. Under that case law, plaintiffs “may bring statutory and constitutional claims in federal district court even where the claims depend on the existence and terms of a contract with the government,” but cannot bring other types of contract claims. Transohio, 967 F.2d at 610. There is no basis in either the APA or the Tucker Act for that distinction—as the D.C. Circuit itself acknowledged in Transohio: Nothing in the language of either the Tucker Act or the APA requires special treatment for contract claims. … Although specific performance might not always be wise, it is hard to see the justification for an absolute bar on specific performance since specific performance is available when the contract breach rises to statutory or constitutional violation. Id. at 612. Despite this acknowledgement, the Transohio court felt compelled to adhere to its pre-Bowen precedent. 967 F.2d at 613. But in so doing, the court noted there is a “strong case that after Bowen, the Tucker Act should not be read to ‘impliedly forbid’ under the APA the bringing in district court of contract actions,” and “that such a result would be faithful to the text of the Tucker Act and the APA, and sensible.” Id. at 612. Indeed, the court S. Ct. 557, 568 (2013). That is certainly true here given that this legislative history conflicts with Bowen. - 27 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 36 of 62 explained that the interpretation plaintiffs advocate here would “establish a coherent and complementary regime in which the Claims Court and federal district courts share a body of substantive law, but where the appropriate forum is determined by the relief sought: suits against the government for damages go to Claims Court, while those seeking specific relief go to district court.” Id. The Ninth Circuit, though similarly constrained by prior precedent, has likewise acknowledged that Bowen “suggests that contract actions seeking equitable relief could be heard in district court under the APA.” North Star Alaska v. United States, 14 F.3d 36, 38 (9th Cir. 1994). This Court, not being bound by any such precedent, should interpret the Tucker Act according to its plain text and in accordance with Bowen. The statute does not bar district-court jurisdiction to review agency actions involving contracts unless the claims seek money damages.4 B. There Is No Adequate Alternative Remedy The APA allows review of “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. §704. NMW argues (Mem. 12) NMW cites (Mem. 11) V S Ltd. Partnership v. Department of Housing & Urban Development, 235 F.3d 1109 (8th Cir. 2000), for the proposition that “the case sounds in contract, and Plaintiffs’ sole and adequate remedy is money damages in the Court of Federal Claims.” But that case did not address the APA at all—much less that statute’s interplay with the Tucker Act. As the government acknowledges (Mem. 8), the Eighth Circuit “has yet to weigh in on” whether the Tucker Act implicitly forbids contract claims brought in federal district court under the APA. 4 - 28 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 37 of 62 that all of plaintiffs’ APA claims are precluded because the Tucker Act supplies an adequate remedy, while the government makes the argument (Mem. 16-17) as to count IV only. Both are incorrect.5 As discussed, under the Tucker Act plaintiffs are limited to money damages. But this case involves real property—which, for centuries, has been recognized under the law as unique and of preeminent importance. For that reason, the Eighth Circuit (like other courts) has held that “monetary relief fails to provide adequate compensation for an interest in real property, which by its very nature is considered unique.” O’Hagan, 86 F.3d at 783. The case law on which the government relies (Mem. 16-17) supports the point. In Christopher Village, L.P. v. United States, 360 F.3d 1319 (Fed. Cir. 2004), a case involving real property, the court concluded that an APA action “to enjoin foreclosure by the government” was proper “because no other adequate remedy existed to prevent the foreclosure and sale,” id. at 1327.6 Defendants present their adequate-remedy argument as jurisdictional. But the D.C. Circuit recently held (in a case the government cites (Mem. 8)) that the adequate-remedy prong of §704 does not involve jurisdiction, instead establishing an element of an APA cause of action. See Perry Capital LLC v. Mnuchin, 848 F.3d 1072, 1101-1102 (D.C. Cir. 2017), amended on other grounds on reh’g, 864 F.3d 591 (D.C. Cir. 2017). Whichever framework applies, plaintiffs satisfy it. 5 The other cases defendants cite (U.S. Mem. 16-17; NMW Mem. 12-13) are distinguishable. With one exception, none even involves real property. They instead involve: the production of documents, see Central Platte Nat. Res. Dist. v. U.S. Dep’t of Agric., 643 F.3d 1142, 1148-1149 (11th Cir. 2011); 6 - 29 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 38 of 62 The Supreme Court, moreover, has rejected the argument that “a naked money judgment against the United States will always be an adequate substitute for prospective relief fashioned in the light of the rather complex ongoing relationship between the parties.” Bowen, 487 U.S. at 905. And the D.C. Circuit, on which defendants extensively rely, has rebuffed their argument. The court concluded in Transohio (a case NMW cites) that “[b]ecause the Claims Court cannot grant the equitable relief Transohio seeks … the ‘adequate remedy’ limitation … does not interfere with district court jurisdiction over Transohio’s claims.” 967 F.2d at 608. So too here. Plaintiffs seek equitable relief—not monetary damages— because money is not an adequate remedy in this case. There is thus no bar to this Court’s review of plaintiffs’ APA claims. C. The Forest Service’s Decision To Deny Consent To Lease Renewal Is Reviewable Defendants argue that plaintiffs’ APA claim against the Forest Service (count IV) cannot proceed because the Forest Service has “absolute government contracts, see Suburban Mortg. Assocs., Inc. v. U.S. Dep’t of Hous. & Urban Dev., 480 F.3d 1116, 1117-1118 (Fed. Cir. 2007); County of Suffolk v. United States, 19 Cl. Ct. 295, 295, 299 (1990); International Eng’g Co. v. Richardson, 512 F.2d 573, 580-581 (D.C. Cir. 1975); or the promulgation of standards for coal-fired power plants, see Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654, 664-665 (D.C. Cir. 1975). And the one case involving real property was based on a civil in rem forfeiture action and the asset-forfeiture statute, which have no bearing here. See City of Oakland v. Lynch, 798 F.3d 1159, 1165-1167 (9th Cir. 2015). - 30 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 39 of 62 discretion” (U.S. Mem. 6) to deny consent to renewal of the Leases, and thus its decision to do so is excluded from review under the APA as an “action committed to agency discretion by law,” 5 U.S.C. §701(a)(2). See U.S. Mem. 17-20; NMW Mem. 21-25.7 Defendants’ argument lacks merit. Both the Supreme Court and the Eighth Circuit have made clear that §701(a)(2)’s exception to the “strong presumption” of judicial review under the APA, Bowen, 476 U.S. at 670, is “very narrow”—applicable only “in those rare instances” where “there is no law to apply,” Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971); accord Tamenut v. Mukasey, 521 F.3d 1000, 1003 (8th Cir. 2008) (en banc) (per curiam); Friends of Norbeck v. U.S. Forest Serv., 661 F.3d 969, 975 (8th Cir. 2011). Defendants assert that this “very narrow” exception applies because there is no “meaningful standard,” Tamenut, 521 F.3d at 1003, against which to judge the Forest Service’s decision. In fact, meaningful standards are provided by statute, by regulation, by the Forest Service’s interpretive guidance, and by its prior course of conduct. Indeed, NMW presents its preclusion-of-review argument (Mem. 21) as a jurisdictional issue under Rule 12(b)(1), whereas the government seems to present it (Mem. 7-8) as an argument under Rule 12(b)(6). While Eighth Circuit law appears unsettled on that question, compare Tamenut v. Mukasey, 521 F.3d 1000, 1003 (8th Cir. 2008) (en banc) (per curiam), with Ochoa v. Holder, 604 F.3d 546, 549 (8th Cir. 2010), count IV can proceed whichever framework applies. 7 - 31 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 40 of 62 under the governing federal regulation, the Forest Service had no discretion to reject the Leases at the lease-renewal stage because plaintiffs have a nondiscretionary right to renew. The agency’s decision—an immensely consequential one, involving fundamental property rights, decades of work, and hundreds of millions of dollars—is precisely the type of action that calls for judicial review. 1. There are meaningful standards against which to judge the Forest Service’s decision In assessing whether an agency action is committed to agency discretion, a court considers “the nature of the administrative action at issue and the language and structure of the statute,” as well as applicable regulations and other relevant sources, to determine whether there is a “meaningful standard against which to judge the agency’s exercise of discretion.” Tamenut, 521 F.3d at 1003. Here, the language and structure of the statute under which the Forest Service denied consent, the applicable regulation, the Forest Service’s interpretative guidance, and its prior course of conduct all demonstrate that this is not among the rare instances of agency action utterly immune to APA review. a. As the Forest Service did in its denial letter (see Dkt. 53 (“FS Decision”) at 8), defendants rely exclusively on 16 U.S.C. §508b to support their claim of unreviewable Forest Service discretion to deny lease renewal - 32 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 41 of 62 (see U.S. Mem. 17-19; NMW Mem. 22-26). The language of §508b, however, does not provide such discretion. It merely makes the Agriculture Department’s consent a prerequisite to the opening of Minnesota publicdomain lands to mineral development and utilization. If defendants were correct that this suffices, then every statute granting an agency discretion to make any decision, without further elaboration, would eliminate APA review of that decision. This would vastly expand the “very narrow” exception embodied in §701(a)(2). Defendants cite no authority supporting such an expansion. The Forest Service’s own decision, moreover, undercuts defendants’ statutory argument. Despite claiming “absolute discretion,” the Forest Service deems its statutory authority “coextensive” with that of the Interior Department. FS Decision 7, 8. Yet neither the government nor NMW argues that the Interior Department’s decision (i.e., BLM’s lease denial) is unreviewable. Neither is the Forest Service’s. Legislative history is also relevant to determining whether “a particular statute precludes review.” Colorado Envtl. Coal. v. Wenker, 353 F.3d 1221, 1228 (10th Cir. 2004) (per curiam); accord Home Builders Ass’n of Greater Chi. v. U.S. Army Corps of Eng’rs, 335 F.3d 607, 615 (7th Cir. 2003). And here, the legislative history similarly undermines defendants’ argument. Congress enacted §508b against the backdrop of the executive branch’s - 33 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 42 of 62 failure to honor and protect mining companies’ legitimate reliance interests, resulting in severe economic consequences for those companies. Am. Compl. ¶44. It was dissatisfaction with “investment losses resulting from cancellation of mining permits in the Minnesota forests” that spurred passage of the law. S. Rep. No. 81-1778, at 2 (1950). In particular, the House Report stated, companies that “have made investments for the mining and removal of mineral substances from the described lands should be given the privilege of renewing or retaining their permits or leases.” H.R. Rep. No. 81795, at 2 (1949). Both the Interior Department and Agriculture Department “agree[d].” Id. The Forest Service’s claim of unreviewable discretion to deny renewal in this case is starkly inconsistent with that history. b. To determine whether there are meaningful standards to apply, courts examine not just the statute at issue and legislative history but also other relevant sources of law—such as regulations, established agency policies, and settled courses of conduct. In Tamenut, for example, the en banc Eighth Circuit considered applicable regulations as well as statutory text. See 521 F.3d at 1004-1005. The Eighth Circuit has also recognized that “established [agency] policy” can provide a meaningful standard to apply. Abdelwahab v. Frazier, 578 F.3d 817, 821 n.6 (8th Cir. 2009). And the Ninth Circuit has explained that courts “may … look to ‘regulations, established agency policies, or judicial decisions’ for a meaningful standard of review.” - 34 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 43 of 62 Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 719 (9th Cir. 2011); accord Sang Goo Park v. Attorney Gen., 846 F.3d 645, 651, 653 (3d Cir. 2017) (“if an agency announces and follows—by rule or by settled course of adjudication—a general policy by which its exercise of discretion will be governed, that exercise may be reviewed”). Although the government contends (Mem. 18) that there are no pertinent regulations implementing 16 U.S.C. §508b, that is not correct. The Interior Department not only promulgated regulations implementing §508b, see 43 C.F.R. §3325.0-3 (1966), but also made the general mineral-leasing regulations at 43 C.F.R. Part 3220 applicable to hardrock-mineral development in the Superior National Forest, see id. §3325.3. Among those regulations was the one discussed above that granted prospecting permittees who discovered a valuable mineral deposit a non-discretionary right to lease renewal. See 43 C.F.R. §§3221.4, 3325.3 (1966); supra pp.3-4, 22-23. There is, therefore, a “meaningful standard” for this Court to apply—namely, the APA “contrary to law” standard, which would be violated if affording the Forest Service complete discretion to deny consent for subsequent lease renewals directly conflicts with plaintiffs’ regulatory right to renewal (as indeed it does). See National Wildlife Fed’n v. EPA, 980 F.2d 765, 773 (D.C. Cir. 1992) (“[W]hen a legal challenge focuses on an announcement of a substantive statutory interpretation, courts are emphatically qualified to - 35 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 44 of 62 decide whether an agency has acted outside of the bounds of reason.” (alteration in original)); International Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Brock, 783 F.2d 237, 247 (D.C. Cir. 1986) (“it seems almost ludicrous to suggest that there is ‘no law to apply’ in reviewing whether an agency has reasonably interpreted a law”). Indeed, the principal case defendants rely on (U.S. Mem. 18; NMW Mem. 22) makes the same point. See Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1078 (9th Cir. 2013) (“We have jurisdiction to consider whether the Secretary violated ‘constitutional, statutory, regulatory or other legal mandates or restrictions[.]’”). The regulations implementing §508b also confirm that the Forest Service’s authority is narrowly circumscribed, limited to surface considerations. The relevant regulation states that “[l]eases or permits” under §508b “may be issued only with the prior consent of the Secretary of Agriculture or his delegate, and subject to such conditions and stipulations as that official may prescribe to insure adequate utilization and protection of lands for the primary national forest purpose for which they are being administered.” 43 C.F.R. §3325.2 (1966). Again, then, this Court could evaluate whether the Forest Service’s action was inconsistent with this - 36 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 45 of 62 regulation—and hence “contrary to law,” a “meaningful standard” under the APA.8 c. Defendants argue that the Forest Service Manual, Superior National Forest Land and Resource Management Plan (“Forest Plan”), and other internal policy and guidance documents cited in the complaint are irrelevant, because those documents “do not command anyone to do anything or to refrain from doing anything.” U.S. Mem. 19; see NMW Mem. 24-25. Courts, however, have frequently found judicially manageable standards of review in “formal and informal policy statements,” Steenholdt v. FAA, 314 F.3d 633, 638 (D.C. Cir. 2003), including established agency policies, Pinnacle Armor, 648 F.3d at 719. Thus, even if the Forest Service had any consent authority over lease renewal, the Forest Service Manual and Forest Plan both contain standards relevant to evaluating the Forest Service’s decision. For example, the manual includes “Issuance Procedures for Permits, Licenses, and Leases,” which specify the factors that Forest Service officials must consider in making such a determination. FSM 2822.4. Those factors include the degree of surface disturbance, the impact on surface resources, The regulation’s language is reinforced by section 5 of the Leases, which permits the government, upon renewal, “to readjust other terms and conditions … including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover.” 8 - 37 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 46 of 62 economic considerations, and available alternatives. FSM 2822.41. In considering those factors, moreover, the Forest Service must refer to the Forest Plan, which provides additional objectives, standards, and guidelines against which the agency’s consent decision may be measured. For instance, the Forest Plan (which is required by statute and based on extensive environmental analysis under the National Environmental Policy Act) describes the “[e]xploration and development of mineral and mineral material resources” as a forest-wide “[d]esired [c]ondition” in the Superior National Forest. Forest Plan, Ch. 2 at 2-9 (2004). Whether the agency adequately considered this desired condition and other internal guidance—and more generally whether the Forest Service evaluated the appropriate factors in denying consent—is a familiar APA standard by which the agency’s action may be meaningfully evaluated. See Friends of Norbeck, 661 F.3d at 975 (finding sufficient standards, “albeit broad ones,” to evaluate the Forest Service’s decisions regarding certain species in a nature preserve). The Forest Service must also offer an explanation or justification for its departure from its policies and practices governing management of the Superior National Forest. As the Supreme Court has explained, “[w]hen an agency changes … position, it … must at least ‘display awareness that it is changing position’ and ‘show that there are good reasons for the new policy.’” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125-2126 (2016). - 38 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 47 of 62 Therefore, “an ‘[u]nexplained inconsistency’ in agency policy is ‘a reason for holding an interpretation to be an arbitrary and capricious change from agency practice.’” Id. at 2126 (alteration in original). This Court has authority to rule that the Forest Service’s “unexplained” departure from its prior practice requires setting aside its decision. d. Finally, the Forest Service’s course of conduct throughout the duration of the Leases provides a basis for APA review. See Sang Goo Park, 846 F.3d at 651-653; see also Tamenut, 21 F.3d at 1005 (assuming without deciding that “a settled course of adjudication could establish a meaningful standard”). When the Leases were renewed in 1989, the Forest Service solicited public comments. One commenter “was against issuing the leases based on general principals [sic].” Am. Compl. Ex. 10 at 2. The Forest Service, however, correctly stated that it was “not deciding if the leases should be issued but instead … deciding if new restrictions need to be added before extending them.” Id. And when the Forest Service subsequently reported its position regarding renewal to BLM, it said only that the “existing lease terms and conditions are adequate.” Id. The second renewal followed the same pattern; the Forest Service stated that “[t]he terms, conditions and stipulations have been reviewed, and it has been determined that they are sufficient to protect the resources of the United States.” Am. Compl. Ex. 12 at 1. This consistent course of conduct provides another way for this Court to - 39 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 48 of 62 evaluate under the APA the Forest Service’s denial of consent last year. See Encino Motorcars, 136 S. Ct. at 2125-2126, quoted supra pp.38-39. In sum, the statute and its legislative history, regulations, Forest Service guidance, and course of agency conduct provide a framework by which the Court can evaluate the Forest Service’s consent decision with respect to this renewal—specifically, a framework in which the Court examines: (1) whether the Forest Service limited its decision to determining if the Leases’ terms adequately protect the surface, (2) whether the Forest Service relied on appropriate factors (and no irrelevant ones) in making that determination, and (3) whether the Forest Service’s conclusion that it has authority over renewal (and not just terms and conditions) is an unexplained departure from past agency practice. 2. The nature of the Forest Service’s decision confirms that it is not committed to agency discretion In addition to the sources discussed above, courts addressing the committed-to-agency-discretion question consider “the nature of the administrative action at issue.” Tamenut, 521 F.3d at 1003. And “[i]n the rare instance” where this exception to judicial review applies, the case typically involves “an agency’s power to manage its own docket.” Pinnacle Armor, 648 F.3d at 720. For example, actions committed to agency discretion include an agency’s decision not to institute enforcement proceedings, see - 40 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 49 of 62 Heckler v. Chaney, 470 U.S. 821, 831 (1985), and to reopen proceedings on its own motion, see Tamenut, 521 U.S. at 1005. Courts have also viewed certain agency decisions involving national security or foreign policy to fall under §701(a)(2), because courts traditionally have lacked expertise in those domains. See Pinnacle Armor, 648 F.3d at 720; Toxco Inc. v. Chu, 724 F. Supp. 2d 16, 24 n.3 (D.D.C. 2010). The Forest Service’s decision here does not fall into any of these categories. It instead turns on the agency’s claimed power to nullify plaintiffs’ longstanding property rights. And as the Supreme Court recognized in Heckler, when an agency “exercise[s] its coercive power over an individual’s … property rights,” that action “infringe[s] upon areas that courts often are called upon to protect.” 470 U.S. at 832 (emphasis omitted). The enormously consequential nature of the Forest Service’s decision, moreover, also counsels against finding that review is precluded. See Reese Bros., Inc. v. U.S. Postal Serv., 905 F. Supp. 2d 223, 253 (D.D.C. 2012) (“the ‘nature of the administrative action’—the issuance of a final agency decision assessing a deficiency in excess of $3.5 million—requires the Court tread cautiously in deciding to foreclose judicial review”). Not only would the Forest Service’s decision destroy plaintiffs’ property rights, but it would also cast doubt on the future development of valuable minerals on public lands. Adopting defendants’ position, in short, would give the Forest Service the - 41 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 50 of 62 power to unilaterally nullify decades of investment worth hundreds of millions of dollars unconstrained by the vital check of APA review. Defendants cite no case holding a decision of similar magnitude to be committed to agency discretion. Finally, rejecting defendants’ argument would be consistent with Supreme Court case law holding that Chevron deference is generally not given to agencies regarding questions of major significance, because Congress will not be presumed to have implicitly delegated authority to agencies to resolve such key questions. See King v. Burwell, 135 S. Ct. 2480, 2488-2489 (2015); Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2439-2442 (2014); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000); MCI Telecommunications Corp. v. AT&T Co., 512 U.S. 218, 231-232 (1994). Congress likewise should not be presumed to have rendered monumentally important decisions, like the Forest Service’s denial of consent, immune to any judicial review under the APA. III. PLAINTIFFS HAVE SUFFICIENTLY STATED CLAIMS FOR RELIEF UNDER THE APA Plaintiffs have alleged that they possess—under both federal law and the Leases—a non-discretionary right to renewal of their mineral leases, and that the government violated that right. NMW, but not the government, - 42 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 51 of 62 takes up the merits of plaintiffs’ APA claims, arguing (Mem. 13-26) that counts II, III, and IV should be dismissed for failure to state a claim. This is not the proper occasion for this Court to address those arguments—as demonstrated by the fact that the government, the actual counterparty to the Leases, has not made similar contentions. Indeed, the government has not even filed the administrative record in this case, which is usually a prerequisite for adjudication of the merits of an APA claim. See R.J. Reynolds Tobacco Co. v. U.S. Dep’t of Agric., 130 F. Supp. 3d 356, 369 (D.D.C. 2015) (“Summary judgment is [ordinarily] the proper mechanism for deciding, as a matter of law, whether an agency action is supported by the administrative record and consistent with the APA standard of review.” (alteration in original)); Sierra Club v. Clinton, 689 F. Supp. 2d 1147, 1159 (D. Minn. 2010) (denying motion to dismiss; “[t]he Court will consider these arguments at the summary judgment stage with the benefit of the full administrative record”). As discussed below, moreover, NMW’s arguments could require consideration of evidence outside the administrative record, such as parol evidence concerning the negotiating history and course of conduct between plaintiffs and the United States. To the extent the Court is inclined to address the issue now, however, NMW’s arguments should be rejected. First, count II sufficiently claims a non-discretionary right of renewal under federal law—granted by the 1966 - 43 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 52 of 62 regulations, which govern here. And even if the 2004 regulations applied, dismissal would still be unwarranted. Second, count III sufficiently claims that the Leases (and, if applicable, the 2004 renewal forms) grant a nondiscretionary right to renewal. Third, count IV sufficiently claims that the Forest Service’s denial of consent violates the APA; NMW’s cursory argument seeking dismissal of one “aspect” of that count is meritless. A. Count II Sufficiently Claims That The Applicable Regulation Grants A Non-discretionary Right To Renewal As discussed in Part II.A.1, the governing regulation granted plaintiffs “a right of renewal for successive periods, not exceeding ten years each,” subject only to “such reasonable terms and conditions as the Secretary of the Interior may prescribe.” 43 C.F.R. §3221.4(f) (1966). NMW argues, however (Mem. 15), that the relevant regulations are those in force when the Leases were renewed in 2004. That is not correct. In support of its argument, NMW cites (Mem. 15) a 1981 Solicitor’s opinion, Assistant Secretary, Land & Water Resources Assistant Secretary, Energy & Minerals, GFS(MIN) SO-2 (1982) (Sept. 17, 1981), 1981 WL 29121. But that opinion does not apply here because it addresses only the legal regime governing coal leases. Even as to that regime, moreover, the opinion does not stand for the proposition that subsequent regulations can retroactively eradicate property rights (like plaintiffs’) that were secured - 44 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 53 of 62 under a prior regulatory scheme. But even if it did, that would likely be wrong. As the Supreme Court has explained, “there is substantial doubt whether the retroactive destruction of” property rights such as “liens … comports with the Fifth Amendment.” United States v. Security Indus. Bank, 459 U.S. 70, 78 (1982). NMW also cites (Mem. 15) the 2004 lease renewal forms. Since the renewals “issued on January 1, 2004,” NMW contends, “the regulations in force on that date are the ones that govern.” Id. But the text of the 2004 lease renewals—indeed, the very text NMW emphasizes in bold and italics— refutes that contention. Each renewal form expressly states that it is a “Lease Renewal,” not a “Lease.” Am. Compl. Ex. 3 at 1. Nor could it have been a “Lease,” as that would have required extensive environmental review. And the “Lease Renewal,” the forms provide, is “subject to the regulations and general mining orders of the Secretary of the Interior in force on the date this lease issued.” Id. §1 (emphasis added). The date that the “lease” (not the “Lease Renewal”) issued was 1966. The renewal forms thus underscore that the 1966 regulations apply. Even if the 2004 regulations applied, dismissal would still be improper. NMW’s argument (Mem. 16) appears to rest on the notion that the 2004 regulations provide for only a “preferential right” in the lessee to renew. But as the D.C. Circuit has explained, “the term [‘preference right lease’] has … - 45 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 54 of 62 been construed by the agency consistently for nearly 60 years to mean an automatic entitlement of a prospecting permittee.” Natural Res. Def. Council, Inc. v. Berklund, 609 F.2d 553, 557-558 (D.C. Cir. 1979) (per curiam) (emphasis added). For the agency now to adopt a different reading with retroactive effect would raise serious constitutional questions. Supra pp.4445. Alternatively, NMW argues (Mem. 16-17) that plaintiffs’ claim would fail even if the 1966 regulations governed, because those regulations provide that renewals are subject to the Agriculture Department’s consent. The only reason NMW gives for that conclusion, however (Mem. 16), is that the 1966 regulations purportedly conditioned the issuance of the original lease on the Agriculture Department’s consent, “thus making any renewal right subject to such consent.” But the latter proposition in no way follows from the former. To the contrary, under the plain text of the regulations (in accord with the statute), the Agriculture Department’s consent was required only for “[l]eases or permits.” 43 C.F.R. §3325.2 (1966). Here, after consenting to the prospecting permits and lease issuance, the Forest Service retained only the ability to make reasonable adjustments to the terms and conditions of the Leases in connection with a renewal, including adjustments needed “for the protection of the surface of the land.” Id. §3221.4(f) (1966). - 46 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 55 of 62 NMW also contends (Mem. 17-18) that this Court should construe the 1966 regulation to grant a “preferential, rather than absolute” right of renewal. NMW, however, does not point to anything in the regulation to justify that interpretation—because there is nothing. Instead NMW rests on the contention that the Court should rewrite the regulation to reflect a different leasing scheme for different minerals. Such a rewriting would obviously be inappropriate. In any event, as just discussed (pp.45-46), even if the 1966 regulation provided for a “preferential” right to renew, NMW’s argument would still fail. In short, there is no support for NMW’s claim that—drawing all reasonable inferences in plaintiffs’ favor—the relevant regulation as a matter of law did not give plaintiffs a leasehold interest with a non-discretionary right to renew. B. Count III Sufficiently Claims That The Leases Grant A Non-discretionary Right To Renewal Plaintiffs have likewise stated a claim that the Leases (separate from the regulations but also consistent with them) provide a non-discretionary right of renewal. In particular, section 1 grants plaintiffs exclusive mineral rights “for a period of twenty (20) years with a right in the Lessee to renew the same for successive periods of ten (10) years each in accordance with the regulation 43 C.F.R. §3221.4(f) and the provisions of this lease.” Am. Compl. - 47 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 56 of 62 Ex. 1 at 1 (emphasis added). The cited regulation, as discussed, provides for a right of renewal subject only to terms and conditions imposed by the Interior Department, and no other provision of the Leases eliminates that right. Disputing this straightforward reading of the Leases, NMW argues (Mem. 18) that the 2004 lease renewals superseded the terms of the Leases. That is wrong, but would not be a basis for dismissal even if it were right. In the alternative, NMW argues (Mem. 20) that the Leases provided only a right to renewal upon “commencement of actual production.” That claim likewise lacks merit. 1. The terms of the Leases govern the renewal right NMW’s assertion that the 2004 renewals superseded the terms of the Leases is incorrect. The basis for NMW’s assertion (Mem. 2, 19-20) is that the 2004 renewals supposedly incorporated only two provisions of the Leases (related to royalties). Two points refute that. First, the 2004 renewal occurred using the same form as the 1989 renewal, and BLM acknowledged in 1989 that the Leases were being renewed “under the existing terms and conditions of the original leases.” Am. Compl. Ex. 6 at 1. Second, the renewals lacked an integration clause, which is dispositive because “[w]hen a contract lacks an express integration clause [courts] must ‘determine whether the parties intended their agreement to be an integrated contract by reading - 48 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 57 of 62 the writing in light of the surrounding circumstances.’” Starter Corp. v. Converse, Inc., 170 F.3d 286, 295 (2d Cir. 1999) (emphasis added). Consideration of such circumstances is inappropriate at the motion-todismiss stage, as it could involve parol evidence. In short, there is no basis to conclude, certainly not in this posture, that the terms and conditions were changed by the 2004 lease renewals, i.e., that in 2004 the parties, who engaged in no substantive negotiations leading up to the second renewal, tacitly intended to displace the terms of the Leases, which were the product of nearly a decade of “intensive negotiations.” Am. Compl. ¶61. 2. The 2004 lease renewals include a non-discretionary right to renewal Dismissal would be improper even if NMW were correct that the 2004 renewal forms controlled. Those forms give plaintiffs a “preferential right … to renew for successive periods of 10 years.” Am. Compl. Ex. 3 at 1. NMW claims (Mem. 19) that the term “preferential right” provides only a right to be preferred against other parties. But as discussed, the D.C. Circuit has noted that for decades the Interior Department itself interpreted the term “to mean an automatic entitlement” right. Berklund, 609 F.2d at 557-558. 3. The Leases do not impose a production requirement as a condition precedent to renewal Finally, NMW’s assertion (Mem. 20) that the Leases provide a nondiscretionary right to renewal only upon commencement of production is - 49 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 58 of 62 wrong. Section 1, entitled “Rights of Lessee,” establishes the plaintiffs’ right to renewal. Section 5—on which NMW relies—then limits the Interior Department’s ability to adjust not only the royalties payable under the Leases, but also other lease terms and conditions. In particular, section 5 provides in relevant part that the Secretary: shall have the right to reasonably readjust and fix royalties payable hereunder at the end of the primary term of this lease and … of each successive renewal … provided, however, that the Lessee shall have the right to three successive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production. Leases §5 (emphasis added). As the emphasized language makes clear, the reference at the end of this excerpt to the commencement of production does not bear on the right to renew that section 1 establishes. Instead, the production reference bears on the government’s right to adjust the royalties and other terms and conditions: If production has begun, the government’s adjustment right is limited in the ways specified; if production has not begun, it is not so limited. In other words, production was a condition precedent to receiving locked-in royalty rates (and no adjustment of other terms and conditions) upon renewal, not a condition precedent of the right to renew itself. - 50 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 59 of 62 C. Count IV Sufficiently Claims That The Forest Service’s Denial Of Consent Violates The APA In two cursory paragraphs, NMW argues (Mem. 24) that one “aspect” of plaintiffs’ challenge to the Forest Service’s denial of consent should fail on the merits. According to NMW, although plaintiffs have alleged that the Forest Service wrongfully considered environmental impacts in denying the Leases, plaintiffs “have not explained why environmental impacts are irrelevant to the decision of whether to consent to renewal of a mining lease.” Id. Thus, NMW concludes, “this aspect of Count IV should be dismissed.” Id. That argument simply ignores plaintiffs’ complaint. Count IV of the complaint sufficiently alleges that the Forest Service’s denial of consent violated the APA because, among other reasons, the “agency … relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, [and] offered an explanation for its decision that runs counter to the evidence before the agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). More specifically, paragraph 128 of the amended complaint alleges that “[t]he Forest Service does not have the authority to consider, at the lease renewal stage, potential environmental impacts from a mining project that has not even been proposed and that would be subject to a separate approval process that includes environmental review.” Am. Compl. - 51 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 60 of 62 ¶128. In other words, rather than evaluating the Leases’ terms and conditions to decide whether they were sufficient to protect the surface estate—as contemplated by the regulations, and as it had done with each previous renewal—the Forest Service conducted an ad hoc, cursory review based on data neither intended nor sufficient to address any such environmental impacts. Id. ¶¶102, 128. The Forest Service then simply made a policy determination that mineral development should not be allowed on lands near the Boundary Waters. See id. But that policy judgment is for Congress, and Congress has already made it, expressly authorizing mineral development in the Superior National Forest outside the wilderness and mining protection areas, including the land subject to plaintiffs’ Leases. CONCLUSION The motions to dismiss should be denied. - 52 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 61 of 62 Respectfully submitted, Dated: August 25, 2017 /s/ Paul R.Q. Wolfson PAUL R.Q. WOLFSON (D.C. Bar #414759) (pro hac vice) DANIEL S. VOLCHOK (D.C. Bar #497341) (pro hac vice) ALBINAS J. PRIZGINTAS (D.C. Bar #1006955) (pro hac vice) WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Ave. N.W. Washington, D.C. 20006 Tel.: (202) 663-6000 Fax: (202) 663-6363 MICHAEL J. P. HAZEL (Colo. Bar #49451) (pro hac vice) WILMER CUTLER PICKERING HALE AND DORR LLP 1225 17th St., Suite 2600 Denver, Colorado 80202 Tel.: (720) 274-3135 Fax: (720) 274-3133 STEVEN J. WELLS (Atty. #163508) I. DANIEL COLTON (Atty. #223116) MARK R. KASTER (Atty. #159517) DORSEY & WHITNEY LLP 50 South Sixth St., Suite 1500 Minneapolis, Minnesota 55402 Tel.: (612) 340-2600 Fax: (612) 340-2868 - 53 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 62 of 62 CERTIFICATE OF COMPLIANCE This brief complies with the limits in Local Rule 7.1(f) and with the type-size limit of Local Rule 7.1(h). 1. Exclusive of the portions of the brief exempted by Local Rule 7.1(f)(1)(C), the brief contains 11,954 words. 2. The brief has been prepared in proportionally spaced typeface using Microsoft Word 2016 in 13-point Century Schoolbook font. As permitted by Local Rule 7.1(f)(2), the undersigned has relied upon the wordcount feature of this word-processing system in preparing this certificate, and certifies that the word-count feature was applied to include all text, including headings, footnotes, and quotations. /s/ Paul R.Q. Wolfson PAUL R.Q. WOLFSON (D.C. Bar #414759) August 25, 2017 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA FRANCONIA MINERALS (US) LLC and TWIN METALS MINNESOTA LLC, ) ) ) ) ) CIVIL NO. 16-3042 SRN/LIB ) ) ) ) ) ) ) ) ) ) ) ) ) ) Plaintiffs, v. UNITED STATES OF AMERICA, et al., Defendants, and NORTHEASTERN MINNESOTANS FOR WILDERNESS, Defendant-Intervenor. (b) (5) FEDERAL DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS (b) (5) 1 2 Commented 5 Commented [cswz]: Commented Commented ll Commented Commented 13 Commented Commented Commented Commented Commented Commented Email: sean.c.duffy@usd0j.g0v ph: (202) 305?0445 Attorneys for Federal Defendants 22 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA FRANCONIA MINERALS (US) LLC and TWIN METALS MINNESOTA LLC, ) ) ) ) ) CIVIL NO. 16-3042 SRN/LIB ) ) ) ) ) ) ) ) ) ) ) ) ) ) Plaintiffs, v. UNITED STATES OF AMERICA, et al., Defendants, and NORTHEASTERN MINNESOTANS FOR WILDERNESS, Defendant-Intervenor. (b) (5) FEDERAL DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS (b) (5) 1 2 Commented Commented [cawz]: 5 Commented Commented Commented Commented Commented Commented Commented 13 Commented I Commented Commented Commented Commented Commented 22 i - I - EASTERN 511133 {?ll UNITED STATES DEPARTMENT OF THE INTERIOR BUREAU OF LAND MANAGEMENT MINERAL LEASE This lease entered into on the J?t day of'June,l966 between the United States of America, as Lessor, through the Bureau of Land Management, and The International Nickel Company, Inc., a Delaware corporation with offices at 67 Wall Street, New York, New York, as Lessee, pursuant to the authority set out in, and subject to, Section #02 of the President's Reor- ganization Plan No. 3 of 1946, 60 Stat. 1099, and the Act of June 30, 1950, 64 Stat. 311, and to all regulations of the Secretary of the Interior now in force when not inconsistent With any of the provisions herein. WITNESSETH: Sec. 1. Rights of Lessee. In consideration of the rents and royalties to?be paid and conditions and covenants to be observed as herein set forth the Lessor grants to the Lessee, subject to all privileges and uses heretofore duly authorized and prior valid claims, the exclusive right to mine, remove, and dispose of all the copper and/or nickel minerals and associated minerals and, with the exception of oil, gas, oil shale, coal, phosphate, potassium, sodium, or sulphur, any other minerals in, upon, or under the following described lands in the United States, in the State of Minnesota: In Lake County: Township 61 North, Range 11 West of the Fourth Principal Meridian: Section 3, Lot 2 sw-l/u of sw?l/u 3-1/2 of SE-l/u Section 5, Lots 1 and 2 5-1/2 of NE-l/u 6 Lot 7 NE-l/u of sw-l/u - 3-1/2 of sw-l/u - N-l/2 of SE-l/u ,Section 6, Lots 13, 22, 23 and 24 .Section 7, Lots lSection 8, Lots 2 and 6 Section 9 All except W-l/2 of NW-l/u Section 18, Lots .Section 19, Lots Township 62 North, Range ll West of the Fourth Principal Meridian: . . _Section 27, SE-l/u of SW-l/u Section 32, Lot Section 33, Lots 6 and 7 Section 34, In St. Louis County: Township 61 North, Range 12 West of the Fourth Principal Meridian: Section 25, Lot 2 sw?l/u of sw-l/u A VII o?containing'8156918? acres,more or less, together with the right gas/0.07 . .155; Abra/Story I to construct and maintain thereon such structures and other facili- ties as may be necessary or convenient for the mining, preparation, and removal of said minerals, for a period of twenty (20) years with a right in the Lessee to renew the same for successive Eeriods of ten 10) years each in accordance with regulation 3 CFR 3221.h f) and the provisions of this lease. Authorized Agency Representative. The United States agency having administrative control over the surface use of the land is the Department of Agriculture and its authorized agency representative, hereinafter called the "Authorized Officer," to whom inquiries should be addressed is the Supervisor, Superior National Forest at Duluth, Minnesota. Sec. 2. In consideration of the foregoing, the Lessee agrees: Rentals. To pay to the Lessor annually in advance, beginning with the date of this lease, rental of one dollar for each acre or fraction thereof for each lease year until production commences, the rental payment for the year in which production commences to be credited on royalties that accrue 'during that lease year. RoyaltE. To pay the Lessor within 30 days after the end of each per 0 prescribed in subsection e) of this sec- tion a royalty at the rate of h% during the irst ten years of the primary term and (ii) at the rate of 4-1/2% during the second 10 years of the primary term, of the gross value of the minerals mined hereunder which are shipped to the concentrating mill during each such period. Said value for the purposes of this Agreement shall be taken to be one-third of the market prices of a quantity of fully-refined copper and of a quantity of fully- refined nickel equal to the respective quantities of unrefined copper and unrefined nickel contained in said minerals so shipped to the concentrating mill. Minimum royalty. Beginning after the tenth year of the lease, except with reSpect to any periods during which operations are interrupted by strikes, the elements or casual- ties not attributable to the Lessee, to mine each year from the area covered by the lease a quantity of the leased minerals such that the royalties payable for said year under subsections and hereof will during the primary term of the lease be at least equal to $5 per annum per acre included in the leased premises at the beginning of such year, and during each renewal period of the lease be at least equal to $10 per annum per acre included in the leased premises at the beginning of such year; or in lieu thereof to pay the Lessor as royalty within 30 days . after the end of such year that amount which, when added to the royalties, if any, payable for said year under subsections and hereof, will equal the.minimum royalty for that year herein provided. Lessor may in its discretion, waive, reduce, or suspend the minimum royalty payment for reasonable periods of time in the interest of conservation or when such action does not adversely affect the interest of the United States of America in accordance with the regulation 43 CFR 3222.6?2. Additional royalty. (1) In order to provide a royalty in respect of any associated products (as hereinafter defined), to pay the Lessor within 30 days after the end of each period prescribed in subsection of this section an addi- tional royalty of 0.3% of the gross value of the minerals mined under this lease (determined on the basis of their copper and nickel content as provided in subsection (b of this sec-_ tion) which are shipped to the concentrating mi 1 during such -3- period. During the first ten years of the lease such addi- tional royalty shall not be payable if the Lessee demonstrates that no associated products are being recovered from the minerals mined under this lease, but beginning after the tenth year of the lease, such additional royalty shall be payable rwhether or not associated products are recovered from the minerals mined under this lease. The Lessee will also pay the Lessor within 90 days after the end of each lease year a further additional royalty of 1% of the amount, if any, by which the gross value of associated products exceeds 20% of the aggregate market price as fully- refined metals of the quantity of copper and nickel contained in the minerals mined under this lease which are shipped to the concentrating mill during such lease year. At the request of either party following any lease year for which said 1% royalty has been payable and the gross value of associated products ex- ceeds 30% of the said aggregate market price, representatives of the Lessor and the Lessee shall meet at a mutually agreeable time to consider and decide whether additional royalty for as? sociated products shall continue to be payable as provided in this subsection or shall (in lieu thereof) be payable on such basis as may be negotiated. In connection with such meet? ing the Lessee will make a reasonable investigation to ascertain insofar as practicable the volume of associated products which . appear to be currently recovered from the minerals mined under this lease,_and will provide the Lessor with the results of this investigation. (3) For purposes of this agreement, the term "associated products" shall mean fully-refined chemical elements (other than copper and nickel) not further processed and (ii) end products containing such elements produced by the Lessee (prior to full refining) for their value as such (other than products valuable chiefly by reason of their copper and/or nickel con- tent), which are, in either case, recovered by the Lessee from minerals mined under this lease and sold or used by the Lessee during the lease year for which additional royalty, if any, is due; and the gross value of such products shall be taken to be the aggregate of the market prices of the respective quantities of associated products so sold or used by the Lessee. Statement. To furnish for each month or such longer period as may 5e prescribed by the Regional Mining Supervisor cf the Geological Survey, statements in detail in such form as may be prescribed by him, of the amount and value under subsection of this section 0f the minerals mined here- under which are shipped to the concentrating mill during such period, for use in determining royalties, such statements to be furnished within 30 days from the close of such period. Falsi- fication of such sta ements shall be grounds for cancellation of the lease. Market prices. For the purposes of this section the "market price of fully-refined copper? per pound shall be the average of the average prices per pound for Domestic Refinery Electrolytic Copper in carload lots, f.o.b. Atlantic Seaboard refineries, published in E. M. J. Metal and Mineral Markets for the period for which the royalty is being computed, and the "market price offully-refined nickel" per pound shall be the average of the average prices per pOund for nickel electrolytic nickel cathodes) in carload lots, f.o.b. Port Colborne, Ontario, Canada, United States import duty (if any) included, published in E. M. J. Metal and Mineral Markets for the period for which royalty is being computed; and the respectiVe ?market prices of associated products? per unit shall be the average of the average prices per unit for such respective products in their usual and customary shipping quantities, f.o.b. their usual and customary place of disposal, published in E. M. J. Metal and Mineral Markets for the period for which additional royalty, if any, is being computed. 8g) Bond. To furnish and maintain a bond in the sum of 10,00 .00 conditioned upon compliance with the terms and conditions of this lease, and to increase the amount thereof or furnish such other bond as may be required. Inspection. To permit at all reasonable times: (1) inspection any authorized officer of the leased premises and all surface and underground improvements, works, machinery,. equipment, and all books and records pertaining to operations and surveys or investigations under this leaSe; and (2) the Lessor to make copies of and extracts from any or all books and records pertaining to operations under this lease. (1) Maps-?Reports. To furnish, in duplicate, to the Regional Mining Supervisor, at such times as he may require, a plat in the manner and form prescribed by him showing prospect? ing and development work and improvements on the leased land and other related information, with a report as to all buildings, structures, and other works or equipment, situated elsewhere and owned or operated in conjunction with, or as a part of the operations conducted hereunder. To comply with all regulations of the Secretary of the Interior and the Secretary of Agriculture applicable to the leased premises which are under his Jurisdiction; and to conduct operations in an orderly manner and in accordance with regulations in 30 CFR, Part eesoehehd the applicable Federal m1)? and State laws; and to exercise reasonable diligence, skill, and care in the operation of the property; and to carry on all 22 operations in accordance with approved methods and practices, having due regard for the prevention of damage to mineral de- posits, water horizons and property, injury to life and health, 2 and ecOnomic waste. gaxes. To pay when due all taxes lawfully assessed.and levied under the laws of the State or the United States upon improvements, output of mines, and other rights, property, and assets of the Lessee. Deliver Premises. To deliver up to the Least? in good order and condition and subject to the provisions of Section 9 hereof on the termination of this lease as a result of forfeiture thereof the lands covered thereby, including all underground timbering and such other supports and structures as are necessary for the preservation of the mine. Assi nment. Not to assign this lease, or any interest therein, whether by direct assignment, operating agreement, working or royalty interest, or otherwise,_nor sub- let any portion of the leased premises, except with the approval in writing of the Lessor. All such assignments or subleases must be submitted in tri licate within 90 days from the date of execution and must contain all of the terms and conditions agreed upon by the parties thereto. Not to create overriding royalgies in excess of those authorized by regulation 43 CFR 322 An assignment of all or part of the record title to a portion of the acreage in the lease shall separate the lease into separate leaseholds and the terms hereof shall apply separately to the segregated portions. Advance annual rental payments, if previously terminated, shall be resumed as to an undeveloped segregated portion on the next anniversary date of the lease; the minimum royalty payment herein specified shall apply separately to the segregated portions and the time allowed within which to commence operations on an undeveloped segregated portion shall be such reasonable period as shall be prescribed by the Lessor at the time the assignment is approved. Nondiscrimination Clauses. In connection with the performance of work under this contract, the Lessee agrees as follows: - (1) ,The Lessee will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The Lessee will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Lessee agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the authorized contracting officer setting forth the provisions of this nondiscrimination clause. (2) The Lessee will, in all solicitations or advertise? ments for employees placed by or on behalf of the Lessee state that all qualified applicants will receive consideration for employment without regard to race, creed, color, or national origin. (3) The Lessee will send to each labor union or representative of workers with which he has a collective bargaining-agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the said labor union or workers' representative of the Lessee?s commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (4) The Lessee will comply with all provisions of Executive Order No. 10925 of March 6, 1961, as amended, and of the rules, regulations, and relevant orders of the President's Committee on Equal Employment Opportunity created thereby. (5) The Lessee will furnish all information and reports I required by Executive Order No. 10925 of March 6, 1961, as amended, and by the rules, regulations, and orders of the said Committee, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Committee for purposes of investigation to ascertain compli- ance with such rules, regulations, and orders. (6) In the event of the Lessee's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be cancelled, terminated or suspended in whole or in part and the Lessee may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order No. 10925 of March 6, 1961, as amended, and such other sanc- tions may be impoSed and remedies invoked as provided in the said Executive Order or by rule, regulation, or order of the President's Committee on Equal Employment Opportunity, or as otherwise provided by law. ,The Lessee will include the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the President's Committee on Equal Employment Opportunity issued pursuant to section 303 of Executive Order No. 10925 of March 6, 1961, as amended, so that such provisions will be binding upon each sub- contractor or vendor. The Lessee will take such action with respect to any subcontract or purchase order as the contract? ing agency may direct as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, that in the event the Lessee becomes involved in, or is threatened with litigation with a subcontractor or vendor as a result of such direction by the contracting agency, the Lessee may re- quest the United States to enter into such litigation to pro- tect the interests of the United States. (0) Pa ents. Rentals under this lease shall be paid to the Manager of the.proper Land Office, except that when this lease becomes productive the rentals an royalties shall be paid to the Regional Mining Supervisor of the United States Geological Survey, with whom all reports con? cerning operations under the lease shall be filed. All remit? tances to.the Bureau of Land Management shall be made payable to the Bureau of Land Management, those to the Geological Survey shall be made payable to the United States Geological Survey. Sec. 3. Lessee further agrees; Protection of Property. To conduct all operations hereunder with due regard for good land management, not to cut or destroy timber without previous permission from the Authorized Officer and to pay for such timber at rates prescribed by him; to avoid damage to improvements, timber, crops, or other cover; unless otherwise authorized by the Authorized Officer, not drill any well, carry on operations, make excavations, construct tunnels, drill, or otherwise disturb the surface of the lands within 200 feet of any building thereon and whenever required in writing by the Authorized Officer, and upon any partial or total relinquish- ment, cancellation or termination of this lease as to that portion of the land to which his rights have terminated, to-? fence or fill all sump holes, ditches and other excavatiOns, remove or cover all debris, and so far as reasonably possible, reseed or otherwise restore the surface of the lands to their former condition, or to a productive or other condition satisfactory to the Authorized Officer, including the removal of structures as and if required, and when required by such Officer to bury all pipelines below plow depth. Fire precautions. To do all in his power to prevent and suppress fires on the land and vicinity, and to require his employees, contractors, and subcontractors to do likewise. ,Unless prevented by circumstances over which he has no control, to place his employees, contractors, and sub- contractors at the disposal of the Authorized Officer for the purpose of fighting fires on or originating on the land or on adjacent areas or caused by the negligence of the Lessee or his employees, contractors, and subcontractors, with the understanding that payment for such services shall be made at rates to be determined by such Authorized Officer but not less than the current rates of pay prevailing in the vicinity for services of a similar character: Provided, that if the -7- Lessee, his employees, contractors, or subcontractors, or employees of any of them, caused or could have prevented the origin or spread of said fire or fires, no payment shall be made for services so rendered. During periods of Serious fire danger, as may be specified by the Authorized Officer, the Lessee shall prohibit smoking and the building of camp and lunch fires by his employees, contractors, and subcontractors, within the leased area except at established camps,and shall enforce this prohibition by all means within his power:' Provided, that the Authorized Officer may designate safe places where, after all inflammable material has been-cleared away, campfires may be built for the purpose of heating lunches and where, at the option of the Lessee, smoking may be permitted. The Lessee will not burn rubbish, trash, or other inflammable materials exce with the consent of the Authorized Officer. The Lessee shall build or construct such fire lines or do such clearing on the land as the Authorized Officer decides is essential for forest, brush, and grass fire prevention which is or may be necessitated by the exercise of the privileges authorized by this lease, and shall maintain such fire tools at his headquarters or at the appropriate location on the land as are deemed necessary by such Officer. (0) Approval of Construction. Not to clear or use the land for;development or for construction purposes of any kind until a plan of construction and deVelopment therefor has been approved by the Authorized Officer and that in the location, design, construction and maintenance of all authorized works, camps, buildings, plants, waterways, roads, telegraph or tele- phone lines, pipelines, reservoirs, tanks, pumping stations, or other structures or clearance, Lessee shall do all things reasonably necessary to prevent or reduce scarring and erosion of the land, pollution of the water resources and any damage to the watershed. Damage to Property. To pay the Lessor or its tenant, as the case may be, for any and all damage to or destruction of property caused by the Lessee's operations here- under; to save and hold the Lessor or the surface owner or their tenants harmless from all damage or claims for damage to persons or property resulting from the Lessee's operations under this lease; and where the surface of the leased land is owned by other than the Lessor, to pay such owner, or his tenant, as the case may be, for damage or injury to livestock, crops,. trees, pipelines, buildings, and other improvements of the leased lands. That where construction, operation, or maintenance of any of the facilities on or connected with this lease causes damage to the watershed or pollution of the water resources, to repair such damage and to take such corrective measures as are required by the Authorized Officer, including the reseeding or other restoration of the vegetative cover. Protection of Livestock; Access to Leased Lands. To install and maintain cattle guards to prevent the passage of livestock in any openings made in fences by the Lessee or his contractors to provide access to the lands covered by this lease for automotive and other equipment. I Authorized Officer. All inquiries relating to this section should be addressed to the Authorized Officer named in Section this lease. Sec. 4. Lessee-?Agent. Prior to the beginning of opera? tions the Lessee shall appoint and maintain at all times during the term of this lease a local agent upon whom may be served written orders or notices respecting matters contained in this lease, and shall inform the Authorized Officer and the Regional -8- Mining Supervisor of the Geological Survey, in writing, of the name and address of such agent. If a substitute agent is ap? pointed, the Lessee shall immediately so inform the said Officers. Sec. Renewal Terms. The Lessor shall have the right to reasonably readjust and fix royalties payable hereunder at the end of the primary term of this lease and thereafter at the end of each successive renewal thereof unless otherwise pro- vided by law at the time of the expiration of any such period, and to readjust other terms and conditions of the lease, in- cluding the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having Jurisdiction thereover; provided, however, that the Lessee shall have the right to three successive ten- year renewals of this lease with any readjustment in the royal- 'ties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of .this lease unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the cOmpanion lease granted to the Lessee this day. The Secretary of the Interior may grant extensions of time for commencement of production in the interest of conservation or upon a satisfactory showing by the Lessee that the lease can- not be successfully operated at a profit or for other reasons, and the Lessee shall be entitled to renewal as herein provided without readjustment except of royalties payable hereunder if at the end of the primary or renewal period such an extension shall be in effect, but the Lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time. If the Lessee shall be entitled to renewal without readjustment except of royalties payable here? under, the Secretary of the Interior may in his discretion in? crease the royalty rate prescribed in subsection of Section 2 up to, but not exceeding (1) 5% during the first ten-year renewal period, (ii) 6% during the second ten-year renewal period, and 7% during the third ten?year renewal period. The extent of readjustment of royalty, if any, to be made under this section shall be determined prior to the commence- ment of the renewal period. Sec. 6. The Lessor expressly reserves: Rights Reserved. The right to permit for joint or several use easements or rights-of-way, including easements in tunnels upon, through, or in the land leased, occupied, or used as may be necessary or appropriate to the working of the same or other lands, and the preparation and shipment of the products thereof by or under authority Of the Government, its Lessees or Permittees, and for other public purposes. Waiver of Conditions. The right to waive any breach of the covenants and conditions contained herein, but any such waiver shall extend only to the particular breach so waived and shall not limit the rights of the Lessor with re- spect to any future breach; nor shall the waiver of a particular cause of forfeiture prevent cancellation of this lease for any other cause, or for the same cause occurring at another time. Sec. 7. It is mutually agreed: Mining Methods. That this lease does not author- ize the mining or removal of the mineral deposits by stripping, rim cutting, or open pit methods without the prior written -9- approval of the Authorized Officer and on such conditions as he may prescribe. Reduction or Smelting of Ores. That the reduc- tion or smelting ofrores on the leased land'is expressly pro? hibited in the absence of an agreement between the Lessee and the Authorized Officer authorizing such use of the surface of the land and providing for the necessary protection of life and property. Such agreement shall contain all of the terms and conditions under which the reduction or smelting of ores may be carried on and any violation of that agreement shall be con- sidered a violation of the terms of this lease for the purpose of Section 10. Uses and Disposition of Surface. That the leased land shall be subJect at all times to any other lawful uses or sale by the United States, its Lessees, Permittees, Licensees, and Assigns; provided that such uses or sale shall not prevent, obstruct, or unduly interfere with any privilege granted under this lease; Provided, that the Lessee shall recognize existing uses and commitments in the form of grazing, timber cutting, and special use permits, water developments, ditch, road, trail, pipeline, telephone and telegraph lines, fence, rights-of-way, and other similar improvements, and to conduct his operations so as to interfere as little as possible with the rights and privileges granted by these permits or with other existing uses. id) Granting Leases for Other Minerals. That the granting of this lease will not preclude the issuance of other leases of the same land for the purpose of mining and extract~ ing oil, gas, oil shale, coal, phosphate, potassium, sodium, and sulphur. Sec. 8. Relinquishment of Lease. The Lessee may surrender this lease or any one or more legal subdivisions included in the leased premises. If the lands are not described by legal subdivision, a partial relinquishment must describe definitely the lands surrendered and give the exact area thereof. A relinquishment must be filed in tri licate in the proper Land Office. Upon its acceptance, it wi?l Be effective as of the date it is filed, subject to the continued obligation of ther Lessee and his surety to make payment of all accrued rentals.and royalties,?and to provide for the preservation of any mines or productive works or permanent improvements on the lands in accordance with the regulations and terms of the lease, and for the faithful compliance of all the terms of the lease. Sec. 9. Removal of Equipment, etc., on Termination of Lease. On termination of this lease, by surrender, forfeiture, or otherWise, the Lessee shall have the privilege at any time within a period of one year thereafter of removing from the premises all machinery, equipment, tools, and materials, other than underground timbering placed by the Lessee in or on the leased lands, which are not necessary for the preservation of the mine. Any materials, tools, applicances, machinery, struc- tures, and equipment, subject to removal as above provided, which are allowed to remain on the leased land shall become the property of the Lessor on expiration of the one?year period or such extension thereof as may be granted by the Lessor, but the Lessee shall remove any or all of such property when so directed by the Lessor. -10- Sec. 0. Proceedings in Case of Default. If the Lessee does not comply with the applicable regulations made a part hereof or the terms of this lease and such default continues for a period of 30 days, or such longer period as the Lessor determines may be reasonably required to correct the default, after service of written notice thereof by the Lessor, the Lessor may insti- tute appropriate proceedings in a court of competent jurisdiction for the forfeiture and cancellation of this lease or seek such other administrative, legal or equitable remedies as may be ap- propriate. Furthermore, if the Lessee fails to take prompt and necessary steps to prevent loss or damage to the mine, property, or premises, or danger to the employees, the Lessor may enter on the premises and take such measures as may be deemed necessary to prevent such loss or damage, or to correct the dangerous or unsafe condition of the mine or works thereof, which shall be at the expense of the Lessee, but the Lessee shall not be held re- sponsible for delays Or casualties occasioned by causes beyond the Lessee's control. Sec. ll. Heirs and Successors-in-Interest. Each obliga- tion hereunder shall extend to and be binding upon, and every benefit hereof shall inure to, the heirs, executors, administra- .tors, successors, or assigns of the respective parties hereto. Sec. 12. Unlawful Interest. It is also further agreed that no Member of, or Delegate to, Congress, or Resident Commissioner, after his election or appointment, or either before or after he has qualified and during his continuance in office, and that no officer, agent, or employee of the De artment of the Interior, except as provided in #3 CFR shall be admitted to any are or part in this lease or derive any benefit that may arise therefrom; and the provisions of Section 3741 of the Revised Statutes of the United States, as amended (41 U.S.C., Sec. 22), and sections 431, 432, and #33, Title 18 U.S.C., relating to con- tracts, enter into and form a part of this lease so far as the same may be applicable. Sec. 13. Special Stipulations. In conformity with the principles of the Ship?s stead-Newton?Nolan Act of July 10, 1930 (16 U.S.C. 577), no oc- cupancy or use of the surface within 400 feet of the shoreline of any lake or stream is authorized without the written approval of the AuthoriZed Officer. Any and all operations authorized by this lease shall be done in accordance with a plan which must be submitted in triplicate and approved in writing by the Authorized Officarbe? fore such operations are begun. The operating plan will contain all such provisions as the Authorized Officer may reasonably determine are needed to maintain prOper administration of the lands and surface resources. Where appropriate, depending upon the location and type of operation, the Authorized Officer may require the plan to contain provisions concerning the following matters: 1. The location and extent of areas to be occupied during opera- ions. 2 The methods to be used in the operations. a. The size and type of equipment to be used in the operations. . The capacity, character, standards of construction and size of all structures and facilities to be built.. 5. The location and size of areas upon which vegetation will be destroyed or soil will be laid bare. -11- 6. The steps which will be taken to prevent and control soil erosion. 7. The steps which will be taken to prevent water pollution. 8. The character, amount, and time of use of explosives or fire, including safety precautions which will be taken during their use. 9. The program proposed for rehabilitation and revegetation of disturbed lands. If later operations require departure from or additions to the approved plan, revisions or amendments will be submitted in tripli- cate, with statements of the reasons for changes or additions, to the Authorized Officer for approval. Any and all operations con? ducted in advance of approval of an original, revised, or amended operating plan, or which are not in accord with an approved plan, constitute violations of the terms of this lease. If minerals from the leased premises be shipped outside the United States for treatment, Lessee shall, upon the call of the Lessor, and provided that there be no imposition of tariff, cause to be returned for sale or for use in the operations of the Lessee or of its affiliates in the United States quantities of copper equal to the quantities recovered from the minerals so shipped during the time of the call. The copper so returned shall be priced on no different basis than would then_be appli- cable under circumstances prevailing had it been produced entirely within the United States and sold by-a domestic producer, so that the prices will be competitive with those of domestic producers. Within 12 months after approval by the Authorized Officer Lessee will carry out a program in respect of this lease and the companion lease issued this day of drilling to ascertain the facts which will be essential to instituting production, and also will ship to the pilot plants of its parent company in Ontario, Canada, not less than 1,000 tons of ore to seek appropri? ate extractive metallurgical procedures therefor. The anticipated cost of the drilling program, to cover from 10,000 to 20,000 feet of drilling at an average cost of $10 per foot is $200,000. ?Ihe estimated cost of preparing, transporting and treating the ore sample is $125,000 to $200,000; in addition revisions in and additions to the pilot plants in connection therewith are estimated to cost about $250,000. Sec. l4._ Royalty Adjustment. If the Lessee shall have sunk a shaft for underground exploration or development or shall have otherwise commenced commercial development of the premises leased under this_lease (or the companion lease issued to Lessee this day) within five years after the Regional Mining Supervisor shall have determined that the Federal and State governments have granted all necessary rights and authorizations for the construction, operation and maintenance of the leased premises, the rate of royalty payable under Section 2(b) with respect to the second ten -years of the primary lease term shall be 4% in lieu of 4-1/2% as provided therein and the rates of royalty set forth in Section 5 shall not exceed (1) 4?1/2% during the first ten-year renewal -12- period, (ii) 5-1/2% during the second ten-year renewal period, and 6% during the third ten-year renewal period. SIGNATURE OF THE UNITED STATES OF AMERICA THE INTERNATIONAL NICKEL E: COMPANY, INC. By 626~e-~ ?1 (Signing officer) Land Office Manager . Eastern (Title) JUN 1_4 1966? (Date) If this lease is executed by a corporation, it must bear the corporate seal. EQUAL OPPORTUNITY The andiscrimination Clause, regarding "Equal Opportunity," in the attached mineral permit or lease, is amended by deleting references to the President's Committee on Equal Employment Opportunity, Executive Order No. 10925 of March 6, 1961, as amended, and section 303 of Executive Order No. 10925 of March 6, 1961, as amended; and substituting therefor the Secretary of Labor, Executive Order No. 112h6 of September 2M, 1965, and section 20h of Executive Order No. 112h6 of September 2M, 1965, respectively. In accordance with regulations of the Secretary of Labor, the rules, regulations, orders, instructions, designations, and other directives referred to in section h03(b) of Executive Order No. 112h6, remain in effect and, where applicable, shall be observed in the performance of this contract until revoked or superseded by appropriate authority. EASHEN smums *4 01353 UNITED STATES DEPARTMENT OF THE INTERIOR BUREAU OF LAND MANAGEMENT MINERAL LEASE This lease entered into on the lab day of June,l966, between the United States of America, as Lessor, through the Bureau of Land Management, and The International Nickel Company, Inc., a Delaware corporation with offices at 67 Wall Street, New York, New York, as Lessee, pursuant to the authority set out in, and subject to, Section 402 of the President's Reor- ganization Plan No. 3 of l9h6, 60 Stat. 1099, and the Act of June-30, 1950, 64 Stat. 311, and to all regulations of the Secretary of the Interior now in force when not inconsistent with any of the provisions herein. WITNESSETH: Sec. 1. Rights of Lessee. In consideration of the rents and royalties to be paid and conditions and covenants to be observed as herein set forth the Lessor grants to the Lessee, subject to all privileges and uses heretofore duly authorized and prior valid claims, the exclusive right to mine, remove, and dispose of all the copper and/or nickel minerals and associated minerals and, with the exception of oil, gas, oil shale, coal, phosphate, potassium, sodium, or sulphur, any other minerals in, upon, or under the following described lands in the United States, in the State of Minnesota: In Lake County: Township 62 North, Range 10 West of the Fourth Principal Meridian: . Section 19, All Section 20, . Section 29, N-l/2 Section 30, N-l/2 Lot 3 of SW-l/u) - Township 62 North, Range 11 West of the Fourth Principal Meridian: Section 24, Lot 7 SE?l/h of sw-l/u 3-1/2 of SE-l/u N-l/2 W-l/2 of [undivided one-half interest] NE-l/h of SE-l/u 3-1/2 of NE-l/u NE?l/h of sw-l/n E~l/2 of SE-l/u [undivided one?half interest] Section 25, Section 26, containingn27326SAQ acres, more or less, together with the right 4,33%w 9:7. 7/ 7? (14-66 - . '3 -2- to construCt and maintain thereon such structures and other facili? ties as may be necessary or convenient for the mining, preparation, and removal of said minerals, for a period of twenty (20) years with a right in the Lessee to renew the same for successive Eeriods of ten -10) years each in accordance with regulation 3 CFR 3221.4 f) and the provisions of this lease. Authorized Agency Representative. The United States agency having administrative control over the surface use of the land is the Department of Agriculture and its authorized agency representative, hereinafter called the "Authorized Officer," to whom inquiries should be addressed is the Supervisor, Superior National Forest at Duluth, Minnesota. Sec. 2. In consideration of the foregoing, the Lessee agrees: Rentals. To pay to the Lessor annually in advance, beginning with the date of this lease, rental of one dollar for each acre or fraction thereof for each lease year until production commences, the rental payment for the year in which production commences to be credited on royalties that accrue during that lease year. Ro alt . To pay the Lessor within 30 days after the end of each periog prescribed in subsection e)_of this sec? tion a royalty at the rate of 4% during the irst ten years of the primary term and (ii) at the rate of 4?1/2% during the second 10 years of the primary term, of the gross value of the minerals mined hereunder which are shipped to the concentrating mill during each such period. Said value for the purposes of this Agreement shall be taken to be one-third of the market prices of a quantity of fully-refined copper and of a quantity of fully? refined nickel equal to the respective quantities of unrefined copper and unrefined nickel contained in said minerals so shipped to the concentrating mill. Minimum royalty. Beginning after the tenth year of the lease, except with respect to any periods during which operations are interrupted by strikes, the elements or casual- ties not attributable to the Lessee, to mine each year from the area covered by the lease a quantity of the leased minerals such that the royalties payable for said year under subsections and hereof will during the primary term of the lease be at least equal to $5 per annum per acre included in the leased premises at the beginning of such year, and during each renewal period of the lease be at least equal to $10 per annum per acre included in the leased premises at the beginning of such year; -or in lieu thereof to pay the Lessor as royalty within 30 days after the end of such year that amount which, when added to the royalties, if any, payable for said year under subsections and hereof, will equal the minimum royalty for that year herein provided. Lessor may in its discretion, waive, reduce, or suspend the minimum royalty payment for reasonable periods of time in the interest of conservation or when such action does not adversely affect the interest of the United States of America in accordance with the regulation 43 CFR 3222.6-2. Additional royalty. (1) In order to provide a royalty in respect of any associated products (as hereinafter defined), to pay the Lessor within 30 days after the end of each period prescribed in subsection of this section an addi- tional royalty of 0.3% of the gross value of the minerals mined under this lease (determined on the basis of their copper and nickel content as provided in subsection of this sec-, tion) which are shipped to the concentrating mill during such r?x . .KJ -3- . period. During the first ten years of the lease such addi- tional royalty shall not be payable if the Lessee demonstrates that no associated products are being recovered from the minerals mined under this lease, but beginning after the tenth year of the lease, such additional royalty shall be payable whether or not associated products are recovered from the minerals mined under this lease. (2) The Lessee will also pay the Lessor within 90 days after the end of each lease year a further additional royalty of 1% of the amount, if any, by which the gross value of associated products exceeds 20% of the aggregate market price as fully? refined metals of the quantity of copper and nickel contained in the minerals mined under this lease which are shipped to the concentrating mill during such lease year. At the request of either party following any lease, year for which said 1% royalty has been payable and the gross value of associated products ex- ceeds 30% of the said aggregate market price, representatives of the Lessor and the Lessee shall meet at a mutually agreeable time to consider and decide whether additional royalty for as? sociated products shall continue to be payable as provided in this subsection or shall (in lieu thereof) be payable on such basis as may be negotiated. In connection with such meet? ing the Lessee will make a reasonable investigation to ascertain insofar as practicable the volume of associated products which appear to be currently recovered from the minerals mined under this lease, and will provide the Lessor with the results of this investigation. (3) For purposes of this agreement, the term ?associated products? shall mean fully-refined chemical elements (other than copper and nickel) not further processed and (ii) end products containing such elements produced by the Lessee (prior to full refining) for their value as such (other than products valuable chiefly by reason of their copper and/or nickel con- tent), which are, in either case, recovered by the Lessee from minerals mined under this lease and sold or used by the Lessee during the lease year for which additional royalty, if any, is due; and the gross value of such products shall be taken to be the aggregate of the market prices of the respective quantities of associated products so sold or used by the Lessee. Statement. To furnish for each month or such longer period as may 5e prescribed by the Regional Mining . Supervisor of the Geological Survey, statements in detail in such form as may be prescribed by him, of the amount and value under subsection of this section of the minerals mined here? under which are shipped to the concentrating mill during such period, for use in determining royalties, such statements to be furnished within 30 days from the close of such period. Falsi? fication of such statements shall be grounds for cancellation of the lease. Market prices. For the purposes of this section the "market price of fully-refined copper" per pound shall be the average of the average prices per pOund for Domestic Refinery Electrolytic Copper in carload lots, f.o.b. Atlantic Seaboard refineries, published in E. M. J. Metal and Mineral Markets for the period for which the royalty is being computed, and the "market price offully-refined nickel? per pound shall be the average of the average prices per.pound for nickel electrolytic nickel cathodes) in carload lots, f.o.b. Port Colborne, Ontario, Canada, United States import duty (if any) included, published in E. M. J. Metal and Mineral Markets for the period for which royalty is being computed; and the respective "market prices of associated products" per unit -4- shall be the average of the average prices per unit for such respective products in their usual and customary shipping quantities, f.o.b. their usual and customary place of disposal, published in E. M. J. Metal and Mineral Markets for the period for which additional royalty, if any, is being computed. 8g) Bond. To furnish and maintain a bond in the sum of 10,00 .00 . conditioned upon compliance with the terms and conditions of this lease, and to increase the amount thereof or furnish such other bond as may be required. . Inspection. To permit at all reasonable times: (1) inspection any authorized officer of the leased premises and all surface and underground improvements, works, machinery, equipment, and all books and records pertaining to operations and surveys or investigations under this lease; and (2) the Lessor to make copies of and extracts from any or all books and records pertaining to operations under this lease. Maps--Reports. To furnish, in duplicate, to the Regional Mining Supervisor, at such times as he may require, a plat in the manner and form prescribed by him showing prospect~ ing and development work and improvements on the leased land and other related information, with a report as to all buildings, rstructures, and other works or equipment, situated elsewhere and owned or operated in conjunction with, or as a part of the operations conducted hereunder. (J) To comply with all regulations of-the Secretary of the Interior and the Secretary of Agriculture applicable to the leased premises which are under his Jurisdiction; and to conduct operations in an orderly regulations in 30 CFR, Part ease?ehna the applicable Federal and State laws; and to exercise reasonable diligence, skill, and care in the operation of the property; and to carry on all?uf operations in accordance with approved methods and practices, having due regard for the prevention of damage to mineral de- (314) posits, water horizons and property, injury to life and health, I, and economic waste. TaXes. To pay when due all taxes lawfully assessed and levied under the laws of the State or the United States upon improvements, output of mines, and other rights, property, and assets of the Lessee. (1) Deliver Premises. To deliver up to the Lessor in good order and condition and subject to the provisions of Section 9 hereof on the termination of this lease as a result of forfeiture thereof the lands covered thereby, including all underground timbering and such other supports and structures as are necessary for the preservation of the mine. Assi nment. Not to assign this lease, or any interest therein, whe her by direct assignment, operating agreement, working or royalty interest, or otherwise, nor sub- let any portion of the leaSed premises, except with the approval in writing of the Lessor. All such assignments or subleases must be submitted in triplicate within 90 days from the date of execution and must con a all of the terms and conditions agreed upon by the parties thereto. Not to create overriding royalgies in excess of those authorized by regulation 43 CFR 322 .1. An assignment of all or part of the record title to a portion of the-acreage in the lease shall separate the lease into separate leaseholds and the terms hereof shall apply otherwise provided by law. (7) The Lessee will include the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the President's Committee on Equal Employment Opportunity-issued pursuant to section 303 of Executive Order No. 10925 of March 6, 1961, as amended, so that such provisions will be binding upon each sub- contractor or vendor. The Lessee will take such action with respect to any subcontract or purchase order as the contract- ing agency may direct as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, that in the event the Lessee becomes involved in, or is threatened with litigation with a subcontractor or vendor as a result of such direction by the contracting agency, the Lessee may re? quest the United States to enter into such litigation to pro- tect the interests of the United States. (0) Payments. Rentals under this lease shall be paid to the Manager 0 the proper Land Office, except that when this lease becomes productive the rentals an royalties shall be paid to the Regional Mining Supervisor of the United States Geological Survey, with whom all reports con? cerning operations under the lease shall be filed. All remit- tances to the Bureau of Land Management shall be made payable to the Bureau of Land Management, those to the Geological Survey shall be made payable to the United States Geological Survey. Sec. 3. Lessee further agrees: Protection of Property. To conduct all operations hereunder with due regard?for good land management, not to cut or destroy timber without previous permission_from the Authorized Officer and to pay for such timber at rates prescribed by him; to avoid damage to improvements, timber, crops, or other cover; unless otherwise authorized by the Authorized Officer, not drill any well, carry on operations, make excavations, construct tunnels, drill, or otherwise disturb the surface of the lands within 200 feet of any building thereon and whenever required in writing by the Authorized Officer, and upon any partial or total relinquish- ment, cancellation or termination of this lease as to that portion of the land to which his rights have terminated, to fence or fill all sump holes, ditches and other excavations, remove or cover all debris, and so far as reasonably possible, reseed or otherwise restore the surface of the lands to their former condition, or to a productive or other condition satisfactory to the Authorized Officer, including the removal of structures as and if required, and when required by such Officer to bury all pipelines below plow depth. Fire precautions. To do all in his power to prevent and suppress?Tires on the land and vicinity; and to require his employees, contractors, and subcontractors to do likewise. Unless prevented by circumstances over which he has no control, to place his employees, contractors, and sub- contractors at the disposal of the Authorized Officer for the purpose of fighting fires on or originating on the land or on adjacent areas or caused by the negligence of the Lessee or his employees, contractors, and subcontractors, with the understanding that payment for such services shall be made at rates to be determined by such Authorized Officer but not less than the current rates of pay prevailing in the vicinity for services of a similar character: Provided, that if the -5- separately to the segregated portions. Advance annual rental payments, if previously terminated, shall be resumed as to an undeveloped segregated portion on the next anniversary date of the lease; the minimum royalty payment herein specified shall apply separately to the segregated portions and the time allowed within which to commence operations on an undeveloped segregated portion shall be such reasonable period as shall be prescribed by the Lessor at the time the assignment is approved. Nondiscrimination Clauses. In connection with the performance of work under this contract, the Lessee agrees as follows: The Lessee will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The Lessee will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Lessee agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the authorized contracting officer setting forth the provisions of this nondiscrimination clause. (2) The Lessee will, in all solicitations or advertise- ments for employees placed by or on behalf of the Lessee state that all qualified applicants will receive consideration for employment without regard to race, creed, color, or national origin. (3) The Lessee will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the said labor union or workers? representative of the Lessee's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (4) The Lessee will comply with all provisions of Executive Order No. 10925 of March 6, 1961, as amended, and of the rules, regulations, and relevant orders of the President's Committee on Equal Employment Opportunity created thereby. (5) The Lessee will furnish all information and reports 7 required by Executive Order No. 10925 of March 6, 1961, as amended, and by the rules, regulations,-and orders of the said Committee, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Committee for purposes of investigation to ascertain compli? ance with such rules, regulations, and orders. (6) In the event of the Lessee's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be cancelled, terminated or suspended in whole or in part and the Lessee may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order No. 10925 of March 6, 1961, as amended, and such other sanc- tions may be imposed and remedies invoked as provided in the said Executive Order or by rule, regulation, or order of the President's Committee on Equal Employment Opportunity, or as Vw . -7- Lessee, his employees, contractors, or subcontractors, or employees of any of them, caused or could have prevented the origin or spread of said fire or fires, no payment shall be made for services so rendered. During periods of serious fire danger, as may be specified by the Authorized Officer, the Lessee shall prohibit smoking and the building of camp and lunch fires by his employees, contractors, and subcontractors, within the leased area except at established camps,and shall enforce this prohibition by all means within his power: Provided, that the Authorized Officer may designate safe places where, after all inflammable material has been cleared away, campfires may be built for the purpose of heating lunches and where, at the option of the Lessee, smoking may be permitted. The Lessee will not burn rubbish, trash, or other inflammable materials except with the consent of the Authorized Officer. The Lessee shall build or construct such fire lines or do such clearing on the land as the Authorized Officer decides is essential for forest, brush, and grass fire prevention which is or may be necessitated by the exercise of the privileges authorized by this lease, and shall maintain such fire tools at his headquarters or at the appropriate location on the land as are deemed necessary by such Officer. Approval of Construction. Not to clear or use the land for development or for construction purposes of any kind until a plan of construction and development therefor has been approved by the Authorized Officer and that in the location, design, construction and maintenance of all authorized works, camps, buildings, plants, waterways, roads, telegraph or tele- phone lines, pipelines, reservoirs, tanks, pumping stations, or other structures or clearance, Lessee shall do all things reasonably necessary to prevent or reduce scarring and erosion of the land, pollution of the water resources and any damage to the watershed. Damage to Property. To pay the Lessor or its tenant, as the case may be, for any and all damage to or destruction of property caused by the Lessee's operations here- under; to save and hold the Lessor or the surface owner or their tenants harmless from all damage or claims for damage to persons or property resulting from the Lessee's operations under this lease; and where the surface of the leased land is owned by other than the Lessor, to pay such owner, or his tenant, as the case may be, for damage or injury to livestock, crops,. trees, pipelines, buildings, and other improvements of the - leased lands. That where construction, operation, or maintenance of any of the facilities on or connected with this lease causes damage to the watershed or pollution of the water resources, to repair such damage and to take such corrective measures as are required by the Authorized Officer, including the reseeding or other restoration of the vegetative cover. Protection of Livestock; Access to Leased Lands. -To install and maintain cattle guards to prevent the passage of livestock in any openings made in fences by the Lessee or his contractors to provide access to the lands covered by this lease for automotive and other equipment. Authorized Officer. All inquiries relating to this section should be addressed to the Authorized Officer ,named in Section l(b) of this lease. Sec. Lessee-?Agent. Prior to the beginning of opera- tions the Lessee shall appoint and maintain at all times during the term of this lease a local agent upon whom may be served ?written orders or notices respecting matters contained in this lease, and shall inform the Authorized Officer and the Regional -8- Mining Supervisor of the Geological Survey, in writing, of the name and address of such agent. If a substitute agent is ap? pointed, the Lessee shall immediately so inform the said Officers. Sec. 5. Renewal Terms. The Lessor shall have the right to reasonably readjust and fix royalties payable hereunder at the end of the primary term of this lease and thereafter at the end of each successive renewal thereof unless otherwise pro? vided by law at the time of the expiration of any such period, and to readjust other terms and conditions of the lease, in- cluding the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having Jurisdiction thereover; provided, however, that the Lessee shall have the right to three successive ten- year renewals of this lease with any readjustment in the royal- ties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day. The Secretary of the Interior may grant extensions of time for commencement of production in the interest of conservation or upon a satisfactory showing by the Lessee that the lease can? not be successfully operated at a profit or for other reasons, and the Lessee shall be entitled to renewal as herein provided without readjustment except of royalties payable hereunder if at the end of the primary or renewal period such an extension shall be in effect, but the Lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time. If the Lessee shall be entitled to renewal without readjustment except of royalties payable here- under, the Secretary of the Interior may in his discretion in? crease the royalty rate prescribed in subsection of Section 2 up to, but not exceeding 5% during the first ten-year renewal period, (ii) 6% during the second ten-year renewal period, and 7% during the third ten?year renewal period. The extent of readjustment of royalty, if any, to be made under this section shall be determined prior to the commence- ment of the renewal period. Sec. 6. The Lessor expressly reserves: Rights Reserved. The right to permit for joint or several use easements or rights-of-way, including easements in tunnels upon, through, or in the land leased, occupied, or used as may be necessary or appropriate to the working of the same or other lands, and the preparation and shipment of the products thereof by or under authority Of the'Government, its Lessees or Permittees, and for other public purposesr Waiver of Conditions. The right to waive any breach of the covenants and conditions contained herein, but any such waiver shall extend only to the particular breach so waived and shall not limit the rights of the Lessor with re- spect to any future breach; nor shall the waiver of a particular cause of forfeiture prevent cancellation of this lease for any other cause, or for the same cause occurring at another time. Sec. 7. Hit is mutually agreed: I Mining Methods. That this lease does not author- . ize the mining or removal of the mineral deposits by stripping, rim cutting, or open pit methods without the prior written approval of the Authorized Officer and on such conditions as he may prescribe. Reduction or Smelting of Ores. That the reduc- tion or smelting of ores on the leased land is expressly pro- hibited in the absence of an agreement between the Lessee and the Authorized Officer authorizing such use of the surface of the land and providing for the necessary protection of life and property. Such agreement shall contain all of the terms and conditions under which the reduction or smelting of ores may be carried on and any violation of that agreement shall be con~ sidered a violation of the terms of this lease for the purpose of Section 10. Uses and Disposition of Surface. That the leased land shall be subject at all times to any other lawful uses or sale by the United States, its Lessees, Permittees, Licensees, and Assigns; provided that such uses or sale shall not prevent, obstruct, or unduly interfere with any privilege granted under this lease; Provided, that the Lessee shall recognize existing uses and commitments in the form of grazing, timber cutting, and special use permits, water developments, ditch, road, trail, pipeline, telephone and telegraph lines, fence, rights-of-way, and other similar improvements, and to conduct his operations so as to interfere as little as possible with the rights and privileges granted by these permits or with other existing uses. Granting Leases for Other Minerals. That the granting of this lease will not preclude the issuance of other leases of the same land for the purpose of mining and extract- ing oil, gas, oil shale, coal, phosphate, potassium, sodium, and sulphur. Sec. 8. Relinquishment of Lease. The Lessee may surrender this lease or any one or more legal subdivisions included in the leased premises. If the lands are not described by legal subdivision, a partial relinquishment must describe definitely the lands surrendered and give the exact area thereof. A relinquishment must be filed in tri licatg in the proper Land Office. Upon its acceptance, it wi?l Be effective as of the date it is filed, subject to the continued obligation of the Lessee and his surety to make payment of all accrued rentals and royalties, and to provide for the preservation of any mines or productive works or permanent improvements on the lands in accordance with the regulations and terms of the lease, and for the faithful compliance of all the terms of the lease. Sec. 9. Removal of Equipment, etc., on Termination of Lease. On termination of this lease, by surrender, forfeiture, or otherwise, the Lessee shall have the privilege at any time within a period of one year thereafter of removing from the premises all machinery, equipment, tools, and materials, other than underground timbering placed by the Lessee in or on the leased lands, which are not necessary for the preservation of the mine. ?Any materials, tools, applicances, machinery, struc? tures, and equipment, subject to removal as above provided, which are allowed to remain on the leased land shall become the property of the Lessor on expiration of the one-year period or such extension thereof as may be granted by the Lessor, but the Lessee shall remove any or all of such property when so directed by the Lessor. . . :-10- Sec. 10. Proceedings in Case of Default. If the Lessee does not comply with the applicable regulations made a part hereof or the terms of this lease and such default continues for a period of 30 days, or such longer period as the Lessor determines may be reasonably required to correct the default, after service of written notice thereof by the Lessor, the Lessor may insti~ tute appropriate proceedings in a court of competent jurisdiction for the forfeiture and cancellation of this lease or seek such other administrative, legal or equitable remedies as may be ap- propriate. Furthermore, if the Lessee fails to take prompt and necessary steps to prevent loss or damage to the mine, property, or premises, or danger to the employees, the Lessor may enter on the premises and take such measures as may be deemed necessary to prevent such loss or damage, or to correct the dangerous or unsafe condition of the mine or works thereof, which shall be at the expense of the Lessee, but the Lessee shall not be held re- sponsible for delays or casualties occasioned by causes beyond the Lessee's control. Sec. ll. Heirs and Successors-in-Interest. Each obliga~ tion hereunder Shall extend to and be binding upon, and every benefit hereof shall inure to, the heirs, executors, administra- '_tors, successors, or assigns of the respective parties hereto. Sec. 12. Unlawful Interest. It is also further agreed that no Member of, or Delegate to, Congress, or Resident Commissioner, after his election or appointment, or either before or after he has qualified and during his continuance in office, and that no officer, agent, or employee of the Department of the Interior, except as provided in 43 CFR shall be admitted to any are or part in this lease or derive any benefit that may arise therefrom; and the provisions of Section 37?l of the Revised Statutes of the United States, as amended (Al U.S.C., Sec. 22), and sections #31, #32, and 433, Title 18 U.S.C., relating to con? tracts, enter into and form a part of this lease so far as the same may be applicable. Sec. 13. Special Stipulations. In conformity with the principles of the Ship; stead-Newton-Nolan Act of July 10, 1930 (16 U.S.C. 577), no oc- cupancy or use of the surface within #00 feet of the shoreline of any lake or stream is authorized without the written approval of the Authorized Officer. Any and all operations authorized by this lease shall be done in accordance with a plan which must be submitted in triplicate and approved in writing by the Authorized Officarbe? fore such operations are begun. The operating plan will contain all such provisions as the Authorized Officer may reasonably determine are needed to maintain proper administration of the lands and surface resources. Where appropriate, depending upon the location and type of operation, the Authorized Officer may require the plan to contain provisions concerning the following matters: 1. The location and extent of areas to be occupied during opera- - tions. 2. The methods to be used in the operations. a. The size and type of equipment to be used in the operations. . The capacity, character, standards of construction and size of all structures and facilities to be built.. 5 The location and size of areas upon which vegetation will be destrOyed or soil will be laid bare. 3? i r- -11- 6. The steps which will be taken to prevent and control soil erosion. . The steps which will be taken to prevent water pollution. The character, amount, and time of use of explosives or fire, including safety precautions which will be taken during their use. 9. The program proposed for rehabilitation and revegetation of disturbed lands. 03"] If later operations require departure from or additions to the approved plan, revisions or amendments will be submitted in tripli~ cate, with statements of the reasons for changes or additions, to the Authorized Officer for approval. Any and all operations con? ducted in advance of approval of an original, revised, or amended operating plan, or which are not in accord with an approved plan, constitute violations of the terms of this lease. If minerals from the leased premises be shipped outside the United States for treatment, Lessee shall, upon the call of the Lessor, and provided that there be no imposition of tariff, cause to be returned for sale or for use in the operations ~of the Lessee or of its affiliates in the United States quantities of copper equal to the quantities recovered from the minerals so shipped during the time of the call. The copper so returned shall be priced on no different basis than would then be appli- cable under circumstances prevailing had it been produced entirely within the United States and sold by a domestic producer, so that the prices will be competitive with those of domestic producers. Within 12 months after approval by the Authorized Officer Lessee will carry out a program in respect of this lease and the companion lease issued this day of drilling to ascertain the facts which will be essential to instituting production, and also will ship to the pilot plants of its parent company in Ontario, Canada, not less than 1,000 tons of ore to seek appropri- ate extractive metallurgical procedures therefor. The anticipated cost of the drilling program, to cover from 10,000 to 20,000 feet of drilling at an average cost of $10 per foot is $200,000. J'he estimated cost of preparing, transporting and treating the ore sample is $125,000 to $200,000; in addition revisions in and additions to the pilot plants in connection therewith are estimated to cost about $250,000. Sec. Royalty Adjustment. If the Lessee shall have a shaft for underground exploration or development or shall have otherwise commenced commercial development of the premises leased under this lease (or the companion lease issued to Lessee this - day) within five years after the Regional Mining Supervisor shall -have determined that the Federal and State governments have granted . all necessary rights and authorizations for the construction, operation and maintenance of the leased premises, the rate of royalty payable under Section 2(b) with respect to the second ten ?years of the primary lease term shall be 4% in lieu of u-1/2% as provided therein and the rates of royalty set forth in Section 5 shall not_exceed h-l/2% during the first ten?year renewal . \l I: i" -12- period, (11) 5-1/2% during the second ten-year renewal period, and 6% during the third ten-year renewal period. SIGNATURE OF mssm(s) THE UNITED STATES OF AMERICA INTERNATIONAL NICKEL E: . COMPANY, INC. By Maw?u 4 (Signing Officer) Land Office Manager Ctr-hm new?. / Types of Contracts > Lease mile of the shorelines of the Santa Barbara and Agreements > General Overview Anacapa Islands, California had dominion over the Energy & Utilities Law > ... > Mining submerged lands and waters because of the general Claims > Surface Mining Control & Reclamation grant of dominion over submerged lands made by Act > General Overview the Submerged Lands Act of 1953 (43 USCS 1301 et seq.), and (2) the exemption to the grant provided Governments > Federal Government > Property by 5(a) of the Act (43 USCS 1313(a)) for "any HN3[ ] In enacting it, Congress recognized, rights the United States has in lands presently and confirmed, established, and vested in and assigned actually occupied by the United States under claim to, 43 U. S.C.S. § 1314 (a), the States (1) title to of right" did not apply, since the Proclamation did and ownership of the lands beneath navigable not and could not enhance the strength of the waters within the boundaries of the respective United States' basic claim to a property interest in States, and the natural resources within such lands the submerged lands and waters in controversy. and waters, and (2) the right and power to manage, administer, lease, develop, and use the said lands White, J., joined by Burger, Ch. J., and Blackmun, J., dissented, stating that the exemption of 5(a) of and natural resources. 43 U.S.C.S. § 1311(a). the Act applied since a claim of right arose when the submerged lands and waters were made part of the Monument by the Proclamation. Governments > Federal Government > Property HN4[ ] See 43 U.S.C.S. § 1301(a)(2). Marshall, J., did not participate. Headnotes Governments > Federal Government > Property HN5[ ] See 43 U.S.C.S. § 1313(a). WATERS §14 > Submerged Lands Act -- lands transferred to states -- exceptions -- > Headnote: LEdHN[1A][ ] [1A]LEdHN[1B][ ] [1B] Lawyers' Edition Display Summary As a part of ongoing litigation in the United States Supreme Court between the United States and California concerning dominion over submerged lands within the three-mile marginal sea off the California coast, the instant proceedings raised the Although Presidential Proclamation No. 2825 (63 Stat 1258) enlarged the Channel Islands National Monument to encompass areas within one nautical mile of the shorelines of the Santa Barbara and Anacapa Islands, dominion over the submerged lands and waters within the monument lies with California and not the United States by reason of the general grant of dominion over submerged Page 3 of 11 436 U.S. 32, *32; 98 S. Ct. 1662, **1662; 56 L. Ed. 2d 94, ***94; 1978 U.S. LEXIS 7, ****1 lands made by the Submerged Lands Act of 1953 (43 USCS 1301 et seq.); these lands do not fall within the exception to the grant provided by 5(a) of the Act (43 USCS 1313(a)) for "any rights the United States has in lands presently and actually occupied by the United States under claim of right," since the Proclamation does not and cannot enhance the strength of the United States' basic claim to a property interest in the submerged lands and waters in controversy. (White, J., Burger, Ch. J., and Blackmun, J., dissented from this holding.) WATERS §14 > Submerged Lands Act -- purpose -> Headnote: LEdHN[2][ ] [2] The purpose of the Submerged Lands Act of 1953 (43 USCS 1301 et seq.) is to undo the effect of a decision of the United States Supreme Court holding that the United States was possessed of paramount rights in, and full dominion and power over, the lands, minerals, and other things underlying the Pacific Ocean lying seaward of the ordinary low-water mark on the coast of California, and outside of the inland waters, extending seawards three nautical miles. LANDS §8 > Antiquities Act -- reservation for national monument -- > Headnote: over the submerged lands and waters within the one-mile belts surrounding Santa Barbara and Anacapa Islands within the Channel Islands National Monument. When, by Presidential Proclamation in 1949, the Monument was enlarged to encompass areas within one nautical mile of the shorelines of these islands, the submerged lands and waters within the one-mile belts were under federal dominion as a result of this Court's decision two years earlier in United States v. California, 332 U.S. 19. But, assuming that the Proclamation intended to reserve such submerged lands and waters, dominion over them was subsequently transferred to California by the Submerged Lands Act, whose very purpose was to undo that decision. The § 5 (a) "claim of right" exemption from the Act's broad grant, relied on by the Government, clearly does not apply to claims based on the 1947 California decision. The reservation for a national monument made by the 1949 Proclamation could not enhance the Government's claim to the submerged lands and waters in dispute since the statutory authority [****2] under which such monuments are created merely authorizes land to be shifted from one federal use to another. Pp. 3641. Counsel: Allan A. Ryan, Jr. argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Moorman, Bruce C. Rashkow, and Michael W. Reed. LEdHN[3][ ] [3] A reservation of federally controlled public lands for national monument purposes under the Antiquities Act of 1906 (16 USCS 431) means no more than that the land is shifted from one federal use, and perhaps from one federal agency, to another; a reservation for a national monument cannot operate to escalate the underlying claim of the United States to the land in question. Syllabus California, and not the United States, has dominion Russell Iungerich, Deputy Attorney General of California, argued the cause for defendant. With him on the briefs were Evelle J. Younger, Attorney General, and N. Gregory Taylor, Assistant Attorney General. Judges: STEWART, J., delivered the opinion of the Court, in which BRENNAN, POWELL, REHNQUIST, and STEVENS, JJ., joined. WHITE, J., filed a dissenting opinion, in which BURGER, C. J., and BLACKMUN, J., joined, post, p. 42. MARSHALL, J., took no part in the consideration or decision of the case. Page 4 of 11 436 U.S. 32, *32; 98 S. Ct. 1662, **1662; 56 L. Ed. 2d 94, ***94; 1978 U.S. LEXIS 7, ****2 Opinion by: STEWART This Proclamation "reserved from [***97] all forms of appropriation under the public-land laws" Opinion most of Anacapa and Santa Barbara Islands, [*34] which were then federal lands, 3 and set them aside [*33] [***96] [**1662] MR. JUSTICE as the Channel Islands National Monument. 4 As STEWART delivered the opinion of the Court. the Proclamation recognized, these islands "contain fossils of Pleistocene elephants and ancient trees, LEdHN[1A][ ] [1A]The question in this case, and furnish noteworthy examples of ancient arising under our original jurisdiction, is whether volcanism, deposition, and active sea erosion . . . ." California or the United States has dominion over Ibid. the submerged lands and waters within the Channel Islands National Monument, which is situated The two large islands and the many smaller islets within the three-mile marginal sea off the southern and rocks surrounding them also shelter a variety of California mainland. [****3] 1 [**1663] For the marine life, [****6] some rare or endangered. reasons that follow, we hold that dominion lies with Prompted by a desire to protect these species 5 [****7] and other "objects of geological and California and not the United States. scientific interest," President Truman issued a The Antiquities Act of 1906 authorizes [****4] the Proclamation in 1949, enlarging the Monument to President to reserve lands "owned or controlled by encompass "the areas within one nautical mile of the Government of the United States" for use as the shoreline of Anacapa and Santa Barbara Islands national monuments. 2 [****5] Pursuant to this Act, . . . ." Presidential Proclamation No. 2825, 63 Stat. President Franklin Roosevelt in 1938 issued 1258. It is undisputed that the islets and protruding Presidential Proclamation No. 2281, 52 Stat. 1541. rocks [*35] within these one-mile belts have long belonged to the United States and, as a result of 1 This case is part of ongoing litigation stemming from an action brought in this Court more than three decades ago. United States v. California, 332 U.S. 19. The first decree was entered in 1947, 332 U.S. 804; a supplemental decree was entered in 1966, 382 U.S. 448; and a second supplemental decree in 1977, 432 U.S. 40. In each instance, jurisdiction was reserved to enter further orders necessary to effectuate the decrees. California initiated the present suit under the 1966 reservation of jurisdiction: "As to any portion of such boundary line or of any areas claimed to have been reserved under § 5 of the Submerged Lands Act as to which the parties may be unable to agree, either party may apply to the Court at any time for entry of a further supplemental decree." 382 U.S., at 453. 2 Section 2 of the Act, 34 Stat. 225, 16 U. S. C. § 431 (1976 ed.), provides in pertinent part as follows: HN1[ ] "The President of the United States is authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected." 3 Federal title to the islands can be traced to the 1848 Treaty of Guadalupe Hidalgo, 9 Stat. 922, by which Mexico ceded to the United States the islands lying off the coast of California, along with the adjacent mainland. See Bowman, The Question of Sovereignty over California's Off-Shore Islands, 31 Pac. Hist. Rev. 291 (1962). While the Treaty obligated the United States to respect private property rights derived from Mexican land grants, all nongranted lands previously held by the Government of Mexico passed into the federal public domain. When California was admitted to the Union in 1850, the United States retained ownership of these public lands. See An Act for the Admission of the State of California into the Union, 9 Stat. 452. 4 The 1938 Proclamation did not reserve as a national monument the entire land area of these two islands. Portions were exempted for continued lighthouse purposes, for which the entire islands had previously been reserved. 52 Stat. 1541. 5 As early as 1940, Government officials recognized that enlargement of the Monument would be desirable to protect the birds, sea otters, elephant seals, and fur seals that inhabit the rocks and islets encircling the two large islands, and early drafts of the 1949 Proclamation acknowledged an intent to protect marine life. But after a representative of the Department of Justice expressed the view that the Antiquities Act did not permit establishment or enlargement of a national monument to protect plant and animal life, all references to marine life were dropped from the Proclamation. Page 5 of 11 436 U.S. 32, *35; 98 S. Ct. 1662, **1663; 56 L. Ed. 2d 94, ***97; 1978 U.S. LEXIS 7, ****7 President Truman's Proclamation, are now part of the Monument. 6 It is equally clear that the [**1664] tidelands of Anacapa and Santa Barbara Islands, as well as of the islets and rocks, belong to California. 7 [****8] What is disputed in this [***98] litigation is dominion over the submerged lands and waters within the one-mile belts surrounding Anacapa and Santa Barbara Islands. 8 When President Truman issued Proclamation No. 2825 in 1949, the submerged lands and waters within these belts were under federal dominion and control, as a result of this Court's decision two years earlier in United States v. California, 332 [*36] U.S. 19. That case had held that HN2[ ] the United States was "possessed of paramount rights in, and full dominion and power over, the lands, minerals and other things underlying the Pacific Ocean lying seaward of the ordinary low-water mark on the coast of California, and outside of the 6 As noted previously, the Antiquities Act authorizes the President to set aside only "lands owned or controlled by the Government of the United States . . . ." 34 Stat. 225, 16 U. S. C. § 431 (1976 ed.). Like Anacapa and Santa Barbara Islands, the islets and rocks protruding above the water within the boundaries of the extended Monument were in 1949 public lands owned by the Federal Government. See n. 3, supra. inland waters, extending seaward three nautical miles [****9] . . . ." United States v. California, 332 U.S. 804, 805. There can be no serious question, therefore, that the President in 1949 had power under the Antiquities Act to reserve the submerged lands and waters within the one-mile belts as a national monument, since they were then "controlled by the Government of the United States." 9 Thus, whether Proclamation No. 2825 did in fact reserve these submerged lands and waters, or only the islets and protruding rocks, could be, at the time of the Proclamation, a question only of Presidential intent, not of Presidential power. In addressing the controversy now before us, the parties have devoted large parts of their briefs to canvassing this question of [****10] intent: What did the Proclamation mean by the use of the word "areas"? 10 We find it unnecessary, however, [*37] to decide this question. For even assuming that President Truman intended to reserve the submerged lands and waters within the one-mile belts [**1665] for Monument purposes, we have concluded that the Submerged Lands Act, 67 Stat. 9 Although 7 The term "tidelands" is "defined as the shore of the mainland and of islands, between the line of mean high water and the line of mean lower low water . . . ." United States v. California, 382 U.S., at 452. 0">Those tidelands in California that had not been subject to Mexican land grants entered the federal public domain in 1848, where they remained in trust until California gained statehood in 1850. At that time, they passed to the State under the "equal footing" doctrine. See Borax, Ltd. v. Los Angeles, 296 U.S. 10; United States v. California, 382 U.S. 448. Because the tidelands within the Monument were not "owned or controlled" by the United States in 1938 or in 1949, Presidents Roosevelt and Truman could not have reserved them by simply issuing proclamations pursuant to the Antiquities Act. 8 The present controversy apparently arose when California was frustrated in carrying out its program of leases for the harvesting of kelp in these waters. Giant kelp known as Macrocystis grows in the water along portions of the California coast and is harvested to obtain various substances, including algin, a chemical with many commercial uses. See North, Giant Kelp, Sequoias of the Sea, National Geographic (Aug. 1972), and Zahl, Algae: the Life-givers, National Geographic (Mar. 1974). the Antiquities Act refers to "lands," this Court has recognized that it also authorizes the reservation of waters located on or over federal lands. See Cappaert v. United States, 426 U.S. 128, 138-142; United States v. Oregon, 295 U.S. 1, 14. 10 In preparation for the Proclamation, memoranda were circulated within and among Government agencies, many of which proposed adding to the Monument "all islets, rocks, and waters" within one nautical mile of Anacapa and Santa Barbara Islands. The final version of the 1949 Proclamation, however, was not so clear. It began: "WHEREAS it appears that certain islets and rocks situated near Anacapa and Santa Barbara Islands . . . are required for the proper care, management, and protection of the objects of geological and scientific interest located on lands within [the Channel Islands National Monument] . . ." (emphasis added). The Proclamation then went on to reserve "the areas within one nautical mile" of each of the two large islands, "as indicated on the diagram hereto attached . . . ." The diagram showed Anacapa and Santa Barbara Islands, each encircled by a broken line at a distance of one mile from the island's shoreline. At the bottom of the two maps appeared acreage figures that, according to stipulations filed by the parties, described approximately the entire surface area circumscribed by the broken lines. Page 6 of 11 436 U.S. 32, *37; 98 S. Ct. 1662, **1665; 56 L. Ed. 2d 94, ***98; 1978 U.S. LEXIS 7, ****10 29, 43 U. S. C. § 1301 et seq., subsequently 5 (a), upon which the United States relies, transferred dominion over them to California. exempted from the grant "any rights the United States has in lands presently and actually occupied by the United States under claim of right." 13 The legislative history shows that this "claim of right" [****11] LEdHN[2][ ] [2]The very purpose of the Submerged [***99] Lands Act was to undo the clause was added to preserve unperfected claims of effect of this Court's 1947 decision in United States federal title from extinction under § 3's general or quitclaim or assignment." v. California, 332 U.S. 19.HN3[ ] In enacting it, "conveyance 14 [****14] In the words [**1666] of the [***100] Congress "recognized, confirmed, established, and vested in and assigned to," § 6 (a), 67 Stat. 32, 43 Acting Chairman of the Senate Committee on U. S. C. § 1314 (a), the States "(1) title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters, and (2) the right and power to manage, administer, lease, develop, and use the said lands and natural resources . . . ." § 3 (a), 67 Stat. 30, 43 U. S. C. § 1311 (a). The submerged lands and waters within one mile of Anacapa and Santa Barbara Islands plainly fall within this general grant. 11 resources therein, or improvements thereon, title to which has been lawfully and expressly acquired by the United States from any State or from any person in whom title had vested under the law of the State or of the United States, and all lands which the United States lawfully holds under the law of the State; all lands expressly retained by or ceded to the United States when the State entered the Union (otherwise than by a general retention or cession of lands underlying the marginal sea); all lands acquired by the United States by eminent domain proceedings, purchase, cession, gift, or otherwise in a proprietary capacity; all lands filled in, built up, or otherwise reclaimed by the United States for its own use; and any rights the United States has in lands presently and actually occupied by the United States under claim of right." [****12] 13 The LEdHN[1B][ ] [1B]The United States contends, however, that the Submerged Lands Act did not operate to relinquish these submerged lands and waters to California because of an exception to the broad statutory grant that Congress provided in § 5 (a) of the Act. 12 [****13] The final clause of § [*38] 11 Section 2 (a)(2) of the Act, 67 Stat. 29, 43 U. S. C. § 1301 (a)(2), HN4[ ] defines "lands beneath navigable waters" as "all lands permanently or periodically covered by tidal waters up to but not above the line of mean high tide and seaward to a line three geographical miles distant from the coast line of each such State and to the boundary line of each such State where in any case such boundary as it existed at the time such State became a member of the Union, or as heretofore approved by Congress, extends seaward (or into the Gulf of Mexico) beyond three geographical miles . . . ." The term "natural resources" is defined in § 2 (e), 43 U. S. C. § 1301 (e), to "[include], without limiting the generality thereof, oil, gas, and all other minerals, and fish, shrimp, oysters, clams, crabs, lobsters, sponges, kelp, and other marine animal and plant life" but not "water power, or the use of water for the production of power . . . ." 12 Section 5 (a) of the Act, 67 Stat. 32, 43 U. S. C. § 1313 (a), provides: HN5[ ] "There is excepted from the operation of section 3 of this Act -"(a) all tracts or parcels of land together with all accretions thereto, parties have stipulated that "the United States 'presently and actually occupied' the areas within one nautical mile of the shoreline of Anacapa and Santa Barbara Islands for purposes of Section 5 of the Submerged Lands Act of 1953, 43 U. S. C. § 1313." Thus, the question is simply what "rights" the United States had in these submerged lands and waters in 1953. 14 Remarks of Senator Cordon, Hearings on S. J. Res. 13 et al. before the Senate Committee on Interior and Insular Affairs, 83d Cong., 1st Sess., 1322 (1953). During Committee hearings on the bill, the following exchange occurred between Senator Kuchel and Senator Cordon, who was Acting Chairman of the Committee: "Senator KUCHEL. What does 'claim of right' mean? "Senator CORDON. Well, it means that the United States is in actual occupancy and claims it has a right to the occupancy. "Senator KUCHEL. And it permits the United States to keep the property in the absence of a title? "Senator CORDON. No; it does not. It leaves the question of whether it is a good claim or not a good claim exactly where it was before. This is simply an exception by the United States of a voluntary release of its claim, whatever it is. It does not, in anywise, validate the claim or prejudice it. "Senator KUCHEL. Why should we recognize it, Senator, any more than any other so-called color or title of claim . . . ? "Senator CORDON. For the reason that in my opinion, Senator, this land now is not land to which the State has title and we are conveying title. We may except what we will." Id., at 1321. Page 7 of 11 436 U.S. 32, *38; 98 S. Ct. 1662, **1666; 56 L. Ed. 2d 94, ***100; 1978 U.S. LEXIS 7, ****14 Interior and [*39] Insular Affairs, the clause "neither validates the claim nor prejudices it," but merely "leaves it where we found it" for eventual adjudication. 15 in controversy. Reservation of federally controlled public lands for national monument purposes has the effect of placing the area reserved under the "supervision, management, and control" of the Director of the National Park Service. 39 Stat. 535, The entire purpose of the Submerged Lands Act 16 U. S. C. §§ 1-3 (1976 ed.). Without such would have been nullified, however, if the "claim reservation, the federal lands would remain subject of right" exemption saved claims of the United to "private appropriation and disposal under the States based solely upon this Court's 1947 decision public land laws," [****16] 78 Stat. 985, 43 U. S. in United States v. California. Not surprisingly, C. § 1400 (c), or to continued federal management therefore, the legislative history unmistakably for other designated purposes, see, e. g., ibid.; 78 shows that the "claim of right" must be "other than Stat. 986, 43 U. S. C. § 1411. The Antiquities Act the claim arising by virtue of the decision in [that of 1906 permits the President, "in his discretion," to case] . . . ." 16 Thus, this exception applies to the create a national monument and reserve land for its submerged lands and waters in controversy here use simply by issuing a proclamation [***101] only if the United States' claim to them ultimately with respect to land "owned or controlled by the rests on some basis other than the "paramount Government of the United States." 34 Stat. 225, 16 rights" doctrine of this Court's 1947 California U. S. C. § 431 (1976 ed.). A reservation under the decision. Antiquities Act thus means no more than that the land is shifted from one federal use, and perhaps The United States has pointed to no other basis for from one federal managing agency, to another. 17 believing that the submerged lands and waters in [*41] A reservation for a national monument question were owned [*40] or controlled by the purpose cannot operate to escalate the underlying United States in 1949. The crucial question, then, claim of the United States to the land in question. is whether the 1949 [****15] reservation of the submerged lands and waters for Monument [****17] Congress was well aware of its power to purposes (assuming that was the intent of the transfer to the States as much or as little of the Proclamation) somehow changed the nature of the submerged lands in which the Government Government's claim. If it did not -- if the [**1667] held "paramount rights" as it deemed ownership or control of these areas by the United wise. With that knowledge, Congress expressly States in 1953 existed solely by virtue of this "[emphasized] that the exceptions spelled out in [§ Court's 1947 decision in United States v. California 5] do not in anywise include any claim resting -- then § 3 (a) of the Submerged Lands Act solely upon the doctrine of 'paramount rights' transferred "title to and ownership of" the enunciated by the Supreme Court with respect to submerged lands and waters to California, along the Federal Government's status in the areas beyond with "the right and power to manage, administer, inland waters and mean low tide." S. Rep. No. 133, lease, develop, and use" them. 67 Stat. 30, 43 U. S. 83d Cong., 1st Sess., pt. 1, p. 20 (1953). A plainer C. § 1311 (a). LEdHN[3][ ] [3]We have concluded that the 1949 Proclamation did not and could not enhance the strength of the Government's basic claim to a property interest in the submerged lands and waters 15 Id., at 1321, 1322. 16 Id., at 1322. 17 This view is reflected in a memorandum written by the Director of the Bureau of Land Management to the Director of the National Park Service in 1947, in response to the latter's proposal that the Channel Islands National Monument be enlarged: "If you wish to have these islands added to the Channel Islands National Monument, the bureau will be glad to prepare an appropriate proclamation. In the event you desire at this time to have the islands withdrawn for national monument classification, a public land order to accomplish this purpose will be prepared." Page 8 of 11 436 U.S. 32, *41; 98 S. Ct. 1662, **1667; 56 L. Ed. 2d 94, ***101; 1978 U.S. LEXIS 7, ****17 statement of congressional intent would be hard to find. Because the United States' claim to the submerged lands and waters within one mile of Anacapa and Santa Barbara Islands derives solely from the doctrine of "paramount rights" announced in this Court's 1947 California decision, we hold that, by operation of the Submerged Lands Act, the Government's proprietary and administrative interests in these areas passed to the State of California in 1953. 18 [****18] [*42] The parties are requested to submit an appropriate decree within 90 days. So ordered. MR. JUSTICE MARSHALL took no part in the consideration or decision of the case. Dissent by: WHITE Dissent MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, dissenting. Although the majority lucidly states the issue in this case, it plainly errs in deciding it. Section 5 (a) of the Submerged Lands Act excepted from its general cession of land to the States those "rights the United States has in lands presently and actually occupied by the United States under claim of right." 1 Actual title to the lands was not required; lands to [***102] which the United States held title were already excepted by the previous language in § 5 (a). The reference to claims of right was critical for the United States' stake in submerged lands, since United States v. California, 332 U.S. 19 (1947), and 332 U.S. 804 (1947), did not actually vest the United States with title to the submerged lands. While specifically denying California title, the Court fell short of declaring title in the United States, recognizing instead the federal "paramount rights" in [****19] the lands. Id., at 805. Section 5 (a) was added at the suggestion of the Attorney General. His purpose was to guarantee "that all installations and acquisitions of the Federal Government within such area [as was to be ceded] belong to it." 2 Senator Holland's original Joint Resolution No. 13 had provided: "There is excepted from the operation of section 3 of this Act -"(a) all specifically described tracts or parcels of land [*43] and resources therein or improvements thereon title to which has been lawfully and expressly acquired by the United States from any State or from any person in whom title had vested under the decisions of the courts of such State, or their respective grantees, or successors in interest, by cession, grant, quitclaim, or condemnation or from any other owner or owners thereof by conveyance or by condemnation, provided such owner or owners had lawfully acquired the title to such lands and resources in accordance with the statutes or [****20] decisions of the courts of the State in which the lands are located . . . ." Hearings 14. [**1668] The Attorney General's substitute read as 18 With the exception, of course, of any interests retained by the United States via provisions other than the last clause of § 5 (a) of the Submerged Lands Act. For example, § 6 (a) provides for the retention by the United States of its navigational servitude and its "rights in and powers of regulation and control of said lands and navigable waters for the constitutional purposes of commerce, navigation, national defense, and international affairs . . . ." 67 Stat. 32, 43 U. S. C. § 1314 (a). 1 43 U. S. C. § 1313 (a). follows: "There is excepted from the operation of section 3 of this Joint Resolution: 2 Letter of Attorney General Brownell, Hearings on S. J. Res. 13 et al. before the Senate Committee on Interior and Insular Affairs, 83d Cong., 1st Sess., 935 (1953) (hereafter Hearings). Page 9 of 11 436 U.S. 32, *43; 98 S. Ct. 1662, **1668; 56 L. Ed. 2d 94, ***102; 1978 U.S. LEXIS 7, ****20 "(a) all tracts or parcels of land together with all accretions thereto, resources therein, or improvements thereon, title to which has been lawfully and expressly acquired by the United States from any State or from any person in whom title had vested under the law of the State or of the United States, and all lands which the United States lawfully holds under the law of the State; all lands expressly retained by the United States when the State entered the Union; all lands acquired by the United States by eminent domain proceedings; all lands filled in, built up, or otherwise reclaimed by the United States [****21] for its own use; and all lands presently occupied by the United States under claim of right . . . ." Id., at 935. The clearest, most observable difference between the original draft and the language proposed by the Attorney General is this final statement about "lands presently occupied by the United States under claim of right." 3 The conclusion is [***103] that [*44] some lands to which the United States did not possess outright title might be part of federal installations, and, if so, they were to be preserved in federal control. This inference is strongly supported in further legislative history. The Acting Chairman of the Senate Committee on Interior and Insular Affairs explained to the Joint Resolution's author why the Committee had added [****22] the phrase concerning claim of right: "I should like to add that the last language quoted, namely, 'any rights the United States has in lands presently and actually occupied by the United States under claim of right,' came into the bill at the request of the Department of Justice. It was presented to the committee and explained by the Department of Justice as being for the purpose of reserving to the Federal Government the area of any installation, or part of an installation -- and I 3 There is no quarrel that the use of the word "lands" in this context extends to submerged lands. The Act concerns submerged lands in its section ceding the area to the States, 43 U. S. C. § 1311, and similarly in this section concerning exceptions to that cession. use the term 'installation' to distinguish a specific area, used for a specific purpose, from any vast area that might be claimed under the paramount right doctrine -- actually occupied by the Government under a claim of right." 99 Cong. Rec. 2619 (1953) (Sen. Cordon). The resolution's author, Senator Holland, asked the Acting Chairman: "Am I correct in understanding that under that particular provision the mere fact that the Supreme Court might have held that the United States has paramount rights in submerged lands beyond mean low water, and within State boundaries, would not in any way give the United States the right to claim exceptions of such lands from the joint resolution, in view of [****23] the fact that such [*45] lands would not be 'presently and actually occupied by the United States'? Am I correct in that understanding? "Mr. CORDON: The Senator is correct in his understanding." Ibid. (emphasis added). Hence, the test is whether the lands held under some claim of right are "actually occupied" by the Federal Government. If so, they are not relinquished. The same issue arose in the hearings, with identical resolution. The Acting Chairman explained: "[Any] land occupied by the United States under claim by the United States that it has a right there, is excluded from this conveyance or quitclaim or assignment. . . . It is general language that . . . protects every installation of every kind." Hearings 1322. Senator Long summarized, Chairman's agreement: to the Acting " [**1669] That, in effect, says that this act does not at all affect any land which the United States is actually occupying. And that means that a representative of the United States Government in one capacity or another is occupying that land." Page 10 of 11 436 U.S. 32, *45; 98 S. Ct. 1662, **1669; 56 L. Ed. 2d 94, ***103; 1978 U.S. LEXIS 7, ****23 Ibid. have stipulated that "the United States 'presently and actually occupied' the areas within one nautical Senator Long was concerned that the definition of mile of the shoreline of Anacapa and Santa [*47] occupied lands might be stretched to include Barbara Islands for purposes of Section 5 of the submerged lands over which the Federal [****24] Submerged Lands Act of 1953, 43 U. S. C. § 1313." Government had been given dominion in United 8 The federal occupation is to fulfill the specific States v. California, 332 U.S. 19 (1947), by reason purpose of providing for "the proper care, of the fact that the United States Navy from time to management, and protection of [****26] the objects [***104] time might sail across them. It was in of geological and scientific interest located on lands response to that suggestion that the Acting within the said monument." Presidential Chairman made the statement quoted by the Proclamation No. 2825, 63 Stat. 1258. The federal majority that "'the claim of right' [is] 'other than the occupation is under claim of right, since only claim arising by virtue of the decision in [that case] federally "owned or controlled" property can be . . . .'" 4 Such a construction was, of course, barred, made into a national monument. 16 U. S. C. § 431 for it would eviscerate the purpose of returning any (1976 ed.). submerged [*46] lands. Ante, at 39. But this ignores the much narrower meaning of "submerged [****27] The majority opinion stresses that the lands occupied by the United States under claim of United States' occupation of the submerged lands right" which was intended: the submerged lands within the Channel [***105] Islands National that were actually occupied as part of a federal Monument 9 was originally premised on federal "installation," meaning "a specific area, used for a control of those areas as granted in United States v. specific purpose." The distinction is between a California, supra. This is true. The paramount general claim under United States v. California to rights of the United [**1670] States to these paramount rights, and a very specific claim submerged lands, and the absence of California title associated with a federal installation actually to them, were recognized in that 1947 decision. In occupied. Recalling the Acting Chairman's words: 1949, President Truman allocated a small portion of "Occupancy to me is some type of actual either all the submerged lands within the Federal continuous possession or possession in such way as Government's paramount rights to become part of to indicate [****25] that the individual claims the Channel Islands National Monument. And in some special right there different from a vast 1953, all the submerged lands not actually occupied unoccupied area." 5 "[The language is] for the purpose of reserving to the Federal Government the 7 Although the point is contested, there is little left to decide upon area of any installation, or part of an installation -- reading in President Truman's Presidential Proclamation No. 2825 of and I use the term 'installation' to distinguish a February 9, 1949, 63 Stat. 1258, that "the areas within one nautical specific area, used for a specific purpose, from any mile of the shoreline of Anacapa and Santa Barbara Islands" were added to the National Monument. The parties have stipulated that vast area that might be claimed under the "the acreage figures shown on the diagram accompanying paramount right doctrine . . . ." 6 Presidential Proclamation No. 2825 are figures which approximate The Channel Islands National Monument includes the submerged lands within a one-mile radius of Anacapa and Santa Barbara Islands. 7 The parties the total surface area of Anacapa and Santa Barbara Islands and one nautical mile of waters surrounding those islands." App. 2. This leaves no force at all to defendant's reliance on the Proclamation's preamble which refers to "certain islets and rocks" but not specifically to submerged lands or water. 8 Id., 4 Ante, at 39, quoting Hearings 1322. 5 Ibid. 6 99 Cong. Rec. 2619 (1953). at 1. The stipulation was made contingent upon a finding that the submerged lands and waters within the one-mile radius were found to be part of the National Monument. 9 The majority does not reach whether the submerged lands are actually within the Monument. Page 11 of 11 436 U.S. 32, *47; 98 S. Ct. 1662, **1670; 56 L. Ed. 2d 94, ***105; 1978 U.S. LEXIS 7, ****27 by the Federal Government were ceded to the States. But the Channel Islands National Monument remained. Submerged lands for which the federal claim rested "solely upon the doctrine of 'paramount rights'" 10 were given up by the Federal Government. [****28] The majority's quotation of that statement comes from that part of the Senate Report explaining why the Attorney General's language was accepted, the language that included for the first time "rights . . . in [*48] lands presently and actually occupied by the United States under claim of right . . . ." It says "any claim resting solely upon the doctrine of 'paramount rights'" (emphasis added) is lost to the Federal Government, but the majority holds that any claim originating in the doctrine of paramount rights is lost. The majority does not recognize that some rights can originate in the paramount-rights doctrine, yet rest on actual occupation under claim of right as part of a federal installation, annexed before the doctrine of paramount rights was waived in 1953. [****30] I respectfully dissent. References 78 Am Jur 2d, Waters 385. 43 USCS 1301-1315, 1313(a) US L Ed Digest, Waters 14 ALR Digests, Waters 44 L Ed Index to Annos, Public Lands; Waters ALR Quick Index, Public Lands; Waters and Watercourses Federal Quick Index, Public Lands; Submerged Lands; Submerged Lands Act End of Document That, I respectfully submit, is an erroneous interpretation of even that one bit of legislative history. 11 It is also contrary to the dominant theme in the legislative history [****29] that general, amorphous paramount rights claims were lost, but specific claims coupled with actual occupation of an installation were not. And most critically, the majority view is without support in the statute's plain language that "all lands presently occupied by the United States under claim of right" were preserved. It is stipulated that the lands were occupied, and a claim of right certainly arises when a President treats property in a manner to which only United States property is subject. 12 10 S. Rep. No. 133, 83d Cong., 1st Sess., pt. 1, p. 20 (1953). 11 The purpose of the Attorney General's proposed amendment was to preserve federal control over "all installations and acquisitions of the Federal Government within such area." Hearings 935. The submerged lands within a one-nautical-mile radius became an "acquisition" of the Channel Islands National Monument "installation" in 1949. 12 On the face of the statute, it might be asked how any claim of right could arise more clearly than for a President to incorporate the property within a national monument. If President Truman did not act under claim of right, it is hard to surmise how he did act. Positive As of: September 26, 2016 1:06 PM EDT Mt. States Legal Found. v. Bush United States Court of Appeals for the District of Columbia Circuit September 3, 2002, Argued ; October 18, 2002, Decided No. 01-5421 Reporter 306 F.3d 1132; 2002 U.S. App. LEXIS 21903; 353 U.S. App. D.C. 306; 33 ELR 20077 MOUNTAIN STATES LEGAL FOUNDATION AND THE BLUE RIBBON COALITION, INC., APPELLANTS v. GEORGE W. BUSH, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES OF AMERICA, ET AL., APPELLEES Case Summary Rehearing, en banc, denied by Mt. States Legal Found. v. Bush, 2003 U.S. App. LEXIS 1728 (D.C. Cir., Jan. 30, 2003) US Supreme Court certiorari denied by MOUNTAIN STATES LEGAL, ET AL. v. BUSH, PRESIDENT OF U.S., ET AL., 2003 U.S. LEXIS 5521 (U.S., Oct. 6, 2003) President Clinton exercised his authority under the Antiquities Act to issue a series of Presidential Proclamations designating a handful of national monuments. The foundation alleged that the Proclamations exceeded the President's authority under the Property Clause and were thus unconstitutional and ultra vires. The foundation argued that, in light of the presumption of judicial reviewability of executive action, substantive review was required to ensure that substantial evidence existed to support issuance of the Proclamations. This case, however, presented no occasion for the court to engage in ultra vires review of the Proclamations because the foundation did not allege any facts sufficient to support the ultra vires claim. No constitutional Property Clause issue was before the court, as the President exercised his powers under the Antiquities Act (Act), which included intelligible principles to guide his actions. The record indicated no infirmity in the Proclamations. Each Proclamation identified particular objects or sites of historic or scientific interest and recited grounds for the designation that Procedural Posture Plaintiff legal foundation appealed an order of the United States District Court for the District of Columbia, which dismissed their complaint Subsequent History: [**1] Rehearing Denied challenging six Presidential Proclamations as January 30, 2003, Reported at: 2003 U.S. App. unconstitutional and ultra vires actions. LEXIS 1728. Overview Prior History: Appeal from the United States District Court for the District of Columbia. (No. 00cv02072). Mt. States Legal Found. v. Bush, 2002 U.S. App. LEXIS 11505 (D.C. Cir., June 7, 2002) Disposition: Affirmed. Core Terms Proclamations, national monument, Presidential, designating, monuments, objects, judicial review, ultra vires, district court, limits, values, factual allegations, federal land, scientific, contends, historic, facial, powers, sites Page 2 of 7 306 F.3d 1132, *1132; 2002 U.S. App. LEXIS 21903, **1 comported with the Act's policies and requirements. his statutory authority. Outcome The district court's order was affirmed. Civil Procedure > Appeals > Standards of Review > General Overview LexisNexis® Headnotes Governments > Federal Government > Executive Offices HN5 Although in reviewing the dismissal of a complaint the court, as it must, takes all the factual allegations in the complaint as true, the court is not HN1 The court of appeals' review of the grant of a bound to accept as true a legal conclusion couched as a factual allegation. Moreover, the court is motion to dismiss is de novo. necessarily sensitive to pleading requirements Civil Procedure > ... > Defenses, Demurrers & where it is asked to review the President's actions Objections > Motions to Dismiss > Failure to State under a statute that confers very broad discretion on Claim the President and separation of powers concerns are presented. Civil Civil Procedure > Appeals > Standards of Review > De Novo Review Procedure > ... > Pleadings > Complaints > Requirem ents for Complaint Counsel: S. Amanda Koehler argued the cause for appellants. With her on the briefs was William HN2 In ruling on a motion to dismiss a complaint Perry Pendley. the district court must draw all reasonable inferences in favor of the plaintiff, and must not Susan Pacholski, Attorney, U.S. Department of dismiss the complaint unless it appears beyond Justice, argued the cause for appellee George W. doubt that the plaintiff can prove no set of facts in Bush. With her on the brief were Ellen Durkee, support of its claim that would entitle it to relief. Michael Gheleta and Ann D. Navaro, Attorneys. Despite Fed. R. Civ. P. 8's simplified notice pleading standard, the court need not accept James S. Angell argued the cause for appellees inferences drawn by plaintiffs if such inferences are Wilderness Society, et al. With him on the brief unsupported by the facts set out in the complaint. was Johanna Wald. Nor must the court accept legal conclusions cast in Judges: Before: EDWARDS and ROGERS, the form of factual allegations. Circuit Judges, and WILLIAMS, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge Business & Corporate Compliance > ... > Real ROGERS. Property Law > Zoning > Historic Preservation HN3 See 16 U.S.C.S. § 431. Opinion by: ROGERS Governments > Federal Government > Executive Offices Opinion Business & Corporate Compliance > ... > Real Property Law > Zoning > Historic Preservation [*1133] ROGERS, Circuit Judge: Mountain States HN4 In reviewing challenges under the Antiquities Act, review is available to ensure that the proclamations are consistent with constitutional principles and that the President has not exceeded Legal Foundation and the Blue Ribbon Coalition (hereafter "Mountain States") appeal the dismissal of their complaint challenging six Presidential Proclamations as unconstitutional and ultra vires actions for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be Page 3 of 7 306 F.3d 1132, *1133; 2002 U.S. App. LEXIS 21903, **1 granted pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Mountain States contends that the district court erred by limiting its review to the face of the Proclamations rather [**2] than conducting factfinding to determine whether the President had complied with the limitations, structure, and purposes of the Antiquities Act ("the Act"), 16 U.S.C. § 431 (2000). Absent such judicial review, it contends, the Act constitutes an unconstitutional delegation of congressional authority. Mountain States maintains that its complaint stated a claim because the Proclamations reach far beyond the purpose, scope, and size of any national monuments contemplated by Congress under the Act and are contrary to various statutes relating to the protection of environmental values on federal land. We have no occasion to decide the availability or scope of judicial review of a Presidential Proclamation designating federal lands as a national monument under the Antiquities Act, for Mountain States has failed to present any factual allegation sufficient to warrant review of its ultra vires claim. Accordingly, we affirm the dismissal of the complaint. I. Near the end of his second term in office, President Clinton exercised his authority under the Antiquities Act to issue a series of Presidential Proclamations designating a handful of national monuments [**3] in the western United States. Among these designations are the six Proclamations that Mountain States challenged in its complaint: (1) the Grand Canyon-Parashant National Monument, a "geological treasure" that encompasses an important watershed for the Colorado River and the Grand Canyon in northwest Arizona, Proclamation No. 7265, 65 Fed. Reg. 2825, 2825-26 (Jan. 18, 2000); (2) the Canyons of the Ancients National Monument in southwest Colorado, a "rugged landscape" containing "the highest known density of archaeological sites in the Nation," Proclamation No. 7317, 65 Fed. Reg. 37,243 (June 13, 2000); (3) the Cascade-Siskiyou National Monument, a "biological crossroads" in southwestern Oregon where the Cascade Range intersects with adjacent ecoregions, Proclamation No. 7318, 65 Fed. Reg. 37,249 (June 13, 2000); (4) the Hanford Reach National Monument, a habitat in southern Washington that is the largest remnant of the shrub-steppe ecosystem that once dominated the Columbia River basin, Proclamation No. 7319, 65 Fed. Reg. 37,253 (June 13, 2000); (5) the Ironwood Forest National Monument, an arid terrain in southern Arizona marked [**4] [*1134] by rock art sites and other archaeological objects of scientific interest, Proclamation No. 7320, 65 Fed. Reg. 37,259 (June 13, 2000); and (6) the Sonoran Desert National Monument, a desert ecosystem containing an array of biological, scientific, and historic resources, Proclamation No. 7397, 66 Fed. Reg. 7354 (Jan. 22, 2001). Mountain States alleged in its complaint that the President acted unconstitutionally and ultra vires under the Property Clause, U.S. Const., art. IV, § 2, cl. 2, in issuing these Proclamations. In the district court Mountain States argued that the President lacked the authority to designate the monuments because the Property Clause confers on Congress all powers relating to federal land. The focus of its argument shifted, however, when the government invoked the Antiquities Act in its motion to dismiss the complaint under Rule 12(b)(2) and (b)(6). The government argued that because the President had issued the Proclamations under the Antiquities Act, judicial review was limited to whether the President exercised his discretion in accordance with the standards in the Act, and that review of the face of the Proclamations sufficed [**5] to dispose of Mountain States' arguments. Mountain States responded that factfinding was required to ensure that the President had acted within the scope of his statutory authority, and in particular that the court should review, in light of the statutory standards, the basis on which the President acted. According to Mountain States, Congress intended only to preserve ruins, artifacts, and other manmade objects situated on public lands--not the land itself--by the smallest possible reservation of public land necessary for protection of the monument. Page 4 of 7 306 F.3d 1132, *1134; 2002 U.S. App. LEXIS 21903, **5 The district court dismissed the complaint, ruling that the Property Clause was not at issue and that under the Antiquities Act only facial review of Mountain States' arguments was appropriate. Upon facial review, the court concluded that the President had referenced the relevant statutory standards and had not acted ultra vires. the form of factual allegations." [*1135] Kowal v. MCI Communications Corp., 305 U.S. App. D.C. 60, 16 F.3d 1271, 1276 (D.C. Cir. 1994). With this standard in mind, we turn to Mountain States' contentions. II. The Antiquities Act provides, in relevant part: A. HN3 The President of the United States is On appeal, Mountain States contends that, in light authorized, in his discretion, to declare by of the presumption of judicial reviewability of public proclamation historic landmarks, executive action, substantive review was required historic and prehistoric structures, and other to ensure that substantial evidence existed to objects of historic or scientific interest that are support the President's issuance of the situated upon lands owned or controlled by the Proclamations. Arguing that the Proclamations' Government of the United States to be national nature, size, [**6] and scope facially contravene monuments, and may reserve as a part thereof Congress's limited purpose, which was to preserve parcels of land, the limits of which in all cases rare and discrete man-made objects, such as shall be confined to the smallest area prehistoric ruins and ancient artifacts, Mountain compatible with the proper care and States further contends that the Presidential actions management of the objects to be protected…. violate other statutes governing the withdrawal of land from public use and the protection of 16 U.S.C. § 431. Presidential Proclamations environmental values on federal land. Hence, designating national monuments have been Mountain States maintains, the district court erred challenged in only a handful [**8] of cases; in each in dismissing its complaint based only on facial the court has upheld the President's action. 1 The review of the Proclamations. Supreme Court has considered the Antiquities Act HN1 Our review of the grant of a motion to dismiss in three cases, each time confirming the broad is de novo. Wilson v. Pena, 316 U.S. App. D.C. power delegated to the President under the Act. 352, 79 F.3d 154, 160 n.1 (D.C. Cir. 1996). HN2 In United States v. California, 436 U.S. 32, 56 L. Ed. ruling on a motion to dismiss a complaint the 2d 94, 98 S. Ct. 1662 (1978); Cappaert v. United district court must draw all reasonable inferences in States, 426 U.S. 128, 141-42, 48 L. Ed. 2d 523, 96 favor of the plaintiff, Maljack Prods., Inc. v. S. Ct. 2062 (1976); Cameron v. United States, 252 Motion Picture Ass'n of Am., Inc., 311 U.S. App. U.S. 450, 64 L. Ed. 659, 40 S. Ct. 410 (1920). D.C. 224, 52 F.3d 373, 374 (D.C. Cir. 1995), and must not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of its claim that would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Despite Federal Rule of Civil Procedure 8 [**7] 's simplified notice pleading standard, "the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal conclusions cast in [**9] Although the Supreme Court has never 1 See Anaconda Copper Co. v. Andrus, 14 Env't Rep. Cas. (BNA) 1853, 1855 (D. Alaska July 1, 1980) (President Carter's creation of monuments in Alaska); Wyoming v. Franke, 58 F. Supp. 890, 896 (D. Wyo. 1945) (President Franklin Delano Roosevelt's designation of the Jackson Hole National Monument); cf. Alaska v. Carter, 462 F. Supp. 1155, 1159-60 (D. Alaska 1978) (holding that President is not subject to environmental impact statement requirements when proclaiming monuments under the Antiquities Act). See also Tulare County v. Bush, 306 F.3d 1138, 2002 U.S. App. LEXIS 21902, *2 (D.C. Cir. Oct. 18, 2002), also decided today. Page 5 of 7 306 F.3d 1132, *1135; 2002 U.S. App. LEXIS 21903, **9 expressly discussed the scope of judicial review under the Antiquities Act, the Court has directly addressed the nature of review of discretionary Presidential decisionmaking under other statutes. The Court has highlighted the separation of powers concerns that inhere in such circumstances and has cautioned that these concerns bar review for abuse of discretion altogether. United States v. George S. Bush & Co., for example, involved § 336(c) of the Tariff Act of 1930, which provided that the President: shall by proclamation approve rates of duties and changes in classification and in basis of value specified in any report of the [Tariff] Commission … if in his judgment such rates of duty and changes are shown by such investigation of the commission to be necessary to equalize such differences in costs of production. 310 U.S. 371, 376, 84 L. Ed. 1259, 60 S. Ct. 94477 (1940) (quoting 19 U.S.C. § 1336(a)) (emphasis added). The statute provided for judicial review only of legal questions. The Court held that "the President's method of solving the problem [of foreign exchange value] was open to scrutiny neither [**10] by the Court of Customs and Patent Appeals nor by us." Id. at 379. Similarly, in Dalton v. Specter, the Court considered a statute--the Defense Base Closure and Realignment Act of 1990--that did "not at all limit the President's discretion…." 511 U.S. 462, 476, 128 L. Ed. 2d 497, 114 S. Ct. 1719 (1994). Judicial review was unavailable under the Administrative Procedures Act ("APA") because the President is not an "agency" within the meaning of that statute. Id. at 469-70 [*1136] (citing Franklin v. Massachusetts, 505 U.S. 788, 800-01, 120 L. Ed. 2d 636, 112 S. Ct. 2767 (1992)). The Court then "assumed for the sake of argument that some claims that the President has violated a statutory mandate are judicially reviewable outside the framework of the APA," id. 511 U.S. at 474 (citation omitted), but it reiterated that "such review is not available when the statute commits the decision to the discretion of the President." Id. The Court held, "how the President chooses to exercise the discretion Congress has granted him is not a matter for our review." Id. 511 U.S. at 476. A somewhat different case is presented, however, where the authorizing statute or another statute [**11] places discernible limits on the President's discretion. Judicial review in such instances does not implicate separation of powers concerns to the same degree as where the statute did "not at all limit" the discretion of the President. Id. 511 U.S. at 476; cf. California, 436 U.S. at 33. As this court observed in Chamber of Commerce v. Reich, "Dalton's holding merely stands for the proposition that when a statute entrusts a discrete specific decision to the President and contains no limitations on the President's exercise of that authority, judicial review of an abuse of discretion claim is not available." 316 U.S. App. D.C. 61, 74 F.3d 1322, 1331 (D.C. Cir. 1996) (footnote omitted). "Dalton is inapposite," the court explained, "where the claim instead is that the presidential action … independently violates" another statute. Id. 74 F.3d at 1332. The court rejected the government's position "that the Procurement Act grants the President such broad discretion … that the case reduces only to a claim that the President abused his discretion--a claim that [the court is] not authorized to entertain." Id. 74 F.3d at 1326. It would be "untenable," the court [**12] stated, "to conclude that there are no judicially enforceable limitations on presidential actions, besides actions that run afoul of the Constitution or which contravene direct statutory prohibitions, so long as the President claims that he is acting pursuant to" a statutory directive. Id. 74 F.3d at 1332. Rather, the court emphasized that " 'the responsibility of determining the limits of statutory grants of authority … is a judicial function entrusted to the courts by Congress….' " Id. 74 F.3d at 1327 (quoting Stark v. Wickard, 321 U.S. 288, 310, 88 L. Ed. 733, 64 S. Ct. 559 (1944)). The court then held that the President had exceeded his authority under the Procurement Act in issuing an Executive Order barring federal contractors from Page 6 of 7 306 F.3d 1132, *1136; 2002 U.S. App. LEXIS 21903, **12 hiring replacement workers during an economic strike because the Order was preempted by an independent statute, the National Labor Relations Act. Id. 74 F.3d at 1339. Although the limits on Presidential authority at issue derive from the Antiquities Act itself rather than an independent statute, Reich is instructive, for the same policy considerations apply. Courts remain obligated to determine whether statutory restrictions have [**13] been violated. HN4 In reviewing challenges under the Antiquities Act, the Supreme Court has indicated generally that review is available to ensure that the Proclamations are consistent with constitutional principles and that the President has not exceeded his statutory authority. United States v. California, 436 U.S. at 35-36; Cappaert, 426 U.S. at 141-42; Cameron, 252 U.S. at 455-56. The instant case, however, presents no occasion for the court to engage in ultra vires review of the Proclamations because Mountain States fails to allege any facts sufficient to support its ultra vires claim. Mountain States alleges in its complaint merely that the six Proclamations at issue exceed the President's authority under [*1137] the Property Clause and are therefore "unconstitutional and ultra vires." Compl. P P 84-104. No constitutional Property Clause claim is before us, as the President exercised his delegated powers under the Antiquities Act, and that statute includes intelligible principles to guide the President's actions. See Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 474, 149 L. Ed. 2d 1, 121 S. Ct. 903 (2000); [**14] Dalton, 511 U.S. at 473-74 & n.6. In responding to the government's reliance on the Antiquities Act, Mountain States argued in the district court that the President had included ineligible items within the designation--namely land--whereas the legislative history of the Act indicated, Mountain States asserted, that Congress intended only that rare and discrete man-made objects, such as prehistoric ruins and ancient artifacts, were to be designated. That argument fails as a matter of law in light of Supreme Court precedent interpreting the Act to authorize the President to designate the Grand Canyon and similar sites as national monuments. See, e.g., Cameron, 252 U.S. 450, 64 L. Ed. 659, 40 S. Ct. 410. And to the extent that Mountain States seeks ultra vires review under the Act, its complaint and statutory arguments present no more than legal conclusions. At no point has Mountain States presented factual allegations that would occasion further review of the President's actions. Rather, Mountain States' arguments contain only the bald assertion that the President acted outside the bounds of his constitutional and statutory authority. HN5 Although in [**15] reviewing the dismissal of a complaint the court, as it must, takes "all the factual allegations in the complaint as true," the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286, 92 L. Ed. 2d 209, 106 S. Ct. 2932 (1986) (citation omitted). Moreover, the court is necessarily sensitive to pleading requirements where, as here, it is asked to review the President's actions under a statute that confers very broad discretion on the President and separation of powers concerns are presented. Dalton, 511 U.S. at 474-76; Bush, 310 U.S. at 380. Nothing in the record before us indicates any infirmity in the challenged Proclamations. Each Proclamation identifies particular objects or sites of historic or scientific interest and recites grounds for the designation that comport with the Act's policies and requirements. For example, Proclamation 7320, 65 Fed. Reg. at 37,259, states that the Ironwood Forest National Monument "holds abundant rock art sites and other archeological objects of scientific interest." And Proclamation 7317, 65 Fed. Reg. at 37,244, [**16] states that the 164,000 acres that comprise the Canyons of the Ancients National Monument "is the smallest area compatible with the proper care and management of the objects to be protected." To warrant further review of the President's actions, Mountain States would have to allege facts to support the claim that the President acted beyond Page 7 of 7 306 F.3d 1132, *1137; 2002 U.S. App. LEXIS 21903, **16 his authority under the Antiquities Act. See Fed. R. Civ. P. 8(a); Papasan, 478 U.S. at 286; Browning v. Clinton, 292 F.3d 235 (D.C. Cir. 2002). Having failed to do this, Mountain States presents the court with no occasion to decide the ultimate question of the availability or scope of review for exceeding statutory authority. The inadequacy of Mountain States' assertions thus precludes it from showing that the district court erred in declining to engage in a factual inquiry to ensure that the President has complied with the statutory standards. Even assuming the correctness of Mountain States' contention that AFL-CIO v. Kahn, 199 U.S. App. D.C. 300, 618 F.2d 784 (D.C. Cir. 1979), and Franke, 58 F. Supp. 890, [*1138] require a detailed factual review in some circumstances, those cases [**17] are not relevant in view of the inadequacy of Mountain States' allegations. B. According to Mountain States, the Endangered Species Act, 16 U.S.C. §§ 1532-44 (2000), is the "sole means" for protecting species and their habitat, and § 1133 of the Wilderness Act, 16 U.S.C. §§ 1131-36 (2000), is the "sole means" by which the federal government may withdraw land from public use to protect scenic beauty, natural wonders, or wilderness values. Appellant's Br. at 36, 37. Yet the Park Service Organic Act, 16 U.S.C. 1-4 (2000), provides just one [**18] example of a statute that serves both purposes. United States v. Brown, 552 F.2d 817, 822 (8th Cir. 1977). So, too, the Migratory Bird Treaty Act, 16 U.S.C. §§ 703-12 (2000), the National Wildlife Refuge System Act, 16 U.S.C. § 668dd (2000), the National Forest Management Act of 1976, Pub. L. No. 94-588, 90 Stat. 2949 (codified as amended in scattered sections of 16 U.S.C.) (2000), and the Bald and Golden Eagle Protection Act, 16 U.S.C. § 668 (2000), all guard endangered species and their habitat. The Federal Land Policy and Management Act ("FLPMA"), 43 U.S.C. § 1701, the National Forest Management Act, and the Multiple Use Sustained Yield Act, 16 U.S.C. §§ 528-29, 531 (2000), also protect scenic and wilderness values. Consequently, Mountain States' contention that the Antiquities Act must be narrowly construed in accord with Mountain States' view of Congress's original intent because Congress asserted its Property Clause authority in enacting the FLPMA again misses the mark. Mountain States further contends, much as did appellants in Reich, that the Proclamations facially defy congressional intent regarding the scope and purpose of "a host" of other statutes enacted to protect various archeological and environmental values. Appellants' Br. at 5. This contention, however, misconceives federal laws as not providing overlapping sources of protection. Essentially, this contention parallels Mountain States' view of the limited scope of power delegated to the President under the Antiquities Act, specifically as not embracing environmental Accordingly, we affirm the dismissal of the values. complaint. End of Document C'LexisNexiS? 9 Positive As of: February 10, 2014 1:59 PM EST Tulare County v. Bush United States District orut for the District of Columbia September 28, 2001, Decided Civil Action No.: 00-2560 (RMU), Docrunent Nos.: 15, 25, 30, 46 Reporter: 185 F. Supp. 2d 18; 2001 US. Dist. LEXIS 23856 TULARE COUNTY et al., Plaintiffs, V. GEORGE W. BUSH et al., Defendants. Disposition: Defendants? motion to dismiss granted. Motions to intervene and re- lated submissions denied as moot. Motion to ap- pear pro hac vice denied as moot. Core Terms proclamation, monument, land, antiquity, management, review, violate, agency?s action, object, claim, seq, motion to dismiss, authority, national forest, jurisdiction, historic, reserve, agency, scienti?c, forest, public, cormt, judicial, requires, presidential, plan, current, relief, subject-matter, standards Case Summary Procedural Posture Plaintiffs, various individuals and groups, sued the defendants, the President of the United States and various federal agencies, alleging that a presidential proclamation creating a na- tional monument and its implementation vio- lated four federal acts, the plaintiffs? rights, and US. Const. (177. IV, 6 3, Cl. 2. The defen- dants moved to dismiss for lack of subject mat- ter jurisdiction or, alternatively, for failrn?e to state a claim. Overview The plaintiffs? claimed that the proclamation and its implementation violated the Antiquities Act ?I?l?mme National Forest Man- agement Act (NFMA), 16 U.S.C.S. 6 1600 et m, the National Enviromnental Policy Act (NEPA), 42 U.S.C.S. 6 4321 et seq., and the Administrative Procedure Act (APAseq. The court could only review the face of the proclamation, since the Act did not provide for judicial review of presidential ac- tions. The plaintiffs failed to state a claim for re- lief. Because the proclamation had meaning- ful limitations and followed standards delineated by the US. Congress, it did not violate the Progerrv Clause. Since the proclamation did not remove land from the national forest sys- tem, plaintiffs failed to state a claim for relief 1m- der the NFMA. Because the President was not an administrative agency within the mean- ings of the APA and the NEPA, the actions were not subject to judicial review under those statutes. Since the proclamation recognized ex- isting rights, it did not violate existing rights. Additionally, the current management of the monument was not ripe for judicial review. Outcome The defendants? motion to dismiss was granted. Motions to intervene and related sub- were denied as moot, as was a mo- tion to appear pro hac vice. LexisNexis? Headnotes Civil Procedure Defenses. Demurrers Objec- tions Motions to Dismiss Failure to State Claim Civil Procedure Responses Defenses. Demur- rers Objections Motions to Dismiss HNI In reviewing a motion to dismiss for lack Page 2 of 13 185 F. Supp. 2d 18, *18; 2001 U.S. Dist. LEXIS 23856, **1 HN6 A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests not whether the plaintiff will prevail on the merits, but instead whether the plaintiff has properly stated a claim. The plaintiff need not plead the elements of a primafacie case in the complaint. Thus, a court Civil Procedure > ... > Responses > Defenses, Demur- may dismiss a complaint for failure to state a rers & Objections > Motions to Dismiss claim only if it is clear that no relief could be granted under any set of facts that could be HN2 On a motion to dismiss pursuant to Fed. proved consistent with the allegations. R. Civ. P. 12(b)(1), the plaintiff bears the burden of establishing that the court has jurisdicEnvironmental Law > Natural Resources & Public tion. Lands > General Overview of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1), the court must accept all the complaint’s well-pled factual allegations as true and draw all reasonable inferences in the plaintiff’s favor. Civil Procedure > ... > Responses > Defenses, Demurrers & Objections > Motions to Dismiss HN3 In evaluating whether subject-matter jurisdiction exists in the context of a Fed. R. Civ. P. 12(b)(1) motion, a court must accept all uncontroverted, well-pleaded facts as true and attribute all reasonable inferences to the plaintiffs. The court is not required, however, to accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations. Civil Procedure > ... > Responses > Defenses, Demurrers & Objections > Motions to Dismiss HN4 In the context of deciding a Fed. R. Civ. P. 12(b)(1) motion, a court need not limit itself to the allegations of the complaint. Rather, the court may consider such materials outside the pleadings as it deems appropriate to determine whether it has jurisdiction in the case. Civil Procedure > ... > Pleadings > Complaints > Requirements for Complaint Civil Procedure > Pleading & Practice > Pleadings > Rule Application & Interpretation HN5 For a complaint to survive a Fed. R. Civ. P. 12(b)(6) motion to dismiss, it need only provide a short and plain statement of the claim and the grounds on which it rests. Fed. R. Civ. P. 8(a)(2). Civil Procedure > ... > Responses > Defenses, Demurrers & Objections > General Overview Civil Procedure > ... > Defenses, Demurrers & Objections > Motions to Dismiss > Failure to State Claim HN7 See 16 U.S.C.S. § 431. Environmental Law > Natural Resources & Public Lands > General Overview Governments > Federal Government > Executive Offices HN8 The Antiquities Act of 1906 (Act) sets forth no means for reviewing a President’s proclamation other than specifying that a President has discretion in his or her use of the Act. Environmental Law > Natural Resources & Public Lands > General Overview Governments > Federal Government > Executive Offices HN9 The Antiquities Act of 1906 empowers the President of the United states to establish reserves embracing objects of historic or scientific interest. Constitutional Law > Separation of Powers Governments > Federal Government > Executive Offices HN10 Courts are severely limited in their review of congressionally authorized presidential actions. It has long been held that where the U.S. Congress authorizes a public officer to take some specified legislative action, when in his judgment that action is necessary or appropriate to carry out the policy of the U.S. Congress, the judgment of the officer as to the existence of the facts calling for that action is not subject to review. Constitutional Law > Separation of Powers Governments > Federal Government > Executive Of- Page 3 of 13 185 F. Supp. 2d 18, *18; 2001 U.S. Dist. LEXIS 23856, **1 of monuments. 16 U.S.C.S. § 431. Even if standards and limitations are somewhat broad, the HN11 While a court can evaluate whether a U.S. Congress does not violate the Constitution President has exercised his discretion in accor- merely because it legislates in broad terms, dance with the standards of the Antiquities leaving a certain degree of discretion to execuAct of 1906 (Act), a court cannot review the tive or judicial actors. President’s determinations and factual findings. To do so would invade the legislative and exEnvironmental Law > Natural Resources & Public ecutive domains because the U.S. Congress has Lands > Forest Management Governments > Public Lands > General Overview directed that the President, in his discretion, Governments > Public Lands > Forest Lands make those findings. 16 U.S.C.S. § 431. AccordReal Property Law > Exemptions & Immuniingly, a court must limit its examination to ties > Homestead Exemptions the face of a proclamation issued under the Act. HN16 The National Forest Management Act Constitutional Law > Relations Among Govern(NFMA) of 1976, 16 U.S.C.S. § 1600 et seq., ments > General Overview states that no land reserved from the public doConstitutional Law > Relations Among Governmain as a national forest can be returned to ments > Federal Territory & New States the public domain except by an Act of ConHN12 See U.S. Const. art. IV, § 3, cl. 2. gress . 16 U.S.C.S. § 1609(a). Public domain refers to land available for sale or settlement unConstitutional Law > Relations Among Governder homestead laws, or other types of ments > Federal Territory & New States dispositions pursuant to land laws. The NFMA Governments > Public Lands > General Overview also requires the Secretary of Agriculture to manage the forest system lands, ensuring that HN13 The Property Clause is read expanthe uses of these lands comply with other statsively. The power over the public land thus enutes. 16 U.S.C.S. § 1600 et seq. trusted to the U.S. Congress is without limitations. When delegating authority, the U.S. Environmental Law > Natural Resources & Public Congress must provide standards to guide the Lands > General Overview authorized action such that one reviewing the acGovernments > Federal Government > Property tion could recognize whether the will of the U.S. Congress is being obeyed. HN17 A reservation under the Antiquities Act of 1906 (Act) means no more than that the land is Environmental Law > Natural Resources & Public shifted from one federal use, and perhaps Lands > General Overview from one federal managing agency, to another. HN14 The Antiquities Act of 1906 establishes The Act gives the President discretion to create a national monument and reserve land for its clear standards and limitations for actions use. The terms of the Act include federal taken under it. lands owned or controlled by the United States that may already have been designated for a Constitutional Law > Congressional Duties & Powspecific management purpose. ers > General Overview fices Constitutional Law > Relations Among Governments > General Overview Constitutional Law > Relations Among Governments > Federal Territory & New States Environmental Law > Natural Resources & Public Lands > General Overview Environmental Law > Natural Resources & Public Lands > Forest Management Governments > Federal Government > Executive Offices Governments > Public Lands > General Overview Governments > Public Lands > Forest Lands HN15 The Antiquities Act of 1906 details the types of objects that can be included in monu- HN18 National Forest Management Act, 16 U.S.C.S. § 1600 et seq., does not limit the Presiments and a method for determining the size Page 4 of 13 185 F. Supp. 2d 18, *18; 2001 U.S. Dist. LEXIS 23856, **1 dent’s authority under the Antiquities Act of 1906 by prohibiting proclamations that reserve land in national forests as monuments. Environmental Law > Natural Resources & Public Lands > Forest Management Governments > Public Lands > General Overview HN19 In no way does 16 U.S.C.S. § 1609 demonstrate a congressional intent to repeal the Antiquities Act of 1906 as it applies to national forest lands. Administrative Law > Judicial Review > General Overview Administrative Law > Judicial Review > Reviewability > General Overview Administrative Law > Judicial Review > Reviewability > Reviewable Agency Action Administrative Law > Judicial Review > Reviewability > Standing Environmental Law > Administrative Proceedings & Litigation > Judicial Review HN20 The Administrative Procedure Act, 5 U.S.C.S. § 701 et seq., provides that a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review. 5 U.S.C.S. § 702. That provision requires a complainant to identify some particular agency action, and the agency action in question must be final agency action. Environmental Law > Natural Resources & Public Lands > National Environmental Policy Act > General Overview Governments > Federal Government > Claims By & Against trative Procedure Act (APA), 5 U.S.C.S. § 701 et seq., only when a final agency action exists. 5 U.S.C.S. § 704. Because the President is not a federal agency within the meaning of the APA, presidential actions are not subject to review pursuant to the APA. Environmental Law > Natural Resources & Public Lands > National Environmental Policy Act > General Overview Environmental Law > Assessment & Information Access > Environmental Impact Statements Governments > Federal Government > Property HN23 The President is not a federal agency for the purposes of the National Environmental Policy Act (NEPA), 42 U.S.C.S. § 4321 et seq., Consequently, the President is not subject to the impact statement requirement of NEPA when exercising his power to proclaim national monuments under the Antiquities Act of 1906. Administrative Law > Judicial Review > Reviewability > Reviewable Agency Action HN24 Courts deem an agency action final if (1) the action marks the consummation of the agency’s decisionmaking process, and (2) the action determines rights or obligations or resolves issues from which legal consequences flow. Final agency action must not be of a tentative or interlocutory nature. Civil Procedure > ... > Justiciability > Ripeness > Tests for Ripeness Constitutional Law > The Judiciary > Case or Controversy > Ripeness HN25 The test for ripeness requires a court to evaluate both the fitness of the issues for juHN21 The National Environmental Policy Act, dicial decision and the hardship to the parties of 42 U.S.C.S. § 4321 et seq., applies specifiwithholding court consideration. With respect cally to federal agencies, making no mention to the fitness for judicial decision prong, a claim of presidential actions. is not ripe for adjudication if it rests upon conAdministrative Law > Judicial Review > Reviewabil- tingent future events that may not occur as anity > Reviewable Agency Action ticipated, or indeed may not occur at all. SimiAdministrative Law > Judicial Review > Reviewabil- larly, with respect to the hardship to the ity > Jurisdiction & Venue parties prong, an abstract harm is not suffiGovernments > Federal Government > Claims By & cient; there must be an immediate harm with a Against direct effect on the day-to-day business of HN22 A court has subject-matter jurisdiction the plaintiffs. to review an agency action under the Adminis- Page 5 of 13 185 F. Supp. 2d 18, *18; 2001 U.S. Dist. LEXIS 23856, **1 Counsel: For TULARE COUNTY, SIERRANEVADA ACCESS MULTIPLE-USE & STEWARDSHIP COALITION, INC., HIGH DESERT MULTIPLE-USE COALITION, INC., SIERRA FOREST PRODUCTS, INC., KENT DUYSEN, SUGARLOAFERS SNOWMOBILE ASSOCIATION, FRED WILEY, ELEANOR FOERSTER, HERBERT FOERSTER, MONTECITO-SEQUOIA CAMP, INC., HAROLD KIPER, CALIFORNIA-NEVADA SNOWMOBILE ASSOCIATION, INC., NAVELENCIA RESOURCE CONSERVATION DISTRICT, plaintiffs: Gary Griffin Stevens, SALTMAN & STEVENS, P.C., Washington, DC. For WILLIAM JEFFERSON CLINTON, UNITED STATES OF AMERICA, DANIEL R. GLICKMAN, DEPARTMENT OF AGRICULTURE, MICHAEL P. DOMBECK, UNITED STATES FOREST SERVICE, BRADLEY E. POWELL, ARTHUR L. GAFFREY, federal defendants: Ann D. Navaro, Martin Lalonde, Washington, DC. GRANTING THE DEFENDANTS’ MOTION TO DISMISS I. INTRODUCTION On April 15, 2000, pursuant to the Antiquities Act of 1906, President Clinton issued a proclamation establishing the Giant Sequoia National Monument (″the Monument″). Proclamation Number 7295 (″the Proclamation″) declared that the Monument would encompass 327,769 acres of land in the Sequoia National Forest in southern central California. According to the Antiquities Act, the President may, ″in his discretion,″ designate federal land as a national Monument when it includes ″historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.″ See 16 U.S.C. § 431. The plaintiffs in this action are various individuals and groups that have interests in the use of the Sequoia National Forest land within the boundaries of the Monument. The plaintiffs filed this action against the defendants, PresiFor Defendants: Michael A. Gheleta, U.S. DE- dent Clinton and various other entities of the PARTMENT OF JUSTICE, Denver, ColoUnited [**3] States government, seeking derado. claratory relief. The plaintiffs allege that the Proclamation and the Forest Service’s curFor NATURAL RESOURCES DEFENSE rent implementation of the Proclamation vioCOUNCIL, INC., SIERRA CLUB, WILDERlate the Antiquities Act, the National Forest NESS SOCIETY, TULE RIVER CONSERManagement Act (″NFMA″), 16 U.S.C. § 1600 VANCY, movants: James Samuel Pew, Jeremy et seq., the National Environmental Policy Todd Hutchins, EARTH JUSTICE LEGAL Act (″NEPA″), 42 U.S.C. § 4321 et seq., the AdDEFENSE FUND, Washington, DC. ministrative Procedure Act (″APA″), 5 U.S.C. § 701 et seq., the plaintiffs’ rights, and the PropFor BILL LOCKYER, ATTORNEY [**2] erty Clause of the Constitution, U.S. CONST. GENERAL EX REL., movant: Raissa S. Lerner, art. IV, § 3, cl. 2. This matter is before the court CALIFORNIA ATTORNEY GENERAL’S OFon the defendants’ motion to dismiss for lack FICE, Oakland, CA. of subject-matter jurisdiction or, alternatively, for failure to state a claim on which relief Judges: Ricardo M. Urbina, United States Dis- can be granted. For the reasons that follow, the trict Judge. court will grant the defendants’ motion to dismiss. Opinion by: Ricardo M. Urbina II. BACKGROUND Opinion [*21] MEMORANDUM OPINION On April 15, 2000, President Clinton issued a proclamation establishing the Giant Sequoia National Monument pursuant to the Antiquities Act of 1906. See 16 U.S.C. § 431; 65 Fed. Reg. 24095 (2000). The Proclamation states that Page 6 of 13 185 F. Supp. 2d 18, *21; 2001 U.S. Dist. LEXIS 23856, **3 the Monument encompasses ″the smallest area compatible [**4] with the proper care and management of the objects to be protected,″ 327,769 acres of land located within the Sequoia National Forest in southern central California. See 65 Fed. Reg. at 24097. The Proclamation reserves this land for the purpose of protecting a variety of objects of historic and scientific interest such as: ″rich and varied landscape,″ ″magnificent groves of towering [*22] giant sequoias,″ ″gigantic domes,″ and ″archeological sites recording Native American occupation and adaptations.″ See 65 Fed. Reg. at 24095-24097. According to the Proclamation, ″the monument is rich in rare plants and is home to more than 200 plant species endemic to the southern Sierra Nevada mountain range ......... ″ See id. Regarding the use of land included in the Monument, the Proclamation provides for ″continued public and recreational access and use consistent with the purposes of the monument.″ See id. at 24097. The Proclamation states that ″the establishment of this monument is subject to valid existing rights.″ See id. at 24097. The Proclamation also provides for the continuing existence of timber sales under contract on [**5] the date of the Proclamation and states that the Proclamation will not affect existing special use authorizations. See id. at 24097 -98. As to the management of the Monument, the Forest Service shall manage the Monument, ″pursuant to applicable legal authorities, to implement the purposes and provisions of this proclamation.″ Id. at 24097. Finally, the Proclamation gives the Secretary of Agriculture three years from the date of the Proclamation to develop an official management plan for the Monument. See id. Tulare County, one of the plaintiffs, is a county in the State of California that holds land near and within the Monument. See Compl. P 12. Other plaintiffs include Sierra Forest Products, High Desert Multiple-Use Coalition, Kent Duysen, Sierra Nevada Access MultipleUse & Stewardship Coalition, Sugarloafers Snowmobile Association, Montecito-Sequoia Camp, and Navelencia Resource Conservation District. See Compl. PP 12-77. Generally speak- ing, the plaintiffs use the Monument area for business and recreational purposes. See id. Two of the plaintiffs, Sierra Forest Products and High Desert Multiple-Use Coalition were involved in an [**6] administrative appeal of the Land and Resource Plan, the Forest Service’s management plan for the Sequoia National Forest. See Compl. PP 87-89; Pls.’ Opp’n at 39. The Forest Service adopted this Land and Resource Plan in 1988 to preserve old -growth Giant Sequoias. See Compl. P 87. In 1990, these plaintiffs, other appellants of the management plan, and the Forest Service entered into a Mediated Settlement Agreement (″MSA″) with the Forest Service. See Compl. P 89. On October 25, 2000, the plaintiffs, seeking declaratory relief, filed a complaint, alleging nine claims: (1) the Proclamation violates the Antiquities Act because the alleged objects of historic and scientific interest have not been identified with reasonable specificity; (2) the Proclamation violates the Antiquities Act because it designates non-qualifying objects as the basis for the Monument; (3) the Proclamation violates the Antiquities Act because the size of the Monument is not confined to the smallest area compatible; (4) the Proclamation violates the Antiquities Act because it increases the likelihood of harm to any objects of alleged historic and scientific interest within the Monument; (5) the Proclamation [**7] violates the Property Clause of the Constitution; (6) the Proclamation violates the NFMA by withdrawing land from the National Forest System; (7) the current management by the Forest Service of the Monument is in violation of the NFMA and its forest planning regulations; (8) the current management of the Monument is in violation of the NEPA; and (9) the Proclamation violates valid existing rights, including those contained in the Mediated Settlement Agreement. See Compl. PP 131204. [*23] The plaintiffs allege that the Monument is physically over-inclusive. See Pls.’ Opp’n at 1. According to the plaintiffs, the ″Giant Sequoia groves constitute only about 20,000 Page 7 of 13 185 F. Supp. 2d 18, *23; 2001 U.S. Dist. LEXIS 23856, **7 acres or 6% of Monument area.″ See id. Also, the plaintiffs charge that the Forest Service’s current management of the Monument area significantly decreases timber sales, recreational uses, and rights of access to the Monument. See Compl. PP 108-14. On March 23, 2001, the defendants filed a motion to dismiss under both Federal Rule of Civil Procedure 12(b)(1), lack of jurisdiction, and Rule 12(b)(6), failure to state a claim on which relief could be granted. See Defs.’ Mot. to Dismiss (″Mot. to Dismiss″) at 1. grounds by 482 U.S. 64, 96 L. Ed. 2d 51, 107 S. Ct. 2246 (1987). Rather, the court may consider such materials outside the pleadings as it deems appropriate to determine whether it has jurisdiction in the case. See Herbert v. National Academy of Sciences , 297 U.S. App. D.C. 406, 974 F.2d 192, 197 (D.C. Cir. 1992). HN5 For a complaint to survive a Rule 12(b)(6) motion to dismiss, it need only provide a short and plain statement of the claim and the grounds on which it rests. See FED. R. CIV. P. 8(a)(2); Conley v. Gibson , 355 U.S. 41, 47, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). HN6 A motion to dismiss under Rule 12(b)(6) tests not [**8] III. ANALYSIS whether the plaintiff will prevail on the merits, but instead whether the plaintiff has properly A. Legal Standard for Motion to Dismiss stated a claim. See FED. R. CIV. P. 12(b)(6); HN1 In reviewing a motion to dismiss for lack Scheuer , 416 U.S. at 236. The plaintiff need not plead the elements of a prima-facie case in of subject-matter jurisdiction under Rule the complaint. See Sparrow v. United Air Lines, 12(b)(1), the court must accept all the comInc., 342 U.S. App. D.C. 268, 216 F.3d 1111, plaint’s well-pled factual allegations as true and 1114 (D.C. Cir. 2000). Thus, the court may disdraw all reasonable inferences in the plainmiss a complaint for failure to state a [**10] tiff’s favor. See, e.g., Pitney Bowes v. United States Postal Serv. , 27 F. Supp.2d 15, 19 (D.D.C. claim only if it is clear that no relief could be granted under any set of facts that could be 1998) (Urbina, J.). HN2 On a motion to disproved consistent with the allegations. See Hismiss pursuant to Rule 12(b)(1), the plaintiff hon v. King & Spalding , 467 U.S. 69, 73, 81 bears the burden of establishing that the court L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Atchinhas jurisdiction. See District of Columbia Retirement Bd. v. United States , 657 F. Supp. 428, son v. District of Columbia , 315 U.S. App. D.C. 318, 73 F.3d 418, 422 (D.C. Cir. 1996). More431 (D.D.C. 1987). HN3 In evaluating over, the court should draw all reasonable inwhether subject-matter jurisdiction exists, the ferences in the nonmovant’s favor. See Judicial court must accept all uncontroverted, wellWatch, Inc. v. Clinton , 880 F. Supp. 1, 7 pleaded facts as true and attribute all reason(D.D.C. 1995). [*24] able inferences to the plaintiffs. See Scheuer v. Rhodes , 416 U.S. 232, 236, 40 L. Ed. 2d 90, B. The Court Dismisses Counts One 94 S. Ct. 1683, 71 Ohio Op. 2d 474 (1974), overThrough Four Because the Proclamation turned on other grounds by Harlow v. FitzgerDoes Not Violate the Antiquities Act ald , 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). The Court is not required, howIn Counts One through Four, the plaintiffs alever, to accept inferences unsupported by the lege that the Proclamation violates the Antiquifacts alleged or legal conclusions that are cast as ties Act in various ways. See Compl. PP 131factual allegations. See, e.g., Lawrence v. Dun60. Reviewing the Proclamation on its face, this bar, 919 F.2d 1525, 1529 (11th Cir. 1990). court determines that there is no set of facts on [**9] which the plaintiffs could demonstrate that the Moreover, HN4 the court need not limit itself to Proclamation violates the Antiquities Act. the allegations of the complaint. See Hohri v. Consequently, the court dismisses Counts One through Four pursuant to Rule 12(b)(6). United States, 251 U.S. App. D.C. 145, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other 1. The Antiquities Act Page 8 of 13 185 F. Supp. 2d 18, *24; 2001 U.S. Dist. LEXIS 23856, **10 HN7 The Antiquities Act authorizes the President of the United States: in his discretion, to declare by public proclamation historic landmarks . . . and other objects of [**11] historic and scientific interest that are situated upon lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected. 16 U.S.C. § 431. HN8 The Antiquities Act sets forth no means for reviewing a President’s proclamation other than specifying that a President has discretion in his or her use of the Act. See id. Presidents have used the Antiquities Act to declare national monuments more than 120 times and in at least 27 states. See Esplin v. Clinton, No. 00-0148 at 6 (D. Ariz. Nov. 20, 2000) (Defs.’ Ex. 2) (″Esplin″). 1 Denying parties’ claims that the use of the Antiquities Act should be limited, the Supreme Court has explained that HN9 ″the act under which the President proceeded empowered him to establish reserves embracing ’objects of historic or scientific interest.’″ Cameron v. United States, 252 U.S. 450, 455, 64 L. Ed. 659, 40 S. Ct. 410 (1920); see also Cappaert v. United States, 426 U.S. 128, 141, 48 L. Ed. 2d 523, 96 S. Ct. 2062-142 (1976); United States v. California, 436 U.S. 32, 36, 56 L. Ed. 2d 94, 98 S. Ct. 1662 (1978). [**12] to take some specified legislative action[,] when in his judgment that action is necessary or appropriate to carry out the policy of Congress, the judgment of the officer as to the existence of the facts calling for that action is not subject to review. [**13] United States v. George S. Bush & Co., 310 U.S. 371, 380, 84 L. Ed. 1259, 60 S. Ct. 944 (1940) (internal citations omitted). Considering that the judgment of any public officer taking legislative action cannot be reviewed by the courts, the court deems it highly logical that presidential decisions, made pursuant to a statute that provides the President with discretion, are also not reviewable. In George S. Bush & Co., the Supreme Court reviewed the President’s 1934 proclamation increasing the duty on canned clams imported from Japan pursuant to the Tariff Act of 1930. See id. at [*25] 375; 19 U.S.C. § 1001 et seq. The Court explained that probing the reasoning of the President in issuing this proclamation would be an invasion of the legislative and executive domains. See id. at 380. 2. Analysis HN11 While this court can evaluate whether President Clinton exercised his discretion in accordance with the standards of the Antiquities Act, this court cannot review the President’s determinations and factual findings, as the plaintiffs suggest. To do so would invade the legislative and executive domains because Congress has directed [**14] that the PresiHN10 Courts are severely limited in their re- dent, ″in his discretion,″ make these findings. view of congressionally authorized presidential See George Bush & Co. 310 U.S. at 380; 16 U.S.C § 431. Accordingly, this court limits its actions: examination to the face of the Proclamation. See It has long been held that where ConCameron, 252 U.S. at 455-56; Cappaert, 426 gress has authorized a public officer The use of the Antiquities Act has been challenged six times and courts have upheld the use of the Antiquities Act each time. See Esplin at 6 and n.1; see, e.g., United States v. California, 436 U.S. 32 (1978); Cameron v. United States, 252 U.S. 450 (1920); Wyoming v. Franke, 58 F. Supp. 890 (D. Wyo. 1945); Cappaert v. United States, 426 U.S. 128 (1976); Anaconda Copper Co. v. Andrus, 14 ERC 1853 (D. Alaska 1980) (Defs.’ Ex. 3); Alaska v. Carter, 462 F. Supp. 1155 (D. Alaska 1978). 1 Page 9 of 13 185 F. Supp. 2d 18, *25; 2001 U.S. Dist. LEXIS 23856, **14 U.S. at 141-142; Anaconda Copper Co. v. An- Finally, a facial review of the Proclamation drus, 14 ERC 1853, 1854 (D. Alaska 1980) [**16] leads the court to determine that the (Defs.’ Ex. 3). plaintiffs can prove no set of facts in support of their claims that could entitle them to relief. See Counts One and Two assert that President Clin- George S. Bush & Co., 310 U.S. at 380ton violated the Antiquities Act by not reason- 81; Conley, 355 U.S. at 45-46. Consequently, the ably identifying objects of historic and scien- court dismisses Counts One through Four. tific interest and by designating non-qualifying C. The Court Dismisses Count Five Because objects as the basis for the Monument. See Compl. PP 131-44. In contrast, the Proclama- the Proclamation Does Not Violate the Proption begins by stating, ″the rich and varied land- erty Clause of the Constitution scape of the Giant Sequoia National MonuIn Count Five, the plaintiffs allege that the Anment holds a diverse array of scientific and tiquities Act and the Proclamation violate the historic resources.″ See 65 Fed. Reg. at 24095. The Proclamation specifies, ″only one other North Property Clause of the Constitution. See Compl. PP 161-68. The court disagrees. American tree species . . . holds such lengthy and detailed chronologies of past changes and events.″ See id. In addition, ″the [*26] 1. The Property Clause monument is rich in rare plants,″ ″rare amphibHN12 The Property Clause states: ″The Conians,″ and ″archaeological sites . . . are found in gress shall have Power to dispose of and make the monument.″ See id. at 24095-96. [**15] In all needful Rules and regulations respecting sum, the Proclamation, on its face, dethe Territory or other Property belonging to the scribes with specificity the objects of historic United States.″ U.S. CONST. art. IV, § 3, cl. and scientific interest to be included in the 2. The Supreme Court has read HN13 the PropMonument and does not designate nonerty Clause expansively, noting that ″the qualifying objects. power over the public land thus entrusted to Congress is without limitations.″ See United Count Three alleges that the Proclamation vioStates v. San Francisco , 310 U.S. 16, 29, 84 L. lates the Antiquities Act because the size of Ed. 1050, 60 S. Ct. 749 (1940). The Court the Monument is not confined to the smallest has also explained that when delegating authorarea compatible with the proper care and manity, Congress must provide standards to guide agement of the objects to be protected. See the [**17] authorized action such that one reCompl. PP 145-53. On a similar note, Count viewing the action could recognize whether Four asserts that the Proclamation increases the the will of Congress has been obeyed. See Yakus likelihood of harm to objects of historic and v. United States , 321 U.S. 414, 425, 88 L. Ed. scientific interest within the Monument. See id. 834, 64 S. Ct. 660, 28 Ohio Op. 220-26 (1944). PP 154-60. In contrast, however, the Proclamation addresses the reason for the size of the 2. Analysis Monument, the risk of wildfire, and the need to protect the objects of historic and scientific inIn this case, the plaintiffs claim that ″Congress terest. See 65 Fed. Reg. at 24095-97. As rehas ceded its Constitutional power ’to disquired by the Antiquities Act, the Proclamation pose of and make all needful Rules and Regulaspecifically states that the land reserved for tions respecting the Territory or other Propthe Monument consists of ″approximately erty belonging to the United States’ by 327,769 acres, which is the smallest area com- delegating unlimited discretion to the Presipatible with the proper care and management dent.″ See Compl. P 166. The plaintiffs allege of the objects to be protected ......... ″ See id. at that the Proclamation violates the non-delega24097. tion doctrine and the Property Clause because it is ″without meaningful limitation.″ See id. PP 167-68. Page 10 of 13 185 F. Supp. 2d 18, *26; 2001 U.S. Dist. LEXIS 23856, **17 On the contrary, HN14 the Antiquities Act establishes clear standards and limitations. HN15 The Antiquities Act details the types of objects that can be included in monuments and a method for determining the size of monuments. See 16 U.S.C. § 431. Even if standards and limitations are somewhat broad, ″Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors.″ Touby v. United States, 500 U.S. 160, 165, 114 L. Ed. 2d 219, 111 S. Ct. 1752 (1991). [**18] Therefore, the Antiquities Act represents a proper delegation of congressional authority to the President under the Property Clause. Hagan v. Utah, 510 U.S. 399, 412, 127 L. Ed. 2d 252, 114 S. Ct. 958 (1994). NFMA also requires the Secretary of Agriculture to manage the Forest System lands, ensuring that the [*27] uses of these lands comply with other statutes. See 16 U.S.C. § 1600 et seq. In 1978, after the enactment of NFMA, the Supreme Court commented on the use of the Antiquities Act: HN17 ″A reservation under the Antiquities Act means no more than that the land is shifted from one federal use, and perhaps from one federal managing agency, to another.″ California , 436 U.S. at 40. The Court explained that the Antiquities Act gives the President discretion to create a national monument and reserve land for its use. See id. FurIn addition, as described above, President Clin- thermore, the Court specified that the terms of ton’s Proclamation has meaningful limitations and the Antiquities Act include federal lands follows the standards delineated by Con- ″owned or controlled by the United States that gress in the Antiquities Act. See subsection may already have been designated for a spe″A″ supra; 65 Fed. Reg. 24095-97. Accordcific management purpose. [**20] ″ See id. ingly, the Proclamation also does not violate the Property Clause of the Constitution. In conclu2. Analysis sion, the court dismisses Count Five. In creating the Giant Sequoia National MonuD. The Court Dismisses Count Six Because the ment, President Clinton did not withdraw land Proclamation Does Not Violate the Na- from the national forest system, though he tional Forest Management Act did withdraw land from disposition under public land laws, such as the sale and leasing of In Count Six, the plaintiffs allege that the Proclamation violates NFMA by wrongfully with- the land. See 65 Fed. Reg. at 24096. The Proclamation establishes that the Monument land drawing land from the National Forest System. will have dual status as a monument and a part See Compl. PP 169-75; 16 U.S.C. §§ 472a (a) and 1600 et seq. This Count fails to state a of the Sequoia National Forest. See id. at 24098. In addition, the Proclamation explicitly claim on which relief could be granted because the Proclamation does not remove the states that the Secretary of Agriculture, Monument land from the National Forest Sys- through the Forest Service, shall manage the Monument and the underlying forest pursuant to tem. applicable legal authorities. See id. at 24097; 16 U.S.C. § 1600 et seq. 1. The National Forest Management Act HN16 The National Forest Management Act of 1976 states that no land reserved from the public domain as a national forest can ″be returned to the public [**19] domain except by an Act of Congress.″ See 16 U.S.C. § 1609(a). The Supreme Court has defined public domain as referring to land available for sale or settlement under homestead laws, or other types of dispositions pursuant to land laws. See Enacted by Congress 70 years after the Antiquities Act, HN18 NFMA does not limit the President’s authority under the Antiquities Act by prohibiting proclamations that reserve land in Page 11 of 13 185 F. Supp. 2d 18, *27; 2001 U.S. Dist. LEXIS 23856, **20 national forests as monuments. 2 The Proclamation complies with NFMA because it does not withdraw land from the National Forest System, the Secretary of Agriculture will continue to manage the land in question, and it states that the management of the [**21] Monument must comply with existing laws. See 65 Fed. Reg. 24095; 16 U.S.C. § 1600 et seq. Count Six fails to state a claim on which relief could be granted because the Proclamation in no way violates NFMA. E. The Court Dismisses Counts Seven and Eight Because the APA and NEPA Do Not Apply to Presidential Actions The court dismisses Counts Seven and Eight for lack of subject-matter jurisdiction because the Counts wrongly allege a right to judicial review pursuant [**22] to the APA and the NEPA. 1. The Administrative Procedure Act and the National Environmental Policy Act HN20 The Administrative Procedure Act, 5 U.S.C. § 701 et seq., provides: ″A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review.″ 5 U.S.C. § 702 (emphasis added). This provision requires a complainant to ″identify some [particular] ’agency action,’″ and ″the ’agency action’ in question must be ’final agency action,’″ Lujan v. National Wildlife Fed’n., 497 U.S. 871, 882, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990) (internal citations omitted). HN21 The National [*28] Environmental Policy Act also applies specifically to federal agencies, making no mention of presidential actions. See 42 U.S.C. § 4321 et seq. In contrast, when Congress has imposed duties on the President, they have specifically mentioned that office. See Alaska v. Carter, 462 F. Supp. 1155, 1160 (D. Alaska 2 1978). HN22 A court has subject-matter jurisdiction to review an agency action under the APA only when a final agency [**23] action exists. See 5 U.S.C. § 704. Because the President is not a federal agency within the meaning of the APA, presidential actions are not subject to review pursuant to the APA. See Dalton v. Specter, 511 U.S. 462, 470, 128 L. Ed. 2d 497, 114 S. Ct. 1719 (1994); Franklin v. Massachusetts, 505 U.S. 788, 800, 120 L. Ed. 2d 636, 112 S. Ct. 2767-01 (1992); Armstrong v. Bush, 288 U.S. App. D.C. 38, 924 F.2d 282, 289 (D.C. Cir. 1991); 5 U.S.C. §§ 701(b)(1), 551(1). Applying similar logic, HN23 the President is not a federal agency for the purposes of NEPA. See Alaska, 462 F. Supp. at 1159-60; Armstrong, 924 F.2d at 289; c.f. Franklin, 505 U.S. at 800-01. Consequently, ″the President is not subject to the impact statement requirement of NEPA when exercising his power to proclaim national monuments under the Antiquities Act.″ See id. On a separate point, HN24 courts will deem agency action final if (1) the action ″mark[s] the ’consummation’ of the agency’s decisionmaking process,″ and (2) the action determines ″rights or obligations″ or resolves issues ″from which legal consequences . . . flow.″ Bennett v. Spear , 520 U.S. 154, 177, 137 L. Ed. 2d 281, 117 S. Ct. 1154-78 (1997) [**24] (internal citations omitted). The D.C. Circuit has explained further that final agency action must not be of a tentative or interlocutory nature. See Appalachian Power Co. v. E.P.A., 341 U.S. App. D.C. 46, 208 F.3d 1015, 1022 (D.C. Cir. 2000). 2. Analysis In Count Seven, the plaintiffs charge that the Proclamation leaves the Monument within the National Forest System, and therefore the Monument land is subject to the NFMA planning Had Congress intended to limit Presidents’ uses of the Antiquities Act, it could have done so as it did in the Weeks Act. See 16 U.S.C. § 521. With the Weeks Act, Congress required that certain lands be permanently reserved and administered as national forest lands. See id. This type of explicit language is absent from section 1609 of NFMA. HN19 In no way does section 1609 demonstrate a congressional intent to repeal the Antiquities Act as it applies to national forest lands. Page 12 of 13 185 F. Supp. 2d 18, *28; 2001 U.S. Dist. LEXIS 23856, **24 and administrative appeal process. 3 See Compl. P 180. In both Counts Seven and Eight, the plaintiffs seek relief pursuant to the APA, alleging that the Forest Service’s management of the Monument violates the NFMA (Count Seven) and the NEPA (Count Eight). See Compl. PP 176-92. Also, in both Counts, the plaintiffs specifically refer to the Forest Service’s current management of the Monument, which is occurring pursuant to the Clinton Proclamation, until the Secretary of Agriculture devises a formal plan. See Compl. PP 181, 184, 187, 189; 65 Fed. Reg. at 24097. A memorandum from the Forest Supervisor and a ″background document″ allegedly govern the current management. See Compl. PP 181, 189. The plaintiffs do not allege that [**25] any of the management changes that have been instituted are not mandated by the Proclamation. See generally Compl. Counts Seven and Eight both request judicial review pursuant to the APA. These Counts fail to allege jurisdiction, however, because the Forest Service is merely carrying out directives of the President, and the APA does not apply to presidential action. See Franklin, 505 U.S. at 800-01; Armstrong, 924 F.2d at 298. Any argument suggesting that this action is agency action would suggest the absurd notion that all presidential actions [*29] must be carried out by the President him or herself in order to receive the deference Congress has chosen to give to presidential action. See generally id. The court refuses to [**26] give the term ″presidential action″ such a confusing and illogical interpretation. Using this same logic, Count Eight also fails in its claim pursuant to NEPA because NEPA requires agency action, and the action in question is an extension of the President’s action. See Alaska, 462 F. Supp. at 1159 -60. Even if the action were agency action, this court could not review it under the APA because it is tentative, interlocutory, and there- fore not final action. See Appalachian Power Co. , 208 F.3d at 1022. In the Proclamation, the President directs the Secretary of Agriculture to devise a management plan for the Monument within three years, with the advice of a scientific advisory board. See 65 Fed. Reg. at 24097. Accordingly, the current management plan is merely a temporary measure acting on the President’s immediate requests and managing the forest until the agency devises a management plan. See Compl. PP 176-92; Defs.’ Ex. 7, Pls.’ Ex 2. In sum, as the APA only applies to final agency action, and NEPA only applies to agency action, Counts Seven and Eight fail because the court has no subject-matter jurisdiction over the allegations [**27] contained therein. F. The Court Dismisses Count Nine Because the Proclamation Does Not Violate Existing Rights and the Matter Is Not Ripe for Review In Count Nine, the plaintiffs allege that the Proclamation and the Forest Service’s management of the lands within the boundaries of the Monument violate plaintiff’s valid existing rights as created by the Mediated Settlement Agreement executed in 1990. See Compl. PP 193 -204; Defs.’ Ex. 8. The court dismisses this Count because the Proclamation does not violate existing rights and because the current management of the Monument is not ripe for judicial review. 4 1. The Proclamation Does Not Violate Existing Rights On its face, the Proclamation preserves existing rights by broadly asserting that ″the establishment of this monument is subject to valid existing rights.″ 65 Fed. Reg. at 24097. [**28] More specifically, the Proclamation provides for the continuing existence of uses such as tim- While the plaintiffs’ allegations and arguments in and pertaining to Count Six focus on the assertion that the Proclamation removes lands from the Sequoia National Forest, the plaintiffs’ allegations in Count Seven seem to contradict this notion. 3 4 Because the Proclamation recognizes existing rights, the court need not decide whether the MSA creates valid existing rights for the plaintiffs who were party to the MSA. Page 13 of 13 185 F. Supp. 2d 18, *29; 2001 U.S. Dist. LEXIS 23856, **28 ber sales, water rights, and grazing permits under contract or reserved as of the date of the Proclamation. See id. at 24097-98. The Proclamation also states that it will not affect existing special use authorizations. See id. at 24098. Given the plain language of the Proclamation, the plaintiffs fail to state a claim with regard to the Proclamation. for in the Proclamation. See Ohio Forestry Association, Inc., v. Sierra Club et al., 523 U.S. 726, 732, 140 L. Ed. 2d 921, 118 S. Ct. 1665-34 (1998). In addition, the plaintiffs have not pled in their complaint that any interim plan is causing them specific, imminent and certain harm. See id. at 738. Therefore, the court dismisses Count Nine. 2. The Current Management of the Monument Is Not Ripe for Judicial Review IV. CONCLUSION In their complaint, the plaintiffs also raise the possibility that the Forest Service’s current implementation of the Proclamation violates existing rights. See Compl. PP 202, 204. These claims, however, are not ripe for judicial review. HN25 The test for ripeness requires a court to ″evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration,″ Abbott Labs. v. Gardner , 387 U.S. 136, 148, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967). With respect to the ″fitness for judicial decision″ prong, a [*30] claim is not ripe for adjudication if it rests upon ″contingent future events that may not occur [**29] as anticipated, or indeed may not occur at all.″ Thomas v. Union Carbide Agric. Products Co. , 473 U.S. 568, 580, 87 L. Ed. 2d 409, 105 S. Ct. 3325-81 (1985). Similarly, with respect to the ″hardship to the parties″ prong, an abstract harm is not sufficient; there must be an immediate harm with a ″direct effect on the day-to-day business of the plaintiffs.″ Texas , 523 U.S. 296, 301, 140 L. Ed. 2d 406, 118 S. Ct. 1257 (quoting Abbott Labs. , 387 U.S. at 152) (internal citations omitted). For all these reasons, the court grants the defendants’ motion to dismiss. An order directing the parties in a manner consistent with [**30] this Memorandum Opinion is separately and contemporaneously executed and issued this 28th day of September, 2001. Ricardo M. Urbina United States District Judge ORDER GRANTING THE DEFENDANTS’ MOTION TO DISMISS For the reasons stated in this court’s Memorandum Opinion separately and contemporaneously executed and issued this 28th day of September, 2001, it is ORDERED that the defendants’ motion to dismiss is GRANTED; and it is FURTHER ORDERED that the motions to intervene and the related submissions are DENIED as moot; and it is ORDERED that the motion to appear pro hac vice is DENIED as moot. The plaintiffs cannot demonstrate ripeness with respect to their claim that the current manage- SO ORDERED. ment of the Monument violates their rights be- Ricardo M. Urbina cause the Secretary of Agriculture has not yet implemented the final management plan called United States District Judge Caution As of: February 10, 2014 2:00 PM EST Tulare County v. Bush United States Court of Appeals for the District of Columbia Circuit September 5, 2002, Argued October 18, 2002, Decided No. 01 ?53 76 Reporter: 306 F.3d 1138; 2002 US. App. LEXIS 21902; 353 US. App. DC. 312; 33 ELR 20081 TULARE COUNTY, ET AL, APPELLANT V. GEORGE W. BUSH, IN HIS OFFICIAL CA- PACITY AS PRESIDENT OF THE UNITED STATES OF ET AL, NATURAL RESOURCES DEFENSE COUN- CIL, ET AL., INTERVENORS Subsequent History: Rehearing En Banc Denied February 4, 2003, Reported at: F.3d 227. 2003 US. App. LEXIS I823. Rehearing, en banc, denied by Tu/are Countv v. Bush, 354 US. App. D. C. 325, 317 F.3d 227, 2003 US. App. LEXIS 1823 (2003) US Supreme Court certiorari denied by Tulare Countv v. Bush, 2003 US. LEMS 5536 (US, Oct. 6, 2003) Prior History: Appeal from the United States District Corut for the District of Columbia. (No. 00cv02560). Tu/are Countv v. Bush, 185 F. Supp. 2d 18, 2001 US. Dist. LEXIS 23856 (BBC. 2001) Disposition: Af?rmed. I Core Terms proclamation, monument, historic, object, land, antiquity, review, protection, scienti?c, factual allegations, authority, designate, national forest, violate, fail, claim, management, statute, landmark, public, identify, smallest, declare, part I Case Summary I Procedural Posture Appellant cormty sought review of an order of the United States District Court for the Dis- trict of Columbia, which dismissed the coun- ty?s complaint challenging a Presidential Proc- lamation under the Antiquities Act of 1906 (Act). Overview President Clinton established by Proclamation the Giant Sequoia National Monument pru?su? ant to his authority rmder the Act. The corm- ty?s ?rst claim assumed that the Act required the President to include a certain level of detail in the Proclamation. The court, however, formd that no such requirement existed. By identify- ing historic sites and objects of scienti?c inter- est located within the designated lands, the Proclamation adverted to the statutory stan- dard. The second claim alleged that the Presi- dent designated nonqualifying objects for pro- tection. However, inclusion of such items as ecosystems and scenic vistas in the Proclama- tion did not contravene the terms of the statute by relying on nonqualifying features. The third claim alleged that no one in the Clinton Ad- ministration made a meaningful investigation or determination of the smallest area necessary to protect any speci?cally identi?ed objects of genuine historic or scienti?c interest. The Act, however, did not impose upon the President an obligation to make any particular investiga- tion. Fruther, the claim that the Proclamation violated the Proper-n2 Clause failed because no Propertv Clause was before the corut. Outcome The district corut?s order was affnmed. Page 2 of 6 306 F.3d 1138, *1138; 2002 U.S. App. LEXIS 21902, **1 LexisNexis® Headnotes Governments > Federal Government > Property Real Property Law > Zoning > Historic Preservation Constitutional Law > Relations Among Governments > General Overview Constitutional Law > Relations Among Governments > Federal Territory & New States Real Property Law > Zoning > Historic Preservation HN6 The Antiquities Act includes intelligible HN1 The Antiquities Act provides, in part, that principles to guide the President’s action. the President, in his discretion may declare historic landmarks and other objects of historic or Environmental Law > Natural Resources & Public scientific interest situated upon federal lands Lands > Forest Management Governments > Federal Government > Property to be national monuments, and may reserve parGovernments > Public Lands > General Overview cels of land confined to the smallest area comGovernments > Public Lands > Forest Lands patible with the proper care and management of the objects to be protected. 16 U.S.C.S. HN7 The National Forest Management Act of § 431. 1976 provides that no national forest land shall be returned to the public domain except by Governments > Federal Government > Executive Of- an act of Congress . 16 U.S.C.S. § 1609(a). fices Real Property Law > Zoning > Historic Preservation HN2 The Antiquities Act authorizes the President, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest. 16 U.S.C.S. § 431. Administrative Law > Judicial Review > Reviewability > Jurisdiction & Venue Environmental Law > Natural Resources & Public Lands > National Environmental Policy Act > General Overview Environmental Law > Natural Resources & Public Lands > Forest Management Governments > Federal Government > Executive Offices Governments > Federal Government > Executive Offices HN8 Presidential actions are not subject to AdReal Property Law > Zoning > Historic Preservation ministrative Procedure Act review. HN3 The Antiquities Act provides that, in addition to historic landmarks and structures, Counsel: Gary G. Stevens argued the cause other objects of historic or scientific interest and filed the briefs for appellants. may qualify, at the President’s discretion, for protection as monuments. 16 U.S.C.S. § 431. Susan Pacholski, Attorney, U.S. Department of Justice, argued the cause for appellees. With her Civil Procedure > Appeals > Standards of Reon the brief were Ellen J. Durkee, Michael view > General Overview Gheleta and Ann Navaro, Attorneys, U.S. DeHN4 Although in reviewing the dismissal of a partment of Justice. complaint the court must take all factual allegations in the complaint as true, the court is not Andrew E. Wetzler argued the cause for intervenors Natural Resources Defense Council, et bound to accept as true a legal conclusion al. With him on the brief were Nathaniel S.W. couched as a factual allegation. Lawrence, Michael R. Sherwood, Anne Harper Governments > Federal Government > Executive Of- and James S. Pew. fices Real Property Law > Zoning > Historic Preservation HN5 The Antiquities Act does not impose upon the President an obligation to make any particular investigation. Raissa S. Lerner, Deputy Attorney General, Attorney General’s Office of the State of California, argued the cause for intervenor People of the State of California. With her on the brief were Bill Lockyer, Attorney General, Richard Page 3 of 6 306 F.3d 1138, *1138; 2002 U.S. App. LEXIS 21902, **1 M. Frank, Chief Assistant Attorney General and Theodora Berger, Senior Assistant Attorney General. Judges: Before: EDWARDS and ROGERS, Circuit Judges, and WILLIAMS, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge ROGERS. Opinion by: ROGERS Opinion [*1140] ROGERS, Circuit Judge: This is the second case we decide today involving a challenge to Presidential authority under the [**2] Antiquities Act of 1906 (″Act″), 16 U.S.C. § 431 (2000). In Mountain States v. Bush, 306 F.3d 1132, 1133 (D.C. Cir. 2002), the court, upon de novo review, affirmed the dismissal of the complaint, holding that the complaint, which challenged a series of monument designations under the Act, contained insufficient factual allegations under Federal Rule of Civil Procedure 8(a) to trigger ultra vires review of the President’s Proclamations. Id. at 1137. The court also held that the complaint failed as a matter of law insofar as it alleged that the Proclamations violated the plain terms of the Antiquities Act and other federal statutes. Id. at 1137. We likewise hold, upon de novo review, that the complaint in the instant case fails for the same reasons. Accordingly, we affirm the dismissal of the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). I. In April 2000 President Clinton established by proclamation the Giant Sequoia National Monument pursuant to his authority under the Antiquities Act. Proclamation [**3] 7295, 65 Fed. Reg. 24,095 (Apr. 15, 2000). The Monument, which encompasses 327,769 acres of land in the Sequoia National Forest in southcentral California, contains groves of giant sequoias, the world’s largest trees, and their surrounding ecosystem. Id. at 24,095-97, 24,100. Tulare County, which contains land near and within the Grand Sequoia National Monument (″Monument″), along with a number of other public and private entities that use the Monument area for business or recreational purposes (hereinafter ″Tulare County″), filed a complaint seeking declaratory and injunctive relief. Tulare County alleged that the Proclamation violated various provisions of the Antiquities Act and the Property Clause of the Constitution, as well as the National Forest Management Act, the National Environmental Policy Act, and the parties’ existing rights under a prior mediated settlement agreement. The district court, concluding that only facial review was appropriate, dismissed the complaint. Tulare County v. Bush , 185 F. Supp. 2d 18 (D.D.C. 2001). II. On appeal, Tulare County contends that in dismissing its complaint prior to discovery, the [**4] district court erred in failing to accept as true the facts alleged in the complaint and in limiting its review to the face of the Proclamation rather than reviewing the President’s discretionary factual determinations. Tulare County does not contend that the President lacks authority under the Antiquities Act to proclaim national monuments like Giant Sequoia, as the Supreme Court has long upheld such authority. Cappaert v. United States , 426 U.S. 128, 142, 48 L. Ed. 2d 523, 96 S. Ct. 2062 (1976); Cameron v. United States , 252 U.S. 450, 455, 64 L. Ed. 659, 40 S. Ct. 410 (1920). Rather, in Counts 1-4 of the complaint, Tulare County alleged that the Proclamation violated the Antiquities Act because it: (1) failed to identify the objects of historic or [*1141] scientific interest with reasonable specificity; (2) designated as the basis for the Monument objects that do not qualify under the Act; (3) did not confine the size of the Monument ″to the smallest area compatible with proper care and management of the objects to be protected,″ 16 U.S.C. § 431; and (4) increased the likelihood of harm by fires to any objects of alleged historic or [**5] scientific interest within the Monument rather than protecting those objects. In Count 5, Tulare County argued that, absent judicial review of the President’s action under the Antiqui- Page 4 of 6 306 F.3d 1138, *1141; 2002 U.S. App. LEXIS 21902, **5 ties Act, the statute constitutes an unconstitutional delegation of congressional authority. The remaining counts alleged that other federal statutes barred the Proclamation and that the Proclamation violated extant legal rights arising from a mediated settlement agreement with the National Forest Service prior to the Proclamation. HN1 The Antiquities Act provides, in relevant part, that the President, ″in his discretion″ may declare ″historic landmarks … and other objects of historic or scientific interest … situated upon [federal] lands … to be national monuments, and may reserve … parcels of land … confined to the smallest area compatible with the proper care and management of the objects to be protected….″ 16 U.S.C. § 431. The court pointed out in Mountain States, after reviewing Supreme Court authority discussing the scope of judicial review of discretionary Presidential decisionmaking, that the court ″is necessarily sensitive to pleading requirements where, as [**6] here, it is asked to review the President’s actions under a statute that confers very broad discretion on the President and separation of powers concerns are presented.″ Mountain States , 306 F.3d at 1137. Acknowledging that Congress has entrusted the courts with responsibility for determining the limits of statutory grants of authority, id. at 1136, the court nonetheless declined to engage in ultra vires review in light of the absence of allegations or arguments in the record to indicate any infirmity in the challenged Proclamations. Id . at 1137. Consequently, we review Tulare County’s complaint to determine whether it contains factual allegations to support an ultra vires claim that would demonstrate the district court erred in declining to engage in a factual inquiry to ensure that the President complied with the statutory requirements. jects of historic or scientific interest.″ 16 U.S.C. § 431. The Presidential declaration at issue complies with that standard. The Proclamation lyrically describes ″magnificent groves of towering giant sequoias,″ ″bold granitic domes, spires, and plunging gorges,″ ″an enormous number of habitats,″ ″limestone caverns and … unique paleontological resources documenting tens of thousands of years of ecosystem change,″ as well as ″many archaeological sites recording Native American occupation … and historic remnants of early Euroamerican settlement.″ Proclamation at 24,095. By identifying historic sites and objects of scientific interest located within the designated lands, the Proclamation adverts to the statutory standard. Hence, Count I fails as a matter of law. Count 2 alleges that the President has designated nonqualifying objects for protection. HN3 The Antiquities Act provides that, in addition to historic landmarks and structures, ″other objects of historic or scientific interest″ may qualify, at the President’s discretion, for protection as [*1142] monuments. 16 U.S.C. § 431. Inclusion of such items as ecosystems [**8] and scenic vistas in the Proclamation did not contravene the terms of the statute by relying on nonqualifying features. In Cappaert , 426 U.S. at 141-42, the Supreme Court rejected a similar argument, holding that the President’s Antiquities Act authority is not limited to protecting only archeological sites. As relevant to Count 3 of the complaint, the Proclamation states that the Monument’s 327,769-acre size ″is the smallest area compatible with the proper care and management of the objects to be protected.″ Proclamation at 24,097. It also states that the sequoia groves are not contiguous but instead comprise part of a spectrum of interconnected ecosystems. Id. TuCount 1 of Tulare County’s complaint is pre- lare County alleges that no one in the Clinton mised on the assumption that the Antiquities Act Administration ″made any meaningful investigation or determination of the smallest area necrequires the President to include a certain essary to protect any specifically identified oblevel of detail in the Proclamation. No such rejects of genuine historic or scientific interest.″ quirement exists. HN2 The Act authorizes the Compl. P 149. Instead, it alleges, President ClinPresident, ″in his discretion, to declare by pubton ″bowed to political pressure … in designatlic proclamation historic landmarks, historic ing a grossly oversized Monument unnecesand [**7] prehistoric structures, and other ob- Page 5 of 6 306 F.3d 1138, *1142; 2002 U.S. App. LEXIS 21902, **8 sary for the protection of any objects of genuine historic or scientific interest.″ Compl. P 150. This allegation is a legal conclusion [**9] couched as a factual allegation. HN4 ″Although in reviewing the dismissal of a complaint the court must take ’all factual allegations in the complaint as true,’ the court is ’not bound to accept as true a legal conclusion couched as a factual allegation.’ ″ Mountain States, 306 F.3d at 1137 (quoting Papasan v. Allain , 478 U.S. 265, 286, 92 L. Ed. 2d 209, 106 S. Ct. 2932 (1986)). Contrary to the assumption underlying Count 3, HN5 the Antiquities Act does not impose upon the President an obligation to make any particular investigation. And to the extent that Tulare County alleges that the Proclamation designates land that should not be included within the Monument, the complaint fails to identify the improperly designated lands with sufficient particularity to state a claim. Id. Insofar as Tulare County alleges that the Monument includes too much land, i.e., that the President abused his discretion by designating more land than is necessary to protect the specific objects of interest, Tulare County does not make the factual allegations sufficient to support its claims. This is particularly so as its claim that the Proclamation covered too much land is [**10] dependent on the proposition that parts of the Monument lack scientific or historical value, an issue on which Tulare County made no factual allegations. Cf. Dalton v. Specter, 511 U.S. 462, 473-74, 128 L. Ed. 2d 497, 114 S. Ct. 1719 (1994); United States v. George S. Bush & Co. , 310 U.S. 371, 379, 84 L. Ed. 1259, 60 S. Ct. 944 (1940). Count 4 of the complaint alleges that the Monument designation actually increases the risk of harm from fires to many of the objects that the Proclamation aims to protect. However, the Proclamation expressly addresses the threat of wildfires and the need for forest restoration and protection. The Proclamation observes that forest renewal is needed because environmental change ″has led to an unprecedented failure in sequoia reproduction,″ and that ″a century of fire suppression and logging″ has created ″an increased hazard of wildfires of a severity that was rarely encountered in pre-Euroamerican times.″ Proclamation at 24,095. Count 4 contains no factual allegations, only conclusions, see, e.g., Compl. P 160, and it refers to current management rather than the designation under the Proclamation as the cause for [**11] likely increases in catastrophic fires, Compl. P 159. Count 5, alleging that if judicial review is not available under the Antiquities [*1143] Act then the Act violates the Property Clause of the Constitution as an improper delegation of congressional authority to the President, fares no better. As the court held in Mountain States, ″no Constitutional Property Clause claim is before us, as the President exercised his delegated powers under the Antiquities Act, and HN6 that statute includes intelligible principles to guide the President’s action.″ 306 F.3d at 1137 (citing Whitman v. Am. Trucking Ass’ns, Inc ., 531 U.S. 457, 474, 149 L. Ed. 2d 1, 121 S. Ct. 903 (2000); Dalton, 511 U.S. at 473-74 & n.6). Tulare County’s remaining contentions, involving other federal statutes and contractual rights, fail as a matter of law. Contrary to Count 6 of the complaint, the Proclamation does not violate the National Forest Management Act of 1976 (″NFMA″), Pub. L. No. 94-588, 90 Stat. 2949 (codified as amended in scattered sections of 16 U.S.C.) (2000), by unlawfully withdrawing land from the national forest system. HN7 The NFMA provides that no national forest [**12] land ″shall be returned to the public domain except by an act of Congress.″ 16 U.S.C. § 1609(a). The Proclamation states that ″all federal lands and interests in lands within the boundaries of this monument are hereby appropriated and withdrawn from entry, location, selection, sale, leasing, or other disposition under the public land laws….″ Proclamation at 24,097. The Proclamation also states that ″nothing in this proclamation shall be deemed to revoke any existing withdrawal, reservation, or appropriation; however, the national monument shall be the dominant reservation.″ Id. at 24,098. The Proclamation thus conceives of the designated land as having a dual status as part of both the Monument and Page 6 of 6 306 F.3d 1138, *1143; 2002 U.S. App. LEXIS 21902, **12 the Sequoia National Forest. Cameron , 252 U.S. at 455; Tulare County , 185 F. Supp. 2d at 27. Compare United States v. California , 436 U.S. 32, 40, 56 L. Ed. 2d 94, 98 S. Ct. 1662 (1978). The Proclamation is therefore wholly consistent with NFMA. Tulare County alleges alternatively, in Counts 7 and 8, that if the Proclamation did not remove land from the national forest system, then the current management of the [**13] Monument by the National Forest Service violates the NFMA and the National Environmental Policy Act of 1969 (″NEPA″), 42 U.S.C. § 4332 (2000). Neither NFMA nor NEPA provides a cause of action, so the claims must be brought under the Administrative Procedure Act (″APA″), 5 U.S.C. § 702 (2000). Because HN8 Presidential actions, of course, are not subject to APA review, Franklin v. Massachusetts , 505 U.S. 788, 800-01, 120 L. Ed. 2d 636, 112 S. Ct. 2767 (1992), Tulare County attempts to overcome this bar by challenging the non-presidential actions of the Forest Service, referring to two Forest Service documents--an internal Forest Service memorandum interpreting the Proclamation and an interim plan that directs the day-to-day management of the Monument--allegedly showing that the Service is not acting consistently with the Proclamation. Although Tulare County refers to the existence of foresters on the ground, the complaint does not identify these foresters’ acts with sufficient specificity to state a claim. Finally, regarding Count 9, the Proclamation explicitly states that ″the establishment of the monument is subject to valid [**14] existing rights.″ Proclamation at 24,097. Tulare County alleges that the Proclamation violates existing rights that were established by the Mediated Settlement Agreement in 1990, which provided that commercial logging would continue to be available in the Converse Basin area of the Monument. Tulare County ignores the fact that the settlement agreement did not create in any of the parties a right to [*1144] actual timber harvest, cf. Ohio Forestry Ass’n v. Sierra Club , 523 U.S. 726, 733, 140 L. Ed. 2d 921, 118 S. Ct. 1665 (1998), and it failed to allege that any of the appellants possess a contract for timber harvest. The allegation that the Proclamation violates the Sequoia National Forest Trail Plan likewise fails for lack of sufficient particularity. Accordingly, because ″at no point has [Tulare County] presented factual allegations that would occasion … ultra vires review of the Proclamation[]″ Mountain States, 306 F.3d at 1137, we affirm the dismissal of the complaint. 9 Positive As of: February 10, 2014 1:54 PM EST Utah Ass?n of Counties v. Bush United States District omt for the District of Utah, Central Division April 19, 2004, Decided Case No. Reporter: 316 F. Supp. 2d 1172; 2004 US. Dist. LEXIS 9865; 11 A.L.R. Fed. 2d 917 UTAH ASSOCIATION OF COUNTIES, on be- half of its members, Plaintiffs, vs. GEORGE W. BUSH, in his of?cial capacity as PRESIDENT OF THE UNITED STATES, et al., Defendants. and SOUTHERN UTAH WILDERNESS ALLI- ANC E, et al., Defendants-Intelvenors. MOUN- TAIN STATES LEGAL FOUNDATION, on be- half of its members, Plaintiffs, vs. GEORGE W. BUSH, in his of?cial capacity as PRESIDENT OF THE UNITED STATES, et al., Defendants. and SOUTHERN UTAH WILDERNESS ALLI- AN CE, et al., Defendants-Inteivenors. Subsequent History: Appeal dismissed by Utah Ass?n of Counties v. Bush, 455 F.3d 1094, 2006 US. Am). LEAYS 18547 (10th Cir. Utah, July 24, 20062 Prior History: Utah Ass ?11 of Counties v. Clin- ton, 255 F.3d 1246, 2001 US. App. LEUS 15533 (10th Cir. Utah, 200]) Disposition: Defendants? Motion to Dismiss and in the alternative motion for Sum- mary Judgment plaintiffs? Mo- tions for Slunmary Judgment DENIED in their entirety. I Core Terms authority, monument, antiquity, wilderness, land, delegate, designate, national, creating, staircase, agency, judicial review, withdrawal, mteiior, violation, requirements, statute, proclamation, agency?s action, presidential, right of action, recommend, protection, public, rev1ew, object, executive order, exerc1se, law I Case Summary I Procedural Posture Plaintiff c01mties and others sued defendant United States President and various federal agencies and of?cials, alleging that the Antiqui- ties Act of 1906, 16 U.S.C.S. 66 431-433 vio- lated the delegation doctrine, that creation of the Grand Staircase Monument was ultra vires and violated the Property and Spending Clauses, and various federal laws. Defendants moved to dismiss or for smnmary judgment. Plaintiffs moved for summaly judgment. Overview The case concerned the designation of 1.7 mil- lion acres of federal land as a national monu- ment pursuant to the Antiquities Act. Inter alia, the court held that the President complied with the Antiquities Act by (1) designating, in his discretion, objects of scienti?c or historic value, and (2) setting aside, in his discretion, the smallest area necessaiy to protect the ob- jects. These facts compelled a ?nding in favor of the President?s actions. Supreme Comt prec- edent instructed that judicial review in these cir- cumstances was at best limited to ascertaining that the President in fact invoked his powers 1m- der the Antiquities Act. Beyond such a facial re- view the comt was not permitted to go. The Antiquities Act?s virtually unlimited grant of dis- cretion to the President was a proper constitu- tional grant of authority and stood as valid law. Claims based on other federal acts were of no Page 2 of 33 316 F. Supp. 2d 1172, *1172; 2004 U.S. Dist. LEXIS 9865, **1 merit because the statutes did not provide for a private right of action and the Administrative Procedure Act required, in such cases, a finding of final agency action. The President was not an agency, and the other defendants were only assisting the President in the execution of his discretion. Outcome The court granted defendants’ motion to dismiss or for summary judgment. LexisNexis® Headnotes Governments > Federal Government > Property Real Property Law > Zoning > Historic Preservation HN1 The Antiquities Act of 1906, 16 U.S.C.S. §§ 431-433, gives the President of the United States authority to create national monuments. The Antiquities Act authorizes the President, ″in his discretion,″ to establish as national monuments objects of historic or scientific interest that are situated upon the lands owned or controlled by the government of the United States . The Act requires the president to reserve land confined to the smallest area compatible with the proper care and management of the objects to be protected. Real Property Law > Zoning > Historic Preservation HN2 See 16 U.S.C.S. § 431. Energy & Utilities Law > Mining Industry > Mineral Leases > General Overview Environmental Law > Natural Resources & Public Lands > Federal Land Management Governments > Federal Government > Property Real Property Law > Zoning > Comprehensive Plans HN3 The Wilderness Act, 16 U.S.C.S. §§ 113136, directed the Secretary of Agriculture and the Secretary of the Interior to review certain lands within their jurisdictions and make recommendations as to their suitability for wilderness classification. 16 U.S.C.S. § 1132(d)(1). The areas to be studied were identified as Wilderness Study Areas (WSAs). 16 U.S.C.S. § 1131. Once the lands were inventoried, BLM was to conduct a study of each WSA, pursuant to § 603 , 43 U.S.C.S. § 1782, of Federal Land Policy and Management Act (FLPMA), 43 U.S.C.S. § 1701 et seq. The Bureau of Land Management would then make a recommendation to the President, who in turn would recommend to Congress whether any of the WSAs should be designated as wilderness. Until such designation occurs, the administering agency is to manage the WSAs so as not to impair their suitability for possible wilderness classification by Congress . 16 U.S.C.S. § 1133. Once an area receives actual wilderness status, commercial enterprises, roads, motorized equipment, mining, and oil and gas leasing are prohibited in the wilderness area. Constitutional Law > Separation of Powers Governments > Federal Government > Executive Offices HN4 When the President is given such a broad grant of discretion as in the Antiquities Act of 1906, 16 U.S.C.S. §§ 431-433, the courts have no authority to determine whether the President abused his discretion. To do so would impermissibly replace the President’s discretion with that of the judiciary. Civil Procedure > ... > Subject Matter Jurisdiction > Jurisdiction Over Actions > General Overview Constitutional Law > The Judiciary > Jurisdiction > General Overview Environmental Law > Natural Resources & Public Lands > Federal Land Management Real Property Law > Zoning > Comprehensive Plans HN5 A federal district court has the authority to review whether the President’s actions violated the United States Constitution or another federal statute, such as the Wilderness Act, 16 U.S.C.S. §§ 1131-36. Administrative Law > Judicial Review > Reviewability > Reviewable Agency Action Administrative Law > Separation of Powers > Legislative Controls > General Overview Constitutional Law > Congressional Duties & Powers > Spending & Taxation Constitutional Law > Relations Among Governments > General Overview Constitutional Law > Relations Among Governments > Federal Territory & New States Governments > Federal Government > Executive Offices Governments > Federal Government > US Congress Page 3 of 33 316 F. Supp. 2d 1172, *1172; 2004 U.S. Dist. LEXIS 9865, **1 Governments > Legislation > Enactment Real Property Law > Zoning > Historic Preservation HN6 According to the United States District Court for the District of Utah, Central Division, Congress clearly had the authority to pass the Antiquities Act of 1906, 16 U.S.C.S. §§ 431-433. It is a proper constitutional grant of authority to the President. The Act itself, and the President’s designations pursuant to the Act, are not inconsistent with the Constitution’s Property Clause, Spending Clause, or the delegation doctrine; nor is the President’s Proclamation in violation of the Wilderness Act or any other federal statute. No statute passed after the Antiquities Act has repealed or amended the Antiquities Act. It stands as valid law. Only Congress has the power to change or revoke the Antiquities Act’s grant of virtually unlimited discretion to the President. Governments > Federal Government > Executive Offices Real Property Law > Zoning > Historic Preservation HN9 Executive Order 10355 by its express terms does not eliminate the President’s authority, as granted specifically to the President by Congress . Furthermore, by specifically exempting the Antiquities Act from the reach of Federal Land Policy and Management Act (FLPMA), 43 U.S.C.S. § 1701 et seq., for example, Congress reaffirmed that the Antiquities Act was to continue to not be subjected to requirements that must be followed by lowerlevel executive officials. Whatever else may by said about the possible reach of Executive Order 10355, it is undisputed that since its passage in 1952 there have been 20 presidential proclamations creating national monuments and none have transferred the exercise of withdrawal authority to the Secretary of the Interior. Administrative Law > Judicial Review > Reviewability > Jurisdiction & Venue Civil Procedure > US Supreme Court Review > General Overview Constitutional Law > Separation of Powers Governments > Federal Government > Executive Offices HN7 Exec. Order No. 10355, adopted by the Executive Branch in 1952, did not eliminate the President’s withdrawal authority under the An- HN10 While there has been some debate among the United States Supreme Court justiquities Act. tices as to whether judicial review of executive Constitutional Law > Separation of Powers actions by the President are subject to judiGovernments > Federal Government > Executive Ofcial review at all, recent judgments have indifices cated the Court’s willingness to engage in a narrowly circumscribed form of judicial review. HN8 The President has no law-making authority. The use of executive orders may be employed by the President in carrying out his constitutional obligation to see that the laws are faithfully executed and to delegate certain of his duties to other executive branch officials, but an executive order cannot impose legal requirements on the executive branch that are inconsistent with the express will of Congress . Civil Procedure > ... > Justiciability > Standing > General Overview Constitutional Law > Separation of Powers Governments > Federal Government > General Overview Governments > Federal Government > Executive Offices Governments > Federal Government > Property Administrative Law > Judicial Review > Reviewability > Preclusion Constitutional Law > The Judiciary > Jurisdiction > General Overview Constitutional Law > Separation of Powers HN11 Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction, that the statute constitutes him the sole and exclusive judge of the existence of those facts. For the judiciary to probe the reasoning which underlies the exercise of such discretion would amount to a clear invasion of the legislative and executive domains. Page 4 of 33 316 F. Supp. 2d 1172, *1172; 2004 U.S. Dist. LEXIS 9865, **1 Administrative Law > Judicial Review > Reviewability > Preclusion Constitutional Law > The Judiciary > Jurisdiction > General Overview Constitutional Law > Separation of Powers Governments > Federal Government > Executive Offices HN12 A grant of discretion to the President to make particular judgments forecloses judicial review of the substance of those judgments altogether: Where a claim concerns not a want of Presidential power, but a mere excess or abuse of discretion in exerting a power given, it is clear that it involves considerations which are beyond the reach of judicial power. This must be since the judicial may not invade the legislative or executive departments so as to correct alleged mistakes or wrongs arising from asserted abuse of discretion. HN16 A court generally has recourse to congressional intent in the interpretation of a statute only when the language of a statute is ambiguous. The ″strong presumption″ that the plain language of the statute expresses congressional intent is rebutted only in ″rare and exceptional circumstances,″ when a contrary legislative intent is clearly expressed. Administrative Law > Judicial Review > General Overview Administrative Law > Judicial Review > Reviewability > Reviewable Agency Action Administrative Law > Judicial Review > Reviewability > Standing Environmental Law > Administrative Proceedings & Litigation > Judicial Review Environmental Law > Natural Resources & Public Lands > National Environmental Policy Act > General Overview HN17 The National Environmental Policy Act (NEPA), 42 U.S.C.S. § 4332 et seq., supplies no private right of action. If an agency to which NEPA applies has violated its requirements, an aggrieved party must bring its complaint within the mechanism supplied by the AdminisHN13 Although judicial review is not avail- trative Procedure Act (APA). The APA perable to assess a particular exercise of presiden- mits judicial review of final agency action for tial discretion, a court may ensure that a presi- which there is no other adequate remedy in a dent was in fact exercising the authority court. 5 U.S.C.S. § 704. In order for a violaconferred by the act at issue. tion of NEPA to be redressable at law, therefore, the violation of which a plaintiff comGovernments > Federal Government > Property plains must form an element of a final Real Property Law > Zoning > Historic Preservation agency action subject to judicial review under the APA. HN14 See 16 U.S.C.S. § 431. Constitutional Law > The Judiciary > Jurisdiction > General Overview Constitutional Law > Separation of Powers Governments > Federal Government > Executive Offices Real Property Law > Zoning > Historic Preservation HN15 The plain language of the Antiquities Act of 1906, 16 U.S.C.S. §§ 431-433, empowers the President to set aside objects of historic or scientific interest. 16 U.S.C.S. § 431. The Act does not require that the objects so designated be made by man, and its strictures concerning the size of the area set aside are satisfied when the President declares that he has designated the smallest area compatible with the designated objects’ protection. Governments > Legislation > General Overview Governments > Legislation > Interpretation Real Property Law > Zoning > Historic Preservation Administrative Law > Judicial Review > General Overview Administrative Law > Judicial Review > Reviewability > Reviewable Agency Action Environmental Law > Administrative Proceedings & Litigation > Judicial Review HN18 In order for an agency’s action to have that degree of finality that is amenable to judicial review under the Administrative Procedure Act, it must have some immediate effect beyond that of a recommendation: the action is final agency action only when the agency’s action itself has a direct effect on the day-today business of the persons or entities affected by the action. Page 5 of 33 316 F. Supp. 2d 1172, *1172; 2004 U.S. Dist. LEXIS 9865, **1 HN21 The United States Supreme Court summarily dismisses the possibility that the President is an agency within the meaning of the Administrative Procedure Act (APA). Although the definition of agency in the APA does not explicitly exclude the President, textual silence is not enough to subject the President to the provisions of the APA. It would require an express statement by Congress before assuming it intended the President’s performance of his HN19 That an agency is incapable of taking ″fi- statutory duties to be reviewed for abuse of nal agency action″ in a particular set of circum- discretion. stances can serve to insulate the agency’s preAdministrative Law > Judicial Review > General Overliminary actions resulting in final presidential view action from judicial review under the AdminAdministrative Law > Judicial Review > Reviewabilistrative Procedure Act. ity > Reviewable Agency Action Administrative Law > Judicial Review > General Overview Administrative Law > Judicial Review > Reviewability > Reviewable Agency Action Civil Procedure > US Supreme Court Review > General Overview Constitutional Law > Congressional Duties & Powers > Census > General Overview Environmental Law > Administrative Proceedings & Litigation > Judicial Review Administrative Law > Judicial Review > General Overview Administrative Law > Judicial Review > Reviewability > Factual Determinations Administrative Law > Judicial Review > Reviewability > Reviewable Agency Action Environmental Law > Administrative Proceedings & Litigation > Judicial Review Governments > Courts > Authority to Adjudicate HN20 Central to the determination whether there exists final agency action subject to review under the Administrative Procedure Act (Administrative Procedure Act) is the question whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties. When the statute does not permit the agency to act alone, but rather requires presidential action before there is any direct effect on the parties, there is no determinate agency action to challenge until the President acts. Even when the presidential action authorized by statute permits the exercise of only limited discretion, and the President will almost certainly rely quite heavily on agency recommendations, the fact that presidential action is required before there will be any effect eliminates the prospect of judicial review under the APA. Administrative Law > Judicial Review > Standards of Review > General Overview Administrative Law > Judicial Review > Standards of Review > Abuse of Discretion Environmental Law > Administrative Proceedings & Litigation > Judicial Review Governments > Courts > Authority to Adjudicate HN22 Flaws in an agency process leading to a recommendation to the President, that in turn leads to presidential action, do not convert the action of the agency, or that of the President, into action subject to judicial review under the Administrative Procedure Act(Administrative Procedure Act), since the recommendation does not constitute final agency action. Administrative Law > Judicial Review > General Overview Administrative Law > Judicial Review > Reviewability > Reviewable Agency Action Administrative Law > Judicial Review > Reviewability > Preclusion Environmental Law > Administrative Proceedings & Litigation > Judicial Review Governments > Courts > Authority to Adjudicate HN23 That an agency’s process may have been flawed is not only irrelevant for purposes of review under the Administrative Procedure Act (Administrative Procedure Act), it is also powerless to transform a presidential action based on a flawed agency recommendation into a violation of a statute conferring presidential discretion. Although judicial review might be available outside the APA for some claims that a President exceeded the authority given by some statutes, longstanding authority holds that such review is not available when the statute in question commits the decision to the dis- Page 6 of 33 316 F. Supp. 2d 1172, *1172; 2004 U.S. Dist. LEXIS 9865, **1 cretion of the President. While some agency processes leading to presidential action are insulated from judicial review by the combination of an absence of final agency action and a grant of discretion to the President, the court best fulfils its own constitutional mandate by withholding judicial relief where Congress has permissibly foreclosed it. Administrative Law > Judicial Review > Reviewability > Jurisdiction & Venue Administrative Law > Judicial Review > Reviewability > Preclusion Governments > Courts > Authority to Adjudicate HN24 Confronted by a statute expressly conferring discretion on the President, according to the United States District Court for the District of Utah, Central Division, how the President chooses to exercise the discretion Congress has granted him is not a matter for judicial review. Administrative Law > Judicial Review > Reviewability > Jurisdiction & Venue Governments > Courts > Authority to Adjudicate HN25 As the Administrative Procedure Act does not expressly allow review of the President’s actions, the court must presume that his actions are not subject to its requirements; although the President’s actions may still be reviewed for constitutionality. Administrative Law > Separation of Powers > Constitutional Controls > General Overview Administrative Law > Separation of Powers > Legislative Controls > General Overview Constitutional Law > Relations Among Governments > General Overview Constitutional Law > Relations Among Governments > Federal Territory & New States Governments > Federal Government > General Overview Governments > Federal Government > US Congress sible if Congress provides standards to guide the authorized action such that one reviewing the action could recognize whether the will of Congress has been obeyed. Administrative Law > Separation of Powers > Constitutional Controls > General Overview Administrative Law > Separation of Powers > Legislative Controls > General Overview Constitutional Law > Congressional Duties & Powers > General Overview Constitutional Law > Relations Among Governments > General Overview Constitutional Law > Relations Among Governments > Federal Territory & New States Governments > Federal Government > US Congress HN27 The Antiquities Act of 1906, 16 U.S.C.S. §§ 431-433, sets forth clear standards and limitations. The Act describes the types of objects that can be included in national monuments and a limitation on the size of monuments. 16 U.S.C.S. § 431. Although the standards are general, Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors. Accordingly, the non-delegation doctrine is not violated, nor is the Property Clause, which has repeatedly been construed as allowing Congress to delegate its authority to the executive and judicial branches, including the power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . U.S. Const. Art. IV, § 3, cl. 2. Governments > Federal Government > Executive Offices Governments > Federal Government > Property Real Property Law > Zoning > Historic Preservation HN28 The Antiquities Act of 1906, 16 U.S.C.S. §§ 431-433, requires the President to reserve objects of historic or scientific interest that are situated upon lands owned or controlled by 16 HN26 While it is true that Congress has the ex- the government of the United States U.S.C.S. § 431. press authority under the Constitution’s Property Clause to dispose of and make all needful Governments > Federal Government > Property Rules and Regulations respecting the TerriReal Property Law > Zoning > Historic Preservation tory or other Property belonging to the United Real Property Law > Zoning > Regional & State PlanStates , it is equally true that Congress may delning egate this authority as it deems appropriate, and any delegation is constitutionally permisHN29 The fact that some of the acreage within Page 7 of 33 316 F. Supp. 2d 1172, *1172; 2004 U.S. Dist. LEXIS 9865, **1 the boundaries of a national monument is clas- in the President by section 1 of the act of June sified as Wilderness Study Areas does not pre- 25, 1910 (the Pickett Act), and the authority clude its inclusion in a national monument. otherwise vested in him to withdraw or reserve lands of the public domain and other lands Administrative Law > Judicial Review > Reviewabil- owned or controlled by the United States for ity > Reviewable Agency Action public purposes. 17 Fed. Reg. 4831 (May 26, Administrative Law > Judicial Review > Reviewabil1952). The Secretary of the Interior was also auity > Jurisdiction & Venue Administrative Law > Judicial Review > Reviewabil- thorized to modify or revoke withdrawals and reservations of such lands heretofore or hereafity > Standing Civil Procedure > ... > Justiciability > Standter made. The Order further directed that all oring > General Overview ders issued by the Secretary of the Interior unConstitutional Law > ... > Case or Controder the authority of this order shall be versy > Standing > General Overview designated as public land orders and shall be Governments > Courts > Authority to Adjudicate submitted to the Division of the Federal RegisHN30 When bringing a lawsuit for violation of ter for filing and for publication in the Federal Register. statutory law parties must either find language in the statute itself which allows a priGovernments > Federal Government > Executive Ofvate right of action, or demonstrate the occurfices rence of final agency action, which invokes the court’s authority to review the claim under HN34 U.S.C.S. § 301 is a general authorizathe Administrative Procedure Act. If parties tion to delegate presidential functions. fail to meet these requirements they are precluded from challenging the alleged statutory Administrative Law > Separation of Powviolation. ers > Executive Controls Administrative Law > Judicial Review > Reviewability > Reviewable Agency Action Administrative Law > Separation of Powers > Constitutional Controls > Nondelegation Doctrine Administrative Law > Separation of Powers > Executive Controls Governments > Federal Government > Executive Offices HN33 3 U.S.C.S. § 301 states that the President may delegate any function which is vested in the President by law to an agency or department head. It also states that nothing contained herein shall relieve the President of his reHN31 The Supreme Court of the United States sponsibility in office for the acts of any such head or other official designated by him to perhas declared that the President is not an form such functions. 3 U.S.C.S. § 301. The agency and cannot be defined as such under the President must publish such authorization in the Administrative Procedure Act. It follows that Federal Register, but he may place terms, conactions taken by the President pursuant to conditions, and limitations on the use of the delgressionally delegated authority cannot be egated authority, and he may revoke the delegaconsidered final agency action. tion ″in whole or in part″ at any time. Administrative Law > Separation of Powers > Executive Controls Governments > Federal Government > Executive Offices Governments > Federal Government > Property Governments > Public Lands > General Overview Real Property Law > Encumbrances > Ownership & Transfer > Public Entities Administrative Law > Agency Rulemaking > Rule Application & Interpretation > General Overview Administrative Law > Separation of Powers > Executive Controls Administrative Law > Separation of Powers > Legislative Controls > General Overview Governments > Legislation > Interpretation HN32 Exec. Order No. 10355, issued by Presi- HN35 Administrative orders delegating authordent Harry S. Truman in 1952, delegated to ity to agency officials warrant the use of the Secretary of the Interior the authority vested rules of construction similar to those used in Page 8 of 33 316 F. Supp. 2d 1172, *1172; 2004 U.S. Dist. LEXIS 9865, **1 statutory interpretation. Administrative Law > Separation of Powers > Executive Controls Governments > Legislation > Interpretation HN36 Courts will generally give substantial deference to the President’s or the applicable department’s interpretation and use of an executive order. Administrative Law > Separation of Powers > Executive Controls Environmental Law > Natural Resources & Public Lands > Federal Land Management Governments > Federal Government > Property HN37 A President may only confer by Executive Order rights that Congress has authorized the President to confer. As the regulations implementing § 204 of Federal Land Policy and Management Act, 43 U.S.C.S. § 1701 et seq., recognized, Exec. Order No. 10355 conferred on the Secretary of the Interior all of the delegable authority of the President. 43 C.F.R. § 2300.0-3(a)(2)(2004). Administrative Law > Separation of Powers > Executive Controls Administrative Law > Separation of Powers > Legislative Controls > General Overview Environmental Law > Natural Resources & Public Lands > Federal Land Management Governments > Federal Government > Executive Offices Governments > Federal Government > Property HN38 Although 3 U.S.C.S. § 301 authorizes the President to delegate any function which is vested in him by law to a department or agency head in the executive branch, delegation of the authority to designate national monuments seems inconsistent with the Antiquities Act itself. The Antiquities Act provides that the President is authorized, in his discretion, to designate national monuments. 16 U.S.C.S. § 431. Because Congress only authorized the withdrawal of land for national monuments to be done in the President’s discretion, it follows that the President is the only individual who can exercise this authority because only the President can exercise his own discretion. Discretion is defined as a public official’s power or right to act in certain circumstances according to personal judgment and conscience. It is illogical to believe that the President can delegate his personal judgment and conscience to another. Environmental Law > Natural Resources & Public Lands > Federal Land Management Real Property Law > Zoning > Historic Preservation HN39 Although Federal Land Policy and Management Act (FLPMA), 43 U.S.C.S. § 1701 et seq., imposes numerous requirements on the Secretary of the Interior when withdrawing land, the Antiquities Act of 1906, 16 U.S.C.S. §§ 431-433, was specifically exempted from the reach of FLPMA. Governments > Federal Government > Property Governments > Public Lands > General Overview Real Property Law > Zoning > Historic Preservation HN40 The Antiquities Act of 1906, 16 U.S.C.S. §§ 431-433, authorizes the President in his discretion to declare objects that have scientific interest, and are situated upon the public lands, to be national monuments. The Act authorizes only the President to declare these reservations and apparently this authority cannot be delegated. Governments > Legislation > Expiration, Repeal & Suspension Governments > Legislation > Interpretation HN41 The test used to determine whether a statute has been repealed is also used for an executive order. A repeal may be explicit or implicit, and the ultimate question is whether repeal of the prior statute or order was intended. Administrative Law > Separation of Powers > Executive Controls Governments > Federal Government > Property HN42 Any delegation of authority pursuant to 3 U.S.C.S § 301 is revocable at any time by the President in whole or in part. Environmental Law > Natural Resources & Public Lands > Federal Land Management Governments > Federal Government > General Over- Page 9 of 33 316 F. Supp. 2d 1172, *1172; 2004 U.S. Dist. LEXIS 9865, **1 view Governments > Federal Government > Executive Offices Governments > Federal Government > Property Governments > Federal Government > US Congress Governments > Legislation > Expiration, Repeal & Suspension Governments > Public Lands > General Overview Real Property Law > Zoning > Historic Preservation HN43 The Federal Land Policy and Management Act (FLPMA), 43 U.S.C.S. § 1701 et seq., and its regulations indicate that Congress intended to repeal any delegation authority to designate national monuments to the Secretary of the Interior. Through FLPMA, Congress specifically repealed the Pickett Act, the Midwest Oil doctrine and other Acts granting withdrawal authority to the President, thereby extinguishing Presidential authority to withdraw public lands in many circumstances. As a result, Congress also revoked any delegations of authority to other members of the Executive Branch related to the repeal of that authority. Notably, FLPMA specifically excludes the Antiquities Act of 1906, 16 U.S.C.S. §§ 431-433, from its reach and reaffirms the President’s authority to designate national monuments. The Secretary of the Interior does not have authority to modify or revoke any withdrawal creating national monuments under the Antiquities Act. 43 C.F.R. § 2300.0-3(a)(1)(iii). Although the regulations go on to state that, by virtue of Exec. Order No. . 10355, the Secretary still possesses all the delegable Presidential authority to make, modify and revoke withdrawals and reservations with respect to lands of the public domain, 43 C.F.R. § 2300.0-3(a)(2), it appears Congress never considered authority under the Antiquities Act as ″delegable″ in the first place. Governments > Federal Government > Executive Offices Governments > Federal Government > Property issued the order pursuant to a statutory mandate or delegation of authority from Congress , and (2) that the Order’s terms and purpose evidenced an intent on the part of the President to create a private right of action. Governments > Federal Government > Executive Offices Governments > Federal Government > Property HN45 In the context of an executive order, in the absence of an intent of to create a private right of action to enforce compliance on the face of the order, a court will not imply one. Counsel: For UTAH ASSOCIATION OF COUNTIES, plaintiff (97-CV-479): Ronald W Thompson, Stephen H. Urquhart, THOMPSON AWERKAMP & URQUHART LC, ST GEORGE, UT. For UTAH ASSOCIATION OF COUNTIES, plaintiff (97-CV-479): Constance E. Brooks, Michael B. Marinovich, CE BROOKS & ASSOCIATES, DENVER, CO. For MOUNTAIN STATES LEGAL FOUNDATION, plaintiff (97-CV-863): Steven J Christiansen, PARR WADDOUPS BROWN GEE & LOVELESS, SALT LAKE CITY, UT. For MOUNTAIN STATES LEGAL FOUNDATION, plaintiff (97-CV-863): William Perry Pendley, Todd S. Welch, James Barry Shupe, MOUNTAIN STATES LEGAL FOUNDATION, DENVER, CO. For MOUNTAIN STATES LEGAL FOUNDATION, consolidated plaintiff (97-CV-479): Steven J Christiansen, PARR WADDOUPS BROWN GEE & LOVELESS, SALT LAKE CITY, UT. For MOUNTAIN STATES LEGAL FOUNDAHN44 Generally, there is no private right of ac- TION, consolidated plaintiff (97-CV-479): tion to enforce obligations imposed on execu- William Perry Pendley, Todd S. Welch, S. tive branch officials by executive orders. Fur- Amanda Koehler, MOUNTAIN STATES LEGAL FOUNDATION, LAKEWOOD, CO. thermore, to assert a judicially enforceable private cause of action under an executive orFor WILLIAM JEFFERSON CLINTON, der, a plaintiff must show (1) that the President UNITED STATES OF AMERICA, KATH- Page 10 of 33 316 F. Supp. 2d 1172, *1172; 2004 U.S. Dist. LEXIS 9865, **1 LEEN A. MCGINTY, COUNCIL ON ENVIRONMENTAL [**2] QUALITY, THE, BRUCE BABBITT, INTERIOR, DEPT OF, defendants (97-CV-479): Carlie Christensen, US ATTORNEY’S OFFICE. For WILLIAM JEFFERSON CLINTON, UNITED STATES OF AMERICA, KATHLEEN A. MCGINTY, COUNCIL ON ENVIRONMENTAL QUALITY, THE, BRUCE BABBITT, INTERIOR, DEPT OF, defendants (97CV-479): Gary B. Randall, Lois J. Schiffer, US DEPARTMENT OF JUSTICE, Ann Navaro, DEPARTMENT OF JUSTICE, WASHINGTON, DC. CV-479): Gary B. Randall, US DEPARTMENT OF JUSTICE, Ann Navaro, DEPARTMENT OF JUSTICE, WASHINGTON, DC. For BUREAU OF LAND MANAGEMENT, SYLVIA BACA, consolidated defendants (97CV-479): Michael A. Gheleta, US DEPARTMENT OF JUSTICE, DENVER, CO. For SOUTHERN UTAH WILDERNESS ALLIANCE, THE WILDERNESS SOCIETY, GRAND CANYON TRST, ESCALANTE CANYON OUTFITTERS, ESCALANTE’S GRAND STAIRCASE B&B INN, BOULDER MOUNTAIN LODGE, intervenors-defendants (97-CV-479): Rodney R Parker, SNOW CHRISTENSEN & MARTINEAU, Stephen H. For WILLIAM JEFFERSON CLINTON, Bloch, SOUTHERN UTAH WILDERNESS UNITED STATES OF AMERICA, KATHLEEN A. MCGINTY, COUNCIL ON ENVI- ALLIANCE, SALT LAKE CITY, UT. RONMENTAL QUALITY, THE, BRUCE BABBITT, INTERIOR, DEPT OF, defendants (97- For SOUTHERN UTAH WILDERNESS ALLICV-479): Michael A. Gheleta, DEPARTMENT ANCE, intervenor-defendant (97-CV-479): OF JUSTICE, DENVER, CO. Heidi J. McIntosh, SOUTHERN UTAH WILDERNESS ALLIANCE, SALT LAKE CITY, For WILLIAM JEFFERSON CLINTON, UT. BRUCE BABBITT, UNITED STATES OF AMERICA, KATHLEEN A. MCGINTY, defen- For SOUTHERN UTAH WILDERNESS ALLIdants (97-CV-863): Carlie Christensen, US AT- ANCE, THE WILDERNESS SOCIETY, TORNEYS OFFICE - UTAH. GRAND CANYON TRST, ESCALANTE CANYON OUTFITTERS, ESCALANTE’S For WILLIAM JEFFERSON CLINTON, GRAND STAIRCASE B&B INN, BOULDER BRUCE BABBITT, UNITED STATES OF MOUNTAIN LODGE, intervenors-defenAMERICA, KATHLEEN A. MCGINTY, defen- dants (97-CV-479): William L. Underwood, dants (97-CV-863): Gary B. Randall, US DE- Richard A. Duncan, Craig S. Coleman, FAEGRE PARTMENT OF JUSTICE, WASHINGTON, & BENSON, MINNEAPOLIS, [**4] MN. DC. For THE WILDERNESS SOCIETY, GRAND For WILLIAM JEFFERSON CLINTON, CANYON TRST, ESCALANTE CANYON BRUCE BABBITT, UNITED STATES OF OUTFITTERS, ESCALANTE’S GRAND AMERICA, KATHLEEN A. MCGINTY, defen- STAIRCASE B&B INN, BOULDER MOUNdants (97-CV-863): Michael A. Gheleta, US TAIN LODGE, intervenors-defendants (97-CV479): Karleen M. O’Connor, FAEGRE & BENDEPARTMENT OF JUSTICE, DENVER, CO. SON, MINNEAPOLIS, MN. For BUREAU OF LAND MANAGEMENT, [**3] SYLVIA BACA, consolidated defen- Judges: Dee Benson, United States District dants (97-CV-479): Carlie Christensen, US AT- Judge. TORNEYS OFFICE - UTAH. Opinion by: Dee Benson For BUREAU OF LAND MANAGEMENT, SYLVIA BACA, consolidated defendants (97- Page 11 of 33 316 F. Supp. 2d 1172, *1172; 2004 U.S. Dist. LEXIS 9865, **4 Plaintiffs allege: Opinion [*1176] OPINION AND ORDER INTRODUCTION The present matter comes before the Court on defendants’ Motion to Dismiss or in the alternative for Summary Judgment and plaintiffs’ Motions for Summary Judgment. The motions were argued before the Court on January 15, 2004. The Court has considered the legal briefs and oral arguments of the respective parties and enters the following Opinion and Order. 1) The Antiquities Act is unconstitutional because [**6] it violates the delegation doctrine. Plaintiffs claim that only Congress has the authority to withdraw such lands from the federal trust. 2) By creating the Grand Staircase Monument the President acted ultra vires and violated the following provisions of the United States Constitution: a) the Property Clause, U.S. Const., Art. IV, § 3, cl. 2; because the authority to [*1177] manage federal lands rests exclusively with Congress; and BACKGROUND b) the Spending Clause, U.S. Const., Art. I, § 8, cl. 1; because only Congress has the authorA. THE LAWSUITS AND THEIR CONTEN- ity to obligate money which will be drawn TIONS from the Treasury to purchase private property. On September 18, 1996, President William Jefferson Clinton, invoking his authority under the Antiquities Act, designated 1.7 million acres of federal land in southeastern Utah as the Grand Staircase-Escalante National Monument. On June 23, 1997, the Utah Association of Counties, (UAC) filed this lawsuit challenging the President’s actions, naming as defendants the United States of America, William J. Clinton in his official capacity as [**5] President of the United States, Kathleen McGinty in her official capacity as chair of the Council on Environmental Quality (CEQ), Secretary of the Interior Bruce Babbitt, the United States Department of the Interior (DOI), and Patrick Shea, Director of the Bureau of Land Management (BLM). 3) By creating the Grand Staircase Monument the President violated: On November 5, 1997 Mountain States Legal Foundation (MSLF) filed a similar suit against defendants Clinton, Babbitt, and the United States of America. A month later, MSLF filed an amended complaint, which added defendant McGinty. UAC’s and MSLF’s cases were consolidated. 1 4) By creating the Grand Staircase Monument the President and/or one or more of the other defendants violated: 1 a) the Antiquities Act, 16 U.S.C. § 431; because he failed to designate the requisite objects of historic or scientific value and he did not limit the size of the monument to the ″smallest area″ necessary to preserve the objects. b) the Wilderness Act, 16 U.S.C.A. § 1131 et seq.; because the President established as de facto wilderness areas within the Grand Staircase Monument, and only Congress has the authority to designate public lands as wilderness. [**7] c) Executive Order 10355, because the President, rather than the Secretary of the Interior, withdrew the land. a) the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332 et seq; because the joint activities of the Department of the Inte- Pursuant to Federal Rules of Civil Procedure 25(d)(1), defendants have since been substituted to reflect a presidential and administration change. Current individual defendants are now President George W. Bush; CEQ Chair James L. Connaughton; Department of the Interior Secretary Gale Norton and Bureau of Land Management Director Kathleen Clarke. Page 12 of 33 316 F. Supp. 2d 1172, *1177; 2004 U.S. Dist. LEXIS 9865, **7 rior and CEQ were carried out independently of the President and were in fact initiated by DOI, and therefore these actions required the preparation of an Environmental Impact Statement (EIS) and compliance with other NEPA regulations, which did not happen. violations of the United States Constitution and federal statutes, the defendants seek dismissal as a matter of law. (1) THE ANTIQUITIES ACT Both plaintiffs seek summary judgment as to all of the above claims. HN1 The Antiquities Act of 1906, 16 U.S.C. § 431, gives the President authority to create national monuments. 2 Since its enactment, [*1178] presidents have used the Antiquities Act more than 100 times to withdraw lands from the public domain as national monuments. President Clinton’s use of the Antiquities Act to create the Grand Staircase Monument in 1996 was the first use of the Antiquities Act in more than two decades. The Antiquities Act authorizes the President, ″in his discretion,″ to establish as national monuments ″objects of historic or scientific [**9] interest that are situated upon the lands owned or controlled by the government of the United States.″ Id. The Act requires the president to reserve land confined to the ″smallest area compatible with the proper care and management of the objects to be protected.″ Id. For purposes of this litigation, it is helpful to look to the creation of the Act and how it has been used and interpreted since its creation in 1906. All of the defendants seek dismissal or in the alternative summary judgment as to all claims. They challenge the Court’s jurisdiction to hear the case under the doctrines of standing (as to MSLF only), ripeness and lack of judicial review authority. As to the plaintiffs’ claims of [**10] The original purpose of the proposed Act was to protect objects of antiquity. 3 The substance of the Act, developed over a period of more than six years, was created in response to the demands of archaeological organizations. Although the scope of the archaeologi- b) the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. § 1701 et seq.; because the President’s withdrawal of public lands did not comply with FLPMA’s withdrawal, notice and land use planning provisions. C) the Federal Advisory Committee Act (FACA), 5 U.S.C. app 2; because advice and recommendations were received by the President and other defendants from various individuals who constituted an ″advisory committee″ within the meaning of FACA and therefore required compliance with FACA’s procedural [**8] standards. d) The Anti-Deficiency Act, 31 U.S.C. § 1341; because an improper appropriation was created. 2 The full text of the Act reads as follows: HN2 The President of the United States is authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected. When such objects are situated upon a tract covered by a bona fide unperfected claim or held in private ownership, the tract, or so much thereof as may be necessary for the proper care and management of the object, may be relinquished to the Government, and the Secretary of the Interior is authorized to accept the relinquishment of such tracts in behalf of the Government of the United States. 16 U.S.C. § 431 (1976). The phrase ″objects of antiquity,″ while not in § 431 but found in § 433, has commonly been interpreted to include such items as paleontological and archaeological artifacts. When interpreting its precise meaning, however, courts have disagreed with the adequacy of the phrase. See e.g., U.S. v. Diaz, 499 F.2d 113, 114-5 (9th Cir. 1974) (finding that the phrase ″objects of antiquity″ was ″fatally vague in violation of the due process clause of the Constitution.″); but see U.S. v. Smyer,, 596 F.2d 939, 941 (10th Cir. 1979) (holding that ″when measured by common understanding and practice,″ the phrase was sufficiently definite to define the protected object). 3 Page 13 of 33 316 F. Supp. 2d 1172, *1178; 2004 U.S. Dist. LEXIS 9865, **10 cal organizations’ proposals was limited to preservation of antiquities on federal lands, the United States Department of the Interior proposed adding the protection of scenic and scientific resources to the Act. For six years Congress rejected attempts to include the Department’s proposal. It appears, however, that Congress was unable to pass the limited archaeologists’ bill because of bureaucratic delays and various disagreements between museums and universities seeking authority to excavate ruins on public lands. See Richard M. Johannsen, Public Land Withdrawal Policy and the Antiquities Act, 56 Wash. L. Rev. 439, 448 (1981). the proposition that Congress intended to limit the creation of national monuments to small land areas surrounding specific objects. Illustrative of this intent is House Report No. 2224, which states ″there are scattered throughout the southwest quite a large number of very interesting ruins … the bill proposes to create small reservations reserving only so much land as may be absolutely necessary for the preservation of these interesting relics.″ H.R. REP. NO. 2224, 59TH [**12] CONGRESS, 1ST SESS. at 1 (1906). Despite what may have been the intent of some members of Congress, use of the Antiquities Act has clearly expanded beyond the pro[**11] Edgar Lee Hewitt, a prominent archae- tection of antiquities and [*1179] ″small reserologist, drafted the bill that was finally envations″ of ″interesting ruins.″ Nothing in the acted in 1906. Government officials persuaded language of the Act specifically authorizes the Hewitt to broaden the scope of his draft by in- creation of national monuments for scenic purcluding the phrase ″other objects of historic or poses or for general conservation purposes. scientific interest.″ This phrase essentially al- Nonetheless, several presidents have used the lowed the Department of the Interior’s pro- Act to withdraw large land areas for scenic and posal, which Congress had previously regeneral conservation purposes. President Theojected, to be included in the final bill. In dore Roosevelt was the first president to withaddition, while earlier proposals had limited draw land under the Act, establishing a precthe reservations to 320 or at the most 640 acres, edent other presidents later followed to Hewitt’s draft allowed the limit to be set accreate large scenic monuments. Within two cording to ″the smallest area compatible with the years of enactment of the Act, President Rooproper care and management of the objects to sevelt made eighteen withdrawals of land. 4 be protected.″ Despite the presence of this broader language, there is some support for 4 The national monuments created by President Theodore Roosevelt: 9/24/06 Devils Tower, WY 12/8/06 El Morro, NM 12/8/06 Montezuma Castle, AZ 12/8/06 Petrified Forest, AZ 3/11/07 Chaco Canyon, NM 5/6/07 Cinder Cone, CA 5/6/07 Lassen Peak, CA 11/16/07 Gila Cliff Dwellings, NM 12/19/07 Tonto, AZ 1/9/08 Muir Woods, CA 1/11/08 Grand Canyon, AZ 1/16/08 Pinnacles, CA 2/7/08 Jewel Cave, SD Page 14 of 33 316 F. Supp. 2d 1172, *1179; 2004 U.S. Dist. LEXIS 9865, **13 [**13] Several monuments have been created within the general vicinity of the Grand Staircase Monument. In Utah alone, there are six such national monuments: Cedar Breaks, Hovenweep, Timpanogos Cave, Dinosaur, Rainbow Bridge, and Natural Bridges. Surrounding areas in Colorado and Arizona have also been designated as monuments under the Antiquities Act. Presidential proclamations creating these monuments cited geologic, paleontologic, archaeologic, and other features similar to those in the Grand Staircase Monument proclamation. Zion National Park to the west of the Grand Staircase Monument was originally Mukuntuweap National Monument, created by President Taft in 1909 to protect its ″many natural features of unusual archaeologic, geologic, and geographic interest.″ See Proclamation No. 877, 36 Stat. 2498. President Wilson enlarged the boundaries of the monument in 1918 and Congress converted it to a national park in 1919. President Hoover established Utah’s Arches National Monument to the northeast of the Grand Staircase Monument in 1929, citing its ″unique wind-worn sandstone formation, the preservation of which is desirable because of their educational and scenic value.″ Proclamation [**14] No. 1875, 46 Stat. 2988. Congress designated Arches a National Park in 1971. President Franklin D. Roosevelt established Utah’s Cedar Breaks National Monument, located west of the Grand Staircase Monument, in 1933 (Proclamation No. 2054, 48 stat. 1705.), and Capital Reef National Monument, which is located to the immediate east of the Grand Staircase Monument, in 1938. (Proclamation No. 2246, 50 Stat. 1856.) dent Roosevelt received a recommendation to withdraw 4.4. million acres of Utah’s red rock country, creating Escalante National Monument. The Roosevelt administration ultimately rejected the idea, in large part because of local opposition. See James R. Rasband, Utah’s Grand Staircase: The Right Path to Wilderness Preservation?, 70 U. COLO L. REV. 483, 488 (1999). Most of the presidential withdrawals have been uncontroversial. However, there have been several legal challenges to presidential monument designations under the Antiquities Act. Every challenge to date has been unsuccessful. [**15] See Cameron [*1180] v. United States, 252 U.S. 450, 64 L. Ed. 659, 40 S. Ct. 410 (1920) (the President’s designation of the Grand Canyon as a national monument was a valid use of his authority under the Antiquities Act); Wyoming v. Franke, 58 F. Supp. 890 (D.Wyo.1945) (the proclamation creating the Jackson Hole National Monument complied with the standards set forth in the Antiquities Act); Cappaert v. United States, 426 U.S. 128, 48 L. Ed. 2d 523, 96 S. Ct. 2062 (1976) (presidential proclamation withdrawing the Devil’s Hole tract of land and accompanying water from the public domain and combining it with the Death Valley National Monument, explicitly reserved water rights to the federal Government and constituted a valid exercise of presidential authority under the Antiquities Act); Anaconda Copper Co. v. Andrus, No. A79-101 (D. Alaska, 1980); Alaska v. Carter, 462 F. Supp. 1155 (D. Alaska 1978) (president not subject to requirements of National Environmental Policy Act when proclaiming national monuments under the Antiquities Act). Coincidentally, during the 1930s, the Franklin D. Roosevelt administration considered the cre- 2. THE WILDERNESS ACT ation of a monument in virtually the same Also relevant to the present motions is the Wilarea as the Grand Staircase Monument. Presi4/16/08 Natural Bridges, UT 5/11/08 Lewis and Clark Cavern, MT 9/15/08 Tumacacori, AZ 12/7/08 Wheeler, CO 3/2/09 Mount Olympus, WA Page 15 of 33 316 F. Supp. 2d 1172, *1180; 2004 U.S. Dist. LEXIS 9865, **15 derness Act, 16 U.S.C. §§ 1131-36(1964). [**16] The Wilderness Act, signed into law in 1964, was intended to preserve the undeveloped character of designated areas. Prior to passage of the Wilderness Act, the United States Forest Service and the United States National Park Service were the only two federal agencies with a management scheme to preserve wilderness areas. Selection and management of the lands was discretionary. Concerned that some areas were not receiving the necessary protection and perhaps that some were receiving too much, Congress created a means by which a system of wilderness could be created that would provide the appropriate safeguards and that designated Congress alone as the final arbiter of which federal lands would actually achieve status as wilderness areas. See Leann Foster, Wildlands and System Values: Our Legal Accountability to Wilderness, 22 VT. L. REV. 917, 921-22 (1998). HN3 The Wilderness Act directed the Secretary of Agriculture and the Secretary of the Interior to review certain lands within their jurisdictions and make recommendations as to their suitability for wilderness classification. See id. § 1132 (d)(1). The areas to be studied were identified as Wilderness [**17] Study Areas (WSAs). See id. § 1131. Once the lands were inventoried, BLM was to conduct a study of each WSA, pursuant to Section 603 of FLPMA, 43 U.S.C. § 1782. The BLM would then make a recommendation to the President, who in turn would recommend to Congress whether any of the WSAs should be designated as wilderness. Until such designation occurs, the administering agency is to manage the WSAs so as not to impair their suitability for possible wilderness classification by Congress. See 16 U.S.C. § 1133. Once an area receives actual wilderness status, commercial enterprises, roads, motorized equipment, mining, and oil and gas leasing are prohibited in the wilderness area. See id. preservation as wilderness. Congress has not made a final determination with regard to the WSAs within the Grand Staircase Monument. 3. EVENTS LEADING TO THE GRAND STAIRCASE PROCLAMATION From 1978 to 1991, the BLM conducted various studies which resulted in [**18] a recommendation that 1.9 million acres of WSAs in the state of Utah should receive wilderness designation. This recommendation, [*1181] which included some of the land now part of the Grand Staircase Monument, was forwarded by then Secretary of the Interior Manuel Lujan to President George H. W. Bush in October, 1991. The recommendation was supported by a final EIS, and more than 11 years of BLM evaluation and public involvement. However, a change in presidential administrations in 1992 ended discussion about the proposed designation. Regarding Utah wilderness, the new Secretary of the Interior, Bruce Babbitt, disagreed with the recommendations of his predecessor, believing significantly more land should be set aside. In 1994, then BLM Director Jim Baca wrote to an environmental group stating that the 1.9 million acre wilderness recommendation made by former Interior Secretary Lujan was ″off the table.″ However, Secretary Babbitt’s ability to undertake a new wilderness study pursuant to Section 603 of FLPMA had expired. Nevertheless, Secretary Babbitt testified before Congress on several occasions, urging that a considerable number of additional wilderness areas should be designated in Utah. [**19] Consequently, the 104th Congress (1995-96) considered several different Utah wilderness bills, including a bill sponsored by members of Utah’s congressional delegation which would designate about two million additional acres of wilderness, which was essentially the same as the previous recommendation from former Secretary Lujan. Also under consideration was a Approximately 900,000 acres, roughly one-half bill sponsored by Congressman Hinchey of New York and supported by national and Utah of the acreage within the Grand Staircase Monument, are classified as WSAs and there- environmental groups. The Hinchey bill sought to designate 5.7 million acres of wilderfore preserved for suitability for possible future ness in Utah. Neither bill reached the floor of Page 16 of 33 316 F. Supp. 2d 1172, *1181; 2004 U.S. Dist. LEXIS 9865, **19 the House, and a filibuster precluded a vote in the Senate. Thereafter, Secretary Babbitt directed a second wilderness inventory, the Utah Wilderness Review, in hopes of showing that Congressman Hinchey’s proposed 5.7 million acres bill warranted passage. This Utah Wilderness Review included the evaluation of the wilderness characteristics of approximately 800,000 acres of public land now part of the Grand Staircase Monument. Eventually, however, Secretary Babbitt’s efforts, along with all other efforts made by those in Congress to establish wilderness in the state of Utah, were unsuccessful. Plaintiffs contend [**20] in this litigation that the lack of success in the effort to designate additional wilderness areas in Utah was a motivating factor behind the President’s decision to designate the Grand Staircase Monument. Once the proclamation was announced the affected land was preserved in much the same manner as if it had received wilderness designation. Plaintiffs assert, and the record appears to support, that another driving force behind Secretary Babbitt’s, the DOI’s, and eventually the President’s efforts to create the Grand Staircase Monument was to prevent the proposed Andalex Smoky Hollow coal mining operation in Kane County, Utah from coming to fruition. 5 Besides supporting Congressman Hinchey’s proposed wilderness designation, which would encompass the property proposed for the Smoky Hollow Mine, Secretary Babbitt and the DOI also attacked the validity of the federal Smoky Hollow coal leases by [*1182] attempting to cancel the suspension in the interest of conservation granted to the holders of the coal leases several years earlier by the Utah BLM State Director. The suspension was originally granted to allow Andalex sufficient time to secure mining permits and complete preparation of an EIS. [**21] 5 From the exhibits submitted by plaintiffs, the majority of which were secured by congressional subpoena, it appears that in early 1996, efforts involving various officials within the executive branch of government began discussing the possibility of creating a national monument in Utah by way of a presidential proclamation. Internal memoranda indicate that as early as March 1996, the DOI requested that CEQ or White [**22] House officials send a letter to Secretary Babbitt under the President’s signature requesting an investigation and recommendations for a Utah national monument. Plaintiffs assert that the reasoning behind the request was to enable defendants to avoid having to comply with NEPA and FLPMA, because the President is not a federal agency and not subject to either NEPA or FLPMA. An internal CEQ memorandum from Ms. McGinty to Todd Stern reveals even broader reasoning behind the request that the President sign a letter to be sent to Secretary Babbitt: the president will do the Utah event on aug 17. however, we still need to get the letter (from the President to Interior Secretary Babbitt) signed asap. the reason: under the antiquities act, we need to build a credible record that will withstand legal challenge that: (1) the president asked the secretary to look into these lands to see if they are of important scientific, cultural, or historic value; (2) the secy undertook that review and presented the results to the president; (3) the president found the review compelling and therefore exercised his authority under the antiquities act. presidential actions under this act have always [**23] been challenged, they have never been struck down, however. so, letter needs to be signed asap so that secy has what looks The Andalex Smoky Hollow coal mine was designed as an underground mine, affecting approximately 60 acres of surface space, to be located on property that is part of the Kaiparaowits coal field. The Kaiparowits coal field is estimated by the Utah Geological Survey to contain 62.3 billion tons of coal, of which at least 11.3 billion tons could be recovered. The estimated total federal royalty payments over time from full production of Kaiparowits coal are approximately $ 20 billion, and the State of Utah and Utah counties would have been entitled to 50% of that amount under the Mineral Leasing Act. Page 17 of 33 316 F. Supp. 2d 1172, *1182; 2004 U.S. Dist. LEXIS 9865, **23 like a credible amount of time to do his investigation of the matter. we have opened the letter with a sentence that gives us some more room by making it clear that the president and babbitt had discussed this some time ago. [sic] (McGinty, e-mail to Todd Stern, July 29, 1996). Plaintiffs allege that no such letter was sent to Secretary Babbitt. From March 1996 to September 18, 1996, DOI officials worked closely with CEQ Director Kathleen McGinty and others to identify the lands to include in the proclamation and the actions needed to ensure that the proclamation would survive judicial scrutiny. In August 1996, the DOI conducted a database and bibliography search to prepare a record to support the proclamation. Some of the reasons for creating Grand Staircase Monument focused on the proposed Smoky Hollow coal mine and contentions that the mine would irreversibly damage the environment and Utah’s public lands. These contentions, plaintiffs allege, were contradicted by the BLM’s draft EIS. Following this history, the Proclamation itself took place on September 18, 1996, when [**24] President Clinton stood at the south rim of the Grand Canyon in Arizona and announced the establishment of the 1.7 million acre Utah monument. There was virtually no advance consultation with Utah’s federal or state officials, which may explain the decision to make the announcement in Arizona. The monument created a good deal of controversy, heightened even more because the presidential election was less than 8 weeks away. In making the announcement, President Clinton emphasized his ″concern[] about a large [*1183] coal mine proposed for the area″ and his belief that ″we shouldn’t have mines that threaten our national treasures.″ Remarks Announcing the Establishment of the Grand Staircase-Escalate National Monument, 32 Weekly Comp. Pres. Doc. 1785 (Sept. 23, 1996). creation of the monument. See Proclamation No. 6920, 61 Fed. Reg. 50,223 (1996). Specifically, the President noted ″sedimentary rock layers … offering a clear view to understanding the processes of the earth’s formation″ and ″in addition to several major arches and natural bridges, vivid geological features [**25] are laid bare in narrow, serpentine canyons, where erosion has exposed sandstone and shale deposits in shades of red, maroon, chocolate, tan, gray, and white. Such diverse objects make the monument outstanding for purposes of geologic study.″ Id. Secondly, the President cited ″world class paleontological sites″ as grounds for the Proclamation. Id. According to the President, those things in need of protection consisted of ″remarkable specimens of petrified wood″ and ″significant fossils, including marine and brackish water mollusks, turtles, crocodilians, lizards, dinosaurs, fishes, and mammals ….″ Id. Archeological interests in ″Anasazi and Fremont cultures″ were also said to be ″of significant scientific and historic value worthy of preservation for future study.″ Id. Finally, the President mentioned the ″spectacular array of unusual and diverse soils,″ ″cryptobiotic crusts,″ and the ″many different vegetative communities and numerous types of endemic plants and their pollinators″ as warranting protection since ″most of the ecological communities contained in the monument have low resistance to, and slow recovery from, disturbance.″ Id. The President’s Proclamation [**26] designating the monument required that the BLM prepare an approved Monument Management Plan no later than September 18, 1999. The approved Management Plan did not make the September deadline, but was finally approved on February 28, 2000. Since approval of the Monument Management Plan the BLM has been responsible for management of the Grand Staircase Monument. 4. SUMMARY OF OPINION The record is undisputed that the President of the United States used his authority under the In the written Proclamation, President Clinton Antiquities Act to designate the Grand Staircase Monument. The record is also undisputed cited ″geologic treasures″ as the initial reason for Page 18 of 33 316 F. Supp. 2d 1172, *1183; 2004 U.S. Dist. LEXIS 9865, **26 that in doing so the President complied with the Antiquities Act’s two requirements, 1) designating, in his discretion, objects of scientific or historic value, and 2) setting aside, in his discretion, the smallest area necessary to protect the objects. With little additional discussion, these facts compel a finding in favor of the President’s actions in creating the monument. That is essentially the end of the legal analysis. Clearly established Supreme Court precedent instructs that the Court’s judicial review in these circumstances is at best limited to ascertaining that the President in fact invoked his powers [**27] under the Antiquities Act. Beyond such a facial review the Court is not permitted to go. Dalton v. Specter, 511 U.S. 462, 128 L. Ed. 2d 497, 114 S. Ct. 1719 (1994); Franklin v. Massachusetts, 505 U.S. 788, 120 L. Ed. 2d 636, 112 S. Ct. 2767 (1992). HN4 When the President is given such a broad grant of discretion as in the Antiquities Act, the courts have no authority to determine whether the President abused his discretion. See United States v. George S. Bush & Co., Inc., 310 U.S. 371, 84 L. Ed. 1259, 60 S. Ct. 944 (1940). To do so would impermissibly replace the [*1184] President’s discretion with that of the judiciary. HN5 This Court has the authority to review whether the President’s actions violated the United States Constitution or another federal statute, such as the Wilderness Act. See Franklin v. Massachusetts, 505 U.S. at 801; see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 96 L. Ed. 1153, 72 S. Ct. 863, 62 Ohio Law Abs. 417 (1952); Panama Refining Co. v. Ryan, 293 U.S. 388, 79 L. Ed. 446, 55 S. Ct. 241 (1935); and Chamber of Commerce v. Reich, 316 U.S. App. D.C. 61, 74 F.3d 1322, 1327 (D.C. Cir. 1996). In the present case plaintiffs’ constitutional and statutory [**28] claims are without factual or legal support. HN6 Congress clearly had the authority to pass the Antiquities Act of 1906. It is a proper constitutional grant of authority to the President. The Act itself, and the President’s designations pursuant to the Act, are not inconsistent with the Constitution’s Property Clause, Spending Clause, or the delegation doctrine; nor is the President’s Proclamation in violation of the Wilderness Act or any other federal statute. No statute passed after the Antiquities Act has repealed or amended the Antiquities Act. It stands as valid law. Only Congress has the power to change or revoke the Antiquities Act’s grant of virtually unlimited discretion to the President. As for plaintiffs’ myriad claims based on NEPA, FLPMA, FACA and the Anti-Deficiency Act, they too are of no merit. These statutes do not provide for a private right of action. The only way parties such as the plaintiffs here may complain of a violation of these statutes is through the Administrative Procedure Act (APA), which requires a finding of final agency action. Here, there is no such final agency action. The President is not an agency, and the record is undisputed that the actions of [**29] the other defendants were only assisting the President in the execution of his discretion under the Antiquities Act. Plaintiffs’ claim that the President’s designation of the Grand Staircase Monument violates the Wilderness Act is unavailing. Although a significant percentage of the land in the Grand Staircase Monument may qualify as wilderness under the Wilderness Act, the President did not designate wilderness; he designated a national monument. While the Antiquities Act and the Wilderness Act in certain respects may provide overlapping sources of protection, such overlap is neither novel nor illegal, and in no way renders the President’s actions invalid. HN7 Executive Order 10355, adopted by the Executive Branch in 1952, did not eliminate the President’s withdrawal authority under the Antiquities Act. HN8 The President has no lawmaking authority. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 587. The use of executive orders may be employed by the President in carrying out his constitutional obligation to see that the laws are faithfully executed and to delegate certain of his duties to other executive branch officials, but an executive order cannot impose legal [**30] requirements on the executive branch that are inconsistent with the express will of Congress.HN9 Executive Or- Page 19 of 33 316 F. Supp. 2d 1172, *1184; 2004 U.S. Dist. LEXIS 9865, **30 der 10355 by its express terms does not eliminate the President’s authority, as granted specifically to the President by Congress. Furthermore, by specifically exempting the Antiquities Act from the reach of FLPMA in 1976, for example, Congress reaffirmed that the Antiquities Act was to continue to not be subjected to requirements that must be followed by lower-level executive officials. Whatever else may by said about the possible reach of Executive Order 10355, it is undisputed that since its passage in 1952 there have been 20 presidential proclamations creating national monuments and none have transferred the exercise of withdrawal authority to the Secretary of the Interior. [*1185] B. DISCUSSION 1. JUDICIAL REVIEW 6 [**31] Plaintiffs seek a searching review by this court of the President’s actions in creating the Grand Staircase Monument. Both plaintiffs claim the proclamation was ultra vires and unconstitutional. MSLF seeks a further determination that the President abused his discretion, asking in particular for a finding that the President violated the Antiquities Act by a) not properly designating objects of scientific or historic value, b) setting aside too much property, and c) using the Act for improper purposes, such as stopping a local coal mining operation and improperly creating wilderness areas. In conducting such a sweeping judicial review, the plaintiffs seek an interpretation of the Antiquities Act that requires a comprehensive examination of the Act’s legislative history. The extensive judicial review sought by the plaintiffs is, however, not available in this case. HN10 While there has been some debate among the United States Supreme Court justices as to whether judicial review of executive actions by the President are subject to judicial review at all, 7 recent judgments have indicated the Court’s willingness to engage in a narrowly circumsribed form of judicial review. This willingness [**32] does not, however, allow judicial review of sufficient scope to assist plaintiffs’ cause; long-standing United States Supreme Court precedent has clearly foreclosed the broad review for which plaintiffs contend: HN11 ″Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction, that the statute constitutes him the sole and exclusive judge of the existence of those facts.″ For the judiciary to probe the reasoning which underlies this Proclamation would amount to a clear invasion of the legislative and executive domains. 6 With respect to the issue of standing to sue, the United States concedes that UAC has standing, but insists MSLF does not. The requirements for an initial showing sufficient to support standing in a case of ths nature are relatively lenient, as set forth in Utah v. Babbitt, 137 F.3d 1193, (10th Cir. 1998), Colorado Environmental Coalition v. Wenker, 353 F.3d 1221 (10thCir.2004) and Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992). Given this relatively light burden at the present stage of the instant case and recognizing that many of the claims of UAC and MSLF are identical or similar, and in the interest of judicial economy the Court will not further address the standing question in this Opinion. While not expressly finding that MSLF has standing to sue, the Court will address all of the parties’claims, including those advanced solely by MSLF. 7 Justice Scalia’s concurrence in Franklin v. Massachusetts articulates the most restrictive approach possible to the question of whether judicial review of the President’s actions is permissible: I think we cannot issue a declaratory judgment against the President. It is incompatible with his constitutional position that he be compelled personally to defend his executive actions before a court. 505 U.S. 788, 827, 120 L. Ed. 2d 636, 112 S. Ct. 2767 (1992). In this formulation, presidential action can be reviewed by seeking an injunction against those bound to enforce a President’s directive, but the possibility of direct judicial review of the President’s decision, for which plaintiffs contend, is eliminated altogether as inconsistent with ″the constitutional tradition of the separation of powers.″ Id. at 828. Page 20 of 33 316 F. Supp. 2d 1172, *1185; 2004 U.S. Dist. LEXIS 9865, **32 United States v. George S. Bush & Co., 310 U.S. 371, 380, 84 L. Ed. 1259, 60 S. Ct. 944 (1940) (quoting Martin v. Mott, 25 U.S. 19, 12 Wheat. 19, 31-32, 6 L. Ed. 537 (1827)). HN12 A grant of discretion to the President to make particular judgments forecloses judicial review of the substance of those judgments altogether: [*1186] Where a claim ″concerns not a want of [Presidential] power, but a mere excess or abuse of discretion in exerting a power given, it is clear that it involves considerations which are beyond the reach of judicial power. [**33] This must be since, as this court has often pointed out, the judicial may not invade the legislative or executive departments so as to correct alleged mistakes or wrongs arising from asserted abuse of discretion.″ Dalton v. Specter, 511 U.S. 462, 474, 128 L. Ed. 2d 497, 114 S. Ct. 1719 (1994) (quoting Dakota Central Telephone Co. v. South Dakota ex rel. Payne, 250 U.S. 163, 184, 63 L. Ed. 910, 39 S. Ct. 507 (1919)). [**34] If a Court may not review the President’s judgment as to the existence of the facts on which his discretionary judgment is based, the holdings in Dalton and George S. Bush do leave open one avenue of judicial inquiry. HN13 Although judicial review is not available to assess a particular exercise of presidential discretion, a Court may ensure that a president was in fact exercising the authority conferred by the act at issue. Thus, although this Court is without jurisdiction to secondguess the reasons underlying the President’s designation of a particular monument, the Court may still inquire into whether the President, when designating this Monument, acted pursuant to the Antiquities Act. 8 The Antiquities Act offers two principles to guide the President in making a designation under the Act: HN14 The President of the United States is authorized, in his discretion, to declare by public proclamation … objects of historic or scientific interest … to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected. [**35] 16 U.S.C. § 431. The Proclamation of which plaintiffs complain speaks in detail of the Monument’s natural and archeological resources and indicates that the designated area is the smallest consistent with the protection of those resources. The language of the Proclamation clearly indicates that the President considered the principles that Congress required him to consider: he used his discretion in designating objects of scientific or historic value, and used his discretion in setting aside the smallest area necessary to protect those objects. It is evident from the language of the Proclamation that the President exercised the discretion lawfully delegated to him by Congress under the Antiquities Act, and that finding demarcates the outer limit of judicial review. Whether the President’s designation best fulfilled the general congressional intention embodied in the Antiquities Act is not a matter for judicial inquiry. This Court declines plaintiffs’ invitation to substitute its judgment for that of the President, particularly in an arena in which the congressional intent most clearly manifest is an intention to delegate decision-making to the sound discretion [**36] of the President. 8 Plaintiffs devote considerable space in their Memorandum in Support of their Motion for Summary Judgment to a discussion of congressional intent and the evidence for it. According to plaintiffs, the legislative history surrounding the passage of the Antiquities Act demonstrates that Congress intended the Act be used to protect man-made objects only, and was not intended to be avail- Page 21 of 33 316 F. Supp. 2d 1172, *1186; 2004 U.S. Dist. LEXIS 9865, **37 [**37] [*1187] Even if broad judicial review of the exercise of the President’s discretion is not available, plaintiffs still contend that the procedure which led to the designation fell so far afoul of the requirements of the National Environmental Policy Act (NEPA) as to warrant strip-mining the Monument. Plaintiffs contend that defendants conspired to violate the requirements of NEPA by (nefariously) creating a deceptive paper trail suggesting that it was the President, rather than the DOI, who provided the impetus to create the Grand Staircase Monument. In plaintiffs’ formulation of the law, the sine qua non of a valid exercise of the President’s discretion under the Antiquities Act is that the President proposed the idea to the DOI; the source of the inspiration for the monument determines whether NEPA and the Administrative Procedures Act (APA) are invoked: Although Defendant Gale Norton and the Department of the Interior are required to implement NEPA, defendants correctly assert that presiden- tial actions under the Antiquities Act are not subject to the requirements of NEPA. It is for this reason that it was essential to [*1188] Defendants to make it appear that the request for consideration [**38] of a national monument in Utah came from the President rather than originating, as it did, within the agencies. (Plaintiffs’ Combined Memo ISO Summary Judgment and Opp. Defendants’ Motions to Dismiss or for Summary Judgment) (internal citations omitted). If plaintiffs’ theory were correct, its evidence that the idea for the Grand Staircase Monument did not originate with the President would be relevant and perhaps sufficient to defeat a motion for summary judgment. Plaintiffs’ brief is innocent of any legal authority, however, that would connect the premises that the DOI’s final actions are subject to NEPA while the President’s actions under the Antiquities Act are not, with the conclusion that it is es- able as a means for furthering presidential environmental agendas. (Plaintiffs’ Combined Memo at 17 et seq.) Excerpts from floor debates before the Act’s passage are also enlisted to prove that the Act was only intended to allow the President to withdraw very small plots of land to protect the man-made artifacts suitable for designation. Id. at 18. This discussion, while no doubt of interest to the historian, is irrelevant to the legal questions before the Court, since HN15 the plain language of the Antiquities Act empowers the President to set aside ″objects of historic or scientific interest.″ 16 U.S.C. § 431. The Act does not require that the objects so designated be made by man, and its strictures concerning the size of the area set aside are satisfied when the President declares that he has designated the smallest area compatible with the designated objects’ protection. There is no occasion for this Court to determine whether the plaintiffs’ interpretation of the congressional debates they quote is correct, since HN16 a court generally has recourse to congressional intent in the interpretation of a statute only when the language of a statute is ambiguous. See Ardestani v. Immigration and Naturalization Service, 502 U.S. 129, 135, 116 L. Ed. 2d 496, 112 S. Ct. 515 (1991) (″The ’strong presumption’ that the plain language of the statute expresses congressional intent is rebutted only in ’rare and exceptional circumstances,’ when a contrary legislative intent is clearly expressed″) (citations omitted). In addition to the plain language of the statute, there is plain language on which this Court may rely in several United States Supreme Court decisions upholding particular designations of natural objects as national monuments under the Antiquities Act. In Cameron v. United States the Court quoted from the proclamation in which President Theodore Roosevelt designated the Grand Canyon: ″The Grand Canyon, as stated in the Proclamation, ’is an object of unusual scientific interest.’″ 252 U.S. 450, 455, 64 L. Ed. 659, 40 S. Ct. 410 (1920). Far from indicating that only man-made objects are suitable for designation, Cameron notes approvingly that the Canyon ″affords an unexampled field for geologic study [and] is regarded as one of the great natural wonders.″ Id. at 456. The Court in Cappaert v. United States explicitly rejected the argument offered by the Plaintiffs before this Court: ″Petitioners … argue … [that] the President may reserve federal lands only to protect archeologic sites. However, the language of the Act which authorizes the President to [designate] national monuments … is not so limited. 426 U.S. 128, 142, 48 L. Ed. 2d 523, 96 S. Ct. 2062 (1976). In Cappaert the Court upheld a designation of a pool inhabited by ″a peculiar race of desert fish … found nowhere else in the world.″ Id. at 133. The Court has also upheld a designation of islands notable for ″fossils … and … noteworthy examples of ancient volcanism, deposition, and active sea erosion,″ rather than for human artifacts. United States v. California 436 U.S. 32, 34, 56 L. Ed. 2d 94, 98 S. Ct. 1662 (1978). United States v. California addresses not only the President’s discretion to designate natural objects but the geographic scope of that discretion as well. Determining whether a designation had reserved only protruding rocks and islets or submerged lands and waters adjacent to them as well is ″a question only of Presidential intent, not of Presidential power.″ Id. at 36. In light of this unambiguous United States Supreme Court precedent concerning the Antiquities Act, plaintiffs’ reliance on legislative history is clearly misplaced, and their arguments regarding the objects and area of designation untenable. Page 22 of 33 316 F. Supp. 2d 1172, *1188; 2004 U.S. Dist. LEXIS 9865, **38 sential for the idea of a monument to have come from the President. Plaintiffs and defendants are correct that the requirements of NEPA do not apply to the exercise of presidential discretion under the Antiquities Act. To the extent that DOI takes action that could be characterized as final agency action for the purposes of the APA, Plaintiffs are also correct that the requirements of NEPA apply to DOI actions. However, plaintiffs do not cite any legal authority, nor is the Court [**39] aware of any, which suggests that these considerations affect the exercise of presidential authority pursuant to the Antiquities Act. 9 Plaintiffs err in importing a requirement of presidential inspiration into the Antiquities Act’s grant of authority to the President. [**40] Since the Antiquities Act is silent as to whether there are limitations on the sources from which the President may draw the inspiration to act, if such a limitation exists it must be found in other statutory provisions, the Constitution, or in the common law. Although Plaintiffs have directed the Court to no statutory authority to suggest that NEPA has any application to the President’s actions in this case, it is reasonable to look to NEPA for the source of the requirements for which plaintiffs contend. NEPA cannot be the end of the inquiry, however, for HN17 NEPA supplies no private right of action. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990). If an agency to which NEPA applies has violated its requirements, an aggrieved party must bring its complaint within the mechanism supplied by the APA. The APA permits judicial review of ″final agency action for which there is no other adequate remedy in a court.″ 5 U.S.C. § 704. In order for a violation of NEPA to be redressable at law, there- fore, the violation of which a plaintiff complains must form an element of a final agency action subject to judicial review under [**41] the APA. While the United States Supreme Court has not ruled on the precise question whether an agency’s recommendation to the President that he designate a particular monument under the Antiquities Act constitutes final agency action subject to judicial review under the APA, there is good law suggesting the contrary. HN18 In order [*1189] for an agency’s action to have that degree of finality that is amenable to judicial review under the APA, it must have some immediate effect beyond that of a recommendation: the action is final agency action only when the agency’s action itself ″has a direct effect on the day-to-day business″ of the persons or entities affected by the action. Abbott Laboratories v. Gardner, 387 U.S. 136, 152, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967). HN19 That an agency is incapable of taking ″final agency action″ in a particular set of circumstances can serve to insulate the agency’s preliminary actions (resulting in final presidential action) from judicial review under the APA. The United States Supreme Court, in Franklin v. Massachusetts, analyzed the President’s role in communicating the results of the census to Congress for the purpose of reapportioning seats in the [**42] House of Representatives. 505 U.S. 788 (1992). The statutory scheme at issue required the Secretary of Commerce to communicate the results of the census to the President, who then transmitted those results to Congress. 2 U.S.C. §§ 2a(a); 141(b). The fact that the statute requires the President to perform only ministerial functions, such as making apportionment calculations according to set formulae, does not transform the Secretary’s action in carrying out the census into final agency action for the purposes of review Plaintiffs’ best and only case for the requirement that the idea for a monument originate with the President rather than the DOI is a series of emails and letters generated by personnel within the DOI and the CEQ. (Combined Memo ISO Plaintiffs’ Motion for Summary Judgment and Opposition to Defendants’ Motions to Dismiss or for Summary Judgment at 37 et seq.) At best, Plaintiffs have demonstrated that employees within these agencies believed that the idea for the Monument should appear to originate with the President. The machinations of a few agency employees, and the motivations that animated them, however, cannot take the place of some legal authority supporting the plaintiffs’ proposition that the President cannot validly exercise his authority under the Antiquities Act unless the idea for a particular monument originates with him. 9 Page 23 of 33 316 F. Supp. 2d 1172, *1189; 2004 U.S. Dist. LEXIS 9865, **42 under the APA. Because the statute did not require the President to use the data from the Secretary’s report, and because the President is not precluded from directing the Secretary to amend or correct the report, it is the President’s actions, and not those of the Secretary, that effect changes to apportionment. Franklin, 505 U.S. at 797-9. HN20 Central to the determination whether there exists final agency action subject to review under the APA is the question ″whether the agency has completed its decisionrnaking process, and whether the result of that process is one that will directly affect the parties.″ Id. at 797. [**43] When the statute does not permit the agency to act alone, but rather requires presidential action before there is any direct effect on the parties, ″there is no determinate agency action to challenge″ until the President acts. Id. at 799. Even when the presidential action authorized by statute permits the exercise of only limited discretion, and the President will almost certainly rely quite heavily on agency recommendations, the fact that presidential action is required before there will be any effect eliminates the prospect of judicial review under the APA. 10 [**44] HN22 Flaws in an agency process leading to a recommendation to the President, that in turn leads to presidential action, do not convert the action of the agency, or that of the President, into action subject to judicial review under the APA. In Dalton v. Specter the United States Supreme Court reiterated the rule that a process leading to a recommendation, which the President could then choose to accept or reject, even if flawed, did not permit of judicial review pursuant to the APA, since the recommendation did not constitute final agency action. 511 U.S. 462, 469-70, 128 L. Ed. 2d 497, 114 S. Ct. 1719 (″The action that ’will directly affect’ the military [*1190] bases is taken by the President … Accordingly, the Secretary’s and Commission’s reports serve 10 ’more like a tentative recommendation than a final and binding determination … The reports are, ’like the ruling of a subordinate official, not final and therefore not subject to review’″) (citations omitted). HN23 That an agency’s process may have been flawed is not only irrelevant for purposes of review under the APA, it is also powerless to transform a presidential action based on a flawed agency recommendation into a violation of a statute conferring presidential [**45] discretion. The Court in Dalton conceded, arguendo, the proposition that judicial review might be available outside the APA for some claims that a President exceeded the authority given by some statutes, but ″longstanding authority holds that such review is not available when the statute in question commits the decision to the discretion of the President.″ 511 U.S. 462, 474, 128 L. Ed. 2d 497, 114 S. Ct. 1719. While recognizing that some agency processes leading to presidential action are insulated from judicial review by the combination of an absence of final agency action and a grant of discretion to the President, the Court observed that it best fulfils its own constitutional mandate by ″withholding judicial relief where Congress has permissibly foreclosed it.″ Id. at 477. HN24 Confronted by a statute expressly conferring discretion on the President to make precisely the sort of decision he made in designating the Grand Staircase Monument, this Court must conclude that ″how the President chooses to exercise the discretion Congress has granted him is not a matter for [judicial] review.″ Id. at 476. Assuming that plaintiffs are correct, that the original idea for [**46] the Monument was entirely the creature of the DOI, the actions of the DOI had no direct and immediate impact on the plaintiffs. It was the President’s action, and not the action of the DOI, that had the legal effect of creating the Monument, and the DOI’s activities therefore do not constitute fi- HN21 The Supreme Court summarily dismisses the possibility that the President is an agency within the meaning of the APA. Although the definition of agency in the APA does not explicitly exclude the President, ″textual silence is not enough to subject the President to the provisions of the APA. We would require an express statement by Congress before assuming it intended the President’s performance of his statutory duties to be reviewed for abuse of discretion.″ Franklin, 505 U.S. at 800-801. Page 24 of 33 316 F. Supp. 2d 1172, *1190; 2004 U.S. Dist. LEXIS 9865, **46 nal agency action reviewable under the APA. thorized action such that one reviewing the action could recognize whether the will of Con2. CONSTITUTIONAL CLAIMS gress has been obeyed.″ See Id at 425-26. 11 HN27 The Antiquities Act sets [**48] forth In contrast to the limited judicial review disclear standards and limitations. The Act decussed above, judicial review to determine the scribes the types of objects that can be inconstitutionality of a President’s acts may be cluded in national monuments and a limitation appropriate. See Marbury v. Madison, 5 U.S. (1 on the size of monuments. See 16 U.S.C. § Cranch) 137, 2 L. Ed. 60 (1803); Youngstown 431. Although the standards are general, ″ConSheet & Tube Co. v. Sawyer, 343 U.S. 579, 96 L. gress does not violate the Constitution Ed. 1153, 72 S. Ct. 863, 62 Ohio Law Abs. merely because it legislates in broad terms, leav417 (1944); Franklin v. Massachusetts, 505 U.S. ing a certain degree of discretion to executive at 801HN25 (″As the APA does not expressly or judicial actors.″ Touby v. United States, 500 allow review of the President’s actions, we must U.S. 160, 165, 114 L. Ed. 2d 219, 111 S. Ct. presume that his actions are not subject to its 1752 (1991). Accordingly, the non-delegation requirements. Although the President’s actions doctrine is not violated, nor is the Property may still be reviewed for constitutionality″). Clause, which has repeatedly been construed Plaintiffs raise three constitutional claims in this as allowing Congress to delegate its authority to case. First, they assert that the Antiquities Act the executive and judicial branches, including itself is unconstitutional in violation of the delthe power to ″dispose of and make all needful egation doctrine. In addition they claim that Rules and Regulations respecting the Terrieven if the Antiquities Act is [**47] constitu- tory or other Property belonging to the United tional the manner in which it was utilized in cre- States.″ U.S. Const. Art. IV, § 3, cl. 2. See also ating the Grand Staircase Monument violated Tulare County v. Bush, 353 U.S. App. D.C. the Property Clause and the Spending Clause. 312, 306 F.3d 1138 (D.C.Cir. 2002); Mountain States Legal Foundation v. Bush, 353 U.S. A. Delegation Doctrine and Property Clause App. D.C. 306, 306 F.3d 1132 (D.C.Cir.2002); U.S. v. Garfield County, 122 F. Supp.2d Plaintiffs contend that Congress violated both 1201 (D.Utah, 2000). the delegation doctrine (or perhaps more accurately, the non-delegation doctrine) and the [**49] B. Spending Clause Property Clause by giving the President, under the Antiquities Act, virtually unfettered discre- Plaintiffs contend that the Grand Staircase tion to regulate and make rules concerning fed- Monument included privately owned land, the eral property. Neither contention has merit. acquisition of which required the expenditure of HN26 While it is true that Congress has the ex- federal monies. This claim is without merit. press authority under the Constitution’s Prop- HN28 The Antiquities Act requires the Presierty Clause to ″dispose of and make all need- dent to reserve objects of historic or scientific inful Rules and Regulations respecting [*1191] terest that are situated upon lands owned or the Territory or other Property belonging to the controlled by the government of the United United States,″ it is equally true that ConStates. 16 U.S.C. § 431. The President’s Proclagress may delegate this authority as it deems ap- mation creating the Grand Staircase Monupropriate. Yakus v. United States, 321 U.S. ment clearly distinguishes between land owned 414, 88 L. Ed. 834, 64 S. Ct. 660 (1944), and or controlled by the Government of the any delegation is constitutionally permissible if United States and land privately owned or conCongress provides ″standards to guide the autrolled. The Proclamation points out that in cre11 The Courts have upheld virtually every congressional delegation of authority made by Congress for the last 100 years. In fact, there have only been two occasions in the 20th and 21st centuries where congressional delegations of authority were deemed unconstitutional. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S. Ct. 837, 79 L. Ed. 1570 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S. Ct. 241, 79 L. Ed. 446 (1935). Page 25 of 33 316 F. Supp. 2d 1172, *1191; 2004 U.S. Dist. LEXIS 9865, **49 ating the Grand Staircase Monument the President solely withdrew lands owned or controlled by the United States Government. (Proclamation, A75) With respect to privately owned or controlled lands the Proclamation provides that ″Lands and interests in lands not owned by the United States shall be reserved as a part of the monument upon acquisition of title thereto by the United States.″ (Proclamation, A75). The Proclamation clearly indicates that land privately owned or controlled does not pertain to the Monument, but also [**50] designates that such private land may become part of the Monument if it is acquired by future action. Nothing in the Proclamation or in the record supports plaintiffs’ contention that federal monies were expended to acquire private land. Furthermore, plaintiffs have failed to allege any facts supporting their contention. The Court finds no violation of the Spending Clause. as wilderness. Though the Antiquities Act and the Wilderness Act may provide overlapping sources of protection to land that fits within the parameters of both acts, it is beyond dispute that the land reserved within the Grand Staircase Monument is not wilderness and has never been declared to be wilderness pursuant to the Wilderness Act. HN29 The fact that some of the acreage within the boundaries of the Grand Staircase Monument is classified as Wilderness Study Areas does not preclude its inclusion in a national monument. Statutory overlap is not unusual. Numerous statutes provide environmental protection to public land and it is not surprising that some of them overlap. In MSLF v. Bush, the D.C. Circuit Court of Appeals recognized several examples of this, observing that in addition to their other purposes, the Wilderness Act, Wilderness Act 16 U.S.C. §§ 1131-36 (2000), the Park Service [**52] Organic Act, 16 U.S.C. §§ 1-4 [*1192] 3. STATUTORY CLAIMS: (2000), the National Forest Management Act of 1976, Pub.L. No. 94-588, 90 Stat. 2949 (codiA. Wilderness Act fied as amended in scattered sections of 16 U.S.C.) (2000), FLPMA, 43 U.S.C. § 1701, and The land within the Grand Staircase Monuthe Multiple Use Sustained Yield Act, 16 ment amounts to approximately 1.7 million U.S.C. §§ 528-29, 531 (2000), all protect scenic acres. This land, withdrawn by President Clinvalues, natural wonders, and wilderness valton, constitutes what he believed to be the reques. See Bush, 306 F.3d at 1138. If overlapuisite amount of land necessary to preserve the ping sources of protection were not allowed, the designated scientific and historic objects. The Park Service Organic Act would be a repeat ofwithdrawal, according to plaintiffs, constitutes a fender, as it protects not only wilderness siviolation of the Wilderness Act because the multaneously with the Wilderness Act, but it also President created de facto wilderness, which is a protects endangered species in a manner simipower reserved solely to Congress. Plainlar to the Endangered Species Act. As the D.C. tiffs’ arguments are without merit, finding no Circuit stated, ″MSLF misconceives federal support in the language of either the Wilderlaws as not providing overlapping sources of ness Act or the Antiquities Act, or in the protection.″ Id. at 1138. case law. In fact, recent case law is to the conPlaintiffs’ argument would prevent a President trary; in Mt. States Legal Found. v. Bush, 353 U.S. App. D.C. 306, 306 F.3d 1132 (D.C. of the United States from including within a Cir.2002), the D.C. Circuit Court of Appeals national monument not only lands already declared by Congress as ″wilderness,″ a contenrejected [**51] this same argument. tion which is itself dubious, but also all lands It is undisputed that the President’s designation that have previously been classified as Wilderof the Grand Staircase Monument was made ness Study Areas and included in unsuccesspursuant to his authority under the Antiquities ful wilderness proposals [**53] of some memAct. All of the land found within the boundarbers of the public and some members of ies of the Monument is part of the MonuCongress. Plaintiffs’ contention is contrary to ment, regardless whether it could also qualify the purpose of the Antiquities Act, which is to Page 26 of 33 316 F. Supp. 2d 1172, *1192; 2004 U.S. Dist. LEXIS 9865, **53 identify and protect important scientific and historic objects and to set aside the necessary surrounding land to insure their continued protection. If plaintiffs’ position were sound, a President would be prohibited from including within a national monument any land with the possibility of being declared wilderness, even though such land qualifies as 1) an object of historic or scientific value, or 2) land that must be set aside in order to protect designated objects. Such an outcome would effectively repeal the Antiquities Act in these circumstances, [*1193] and no such intent to repeal was expressed implicitly or explicitly by Congress in the Wilderness Act. Furthermore, if the land deemed necessary to be included within a national monument includes wilderness areas or Wilderness Study Areas, it appears likely that such lands would continue in their existing state with the attendant restrictions on use. Any other result would be in violation of the Wilderness Act; but nothing in either the or the Antiquities Act prevents such lands [**54] from being part of a national monument. An underlying theme of plaintiffs’ position is a belief that President Clinton and those of his political persuasion were able to (improperly) accomplish through the Antiquities Act what they had been unsuccessful in accomplishing through the Wilderness Act. The proponents of wilderness designation for approximately 900,000 acres of the federal land that ended up within the Grand Staircase Monument had earlier failed to persuade Congress to designate the land as wilderness. Thereafter, however, according to plaintiffs, they achieved most, if not all, of the protection they were seeking for this land when the President included the acreage within the Grand Staircase Monument. Plaintiffs feel this second, successful, effort at protecting the land was unlawful. But they can point to no law that was broken in creating the Grand Staircase Monument. The President unquestionably had the authority to do what he did under the Antiquities Act. After briefing was closed in this case, the United States District Court for the District of Wyoming decided Wyoming v. U.S. Dept. of Agri., et al, 277 F. Supp.2d 1197 (D.Wyo.2003). Plaintiffs [**55] urge this Court to follow the reasoning in that case in which the Department of Agriculture’s Roadless Rule was found to be in violation of the Wilderness Act. That case and the instant case, however, have one critical difference that makes the Wyoming case inapplicable here. Wyoming concerned a rule promulgated solely within and pursuant to the authority of an executive branch department, whereas this case concerns not the rule-making authority of a lowerlevel department, but of the President himself as specifically designated by an act of Congress. This distinction is critical. The Wyoming case addressed the actions of the U.S. Forest Service and the Clinton Administration which culminated in the so-called ″Roadless Rule″ being entered as a Record of Decision by the Secretary of Agriculture on January 5, 2001. The Roadless Rule was put on a very fast track, beginning with a directive from President Clinton to the U.S. Forest Service on October 13, 1999, and ending with a fully completed (and NEPA mandated) agency review process only 15 months later. The Roadless Rule specifically prohibited road construction and other uses in inventoried roadless areas of the National [**56] Forest System, and by so doing created 58.5 million acres of what the district court referred to as de facto wilderness because the protection and treatment of the subject acreage was virtually indistinguishable from wilderness. In addition to finding that the hurried-up process violated NEPA, the district court found that the Roadless Rule violated the Wilderness Act. Central to this latter finding were two main points. First, as stated above, the Court recognized that the land in question was de facto wilderness because a) the land was the same as wilderness in its definition (i.e. ″roadless area″ is virtually synonymous with ″wilderness area″); b) the land had the same use restrictions as wilderness; and c) the land was virtually identical to the land recommended (unsuccessfully) as wilderness by the 1977 RARE II inventory. Second, the district court recognized that one of the primary objectives of the 1964 Wilderness Act was to end the then-existing practice of executive Page 27 of 33 316 F. Supp. 2d 1172, *1194; 2004 U.S. Dist. LEXIS 9865, **56 [*1194] branch agencies, including notably the Forest Service, designating wilderness areas in their sole discretion and as they saw fit, with no direct authority from Congress. As the district court stated: [**57] To this end, the Wilderness Act removed the Secretary of Agriculture’s and the Forest Service’s discretion to establish de facto administrative wilderness areas, a practice the executive branch had engaged in for over forty years. Instead, the Wilderness Act places the ultimate responsibility for wilderness designation on Congress. In this regard, the Wilderness Act functions as a ″proceed slowly order″ until Congress-- through the democratic process rather than by administrative fiat-- can strike the proper balance between multiple uses and preservation. (citations omitted). Id at 1233. The Wyoming court concluded its review of the Wilderness Act by stating ″this statutory framework necessarily acts as a limitation on agency action.″ Id at 1233. Notably, the district court did not say ″a limitation on Presidential action,″ and certainly nothing in the Wyoming opinion suggests the court would have employed the same reasoning to the creation by the President of a national monument under the Antiquities Act. B. NEPA, FLPMA, FACA and the AntiDeficiency Act HN30 When bringing a lawsuit for violation of statutory law parties must either find language in the statute itself which allows a private right of action, or demonstrate the occurrence of final agency action, which invokes the Court’s authority to review the claim under the Administrative Procedure Act. If parties fail to meet these requirements they are precluded from challenging the alleged statutory violation. Plaintiffs allege that in his designation of the Grand Staircase Monument the President and the other defendants violated NEPA, FLPMA, FACA and the Anti-Deficiency Act. These statutes, however, provide no private [**59] right of action to an aggrieved party. See Lujan, 497 U.S. 871, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990) (no private right of action available under NEPA and FLPMA); Judicial Watch, Inc. v. National Energy Policy Development Group, 219 F. Supp.2d 20, (D.D.C., July 2002); (Federal Advisory Committee Act creates no private right of action); Cessna Aircraft Co. v. Dalton, 126 F.3d 1442 (Fed.Cir.1997) (no private right of action available under the Anti-Deficiency Act). Because none of these statutes provide private rights of action the plaintiffs are left with the insurmountable task in this case of demonstrating final agency action to invoke review under the APA. As stated previously in this Opinion HN31 the Supreme Court of the United States has declared that the President is not an agency and cannot be defined as such under the APA. See Franklin v. Massachusetts, 505 U.S. 788, 120 L. Ed. 2d 636, 112 S. Ct. 2767 (1992); Dalton v. Specter, 511 U.S. 462, 128 L. Ed. 2d 497, 114 S. Ct. 1719 (1994); Armstrong v. Bush, 288 U.S. App. D.C. 38, 924 F.2d 282, 288 (D.C.Cir.1991). It follows that actions taken by the President pursuant to congressionally [**60] [*1195] delegated authority cannot be considered final agency action. If the instant case involved actions by the Secretary of the Interior, or the BLM, to use departmental or agency rule-making [**58] authority to protect federal lands that had previously failed to achieve wilderness status after having been identified as candidates for such status, and if the protection was virtually identical to the protection afforded wilderness, the outcome here might be the same as in Wyoming. But those are not the facts of this case and that is not the issue before this Court. Here the Court is faced with an entirely different question involving presidential action performed precisely as granted and directed by ConAlso as discussed previously in this Opinion, gress. (see pp. 23-28), plaintiffs’ contention that the defendant lower-level executive branch offi- Page 28 of 33 316 F. Supp. 2d 1172, *1195; 2004 U.S. Dist. LEXIS 9865, **60 cials’ recommendations to the President constituted final agency action is also without merit. Recommendations and actions taken by the lower-level executive branch officials encouraging designation of the Grand Staircase Monument constituted nothing more than recommendations and assistance to the President and failed to meet the legal requirements for final agency action. See generally Franklin, 505 U.S. at 800. All decisions and actions constituting final action were made by the President in his official capacity. The ultimate decision to create the Grand Staircase Monument rested with, belonged to, and was made by, President Clinton. in the President by law″ to an agency or department head. It also states ″that nothing contained herein shall relieve the President of his responsibility in office for the acts of any such head or other official designated by him to perform such functions.″ 3 U.S.C. § 301. The President [**62] must publish such authorization in the Federal Register, but he may place terms, conditions, and limitations on the use of the delegated authority, and he may revoke the delegation ″in whole or in part″ at any time. Id. Plaintiffs contend that the phrase ″authority otherwise vested in him″ in E.O. 10355 include the authority to withdraw lands under the AntiqC. Executive Order 10355 uities Act and transfers the President’s authority under that Act exclusively to the Secretary of UAC next argues that the President’s designa- the Interior. For this [**63] argument to pretion of the Grand Staircase Monument was in- vail, several prerequisites must have been fulvalid because it violated Executive Order filled: 1) E.O. 10355 must have contem10355 (E.O. 10355). HN32 E.O. 10355 was isplated the transfer of the President’s authority sued by President Harry S. Truman in 1952. It under the Antiquities Act, 2) the transfer must delegated to the Secretary of the Interior ″the have been valid, that is, the underlying statauthority vested in the President by secute must allow such a transfer, 3) the transfer tion [**61] 1 of the act of June 25, 1910 [the must have been complete, meaning that the Pickett Act], and the authority otherwise President retained no authority under the Anvested in him to withdraw or reserve lands of tiquities Act, and 4) E.O. 10355 must still be in the public domain and other lands owned or con[*1196] force; i.e. it has not since been retrolled by the United States … for public purpealed or revoked. If any of these conditions has poses.″ 17 Fed. Reg. 4831 (May 26, 1952). The not been met, E.O. 10355 poses no restraint Secretary of the Interior was also authorized on the President’s authority to designate a nato ″modify or revoke withdrawals and reservational monument under the Antiquities Act. tions of such lands hertofore or hereafter made.″ Id. The Order further directed that ″all 1. Delegation of Authority under the Antiquiorders issued by the Secretary of the Interior un- ties Act der the authority of this order shall be designated as public land orders and shall be submit- It is questionable whether E.O. 10355 ever delted to the Division of the Federal Register …. egated the authority granted to the President for filing and for publication in the FEDERAL under the Antiquities Act. Although the lanREGISTER.″ Id. guage of the Order is general, to construe the Order as granting every withdrawal authority posPresident Truman issued E.O. 10355 by virtue of sessed by the President would, in the Court’s section 301 of title 3 of the United States view, be an overly broad interpretation. E.O. Code, 12 which HN33 states that the Presi10355 specifically delegates to the Secretary dent may delegate ″any function which is vested of the Interior the President’s authority under the HN34 3 U.S.C. § 301 is a general authorization to delegate presidential functions. Both parties in this case seem to mistakenly believe that E.O. 10355 was issued pursuant to ″statutory authority under the Pickett Act″ and implied authority under the Midwest Oil doctrine. Although it delegated the withdrawal authority under the Pickett Act and the Midwest Oil doctrine, the authority to delegate those withdrawal powers came from 3 U.S.C. § 301, not from the withdrawal authority itself. 12 Page 29 of 33 316 F. Supp. 2d 1172, *1196; 2004 U.S. Dist. LEXIS 9865, **63 Pickett Act as well as ″the authority otherwise vested in [the President] [**64] to withdraw and reserve lands …″ The broad, almost all -encompassing language of the Order presents an ambiguity and should be interpreted with reference to the entire Order. See, In re Crowell, 305 F.3d 474, 478 (6th Cir. 2002) HN35 (administrative orders delegating authority to agency officials warrant the use of rules of construction similar to those used in statutory interpretation); U.S. v. Brown, 348 F.3d 1200, 1209 (10th Cir. 2003)(to determine the meaning of ambiguous language in regulations, a court should look for clues elsewhere in those regulations); citing, Oxy USA, Inc. v. Babbitt, 268 F.3d 1001, 1005 (10th Cir. 2001)(similar rule for statutory construction). The defendants argue that ″the authority otherwise vested in him″ refers to the authority granted to the President under the Midwest Oil doctrine, 13 which seems reasonable given that the authority under both the Pickett Act and the Midwest Oil doctrine are similar and related. This interpretation would also help explain why President Truman did not refer specifically to the Antiquities Act in delegating the President’s withdraw authority, a practice to which [**65] he seemed accustomed. See, e.g., Exec. Order No. 10250, 16 Fed. Reg. 5385 (June 5 1951), reprinted as amended in 3. U.S.C.A. § 301 at 849-51 (1997)(delegating functions to the Secretary of the Interior and specifying more than 15 statutes from which those functions were derived). Moreover, HN36 courts will generally give substantial deference to the President’s or the applicable department’s interpretation and use of an executive order. See [**66] e.g., Alaniz v. Office of Pers. Mgmt. , 728 F.2d 1460, 1465 (Fed. Cir. 1984)(″it is recognized that an agency has presumed expertise in interpreting executive orders charged to its administration, and judicial review must accord great deference to the agency’s interpretation″), citing Udall v. Tallman, 380 U.S. 1, 16-17, 85 S. Ct. 792, 801-2, 13 L. Ed. 2d 616 (1965). 14 Since E.O. 10355 [*1197] was issued, land has been withdrawn on 20 different occasions to create national monuments. 15 Each of these monuments was designated by the President. No national monument has been designated by the Secretary of 13 The Midwest Oil doctrine stems from the Supreme Court case United States v. Midwest Oil Co., 236 U.S. 459, 59 L. Ed. 673, 35 S. Ct. 309 (1915). In Midwest Oil, President Theodore Roosevelt issued a special Order in anticipation of the Pickett Act withdrawing all public lands which were being used for petroleum exploration. The Order was challenged, but was upheld by the Court. The Court recognized that the President was not acting in a novel manner, but rather was following a precedent that had been set many years before by his predecessors. 14 Udall is particularly relevant to the present dispute. In Udall, the Supreme Court upheld the actions of the Secretary of Interior and deferred to the Secretary’s interpretation of an executive order granting him authority to act. The Court’s language is particularly helpful: When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration …. When the construction of an administrative regulation rather than a statute is in issue, deference is even more clearly in order … ″It may be argued that while these facts and rulings prove a usage, they do not establish its validity. But government is a practical affair, intended for practical men. Both officers, lawmakers, and citizens naturally adjust themselves to any long continued action of the Executive Department, on the presumption that unauthorized acts would not have been allowed to be so often repeated as to crystallize into a regular practice. That presumption is not reasoning in a circle, but the basis of a wise and quieting rule that, in determining the meaning of a statute or the existence of a power, weight shall be given to the usage itself,-even when the validity of the practice is the subject of investigation.″ Udall, 380 U.S. at 16-17, 85 S. Ct. at 801-2, 13 L. Ed. 2d 616, quoting Midwest Oil, 236 U.S. at 472-3, 35 S. Ct. at 319, 59 L. Ed. 673. 15 Below is a list of national monuments designated pursuant to the Antiquities Act since E.O. 10355 was issued, along with the respective President who exercised the withdrawal authority. Dwight D. Eisenhower 7/14/56 Edison Laboratory, NJ Page 30 of 33 316 F. Supp. 2d 1172, *1197; 2004 U.S. Dist. LEXIS 9865, **66 the Interior pursuant to E.O. 10355 since its enactment in 1952. Such action on the part of both the President and the Secretary of the Interior strongly indicates that neither interpreted E.O. 10355 to include the authority granted under the Antiquities Act. As a result, this Court will not imply such an interpretation. 2.Validity of a delegation of Antiquities Act Authority 1/18/61 Chesapeake and Ohio Canal, MD-WV John F. Kennedy 5/11/61 Russell Cave, AL 12/28/61 Buck Island Reef, VI Lyndon B. Johnson 1/20/69 Marble Canyon, AZ Jimmy Carter 12/1/78 Admiralty Island, AK (Forest Service) 12/1/78 Aniakchak, AK 12/1/78 Becharof, AK 12/1/78 Bering Land Bridge, AK 12/1/78 Cape Krusenstern, AK 12/1/78 Denali, AK 12/1/78 Gates of the Arctic, AK 12/1/78 Kenai Fjords, AK 12/1/78 Kobuk Valley, AK 12/1/78 Lake Clark, AK 12/1/78 Misty Fjords, AK (Forest Service) 12/1/78 Noatak, AK 12/1/78 Wrangell-St. Elias, AK 12/1/78 Yukon-Charley, AK 12/1/78 Yukon Flats, AK Even assuming that E.O. 10355 originally contemplated within its language delegating the authority to withdraw land for designating national monuments, HN37 ″a President may only [**68] confer by Executive Order rights that Congress has authorized the President to confer.″ Karuk Tribe of California v. Ammon, 209 F.3d 1366, 1375 (Fed. Cir. 2000). As the regulations implementing section 204 of FLPMA recognized, E.O. 10355 ″conferr[ed] Page 31 of 33 316 F. Supp. 2d 1172, *1197; 2004 U.S. Dist. LEXIS 9865, **68 on the Secretary of the Interior all of the del- be vested in several individuals. Such a result is egable authority of the President…″ 43 C.F.R. § untenable and clearly beyond what Congress intended when passing the Antiquities Act. 2300.0-3(a)(2)(2004)(emphasis added). HN38 Although 3 U.S.C. § 301 authorizes the President to delegate ″any function which is vested in [him] by law″ to a department or agency head in the executive branch, delegation of the authority to designate national monuments seems inconsistent with the Antiquities Act itself. The Antiquities Act provides that ″[t]he President … is authorized, in his discretion, to [designate national monuments].″ 16 U.S.C. § 431 (2000) (emphasis added). Because Congress only authorized the withdrawal of land for national monuments to be done in the President’s discretion, it follows that the President is the only individual who can exercise this authority because only the President can exercise his own discretion. [**69] Discretion is defined as ″[a] public official’s power or right to act in [*1198] certain circumstances according to personal judgment and conscience.″ BLACK’S LAW DICTIONARY 479 (7th cd. 1999). It is illogical to believe that the President can delegate his personal judgment and conscience to another. Moreover, E.O. 10355 authorizes the Secretary of the Interior to ″redelegate the authority delegated to him by this order to … the Under Secretary of the Interior and [to] the Assistant Secretaries of the Interior.″ If the Court were to accept UAC’s argument, the unfettered discretion 16 of the President to withdraw public lands for national monuments could potentially [**70] This Court is persuaded that the President, and only the President, may designate National monuments under the Antiquities Act regardless whether President Truman intended to delegate this authority by means of E.O. 10355. The Court finds support for its interpretation in State of Alaska v. Carter, 462 F. Supp. 1155, 1159 (D. Alaska 1978) HN40 (″The Antiquities Act authorizes the President ’in his discretion’ to declare objects that have scientific interest, and are situated upon the public lands, to be national monuments. The Act authorizes only the President to declare these reservations and apparently this authority cannot be delegated.″ (citations omitted)). 3. Complete delegation of authority UAC’s reliance on E.O. 10355 also assumes that the delegation of authority was complete; that is, that the President relinquished all of his authority under the Antiquities Act to the Secretary of the Interior, forbidding any future action by the President himself pursuant to the Act. This interpretation is suspect where the language of E.O. 10355 does not specifically limit the President nor empower the Secretary of the Interior in such a manner. Additionally, history has [**71] shown that presidents after Harry S. Truman continued to designate national monuments using the authority granted by the Antiquities Act. The Second Circuit faced a similar question in 16 HN39 Although FLPMA imposes numerous requirements on the Secretary of the Interior when withdrawing land, the Antiquities Act was specifically exempted from the reach of FLPMA. In passing FLPMA, the House stated: The main authority used by the Executive to make withdrawals is the ’implied’ authority of the President recognized by the Supreme Court in U.S. v. Midwest Oil Co. (236 U.S. 459, 59 L. Ed. 673, 35 S. Ct. 309). The bill would repeal this authority and, with certain exceptions, all identified withdrawal authority granted to the President or the Secretary of the Interior. The exceptions, which are not repealed, are contained in the Antiquities Act (national monuments), Alaska Native Claims Settlement Act (native and public-interest withdrawals), the Defense Withdrawal Act of 1958, and Taylor Grazing Act (grazing districts). H.R. Rep. No. 94-1163, 94th Cong., 2d Sess. 5 (1976), reprinted in 1976 U.S.C.C.A.N. 6175, 6203. Therefore, when the President is creating national monuments pursuant to the Antiquities Act, his discretion would be unquestioned by Congress. If E.O. 10355 did indeed delegate to the Secretary of the Interior the President’s Antiquities Act authority, it Page 32 of 33 316 F. Supp. 2d 1172, *1198; 2004 U.S. Dist. LEXIS 9865, **71 Clarry v. United States, 85 F.3d 1041 (2d Cir. 1996). In Clarry, former air traffic controllers had been indefinitely barred by President Reagan from employment with the Federal Aviation Administration (FAA) and private entities that contracted with the FAA because of their participation in a strike against the United States. The President ordered the indefinite bar notwithstanding the regulations [*1199] promulgated by the Office of Personnel Management (OPM), which provided for only a three year ban. The regulations had been issued pursuant to authority delegated to the OPM by the President in two prior executive orders. The Second Circuit found that the President had not specifically delegated to the OPM his statutory authority ″to prohibit the employment of individuals who have participated in a strike against the United States.″ Id. at 1048. Because there was no specific delegation, the executive orders did not constitute a complete delegation of the President’s authority. [**72] Therefore, nothing prevented the President from implementing an indefinite employment bar pursuant to his statutory authority and notwithstanding regulations to the contrary. Id. President and did not solely reside with the Secretary of the Interior. 4. Revocation of E.O. 10355 [**73] In addition to the previous arguments, defendants contend that FLPMA implicitly repealed E.O. 10355, transferring all authority under the Antiquities Act, if it ever was delegated, back to the President. HN41 ″The test used to determine whether a statute has been repealed is also used for an executive order. A repeal may be explicit or implicit, [and] [t]he ultimate question is whether repeal of the prior statute [or order] was intended.″ Mille Lacs Band of Chippewa Indians v. Minnesota Dep’t of Natural Resources, 861 F.Supp 784, 829 (D. Minn. 1994) citing Radzanower v. Touche Ross & Co., 426 U.S. 148, 153-54, 48 L. Ed. 2d 540, 96 S. Ct. 1989 (1976). HN42 Any delegation of authority pursuant to 3 U.S.C. § 301 is ″revocable at any time by the President in whole or in part.″ Because Presidents continued to withdraw public land for national monuments after E.O. 10355 was issued, the logical conclusion is that any delegation of authority under the Antiquities We are faced with a similar situation. UAC ar- Act that E.O. 10355 may have made was implicgues that the President may no longer use itly revoked. Such a revocation is well within the authority granted to him under the Antiqui- the President’s authority to partially revoke his ties Act because of E.O. 10355. However, own executive order. there is nothing in the language of the Order to HN43 Additionally, FLPMA and its attendant indicate that, even if the authority to designate national monuments was delegated to the regulations also [**74] indicate that Congress Secretary of the Interior - which the Court does intended to repeal any delegation authority to not find - there was a complete delegation of designate national monuments to the Secretary authority. Without a specific reference to the An- of the Interior. Through FLPMA, Congress specifically repealed the Pickett Act, the Midtiquities Act, and some indication that the President no longer intended to designate na- west Oil doctrine and other Acts granting withtional monuments, this Court cannot conclude drawal authority to the President, thereby extinguishing Presidential authority to withdraw that E.O. 10355 constituted a complete delegation of the President’s authority. On the con- public lands in many circumstances. As a retrary, the fact that Presidents continued to ex- sult, Congress also revoked any delegations of ercise Antiquities Act authority indicates that, authority to other members of the Executive even if E.O. 10355 was a valid delegation of Branch related to the repeal of that authority. Noauthority, the authority to withdraw national tably, FLPMA specifically excludes the Antiquities Act from its reach and reaffirms the monuments remained concurrently with the stands to reason that FLPMA would remain inapplicable to the actions of the Secretary if the Secretary designated a national monument. Page 33 of 33 316 F. Supp. 2d 1172, *1199; 2004 U.S. Dist. LEXIS 9865, **74 President’s authority to designate national monuments. Even more, the regulations seem to indicate that, even if the Secretary of the Interior previously enjoyed authority [*1200] to designate national monuments, that was no longer the case: ″the Secretary of the Interior does not have authority to … modify or revoke any withdrawal creating national monuments under the Act of June 8, 1906 ( 16 U.S.C. 431-433), sometimes referred to as the Antiquities Act.″ 43 C.F.R. § 2300.0-3(a)(1)(iii). Although the regulations go on to state that, [**75] by virtue of E.O. 10355, the Secretary still possesses all the delegable Presidential authority to ″make, modify and revoke withdrawals and reservations with respect to lands of the public domain …,″ 43 C.F.R. § 2300.03(a)(2), it appears evident that Congress never considered authority under the Antiquities Act as ″delegable″ in the first place. Supp.2d 403, 413 (D. Mass. 2002), citing Indep. Meat Packers Ass’n. v. Butz, 526 F.2d 228, 234-35 (8th Cir. 1975). E.O. 10355 fails on both counts to create a private right of action. First, E.O. 10355 was not issued pursuant to a ″statutory mandate″ from Congress and therefore does not have the effect of law. Were this so, there would be some language in the Antiquities Act itself directing the President to delegate or otherwise employ the authority granted to him. There is no such mandate from Congress. Rather, President Truman resorted to 3 U.S.C. § 301 as authority for E.O. 10355, which grants broad delegation authority to the President. This authority seems managerial in nature, giving the President [**77] the ability to direct and delegate the affairs of the executive branch in a manner he deems best. Because this was an internal delegation in the executive branch, revokable at any time by the President, E.O. 10355 does not have the force or effect of law. Therefore, any effect E.O. 10355 may have had on the President’s authority to withdraw land for national monuments under the Antiquities Act has been repealed, both by Presiden- Second, there is nothing in E.O. 10355 itself indicating that President Truman intended to cretial action and Congressional legislation. ate a private right of action to enforce com5. Private Right of Action to Enforce Execupliance with the order. HN45 In the absence of tive Orders such an intent on the face of the order, this Court will not imply one. Finally, even if this Court were to accept UAC’s argument that E.O. 10355 forbids the UAC’s argument that because of E.O. 10355 President from withdrawing public lands for nathe Secretary of the Interior is currently the only tional monuments fails on many levels, any individual invested with authority to withdraw one of which is sufficient for this Court to hold public land to create national monuments pursuthat E.O. 10355 did not prohibit the President ant to the Antiquities Act, the Court questions from designating the Grand Staircase Monuwhether UAC or a court can enforce E.O. 10355. ment under the Antiquities Act. It is well settled that HN44 ″generally, there is no private right of action to enforce obligaCONCLUSION tions imposed on executive branch officials by executive orders.″ Zhang v. Slattery, 55 F.3d For the foregoing reasons, defendants’ Motion 732, 747 (2nd Cir. 1995) [**76] (quotations and to Dismiss and in the alternative for Sumcitations omitted). Furthermore, ″to assert a jumary Judgment is GRANTED; [*1201] plaindicially enforceable private cause of action tiffs’ Motions for Summary Judgment are DEunder an executive order, a plaintiff must show (1) that the President issued the order pursu- NIED in their entirety. IT IS SO ORDERED. ant to a statutory mandate or delegation of auDated this 19th day of April, 2004. thority from Congress, and (2) that the Order’s terms and purpose evidenced an intent [on Dee Benson the part of the President] to create a private right of action.″ Centola v. Potter, 183 F. United States District Judge Caution As of: September 15, 2017 4:58 PM Z United States v. New Mexico Supreme Court of the United States April 24, 25, 1978, Argued ; July 3, 1978, Decided No. 77-510 Reporter 438 U.S. 696 *; 98 S. Ct. 3012 **; 57 L. Ed. 2d 1052 ***; 1978 U.S. LEXIS 43 ****; 11 ERC (BNA) 1904; 8 ELR 20564 UNITED STATES v. NEW MEXICO Prior History: [****1] CERTIORARI TO THE SUPREME COURT OF NEW MEXICO. Disposition: 90 N. M. 410, 564 P. 2d 615, affirmed. Syllabus on the briefs were Solicitor General McCree, Deputy Solicitor General Barnett, Peter R. Steenland, and Dirk D. Snel. Richard A. [****2] Simms, Special Assistant Attorney General of New Mexico, argued the cause for respondent. With him on the brief were Toney Anaya, Attorney General, Peter Thomas White, and Don Klein, Special Assistant Attorneys General. John Undem Carlson argued the cause for the Twin Lakes Reservoir and Canal Co. et al. as amici The United States, in setting aside the Gila curiae urging affirmance. With him on the brief National Forest from other public lands, held to were Alan E. Boles, Jr., Charles M. Elliott, and have reserved the use of water out of the Rio Charles J. Beise. * Mimbres only where necessary to preserve the timber in the forest or to secure favorable water [****3] flows, and hence not to have a reserved right for aesthetic, recreational, wildlife-preservation, and * A brief of amici curiae urging affirmance was filed by Ralph stockwatering purposes. That this was Congress' Hunsaker for the Arizona Water Commission, and for their intent is revealed in the limited purposes for which respective States by Evelle J. Younger, Attorney General of the national forest system was created and in California; Robert B. Hansen, Attorney General of Utah; Michael T. Congress' deference to state water law in the Greely, Attorney General of Montana; Wayne L. Kidwell, Attorney General of Idaho, and Josephine Beeman, Assistant Attorney Organic Administration Act of 1897 and other General; Slade Gorton, Attorney General of Washington, and legislation. While the Multiple-Use Sustained- Charles B. Roe, Jr., Senior Assistant Attorney General; Robert F. Yield Act of 1960 was intended to broaden the List, Attorney General of Nevada, and Harry W. Swainston, Deputy purposes for which national forests had previously Attorney General; James A. Redden, Attorney General of Oregon, and Clarence R. Kruger, Assistant Attorney General; J. D. been administered, Congress did not intend thereby MacFarlane, Attorney General of Colorado, and David W. Robbins, to reserve additional water in forests previously Deputy Attorney General; V. Frank Mendicino, Attorney General of Wyoming, and Jack D. Palma II, Assistant Attorney General. Briefs withdrawn under the 1897 Act. Pp. 698-718. Counsel: Assistant Attorney General Moorman argued the cause for the United States. With him of amici curiae urging affirmance were also filed by Gary J. Greenberg for Molycorp, Inc.; by J. Wayne Woodbury for Phelps Dodge Corp.; and by M. Byron Lewis and Neil Vincent Wake for the Salt River Project Agricultural Improvement and Power District. Page 2 of 15 United States v. New Mexico Judges: REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, BLACKMUN, and STEVENS, JJ., joined. POWELL, J., filed an opinion dissenting in part, in which BRENNAN, WHITE, and MARSHALL, JJ., joined, post, p. 718. Opinion by: REHNQUIST Opinion aesthetics, wildlife preservation, or cattle grazing. The United States appealed unsuccessfully to the Supreme Court of New Mexico. Mimbres Valley Irrigation Co. v. Salopek, 90 N. M. 410, 564 P. 2d 615 (1977). We granted certiorari to consider whether the Supreme Court of New Mexico had applied the correct principles of federal law in determining petitioner's reserved rights in the Mimbres. 434 U.S. 1008. We now affirm. [****5] I MR. JUSTICE The question posed in this case -- what quantity of water, if any, the United States reserved out of the REHNQUIST delivered the opinion of the Court. Rio Mimbres when it set aside the Gila National [1A]The Rio Mimbres rises in the southwestern Forest in 1899 -- is a question of implied intent and highlands of New Mexico and flows generally not power. In California v. United States, ante, at southward, finally disappearing in a desert sink just 653-663, we had occasion to discuss the respective north of the Mexican border. The river originates authority of Federal and State Governments over in the upper reaches of the Gila National Forest, but [***1056] waters in the Western States. 2 during its course it winds more than 50 miles past privately owned lands and provides substantial The Court has previously concluded that whatever water for both irrigation and mining. In 1970, a powers the States acquired over their waters as a stream adjudication was begun by the State of New result of congressional Acts and admission into the Mexico to determine the exact rights of each user to Union, however, Congress did not intend thereby to relinquish its authority to reserve unappropriated [**3013] water from the Rio Mimbres. 1 water in the future for use on appurtenant lands In this [*698] adjudication the United States withdrawn from the public domain for specific claimed reserved water rights for use in the Gila federal purposes. Winters v. United States, 207 National Forest. The State District Court held that U.S. 564, 577 (1908); Arizona v. California, 373 the United States, in setting aside the Gila National U.S. 546, 597-598 (1963); Cappaert v. United Forest from other public lands, reserved the use of States, 426 U.S. 128, 143-146 (1976). such water "as may be necessary for the purposes for which [the [****4] land was] withdrawn," but [****6] [*699] Recognition of Congress' power to that these purposes did not include recreation, reserve water for land which is itself set apart from the public domain, however, does not answer the question of the amount of water which has been reserved or the purposes for which the water may 1 The suit was initially filed in 1966 as a private action by the be used. Substantial portions of the public domain Mimbres Valley Irrigation Co. to enjoin alleged illegal diversions from the Rio Mimbres. In 1970, the State of New Mexico, pursuant have been withdrawn and reserved by the United to New Mexico Stat. Ann. § 75-4-4 (1953), filed a complaint-in- States for use as Indian reservations, forest intervention seeking a general adjudication of water rights in the Rio reserves, national parks, and national monuments. Mimbres and its tributaries. Under 43 U. S. C. § 666 (a), "[consent] And water is frequently necessary to achieve the is given to join the United States as a defendant in any suit . . . for the adjudication of rights to the use of water of a river system or purposes for which these reservations are made. [*697] [***1055] [**3012] other source," including the reserved rights of the United States. See United States v. District Court for Eagle County, 401 U.S. 520 (1971); United States v. District Court for Water Div. No. 5, 401 U.S. 527 (1971). 2 See also Andrus v. Charlestone Stone Products Co., 436 U.S. 604 (1978). Page 3 of 15 United States v. New Mexico But Congress has seldom expressly reserved water for use on these withdrawn lands. If water were abundant, Congress' silence would pose no problem. In the arid parts of the West, however, claims to water for use on federal reservations inescapably vie with other public and private claims for the limited quantities to be found in the rivers and streams. This competition is compounded by the sheer quantity of reserved lands in the Western States, which lands form brightly colored swaths across the maps of these States. 3 unspecified, the Court has repeatedly emphasized that Congress reserved "only that amount of water necessary to fulfill the purpose of the reservation, no more." Cappaert, supra, at 141. See Arizona v. California, supra, at 600-601; District Court for Eagle County, supra, at 523. Each time this Court has applied the "implied-reservation-of-water [****8] doctrine," it has carefully examined both the asserted water right and the specific purposes for which the land was reserved, and concluded that without the water the purposes of the reservation would be entirely defeated. 4 [****7] 4 [2]The Court has previously concluded that Congress, in giving [*700] the President the power to reserve portions of the federal domain for specific federal purposes, impliedly authorized him to reserve "appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation." Cappaert, supra, at 138 (emphasis added). See Arizona v. California, supra, at 595-601; United States v. District Court for Eagle County, 401 U.S. 520, 522-523 (1971); Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 805 [***1057] (1976). While many of the contours of what has come to be called the "implied-reservation-of-water doctrine" remain In Winters v. United States, 207 U.S. 564 (1908), the Court was faced with two questions. First, whether Congress, when it created the Fort Belknap Indian Reservation by treaty, impliedly guaranteed the Indians a reasonable quantity of water. And second, whether Congress repealed this reservation of water when it admitted Montana to the Union one year later "upon an equal footing with the original States." In answering the first question, the Court emphasized that the reservation was formed to change the Indians' "nomadic and uncivilized" habits and to make them into "a pastoral and civilized people." Id., at 576. Without water to irrigate the lands, however, the Fort Belknap Reservation would be "practically valueless" and "civilized communities could not be established thereon." Ibid. The purpose of the Reservation would thus be "[impaired] or [defeated]." Id., at 577. In answering the second question, the Court concluded that "it would be extreme to believe that within a year Congress destroyed the reservation and took from the Indians the consideration of their grant, leaving them a barren waste -- took from them the means of continuing their old habits, yet did not leave them the power to change to new ones." Ibid. 3 The In Arizona v. California, the Court only had reason to discuss the Master's finding that the United States had reserved water for use on Arizona Indian reservations. Arizona argued that there was "a lack of evidence showing that the United States in establishing the reservations intended to reserve water for them." 373 U.S., at 598. The Court disagreed: [**3014] percentage of federally owned land (excluding Indian reservations and other trust properties) in the Western States ranges from 29.5% of the land in the State of Washington to 86.5% of the land in the State of Nevada, an average of about 46%. Of the land in the State of New Mexico, 33.6% is federally owned. General Services Administration, Inventory Report on Real Property Owned by the United States Throughout the World as of June 30, 1974, pp. 17, 34, and App. 1, table 4. Because federal reservations are normally found in the uplands of the Western States rather than the flatlands, the percentage of water flow originating in or flowing through the reservations is even more impressive. More than 60% of the average annual water yield in the 11 Western States is from federal reservations. The percentages of average annual water yield range from a low of 56% in the Columbia-North Pacific waterresource region to a high of 96% in the Upper Colorado region. In the Rio Grande water-resource region, where the Rio Mimbres lies, 77% of the average runoff originates on federal reservations. C. Wheatley, C. Corker, T. Stetson, & D. Reed, Study of the Development, Management and Use of Water Resources on the Public Lands 402-406, and table 4 (1969). "It is impossible to believe that when Congress created the great Colorado River Indian Reservation and when the Executive Department of this Nation created the other reservations they were unaware that most of the lands were of the desert kind -- hot, scorching sands -- and that water from the river would be essential to the life of the Indian people and to the animals they hunted and the crops they raised." Id., at 598-599. The Court also pointed to congressional debate that indicated that Congress had intended to reserve the water for the reservations. Id., at 599. In Cappaert, Congress had given the President the power to reserve Page 4 of 15 United States v. New Mexico [****9] [*701] [***1058] [**3015] This careful examination is required both because the reservation is implied, rather than expressed, and because of the history of congressional intent in the field of federal-state [*702] jurisdiction with respect to allocation of water. Where Congress has expressly addressed the question of whether federal entities must abide by state water law, it has almost invariably deferred to the state law. 5 to reserve the necessary water. Where water is only valuable for a secondary use of the reservation, however, there arises the contrary inference that Congress intended, consistent with its other views, that the United States would acquire water in the same manner as any other public or private appropriator. [****10] Congress indeed has appropriated funds for the acquisition under state law of water to be See California v. United States, ante, at 653-670, used on federal reservations. Thus, in the National 678-679. Where water is necessary to fulfill the Park Service Act of Aug. 7, 1946, 60 Stat. 885, as very purposes for which a federal reservation was amended, 16 U. S. C. § 17j-2 (1976 ed.), Congress created, it is reasonable to conclude, even in the authorized appropriations for the "[investigation] face of Congress' express deference to state water and establishment of water rights in accordance law in other areas, that the United States intended with local custom, laws, and decisions of courts, including the acquisition of water rights or of lands "objects of historic or scientific interest that are situated upon the or interests in lands or rights-of-way for use and lands owned or controlled by the Government." American protection of water rights necessary or beneficial in Antiquities Preservation Act, 34 Stat. 225, 16 U. S. C. § 431 et seq. the [*703] administration and public use of the (1976 ed.). Pursuant to this power, the President had reserved national parks and monuments." (Emphasis added.) Devil's Hole as a national monument. Devil's Hole, according to the Presidential Proclamation, is "'a unique subsurface remnant of the prehistoric chain of lakes which in Pleistocene times formed the Death Valley Lake System'"; it also contains "'a peculiar race of desert fish, and zoologists have demonstrated that this race of fish, which is found nowhere else in the world, evolved only after the gradual drying up of the Death Valley Lake System isolated this fish population from the original ancestral stock that in Pleistocene times was common to the entire region.'" 426 U.S., at 132. As the Court concluded, the pool was reserved specifically to preserve its scientific interest, principal of which was the Devil's Hole pupfish. Without a certain quantity of water, these fish would not be able to spawn and would die. This quantity of water was therefore impliedly reserved when the monument was proclaimed. Id., at 141. The Court, however, went on to note that the pool "need only be preserved, consistent with the intention expressed in the Proclamation, to the extent necessary to preserve its scientific interest. . . . The District Court thus tailored its injunction, very appropriately, to minimal need, curtailing pumping only to the extent necessary to preserve an adequate water level at Devil's Hole, thus implementing the stated objectives of the Proclamation." Ibid. (emphasis added). 5 See Hearings on S. 1275 before the Subcommittee on Irrigation and Reclamation of the Senate Committee on Interior and Insular Affairs, 88th Cong., 2d Sess., 302-310 (1964) (App. B, supplementary material submitted by Sen. Kuchel), listing 37 statutes in which Congress has expressly recognized the importance of deferring to state water law, from the Mining Act of 1866, § 9, 14 Stat. 253, to the Act of Aug. 28, 1958, § 202, 72 Stat. 1059, stating Congress' policy to "recognize and protect the rights and interests of the State of Texas in determining the development of the watersheds of the rivers . . . and its interests and rights in water utilization and control." 6 The agencies responsible for administering the federal reservations have also recognized Congress' intent to acquire under state law any water not essential to the specific purposes of the reservation. 7 [****11] 6 See also the Department of Agriculture Organic Act of 1944, 58 Stat. 737, 16 U. S. C. § 526 (1976 ed.), authorizing the appropriation of funds "for the investigation and establishment of water rights, including the purchase thereof or of lands or interests in land or rights-of-way for use and protection of water rights necessary or beneficial in connection with the administration and public use of the national forests." 7 Before this Court's decisions in FPC v. Oregon, 349 U.S. 435 (1955) and Arizona v. California, recognizing reserved rights outside of Indian reservations, the Forest Service apparently believed that all of its water had to be obtained under state law. "Rights to the use of water for National Forest purposes will be obtained in accordance with State law." Forest Service Manual (1936). While the Forest Service has apparently modified its policy since those decisions, their Service Manual still indicates a policy of deferring to state water law wherever possible. "The right of the States to appropriate and otherwise control the use of water is recognized, and the policy of the Forest Service is to abide by applicable State laws and regulations relating to water use. When water is needed by the Forest Service either for development of programs, improvements, or Page 5 of 15 United States v. New Mexico [****12] [***1059] [**3016] The State District Court referred the issues in this case to a Special Master, who found that the United States was diverting 6.9 acre-feet per annum of water for domestic-residential use, 6.5 acre-feet for roadwater use, 3.23 acre-feet for domestic-recreational use, and .10 acre-foot for "wildlife" purposes. 8 Supreme Court of New Mexico. The United States contended that it was entitled to a minimum instream flow for "aesthetic, environmental, recreational and 'fish' purposes." 90 N. M., at 412, 564 P. 2d, at 617. The Supreme Court of New Mexico concluded that, at least before the MultipleUse Sustained-Yield Act of 1960, 74 Stat. 215, 16 U. S. C. § 528 et seq. (1976 ed.), national forests The Special Master also found that specified could only be created "to insure favorable [****14] [*704] amounts of water were being used in the conditions of water flow and to furnish a Gila National Forest for stockwatering and that an continuous supply of timber" and not for the "instream flow" of six cubic feet per second was purposes upon which the United States was now being "used" for the purposes of fish preservation. basing its asserted reserved rights in a minimum The Special Master apparently believed that all of instream flow. 90 N. M., at 412-413, 564 P. 2d, at these uses fell within the reservation doctrine, and 617-619. The United States also argued that it was also concluded that the United States might have entitled to a reserved right for stockwatering reserved rights for future water needs, ordering it to purposes. The State Supreme Court again submit a report on future requirements within one disagreed, holding that stockwatering [*705] was year of his decision. not a purpose for which the national forests were [****13] The District Court of Luna County created. Id., at 414, 564 P. 2d, at 619. disagreed with many of the Special Master's legal II conclusions, but agreed with the Special Master that the Government should prepare within one A year a report covering any future water requirements that might support a claim of reserved [1B]The quantification of reserved water rights for right in the waters of the Rio Mimbres. The the national forests [***1060] is of critical District Court concluded that the United States had importance to the West, where, as noted earlier, not established a reserved right to a minimum water is scarce and where more than 50% of the originates in or flows through instream flow for any of the purposes for which the available water either 9 national forests. Gila National Forest was established, and that any water rights arising from cattle grazing by When, as in the case of the Rio Mimbres, a river is permittees on the forest should be adjudicated "to fully appropriated, federal reserved water rights the permittee under the law of prior appropriation will frequently require a gallon-for-gallon reduction and not to the United States." in the amount of water available for water-needy The United States appealed this decision to the other uses, action will be taken promptly to acquire necessary water rights. . . ." Forest Service Handbook § 2514 (Feb. 1960). "The rights to use water for national forest purposes will be obtained in accordance with State law. This policy is based on the act of June 4, 1897 (16 U. S. C. [§] 481)." Forest Service Manual § 2514.1 (Jan. 1960). 8 The District Court of Luna County, in its finding of facts, did not list any current water use for "wildlife" purposes. App. 226-227. The United States apparently did not object to this deletion in state court nor does it challenge the deletion in its brief before this Court. state and private appropriators. This reality has not escaped the attention of Congress and must be weighed in determining what, if any, [**3017] [****15] water Congress reserved for use in the national forests. The United States contends that Congress intended to reserve minimum instream flows for aesthetic, recreational, and fish-preservation purposes. An 9 Wheatley, Corker, Stetson & Reed, supra n. 3, at 211. Page 6 of 15 United States v. New Mexico examination of the limited purposes for which Congress authorized the creation of national forests, however, provides no support for this claim. In the mid and late 1800's, many of the forests on the public domain were ravaged and the fear arose that the forest lands might soon disappear, leaving the United States with a shortage both of timber and of watersheds with which to encourage stream flows while preventing floods. 10 Congress' answer to these continuing problems was threefold. It suspended the President's Executive Order of February 22, 1897; it carefully [***1061] defined the purposes for which national forests could in the future be reserved; and it provided a charter for forest management and economic uses within the forests. Organic Administration Act of June 4, 1897, 30 Stat. 34, 16 U. S. C. § 473 et seq. (1976 ed.). In particular, Congress provided: It was in answer to these fears that in 1891 Congress authorized the President to "set apart and reserve, in any State or Territory having public land bearing forests, in any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations." Creative Act of [****16] Mar. 3, 1891, § 24, 26 Stat. 1103, as amended, 16 U. S. C. § 471 (repealed 1976). "No national forest shall be established, [****18] except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use [*707] and necessities of citizens of the United States; but it is not the purpose or intent of these provisions, or of [the Creative Act of 1891], to authorize the inclusion therein of lands more valuable for the mineral therein, or for agricultural purposes, than [*706] The Creative Act of 1891 unfortunately did for forest purposes." 30 Stat. 35, as codified, 16 U. not solve the forest problems of the expanding S. C. § 475 (1976 ed.) (emphasis added). Nation. To the dismay of the conservationists, the [3]The legislative debates surrounding the Organic new national forests were not adequately attended Administration Act of 1897 and its predecessor and regulated; fires and indiscriminate timber bills demonstrate that Congress intended national cutting continued their toll. 11 forests to be reserved for only two purposes -- "[to] [****17] To the anguish of Western settlers, conserve the water flows, and to furnish a 14 reservations were frequently made indiscriminately. continuous supply of timber for the people." President Cleveland, in particular, responded to pleas of conservationists for greater protective what they viewed to be frequently indiscriminate creation of federal forest reserves. Id., at 129-130. A major complaint of the Western measures by reserving some 21 million acres of Congressmen was that rampant reserving of forest lands by the "generally settled" forest land on February 22, United States might leave "no opportunity there for further enlargement of civilization by the establishment of agriculture or 1897. 12 President Cleveland's action drew immediate and mining." 30 Cong. Rec. 1281 (1897) (Sen. Cannon). strong protest from Western Congressmen who felt 14 The Government notes that the Act forbids the establishment of that the "hasty and ill considered" reservation might national forests except "to improve and protect the forest within the prove disastrous to the settlers living on or near boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber," and these lands. 13 10 J. Ise, The United States Forest Policy 62-118 (1972). 11 Id., at 120-122. 12 Id., at 129. President Cleveland's action more than doubled the acreage of then-existing United States forest reserves. Cf. id., at 120. 13 Id., at 130-139. Western Congressmen had objected since 1891 to argues from this wording that "improvement" and "protection" of the forests form a third and separate purpose of the national forest system. A close examination of the language of the Act, however, reveals that Congress only intended national forests to be established for two purposes. Forests would be created only "to improve and protect the forest within the boundaries," or, in other words, "for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber." This reading of the Act is confirmed by its legislative history. Nothing in the legislative history suggests that Congress intended Page 7 of 15 United States v. New Mexico [****20] 30 [**3018] Cong. Rec. [*708] 967 (1897) (Cong. McRae). See United States v. Grimaud, 220 U.S. 506, 515 (1911).National forests were not to be reserved for aesthetic, environmental, [***1062] recreational, or wildlifepreservation purposes. 15 "The objects for which the forest reservations should be made are the protection [****19] of the forest growth against destruction by fire and ax, and preservation of forest conditions upon which water conditions and water flow are dependent. The purpose, therefore, of this bill is to maintain favorable forest conditions, without excluding the use of these reservations for other purposes. They national forests to be established for three purposes, one of which would be extremely broad. Indeed, it is inconceivable that a Congress which was primarily concerned with limiting the President's power to reserve the forest lands of the West would provide for the creation of forests merely "to improve and protect the forest within the boundaries"; forests would be reserved for their improvement and protection, but only to serve the purposes of timber protection and favorable water supply. This construction is revealed by a predecessor bill to the 1897 Act which was introduced but not passed in the 54th Congress; the 1896 bill provided: "That the object for which public forest reservations shall be established under the provisions of the act approved March 3, 1891, shall be to protect and improve the forests for the purpose of securing a continuous supply of timber for the people and securing conditions favorable to water flow." H. R. 119, 54th Cong., 1st Sess. (1896) (emphasis added). Earlier bills, like the 1897 Act, were less clear and could be read as setting forth either two or three purposes. Explanations of the bills by their congressional sponsors, however, clearly revealed that national forests would be established for only two purposes. Compare, for example, H. R. 119, 53d Cong., 1st Sess. (1893) ("[No] public forest reservations shall be established except to improve and protect the forest within the reservation or for the purpose of securing favorable conditions of water flow and continuous supplies of timber to the people") with its sponsor's description of the bill, 25 Cong. Rec. 2375 (1893) (Cong. McRae) ("The bill authorizes the President to establish forest reservations, and to protect the forests 'for the purpose of securing favorable conditions of water flow and continuous supplies of timber to the people'"). 15 See 30 Cong. Rec. 986 (1897) (Cong. Bell); id., at 987 (Cong. Jones); H. R. Rep. No. 1593, 54th Cong., 1st Sess., 3 (1896); 25 Cong. Rec. 2435 (1893) (Cong. McRae); H. R. Rep. No. 2437, 52d Cong., 2d Sess., 2 (1893); S. Rep. No. 1002, 52d Cong., 1st Sess., 10, 12 (1892). are not parks set aside for nonuse, but have been established for economic reasons." 30 Cong. Rec. 966 (1897) (Cong. McRae). Administrative regulations at the turn of the century confirmed that national forests were to be reserved for only these two limited purposes. 16 [****21] [*709] Any doubt as to the relatively narrow purposes for which national forests were to be reserved is removed by comparing the broader language Congress used to authorize the establishment of national parks. 17 [****22] In 1916, Congress created the National Park Service and provided that the "fundamental purpose of the said parks, monuments, and reservations . . . is to conserve the scenery and the natural and historic objects and the wild life [**3019] therein and to provide for the enjoyment of the same . . . unimpaired for the enjoyment of future generations." National Park Service Act of 1916, 39 Stat. 535, § 1, as amended, 16 U. S. C. § 1 (1976 ed.). 18 16 According to the 1901 Regulations of the Interior Department, "Public forest reservations are established to protect and improve the forests for the purpose of securing a permanent supply of timber for the people and insuring conditions favorable to continuous water flow." Department of Interior Circular, 30 L. D. 23, 24 (1900). Twelve years later, the Chief Forester also elaborated on the purposes of the national forests: "The National Forests are set aside specifically for the protection of water resources and the production of timber . . . . The aim of administration is essentially different from that of a national park, in which economic use of material resources comes second to the preservation of natural conditions on aesthetic grounds." U.S. Department of Agriculture, Report of the Forester 10-11 (1913). 17 As Congressman McRae noted in introducing a predecessor bill to the 1897 Act, Congress was "not dealing with parks, but forest reservations, and there is a vast difference." 25 Cong. Rec. 2375 (1893). 18 While in 1906 Congress transferred jurisdiction of the national forests to the Department of Agriculture, Transfer Act of 1905, 33 Stat. 628, national parks are exclusively under the jurisdiction of the Department of the Interior. This difference in jurisdiction again points up the limited purposes of the national forests, as explained in the House Report on the National Park Service Act: "It was the unanimous opinion of the committee that there should not Page 8 of 15 United States v. New Mexico [*710] [***1063] When it was Congress' intent to [*711] be devoted to the increase of game birds, maintain minimum instream flows within the game animals, and fish of all kinds naturally confines of a national forest, it expressly so adapted thereto." (Emphasis added.) directed, as it did in the case of the Lake Superior If, as the dissent contends, post, at 722, Congress in National Forest: the Organic Administration Act of 1897 authorized "In order to preserve the shore lines, rapids, the reservation of forests to "improve and protect" waterfalls, beaches and other natural features of the fish [****24] and wildlife, the 1934 Act would region in an unmodified state of nature, no further have been unnecessary. Nor is the dissent's alteration of the natural water level of any lake or position consistent with Congress' concern in 1934 stream . . . shall be authorized." 16 U. S. C. § 577b that fish and wildlife preserves only be created "with the approval of the State legislatures." (1976 ed.). [****23] National park legislation is not the only instructive comparison. In the Act of Mar. 10, 1934, 48 Stat. 400, 16 U. S. C. § 694 (1976 ed.), Congress authorized the establishment within individual national forests of fish and game sanctuaries, but only with the consent of the state legislatures. The Act specifically provided: "For the purpose of providing breeding places for game birds, game animals, and fish on lands and waters in the national forests not chiefly suitable for agriculture, the President of the United States is authorized, upon recommendation of the Secretary of Agriculture and the Secretary of Commerce and with the approval of the State legislatures of the respective States in which said national forests are situated, to establish by public proclamation certain specified and limited areas within said forests as fish and game sanctuaries or refuges which shall As the dissent notes, in creating what would ultimately become Yosemite National Park, Congress in 1890 explicitly instructed the Secretary of the Interior to provide against the wanton destruction of fish and game inside the forest and against their taking "for the purposes of merchandise or profit." Act of Oct. 1, 1890, § 2, 26 Stat. 651. Congress also instructed the Secretary to protect all "the natural curiosities, or wonders within such reservation, . . . in their natural condition." By comparison, Congress in the 1897 Organic Act expressed no concern for the preservation of fish and wildlife within national forests generally. Nor is such a concern found in any of the comments made during the legislative debate on the 1897 Act. Cf. also H. R. 119, [**3020] 54th Cong., 1st Sess., 28 Cong. Rec. 6410 (1896). 19 [****25] B be any conflict of jurisdiction as between the departments [of the Interior and Agriculture] of such a nature as might interfere with the organization and operation of the national parks, which are set apart for the public enjoyment and entertainment, as against those reservations specifically created for the conservation of the natural resources of timber and other national assets, and devoted strictly to utilitarian purposes, in the vastly greater areas, known as national forests. "The segregation of national-park areas necessarily involves the question of the preservation of nature as it exists, and the enjoyment of park privileges requires the development of adequate and moderate-priced transportation and hotel facilities. In the national forests there must always be kept in mind as primary objects and purposes the utilitarian use of land, of water, and of timber, as contributing to the wealth of all the people." H. R. Rep. No. 700, 64th Cong., 1st Sess., 3 (1916). [***1064] Not only is the Government's claim that Congress intended to reserve water for recreation and wildlife preservation inconsistent with Congress' failure to recognize these goals as purposes of the national forests, it would defeat the very [*712] purpose for which Congress did create the national forest system. 20 19 In comparing the 1897 Organic Act with enabling legislation for national parks and particular national forests, and with the Act of Mar. 10, 1934, we of course do not intimate any views as to what, if any, water Congress reserved under the latter statutes. 20 It was the view of several of the Congressmen who spoke on the Page 9 of 15 United States v. New Mexico "[Forests] exert a most important regulating influence upon the flow of rivers, reducing floods and increasing the water supply in the low stages. The importance of their conservation on the mountainous watersheds which collect the scanty supply for the arid regions of North America can hardly be overstated. With the natural regimen of the streams replaced by destructive floods in the spring, and by dry beds in the months when the irrigating flow is most needed, the irrigation of wide areas now proposed will be impossible, and regions now supporting prosperous communities will become depopulated." S. Doc. No. 105, 55th Cong., 1st Sess., 10 (1897). The water that would be "insured" by preservation of the forest was to "be used for domestic, mining, milling, or irrigation purposes, under the laws of the State wherein such national forests are situated, [****26] or under the laws of the United States and the rules and regulations established thereunder." Organic Administration Act of 1897, 30 Stat. 36, 16 U. S. C. § [*713] 481 (1976 ed.). As this provision and its legislative history evidence, Congress authorized the national forest system principally as a means of enhancing the quantity of water that would be available to the settlers of the arid West. The Government, however, would have us now believe that Congress intended to partially defeat this goal by reserving floor of the House that national forests were necessary "not to save the timber for future use so much as to preserve the water supply." 30 Cong. Rec. 1007 (1897) (Cong. Ellis). See also id., at 1399 (Cong. Loud). Congress has assured that the waters which flow through national forests are available for use by state appropriators by authorizing rights-of-way for ditches to carry the water to agricultural, domestic, mining, and milling uses. See Right-of-Way Permit Act of 1891, 43 U. S. C. § 946 et seq.; Right-of-Way Permit Act of 1901, 43 U. S. C. § 959; Forest Right-of-Way Act of 1905, 16 U. S. C. § 524 (repealed in part 1976). Congress has evidenced its continuing concern with enhancing the water supply for nonforest use by specifically authorizing the President to set aside and protect national forest lands needed as sources of municipal water supplies. Act of May 28, 1940, 54 Stat. 224, 16 U. S. C. § 552a (1976 ed.). See also Act of June 7, 1924, 16 U. S. C. § 570 (1976 ed.) (authorizing the purchase of private lands for inclusion in national forests where needed to protect "streams used for navigation or for irrigation"). significant amounts of water for purposes quite inconsistent with this goal. [****27] C [4] [5A]In 1960, Congress passed the Multiple-Use Sustained-Yield Act of 1960, 74 Stat. 215, 16 U. S. C. § 528 et seq. (1976 ed.), which provides: "It is the policy of Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes. The purposes of sections 528 to 531 of this title are declared to be supplemental [***1065] to, but not in derogation of, the purposes for which the national forests were established as set forth in the [Organic Administration Act of 1897.]" The Supreme Court of New Mexico concluded that this Act did not give rise to any reserved rights not previously authorized in the Organic Administration Act of 1897. "The Multiple-Use Sustained-Yield Act of 1960 does not have a retroactive effect nor [**3021] can it broaden the purposes for which the Gila National Forest was established under the Organic Act of 1897." 90 N. M., at 413, 564 P. 2d, at 618. While we conclude that the Multiple-Use Sustained-Yield Act of 1960 was intended to broaden the purposes for which national forests had previously been administered, we agree that Congress [****28] did not intend to thereby expand the reserved rights of the United States. 21 21 The United States does not argue that the Multiple-Use SustainedYield Act of 1960 reserved additional water for use on the national forests. Instead, the Government argues that the Act confirms that Congress always foresaw broad purposes for the national forests and authorized the Secretary of the Interior as early as 1897 to reserve water for recreational, aesthetic, and wildlife-preservation uses. Brief for United States 53-56. As the legislative history of the 1960 Act demonstrates, however, Congress believed that the 1897 Organic Administration Act only authorized the creation of national forests for two purposes -- timber preservation and enhancement of water supply -- and intended, through the 1960 Act, to expand the purposes for which the national forests should be administered. See, e. g., H. R. Rep. No. 1551, 86th Cong., 2d Sess., 4 (1960). [5B]Even if the 1960 Act expanded the reserved water rights of the Page 10 of 15 United States v. New Mexico [****29] [*714] The Multiple-Use Sustained-Yield Act of 1960 establishes the purposes for which the national forests "are established and shall be administered." (Emphasis added.) The Act directs the Secretary of Agriculture to administer all forests, including those previously established, on a multiple-use and sustained-yield basis. H. R. 10572, 86th Cong., 2d Sess., 1 (1960). In the administration of the national forests, therefore, Congress intended the Multiple-Use SustainedYield Act of 1960 to broaden the benefits accruing from all reserved national forests. act." H. R. Rep. No. 1551, 86th Cong., 2d Sess., 4 (1960). As discussed earlier, the "reserved rights doctrine" is a doctrine built on implication and is an exception to Congress' explicit deference to state water law in other areas. Without legislative history to the contrary, we are led to conclude that Congress did not intend in enacting the MultipleUse Sustained-Yield Act of 1960 to reserve water for the secondary purposes [****31] there established. 22 A reservation of additional water could mean a substantial loss in the amount of water available for [6]The House Report accompanying the 1960 irrigation and domestic use, thereby defeating legislation, however, indicates that recreation, Congress' principle purpose of securing favorable range, and "fish" purposes are "to be supplemental conditions of water flow. Congress [**3022] to, but not in derogation of, the purposes for which intended the national forests to be administered for the national forests were established" in the broader purposes after 1960 but there is no Organic Administration Act of 1897. indication that it believed the new purposes to be so crucial as to require a reservation of additional "The addition of the sentence to follow the first water. By reaffirming the primacy of a favorable sentence in section 1 is to make it clear that the water flow, it indicated the opposite intent. declaration of congressional policy that the national forests are established and shall be administered for III the purposes enumerated is supplemental to, but is not in derogation of, the purposes of improving and [1C]What we have said also answers the protecting the forest or for securing [****30] Government's contention that Congress intended to favorable conditions of water flows and to furnish a reserve water from the Rio [*716] Mimbres for continuous supply of timber as set out in the stockwatering purposes. The United States issues [*715] cited provision of the act of June 4, 1897. permits to private cattle owners to graze their stock Thus, in any establishment of a national forest a on the Gila National [****32] Forest and provides purpose set out in the 1897 act must be present but for stockwatering at various locations along the Rio there may also exist one or more of the additional Mimbres. The United States contends that, since purposes listed in the bill. In other words, a Congress clearly foresaw stockwatering on national national forest could not be established just for the forests, reserved rights must be recognized for this purpose of outdoor recreation, range, or wildlife purpose. The New Mexico courts disagreed and and fish purposes, [***1066] but such purposes held that any stockwatering rights must be allocated could be a reason for the establishment of the forest under state law to individual stockwaterers. We if there also were one or more of the purposes of agree. improving and protecting the forest, securing [7A] [8A]While Congress intended the national favorable conditions of water flows, or to furnish a continuous supply of timber as set out in the 1897 22 We United States, of course, the rights would be subordinate to any appropriation of water under state law dating to before 1960. intimate no view as to whether Congress, in the 1960 Act, authorized the subsequent reservation of national forests out of public lands to which a broader doctrine of reserved water rights might apply. Page 11 of 15 United States v. New Mexico forests to be put to a variety of uses, including There is no indication [**3023] in the legislative stockwatering, not inconsistent with the two histories of any of the forest Acts that [****33] principal purposes of the forests, stockwatering was Congress foresaw any need for the Forest Service not itself a direct purpose of reserving the land. 23 to allocate water for stockwatering purposes, a task to which state law was well suited. [****34] If stockwatering could not take place in the Gila National Forest, Congress' [***1067] [****35] [*718] IV purposes in reserving the land would not be [1D]Congress intended that water would be defeated. Congress, of course, did intend to secure reserved only where necessary to preserve the favorable water flows, and one of the uses to which timber or to secure favorable water flows for the enhanced water supply was intended to be private and public uses under state law. This intent placed was probably stockwatering. But Congress is revealed in the purposes for which the national intended the water supply from the Rio Mimbres to forest system was created and Congress' principled [*717] be allocated among private appropriators deference to state water law in the Organic under state law. 16 U. S. C. § 481 (1976 ed.). 24 Administration Act of 1897 and other legislation. The decision of the Supreme Court of New Mexico 23 [7B]As discussed earlier, the national forests were not to be "set is faithful to this congressional intent and is aside for non-use," 30 Cong. Rec. 966 (1897) (Cong. McRae), but instead to be opened up for any economic use not inconsistent with the forests' primary purposes. Ibid. One use that Congress foresaw was "pasturage." Ibid. See also id., at 1006 (Cong. Ellis); id., at 1011 (Cong. De Vries). As this Court has previously recognized, however, grazing was merely one use to which the national forests could possibly be put and would not be permitted where it might interfere with the specific purposes of the national forests including the securing of favorable conditions of water flow. Under the 1891 and 1897 forest Acts, "any use of the reservation for grazing or other lawful purpose was required to be subject to the rules and regulations established by the Secretary of Agriculture. To pasture sheep and cattle on the reservation, at will and without restraint, might interfere seriously with the accomplishment of the purposes for which they were established. But a limited and regulated use for pasturage might not be inconsistent with the object sought to be attained by the statute." United States v. Grimaud, 220 U.S. 506, 515-516 (1911). See also Light v. United States, 220 U.S. 523 (1911). 24 [8B]As noted earlier, the Organic Administration Act of 1897 specifically provided: "All waters within the boundaries of national forests may be used for domestic, mining, milling, or irrigation purposes, under the laws of the State wherein such national forests are situated, or under the laws of the United States and the rules and regulations established thereunder." 30 Stat. 36, as amended, 16 U. S. C. § 481 (1976 ed.) (emphasis added). The United States, seizing on the italicized wording, contends that Congress intended the United States to allocate water to certain private users -- in this case, cattle ranchers -- outside of the structure of state water law. Contemporaneous Acts of Congress, however, preclude this construction of § 481. In the same Act in which Congress first authorized the national forest system, Act of Mar. 3, 1891, § 18, 26 Stat. 1101, Congress provided for rights-of-way through the "public lands and reservations" for purposes of irrigation, "Provided, That no such right of way shall be so located as to interfere with the proper occupation by the Government of any such reservation, . . . and the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective States or Territories." (Emphasis added.) Contemporaneous administrative regulations reflected that the "control of the flow and use of the water" on federal reservations was "a matter exclusively under State or Territorial control." Department of Interior Circular, 18 L. D. 168, 169-170 (1894). See also H. H. Sinclair, 18 L. D. 573, 574 (1894). Only a few months before Congress passed the Organic Administration Act of 1897, Congress reaffirmed the state-law policy of the 1891 Act. In the Act of Feb. 26, 1897, ch. 335, 29 Stat. 599, Congress authorized the improvement and occupation of reservoir sites on public lands, "Provided, That the charges for water coming in whole or part from reservoir sites used or occupied under the provisions of this Act shall always be subject to the control and regulation of the respective States and Territories in which such reservoirs are in whole or part situate." As we noted in California v. United States, ante, at 661, it "was clearly the opinion of a majority of the Congressmen who spoke on the bill . . . that [this proviso] was unnecessary except out of an excess of caution." It was their belief that, at least under the 1891 Act, the States had exclusive control of the distribution of water on public lands and reservations. Ante, at 661-662, and n. 16. Contemporaneous administrative regulations of the officials responsible for administering the national forests confirm that the States were to have control of the distribution of water from streams flowing through the forests. In 1908, for example, the Forest Service began a policy of charging for the use of water, based upon the length of ditches, acreage flooded, and use of advantageous locations, but emphasized that the "water itself is granted by the State, not by the United States." 1906 Report of the Forester to the Secretary of Agriculture, H. R. Doc. No. 6, 59th Cong., 2d Sess., p. 273 (1907). Page 12 of 15 United States v. New Mexico therefore [****36] [*719] I do not agree, however, that the forests which Congress intended to "improve and Affirmed. protect" are the still, silent, lifeless places envisioned by the Court. In my view, the forests Dissent by: POWELL (In Part) consist of the birds, animals, and [**3024] fish -the wildlife -- that inhabit them, as well as the trees, Dissent flowers, shrubs, and grasses. I therefore would hold that the United States is entitled to so much [***1068] MR. JUSTICE POWELL, with whom water as is necessary to sustain the wildlife of the MR. JUSTICE BRENNAN, MR. JUSTICE forests, as well as the plants. I also add a word WHITE, and MR. JUSTICE MARSHALL join, concerning the impact of the Court's holding today on future claims by the United States that the dissenting in part. reservation of particular national forests impliedly I agree with the Court that the implied-reservation reserved instream flows. doctrine should be applied with sensitivity to its impact upon those who have obtained water rights [*720] I under state law and to Congress' general policy of deference to state water law. See ante, at 699, 701- My analysis begins with the language of the statute. 702, 705. I also agree that the Organic The Organic Administration Act of 1897, as Administration Act of 1897, 30 Stat. 11, cannot amended, 16 U. S. C. § 475 (1976 ed.), provides in fairly be read as evidencing an intent to reserve pertinent part: water for recreational or stockwatering purposes in "No national forest shall be established, except to the national forests. 1 improve and protect the forest within the 1I express no view as to the effect of the Multiple-Use SustainedYield Act of 1960, 74 Stat. 215, 16 U. S. C. § 528 et seq. (1976 ed.), on the United States' reserved water rights in national forests that were established either before or after that Act's passage. Although the Court purports to hold that passage of the 1960 Act did not have the effect of reserving any additional water in then-existing forests, see ante, at 713-715, this portion of its opinion appears to be dicta. As the Court concedes, "[the] United States does not argue that the Multiple-Use Sustained-Yield Act of 1960 reserved additional water for use on the national forests." Ante, at 713 n. 21. Likewise, the State argues only that "[no] reserved rights for fish or wildlife can be implied in the Gila National Forest prior to the enactment of the Multiple-Use Sustained-Yield Act of June 12, 1960 . . . ." Brief for Respondent 44 (emphasis supplied); see also id., at 1 ("questions presented"). Indeed, the State has gone so far as to suggest that passage of the 1960 Act may well have expanded the United States' reserved water rights in the national forests, presumably with a priority date for the additional reserved rights of 1960. See Brief in Opposition 16-17. Read in context, the New Mexico Supreme Court's statement that the 1960 Act "does not have a retroactive effect nor can it broaden the purposes for which the Gila National Forest was established under the Organic Act of 1897," Mimbres Valley Irrigation Co. v. Salopek, 90 N. M. 410, 413, 564 P. 2d 615, 618 (1977), quoted ante, at 713, appears to mean nothing more than that the 1960 Act did not give the United States additional reserved water rights with a priority date of before 1960 -- a proposition with which I think we all would agree. Cf. ante, at 713-714, n. 21. But boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the [***1069] use and necessities of citizens of the United States . . . ." Although the language of the statute [****37] is not artful, a natural reading would attribute to Congress an intent to authorize the establishment of national forests for three purposes, not the two discerned by the Court. The New Mexico Supreme Court gave the statute its natural reading in this case when it wrote: "The Act limits the purposes for which national forests are authorized to: 1) improving and protecting the forest, 2) securing favorable conditions of water flows, and 3) furnishing a there never has been a question in this case as to whether the 1960 Act gave rise to additional reserved water rights with a priority date of 1960 or later in the Gila National Forest. Page 13 of 15 United States v. New Mexico continuous supply of timber." Mimbres Valley Irrigation Co. v. Salopek, 90 N. M. 410, 412, 564 P. 2d 615, 617 (1977). generally Lund, Early American Wildlife Law, 51 N. Y. U. L. Rev. 703 (1976), the understanding that the forest includes its wildlife has remained in the American mind. In establishing the first forest reservations, the year before passage of the Organic Act of 1891, Congress exhibited this understanding by directing the Secretary of the Interior to "provide against the wanton destruction of [**3025] the fish . . . and game found within said reservation, and against their capture or destruction, for the purposes of merchandise [***1070] or profit." Act of Oct. 1, 1890, § 2, 26 Stat. 651. 3 Congress has given the statute the same reading, stating that under the Organic Administration Act of 1897 national forests may be established for "the purposes of improving and protecting the forest or for securing favorable conditions of water flows, and to furnish a continuous supply of timber . . . ." H. R. Rep. No. 1551, 86th Cong., 2d Sess., 4 (1960), quoted ante, at 714-715; accord, S. Rep. No. 1407, 86th Cong., 2d Sess., 4 (1960). See also Note, New Mexico's National Forests and the [****40] [*722] Similarly, the bill introduced by Implied Reservation Doctrine, 16 Natural Representative McRae in the 54th Congress, upon Resources J. 975, 991-992 (1976). which the Court relies in construing the statute, ante, at 707-708, n. 14, directed the Secretary, "to "[The] [****38] Court not surprisingly attempts to preserve the timber and other natural resources, and keep this provision in the background, addressing it such natural wonders and curiosities and game as only . . . in a footnote," United States v. Sotelo, 436 may be therein, from injury, waste, fire, spoliation, U.S. 268, 283 (1978) (REHNQUIST, [*721] J., or other destruction . . . ." H. R. 119, 54th Cong., dissenting), where it decides that the Act should be 1st Sess., 28 Cong. Rec. 6410 (1896). The bill that read as if it said national forests may "be created became law in the 55th Congress substituted for only 'to improve and protect the forest within the this provision the independent "improve and protect boundaries,' or, in other words, 'for the purpose of the forest" clause together with a general direction securing favorable conditions of water flows, and to that the Secretary "make such rules and regulations furnish a continuous supply of timber.'" Ante, at and establish such service as will insure the objects 707 n. 14 (emphasis in original). 2 of such reservations, namely, to regulate their The Court then concludes that Congress did not occupancy and use and to preserve the forests mean to "improve and protect" any part of the thereon from destruction . . . ." Organic forest except the usable timber and whatever other Administration Act of 1897, 30 Stat. 35, 16 U. S. C. flora is necessary to maintain the watershed. This, § 551 (1976 ed.). Despite this rephrasing, Congress however, is not what Congress said. remained of the view that wildlife is part of the The Court believes that its "reading [****39] of the forest that it intended to "improve and protect" by Act is confirmed by its legislative history." Ibid. passage of the 1897 Act, for in its first The matter is not so clear to me. From early times appropriation to implement the Act it directed that in English law, the forest has included the creatures "forest agents, superintendents, supervisors, that live there. J. Manwood, A Treatise and [****41] and all other persons employed in Discourse of the Laws of the Forrest 1-7 (1598); 1 W. Blackstone, Commentaries * 289. Although the English forest laws themselves were not 3 The Act cited is entitled "An act to set apart certain tracts of land in transplanted to the shores of the new continent, see the State of California as forest reservations." 26 Stat. 650 (emphasis 2 In fact, the Court appears to show some ambivalence as to whether, in its view of the 1897 Act, national forests are to be reserved for two purposes, or only one. See ante, at 711-713. supplied). Yosemite National Park was not carved out of the forest reserved by the 1890 Act until 1905. See Act of Feb. 7, 1905, 33 Stat. 702-703, 16 U. S. C. § 46 (1976 ed.). A portion of the land reserved by the 1890 Act remained a forest reserve and was designated the Sierra National Forest. Page 14 of 15 United States v. New Mexico connection with the administration and protection of forest reservations shall in all ways that are practicable, aid in the enforcement of the laws of the State or Territory in which said forest reservation is situated, in relation to the protection of fish and game . . . ." Act of Mar. 3, 1899, 30 Stat. 1095. [****42] One [***1071] may agree with the Court that Congress did not, by enactment of the Organic Administration Act of 1897, intend to authorize [**3026] the creation of national forests simply to serve as wildlife preserves. But it does not follow from this that Congress did not consider wildlife to be part of the forest that it wished to "improve and protect" for future generations. It is inconceivable See also Act of May 23, 1908, 35 Stat. 259, 16 U. that Congress envisioned the forests it sought to S. C. § 553 (1976 ed.). This understanding has preserve as including only inanimate components continued down to the present day. See, e. g., Act such as [*724] the timber and flora. Insofar as the of May 22, 1928, § 5, 45 Stat. 701, 16 U. S. C. § Court holds otherwise, the 55th Congress is 581d (1976 ed.) (authorizing annual appropriations maligned and the Nation is the poorer, and I "[for] such experiments and investigations as may dissent. 5 be necessary in determining the life histories and habits of forest [*723] animals, birds, and [****43] II wildlife"); Act of Mar. 29, 1944, § 1, 58 Stat. 132, 16 U. S. C. § 583 (1976 ed.) (authorizing the Contrary to the Court's intimations, cf. ante, at 711Secretary to establish sustained-yield units "in 713, I see no inconsistency between holding that order to provide for a continuous and ample supply the United States impliedly reserved the right to of forest products; and in order to secure the instream flows, and what the Court views as the benefits of forests in maintenance of water supply, underlying purposes of the 1897 Act. The national regulation of stream flow, prevention of soil forests can regulate the flow of water -- which the erosion, amelioration of climate, and preservation Court views as "the very purpose for which Congress did create the national forest system," of wildlife . . . .") (Emphasis supplied.) 4 ante, at 711-712 -- only for the benefit of appropriators who are downstream from the reservation. The reservation of an instream flow is 4 The understanding that the forest includes the creatures that live there is confirmed by the modern view of the forest as an not a consumptive use; it does not subtract from the amount of water that is available to downstream interdependent, dynamic community of plants and animals: "The forest community, then, consists of an assemblage of plants and appropriators. Reservation of an instream flow animals living in an environment of air, soil, and water. Each of therefore would be perfectly consistent with the these organisms is interrelated either directly or indirectly with purposes of the 1897 Act as construed by the Court. virtually every other organism in the community. The health and welfare of the organisms are dependent upon the factors of the environment surrounding them; and the environment surrounding them itself is conditioned to a considerable degree by the biotic community itself. In other words, the plants, the animals, and the environment -- including the air, the soil, and the water -- constitute a complex ecological system in which each factor and each individual is conditioned by, and in itself conditions, the other factors comprising the complex." S. Spurr, Forest Ecology 155 (1964). See also Gosz, Holmes, Likens, & Bormann, The Flow of Energy in a Forest Ecosystem, 238 Scientific American No. 3, pp. 92-102 (1978). Thus, it is doubtful whether the timber and watershed that the Court prizes so highly could flourish without a complement of wildlife. The recognition by modern science of this vital interdependence is by no means a new discovery. See J. Manwood, A Treatise and Discourse of the Laws of the Forrest 6 (1598). 6 5 No doubt it will be said that the waterflow necessary to maintain the watershed including the forest will be sufficient for the wildlife. This well may be true in most national forests and most situations. But the Court's opinion, as I read it, recognizes no reserved authority in the Federal Government to protect wildlife itself as a part of the forest, and therefore if and when the need for increased waterflow for this purpose arises the Federal Government would be powerless to act. Indeed, upstream appropriators could be allowed to divert so much water that survival of forest wildlife -- including even the fish and other life in the streams -- would be endangered. 6 It is true that reservation of an instream flow might in some circumstances adversely affect appropriators upstream from the forest. There would be no inconsistency with the 1897 Act, however, Page 15 of 15 United States v. New Mexico [****44] I do not dwell on this point, however, for the Court's opinion cannot be read as holding that the United States never reserved instream flows when it set aside national forests under the 1897 Act. The State concedes, quite correctly on the Court's own theory, that even in this case "the United States [*725] is not barred from asserting that rights to minimum instream flows might be necessary for erosion control or fire protection on the basis of the recognized purposes of watershed management and the maintenance of timber. [***1072] " Brief for Respondent 44 n. 11. Thus, if the United States proves, in this case or others, that the reservation of instream flows is necessary to fulfill the purposes discerned by the Court, I find nothing in the Court's opinion that bars it from asserting this right. References 78 Am Jur 2d, Waters 320 US L Ed Digest, Waters 18 ALR Digests, Waters 14 L Ed Index to Annos, Forests; Waters ALR Quick Index, Forests; Waters and Watercourses Federal Quick Index, Forests; Water End of Document for that Act manifestly was not intended to benefit upstream appropriators. Date: September 1, 2017 To: Jack Haugrud Deputy Solicitor, Energy and Mineral Resources From: Karen Hawbecker (Richard McNeer, Acting) Associate Solicitor, Mineral Resources Subject: DMR Friday Updates to Weekly Report Below is a list of new or updated items that did not appear in the weekly report that may require the attention of the front office during the week of September 5-8, 2017, or thereafter: Significant Decisions: None to report. Litigation: ● (b) (5) Legislation: Correspondence/Agency Actions: Meetings cc: Tom Bovard/Richard McNeer/Dennis Daugherty CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 1 of 62 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA FRANCONIA MINERALS (US) LLC; and TWIN METALS MINNESOTA LLC, Plaintiffs, v. UNITED STATES OF AMERICA, et al., Civil Action No. 16-3042 SRN/LIB Defendants, and NORTHEASTERN MINNESOTANS FOR WILDERNESS, Defendant-Intervenor. PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 2 of 62 TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES ............................................................................... iii INTRODUCTION .................................................................................................1 STATEMENT ........................................................................................................2 A. Prospecting Permits And Valuable Mineral Discovery ..................2 B. Governing Federal Law And The 1966 Leases ...............................3 C. 1989 And 2004 Renewals .................................................................4 D. 2012 Renewal Application ................................................................5 E. This Action ........................................................................................6 SUMMARY OF ARGUMENT ..............................................................................6 STANDARD OF REVIEW ....................................................................................8 ARGUMENT .........................................................................................................8 I. II. THIS COURT HAS JURISDICTION OVER FRANCONIA’S QTA CLAIM ...........................................................................................................9 A. Franconia’s QTA Claim Seeks Adjudication Of Rights In Real Property ............................................................................. 10 B. The Tucker Act Does Not Affect This Court’s Jurisdiction Over Franconia’s QTA Claim ................................... 16 THIS COURT HAS JURISDICTION OVER PLAINTIFFS’ APA CLAIMS ...................................................................................................... 20 A. The Tucker Act Does Not “Impliedly Forbid” The Relief Plaintiffs Seek Under The APA.......................................... 21 1. Plaintiffs’ rights and requested remedies are not derived solely from contract ................................................. 22 i CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 3 of 62 2. III. The Tucker Act does not create an exclusive remedy for all contract claims in the Court of Federal Claims ..................................................................... 24 B. There Is No Adequate Alternative Remedy ................................. 28 C. The Forest Service’s Decision To Deny Consent To Lease Renewal Is Reviewable ....................................................... 30 1. There are meaningful standards against which to judge the Forest Service’s decision .................................. 32 2. The nature of the Forest Service’s decision confirms that it is not committed to agency discretion .............................................................................. 40 PLAINTIFFS HAVE SUFFICIENTLY STATED CLAIMS FOR RELIEF UNDER THE APA .......................................................................... 42 A. Count II Sufficiently Claims That The Applicable Regulation Grants A Non-discretionary Right To Renewal .......................................................................................... 44 B. Count III Sufficiently Claims That The Leases Grant A Non-discretionary Right To Renewal ........................................ 47 C. 1. The terms of the Leases govern the renewal right ................ 48 2. The 2004 lease renewals include a nondiscretionary right to renewal ............................................. 49 3. The Leases do not impose a production requirement as a condition precedent to renewal ............... 49 Count IV Sufficiently Claims That The Forest Service’s Denial Of Consent Violates The APA ........................... 51 CONCLUSION ................................................................................................... 52 CERTIFICATE OF COMPLIANCE ii CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 4 of 62 TABLE OF AUTHORITIES CASES Page(s) Abdelwahab v. Frazier, 578 F.3d 817 (8th Cir. 2009) ...................................... 34 Alaska Department of Natural Resources v. United States, 816 F.3d 580 (9th Cir. 2016).................................................................... 11 Barlow v. Collins, 397 U.S. 159 (1970) ............................................................. 20 Block v. North Dakota ex rel. Board of University & School Lands, 461 U.S. 273 (1983) ............................................................... 16, 18 Bowen v. Massachusetts, 487 U.S. 879 (1988) ...................................... 25, 26, 30 Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986) .................................................................................................. 20, 31 Branson Label, Inc. v. City of Branson, Missouri, 793 F.3d 910 (8th Cir. 2015) .............................................................................................8 Cadorette v. United States, 988 F.2d 215 (1st Cir. 1993) ................................ 12 Central Platte Natural Resources District v. U.S. Department of Agriculture, 643 F.3d 1142 (11th Cir. 2011)........................................... 29 Christopher Village, L.P. v. United States, 360 F.3d 1319 (Fed. Cir. 2004) ........................................................................................ 29 Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) ........................................................................................................ 31 City of Oakland v. Lynch, 798 F.3d 1159 (9th Cir. 2015) ................................ 30 Colorado Environmental Coalition v. Wenker, 353 F.3d 1221 (10th Cir. 2004) ........................................................................................ 33 County of Suffolk v. United States, 19 Cl. Ct. 295 (1990) ................................ 30 Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073 (9th Cir. 2013) ..................... 36 Dunbar Corp. v. Lindsey, 905 F.2d 754 (4th Cir. 1990)................................... 12 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) ................ 38, 39, 40 iii CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 5 of 62 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).................. 42 FDIC v. Hulsey, 22 F.3d 1472 (10th Cir. 1994) ................................................ 14 Foster v. United States, 607 F.2d 943 (Ct. Cl. 1979) ........................................ 14 Friends of Norbeck v. U.S. Forest Service, 661 F.3d 969 (8th Cir. 2011) ................................................................................................... 31, 38 Ginsberg v. United States, 707 F.2d 91 (4th Cir. 1983) ............................. 12, 15 Heckler v. Chaney, 470 U.S. 821 (1985) ............................................................ 41 Home Builders Ass’n of Greater Chicago v. U.S. Army Corps of Engineers, 335 F.3d 607 (7th Cir. 2003) ................................................. 33 International Engineering Co. v. Richardson, 512 F.2d 573 (D.C. Cir. 1975) ........................................................................................ 30 International Union, United Automotive, Aerospace & Agricultural Implement Workers of America v. Brock, 783 F.2d 237 (D.C. Cir. 1986) .................................................................. 36 Johnson v. U.S. Department of Agriculture, 734 F.2d 774 (11th Cir. 1984) ........................................................................................ 19 King v. Burwell, 135 S. Ct. 2480 (2015)............................................................ 42 Kinscherff v. United States, 586 F.2d 159 (10th Cir. 1978) ............................. 12 Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015) ...................................... 20 Mafrige v. United States, 893 F. Supp. 691 (S.D. Tex. 1995) .............. 10, 13, 14 MCI Telecommunications Corp. v. AT&T Co., 512 U.S. 218 (1994) ............... 42 McKay v. United States, 516 F.3d 848 (10th Cir. 2008) ............................ 17, 18 McMaster v. United States, 177 F.3d 936 (11th Cir. 1999) ............................. 12 Megapulse, Inc. v. Lewis, 672 F.2d 959 (D.C. Cir. 1982) ..................... 22, 23, 24 Motor Vehicle Manufacturers Ass’n of U.S., Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983).......................... 51 National Wildlife Federation v. EPA, 980 F.2d 765 (D.C. Cir. 1992) ......................................................................................................... 35 iv CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 6 of 62 Natural Resources Defense Council, Inc. v. Berklund, 609 F.2d 553 (D.C. Cir. 1979) ........................................................................... 46, 49 North Star Alaska v. United States, 14 F.3d 36 (9th Cir. 1994) ..................... 28 O’Hagan v. United States, 86 F.3d 776 (8th Cir. 1996) ............................. 19, 29 Ochoa v. Holder, 604 F.3d 546 (8th Cir. 2010) ................................................. 31 Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654 (D.C. Cir. 1975) ......................................................................................................... 30 Patterson v. Buffalo National River, 76 F.3d 221 (8th Cir. 1996) ............. 12, 13 Pelfresne v. Village of Williams Bay, 865 F.2d 877 (7th Cir. 1989) ................ 19 Perry Capital LLC v. Mnuchin, 848 F.3d 1072 (D.C. Cir. 2017) ..................... 29 Pinnacle Armor, Inc. v. United States, 648 F.3d 708 (9th Cir. 2011) ....................................................................................... 35, 37, 40, 41 R.J. Reynolds Tobacco Co. v. U.S. Department of Agriculture, 130 F. Supp. 3d 356 (D.D.C. 2015) ................................................................. 43 Reese Brothers, Inc. v. U.S. Postal Service, 905 F. Supp. 2d 223 (D.D.C. 2012) ............................................................................................ 41 San Antonio Savings Ass’n v. Commissioner, 887 F.2d 577 (5th Cir. 1989) .......................................................................................... 19 Sang Goo Park v. Attorney General, 846 F.3d 645 (3d Cir. 2017) ............. 35, 39 School Board of Avoyelles Parish v. U.S. Department of Interior, 647 F.3d 570 (5th Cir. 2011).................................................................... 12 Shaughnessy v. Eidsmo, 23 N.W.2d 362 (Minn. 1946) .................................... 19 Sierra Club v. Clinton, 689 F. Supp. 2d 1147 (D. Minn. 2010) ....................... 43 Slaaten v. Cliff’s Drilling Co., 748 F.2d 1275 (8th Cir. 1984) ................... 10, 14 Starter Corp. v. Converse, Inc., 170 F.3d 286 (2d Cir. 1999) ........................... 49 Steenholdt v. FAA, 314 F.3d 633 (D.C. Cir. 2003)............................................ 37 v CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 7 of 62 Suburban Mortgage Associates, Inc. v. U.S. Department of Housing & Urban Development, 480 F.3d 1116 (Fed. Cir. 2007) ......................................................................................................... 30 Tamenut v. Mukasey, 521 F.3d 1000 (8th Cir. 2008) ......... 31, 32, 34, 39, 40, 41 Tovar v. Essentia Health, 857 F.3d 771 (8th Cir. 2017) .....................................8 Toxco Inc. v. Chu, 724 F. Supp. 2d 16 (D.D.C. 2010) ....................................... 41 Transohio Savings Bank v. Director, Office of Thrift Supervision, 967 F.2d 598 (D.C. Cir. 1992) .......................................... 24, 25, 27, 28, 30 United States v. Bedford Associates, 657 F.2d 1300 (2d Cir. 1981) ................ 12 United States v. Lambert, 146 F.2d 469 (2d Cir. 1944) ................................... 19 United States v. Mottaz, 476 U.S. 834 (1986) ................................................... 16 United States v. Security Industry Bank, 459 U.S. 70 (1982) ......................... 45 United States v. Sperry Corp., 493 U.S. 52 (1989) ........................................... 19 United States v. Woods, 134 S. Ct. 557 (2013) ................................................. 26 Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014) ......................... 42 V S Ltd. Partnership v. Department of Housing & Urban Development, 235 F.3d 1109 (8th Cir. 2000) .......................................... 28 Wilson v. Arkansas Department of Human Services, 850 F.3d 368 (8th Cir. 2017) .............................................................................................8 STATUTES AND REGULATIONS 5 U.S.C. §701 ............................................................................................... 31, 33, 41 §702 ............................................................................................... 20, 24, 26 §704 ..................................................................................................... 28, 29 16 U.S.C. §508b ................................................................................ 32, 33, 35, 36 28 U.S.C. §1346 ................................................................................................... 11, 24 §1491 ............................................................................................. 16, 24, 25 §2409a ................................................................................. 9, 10, 11, 16, 18 vi CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 8 of 62 30 U.S.C. §22 et seq. ....................................................................................................1 §181 et seq. ..................................................................................................1 §201 ..............................................................................................................1 §351 et seq. ..................................................................................................1 Tucker Act, 24 Stat. 505 (1887)......................................................................... 26 Minn. Stat. Ann. §93.055................................................................................... 14 43 C.F.R. Pt. 3220 (1966) ..................................................................................... 1, 35 §3221.4 (1966) ........................................................ 3, 22, 23, 35, 44, 46, 47 §3325.0-3 (1966) ....................................................................................... 35 §3325.2 (1966) .................................................................................... 36, 46 §3325.3 (1966) .......................................................................................... 35 LEGISLATIVE MATERIALS H.R. Rep. No. 81-795 (1949) .............................................................................. 34 H.R. Rep. No. 92-1559 (1972) ...................................................................... 10, 11 S. Rep. No. 81-1778 (1950) ............................................................................ 3, 34 S. Rep. No. 92-575 (1971) .................................................................................. 18 OTHER AUTHORITIES Assistant Secretary, Land & Water Resources Assistant Secretary, Energy & Minerals, GFS(MIN) SO-2 (1982) (Sept. 17, 1981), 1981 WL 29121 ............................................................................. 44 Forest Service Manual, available at https://www.fs.fed.us/im/ directives/dughtml/fsm.html (last modified Nov. 3, 1997) .............. 37, 38 Superior National Forest Land and Resource Management Plan (2004), available at https://www.fs.usda.gov/main/superior/ landmanagement/planning ..................................................................... 38 vii CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 9 of 62 INTRODUCTION Federal law and policy have long recognized that the nation has a strong interest—from both an economic and a national-security perspective— in the development of hardrock minerals on public lands. Prospecting for and developing those minerals, however, is difficult, expensive, and timeconsuming. For over a century, therefore, federal law has given developers an incentive to overcome those difficulties and explore for unknown geologic deposits on public lands. That incentive is secure mineral tenure. The precise form of the mineral-tenure right has varied over time, but the principle is settled: The discovery of valuable minerals entitles a prospector to an enduring property right in the mineral estate. See Am. Compl. ¶¶30-39, 53-57 (discussing 30 U.S.C. §§22 et seq., 181 et seq., 201(b), 351 et seq.; 43 C.F.R. Pt. 3220 (1966)). This right does not necessarily mean that the developer will be allowed to extract the minerals; it must submit a mine plan to the relevant government agencies, which will conduct the required environmental review (including soliciting public comment). But the property right remains critically important. Without it, no rational prospector would undertake the extraordinary investment of time and money—in this case, decades and hundreds of millions of dollars—necessary for mineral exploration and development. Put simply, secure mineral tenure is the foundation of hardrock mineral development. -1- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 10 of 62 The government’s conduct here impermissibly redefines this mineraltenure right, from one that is secure and enduring to one that can be revoked for any reason, or no reason at all. As this case illustrates, that change has far-reaching consequences: The government has denied plaintiffs any chance for a return on the $400 million they have invested—in reliance on their rights under federal law and leases that embodied those rights—to develop one of the largest untapped copper and nickel reserves in the world. It has also prejudiced plaintiffs’ mineral rights on other federal, state, and private lands. And it has jeopardized local and national interests that are crucial to the economy and national security. Defendants’ efforts to pretermit plaintiffs’ challenges to this unlawful conduct should be rejected. STATEMENT A. Prospecting Permits And Valuable Mineral Discovery Plaintiffs Franconia Minerals (US) LLC and Twin Metals Minnesota LLC are Minnesota mining companies who, along with their predecessors in interest, have been prospecting for hardrock minerals in northeastern Minnesota for over five decades. In the 1950s, plaintiffs’ predecessor applied for prospecting permits in that region. Am. Compl. ¶58. After obtaining the consent of the Forest Service, the Interior Department granted those applications. Id. ¶59. -2- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 11 of 62 Plaintiffs’ predecessor subsequently discovered a valuable mineral deposit in the region. Am. Compl. ¶60. This deposit lies outside both the Boundary Waters Canoe Area Wilderness, where mining is prohibited, and the congressional “buffer zone” established around the Wilderness. Id. ¶¶51, 52. It lies instead inside an area where, according to the Senate report that accompanied the Act of 1950, mining was encouraged as a “highly desirable” activity. S. Rep. No. 81-1778, at 2 (1950). B. Governing Federal Law And The 1966 Leases By virtue of their valuable mineral discovery, plaintiffs’ predecessors obtained property rights in the mineral estate under federal law. See 43 C.F.R. §3221.4(a), (f) (1966); Am. Compl. ¶¶53-57, 110, 118. Specifically, they were entitled to a lease for the minerals in the subject lands—a lease that included a “right of renewal.” 43 C.F.R. §3221.4(a), (f) (1966). In 1966, plaintiffs’ predecessors secured two such leases, executed by the Bureau of Land Management (“BLM”) on behalf of the Interior Department: MNES01352 and MNES-01353 (“the Leases”). Am. Compl. ¶¶2, 63. The Forest Service (which as noted fully consented at the prospecting stage) retained only limited authority during the later renewal stage; its role was restricted to suggesting terms and conditions in connection with any renewals, including conditions “for the protection of the surface of the land.” 43 C.F.R. §3221.4(f) (1966); see Am. Compl. ¶72. This limited authority balanced the -3- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 12 of 62 government’s interests and the lessee’s: Because renewal could not be denied outright, the lessee’s mineral tenure was secure. But if over time the Forest Service developed concerns about impacts on the surface, it could, in connection with a lease renewal, suggest lease stipulations to address those concerns. The Leases, which expressly refer to the right-of-renewal regulation, grant plaintiffs the “exclusive right to mine, remove, and dispose” of all the copper, nickel, and associated minerals in lands covered by the Leases for a period of 20 years, with a “right in the Lessee to renew the same for successive periods” of 10 years. Am. Compl. Ex. 1 at 1 (Leases §1(a)). C. 1989 And 2004 Renewals In accordance with federal law and the Leases, BLM renewed the Leases in 1989 and 2004. Each renewal attached the Leases in full, and retained all of their terms and conditions. Am. Compl. ¶¶70, 82. (Defendantintervenor disputes that the renewals incorporated all of the Leases’ terms, but that dispute cannot be resolved in its favor on a motion to dismiss.) As part of both lease-renewal processes, BLM received the Forest Service’s agreement that the Leases’ terms and conditions sufficed to protect the surface resources of the United States. Am. Compl. ¶¶72, 80. Neither agency suggested that the Forest Service could withhold consent entirely. Id. ¶¶72, 79. -4- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 13 of 62 The 1989 and 2004 renewals did not mean that plaintiffs could begin mining. As noted earlier, mining cannot occur until after plaintiffs present an actual mine plan to the relevant government agencies, which will then undergo extensive and rigorous environmental review, including analysis of potential effects on natural resources as well as social, cultural, and economic resources. The renewals simply gave the parties an opportunity—expressly provided in the Leases—to revisit certain terms and conditions. D. 2012 Renewal Application Plaintiffs submitted a third renewal request in 2012, following the same process used for the two previous ones. Am. Compl. ¶¶6-7, 86. This time, however, the government—facing intense pressure from organizations opposed to mining in northeastern Minnesota—changed the rules. Id. ¶¶10, 88. BLM sought an opinion from the Solicitor of the Interior on whether it had discretion to deny renewal of the Leases outright. Id. ¶89. On March 8, 2016, then-Solicitor Hilary Tompkins issued an opinion (the “Solicitor’s Opinion”) concluding that BLM had such discretion. Id. ¶90. Armed with the Solicitor’s Opinion, BLM asked the Forest Service whether it consented to lease renewal. Am. Compl. ¶93; see also id. ¶59. Claiming “absolute discretion” to withhold consent, the Forest Service declined to consent to renewal of the Leases. Id. ¶102. Its decision was based not on anything about plaintiffs’ mine plan—that would have been -5- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 14 of 62 impossible since no plan has been submitted—but rather on unsupported generalized concerns about the “inherent potential risk” of mining. Id. ¶102. Indeed, the Forest Service acknowledged that it had not conducted an environmental review of the impacts of lease renewal. Dkt. 53 (“FS Decision”) at 9, 11; see Am. Compl. ¶¶102-103. The day after the Forest Service denied consent, BLM rejected plaintiffs’ application for lease renewal. Am. Compl. ¶¶104-105. Its sole justification was the Forest Service’s refusal to consent to renewal. Id. E. This Action Plaintiffs filed this action challenging the lawfulness of the government’s refusal to renew the Leases. The operative complaint includes four claims. Count I seeks a declaration of plaintiffs’ rights in the mineral estate under the Quiet Title Act. Counts II and III challenge, under the Administrative Procedure Act, BLM’s refusal to renew the Leases as a violation of both federal law and the Leases. Count IV challenges, also under the APA, the Forest Service’s denial of consent to renewal of the Leases. SUMMARY OF ARGUMENT The government and permissive intervenor Northeastern Minnesotans for Wilderness (“NMW”) move to dismiss the operative complaint. Each principally challenges this Court’s subject-matter jurisdiction—i.e., its power to vindicate the security of plaintiffs’ real-property rights—based largely on -6- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 15 of 62 the flawed premise that plaintiffs’ claims “derive solely from [the] lease agreements.” U.S. Mem. 9. Defendants assert that plaintiffs’ sole remedy is to abandon their decades-long project and seek damages in the Court of Federal Claims. Those arguments fail for several reasons. First, as the complaint makes clear, plaintiffs’ rights arise from both federal law and the Leases. See Am. Compl. ¶¶53-57, 110, 118. Second, plaintiffs lack an adequate alternative remedy at law, because the possibility of damages is no substitute for plaintiffs’ right to secure mineral tenure, including the opportunity to develop the minerals that they and their predecessors discovered and have developed. Third, even if this case were a “contract action” (U.S. Mem. 8), nothing precludes this Court from adjudicating plaintiffs’ QTA or APA claims. Finally, there are meaningful standards for this Court to review the lawfulness of the Forest Service’s refusal to consent to renewal of the Leases. NMW also argues, under Rule 12(b)(6), that the Leases do not give plaintiffs a non-discretionary right to renew (Mem. 18-20). This is not the proper occasion to resolve that issue, but to the extent the Court is inclined to address NMW’s argument without hearing from the actual counterparty to the Leases (the government), the argument should be rejected. -7- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 16 of 62 STANDARD OF REVIEW In evaluating a facial attack on the Court’s subject-matter jurisdiction under Rule 12(b)(1), the Court “merely [needs] to look and see if plaintiff has sufficiently alleged a basis of subject matter jurisdiction.” Branson Label, Inc. v. City of Branson, Mo., 793 F.3d 910, 914 (8th Cir. 2015). “[T]he court restricts itself to the face of the pleadings and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6).” Id. In evaluating a motion to dismiss under Rule 12(b)(6), the court “accept[s] as true the factual allegations contained in the complaint and grant[s] [plaintiffs] the benefit of all reasonable inferences that can be drawn from those allegations.” Tovar v. Essentia Health, 857 F.3d 771, 774 (8th Cir. 2017). Dismissal is improper if the complaint “contain[s] sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Wilson v. Arkansas Dep’t of Human Servs., 850 F.3d 368, 371 (8th Cir. 2017). ARGUMENT In reliance on their rights under both federal law and the Leases, plaintiffs have invested hundreds of millions of dollars to develop one of the largest untapped copper and nickel reserves in the world. Yet before plaintiffs could reap any reward from that enormous investment, the -8- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 17 of 62 government nullified the vested and valuable real property right that had belonged to them and their predecessors for over half a century—and in so doing jeopardized the jobs for generations that would come with a future mining project. The government’s actions, which depart with no adequate explanation from decades of consistent agency practice, not only threaten plaintiffs’ rights but also threaten to undermine more generally the incentives for hardrock mineral development long enshrined in federal law. Defendants’ arguments for dismissal of plaintiffs’ challenges to the government’s unlawful conduct lack merit. The motions to dismiss should be denied. I. THIS COURT HAS JURISDICTION OVER FRANCONIA’S QTA CLAIM In count I, brought under the Quiet Title Act, Franconia asserts property rights in the mineral estate that it holds by virtue of the mineral discovery and subsequent leases with the United States. The government, by refusing to renew the Leases, denies that Franconia has such property rights. This claim therefore falls squarely under the QTA, which waives sovereign immunity and provides a cause of action against the United States “to adjudicate a disputed title to real property in which the United States claims an interest.” 28 U.S.C. §2409a(a). -9- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 18 of 62 A. Franconia’s QTA Claim Seeks Adjudication Of Rights In Real Property 1. As a threshold matter, neither the government nor NMW appears to dispute that a mineral estate—which is what Franconia claims a property right in—is “real property” under the QTA. 28 U.S.C. §2409a(a). For good reason: It is “easily resolved” that “[m]ineral deposits … fall within §2409a(a)’s definition of real property.” Mafrige v. United States, 893 F. Supp. 691, 697 (S.D. Tex. 1995) (citing cases). Indeed, the QTA’s legislative history indicates that “[t]he quieting of … title to minerals” was specifically contemplated as being within the statute’s ambit. H.R. Rep. No. 92-1559, at 6 (1972). That conclusion also accords with settled law outside the QTA context, recognizing that a mineral estate is real property. As the Eighth Circuit explained, “[u]nder a typical mineral lease, the lessee acquires a ‘working interest’ in the mineral estate, which is a real property interest.” Slaaten v. Cliff’s Drilling Co., 748 F.2d 1275, 1277 (8th Cir. 1984). 2. Defendants nonetheless argue that Franconia’s claimed real- property interest does not suffice for QTA purposes. They contend that Franconia does not claim “fee owner[ship]” (U.S. Mem. 15; see NMW Mem. 7), and that the “renewable leasehold interest” by which Franconia holds its property right is insufficient (NMW Mem. 7; see U.S. Mem. 15). These arguments are refuted by the statutory text, legislative history, and - 10 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 19 of 62 interpretive case law, all of which confirm that the QTA permits adjudication of rights in mineral estates even if those rights are less than fee simple and are held through a lease from the government. The QTA’s text contemplates civil actions in cases involving property interests that are less than fee simple. For example, the statute requires the complaint to “set forth with particularity the nature of the right, title, or interest which the plaintiff claims in the real property, the circumstances under which it was acquired, and the right, title, or interest claimed by the United States.” 28 U.S.C. §2409a(d) (emphasis added). Other statutory provisions underscore the point, speaking in terms of “interests” or “estates” in property. See id. §§1346(f), 2409a(e). Those provisions make clear that a plaintiff may assert a QTA claim based on an interest in real property that is less than fee simple. The legislative history and interpretive case law confirm the point. The House Report issued during consideration of the QTA, for example, states that “the terms of the proposed statute” include “[t]he quieting of title where the plaintiff claims an estate less than a fee simple [such as] an easement or the title to minerals.” H.R. Rep. No. 92-1559, at 6 (emphasis added). And courts consistently hold that the QTA provides jurisdiction over claims involving property interests “less than a fee simple interest.” Alaska Dep’t of Nat. Res. v. United States, 816 F.3d 580, 585 (9th Cir. 2016); accord, e.g., - 11 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 20 of 62 School Bd. of Avoyelles Parish v. U.S. Dep’t of Interior, 647 F.3d 570, 580 (5th Cir. 2011); United States v. Bedford Assocs., 657 F.2d 1300, 1316 (2d Cir. 1981); Kinscherff v. United States, 586 F.2d 159, 161 (10th Cir. 1978). Even the cases on which defendants rely (U.S. Mem. 15-16; NMW Mem. 7-8) are to the same effect. For example, in Ginsberg v. United States, 707 F.2d 91 (4th Cir. 1983), the court held that the QTA “‘plainly contemplates litigation against the United States to adjudicate disputes about lesser interests, such as … the Government’s lease,’” id. at 93 (quoting Bedford Assocs., 657 F.2d at 1316). And in McMaster v. United States, 177 F.3d 936 (11th Cir. 1999), the court recognized that the United States’ “interfere[nce] with [a plaintiff’s] easement rights”—clearly an interest less than fee simple—would be sufficient under the QTA, id. at 940.1 The Eighth Circuit, moreover, has adjudicated a QTA dispute involving an easement, which again is an interest less than fee simple. Patterson v. Buffalo Nat’l River, 76 F.3d 221 (8th Cir. 1996). In so doing, the court, despite having an obligation to evaluate its own jurisdiction, did not identify The other cases defendants cite (U.S. Mem. 15-16; NMW Mem. 7-8) are not to the contrary. See Cadorette v. United States, 988 F.2d 215, 223-224 (1st Cir. 1993) (explaining that the QTA permits adjudication of “title or ownership” disputes, and acknowledging that QTA claims can involve various degrees of “title”); Dunbar Corp. v. Lindsey, 905 F.2d 754, 759 (4th Cir. 1990) (plaintiff’s claim was not barred by the QTA where it alleged only a “nonownership interest in real property”). 1 - 12 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 21 of 62 a jurisdictional deficiency in the plaintiffs’ QTA claim, which asserted that the plaintiffs had an easement across government land. See id. at 223. Defendants also assert that plaintiffs “do not dispute” that the United States is the “fee owner of the federal minerals” (U.S. Mem. 15) or has “fee title to the mineral estate” (NMW Mem. 7). But both support this assertion by citing only plaintiffs’ complaint, which states merely that “[t]he United States claims fee simple ownership.” Am. Compl. ¶109 (emphasis added). That does not mean there is no dispute over the property interest here. There manifestly is: Plaintiffs claim a property interest in the mineral estate under both the relevant regulation and the Leases, whereas the government denies that plaintiffs have any such property interest and that it owns all rights in the property. That controversy surely involves “disputed title” within the meaning of the QTA. 3. The only remaining question is whether Franconia’s mineral rights are within the QTA’s scope even though they are held by lease with the United States. The answer is yes. In the most closely analogous case, Mafrige, the court squarely held that mineral rights under a federal lease give rise to a real-property interest sufficient for QTA purposes. See 893 F. Supp. at 696-698. The government there moved to dismiss the complaint (which sought to adjudicate an oil and gas company’s rights under a mineral lease) on the ground that the “claim - 13 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 22 of 62 [was] not cognizable under the” QTA. Id. at 696. Rejecting that argument, the court determined that Texas law had “long held that oil and gas leases convey interests in real property,” and that in this regard state law accorded with federal law. Id. at 697-698. Analogizing to QTA claims about easements, the court held that a leasehold interest sufficed to create “disputed title to real property.” Id. at 698. “That a lease conveys only a ‘property interest’ in the minerals, and not complete ownership,” the court made clear, “is inconsequential under § 2409a(a). A party need only claim some ownership interest in the property to create a ‘disputed title to real property.’” Id. Mafrige’s analysis is consistent with cases in other jurisdictions— including the Eighth Circuit—concluding that a mineral lease is an interest in real property. See Slaaten, 748 F.2d at 1277; FDIC v. Hulsey, 22 F.3d 1472, 1484 (10th Cir. 1994) (“An oil and gas lease is a grant of an estate in real property.”); Foster v. United States, 607 F.2d 943, 949 (Ct. Cl. 1979) (“[P]laintiffs’ leasehold interest in the reserved mineral rights is … an estate in real property.”). Minnesota law likewise treats mineral leaseholds as property interests sufficient to allow quiet title actions, authorizing an “[a]ction to quiet title to lands covered by mineral lease.” Minn. Stat. Ann. §93.055. - 14 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 23 of 62 Defendants argue, however, that even if a leasehold interest is “a kind of ‘title’” (NMW Mem. 8), the QTA still does not apply because Franconia alleges a breach of contract, which is insufficient to “cast[] doubt on the title or ownership of the property” (U.S. Mem. 15). That contention—that a breach-of-contract claim can never raise a title dispute under the QTA—is wrong. If a private party entered into a contract to buy a plot of land from the government, for example, and the government took the money but refused to turn over the land, the buyer could surely claim a title dispute under the QTA. The case cited by defendants to support this argument (Ginsberg) provides no support. The court there simply noted that the dispute in that particular case did not implicate title. See 707 F.2d at 93. Rather, the claim was by a landlord who essentially asserted that his tenant, a government agency, owed him more rent. See id. at 92. The court rightly held that that breach-of-contract claim did not implicate a title dispute. But that holding hardly supports defendants’ sweeping assertion that all title disputes fall outside the QTA merely because they involve a contract. In short, there is no basis for defendants’ argument that a dispute over property rights held by lease is not cognizable under the QTA. - 15 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 24 of 62 B. The Tucker Act Does Not Affect This Court’s Jurisdiction Over Franconia’s QTA Claim The QTA’s sovereign-immunity waiver excludes “actions which may be or could have been brought under” several other statutes. 28 U.S.C. §2409a(a). Those statutes include the Tucker Act. Id. §1491. But contrary to what the government (though not NMW) contends (U.S. Mem. 8), the QTA’s exclusion of Tucker Act cases does not deprive the Court of jurisdiction here, because the remedy Franconia seeks—adjudication and declaration of its mineral rights—is not available under the Tucker Act. The Supreme Court has explained that before the QTA was enacted, plaintiffs who had property disputes with the government but were “willing to settle for monetary damages … could sue in the Court of Claims and attempt to make out a constitutional claim for just compensation.” Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 280-281 (1983). Finding that state of affairs insufficient, Congress enacted the QTA to authorize an action for an adjudication and declaration of rights in real property. Id. at 282. Because Franconia asserts an existing property interest in the mineral estate, and does not seek damages, its claim is properly brought under the QTA. See id. at 280-282; see also United States v. Mottaz, 476 U.S. 834, 850-851 (1986) (suit was brought under QTA because plaintiff - 16 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 25 of 62 claimed ownership and “[a] Tucker Act-based lands suit would seek damages”). The government cites McKay v. United States, 516 F.3d 848 (10th Cir. 2008), to argue (Mem. 11-12, 14-15) that Franconia’s QTA claim is at its essence a “contract claim,” for which exclusive jurisdiction rests in the Court of Federal Claims, or CFC. That argument fails for several reasons. To begin with, the plaintiff in McKay sought only to “enforce contract rights through contract remedies,” invoking no “rights based on independent, noncontractual sources.” 516 F.3d at 851. Here, by contrast, Franconia’s rights are not limited to the Leases; to the contrary, at their essence those rights arise from a federal regulation that entitles plaintiffs to a renewable leasehold interest in the mineral estate. See supra pp.3-4; infra Part II.A.1. McKay is thus inapposite. The government cites (U.S. Mem. 12; see also NMW Mem. 11) cases holding that a contract claim does not become something else simply because “resolution of [the] … claim may turn on the interpretation of a statute.” But that proposition has no bearing here. Rather, the Leases and the regulation each provides an independent basis for relief. In any event, McKay was wrongly decided and should not be followed. Two key errors underlie that decision. First, the court relied on Tenth Circuit APA precedent holding that the Tucker Act provides the exclusive - 17 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 26 of 62 remedy for all contract claims. 516 F.3d at 851. Those APA decisions are themselves erroneous because as discussed below (pp.24-28), the Tucker Act does not establish an exclusive remedy for all contract claims against the United States, but instead gives the CFC exclusive jurisdiction over claims for money damages over $10,000. That conferral of exclusive jurisdiction has no relevance to a case like this one, where the plaintiff does not seek money damages. See infra Part II.B.2 Second, McKay stated that “the necessity of permitting the Government to carry out its functions unhampered by direct judicial intervention outweighs the possible disadvantage to the citizen in being relegated to the recovery of money damages after the event.” 516 F.3d at 851. Whatever the merits of that rationale in the APA context from which McKay drew it, it does not translate to the QTA, where Congress specifically provided a remedy for disputes with the sovereign over real property. See Block, 461 U.S. at 282. A basis for Congress’s provision of that specific remedy was its recognition of the unique and fundamental importance of real property rights. See S. Rep. No. 92-575, at 1 (1971) (noting the “[g]rave inequity” when McKay also voiced concern about the possibility of “compel[ing] [the government] to perform obligations it prefers to breach and compensate financially.” 516 F.3d at 851. But no such government compulsion will ever occur under the QTA because the act (consistent with the Fifth Amendment) explicitly allows the government to maintain possession of disputed property rights by paying “just compensation.” 28 U.S.C. §2409a(b). 2 - 18 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 27 of 62 citizens are “excluded, without benefit of a recourse to the courts, from lands they have reason to believe are rightfully theirs”). Unlike the money that is often at issue in contract claims, real property is not fungible. See United States v. Sperry Corp., 493 U.S. 52, 62 n.9 (1989); San Antonio Sav. Ass’n v. Comm’r, 887 F.2d 577, 591 (5th Cir. 1989); Pelfresne v. Village of Williams Bay, 865 F.2d 877, 883 (7th Cir. 1989); Johnson v. U.S. Dep’t of Agric., 734 F.2d 774, 788 (11th Cir. 1984); United States v. Lambert, 146 F.2d 469, 472 (2d Cir. 1944) (Hand, J.). For that reason, as the Eighth Circuit has held, “monetary relief fails to provide adequate compensation for an interest in real property.” O’Hagan v. United States, 86 F.3d 776, 783 (8th Cir. 1996); accord, e.g., Pelfresne, 865 F.2d at 883 (“monetary compensation is an inadequate substitute” for real property); Shaughnessy v. Eidsmo, 23 N.W.2d 362, 368 (Minn. 1946) (explaining that “damages for the breach of a contract for … any interest in land is always considered inadequate,” and that this rule arose due to the “peculiar respect and consideration which has been accorded to land in the English law”), cited in O’Hagan, 86 F.3d at 783. Cases like this one, therefore, involving a direct conflict between Franconia’s property right in the mineral estate and the United States’ asserted rights, are precisely the kind that the QTA was meant to address. - 19 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 28 of 62 II. THIS COURT HAS JURISDICTION OVER PLAINTIFFS’ APA CLAIMS The Administrative Procedure Act provides that a “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action …, is entitled to judicial review.” 5 U.S.C. §702. Counts II, III, and IV of plaintiffs’ complaint raise APA challenges to BLM’s and the Forest Service’s conduct that resulted in the denial of lease renewal. That conduct has caused and will cause plaintiffs significant harm, because they made enormous investments to explore for and define mineral deposits in the relevant lands, as well as to acquire mineral rights on contiguous lands. Am. Compl. ¶¶6, 92, 117. Plaintiffs made these investments in reliance on federal law and the Leases, each of which secured their rights to the mineral estate. Plaintiffs are entitled to judicial review of the agency decisions invalidating those federally conferred rights. Indeed, the APA creates a “‘strong presumption’ favoring judicial review of administrative action,” Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015), a presumption that can only be overcome “upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent,” Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 670, 671 (1986); accord Barlow v. Collins, 397 U.S. 159, 166 (1970) (“preclusion of judicial review … is not lightly to be inferred”). Despite this strong presumption, defendants argue (U.S. Mem. 8-14; NMW Mem. 9-12) that the Tucker Act implicitly bars plaintiffs’ APA claims - 20 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 29 of 62 because those claims are essentially “contract claims,” for which exclusive jurisdiction rests in the CFC. Defendants additionally argue (U.S. Mem. 1617; NMW Mem. 12) that this Court lacks jurisdiction because an action for damages under the Tucker Act provides an “adequate remedy.” Finally, defendants argue (U.S. Mem. 16-20; NMW Mem. 21-26) that plaintiffs’ claim against the Forest Service (count IV) fails because the Forest Service supposedly had complete discretion to refuse consent to renewal of the Leases—thus nullifying investments worth hundreds of millions of dollars made by plaintiffs and their predecessors—for any reason or no reason at all. None of those arguments has merit. A. The Tucker Act Does Not “Impliedly Forbid” The Relief Plaintiffs Seek Under The APA Plaintiffs allege that the government’s termination of their property interest in the mineral estate violated their rights under federal law and the Leases, and thus seek to set aside unlawful agency action under the APA. Defendants respond that this case is a garden-variety contract dispute, and assert that the APA provides no authority for such a dispute to be heard in this Court. That argument fails for two independent reasons elaborated below. First, it ignores plaintiffs’ complaint, which makes clear that plaintiffs’ mineral rights arise from federal law and the Leases. See Am. Compl. ¶¶53- - 21 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 30 of 62 57, 110, 118, 121. In particular, the complaint alleges that the challenged agency actions—including the Solicitor’s Opinion, the Forest Service’s refusal to consent (and its assumption that it had consent rights at all), and the BLM’s ultimate denial of lease renewal—violate a federal regulation as well as the terms of the Leases. Second, even if plaintiffs’ APA claims were all “contract claims,” this Court would still have jurisdiction. Out-of-circuit cases interpreting the Tucker Act as prohibiting all contract actions seeking any remedy other than damages are wrongly decided: The text of the Tucker Act contains no such limitation, and the APA expressly authorizes review here. 1. Plaintiffs’ rights and requested remedies are not derived solely from contract The D.C. Circuit has developed a framework for determining whether an APA action is “‘at its essence’ a contract action,” a framework that “depends both on the source of the rights upon which the plaintiff bases its claims, and upon the type of relief sought (or appropriate).” Megapulse, Inc. v. Lewis, 672 F.2d 959, 968 (D.C. Cir. 1982). Here, both prongs show that plaintiffs’ APA claims are not barred. a. As to the source of rights, the complaint explains that plaintiffs’ mineral rights were established pursuant to 43 C.F.R. §3221.4 (1966), which articulated longstanding federal mineral law and policy. See Am. Compl. - 22 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 31 of 62 ¶¶53-57, 110, 118, 121. Under that regulation, plaintiffs were entitled, as a “[r]eward for discovery,” to a lease for the mineral deposit, with a nondiscretionary “right of renewal for successive periods.” 43 C.F.R. §3221.4(a), (f). This non-discretionary renewal right, guaranteeing plaintiffs the security required for long-term exploration and production of minerals, is, as explained, critical to the stability of the nation’s hardrock-mining regulatory regime. Without such security, no rational entity would undertake the extraordinary investment of time and resources that is necessary for mineral exploration and development. The source of plaintiffs’ rights is thus federal law—grounded in sound mineral policy. To be sure, plaintiffs also claim rights arising from the Leases. But those rights are in addition to rights claimed under federal law, and hence do not bar review here. As the D.C. Circuit has explained (in a case defendants rely on), “the mere fact that a court may have to rule on a contract issue does not, by triggering some mystical metamorphosis, automatically transform an action” to set aside agency action under the APA into a so-called contract action. Megapulse, 672 F.2d at 968. Where, as here, agency action violates federal law, the action is reviewable under the APA—even if “that same action might also amount to a breach of contract.” Id. at 971. b. Nor do the remedies sought support defendants’ argument. The government asserts (Mem. 13-14) that review is barred because the - 23 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 32 of 62 complaint seeks an order for renewal of the Leases, which the government says is tantamount to the contractual remedy of specific performance. But as the D.C. Circuit has explained, relying on a case that both defendants cite (Megapulse), “federal district courts [are not] forbidden from granting injunctive relief merely because that relief might be the equivalent of ordering specific performance of a government contract.” Transohio Savings Bank v. Director, Office of Thrift Supervision, 967 F.2d 598, 611 (D.C. Cir. 1992) (citing Megapulse, 672 F.2d at 941). 2. The Tucker Act does not create an exclusive remedy for all contract claims in the Court of Federal Claims Defendants also contend (U.S. Mem. 8; NMW Mem. 9) that all “contract claims” against the government fall outside the APA because the Tucker Act gives the CFC exclusive subject-matter jurisdiction over all such claims. In reality, the Tucker Act creates an exclusive remedy only where claims founded on a contract seek money damages in excess of $10,000. See 28 U.S.C. §1491(a)(1); id. §1346. Courts in other circuits that have reached the opposite conclusion have done so, sometimes reluctantly, based on an erroneous interpretation of the statutory text. a. The APA waives sovereign immunity for actions “seeking relief other than money damages” unless “any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” 5 U.S.C. §702. - 24 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 33 of 62 Resting on out-of-circuit decisions, defendants argue that the Tucker Act “impliedly forbids” parties from bringing APA claims based on contracts in federal district court. That contention, as the D.C. Circuit has explained, “rest[s] on the premise that the Tucker Act gives the Claims Court exclusive jurisdiction over all contract claims against the government.” Transohio, 967 F.2d at 612 (emphasis added). That premise, however, is unfounded—as both the statutory text and Supreme Court case law confirm. The Tucker Act gives the CFC jurisdiction “to render judgment upon any claim against the United States founded … upon any express or implied contract with the United States.” 28 U.S.C. §1491(a)(1). But the statute nowhere states that this jurisdiction is exclusive jurisdiction. The Supreme Court made that precise point in Bowen v. Massachusetts, 487 U.S. 879 (1988): It is often assumed that the Claims Court has exclusive jurisdiction of Tucker Act claims for more than $10,000. That assumption is not based on any language in the Tucker Act granting such exclusive jurisdiction to the Claims Court. Rather, that court’s jurisdiction is ‘exclusive’ only to the extent that Congress has not granted any other court authority to hear the claims that may be decided by the Claims Court. Id. at 910 n.48 (emphasis added). This language shows that review is available here, because through the APA, Congress has “granted any other court authority to hear the claims” that plaintiffs advance. Id. The APA gives district courts broad authority to hear claims—including claims based - 25 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 34 of 62 on a contract—against federal agencies “seeking relief other than money damages.” 5 U.S.C. §702. Again, Bowen confirms this point. There, Massachusetts sought an injunction in district court compelling the federal government to pay the Commonwealth for expenditures that it claimed were reimbursable under Medicaid. 487 U.S. at 882-883, 887. The federal government raised a jurisdictional challenge, arguing that the APA did not provide a sovereignimmunity waiver because the CFC had exclusive jurisdiction over Massachusetts’ claim. Id. at 890-891. The Supreme Court rejected that argument, noting that the APA’s “generous review positions” “must be given a hospitable interpretation.” Id. at 904. Moreover, in describing the forms of relief that were not “money damages” under 5 U.S.C. §702—and thus fell within the scope of the APA’s review provisions—the Supreme Court expressly mentioned “equitable actions for monetary relief under a contract.” Id. at 895. In other words, a contract claim seeking equitable relief (even monetary relief) can be heard in district court under the APA.3 The government cites (Mem. 8-9) legislative history to 1976 amendments to the APA for the proposition that the Tucker Act—a statute enacted nearly 100 years earlier, see 24 Stat. 505 (1887)—was meant “to foreclose specific performance of government contracts.” The views of the 1976 Congress about what the 1887 Congress intended in enacting the Tucker Act are irrelevant. As the Supreme Court has repeatedly stated, such “[p]ost-enactment legislative history (a contradiction in terms) is not a legitimate tool of statutory interpretation.” United States v. Woods, 134 3 - 26 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 35 of 62 b. The contrary (non-Supreme-Court) case law on which defendants rely suffers from a significant analytical inconsistency. Under that case law, plaintiffs “may bring statutory and constitutional claims in federal district court even where the claims depend on the existence and terms of a contract with the government,” but cannot bring other types of contract claims. Transohio, 967 F.2d at 610. There is no basis in either the APA or the Tucker Act for that distinction—as the D.C. Circuit itself acknowledged in Transohio: Nothing in the language of either the Tucker Act or the APA requires special treatment for contract claims. … Although specific performance might not always be wise, it is hard to see the justification for an absolute bar on specific performance since specific performance is available when the contract breach rises to statutory or constitutional violation. Id. at 612. Despite this acknowledgement, the Transohio court felt compelled to adhere to its pre-Bowen precedent. 967 F.2d at 613. But in so doing, the court noted there is a “strong case that after Bowen, the Tucker Act should not be read to ‘impliedly forbid’ under the APA the bringing in district court of contract actions,” and “that such a result would be faithful to the text of the Tucker Act and the APA, and sensible.” Id. at 612. Indeed, the court S. Ct. 557, 568 (2013). That is certainly true here given that this legislative history conflicts with Bowen. - 27 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 36 of 62 explained that the interpretation plaintiffs advocate here would “establish a coherent and complementary regime in which the Claims Court and federal district courts share a body of substantive law, but where the appropriate forum is determined by the relief sought: suits against the government for damages go to Claims Court, while those seeking specific relief go to district court.” Id. The Ninth Circuit, though similarly constrained by prior precedent, has likewise acknowledged that Bowen “suggests that contract actions seeking equitable relief could be heard in district court under the APA.” North Star Alaska v. United States, 14 F.3d 36, 38 (9th Cir. 1994). This Court, not being bound by any such precedent, should interpret the Tucker Act according to its plain text and in accordance with Bowen. The statute does not bar district-court jurisdiction to review agency actions involving contracts unless the claims seek money damages.4 B. There Is No Adequate Alternative Remedy The APA allows review of “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. §704. NMW argues (Mem. 12) NMW cites (Mem. 11) V S Ltd. Partnership v. Department of Housing & Urban Development, 235 F.3d 1109 (8th Cir. 2000), for the proposition that “the case sounds in contract, and Plaintiffs’ sole and adequate remedy is money damages in the Court of Federal Claims.” But that case did not address the APA at all—much less that statute’s interplay with the Tucker Act. As the government acknowledges (Mem. 8), the Eighth Circuit “has yet to weigh in on” whether the Tucker Act implicitly forbids contract claims brought in federal district court under the APA. 4 - 28 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 37 of 62 that all of plaintiffs’ APA claims are precluded because the Tucker Act supplies an adequate remedy, while the government makes the argument (Mem. 16-17) as to count IV only. Both are incorrect.5 As discussed, under the Tucker Act plaintiffs are limited to money damages. But this case involves real property—which, for centuries, has been recognized under the law as unique and of preeminent importance. For that reason, the Eighth Circuit (like other courts) has held that “monetary relief fails to provide adequate compensation for an interest in real property, which by its very nature is considered unique.” O’Hagan, 86 F.3d at 783. The case law on which the government relies (Mem. 16-17) supports the point. In Christopher Village, L.P. v. United States, 360 F.3d 1319 (Fed. Cir. 2004), a case involving real property, the court concluded that an APA action “to enjoin foreclosure by the government” was proper “because no other adequate remedy existed to prevent the foreclosure and sale,” id. at 1327.6 Defendants present their adequate-remedy argument as jurisdictional. But the D.C. Circuit recently held (in a case the government cites (Mem. 8)) that the adequate-remedy prong of §704 does not involve jurisdiction, instead establishing an element of an APA cause of action. See Perry Capital LLC v. Mnuchin, 848 F.3d 1072, 1101-1102 (D.C. Cir. 2017), amended on other grounds on reh’g, 864 F.3d 591 (D.C. Cir. 2017). Whichever framework applies, plaintiffs satisfy it. 5 The other cases defendants cite (U.S. Mem. 16-17; NMW Mem. 12-13) are distinguishable. With one exception, none even involves real property. They instead involve: the production of documents, see Central Platte Nat. Res. Dist. v. U.S. Dep’t of Agric., 643 F.3d 1142, 1148-1149 (11th Cir. 2011); 6 - 29 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 38 of 62 The Supreme Court, moreover, has rejected the argument that “a naked money judgment against the United States will always be an adequate substitute for prospective relief fashioned in the light of the rather complex ongoing relationship between the parties.” Bowen, 487 U.S. at 905. And the D.C. Circuit, on which defendants extensively rely, has rebuffed their argument. The court concluded in Transohio (a case NMW cites) that “[b]ecause the Claims Court cannot grant the equitable relief Transohio seeks … the ‘adequate remedy’ limitation … does not interfere with district court jurisdiction over Transohio’s claims.” 967 F.2d at 608. So too here. Plaintiffs seek equitable relief—not monetary damages— because money is not an adequate remedy in this case. There is thus no bar to this Court’s review of plaintiffs’ APA claims. C. The Forest Service’s Decision To Deny Consent To Lease Renewal Is Reviewable Defendants argue that plaintiffs’ APA claim against the Forest Service (count IV) cannot proceed because the Forest Service has “absolute government contracts, see Suburban Mortg. Assocs., Inc. v. U.S. Dep’t of Hous. & Urban Dev., 480 F.3d 1116, 1117-1118 (Fed. Cir. 2007); County of Suffolk v. United States, 19 Cl. Ct. 295, 295, 299 (1990); International Eng’g Co. v. Richardson, 512 F.2d 573, 580-581 (D.C. Cir. 1975); or the promulgation of standards for coal-fired power plants, see Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654, 664-665 (D.C. Cir. 1975). And the one case involving real property was based on a civil in rem forfeiture action and the asset-forfeiture statute, which have no bearing here. See City of Oakland v. Lynch, 798 F.3d 1159, 1165-1167 (9th Cir. 2015). - 30 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 39 of 62 discretion” (U.S. Mem. 6) to deny consent to renewal of the Leases, and thus its decision to do so is excluded from review under the APA as an “action committed to agency discretion by law,” 5 U.S.C. §701(a)(2). See U.S. Mem. 17-20; NMW Mem. 21-25.7 Defendants’ argument lacks merit. Both the Supreme Court and the Eighth Circuit have made clear that §701(a)(2)’s exception to the “strong presumption” of judicial review under the APA, Bowen, 476 U.S. at 670, is “very narrow”—applicable only “in those rare instances” where “there is no law to apply,” Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971); accord Tamenut v. Mukasey, 521 F.3d 1000, 1003 (8th Cir. 2008) (en banc) (per curiam); Friends of Norbeck v. U.S. Forest Serv., 661 F.3d 969, 975 (8th Cir. 2011). Defendants assert that this “very narrow” exception applies because there is no “meaningful standard,” Tamenut, 521 F.3d at 1003, against which to judge the Forest Service’s decision. In fact, meaningful standards are provided by statute, by regulation, by the Forest Service’s interpretive guidance, and by its prior course of conduct. Indeed, NMW presents its preclusion-of-review argument (Mem. 21) as a jurisdictional issue under Rule 12(b)(1), whereas the government seems to present it (Mem. 7-8) as an argument under Rule 12(b)(6). While Eighth Circuit law appears unsettled on that question, compare Tamenut v. Mukasey, 521 F.3d 1000, 1003 (8th Cir. 2008) (en banc) (per curiam), with Ochoa v. Holder, 604 F.3d 546, 549 (8th Cir. 2010), count IV can proceed whichever framework applies. 7 - 31 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 40 of 62 under the governing federal regulation, the Forest Service had no discretion to reject the Leases at the lease-renewal stage because plaintiffs have a nondiscretionary right to renew. The agency’s decision—an immensely consequential one, involving fundamental property rights, decades of work, and hundreds of millions of dollars—is precisely the type of action that calls for judicial review. 1. There are meaningful standards against which to judge the Forest Service’s decision In assessing whether an agency action is committed to agency discretion, a court considers “the nature of the administrative action at issue and the language and structure of the statute,” as well as applicable regulations and other relevant sources, to determine whether there is a “meaningful standard against which to judge the agency’s exercise of discretion.” Tamenut, 521 F.3d at 1003. Here, the language and structure of the statute under which the Forest Service denied consent, the applicable regulation, the Forest Service’s interpretative guidance, and its prior course of conduct all demonstrate that this is not among the rare instances of agency action utterly immune to APA review. a. As the Forest Service did in its denial letter (see Dkt. 53 (“FS Decision”) at 8), defendants rely exclusively on 16 U.S.C. §508b to support their claim of unreviewable Forest Service discretion to deny lease renewal - 32 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 41 of 62 (see U.S. Mem. 17-19; NMW Mem. 22-26). The language of §508b, however, does not provide such discretion. It merely makes the Agriculture Department’s consent a prerequisite to the opening of Minnesota publicdomain lands to mineral development and utilization. If defendants were correct that this suffices, then every statute granting an agency discretion to make any decision, without further elaboration, would eliminate APA review of that decision. This would vastly expand the “very narrow” exception embodied in §701(a)(2). Defendants cite no authority supporting such an expansion. The Forest Service’s own decision, moreover, undercuts defendants’ statutory argument. Despite claiming “absolute discretion,” the Forest Service deems its statutory authority “coextensive” with that of the Interior Department. FS Decision 7, 8. Yet neither the government nor NMW argues that the Interior Department’s decision (i.e., BLM’s lease denial) is unreviewable. Neither is the Forest Service’s. Legislative history is also relevant to determining whether “a particular statute precludes review.” Colorado Envtl. Coal. v. Wenker, 353 F.3d 1221, 1228 (10th Cir. 2004) (per curiam); accord Home Builders Ass’n of Greater Chi. v. U.S. Army Corps of Eng’rs, 335 F.3d 607, 615 (7th Cir. 2003). And here, the legislative history similarly undermines defendants’ argument. Congress enacted §508b against the backdrop of the executive branch’s - 33 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 42 of 62 failure to honor and protect mining companies’ legitimate reliance interests, resulting in severe economic consequences for those companies. Am. Compl. ¶44. It was dissatisfaction with “investment losses resulting from cancellation of mining permits in the Minnesota forests” that spurred passage of the law. S. Rep. No. 81-1778, at 2 (1950). In particular, the House Report stated, companies that “have made investments for the mining and removal of mineral substances from the described lands should be given the privilege of renewing or retaining their permits or leases.” H.R. Rep. No. 81795, at 2 (1949). Both the Interior Department and Agriculture Department “agree[d].” Id. The Forest Service’s claim of unreviewable discretion to deny renewal in this case is starkly inconsistent with that history. b. To determine whether there are meaningful standards to apply, courts examine not just the statute at issue and legislative history but also other relevant sources of law—such as regulations, established agency policies, and settled courses of conduct. In Tamenut, for example, the en banc Eighth Circuit considered applicable regulations as well as statutory text. See 521 F.3d at 1004-1005. The Eighth Circuit has also recognized that “established [agency] policy” can provide a meaningful standard to apply. Abdelwahab v. Frazier, 578 F.3d 817, 821 n.6 (8th Cir. 2009). And the Ninth Circuit has explained that courts “may … look to ‘regulations, established agency policies, or judicial decisions’ for a meaningful standard of review.” - 34 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 43 of 62 Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 719 (9th Cir. 2011); accord Sang Goo Park v. Attorney Gen., 846 F.3d 645, 651, 653 (3d Cir. 2017) (“if an agency announces and follows—by rule or by settled course of adjudication—a general policy by which its exercise of discretion will be governed, that exercise may be reviewed”). Although the government contends (Mem. 18) that there are no pertinent regulations implementing 16 U.S.C. §508b, that is not correct. The Interior Department not only promulgated regulations implementing §508b, see 43 C.F.R. §3325.0-3 (1966), but also made the general mineral-leasing regulations at 43 C.F.R. Part 3220 applicable to hardrock-mineral development in the Superior National Forest, see id. §3325.3. Among those regulations was the one discussed above that granted prospecting permittees who discovered a valuable mineral deposit a non-discretionary right to lease renewal. See 43 C.F.R. §§3221.4, 3325.3 (1966); supra pp.3-4, 22-23. There is, therefore, a “meaningful standard” for this Court to apply—namely, the APA “contrary to law” standard, which would be violated if affording the Forest Service complete discretion to deny consent for subsequent lease renewals directly conflicts with plaintiffs’ regulatory right to renewal (as indeed it does). See National Wildlife Fed’n v. EPA, 980 F.2d 765, 773 (D.C. Cir. 1992) (“[W]hen a legal challenge focuses on an announcement of a substantive statutory interpretation, courts are emphatically qualified to - 35 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 44 of 62 decide whether an agency has acted outside of the bounds of reason.” (alteration in original)); International Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Brock, 783 F.2d 237, 247 (D.C. Cir. 1986) (“it seems almost ludicrous to suggest that there is ‘no law to apply’ in reviewing whether an agency has reasonably interpreted a law”). Indeed, the principal case defendants rely on (U.S. Mem. 18; NMW Mem. 22) makes the same point. See Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1078 (9th Cir. 2013) (“We have jurisdiction to consider whether the Secretary violated ‘constitutional, statutory, regulatory or other legal mandates or restrictions[.]’”). The regulations implementing §508b also confirm that the Forest Service’s authority is narrowly circumscribed, limited to surface considerations. The relevant regulation states that “[l]eases or permits” under §508b “may be issued only with the prior consent of the Secretary of Agriculture or his delegate, and subject to such conditions and stipulations as that official may prescribe to insure adequate utilization and protection of lands for the primary national forest purpose for which they are being administered.” 43 C.F.R. §3325.2 (1966). Again, then, this Court could evaluate whether the Forest Service’s action was inconsistent with this - 36 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 45 of 62 regulation—and hence “contrary to law,” a “meaningful standard” under the APA.8 c. Defendants argue that the Forest Service Manual, Superior National Forest Land and Resource Management Plan (“Forest Plan”), and other internal policy and guidance documents cited in the complaint are irrelevant, because those documents “do not command anyone to do anything or to refrain from doing anything.” U.S. Mem. 19; see NMW Mem. 24-25. Courts, however, have frequently found judicially manageable standards of review in “formal and informal policy statements,” Steenholdt v. FAA, 314 F.3d 633, 638 (D.C. Cir. 2003), including established agency policies, Pinnacle Armor, 648 F.3d at 719. Thus, even if the Forest Service had any consent authority over lease renewal, the Forest Service Manual and Forest Plan both contain standards relevant to evaluating the Forest Service’s decision. For example, the manual includes “Issuance Procedures for Permits, Licenses, and Leases,” which specify the factors that Forest Service officials must consider in making such a determination. FSM 2822.4. Those factors include the degree of surface disturbance, the impact on surface resources, The regulation’s language is reinforced by section 5 of the Leases, which permits the government, upon renewal, “to readjust other terms and conditions … including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover.” 8 - 37 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 46 of 62 economic considerations, and available alternatives. FSM 2822.41. In considering those factors, moreover, the Forest Service must refer to the Forest Plan, which provides additional objectives, standards, and guidelines against which the agency’s consent decision may be measured. For instance, the Forest Plan (which is required by statute and based on extensive environmental analysis under the National Environmental Policy Act) describes the “[e]xploration and development of mineral and mineral material resources” as a forest-wide “[d]esired [c]ondition” in the Superior National Forest. Forest Plan, Ch. 2 at 2-9 (2004). Whether the agency adequately considered this desired condition and other internal guidance—and more generally whether the Forest Service evaluated the appropriate factors in denying consent—is a familiar APA standard by which the agency’s action may be meaningfully evaluated. See Friends of Norbeck, 661 F.3d at 975 (finding sufficient standards, “albeit broad ones,” to evaluate the Forest Service’s decisions regarding certain species in a nature preserve). The Forest Service must also offer an explanation or justification for its departure from its policies and practices governing management of the Superior National Forest. As the Supreme Court has explained, “[w]hen an agency changes … position, it … must at least ‘display awareness that it is changing position’ and ‘show that there are good reasons for the new policy.’” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125-2126 (2016). - 38 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 47 of 62 Therefore, “an ‘[u]nexplained inconsistency’ in agency policy is ‘a reason for holding an interpretation to be an arbitrary and capricious change from agency practice.’” Id. at 2126 (alteration in original). This Court has authority to rule that the Forest Service’s “unexplained” departure from its prior practice requires setting aside its decision. d. Finally, the Forest Service’s course of conduct throughout the duration of the Leases provides a basis for APA review. See Sang Goo Park, 846 F.3d at 651-653; see also Tamenut, 21 F.3d at 1005 (assuming without deciding that “a settled course of adjudication could establish a meaningful standard”). When the Leases were renewed in 1989, the Forest Service solicited public comments. One commenter “was against issuing the leases based on general principals [sic].” Am. Compl. Ex. 10 at 2. The Forest Service, however, correctly stated that it was “not deciding if the leases should be issued but instead … deciding if new restrictions need to be added before extending them.” Id. And when the Forest Service subsequently reported its position regarding renewal to BLM, it said only that the “existing lease terms and conditions are adequate.” Id. The second renewal followed the same pattern; the Forest Service stated that “[t]he terms, conditions and stipulations have been reviewed, and it has been determined that they are sufficient to protect the resources of the United States.” Am. Compl. Ex. 12 at 1. This consistent course of conduct provides another way for this Court to - 39 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 48 of 62 evaluate under the APA the Forest Service’s denial of consent last year. See Encino Motorcars, 136 S. Ct. at 2125-2126, quoted supra pp.38-39. In sum, the statute and its legislative history, regulations, Forest Service guidance, and course of agency conduct provide a framework by which the Court can evaluate the Forest Service’s consent decision with respect to this renewal—specifically, a framework in which the Court examines: (1) whether the Forest Service limited its decision to determining if the Leases’ terms adequately protect the surface, (2) whether the Forest Service relied on appropriate factors (and no irrelevant ones) in making that determination, and (3) whether the Forest Service’s conclusion that it has authority over renewal (and not just terms and conditions) is an unexplained departure from past agency practice. 2. The nature of the Forest Service’s decision confirms that it is not committed to agency discretion In addition to the sources discussed above, courts addressing the committed-to-agency-discretion question consider “the nature of the administrative action at issue.” Tamenut, 521 F.3d at 1003. And “[i]n the rare instance” where this exception to judicial review applies, the case typically involves “an agency’s power to manage its own docket.” Pinnacle Armor, 648 F.3d at 720. For example, actions committed to agency discretion include an agency’s decision not to institute enforcement proceedings, see - 40 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 49 of 62 Heckler v. Chaney, 470 U.S. 821, 831 (1985), and to reopen proceedings on its own motion, see Tamenut, 521 U.S. at 1005. Courts have also viewed certain agency decisions involving national security or foreign policy to fall under §701(a)(2), because courts traditionally have lacked expertise in those domains. See Pinnacle Armor, 648 F.3d at 720; Toxco Inc. v. Chu, 724 F. Supp. 2d 16, 24 n.3 (D.D.C. 2010). The Forest Service’s decision here does not fall into any of these categories. It instead turns on the agency’s claimed power to nullify plaintiffs’ longstanding property rights. And as the Supreme Court recognized in Heckler, when an agency “exercise[s] its coercive power over an individual’s … property rights,” that action “infringe[s] upon areas that courts often are called upon to protect.” 470 U.S. at 832 (emphasis omitted). The enormously consequential nature of the Forest Service’s decision, moreover, also counsels against finding that review is precluded. See Reese Bros., Inc. v. U.S. Postal Serv., 905 F. Supp. 2d 223, 253 (D.D.C. 2012) (“the ‘nature of the administrative action’—the issuance of a final agency decision assessing a deficiency in excess of $3.5 million—requires the Court tread cautiously in deciding to foreclose judicial review”). Not only would the Forest Service’s decision destroy plaintiffs’ property rights, but it would also cast doubt on the future development of valuable minerals on public lands. Adopting defendants’ position, in short, would give the Forest Service the - 41 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 50 of 62 power to unilaterally nullify decades of investment worth hundreds of millions of dollars unconstrained by the vital check of APA review. Defendants cite no case holding a decision of similar magnitude to be committed to agency discretion. Finally, rejecting defendants’ argument would be consistent with Supreme Court case law holding that Chevron deference is generally not given to agencies regarding questions of major significance, because Congress will not be presumed to have implicitly delegated authority to agencies to resolve such key questions. See King v. Burwell, 135 S. Ct. 2480, 2488-2489 (2015); Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2439-2442 (2014); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000); MCI Telecommunications Corp. v. AT&T Co., 512 U.S. 218, 231-232 (1994). Congress likewise should not be presumed to have rendered monumentally important decisions, like the Forest Service’s denial of consent, immune to any judicial review under the APA. III. PLAINTIFFS HAVE SUFFICIENTLY STATED CLAIMS FOR RELIEF UNDER THE APA Plaintiffs have alleged that they possess—under both federal law and the Leases—a non-discretionary right to renewal of their mineral leases, and that the government violated that right. NMW, but not the government, - 42 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 51 of 62 takes up the merits of plaintiffs’ APA claims, arguing (Mem. 13-26) that counts II, III, and IV should be dismissed for failure to state a claim. This is not the proper occasion for this Court to address those arguments—as demonstrated by the fact that the government, the actual counterparty to the Leases, has not made similar contentions. Indeed, the government has not even filed the administrative record in this case, which is usually a prerequisite for adjudication of the merits of an APA claim. See R.J. Reynolds Tobacco Co. v. U.S. Dep’t of Agric., 130 F. Supp. 3d 356, 369 (D.D.C. 2015) (“Summary judgment is [ordinarily] the proper mechanism for deciding, as a matter of law, whether an agency action is supported by the administrative record and consistent with the APA standard of review.” (alteration in original)); Sierra Club v. Clinton, 689 F. Supp. 2d 1147, 1159 (D. Minn. 2010) (denying motion to dismiss; “[t]he Court will consider these arguments at the summary judgment stage with the benefit of the full administrative record”). As discussed below, moreover, NMW’s arguments could require consideration of evidence outside the administrative record, such as parol evidence concerning the negotiating history and course of conduct between plaintiffs and the United States. To the extent the Court is inclined to address the issue now, however, NMW’s arguments should be rejected. First, count II sufficiently claims a non-discretionary right of renewal under federal law—granted by the 1966 - 43 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 52 of 62 regulations, which govern here. And even if the 2004 regulations applied, dismissal would still be unwarranted. Second, count III sufficiently claims that the Leases (and, if applicable, the 2004 renewal forms) grant a nondiscretionary right to renewal. Third, count IV sufficiently claims that the Forest Service’s denial of consent violates the APA; NMW’s cursory argument seeking dismissal of one “aspect” of that count is meritless. A. Count II Sufficiently Claims That The Applicable Regulation Grants A Non-discretionary Right To Renewal As discussed in Part II.A.1, the governing regulation granted plaintiffs “a right of renewal for successive periods, not exceeding ten years each,” subject only to “such reasonable terms and conditions as the Secretary of the Interior may prescribe.” 43 C.F.R. §3221.4(f) (1966). NMW argues, however (Mem. 15), that the relevant regulations are those in force when the Leases were renewed in 2004. That is not correct. In support of its argument, NMW cites (Mem. 15) a 1981 Solicitor’s opinion, Assistant Secretary, Land & Water Resources Assistant Secretary, Energy & Minerals, GFS(MIN) SO-2 (1982) (Sept. 17, 1981), 1981 WL 29121. But that opinion does not apply here because it addresses only the legal regime governing coal leases. Even as to that regime, moreover, the opinion does not stand for the proposition that subsequent regulations can retroactively eradicate property rights (like plaintiffs’) that were secured - 44 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 53 of 62 under a prior regulatory scheme. But even if it did, that would likely be wrong. As the Supreme Court has explained, “there is substantial doubt whether the retroactive destruction of” property rights such as “liens … comports with the Fifth Amendment.” United States v. Security Indus. Bank, 459 U.S. 70, 78 (1982). NMW also cites (Mem. 15) the 2004 lease renewal forms. Since the renewals “issued on January 1, 2004,” NMW contends, “the regulations in force on that date are the ones that govern.” Id. But the text of the 2004 lease renewals—indeed, the very text NMW emphasizes in bold and italics— refutes that contention. Each renewal form expressly states that it is a “Lease Renewal,” not a “Lease.” Am. Compl. Ex. 3 at 1. Nor could it have been a “Lease,” as that would have required extensive environmental review. And the “Lease Renewal,” the forms provide, is “subject to the regulations and general mining orders of the Secretary of the Interior in force on the date this lease issued.” Id. §1 (emphasis added). The date that the “lease” (not the “Lease Renewal”) issued was 1966. The renewal forms thus underscore that the 1966 regulations apply. Even if the 2004 regulations applied, dismissal would still be improper. NMW’s argument (Mem. 16) appears to rest on the notion that the 2004 regulations provide for only a “preferential right” in the lessee to renew. But as the D.C. Circuit has explained, “the term [‘preference right lease’] has … - 45 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 54 of 62 been construed by the agency consistently for nearly 60 years to mean an automatic entitlement of a prospecting permittee.” Natural Res. Def. Council, Inc. v. Berklund, 609 F.2d 553, 557-558 (D.C. Cir. 1979) (per curiam) (emphasis added). For the agency now to adopt a different reading with retroactive effect would raise serious constitutional questions. Supra pp.4445. Alternatively, NMW argues (Mem. 16-17) that plaintiffs’ claim would fail even if the 1966 regulations governed, because those regulations provide that renewals are subject to the Agriculture Department’s consent. The only reason NMW gives for that conclusion, however (Mem. 16), is that the 1966 regulations purportedly conditioned the issuance of the original lease on the Agriculture Department’s consent, “thus making any renewal right subject to such consent.” But the latter proposition in no way follows from the former. To the contrary, under the plain text of the regulations (in accord with the statute), the Agriculture Department’s consent was required only for “[l]eases or permits.” 43 C.F.R. §3325.2 (1966). Here, after consenting to the prospecting permits and lease issuance, the Forest Service retained only the ability to make reasonable adjustments to the terms and conditions of the Leases in connection with a renewal, including adjustments needed “for the protection of the surface of the land.” Id. §3221.4(f) (1966). - 46 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 55 of 62 NMW also contends (Mem. 17-18) that this Court should construe the 1966 regulation to grant a “preferential, rather than absolute” right of renewal. NMW, however, does not point to anything in the regulation to justify that interpretation—because there is nothing. Instead NMW rests on the contention that the Court should rewrite the regulation to reflect a different leasing scheme for different minerals. Such a rewriting would obviously be inappropriate. In any event, as just discussed (pp.45-46), even if the 1966 regulation provided for a “preferential” right to renew, NMW’s argument would still fail. In short, there is no support for NMW’s claim that—drawing all reasonable inferences in plaintiffs’ favor—the relevant regulation as a matter of law did not give plaintiffs a leasehold interest with a non-discretionary right to renew. B. Count III Sufficiently Claims That The Leases Grant A Non-discretionary Right To Renewal Plaintiffs have likewise stated a claim that the Leases (separate from the regulations but also consistent with them) provide a non-discretionary right of renewal. In particular, section 1 grants plaintiffs exclusive mineral rights “for a period of twenty (20) years with a right in the Lessee to renew the same for successive periods of ten (10) years each in accordance with the regulation 43 C.F.R. §3221.4(f) and the provisions of this lease.” Am. Compl. - 47 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 56 of 62 Ex. 1 at 1 (emphasis added). The cited regulation, as discussed, provides for a right of renewal subject only to terms and conditions imposed by the Interior Department, and no other provision of the Leases eliminates that right. Disputing this straightforward reading of the Leases, NMW argues (Mem. 18) that the 2004 lease renewals superseded the terms of the Leases. That is wrong, but would not be a basis for dismissal even if it were right. In the alternative, NMW argues (Mem. 20) that the Leases provided only a right to renewal upon “commencement of actual production.” That claim likewise lacks merit. 1. The terms of the Leases govern the renewal right NMW’s assertion that the 2004 renewals superseded the terms of the Leases is incorrect. The basis for NMW’s assertion (Mem. 2, 19-20) is that the 2004 renewals supposedly incorporated only two provisions of the Leases (related to royalties). Two points refute that. First, the 2004 renewal occurred using the same form as the 1989 renewal, and BLM acknowledged in 1989 that the Leases were being renewed “under the existing terms and conditions of the original leases.” Am. Compl. Ex. 6 at 1. Second, the renewals lacked an integration clause, which is dispositive because “[w]hen a contract lacks an express integration clause [courts] must ‘determine whether the parties intended their agreement to be an integrated contract by reading - 48 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 57 of 62 the writing in light of the surrounding circumstances.’” Starter Corp. v. Converse, Inc., 170 F.3d 286, 295 (2d Cir. 1999) (emphasis added). Consideration of such circumstances is inappropriate at the motion-todismiss stage, as it could involve parol evidence. In short, there is no basis to conclude, certainly not in this posture, that the terms and conditions were changed by the 2004 lease renewals, i.e., that in 2004 the parties, who engaged in no substantive negotiations leading up to the second renewal, tacitly intended to displace the terms of the Leases, which were the product of nearly a decade of “intensive negotiations.” Am. Compl. ¶61. 2. The 2004 lease renewals include a non-discretionary right to renewal Dismissal would be improper even if NMW were correct that the 2004 renewal forms controlled. Those forms give plaintiffs a “preferential right … to renew for successive periods of 10 years.” Am. Compl. Ex. 3 at 1. NMW claims (Mem. 19) that the term “preferential right” provides only a right to be preferred against other parties. But as discussed, the D.C. Circuit has noted that for decades the Interior Department itself interpreted the term “to mean an automatic entitlement” right. Berklund, 609 F.2d at 557-558. 3. The Leases do not impose a production requirement as a condition precedent to renewal Finally, NMW’s assertion (Mem. 20) that the Leases provide a nondiscretionary right to renewal only upon commencement of production is - 49 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 58 of 62 wrong. Section 1, entitled “Rights of Lessee,” establishes the plaintiffs’ right to renewal. Section 5—on which NMW relies—then limits the Interior Department’s ability to adjust not only the royalties payable under the Leases, but also other lease terms and conditions. In particular, section 5 provides in relevant part that the Secretary: shall have the right to reasonably readjust and fix royalties payable hereunder at the end of the primary term of this lease and … of each successive renewal … provided, however, that the Lessee shall have the right to three successive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production. Leases §5 (emphasis added). As the emphasized language makes clear, the reference at the end of this excerpt to the commencement of production does not bear on the right to renew that section 1 establishes. Instead, the production reference bears on the government’s right to adjust the royalties and other terms and conditions: If production has begun, the government’s adjustment right is limited in the ways specified; if production has not begun, it is not so limited. In other words, production was a condition precedent to receiving locked-in royalty rates (and no adjustment of other terms and conditions) upon renewal, not a condition precedent of the right to renew itself. - 50 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 59 of 62 C. Count IV Sufficiently Claims That The Forest Service’s Denial Of Consent Violates The APA In two cursory paragraphs, NMW argues (Mem. 24) that one “aspect” of plaintiffs’ challenge to the Forest Service’s denial of consent should fail on the merits. According to NMW, although plaintiffs have alleged that the Forest Service wrongfully considered environmental impacts in denying the Leases, plaintiffs “have not explained why environmental impacts are irrelevant to the decision of whether to consent to renewal of a mining lease.” Id. Thus, NMW concludes, “this aspect of Count IV should be dismissed.” Id. That argument simply ignores plaintiffs’ complaint. Count IV of the complaint sufficiently alleges that the Forest Service’s denial of consent violated the APA because, among other reasons, the “agency … relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, [and] offered an explanation for its decision that runs counter to the evidence before the agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). More specifically, paragraph 128 of the amended complaint alleges that “[t]he Forest Service does not have the authority to consider, at the lease renewal stage, potential environmental impacts from a mining project that has not even been proposed and that would be subject to a separate approval process that includes environmental review.” Am. Compl. - 51 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 60 of 62 ¶128. In other words, rather than evaluating the Leases’ terms and conditions to decide whether they were sufficient to protect the surface estate—as contemplated by the regulations, and as it had done with each previous renewal—the Forest Service conducted an ad hoc, cursory review based on data neither intended nor sufficient to address any such environmental impacts. Id. ¶¶102, 128. The Forest Service then simply made a policy determination that mineral development should not be allowed on lands near the Boundary Waters. See id. But that policy judgment is for Congress, and Congress has already made it, expressly authorizing mineral development in the Superior National Forest outside the wilderness and mining protection areas, including the land subject to plaintiffs’ Leases. CONCLUSION The motions to dismiss should be denied. - 52 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 61 of 62 Respectfully submitted, Dated: August 25, 2017 /s/ Paul R.Q. Wolfson PAUL R.Q. WOLFSON (D.C. Bar #414759) (pro hac vice) DANIEL S. VOLCHOK (D.C. Bar #497341) (pro hac vice) ALBINAS J. PRIZGINTAS (D.C. Bar #1006955) (pro hac vice) WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Ave. N.W. Washington, D.C. 20006 Tel.: (202) 663-6000 Fax: (202) 663-6363 MICHAEL J. P. HAZEL (Colo. Bar #49451) (pro hac vice) WILMER CUTLER PICKERING HALE AND DORR LLP 1225 17th St., Suite 2600 Denver, Colorado 80202 Tel.: (720) 274-3135 Fax: (720) 274-3133 STEVEN J. WELLS (Atty. #163508) I. DANIEL COLTON (Atty. #223116) MARK R. KASTER (Atty. #159517) DORSEY & WHITNEY LLP 50 South Sixth St., Suite 1500 Minneapolis, Minnesota 55402 Tel.: (612) 340-2600 Fax: (612) 340-2868 - 53 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 62 of 62 CERTIFICATE OF COMPLIANCE This brief complies with the limits in Local Rule 7.1(f) and with the type-size limit of Local Rule 7.1(h). 1. Exclusive of the portions of the brief exempted by Local Rule 7.1(f)(1)(C), the brief contains 11,954 words. 2. The brief has been prepared in proportionally spaced typeface using Microsoft Word 2016 in 13-point Century Schoolbook font. As permitted by Local Rule 7.1(f)(2), the undersigned has relied upon the wordcount feature of this word-processing system in preparing this certificate, and certifies that the word-count feature was applied to include all text, including headings, footnotes, and quotations. /s/ Paul R.Q. Wolfson PAUL R.Q. WOLFSON (D.C. Bar #414759) August 25, 2017 CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 1 of 62 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA FRANCONIA MINERALS (US) LLC; and TWIN METALS MINNESOTA LLC, Plaintiffs, v. UNITED STATES OF AMERICA, et al., Civil Action No. 16-3042 SRN/LIB Defendants, and NORTHEASTERN MINNESOTANS FOR WILDERNESS, Defendant-Intervenor. PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 2 of 62 TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES ............................................................................... iii INTRODUCTION .................................................................................................1 STATEMENT ........................................................................................................2 A. Prospecting Permits And Valuable Mineral Discovery ..................2 B. Governing Federal Law And The 1966 Leases ...............................3 C. 1989 And 2004 Renewals .................................................................4 D. 2012 Renewal Application ................................................................5 E. This Action ........................................................................................6 SUMMARY OF ARGUMENT ..............................................................................6 STANDARD OF REVIEW ....................................................................................8 ARGUMENT .........................................................................................................8 I. II. THIS COURT HAS JURISDICTION OVER FRANCONIA’S QTA CLAIM ...........................................................................................................9 A. Franconia’s QTA Claim Seeks Adjudication Of Rights In Real Property ............................................................................. 10 B. The Tucker Act Does Not Affect This Court’s Jurisdiction Over Franconia’s QTA Claim ................................... 16 THIS COURT HAS JURISDICTION OVER PLAINTIFFS’ APA CLAIMS ...................................................................................................... 20 A. The Tucker Act Does Not “Impliedly Forbid” The Relief Plaintiffs Seek Under The APA.......................................... 21 1. Plaintiffs’ rights and requested remedies are not derived solely from contract ................................................. 22 i CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 3 of 62 2. III. The Tucker Act does not create an exclusive remedy for all contract claims in the Court of Federal Claims ..................................................................... 24 B. There Is No Adequate Alternative Remedy ................................. 28 C. The Forest Service’s Decision To Deny Consent To Lease Renewal Is Reviewable ....................................................... 30 1. There are meaningful standards against which to judge the Forest Service’s decision .................................. 32 2. The nature of the Forest Service’s decision confirms that it is not committed to agency discretion .............................................................................. 40 PLAINTIFFS HAVE SUFFICIENTLY STATED CLAIMS FOR RELIEF UNDER THE APA .......................................................................... 42 A. Count II Sufficiently Claims That The Applicable Regulation Grants A Non-discretionary Right To Renewal .......................................................................................... 44 B. Count III Sufficiently Claims That The Leases Grant A Non-discretionary Right To Renewal ........................................ 47 C. 1. The terms of the Leases govern the renewal right ................ 48 2. The 2004 lease renewals include a nondiscretionary right to renewal ............................................. 49 3. The Leases do not impose a production requirement as a condition precedent to renewal ............... 49 Count IV Sufficiently Claims That The Forest Service’s Denial Of Consent Violates The APA ........................... 51 CONCLUSION ................................................................................................... 52 CERTIFICATE OF COMPLIANCE ii CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 4 of 62 TABLE OF AUTHORITIES CASES Page(s) Abdelwahab v. Frazier, 578 F.3d 817 (8th Cir. 2009) ...................................... 34 Alaska Department of Natural Resources v. United States, 816 F.3d 580 (9th Cir. 2016).................................................................... 11 Barlow v. Collins, 397 U.S. 159 (1970) ............................................................. 20 Block v. North Dakota ex rel. Board of University & School Lands, 461 U.S. 273 (1983) ............................................................... 16, 18 Bowen v. Massachusetts, 487 U.S. 879 (1988) ...................................... 25, 26, 30 Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986) .................................................................................................. 20, 31 Branson Label, Inc. v. City of Branson, Missouri, 793 F.3d 910 (8th Cir. 2015) .............................................................................................8 Cadorette v. United States, 988 F.2d 215 (1st Cir. 1993) ................................ 12 Central Platte Natural Resources District v. U.S. Department of Agriculture, 643 F.3d 1142 (11th Cir. 2011)........................................... 29 Christopher Village, L.P. v. United States, 360 F.3d 1319 (Fed. Cir. 2004) ........................................................................................ 29 Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) ........................................................................................................ 31 City of Oakland v. Lynch, 798 F.3d 1159 (9th Cir. 2015) ................................ 30 Colorado Environmental Coalition v. Wenker, 353 F.3d 1221 (10th Cir. 2004) ........................................................................................ 33 County of Suffolk v. United States, 19 Cl. Ct. 295 (1990) ................................ 30 Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073 (9th Cir. 2013) ..................... 36 Dunbar Corp. v. Lindsey, 905 F.2d 754 (4th Cir. 1990)................................... 12 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) ................ 38, 39, 40 iii CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 5 of 62 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).................. 42 FDIC v. Hulsey, 22 F.3d 1472 (10th Cir. 1994) ................................................ 14 Foster v. United States, 607 F.2d 943 (Ct. Cl. 1979) ........................................ 14 Friends of Norbeck v. U.S. Forest Service, 661 F.3d 969 (8th Cir. 2011) ................................................................................................... 31, 38 Ginsberg v. United States, 707 F.2d 91 (4th Cir. 1983) ............................. 12, 15 Heckler v. Chaney, 470 U.S. 821 (1985) ............................................................ 41 Home Builders Ass’n of Greater Chicago v. U.S. Army Corps of Engineers, 335 F.3d 607 (7th Cir. 2003) ................................................. 33 International Engineering Co. v. Richardson, 512 F.2d 573 (D.C. Cir. 1975) ........................................................................................ 30 International Union, United Automotive, Aerospace & Agricultural Implement Workers of America v. Brock, 783 F.2d 237 (D.C. Cir. 1986) .................................................................. 36 Johnson v. U.S. Department of Agriculture, 734 F.2d 774 (11th Cir. 1984) ........................................................................................ 19 King v. Burwell, 135 S. Ct. 2480 (2015)............................................................ 42 Kinscherff v. United States, 586 F.2d 159 (10th Cir. 1978) ............................. 12 Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015) ...................................... 20 Mafrige v. United States, 893 F. Supp. 691 (S.D. Tex. 1995) .............. 10, 13, 14 MCI Telecommunications Corp. v. AT&T Co., 512 U.S. 218 (1994) ............... 42 McKay v. United States, 516 F.3d 848 (10th Cir. 2008) ............................ 17, 18 McMaster v. United States, 177 F.3d 936 (11th Cir. 1999) ............................. 12 Megapulse, Inc. v. Lewis, 672 F.2d 959 (D.C. Cir. 1982) ..................... 22, 23, 24 Motor Vehicle Manufacturers Ass’n of U.S., Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983).......................... 51 National Wildlife Federation v. EPA, 980 F.2d 765 (D.C. Cir. 1992) ......................................................................................................... 35 iv CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 6 of 62 Natural Resources Defense Council, Inc. v. Berklund, 609 F.2d 553 (D.C. Cir. 1979) ........................................................................... 46, 49 North Star Alaska v. United States, 14 F.3d 36 (9th Cir. 1994) ..................... 28 O’Hagan v. United States, 86 F.3d 776 (8th Cir. 1996) ............................. 19, 29 Ochoa v. Holder, 604 F.3d 546 (8th Cir. 2010) ................................................. 31 Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654 (D.C. Cir. 1975) ......................................................................................................... 30 Patterson v. Buffalo National River, 76 F.3d 221 (8th Cir. 1996) ............. 12, 13 Pelfresne v. Village of Williams Bay, 865 F.2d 877 (7th Cir. 1989) ................ 19 Perry Capital LLC v. Mnuchin, 848 F.3d 1072 (D.C. Cir. 2017) ..................... 29 Pinnacle Armor, Inc. v. United States, 648 F.3d 708 (9th Cir. 2011) ....................................................................................... 35, 37, 40, 41 R.J. Reynolds Tobacco Co. v. U.S. Department of Agriculture, 130 F. Supp. 3d 356 (D.D.C. 2015) ................................................................. 43 Reese Brothers, Inc. v. U.S. Postal Service, 905 F. Supp. 2d 223 (D.D.C. 2012) ............................................................................................ 41 San Antonio Savings Ass’n v. Commissioner, 887 F.2d 577 (5th Cir. 1989) .......................................................................................... 19 Sang Goo Park v. Attorney General, 846 F.3d 645 (3d Cir. 2017) ............. 35, 39 School Board of Avoyelles Parish v. U.S. Department of Interior, 647 F.3d 570 (5th Cir. 2011).................................................................... 12 Shaughnessy v. Eidsmo, 23 N.W.2d 362 (Minn. 1946) .................................... 19 Sierra Club v. Clinton, 689 F. Supp. 2d 1147 (D. Minn. 2010) ....................... 43 Slaaten v. Cliff’s Drilling Co., 748 F.2d 1275 (8th Cir. 1984) ................... 10, 14 Starter Corp. v. Converse, Inc., 170 F.3d 286 (2d Cir. 1999) ........................... 49 Steenholdt v. FAA, 314 F.3d 633 (D.C. Cir. 2003)............................................ 37 v CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 7 of 62 Suburban Mortgage Associates, Inc. v. U.S. Department of Housing & Urban Development, 480 F.3d 1116 (Fed. Cir. 2007) ......................................................................................................... 30 Tamenut v. Mukasey, 521 F.3d 1000 (8th Cir. 2008) ......... 31, 32, 34, 39, 40, 41 Tovar v. Essentia Health, 857 F.3d 771 (8th Cir. 2017) .....................................8 Toxco Inc. v. Chu, 724 F. Supp. 2d 16 (D.D.C. 2010) ....................................... 41 Transohio Savings Bank v. Director, Office of Thrift Supervision, 967 F.2d 598 (D.C. Cir. 1992) .......................................... 24, 25, 27, 28, 30 United States v. Bedford Associates, 657 F.2d 1300 (2d Cir. 1981) ................ 12 United States v. Lambert, 146 F.2d 469 (2d Cir. 1944) ................................... 19 United States v. Mottaz, 476 U.S. 834 (1986) ................................................... 16 United States v. Security Industry Bank, 459 U.S. 70 (1982) ......................... 45 United States v. Sperry Corp., 493 U.S. 52 (1989) ........................................... 19 United States v. Woods, 134 S. Ct. 557 (2013) ................................................. 26 Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014) ......................... 42 V S Ltd. Partnership v. Department of Housing & Urban Development, 235 F.3d 1109 (8th Cir. 2000) .......................................... 28 Wilson v. Arkansas Department of Human Services, 850 F.3d 368 (8th Cir. 2017) .............................................................................................8 STATUTES AND REGULATIONS 5 U.S.C. §701 ............................................................................................... 31, 33, 41 §702 ............................................................................................... 20, 24, 26 §704 ..................................................................................................... 28, 29 16 U.S.C. §508b ................................................................................ 32, 33, 35, 36 28 U.S.C. §1346 ................................................................................................... 11, 24 §1491 ............................................................................................. 16, 24, 25 §2409a ................................................................................. 9, 10, 11, 16, 18 vi CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 8 of 62 30 U.S.C. §22 et seq. ....................................................................................................1 §181 et seq. ..................................................................................................1 §201 ..............................................................................................................1 §351 et seq. ..................................................................................................1 Tucker Act, 24 Stat. 505 (1887)......................................................................... 26 Minn. Stat. Ann. §93.055................................................................................... 14 43 C.F.R. Pt. 3220 (1966) ..................................................................................... 1, 35 §3221.4 (1966) ........................................................ 3, 22, 23, 35, 44, 46, 47 §3325.0-3 (1966) ....................................................................................... 35 §3325.2 (1966) .................................................................................... 36, 46 §3325.3 (1966) .......................................................................................... 35 LEGISLATIVE MATERIALS H.R. Rep. No. 81-795 (1949) .............................................................................. 34 H.R. Rep. No. 92-1559 (1972) ...................................................................... 10, 11 S. Rep. No. 81-1778 (1950) ............................................................................ 3, 34 S. Rep. No. 92-575 (1971) .................................................................................. 18 OTHER AUTHORITIES Assistant Secretary, Land & Water Resources Assistant Secretary, Energy & Minerals, GFS(MIN) SO-2 (1982) (Sept. 17, 1981), 1981 WL 29121 ............................................................................. 44 Forest Service Manual, available at https://www.fs.fed.us/im/ directives/dughtml/fsm.html (last modified Nov. 3, 1997) .............. 37, 38 Superior National Forest Land and Resource Management Plan (2004), available at https://www.fs.usda.gov/main/superior/ landmanagement/planning ..................................................................... 38 vii CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 9 of 62 INTRODUCTION Federal law and policy have long recognized that the nation has a strong interest—from both an economic and a national-security perspective— in the development of hardrock minerals on public lands. Prospecting for and developing those minerals, however, is difficult, expensive, and timeconsuming. For over a century, therefore, federal law has given developers an incentive to overcome those difficulties and explore for unknown geologic deposits on public lands. That incentive is secure mineral tenure. The precise form of the mineral-tenure right has varied over time, but the principle is settled: The discovery of valuable minerals entitles a prospector to an enduring property right in the mineral estate. See Am. Compl. ¶¶30-39, 53-57 (discussing 30 U.S.C. §§22 et seq., 181 et seq., 201(b), 351 et seq.; 43 C.F.R. Pt. 3220 (1966)). This right does not necessarily mean that the developer will be allowed to extract the minerals; it must submit a mine plan to the relevant government agencies, which will conduct the required environmental review (including soliciting public comment). But the property right remains critically important. Without it, no rational prospector would undertake the extraordinary investment of time and money—in this case, decades and hundreds of millions of dollars—necessary for mineral exploration and development. Put simply, secure mineral tenure is the foundation of hardrock mineral development. -1- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 10 of 62 The government’s conduct here impermissibly redefines this mineraltenure right, from one that is secure and enduring to one that can be revoked for any reason, or no reason at all. As this case illustrates, that change has far-reaching consequences: The government has denied plaintiffs any chance for a return on the $400 million they have invested—in reliance on their rights under federal law and leases that embodied those rights—to develop one of the largest untapped copper and nickel reserves in the world. It has also prejudiced plaintiffs’ mineral rights on other federal, state, and private lands. And it has jeopardized local and national interests that are crucial to the economy and national security. Defendants’ efforts to pretermit plaintiffs’ challenges to this unlawful conduct should be rejected. STATEMENT A. Prospecting Permits And Valuable Mineral Discovery Plaintiffs Franconia Minerals (US) LLC and Twin Metals Minnesota LLC are Minnesota mining companies who, along with their predecessors in interest, have been prospecting for hardrock minerals in northeastern Minnesota for over five decades. In the 1950s, plaintiffs’ predecessor applied for prospecting permits in that region. Am. Compl. ¶58. After obtaining the consent of the Forest Service, the Interior Department granted those applications. Id. ¶59. -2- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 11 of 62 Plaintiffs’ predecessor subsequently discovered a valuable mineral deposit in the region. Am. Compl. ¶60. This deposit lies outside both the Boundary Waters Canoe Area Wilderness, where mining is prohibited, and the congressional “buffer zone” established around the Wilderness. Id. ¶¶51, 52. It lies instead inside an area where, according to the Senate report that accompanied the Act of 1950, mining was encouraged as a “highly desirable” activity. S. Rep. No. 81-1778, at 2 (1950). B. Governing Federal Law And The 1966 Leases By virtue of their valuable mineral discovery, plaintiffs’ predecessors obtained property rights in the mineral estate under federal law. See 43 C.F.R. §3221.4(a), (f) (1966); Am. Compl. ¶¶53-57, 110, 118. Specifically, they were entitled to a lease for the minerals in the subject lands—a lease that included a “right of renewal.” 43 C.F.R. §3221.4(a), (f) (1966). In 1966, plaintiffs’ predecessors secured two such leases, executed by the Bureau of Land Management (“BLM”) on behalf of the Interior Department: MNES01352 and MNES-01353 (“the Leases”). Am. Compl. ¶¶2, 63. The Forest Service (which as noted fully consented at the prospecting stage) retained only limited authority during the later renewal stage; its role was restricted to suggesting terms and conditions in connection with any renewals, including conditions “for the protection of the surface of the land.” 43 C.F.R. §3221.4(f) (1966); see Am. Compl. ¶72. This limited authority balanced the -3- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 12 of 62 government’s interests and the lessee’s: Because renewal could not be denied outright, the lessee’s mineral tenure was secure. But if over time the Forest Service developed concerns about impacts on the surface, it could, in connection with a lease renewal, suggest lease stipulations to address those concerns. The Leases, which expressly refer to the right-of-renewal regulation, grant plaintiffs the “exclusive right to mine, remove, and dispose” of all the copper, nickel, and associated minerals in lands covered by the Leases for a period of 20 years, with a “right in the Lessee to renew the same for successive periods” of 10 years. Am. Compl. Ex. 1 at 1 (Leases §1(a)). C. 1989 And 2004 Renewals In accordance with federal law and the Leases, BLM renewed the Leases in 1989 and 2004. Each renewal attached the Leases in full, and retained all of their terms and conditions. Am. Compl. ¶¶70, 82. (Defendantintervenor disputes that the renewals incorporated all of the Leases’ terms, but that dispute cannot be resolved in its favor on a motion to dismiss.) As part of both lease-renewal processes, BLM received the Forest Service’s agreement that the Leases’ terms and conditions sufficed to protect the surface resources of the United States. Am. Compl. ¶¶72, 80. Neither agency suggested that the Forest Service could withhold consent entirely. Id. ¶¶72, 79. -4- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 13 of 62 The 1989 and 2004 renewals did not mean that plaintiffs could begin mining. As noted earlier, mining cannot occur until after plaintiffs present an actual mine plan to the relevant government agencies, which will then undergo extensive and rigorous environmental review, including analysis of potential effects on natural resources as well as social, cultural, and economic resources. The renewals simply gave the parties an opportunity—expressly provided in the Leases—to revisit certain terms and conditions. D. 2012 Renewal Application Plaintiffs submitted a third renewal request in 2012, following the same process used for the two previous ones. Am. Compl. ¶¶6-7, 86. This time, however, the government—facing intense pressure from organizations opposed to mining in northeastern Minnesota—changed the rules. Id. ¶¶10, 88. BLM sought an opinion from the Solicitor of the Interior on whether it had discretion to deny renewal of the Leases outright. Id. ¶89. On March 8, 2016, then-Solicitor Hilary Tompkins issued an opinion (the “Solicitor’s Opinion”) concluding that BLM had such discretion. Id. ¶90. Armed with the Solicitor’s Opinion, BLM asked the Forest Service whether it consented to lease renewal. Am. Compl. ¶93; see also id. ¶59. Claiming “absolute discretion” to withhold consent, the Forest Service declined to consent to renewal of the Leases. Id. ¶102. Its decision was based not on anything about plaintiffs’ mine plan—that would have been -5- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 14 of 62 impossible since no plan has been submitted—but rather on unsupported generalized concerns about the “inherent potential risk” of mining. Id. ¶102. Indeed, the Forest Service acknowledged that it had not conducted an environmental review of the impacts of lease renewal. Dkt. 53 (“FS Decision”) at 9, 11; see Am. Compl. ¶¶102-103. The day after the Forest Service denied consent, BLM rejected plaintiffs’ application for lease renewal. Am. Compl. ¶¶104-105. Its sole justification was the Forest Service’s refusal to consent to renewal. Id. E. This Action Plaintiffs filed this action challenging the lawfulness of the government’s refusal to renew the Leases. The operative complaint includes four claims. Count I seeks a declaration of plaintiffs’ rights in the mineral estate under the Quiet Title Act. Counts II and III challenge, under the Administrative Procedure Act, BLM’s refusal to renew the Leases as a violation of both federal law and the Leases. Count IV challenges, also under the APA, the Forest Service’s denial of consent to renewal of the Leases. SUMMARY OF ARGUMENT The government and permissive intervenor Northeastern Minnesotans for Wilderness (“NMW”) move to dismiss the operative complaint. Each principally challenges this Court’s subject-matter jurisdiction—i.e., its power to vindicate the security of plaintiffs’ real-property rights—based largely on -6- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 15 of 62 the flawed premise that plaintiffs’ claims “derive solely from [the] lease agreements.” U.S. Mem. 9. Defendants assert that plaintiffs’ sole remedy is to abandon their decades-long project and seek damages in the Court of Federal Claims. Those arguments fail for several reasons. First, as the complaint makes clear, plaintiffs’ rights arise from both federal law and the Leases. See Am. Compl. ¶¶53-57, 110, 118. Second, plaintiffs lack an adequate alternative remedy at law, because the possibility of damages is no substitute for plaintiffs’ right to secure mineral tenure, including the opportunity to develop the minerals that they and their predecessors discovered and have developed. Third, even if this case were a “contract action” (U.S. Mem. 8), nothing precludes this Court from adjudicating plaintiffs’ QTA or APA claims. Finally, there are meaningful standards for this Court to review the lawfulness of the Forest Service’s refusal to consent to renewal of the Leases. NMW also argues, under Rule 12(b)(6), that the Leases do not give plaintiffs a non-discretionary right to renew (Mem. 18-20). This is not the proper occasion to resolve that issue, but to the extent the Court is inclined to address NMW’s argument without hearing from the actual counterparty to the Leases (the government), the argument should be rejected. -7- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 16 of 62 STANDARD OF REVIEW In evaluating a facial attack on the Court’s subject-matter jurisdiction under Rule 12(b)(1), the Court “merely [needs] to look and see if plaintiff has sufficiently alleged a basis of subject matter jurisdiction.” Branson Label, Inc. v. City of Branson, Mo., 793 F.3d 910, 914 (8th Cir. 2015). “[T]he court restricts itself to the face of the pleadings and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6).” Id. In evaluating a motion to dismiss under Rule 12(b)(6), the court “accept[s] as true the factual allegations contained in the complaint and grant[s] [plaintiffs] the benefit of all reasonable inferences that can be drawn from those allegations.” Tovar v. Essentia Health, 857 F.3d 771, 774 (8th Cir. 2017). Dismissal is improper if the complaint “contain[s] sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Wilson v. Arkansas Dep’t of Human Servs., 850 F.3d 368, 371 (8th Cir. 2017). ARGUMENT In reliance on their rights under both federal law and the Leases, plaintiffs have invested hundreds of millions of dollars to develop one of the largest untapped copper and nickel reserves in the world. Yet before plaintiffs could reap any reward from that enormous investment, the -8- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 17 of 62 government nullified the vested and valuable real property right that had belonged to them and their predecessors for over half a century—and in so doing jeopardized the jobs for generations that would come with a future mining project. The government’s actions, which depart with no adequate explanation from decades of consistent agency practice, not only threaten plaintiffs’ rights but also threaten to undermine more generally the incentives for hardrock mineral development long enshrined in federal law. Defendants’ arguments for dismissal of plaintiffs’ challenges to the government’s unlawful conduct lack merit. The motions to dismiss should be denied. I. THIS COURT HAS JURISDICTION OVER FRANCONIA’S QTA CLAIM In count I, brought under the Quiet Title Act, Franconia asserts property rights in the mineral estate that it holds by virtue of the mineral discovery and subsequent leases with the United States. The government, by refusing to renew the Leases, denies that Franconia has such property rights. This claim therefore falls squarely under the QTA, which waives sovereign immunity and provides a cause of action against the United States “to adjudicate a disputed title to real property in which the United States claims an interest.” 28 U.S.C. §2409a(a). -9- CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 18 of 62 A. Franconia’s QTA Claim Seeks Adjudication Of Rights In Real Property 1. As a threshold matter, neither the government nor NMW appears to dispute that a mineral estate—which is what Franconia claims a property right in—is “real property” under the QTA. 28 U.S.C. §2409a(a). For good reason: It is “easily resolved” that “[m]ineral deposits … fall within §2409a(a)’s definition of real property.” Mafrige v. United States, 893 F. Supp. 691, 697 (S.D. Tex. 1995) (citing cases). Indeed, the QTA’s legislative history indicates that “[t]he quieting of … title to minerals” was specifically contemplated as being within the statute’s ambit. H.R. Rep. No. 92-1559, at 6 (1972). That conclusion also accords with settled law outside the QTA context, recognizing that a mineral estate is real property. As the Eighth Circuit explained, “[u]nder a typical mineral lease, the lessee acquires a ‘working interest’ in the mineral estate, which is a real property interest.” Slaaten v. Cliff’s Drilling Co., 748 F.2d 1275, 1277 (8th Cir. 1984). 2. Defendants nonetheless argue that Franconia’s claimed real- property interest does not suffice for QTA purposes. They contend that Franconia does not claim “fee owner[ship]” (U.S. Mem. 15; see NMW Mem. 7), and that the “renewable leasehold interest” by which Franconia holds its property right is insufficient (NMW Mem. 7; see U.S. Mem. 15). These arguments are refuted by the statutory text, legislative history, and - 10 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 19 of 62 interpretive case law, all of which confirm that the QTA permits adjudication of rights in mineral estates even if those rights are less than fee simple and are held through a lease from the government. The QTA’s text contemplates civil actions in cases involving property interests that are less than fee simple. For example, the statute requires the complaint to “set forth with particularity the nature of the right, title, or interest which the plaintiff claims in the real property, the circumstances under which it was acquired, and the right, title, or interest claimed by the United States.” 28 U.S.C. §2409a(d) (emphasis added). Other statutory provisions underscore the point, speaking in terms of “interests” or “estates” in property. See id. §§1346(f), 2409a(e). Those provisions make clear that a plaintiff may assert a QTA claim based on an interest in real property that is less than fee simple. The legislative history and interpretive case law confirm the point. The House Report issued during consideration of the QTA, for example, states that “the terms of the proposed statute” include “[t]he quieting of title where the plaintiff claims an estate less than a fee simple [such as] an easement or the title to minerals.” H.R. Rep. No. 92-1559, at 6 (emphasis added). And courts consistently hold that the QTA provides jurisdiction over claims involving property interests “less than a fee simple interest.” Alaska Dep’t of Nat. Res. v. United States, 816 F.3d 580, 585 (9th Cir. 2016); accord, e.g., - 11 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 20 of 62 School Bd. of Avoyelles Parish v. U.S. Dep’t of Interior, 647 F.3d 570, 580 (5th Cir. 2011); United States v. Bedford Assocs., 657 F.2d 1300, 1316 (2d Cir. 1981); Kinscherff v. United States, 586 F.2d 159, 161 (10th Cir. 1978). Even the cases on which defendants rely (U.S. Mem. 15-16; NMW Mem. 7-8) are to the same effect. For example, in Ginsberg v. United States, 707 F.2d 91 (4th Cir. 1983), the court held that the QTA “‘plainly contemplates litigation against the United States to adjudicate disputes about lesser interests, such as … the Government’s lease,’” id. at 93 (quoting Bedford Assocs., 657 F.2d at 1316). And in McMaster v. United States, 177 F.3d 936 (11th Cir. 1999), the court recognized that the United States’ “interfere[nce] with [a plaintiff’s] easement rights”—clearly an interest less than fee simple—would be sufficient under the QTA, id. at 940.1 The Eighth Circuit, moreover, has adjudicated a QTA dispute involving an easement, which again is an interest less than fee simple. Patterson v. Buffalo Nat’l River, 76 F.3d 221 (8th Cir. 1996). In so doing, the court, despite having an obligation to evaluate its own jurisdiction, did not identify The other cases defendants cite (U.S. Mem. 15-16; NMW Mem. 7-8) are not to the contrary. See Cadorette v. United States, 988 F.2d 215, 223-224 (1st Cir. 1993) (explaining that the QTA permits adjudication of “title or ownership” disputes, and acknowledging that QTA claims can involve various degrees of “title”); Dunbar Corp. v. Lindsey, 905 F.2d 754, 759 (4th Cir. 1990) (plaintiff’s claim was not barred by the QTA where it alleged only a “nonownership interest in real property”). 1 - 12 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 21 of 62 a jurisdictional deficiency in the plaintiffs’ QTA claim, which asserted that the plaintiffs had an easement across government land. See id. at 223. Defendants also assert that plaintiffs “do not dispute” that the United States is the “fee owner of the federal minerals” (U.S. Mem. 15) or has “fee title to the mineral estate” (NMW Mem. 7). But both support this assertion by citing only plaintiffs’ complaint, which states merely that “[t]he United States claims fee simple ownership.” Am. Compl. ¶109 (emphasis added). That does not mean there is no dispute over the property interest here. There manifestly is: Plaintiffs claim a property interest in the mineral estate under both the relevant regulation and the Leases, whereas the government denies that plaintiffs have any such property interest and that it owns all rights in the property. That controversy surely involves “disputed title” within the meaning of the QTA. 3. The only remaining question is whether Franconia’s mineral rights are within the QTA’s scope even though they are held by lease with the United States. The answer is yes. In the most closely analogous case, Mafrige, the court squarely held that mineral rights under a federal lease give rise to a real-property interest sufficient for QTA purposes. See 893 F. Supp. at 696-698. The government there moved to dismiss the complaint (which sought to adjudicate an oil and gas company’s rights under a mineral lease) on the ground that the “claim - 13 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 22 of 62 [was] not cognizable under the” QTA. Id. at 696. Rejecting that argument, the court determined that Texas law had “long held that oil and gas leases convey interests in real property,” and that in this regard state law accorded with federal law. Id. at 697-698. Analogizing to QTA claims about easements, the court held that a leasehold interest sufficed to create “disputed title to real property.” Id. at 698. “That a lease conveys only a ‘property interest’ in the minerals, and not complete ownership,” the court made clear, “is inconsequential under § 2409a(a). A party need only claim some ownership interest in the property to create a ‘disputed title to real property.’” Id. Mafrige’s analysis is consistent with cases in other jurisdictions— including the Eighth Circuit—concluding that a mineral lease is an interest in real property. See Slaaten, 748 F.2d at 1277; FDIC v. Hulsey, 22 F.3d 1472, 1484 (10th Cir. 1994) (“An oil and gas lease is a grant of an estate in real property.”); Foster v. United States, 607 F.2d 943, 949 (Ct. Cl. 1979) (“[P]laintiffs’ leasehold interest in the reserved mineral rights is … an estate in real property.”). Minnesota law likewise treats mineral leaseholds as property interests sufficient to allow quiet title actions, authorizing an “[a]ction to quiet title to lands covered by mineral lease.” Minn. Stat. Ann. §93.055. - 14 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 23 of 62 Defendants argue, however, that even if a leasehold interest is “a kind of ‘title’” (NMW Mem. 8), the QTA still does not apply because Franconia alleges a breach of contract, which is insufficient to “cast[] doubt on the title or ownership of the property” (U.S. Mem. 15). That contention—that a breach-of-contract claim can never raise a title dispute under the QTA—is wrong. If a private party entered into a contract to buy a plot of land from the government, for example, and the government took the money but refused to turn over the land, the buyer could surely claim a title dispute under the QTA. The case cited by defendants to support this argument (Ginsberg) provides no support. The court there simply noted that the dispute in that particular case did not implicate title. See 707 F.2d at 93. Rather, the claim was by a landlord who essentially asserted that his tenant, a government agency, owed him more rent. See id. at 92. The court rightly held that that breach-of-contract claim did not implicate a title dispute. But that holding hardly supports defendants’ sweeping assertion that all title disputes fall outside the QTA merely because they involve a contract. In short, there is no basis for defendants’ argument that a dispute over property rights held by lease is not cognizable under the QTA. - 15 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 24 of 62 B. The Tucker Act Does Not Affect This Court’s Jurisdiction Over Franconia’s QTA Claim The QTA’s sovereign-immunity waiver excludes “actions which may be or could have been brought under” several other statutes. 28 U.S.C. §2409a(a). Those statutes include the Tucker Act. Id. §1491. But contrary to what the government (though not NMW) contends (U.S. Mem. 8), the QTA’s exclusion of Tucker Act cases does not deprive the Court of jurisdiction here, because the remedy Franconia seeks—adjudication and declaration of its mineral rights—is not available under the Tucker Act. The Supreme Court has explained that before the QTA was enacted, plaintiffs who had property disputes with the government but were “willing to settle for monetary damages … could sue in the Court of Claims and attempt to make out a constitutional claim for just compensation.” Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 280-281 (1983). Finding that state of affairs insufficient, Congress enacted the QTA to authorize an action for an adjudication and declaration of rights in real property. Id. at 282. Because Franconia asserts an existing property interest in the mineral estate, and does not seek damages, its claim is properly brought under the QTA. See id. at 280-282; see also United States v. Mottaz, 476 U.S. 834, 850-851 (1986) (suit was brought under QTA because plaintiff - 16 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 25 of 62 claimed ownership and “[a] Tucker Act-based lands suit would seek damages”). The government cites McKay v. United States, 516 F.3d 848 (10th Cir. 2008), to argue (Mem. 11-12, 14-15) that Franconia’s QTA claim is at its essence a “contract claim,” for which exclusive jurisdiction rests in the Court of Federal Claims, or CFC. That argument fails for several reasons. To begin with, the plaintiff in McKay sought only to “enforce contract rights through contract remedies,” invoking no “rights based on independent, noncontractual sources.” 516 F.3d at 851. Here, by contrast, Franconia’s rights are not limited to the Leases; to the contrary, at their essence those rights arise from a federal regulation that entitles plaintiffs to a renewable leasehold interest in the mineral estate. See supra pp.3-4; infra Part II.A.1. McKay is thus inapposite. The government cites (U.S. Mem. 12; see also NMW Mem. 11) cases holding that a contract claim does not become something else simply because “resolution of [the] … claim may turn on the interpretation of a statute.” But that proposition has no bearing here. Rather, the Leases and the regulation each provides an independent basis for relief. In any event, McKay was wrongly decided and should not be followed. Two key errors underlie that decision. First, the court relied on Tenth Circuit APA precedent holding that the Tucker Act provides the exclusive - 17 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 26 of 62 remedy for all contract claims. 516 F.3d at 851. Those APA decisions are themselves erroneous because as discussed below (pp.24-28), the Tucker Act does not establish an exclusive remedy for all contract claims against the United States, but instead gives the CFC exclusive jurisdiction over claims for money damages over $10,000. That conferral of exclusive jurisdiction has no relevance to a case like this one, where the plaintiff does not seek money damages. See infra Part II.B.2 Second, McKay stated that “the necessity of permitting the Government to carry out its functions unhampered by direct judicial intervention outweighs the possible disadvantage to the citizen in being relegated to the recovery of money damages after the event.” 516 F.3d at 851. Whatever the merits of that rationale in the APA context from which McKay drew it, it does not translate to the QTA, where Congress specifically provided a remedy for disputes with the sovereign over real property. See Block, 461 U.S. at 282. A basis for Congress’s provision of that specific remedy was its recognition of the unique and fundamental importance of real property rights. See S. Rep. No. 92-575, at 1 (1971) (noting the “[g]rave inequity” when McKay also voiced concern about the possibility of “compel[ing] [the government] to perform obligations it prefers to breach and compensate financially.” 516 F.3d at 851. But no such government compulsion will ever occur under the QTA because the act (consistent with the Fifth Amendment) explicitly allows the government to maintain possession of disputed property rights by paying “just compensation.” 28 U.S.C. §2409a(b). 2 - 18 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 27 of 62 citizens are “excluded, without benefit of a recourse to the courts, from lands they have reason to believe are rightfully theirs”). Unlike the money that is often at issue in contract claims, real property is not fungible. See United States v. Sperry Corp., 493 U.S. 52, 62 n.9 (1989); San Antonio Sav. Ass’n v. Comm’r, 887 F.2d 577, 591 (5th Cir. 1989); Pelfresne v. Village of Williams Bay, 865 F.2d 877, 883 (7th Cir. 1989); Johnson v. U.S. Dep’t of Agric., 734 F.2d 774, 788 (11th Cir. 1984); United States v. Lambert, 146 F.2d 469, 472 (2d Cir. 1944) (Hand, J.). For that reason, as the Eighth Circuit has held, “monetary relief fails to provide adequate compensation for an interest in real property.” O’Hagan v. United States, 86 F.3d 776, 783 (8th Cir. 1996); accord, e.g., Pelfresne, 865 F.2d at 883 (“monetary compensation is an inadequate substitute” for real property); Shaughnessy v. Eidsmo, 23 N.W.2d 362, 368 (Minn. 1946) (explaining that “damages for the breach of a contract for … any interest in land is always considered inadequate,” and that this rule arose due to the “peculiar respect and consideration which has been accorded to land in the English law”), cited in O’Hagan, 86 F.3d at 783. Cases like this one, therefore, involving a direct conflict between Franconia’s property right in the mineral estate and the United States’ asserted rights, are precisely the kind that the QTA was meant to address. - 19 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 28 of 62 II. THIS COURT HAS JURISDICTION OVER PLAINTIFFS’ APA CLAIMS The Administrative Procedure Act provides that a “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action …, is entitled to judicial review.” 5 U.S.C. §702. Counts II, III, and IV of plaintiffs’ complaint raise APA challenges to BLM’s and the Forest Service’s conduct that resulted in the denial of lease renewal. That conduct has caused and will cause plaintiffs significant harm, because they made enormous investments to explore for and define mineral deposits in the relevant lands, as well as to acquire mineral rights on contiguous lands. Am. Compl. ¶¶6, 92, 117. Plaintiffs made these investments in reliance on federal law and the Leases, each of which secured their rights to the mineral estate. Plaintiffs are entitled to judicial review of the agency decisions invalidating those federally conferred rights. Indeed, the APA creates a “‘strong presumption’ favoring judicial review of administrative action,” Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015), a presumption that can only be overcome “upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent,” Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 670, 671 (1986); accord Barlow v. Collins, 397 U.S. 159, 166 (1970) (“preclusion of judicial review … is not lightly to be inferred”). Despite this strong presumption, defendants argue (U.S. Mem. 8-14; NMW Mem. 9-12) that the Tucker Act implicitly bars plaintiffs’ APA claims - 20 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 29 of 62 because those claims are essentially “contract claims,” for which exclusive jurisdiction rests in the CFC. Defendants additionally argue (U.S. Mem. 1617; NMW Mem. 12) that this Court lacks jurisdiction because an action for damages under the Tucker Act provides an “adequate remedy.” Finally, defendants argue (U.S. Mem. 16-20; NMW Mem. 21-26) that plaintiffs’ claim against the Forest Service (count IV) fails because the Forest Service supposedly had complete discretion to refuse consent to renewal of the Leases—thus nullifying investments worth hundreds of millions of dollars made by plaintiffs and their predecessors—for any reason or no reason at all. None of those arguments has merit. A. The Tucker Act Does Not “Impliedly Forbid” The Relief Plaintiffs Seek Under The APA Plaintiffs allege that the government’s termination of their property interest in the mineral estate violated their rights under federal law and the Leases, and thus seek to set aside unlawful agency action under the APA. Defendants respond that this case is a garden-variety contract dispute, and assert that the APA provides no authority for such a dispute to be heard in this Court. That argument fails for two independent reasons elaborated below. First, it ignores plaintiffs’ complaint, which makes clear that plaintiffs’ mineral rights arise from federal law and the Leases. See Am. Compl. ¶¶53- - 21 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 30 of 62 57, 110, 118, 121. In particular, the complaint alleges that the challenged agency actions—including the Solicitor’s Opinion, the Forest Service’s refusal to consent (and its assumption that it had consent rights at all), and the BLM’s ultimate denial of lease renewal—violate a federal regulation as well as the terms of the Leases. Second, even if plaintiffs’ APA claims were all “contract claims,” this Court would still have jurisdiction. Out-of-circuit cases interpreting the Tucker Act as prohibiting all contract actions seeking any remedy other than damages are wrongly decided: The text of the Tucker Act contains no such limitation, and the APA expressly authorizes review here. 1. Plaintiffs’ rights and requested remedies are not derived solely from contract The D.C. Circuit has developed a framework for determining whether an APA action is “‘at its essence’ a contract action,” a framework that “depends both on the source of the rights upon which the plaintiff bases its claims, and upon the type of relief sought (or appropriate).” Megapulse, Inc. v. Lewis, 672 F.2d 959, 968 (D.C. Cir. 1982). Here, both prongs show that plaintiffs’ APA claims are not barred. a. As to the source of rights, the complaint explains that plaintiffs’ mineral rights were established pursuant to 43 C.F.R. §3221.4 (1966), which articulated longstanding federal mineral law and policy. See Am. Compl. - 22 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 31 of 62 ¶¶53-57, 110, 118, 121. Under that regulation, plaintiffs were entitled, as a “[r]eward for discovery,” to a lease for the mineral deposit, with a nondiscretionary “right of renewal for successive periods.” 43 C.F.R. §3221.4(a), (f). This non-discretionary renewal right, guaranteeing plaintiffs the security required for long-term exploration and production of minerals, is, as explained, critical to the stability of the nation’s hardrock-mining regulatory regime. Without such security, no rational entity would undertake the extraordinary investment of time and resources that is necessary for mineral exploration and development. The source of plaintiffs’ rights is thus federal law—grounded in sound mineral policy. To be sure, plaintiffs also claim rights arising from the Leases. But those rights are in addition to rights claimed under federal law, and hence do not bar review here. As the D.C. Circuit has explained (in a case defendants rely on), “the mere fact that a court may have to rule on a contract issue does not, by triggering some mystical metamorphosis, automatically transform an action” to set aside agency action under the APA into a so-called contract action. Megapulse, 672 F.2d at 968. Where, as here, agency action violates federal law, the action is reviewable under the APA—even if “that same action might also amount to a breach of contract.” Id. at 971. b. Nor do the remedies sought support defendants’ argument. The government asserts (Mem. 13-14) that review is barred because the - 23 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 32 of 62 complaint seeks an order for renewal of the Leases, which the government says is tantamount to the contractual remedy of specific performance. But as the D.C. Circuit has explained, relying on a case that both defendants cite (Megapulse), “federal district courts [are not] forbidden from granting injunctive relief merely because that relief might be the equivalent of ordering specific performance of a government contract.” Transohio Savings Bank v. Director, Office of Thrift Supervision, 967 F.2d 598, 611 (D.C. Cir. 1992) (citing Megapulse, 672 F.2d at 941). 2. The Tucker Act does not create an exclusive remedy for all contract claims in the Court of Federal Claims Defendants also contend (U.S. Mem. 8; NMW Mem. 9) that all “contract claims” against the government fall outside the APA because the Tucker Act gives the CFC exclusive subject-matter jurisdiction over all such claims. In reality, the Tucker Act creates an exclusive remedy only where claims founded on a contract seek money damages in excess of $10,000. See 28 U.S.C. §1491(a)(1); id. §1346. Courts in other circuits that have reached the opposite conclusion have done so, sometimes reluctantly, based on an erroneous interpretation of the statutory text. a. The APA waives sovereign immunity for actions “seeking relief other than money damages” unless “any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” 5 U.S.C. §702. - 24 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 33 of 62 Resting on out-of-circuit decisions, defendants argue that the Tucker Act “impliedly forbids” parties from bringing APA claims based on contracts in federal district court. That contention, as the D.C. Circuit has explained, “rest[s] on the premise that the Tucker Act gives the Claims Court exclusive jurisdiction over all contract claims against the government.” Transohio, 967 F.2d at 612 (emphasis added). That premise, however, is unfounded—as both the statutory text and Supreme Court case law confirm. The Tucker Act gives the CFC jurisdiction “to render judgment upon any claim against the United States founded … upon any express or implied contract with the United States.” 28 U.S.C. §1491(a)(1). But the statute nowhere states that this jurisdiction is exclusive jurisdiction. The Supreme Court made that precise point in Bowen v. Massachusetts, 487 U.S. 879 (1988): It is often assumed that the Claims Court has exclusive jurisdiction of Tucker Act claims for more than $10,000. That assumption is not based on any language in the Tucker Act granting such exclusive jurisdiction to the Claims Court. Rather, that court’s jurisdiction is ‘exclusive’ only to the extent that Congress has not granted any other court authority to hear the claims that may be decided by the Claims Court. Id. at 910 n.48 (emphasis added). This language shows that review is available here, because through the APA, Congress has “granted any other court authority to hear the claims” that plaintiffs advance. Id. The APA gives district courts broad authority to hear claims—including claims based - 25 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 34 of 62 on a contract—against federal agencies “seeking relief other than money damages.” 5 U.S.C. §702. Again, Bowen confirms this point. There, Massachusetts sought an injunction in district court compelling the federal government to pay the Commonwealth for expenditures that it claimed were reimbursable under Medicaid. 487 U.S. at 882-883, 887. The federal government raised a jurisdictional challenge, arguing that the APA did not provide a sovereignimmunity waiver because the CFC had exclusive jurisdiction over Massachusetts’ claim. Id. at 890-891. The Supreme Court rejected that argument, noting that the APA’s “generous review positions” “must be given a hospitable interpretation.” Id. at 904. Moreover, in describing the forms of relief that were not “money damages” under 5 U.S.C. §702—and thus fell within the scope of the APA’s review provisions—the Supreme Court expressly mentioned “equitable actions for monetary relief under a contract.” Id. at 895. In other words, a contract claim seeking equitable relief (even monetary relief) can be heard in district court under the APA.3 The government cites (Mem. 8-9) legislative history to 1976 amendments to the APA for the proposition that the Tucker Act—a statute enacted nearly 100 years earlier, see 24 Stat. 505 (1887)—was meant “to foreclose specific performance of government contracts.” The views of the 1976 Congress about what the 1887 Congress intended in enacting the Tucker Act are irrelevant. As the Supreme Court has repeatedly stated, such “[p]ost-enactment legislative history (a contradiction in terms) is not a legitimate tool of statutory interpretation.” United States v. Woods, 134 3 - 26 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 35 of 62 b. The contrary (non-Supreme-Court) case law on which defendants rely suffers from a significant analytical inconsistency. Under that case law, plaintiffs “may bring statutory and constitutional claims in federal district court even where the claims depend on the existence and terms of a contract with the government,” but cannot bring other types of contract claims. Transohio, 967 F.2d at 610. There is no basis in either the APA or the Tucker Act for that distinction—as the D.C. Circuit itself acknowledged in Transohio: Nothing in the language of either the Tucker Act or the APA requires special treatment for contract claims. … Although specific performance might not always be wise, it is hard to see the justification for an absolute bar on specific performance since specific performance is available when the contract breach rises to statutory or constitutional violation. Id. at 612. Despite this acknowledgement, the Transohio court felt compelled to adhere to its pre-Bowen precedent. 967 F.2d at 613. But in so doing, the court noted there is a “strong case that after Bowen, the Tucker Act should not be read to ‘impliedly forbid’ under the APA the bringing in district court of contract actions,” and “that such a result would be faithful to the text of the Tucker Act and the APA, and sensible.” Id. at 612. Indeed, the court S. Ct. 557, 568 (2013). That is certainly true here given that this legislative history conflicts with Bowen. - 27 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 36 of 62 explained that the interpretation plaintiffs advocate here would “establish a coherent and complementary regime in which the Claims Court and federal district courts share a body of substantive law, but where the appropriate forum is determined by the relief sought: suits against the government for damages go to Claims Court, while those seeking specific relief go to district court.” Id. The Ninth Circuit, though similarly constrained by prior precedent, has likewise acknowledged that Bowen “suggests that contract actions seeking equitable relief could be heard in district court under the APA.” North Star Alaska v. United States, 14 F.3d 36, 38 (9th Cir. 1994). This Court, not being bound by any such precedent, should interpret the Tucker Act according to its plain text and in accordance with Bowen. The statute does not bar district-court jurisdiction to review agency actions involving contracts unless the claims seek money damages.4 B. There Is No Adequate Alternative Remedy The APA allows review of “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. §704. NMW argues (Mem. 12) NMW cites (Mem. 11) V S Ltd. Partnership v. Department of Housing & Urban Development, 235 F.3d 1109 (8th Cir. 2000), for the proposition that “the case sounds in contract, and Plaintiffs’ sole and adequate remedy is money damages in the Court of Federal Claims.” But that case did not address the APA at all—much less that statute’s interplay with the Tucker Act. As the government acknowledges (Mem. 8), the Eighth Circuit “has yet to weigh in on” whether the Tucker Act implicitly forbids contract claims brought in federal district court under the APA. 4 - 28 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 37 of 62 that all of plaintiffs’ APA claims are precluded because the Tucker Act supplies an adequate remedy, while the government makes the argument (Mem. 16-17) as to count IV only. Both are incorrect.5 As discussed, under the Tucker Act plaintiffs are limited to money damages. But this case involves real property—which, for centuries, has been recognized under the law as unique and of preeminent importance. For that reason, the Eighth Circuit (like other courts) has held that “monetary relief fails to provide adequate compensation for an interest in real property, which by its very nature is considered unique.” O’Hagan, 86 F.3d at 783. The case law on which the government relies (Mem. 16-17) supports the point. In Christopher Village, L.P. v. United States, 360 F.3d 1319 (Fed. Cir. 2004), a case involving real property, the court concluded that an APA action “to enjoin foreclosure by the government” was proper “because no other adequate remedy existed to prevent the foreclosure and sale,” id. at 1327.6 Defendants present their adequate-remedy argument as jurisdictional. But the D.C. Circuit recently held (in a case the government cites (Mem. 8)) that the adequate-remedy prong of §704 does not involve jurisdiction, instead establishing an element of an APA cause of action. See Perry Capital LLC v. Mnuchin, 848 F.3d 1072, 1101-1102 (D.C. Cir. 2017), amended on other grounds on reh’g, 864 F.3d 591 (D.C. Cir. 2017). Whichever framework applies, plaintiffs satisfy it. 5 The other cases defendants cite (U.S. Mem. 16-17; NMW Mem. 12-13) are distinguishable. With one exception, none even involves real property. They instead involve: the production of documents, see Central Platte Nat. Res. Dist. v. U.S. Dep’t of Agric., 643 F.3d 1142, 1148-1149 (11th Cir. 2011); 6 - 29 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 38 of 62 The Supreme Court, moreover, has rejected the argument that “a naked money judgment against the United States will always be an adequate substitute for prospective relief fashioned in the light of the rather complex ongoing relationship between the parties.” Bowen, 487 U.S. at 905. And the D.C. Circuit, on which defendants extensively rely, has rebuffed their argument. The court concluded in Transohio (a case NMW cites) that “[b]ecause the Claims Court cannot grant the equitable relief Transohio seeks … the ‘adequate remedy’ limitation … does not interfere with district court jurisdiction over Transohio’s claims.” 967 F.2d at 608. So too here. Plaintiffs seek equitable relief—not monetary damages— because money is not an adequate remedy in this case. There is thus no bar to this Court’s review of plaintiffs’ APA claims. C. The Forest Service’s Decision To Deny Consent To Lease Renewal Is Reviewable Defendants argue that plaintiffs’ APA claim against the Forest Service (count IV) cannot proceed because the Forest Service has “absolute government contracts, see Suburban Mortg. Assocs., Inc. v. U.S. Dep’t of Hous. & Urban Dev., 480 F.3d 1116, 1117-1118 (Fed. Cir. 2007); County of Suffolk v. United States, 19 Cl. Ct. 295, 295, 299 (1990); International Eng’g Co. v. Richardson, 512 F.2d 573, 580-581 (D.C. Cir. 1975); or the promulgation of standards for coal-fired power plants, see Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654, 664-665 (D.C. Cir. 1975). And the one case involving real property was based on a civil in rem forfeiture action and the asset-forfeiture statute, which have no bearing here. See City of Oakland v. Lynch, 798 F.3d 1159, 1165-1167 (9th Cir. 2015). - 30 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 39 of 62 discretion” (U.S. Mem. 6) to deny consent to renewal of the Leases, and thus its decision to do so is excluded from review under the APA as an “action committed to agency discretion by law,” 5 U.S.C. §701(a)(2). See U.S. Mem. 17-20; NMW Mem. 21-25.7 Defendants’ argument lacks merit. Both the Supreme Court and the Eighth Circuit have made clear that §701(a)(2)’s exception to the “strong presumption” of judicial review under the APA, Bowen, 476 U.S. at 670, is “very narrow”—applicable only “in those rare instances” where “there is no law to apply,” Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971); accord Tamenut v. Mukasey, 521 F.3d 1000, 1003 (8th Cir. 2008) (en banc) (per curiam); Friends of Norbeck v. U.S. Forest Serv., 661 F.3d 969, 975 (8th Cir. 2011). Defendants assert that this “very narrow” exception applies because there is no “meaningful standard,” Tamenut, 521 F.3d at 1003, against which to judge the Forest Service’s decision. In fact, meaningful standards are provided by statute, by regulation, by the Forest Service’s interpretive guidance, and by its prior course of conduct. Indeed, NMW presents its preclusion-of-review argument (Mem. 21) as a jurisdictional issue under Rule 12(b)(1), whereas the government seems to present it (Mem. 7-8) as an argument under Rule 12(b)(6). While Eighth Circuit law appears unsettled on that question, compare Tamenut v. Mukasey, 521 F.3d 1000, 1003 (8th Cir. 2008) (en banc) (per curiam), with Ochoa v. Holder, 604 F.3d 546, 549 (8th Cir. 2010), count IV can proceed whichever framework applies. 7 - 31 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 40 of 62 under the governing federal regulation, the Forest Service had no discretion to reject the Leases at the lease-renewal stage because plaintiffs have a nondiscretionary right to renew. The agency’s decision—an immensely consequential one, involving fundamental property rights, decades of work, and hundreds of millions of dollars—is precisely the type of action that calls for judicial review. 1. There are meaningful standards against which to judge the Forest Service’s decision In assessing whether an agency action is committed to agency discretion, a court considers “the nature of the administrative action at issue and the language and structure of the statute,” as well as applicable regulations and other relevant sources, to determine whether there is a “meaningful standard against which to judge the agency’s exercise of discretion.” Tamenut, 521 F.3d at 1003. Here, the language and structure of the statute under which the Forest Service denied consent, the applicable regulation, the Forest Service’s interpretative guidance, and its prior course of conduct all demonstrate that this is not among the rare instances of agency action utterly immune to APA review. a. As the Forest Service did in its denial letter (see Dkt. 53 (“FS Decision”) at 8), defendants rely exclusively on 16 U.S.C. §508b to support their claim of unreviewable Forest Service discretion to deny lease renewal - 32 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 41 of 62 (see U.S. Mem. 17-19; NMW Mem. 22-26). The language of §508b, however, does not provide such discretion. It merely makes the Agriculture Department’s consent a prerequisite to the opening of Minnesota publicdomain lands to mineral development and utilization. If defendants were correct that this suffices, then every statute granting an agency discretion to make any decision, without further elaboration, would eliminate APA review of that decision. This would vastly expand the “very narrow” exception embodied in §701(a)(2). Defendants cite no authority supporting such an expansion. The Forest Service’s own decision, moreover, undercuts defendants’ statutory argument. Despite claiming “absolute discretion,” the Forest Service deems its statutory authority “coextensive” with that of the Interior Department. FS Decision 7, 8. Yet neither the government nor NMW argues that the Interior Department’s decision (i.e., BLM’s lease denial) is unreviewable. Neither is the Forest Service’s. Legislative history is also relevant to determining whether “a particular statute precludes review.” Colorado Envtl. Coal. v. Wenker, 353 F.3d 1221, 1228 (10th Cir. 2004) (per curiam); accord Home Builders Ass’n of Greater Chi. v. U.S. Army Corps of Eng’rs, 335 F.3d 607, 615 (7th Cir. 2003). And here, the legislative history similarly undermines defendants’ argument. Congress enacted §508b against the backdrop of the executive branch’s - 33 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 42 of 62 failure to honor and protect mining companies’ legitimate reliance interests, resulting in severe economic consequences for those companies. Am. Compl. ¶44. It was dissatisfaction with “investment losses resulting from cancellation of mining permits in the Minnesota forests” that spurred passage of the law. S. Rep. No. 81-1778, at 2 (1950). In particular, the House Report stated, companies that “have made investments for the mining and removal of mineral substances from the described lands should be given the privilege of renewing or retaining their permits or leases.” H.R. Rep. No. 81795, at 2 (1949). Both the Interior Department and Agriculture Department “agree[d].” Id. The Forest Service’s claim of unreviewable discretion to deny renewal in this case is starkly inconsistent with that history. b. To determine whether there are meaningful standards to apply, courts examine not just the statute at issue and legislative history but also other relevant sources of law—such as regulations, established agency policies, and settled courses of conduct. In Tamenut, for example, the en banc Eighth Circuit considered applicable regulations as well as statutory text. See 521 F.3d at 1004-1005. The Eighth Circuit has also recognized that “established [agency] policy” can provide a meaningful standard to apply. Abdelwahab v. Frazier, 578 F.3d 817, 821 n.6 (8th Cir. 2009). And the Ninth Circuit has explained that courts “may … look to ‘regulations, established agency policies, or judicial decisions’ for a meaningful standard of review.” - 34 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 43 of 62 Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 719 (9th Cir. 2011); accord Sang Goo Park v. Attorney Gen., 846 F.3d 645, 651, 653 (3d Cir. 2017) (“if an agency announces and follows—by rule or by settled course of adjudication—a general policy by which its exercise of discretion will be governed, that exercise may be reviewed”). Although the government contends (Mem. 18) that there are no pertinent regulations implementing 16 U.S.C. §508b, that is not correct. The Interior Department not only promulgated regulations implementing §508b, see 43 C.F.R. §3325.0-3 (1966), but also made the general mineral-leasing regulations at 43 C.F.R. Part 3220 applicable to hardrock-mineral development in the Superior National Forest, see id. §3325.3. Among those regulations was the one discussed above that granted prospecting permittees who discovered a valuable mineral deposit a non-discretionary right to lease renewal. See 43 C.F.R. §§3221.4, 3325.3 (1966); supra pp.3-4, 22-23. There is, therefore, a “meaningful standard” for this Court to apply—namely, the APA “contrary to law” standard, which would be violated if affording the Forest Service complete discretion to deny consent for subsequent lease renewals directly conflicts with plaintiffs’ regulatory right to renewal (as indeed it does). See National Wildlife Fed’n v. EPA, 980 F.2d 765, 773 (D.C. Cir. 1992) (“[W]hen a legal challenge focuses on an announcement of a substantive statutory interpretation, courts are emphatically qualified to - 35 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 44 of 62 decide whether an agency has acted outside of the bounds of reason.” (alteration in original)); International Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Brock, 783 F.2d 237, 247 (D.C. Cir. 1986) (“it seems almost ludicrous to suggest that there is ‘no law to apply’ in reviewing whether an agency has reasonably interpreted a law”). Indeed, the principal case defendants rely on (U.S. Mem. 18; NMW Mem. 22) makes the same point. See Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1078 (9th Cir. 2013) (“We have jurisdiction to consider whether the Secretary violated ‘constitutional, statutory, regulatory or other legal mandates or restrictions[.]’”). The regulations implementing §508b also confirm that the Forest Service’s authority is narrowly circumscribed, limited to surface considerations. The relevant regulation states that “[l]eases or permits” under §508b “may be issued only with the prior consent of the Secretary of Agriculture or his delegate, and subject to such conditions and stipulations as that official may prescribe to insure adequate utilization and protection of lands for the primary national forest purpose for which they are being administered.” 43 C.F.R. §3325.2 (1966). Again, then, this Court could evaluate whether the Forest Service’s action was inconsistent with this - 36 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 45 of 62 regulation—and hence “contrary to law,” a “meaningful standard” under the APA.8 c. Defendants argue that the Forest Service Manual, Superior National Forest Land and Resource Management Plan (“Forest Plan”), and other internal policy and guidance documents cited in the complaint are irrelevant, because those documents “do not command anyone to do anything or to refrain from doing anything.” U.S. Mem. 19; see NMW Mem. 24-25. Courts, however, have frequently found judicially manageable standards of review in “formal and informal policy statements,” Steenholdt v. FAA, 314 F.3d 633, 638 (D.C. Cir. 2003), including established agency policies, Pinnacle Armor, 648 F.3d at 719. Thus, even if the Forest Service had any consent authority over lease renewal, the Forest Service Manual and Forest Plan both contain standards relevant to evaluating the Forest Service’s decision. For example, the manual includes “Issuance Procedures for Permits, Licenses, and Leases,” which specify the factors that Forest Service officials must consider in making such a determination. FSM 2822.4. Those factors include the degree of surface disturbance, the impact on surface resources, The regulation’s language is reinforced by section 5 of the Leases, which permits the government, upon renewal, “to readjust other terms and conditions … including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover.” 8 - 37 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 46 of 62 economic considerations, and available alternatives. FSM 2822.41. In considering those factors, moreover, the Forest Service must refer to the Forest Plan, which provides additional objectives, standards, and guidelines against which the agency’s consent decision may be measured. For instance, the Forest Plan (which is required by statute and based on extensive environmental analysis under the National Environmental Policy Act) describes the “[e]xploration and development of mineral and mineral material resources” as a forest-wide “[d]esired [c]ondition” in the Superior National Forest. Forest Plan, Ch. 2 at 2-9 (2004). Whether the agency adequately considered this desired condition and other internal guidance—and more generally whether the Forest Service evaluated the appropriate factors in denying consent—is a familiar APA standard by which the agency’s action may be meaningfully evaluated. See Friends of Norbeck, 661 F.3d at 975 (finding sufficient standards, “albeit broad ones,” to evaluate the Forest Service’s decisions regarding certain species in a nature preserve). The Forest Service must also offer an explanation or justification for its departure from its policies and practices governing management of the Superior National Forest. As the Supreme Court has explained, “[w]hen an agency changes … position, it … must at least ‘display awareness that it is changing position’ and ‘show that there are good reasons for the new policy.’” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125-2126 (2016). - 38 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 47 of 62 Therefore, “an ‘[u]nexplained inconsistency’ in agency policy is ‘a reason for holding an interpretation to be an arbitrary and capricious change from agency practice.’” Id. at 2126 (alteration in original). This Court has authority to rule that the Forest Service’s “unexplained” departure from its prior practice requires setting aside its decision. d. Finally, the Forest Service’s course of conduct throughout the duration of the Leases provides a basis for APA review. See Sang Goo Park, 846 F.3d at 651-653; see also Tamenut, 21 F.3d at 1005 (assuming without deciding that “a settled course of adjudication could establish a meaningful standard”). When the Leases were renewed in 1989, the Forest Service solicited public comments. One commenter “was against issuing the leases based on general principals [sic].” Am. Compl. Ex. 10 at 2. The Forest Service, however, correctly stated that it was “not deciding if the leases should be issued but instead … deciding if new restrictions need to be added before extending them.” Id. And when the Forest Service subsequently reported its position regarding renewal to BLM, it said only that the “existing lease terms and conditions are adequate.” Id. The second renewal followed the same pattern; the Forest Service stated that “[t]he terms, conditions and stipulations have been reviewed, and it has been determined that they are sufficient to protect the resources of the United States.” Am. Compl. Ex. 12 at 1. This consistent course of conduct provides another way for this Court to - 39 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 48 of 62 evaluate under the APA the Forest Service’s denial of consent last year. See Encino Motorcars, 136 S. Ct. at 2125-2126, quoted supra pp.38-39. In sum, the statute and its legislative history, regulations, Forest Service guidance, and course of agency conduct provide a framework by which the Court can evaluate the Forest Service’s consent decision with respect to this renewal—specifically, a framework in which the Court examines: (1) whether the Forest Service limited its decision to determining if the Leases’ terms adequately protect the surface, (2) whether the Forest Service relied on appropriate factors (and no irrelevant ones) in making that determination, and (3) whether the Forest Service’s conclusion that it has authority over renewal (and not just terms and conditions) is an unexplained departure from past agency practice. 2. The nature of the Forest Service’s decision confirms that it is not committed to agency discretion In addition to the sources discussed above, courts addressing the committed-to-agency-discretion question consider “the nature of the administrative action at issue.” Tamenut, 521 F.3d at 1003. And “[i]n the rare instance” where this exception to judicial review applies, the case typically involves “an agency’s power to manage its own docket.” Pinnacle Armor, 648 F.3d at 720. For example, actions committed to agency discretion include an agency’s decision not to institute enforcement proceedings, see - 40 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 49 of 62 Heckler v. Chaney, 470 U.S. 821, 831 (1985), and to reopen proceedings on its own motion, see Tamenut, 521 U.S. at 1005. Courts have also viewed certain agency decisions involving national security or foreign policy to fall under §701(a)(2), because courts traditionally have lacked expertise in those domains. See Pinnacle Armor, 648 F.3d at 720; Toxco Inc. v. Chu, 724 F. Supp. 2d 16, 24 n.3 (D.D.C. 2010). The Forest Service’s decision here does not fall into any of these categories. It instead turns on the agency’s claimed power to nullify plaintiffs’ longstanding property rights. And as the Supreme Court recognized in Heckler, when an agency “exercise[s] its coercive power over an individual’s … property rights,” that action “infringe[s] upon areas that courts often are called upon to protect.” 470 U.S. at 832 (emphasis omitted). The enormously consequential nature of the Forest Service’s decision, moreover, also counsels against finding that review is precluded. See Reese Bros., Inc. v. U.S. Postal Serv., 905 F. Supp. 2d 223, 253 (D.D.C. 2012) (“the ‘nature of the administrative action’—the issuance of a final agency decision assessing a deficiency in excess of $3.5 million—requires the Court tread cautiously in deciding to foreclose judicial review”). Not only would the Forest Service’s decision destroy plaintiffs’ property rights, but it would also cast doubt on the future development of valuable minerals on public lands. Adopting defendants’ position, in short, would give the Forest Service the - 41 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 50 of 62 power to unilaterally nullify decades of investment worth hundreds of millions of dollars unconstrained by the vital check of APA review. Defendants cite no case holding a decision of similar magnitude to be committed to agency discretion. Finally, rejecting defendants’ argument would be consistent with Supreme Court case law holding that Chevron deference is generally not given to agencies regarding questions of major significance, because Congress will not be presumed to have implicitly delegated authority to agencies to resolve such key questions. See King v. Burwell, 135 S. Ct. 2480, 2488-2489 (2015); Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2439-2442 (2014); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000); MCI Telecommunications Corp. v. AT&T Co., 512 U.S. 218, 231-232 (1994). Congress likewise should not be presumed to have rendered monumentally important decisions, like the Forest Service’s denial of consent, immune to any judicial review under the APA. III. PLAINTIFFS HAVE SUFFICIENTLY STATED CLAIMS FOR RELIEF UNDER THE APA Plaintiffs have alleged that they possess—under both federal law and the Leases—a non-discretionary right to renewal of their mineral leases, and that the government violated that right. NMW, but not the government, - 42 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 51 of 62 takes up the merits of plaintiffs’ APA claims, arguing (Mem. 13-26) that counts II, III, and IV should be dismissed for failure to state a claim. This is not the proper occasion for this Court to address those arguments—as demonstrated by the fact that the government, the actual counterparty to the Leases, has not made similar contentions. Indeed, the government has not even filed the administrative record in this case, which is usually a prerequisite for adjudication of the merits of an APA claim. See R.J. Reynolds Tobacco Co. v. U.S. Dep’t of Agric., 130 F. Supp. 3d 356, 369 (D.D.C. 2015) (“Summary judgment is [ordinarily] the proper mechanism for deciding, as a matter of law, whether an agency action is supported by the administrative record and consistent with the APA standard of review.” (alteration in original)); Sierra Club v. Clinton, 689 F. Supp. 2d 1147, 1159 (D. Minn. 2010) (denying motion to dismiss; “[t]he Court will consider these arguments at the summary judgment stage with the benefit of the full administrative record”). As discussed below, moreover, NMW’s arguments could require consideration of evidence outside the administrative record, such as parol evidence concerning the negotiating history and course of conduct between plaintiffs and the United States. To the extent the Court is inclined to address the issue now, however, NMW’s arguments should be rejected. First, count II sufficiently claims a non-discretionary right of renewal under federal law—granted by the 1966 - 43 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 52 of 62 regulations, which govern here. And even if the 2004 regulations applied, dismissal would still be unwarranted. Second, count III sufficiently claims that the Leases (and, if applicable, the 2004 renewal forms) grant a nondiscretionary right to renewal. Third, count IV sufficiently claims that the Forest Service’s denial of consent violates the APA; NMW’s cursory argument seeking dismissal of one “aspect” of that count is meritless. A. Count II Sufficiently Claims That The Applicable Regulation Grants A Non-discretionary Right To Renewal As discussed in Part II.A.1, the governing regulation granted plaintiffs “a right of renewal for successive periods, not exceeding ten years each,” subject only to “such reasonable terms and conditions as the Secretary of the Interior may prescribe.” 43 C.F.R. §3221.4(f) (1966). NMW argues, however (Mem. 15), that the relevant regulations are those in force when the Leases were renewed in 2004. That is not correct. In support of its argument, NMW cites (Mem. 15) a 1981 Solicitor’s opinion, Assistant Secretary, Land & Water Resources Assistant Secretary, Energy & Minerals, GFS(MIN) SO-2 (1982) (Sept. 17, 1981), 1981 WL 29121. But that opinion does not apply here because it addresses only the legal regime governing coal leases. Even as to that regime, moreover, the opinion does not stand for the proposition that subsequent regulations can retroactively eradicate property rights (like plaintiffs’) that were secured - 44 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 53 of 62 under a prior regulatory scheme. But even if it did, that would likely be wrong. As the Supreme Court has explained, “there is substantial doubt whether the retroactive destruction of” property rights such as “liens … comports with the Fifth Amendment.” United States v. Security Indus. Bank, 459 U.S. 70, 78 (1982). NMW also cites (Mem. 15) the 2004 lease renewal forms. Since the renewals “issued on January 1, 2004,” NMW contends, “the regulations in force on that date are the ones that govern.” Id. But the text of the 2004 lease renewals—indeed, the very text NMW emphasizes in bold and italics— refutes that contention. Each renewal form expressly states that it is a “Lease Renewal,” not a “Lease.” Am. Compl. Ex. 3 at 1. Nor could it have been a “Lease,” as that would have required extensive environmental review. And the “Lease Renewal,” the forms provide, is “subject to the regulations and general mining orders of the Secretary of the Interior in force on the date this lease issued.” Id. §1 (emphasis added). The date that the “lease” (not the “Lease Renewal”) issued was 1966. The renewal forms thus underscore that the 1966 regulations apply. Even if the 2004 regulations applied, dismissal would still be improper. NMW’s argument (Mem. 16) appears to rest on the notion that the 2004 regulations provide for only a “preferential right” in the lessee to renew. But as the D.C. Circuit has explained, “the term [‘preference right lease’] has … - 45 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 54 of 62 been construed by the agency consistently for nearly 60 years to mean an automatic entitlement of a prospecting permittee.” Natural Res. Def. Council, Inc. v. Berklund, 609 F.2d 553, 557-558 (D.C. Cir. 1979) (per curiam) (emphasis added). For the agency now to adopt a different reading with retroactive effect would raise serious constitutional questions. Supra pp.4445. Alternatively, NMW argues (Mem. 16-17) that plaintiffs’ claim would fail even if the 1966 regulations governed, because those regulations provide that renewals are subject to the Agriculture Department’s consent. The only reason NMW gives for that conclusion, however (Mem. 16), is that the 1966 regulations purportedly conditioned the issuance of the original lease on the Agriculture Department’s consent, “thus making any renewal right subject to such consent.” But the latter proposition in no way follows from the former. To the contrary, under the plain text of the regulations (in accord with the statute), the Agriculture Department’s consent was required only for “[l]eases or permits.” 43 C.F.R. §3325.2 (1966). Here, after consenting to the prospecting permits and lease issuance, the Forest Service retained only the ability to make reasonable adjustments to the terms and conditions of the Leases in connection with a renewal, including adjustments needed “for the protection of the surface of the land.” Id. §3221.4(f) (1966). - 46 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 55 of 62 NMW also contends (Mem. 17-18) that this Court should construe the 1966 regulation to grant a “preferential, rather than absolute” right of renewal. NMW, however, does not point to anything in the regulation to justify that interpretation—because there is nothing. Instead NMW rests on the contention that the Court should rewrite the regulation to reflect a different leasing scheme for different minerals. Such a rewriting would obviously be inappropriate. In any event, as just discussed (pp.45-46), even if the 1966 regulation provided for a “preferential” right to renew, NMW’s argument would still fail. In short, there is no support for NMW’s claim that—drawing all reasonable inferences in plaintiffs’ favor—the relevant regulation as a matter of law did not give plaintiffs a leasehold interest with a non-discretionary right to renew. B. Count III Sufficiently Claims That The Leases Grant A Non-discretionary Right To Renewal Plaintiffs have likewise stated a claim that the Leases (separate from the regulations but also consistent with them) provide a non-discretionary right of renewal. In particular, section 1 grants plaintiffs exclusive mineral rights “for a period of twenty (20) years with a right in the Lessee to renew the same for successive periods of ten (10) years each in accordance with the regulation 43 C.F.R. §3221.4(f) and the provisions of this lease.” Am. Compl. - 47 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 56 of 62 Ex. 1 at 1 (emphasis added). The cited regulation, as discussed, provides for a right of renewal subject only to terms and conditions imposed by the Interior Department, and no other provision of the Leases eliminates that right. Disputing this straightforward reading of the Leases, NMW argues (Mem. 18) that the 2004 lease renewals superseded the terms of the Leases. That is wrong, but would not be a basis for dismissal even if it were right. In the alternative, NMW argues (Mem. 20) that the Leases provided only a right to renewal upon “commencement of actual production.” That claim likewise lacks merit. 1. The terms of the Leases govern the renewal right NMW’s assertion that the 2004 renewals superseded the terms of the Leases is incorrect. The basis for NMW’s assertion (Mem. 2, 19-20) is that the 2004 renewals supposedly incorporated only two provisions of the Leases (related to royalties). Two points refute that. First, the 2004 renewal occurred using the same form as the 1989 renewal, and BLM acknowledged in 1989 that the Leases were being renewed “under the existing terms and conditions of the original leases.” Am. Compl. Ex. 6 at 1. Second, the renewals lacked an integration clause, which is dispositive because “[w]hen a contract lacks an express integration clause [courts] must ‘determine whether the parties intended their agreement to be an integrated contract by reading - 48 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 57 of 62 the writing in light of the surrounding circumstances.’” Starter Corp. v. Converse, Inc., 170 F.3d 286, 295 (2d Cir. 1999) (emphasis added). Consideration of such circumstances is inappropriate at the motion-todismiss stage, as it could involve parol evidence. In short, there is no basis to conclude, certainly not in this posture, that the terms and conditions were changed by the 2004 lease renewals, i.e., that in 2004 the parties, who engaged in no substantive negotiations leading up to the second renewal, tacitly intended to displace the terms of the Leases, which were the product of nearly a decade of “intensive negotiations.” Am. Compl. ¶61. 2. The 2004 lease renewals include a non-discretionary right to renewal Dismissal would be improper even if NMW were correct that the 2004 renewal forms controlled. Those forms give plaintiffs a “preferential right … to renew for successive periods of 10 years.” Am. Compl. Ex. 3 at 1. NMW claims (Mem. 19) that the term “preferential right” provides only a right to be preferred against other parties. But as discussed, the D.C. Circuit has noted that for decades the Interior Department itself interpreted the term “to mean an automatic entitlement” right. Berklund, 609 F.2d at 557-558. 3. The Leases do not impose a production requirement as a condition precedent to renewal Finally, NMW’s assertion (Mem. 20) that the Leases provide a nondiscretionary right to renewal only upon commencement of production is - 49 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 58 of 62 wrong. Section 1, entitled “Rights of Lessee,” establishes the plaintiffs’ right to renewal. Section 5—on which NMW relies—then limits the Interior Department’s ability to adjust not only the royalties payable under the Leases, but also other lease terms and conditions. In particular, section 5 provides in relevant part that the Secretary: shall have the right to reasonably readjust and fix royalties payable hereunder at the end of the primary term of this lease and … of each successive renewal … provided, however, that the Lessee shall have the right to three successive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production. Leases §5 (emphasis added). As the emphasized language makes clear, the reference at the end of this excerpt to the commencement of production does not bear on the right to renew that section 1 establishes. Instead, the production reference bears on the government’s right to adjust the royalties and other terms and conditions: If production has begun, the government’s adjustment right is limited in the ways specified; if production has not begun, it is not so limited. In other words, production was a condition precedent to receiving locked-in royalty rates (and no adjustment of other terms and conditions) upon renewal, not a condition precedent of the right to renew itself. - 50 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 59 of 62 C. Count IV Sufficiently Claims That The Forest Service’s Denial Of Consent Violates The APA In two cursory paragraphs, NMW argues (Mem. 24) that one “aspect” of plaintiffs’ challenge to the Forest Service’s denial of consent should fail on the merits. According to NMW, although plaintiffs have alleged that the Forest Service wrongfully considered environmental impacts in denying the Leases, plaintiffs “have not explained why environmental impacts are irrelevant to the decision of whether to consent to renewal of a mining lease.” Id. Thus, NMW concludes, “this aspect of Count IV should be dismissed.” Id. That argument simply ignores plaintiffs’ complaint. Count IV of the complaint sufficiently alleges that the Forest Service’s denial of consent violated the APA because, among other reasons, the “agency … relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, [and] offered an explanation for its decision that runs counter to the evidence before the agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). More specifically, paragraph 128 of the amended complaint alleges that “[t]he Forest Service does not have the authority to consider, at the lease renewal stage, potential environmental impacts from a mining project that has not even been proposed and that would be subject to a separate approval process that includes environmental review.” Am. Compl. - 51 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 60 of 62 ¶128. In other words, rather than evaluating the Leases’ terms and conditions to decide whether they were sufficient to protect the surface estate—as contemplated by the regulations, and as it had done with each previous renewal—the Forest Service conducted an ad hoc, cursory review based on data neither intended nor sufficient to address any such environmental impacts. Id. ¶¶102, 128. The Forest Service then simply made a policy determination that mineral development should not be allowed on lands near the Boundary Waters. See id. But that policy judgment is for Congress, and Congress has already made it, expressly authorizing mineral development in the Superior National Forest outside the wilderness and mining protection areas, including the land subject to plaintiffs’ Leases. CONCLUSION The motions to dismiss should be denied. - 52 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 61 of 62 Respectfully submitted, Dated: August 25, 2017 /s/ Paul R.Q. Wolfson PAUL R.Q. WOLFSON (D.C. Bar #414759) (pro hac vice) DANIEL S. VOLCHOK (D.C. Bar #497341) (pro hac vice) ALBINAS J. PRIZGINTAS (D.C. Bar #1006955) (pro hac vice) WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Ave. N.W. Washington, D.C. 20006 Tel.: (202) 663-6000 Fax: (202) 663-6363 MICHAEL J. P. HAZEL (Colo. Bar #49451) (pro hac vice) WILMER CUTLER PICKERING HALE AND DORR LLP 1225 17th St., Suite 2600 Denver, Colorado 80202 Tel.: (720) 274-3135 Fax: (720) 274-3133 STEVEN J. WELLS (Atty. #163508) I. DANIEL COLTON (Atty. #223116) MARK R. KASTER (Atty. #159517) DORSEY & WHITNEY LLP 50 South Sixth St., Suite 1500 Minneapolis, Minnesota 55402 Tel.: (612) 340-2600 Fax: (612) 340-2868 - 53 - CASE 0:16-cv-03042-SRN-LIB Document 107 Filed 08/25/17 Page 62 of 62 CERTIFICATE OF COMPLIANCE This brief complies with the limits in Local Rule 7.1(f) and with the type-size limit of Local Rule 7.1(h). 1. Exclusive of the portions of the brief exempted by Local Rule 7.1(f)(1)(C), the brief contains 11,954 words. 2. The brief has been prepared in proportionally spaced typeface using Microsoft Word 2016 in 13-point Century Schoolbook font. As permitted by Local Rule 7.1(f)(2), the undersigned has relied upon the wordcount feature of this word-processing system in preparing this certificate, and certifies that the word-count feature was applied to include all text, including headings, footnotes, and quotations. /s/ Paul R.Q. Wolfson PAUL R.Q. WOLFSON (D.C. Bar #414759) August 25, 2017 August 30, 2017 Honorable Secretary Sonny Perdue United States Department of Agriculture 1400 Independence Avenue SW Washington, DC 20250 Mr. Daniel J. Jiron Acting Deputy Under Secretary United States Department of Agriculture 1400 Independence Avenue SW Washington, DC 20250 Via: Electronic Mail Re: Transmittal of NCLUCBs Application Cancellation Request and USFS/EIS Scoping Alternative Filings; Meeting Request Dear Secretary Purdue and Mr. Jiron: Thank you for the August 24, 2017 acknowledgement of my public testimony, and for informing the Northern Counties Land Use Coordinating Board (NCLUCB) of Secretary Perdue’s intent to pursue a nationwide review of US Forest Service (USFS) land withdrawal applications. In support of the Department of Agriculture’s (USDA) review of the Superior National Forest mineral withdrawal application, and any decisions that will ultimately be made by the Secretary of the Interior or Congress, we are providing documents that have been filed in the public record. Specifically, we have attached our April 17, 2017 request that the Secretary of Interior cancel the withdrawal application,1 and two detailed alternatives to be considered once the NEPA EIS Scoping process gets underway.2 NCLUCB understands that that both Secretaries Zinke and Perdue have publicly announced their decision to pursue the procedural, 2-year process mandated by Congress for the Superior National Forest.3 For our part, as affected local governments, we intend to inform this process such that a balanced decision for both the human and natural environments - may result.4,5 As the Secretaries of Agriculture and Interior define roles for the NEPA process, and as you prepare the joint agency memorandum required by CEQ regulations in 40 CFR §1501.5(c), NCLUCB requests to be integrated, as appropriate into that process. Member Counties: Aitkin Cook Itasca Koochiching Lake Lake of the Woods Pennington Roseau We believe our participation from onset of the NEPA/EIS process can contribute useful information only available from local governments, and to that end request a briefing meeting at the USDA offices on September 27, 2017 at 1:30 pm (preferred) or September 26 at 1:30 pm. Thank you in advance for your review of our carefully prepared documents and consideration of our request. Regards, Rich Sve Chairman The Northern Counties Land Use Planning Board c: Hon. Ryan Zinke – Secretary, DOI K. Kathleen Benedetto - DOI Special Assistant to the Secretary K. MacGregor - DOI Acting Assistant Secretary for Lands and Minerals Management 1 Notification of Procedural and Statutory Deficiencies; Request for Cancellation of Withdrawal Application and Immediate Termination of Land segregation. Stillwater Technical Solutions. April 17, 2017. 2 Superior National Forest, Minnesota Comments and Two Alternatives for NEPA Scoping and EIS Analysis. 3 43 USC §1714 (a). (Pub. L. 94–579, title II, § 202(a) and (f), Oct. 21, 1976, 90 Stat. 2747 and 2749.) 4 42 USC § 4331 (b)(5). 5 43 USC §1711(c)(9). Ibid. "Planning Locally Today for Future Generations" QSDA United States Department of Agriculture Office at the Secretary Washington. DC. 20250 AUG 2 2017 Mr. Rich Sve Commissioner Lake County Nerthern Counties Land Use Coordinating Board 3648 Highway 61 Two Harbors, Minnesota 55616 Dear Commissioner Sve: Thank you for your letter of July 25, 2017', to U.S. Department of the Interior Secretary Ryan Zinke and US. Department of Agriculture Secretary Sonny Perdue, regarding the proposed withdrawal of 234,328 acres of Federal mineral estate from leasing, exploration, and development within the Superior National Forest. Secretary Perdue has asked me to respond. We apologize for the delayed response. Request for public comment regarding the proposed 20-year withdrawal of Federal minerals from National Forest System lands on the Superior National Forest, within the Rainy River watershed, began on January 13, 2017. The public comment period was extended until August 17, 2017. In addition, the Forest Service held a public meeting in Duluth, Minnesota on March 26, 2017, in St. Paul, Minnesota on July 18, 2017, and in Virginia, Minnesota on July 25, 2017, to solicit additional public input. The U.S. Department of Agriculture (USDA) plans on reviewing all pending withdrawal applications to ensure that such actions are consistent with our National priorities. USDA will assess the comments developed through this public process to assist us in the review of this withdrawal . We appreciate your concern and interest in this issue. If you have any questions, please contact Leslie Weldo Deputy Chief for National Forest System, Forest Service at (202) 205?1523. DANIEE i: JIRON Acting Deputy Under Secretary Natural Resources and Environment An Equal Opportunity Enipleyer 218/1 1/291? 22 2185978129 MARCUTTE PAGE Ell fE?ll August 1 i, 2017 Honorable Secretary Sonny Perdue E335: United States Department of Agricolture 113m 1400 Independence Avenue SW ?g?rnatmg Washington, DC 20250 Ms. Connie Cummins Forest Supervisor US Forest Service 8901 Grand Avenue Place Duluth. MN 55 308 Via: Hand Delivery and Electronic Mail at: Member Counties: Re: USPS Mineral Withdrawal Proposal - Scoping Comments and Alternatives; Verrnillion and Rainy Headwaters Watershed of the Superior National Forest Aitkin Dear Secretary Purdue and Ms. Cummins A Cock Attached please find our comments and scoping alternatives for inclusion in the NEPA. Environmental Impact Statement (E15) for the above referenced process. Itasca NCLUCB's alternatives incorporate a lilo-year history of the Superior National Forest, including a detailed summary of public and private land and mineral ownership prepared Koochiching by county land and mineral commissioners. In alternative LNCLUCB requests that the EIS explore the technical basis of the US Forest Lake Service application; demonstrate how the proposed withdrawal ?ts with historical congressionally-mandated withdrawals in the Superior National Forest; and, explore the role of US ForeSt Service in regulating water quality. Lake Of the For alternative 2. NCLUCB proposes that the EIS incorporate consistency-review of the local land-use plans of three counties and the Bots Forte Band ofCht?ppewa Tribe; perform FLPMA required land and mineral inventories; quantify impacts to local economies from mineral and land inholding losses; recommend congressional appropriations to offset Pennington revenue reductions to Minnesota state schools: and, establish in-perpetuity easements to ensure access to valid, existing land and mineral rights. Roseau The attached comments incorporate our recommendations that the EIS and Resource Management Planning processes account for the history of the Superior National Forest, include provisions to ensure ongoing access. and evaluate the need for interagency watershed ?ow permitting with the United States Army Corps of Engineers (USCOE). Thank you in advance for your time spent in consideration of our comments. As a coalition of local governments, we look forward to working with USPS now and for the future in land use planning. Regards, Rich Sve . Chairman vice Chair The Northern Counties Land Use Planning Board The Northern Counties Land Use Planning Board NCL UCB members collectively have land-use planning responsibility.? over 26% of Minnesota '5 land area. dl ofrhe store 'rforest lands. 56% ofMinnesoro lakes. 60% '5 remaining wetlands. and 70% ofoll public lands. "Planning Locally Today for Future Generations" BEFORE THE UNITED STATESDEPARTMENT OF AGRICULTURE Forest Service SUPERIOR NATIONAL MINNESOTA COMMENTS AND TWO ALTERNATIVES FOR NEPA SC OPING AND EIS ANALYSIS Federal Register Vol. 82, No. 9 Friday, January 13, 2017 pg. 4283 and Federal Register Vol.82, No. 70 Thursday, April 13, 2017 By: The Northern Counties Land Use Coordination Board, Minnesota: Aitkjn County Cook County Itasca County Lake County Koochiching County Pennington County Lake of the Woods St. Louis County Roseau County Solution: ?Complex Problems Solved Well? Principal Authors: .R. Carlson Norm Macleod EXECUTIVE SUMMARY Withdrawal of public lands from general access and multiple, productive use is an exception for public land use policy. Controlling statutory law places the technical burden upon applicants to demonstrate how the existing framework of environmental law insufficiently protects the natural environment. At the center of the Federal Land Policy and Management Act (FLPMA) and National Environmental Policy Act (NEPA) lie a hierarchy of principal uses, an emphasis on productive use, a vision for broad access, and the requirement that all Federal decision-making balance human systems and environmental values. The attached NEPA scoping alternatives incorporate a 130-year history of the Superior National Forest, include a detailed summary of public and private land and mineral ownership for three counties, and were prepared in the context of controlling statutes. Each alternative includes reference to the undergirding FLPMA and NEPA authorities, and where applicable, citation to subordinate agency policy manuals or directives has been made. In alternative 1, NCLUCB requests that the EIS explore the technical basis of the US Forest Service application; how the proposed withdrawal might incorporate a congressionally-mandated mining protection buffer strip; and, how the US Forest Service determined its responsibility over water quality when statutes and case law point to jurisdiction over water flow (quantity) only in national forests. For alternative 2, NCLUCB proposes that the EIS process incorporate consistency-review of the local land-use plans of three counties and the Bois Forte Band of Chippewa tribe; perform FLPMA required land and mineral inventories; quantify impacts to local economies from mineral and land inholding losses; recommend congressional appropriations to offset revenue reductions to Minnesota state schools; and, establish in-perpetuity easements to ensure access to all valid, existing rights. I 1 Background - 2 3 4 5 6 7 12 13 14 15 On January 5, 2017 the United States Department of Agriculture, Forest Service (USFS) submitted an application to the Department of Interior, Bureau of Land Management (DOI, BLM) for withdrawal of 234,328 acres of public lands and minerals from the Vermillion and Rainy Headwaters watershed of the Superior National Forest (SNF) in northern Minnesota.1 Included as part of the USFS application were errant mineral withdrawal-area maps issued by USFS on December 5, 2016.2 Concurrent with its holiday activities and in a hastily corroborated effort with the BLM, on December 14, 2016 USFS filed its non-consent for renewal of mineral leases in the SNF,3 and on January 13, 2017 published notice of its intent to prepare an Environmental Impact Statement (EIS).4 During that same 7-week period, BLMs State Director of the Eastern States Office issued her decision5 to deny the SNF mineral leases based upon a March 8, 2016 opinion by the Solicitor of the Interior,6 and on January 19, 2017 BLM published its Notice of Application for Withdrawal and Public Meeting.7 16 17 18 19 20 21 22 23 24 25 BLM’s notification constituted formal agency action, signaling the USFS application was deemed complete, that Federal pre-consultation requirements had been met,8 and that congressionally-mandated notification and consistency-review of state, county and tribal land use plans had been conducted. In response to BLMs notification, on April 17, 2017 NCLUCB filed with the Secretary of Interior notification9 that the USFS application was incomplete, procedurally flawed, and lacking information that could only be gained through consistency review10 processes with local governments. NCLUCB also lodged concern that the application neglected substantive mention of intermingled Federal, state and private surface and mineral holdings, departing from the standards of the Data Quality Act (DQA).11 26 Lead Agency Conflicts and Agency Responsibilities; EIS Alternatives - 27 28 29 30 31 32 Public notice of the USFS withdrawal application initiates a joint agency action between DOI/BLM and USDA/FS, raising questions about which agency is responsible to oversee preparation of an EIS. Because Congress delegated authority to the Secretary of Interior to make conditioned withdrawal decisions for public lands or minerals, the Secretary of Interior has responsibility to ensure the EIS process is conducted in a manner that adequately informs the decision process. NCLUCB has identified what we believe is a conflict of interest; specifically, that USFS is pursuing the minerals withdrawal as an applicant while simultaneously acting as a 8 9 10 11 33 34 1 Application for Withdrawal, Superior National Forest. Cook, Lake and Saint Louis Counties, Minnesota. Kathleen Atkinson, Regional Forester. December 14, 2016. 2 FR Vol. 82, No.12. January 19, 2017. pps 6639. 3 Correspondence. Tomas L. Tidwell of USDA to Neil Kornze, BLM. File Code 2670. December 14, 2016. 4 FR Vol. 82, No.9. January 13, 2017. pps 4282. 5 Record of Decision. United States Department of Interior, Bureau of Land Management, Eastern States Office. Decision; Lease Renewal Application Rejected. Karen E. Mouritsen, State Director Eastern States BLM Office. December 15, 2016. 6 Memorandum. Solicitor Hilary Tompkins of the Department of Interior to the Director, Bureau of Land Management. Twin Metals Minnesota Application to Renew Preference Right Leases. (MNES-01352 and MNES-01353). 7 Ibid. FR Vol. 82 No.12. 8 43 CFR §2310.1-1; 2310.1§(a)(1). 9 Notification of Procedural and Statutory Deficiencies; Request for Cancellation of Withdrawal Application and Immediate Termination of Land Segregation. Stillwater Technical Solutions. April 17, 2017. 10 43 USC §1712 (c)(9). 11 Section 515(a) 3504(d)(1); 3516.11; 66 Federal Register 34489. September 28, 2001. 1 Lead Agency for the EIS. This concern is augmented by the observation that BLM meets all five of the NEPA-implementing criteria for Lead Agencies in 40 CFR §1501.5(c), where USFS marginally meets one). NEPA requires Federal agencies to cooperate with states, tribes and local governments using an interdisciplinary, scientific approach that integrates the natural, social and economic sciences. All reasonable alternatives are to be systematically compared in a side-by-side format in a manner “that will avoid or minimize adverse effects of these actions upon the quality of the human environment.”12 Following closure of the BLM comment window on April 19, the Secretary of Agriculture publicly indicated the NEPA EIS process would be allowed to run its procedural, NEPA course. In the context of that decision, NCLUCB and its member county governments have prepared two alternatives for inclusion in the NEPA scoping process and EIS. Our first alternative, called “No-Action,” is presented in Table 3. For ease of reference, controlling statutes, regulations and other information are linked electronically to our database. 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 Alternative 1 is based upon assumptions, conflicts, technical oversights and problems gleaned from an after-the-fact, backward review of the USFS withdrawal application.13 NCLUCB chose this approach for Alternative 1 because member counties were not afforded the procedurally-mandated, pre-consultation opportunities that would meaningfully contribute to development or vetting of the mineral withdrawal concept. For Alternative II “Full Withdrawal,” NCULCB has identified EIS scoping items that balance human systems with the natural environment, 14 preserve historic and cultural systems,15 provide for community stability, 16 identify intergovernmental land use conflicts,17 avoid or minimize adverse impacts to the human environment, 18 and which contain mitigation measures - including those to the human environment.19 50 51 52 53 54 55 56 57 58 59 12 40 CFR §1500.2(e) Policy. 16 USC §475; 16 USC §481; 16 USC §577b; United States v. New Mexico, 438 US 696 (1978). 14 42 USC §4331 (a). 15 42 USC §4331 (b)(4). 16 36 CFR §221.3(a)(3); See also S. Rept. No. 105.22; 30 Cong. Rec. 984 (1897); The Use Book at 17. 17 40 CFR §1502.16(c). 18 40 CFR §1500.2(e); 40 CFR §1502.1. 1940 CFR §1502.14(f); 40 CFR §1502.16(h). 13 2 TABLE 1 State, Tribal, County and Private Inholdings within the Proposed Withdrawal Area Boundary Saint Louis County, Minnesota20 EIS Scoping Alternative 2: Full Withdrawal Inholding Type Surface Estate Lands OWNER US Forest Service Bois Forte of Chippewa State of Minnesota St. Louis County Private Lands United States Subsurface Mineral Estate and Active Mineral Leases State of Minnesota State of Minnesota State of Minnesota State of Minnesota State of Minnesota Privately-Owned, Revenue Producing Assets Gravel Mining TOTALS Preexisting Utility Infrastructure Corridors Roadways requiring inperpetuity easements Varies DESCRIPTION Federal Surface Estate Inholdings Tribal Nation Surface Inholdings State Surface Estate Inholdings County Tax Forfeited Surface Inholdings Private Surface Estate Inholdings Subsurface Mineral Estate Inholdings Minnesota School Trust Mineral Estate Inholdings Swamp Trust Mineral Estate Inholdings Tax Forfeited Mineral Estate Inholdings21 Active Mineral Leases Active Mineral Leases - Tax Forfeited Privately Owned, Recreation Cabins Revenue Producing Operations 63,039 acres 172 acres 21,667 acres 16,963 acres 46,288 acres 34,295 acres 12,400 acres 12,600 acres 38,765 acres 5,596 acres 1,908 acres 9 sites St. Louis County 10 sites Publicly Owned Gravel Operations Total Surface area of the proposed USFS withdrawal area is 589,070 acres. The total area of the proposed USFS withdrawal area within the St. Louis County is 148,759 acres. Fiber Optic Lines 24 miles Varies Critical infrastructure - High Voltage Electric Transmission Lines Electric Sub Transmission Lines 12 miles 164 miles Electric Distribution Lines 36 miles Underground Electric Power Lines 51 miles State of Minnesota; United States State and US Highways 61 miles St. Louis County County and Township Roads 86 miles 60 20 As 21 AREA (Acres) determined by the Saint Louis County Land and Minerals Commissioner. More research is needed to verify State tax forfeited mineral ownership for many of these parcels. 3 TABLE 2 State, County and Private Inholdings within the Proposed Withdrawal Area Boundary Lake County, Minnesota22 EIS Scoping Alternative 2: Full Withdrawal Inholding Type Surface Estate Lands OWNER US Forest Service State of Minnesota Lake County Private Lands United States State of Minnesota Subsurface Mineral Estate and Active Mineral Leases State of Minnesota State of Minnesota State of Minnesota TOTALS Preexisting Utility Infrastructure Corridors DESCRIPTION Federal Surface Estate Inholdings State Surface Estate Inholdings County Tax Forfeited Surface Inholdings Private Surface Estate Inholdings Subsurface Mineral Estate Inholdings Minnesota School Trust Mineral Estate Inholdings Swamp Trust Mineral Estate Inholdings Tax Forfeited Mineral Estate Inholdings23 Industrial Mineral Leases: Non-ferrous Mineral Leases: Varies Critical infrastructure - High Voltage Electric Transmission Lines 3,075 acres 63,182 acres 34,411 acres 17,671 acres 45,079 acres 16,169 acres 237 acres 11,983 acres 16 miles 36 miles United States US Forest Service State of Minnesota State Parks 38 miles Lake County CSAH 54 miles Lake County County 12 miles Lake County, Tsp Township 14 miles Private Roadways 398 miles 33 miles Other 61 22 As 23 279,883 acres 55,979 acres Total, Active State Mineral Leases in 12,220 acres Lake County: State of Minnesota 1,908 acres Active Mineral Leases - Tax Forfeited Total Surface area of the proposed USFS withdrawal area is 589,070 acres. The total area of the proposed USFS withdrawal area within the Lake County jurisdiction is 421,146 acres. State of Minnesota Roadways AREA determined by the Lake County Land and Minerals Commissioner. More research is needed to verify State tax forfeited mineral ownership. 4 6 miles The Northern Counties Land Use Coordinating Board Noam NCLUCB Table 3 EIS Scoping Process Issue Identification, Authorities and Analysis Alternative I: No Action Description, Issue or Conflict EIS Scoping Action Agency In its withdrawal application, USFS purports a responsibility for management of Quality of the water The EIS should identify and publish the scope of USFS responsibilities in the Superior 40 CFR ?1501.21cl RESPONSibilities flowing into the Boundary Waters Canoe Area Wilderness (BWCAW) and the Boundary Waters National Forest in the context of their application for mineral withdrawal. Mining Protection Area (MPA): ..could lead to irreversible impacts upon natural resources and therefore, render the Forest Service Alternative II, "Statutory Evolution of the Superior National Forest for additional detail. unable to meet the purposes for the designation of the BWCAW and the MPA specified by Sec. 2 of Pub. L. 95-495, 92 Stat. 1649 (1978). By contrast, congressional mandates and relevant case law limit the sphere of USFSs responsibility to management of surface water flow that is quantity as well as to ensure a continuous supply of merchantable timber: "No national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber. Conflicts with In 1978, the 95th US Congress withdrew the 1,075,500 acre Boundary Waters Canoe Area Wilderness Boundary Waters Canoe EXiStinE Law; (BWCAW) and the Boundary Waters Mining Protection Area (MPA) for management under the Area Wilderness and the Federal Land Policy and Management Act (FLPMA). Boundary Waters Mining Primacy by Protection Area Executive The MPA IS a narrow surface and subsurface buffer strIp that geographically surrounds and phySIcally Agencies separates the BWCAW from the public lands of the Superior National Forest, leaving those lands for Pub. L. 95-495 continued management of the principal uses of domestic livestock grazing, fish and wildlife 92 Stat. 1649 Congressionally development and utilization, mineral exploration and production, rights-of-way, outdoor recreation 43 USC ?1702[c] Mandated and timber production.? [43 usc ?1702 43 usc ?1702 43 USC 1702 I Boundaries The occurrence of the MPA buffer mandate in the BWCAW public land set aside presents the intent of Congress in resolving what mineral withdrawals and mining protections are necessary and appropriate for the Superior National Forest. The proposal by USFS to withdraw additional land and minerals from public access inappropriately seeks to modify boundaries already legislated into law by Congress. Thus, it places the technical burden on USFS to demonstrate the necessity for the withdrawal and why the original law insufficiently protects the BWCAW area. EIS SCOPING PROCESS ALTERNATIVE I: NO ACTION NORTHERN COUNTIES LAND USE COORDINATING BOARD The Northern Counties Land Use Coordinating Board Nuancm . NCL CB lfnui'i'fc - Coordinating Boa?! Sullmam ?lculmml Table 4 EIS Scoping Process Issue Identification, Authorities and Analysis Alternative II: Minerals Withdrawal Appropriations for Discretionary Withdrawals; Early Cancellation Review Consistency Review; Incorporation of Bois Forte of Chippewa Tribal Land Use Issues in Scoping Process Inventory and Loss Quantification of State Owned, School Trust Leases, Lands and Minerals: Saint Louis County; Errors on USFS Appendix A Maps The executive branch of the Federal government is reviewing the size, scope and activities of executive-branch agencies with an objective to reduce the national debt, lower cost of government to the American taxpayer, and to increase the overall effectiveness of administrative agencies. The EIS scoping process should apply responsible ?scal management by ?rst estimating the total cost of the discretionary withdrawal proposal and the associated revision of the Resource Management Plan (RMP). The Secretary of Interior should be given the opportunity, as prescribed in BLMs administrative regulations at 43 CFR ?2310.1-4, to determine if appropriations will even be available for USFS and BLM to complete the discretionary EIS and 2- year withdrawal program. The NEPA?implementing, CEQ Regulations require, at the beginning of the scoping process, the Secretary to invite the Bois Forte Band of Chippewa Tribe and Cook, Lake and Saint Louis County governments to participate in the land use planning process. 40 CFR ?1501.7 For its part, the EIS is required to document - in a side?by?side, comparative format - conflicts between the proposed withdrawal action and policies of the land use plans of all local governments in the withdrawal area. The EIS must document inconsistencies, how they were mutually resolved, and the potential consequences and conflicts to each local government unit resulting from the minerals withdrawal proposal. 40 CFR The Saint Louis County Land Commissioner has identified 5,596 acres of active, state-owned, mineral leases; 12,400 acres of Minnesota School Trust mineral holdings; 12,600 acres of State Swamp Trust mineral holdings; and 68 private and public parcels in which the underlying mineral ownership remains in question. Other issues identified on the USFS Appendix A land list published in the Federal Register include missing Township and Range information and ambiguous legal descriptions. These errors and inconsistencies between county and Federal surface and subsurface mineral and land ownership must be resolved as part of the EIS scoping process in order for accurate studies to be performed. The Secretary is required to inventory pre-existing mineral ownership, mining claims, and other interests [43 USC ?1711; 43 USC ?1714(c)] and estimate compensation due state and local governments for state-owned minerals proposed for withdrawal under the USFS proposal [43 USC Similarly, the EIS must identify, inventory and evaluate the potential for state trust lands to be landlocked by withdrawal proposal, and both the EIS and RMP must contain substantive mitigation recommendations to ensure in perpetuity access (43 USC ?1761) is maintained across all lands proposed for withdrawal. The EIS must: 1) compare all withdrawal alternatives and calculate the impact to the quality of the state and county school system [40 CFR and 2) Include methods to minimize adverse impacts to taxpayers (40 CFR ?1502.23). Mitigation measures must be evaluated and published [40 CFR 40 CFR All EIS SCOPING PROCESS ALTERNATIVE ll: MINERALS WITHDRAWAL 43 USC ?1734lbl 43 USC ?1712lc[19i USC 1711 43 USC ?1714lcl 43 USC ?1761 43 CFR ?2310.1-4 40 CFR ?1501.7 40 CFR ?1502.16ch 40 CFR ?1506.2ld 43 CFR 16103-1 40 CFR 1500.2 40 CFR 1501.2lal 40 CFR 1502.1 40 CFR 1502.14lfl 40 CFR 1502.16lhi 40 CFR 1502.23 EO 13781 OMB Directive M-17-22. Response of Local Government to President?s Reorganization Plan. EO 13352 3 Consolidated Appropriations Act of 2001 ?515 (Data Quality Actl. Correspondence. Saint Louis County Land Commissioner to Mr. Jim Carlson. August 9, M- NORTHERN COUNTIES LAND USE COORDINATING BOARD information for Federal decision-making must be high-quality, have utility, be complete, reproducible, accurate and available to the general public. (Consolidated Appropriations Act of 2001 {7515 (Data Quality Act)). Inventory and Loss The Lake County Land Commissioner has identified 12,220 acres of active, state-owned, mineral leases (of which 237 acres 16 USC 528 40 CFR 1500.2 EO 13352 3 Quantification of State are industrial minerals, and 11,983 acres are non-ferrous minerals); 17,671 acres of Minnesota School Trust mineral 16 USC 531 40 CFR 1501.2(a) Consolidated Aggrogriations Owned, School Trust holdings; 45,079 acres of State Swamp Trust mineral holdings and 16,169 acres in tax-forfeited mineral ownership. 43 USC snouannl 40 CFR 1502.1 Act of 2001 ?515 (Data Leases? Lands and The Secretary is required to inventory pre-existing mineral ownership, mining claims, and other interests [43 USC ?1711; 43 USC 1711 40 CFR 1502'? QW- Minerals: Lake county 43 USC ?1714(c)] and estimate compensation due state and local governments for state?owned minerals proposed for 43 USC ?1714(c) WM Correspondence. Lake County withdrawal under the USFS proposal [43 USC Similarly, the EIS must identify, inventory and evaluate the 43 USC ?1761 Land Commissioner to Mr. Jim potential for state trust lands to be landlocked by withdrawal proposal, and both the EIS and RMP must contain W- substantive mitigation recommendations to ensure in perpetuity access (43 USC ?1761) is maintained across all lands proposed for withdrawal. The EIS must: 1) compare all withdrawal alternatives and calculate the impact to the quality of the state and county school system [40 CFR and 2) Include methods to minimize adverse impacts to taxpayers (40 CFR ?1502.23). Mitigation measures must be evaluated and published [40 CFR 40 CFR All information for Federal decision-making must be high-quality, have utility, be complete, reproducible, accurate and available to the general public. (Consolidated Appropriations Act of 2001 5515 (Data Quality Act)). Strategic and Critical The Lake and St Louis Land and Mineral Commissioners have identified a total 28 miles of high voltage transmission lines 115 STAT. 272 PUBLIC 40 CFR ?1501.7(all5l Infrastructure that interconnect a 225 megawatt, coal fired power station with the national grid. According to the Patriot Act and LAW 26, 40 CFR ?1502.14(f) Department of the Homeland Security, the Minnesota Power, Taconite Harbor Power Station and the transmission lines 40 CFR ?1502.16(e) that transect the proposed mineral withdrawal area can be de?ned as federally protected, critical infrastructure. As a 42 USC E4331(b?3) 40 CFR ?1502.16(g) result, the EIS and RMP must include impact analysis, forest maintenance and management protocols, and provisions to 40 CFR ?1508.8(b) include protection and future expansion potential of the electrical transmission system and its associated corridors. The EIS must include a direct and indirect evaluation of the consequences to the human environment if the withdrawal could 43 USC 1763 affect permitting, corridor expansion, or maintenance practices. note 43 USC 1701 Sec. 701 note In its policy directive in FLPMA Title I, the 94th US Congress stated the objective for public lands was to ensure productivity 16 USC 528-531 40 CFR ?1500.2 and ongoing access in a way that serves the interest of human systems and results in the increase of the economic productivity of the United States. Care and preservation of the environment is to take place within the context of 43 USC ?1702m W1) productivity, and this principle is adhered to throughout both FLPMA and NEPA. 43 USC ?1714mm 40 CFR ?1501.2(b) Congress defined llMultiple Use? as l'the management of the public lands and their various resource values so that they are W9- utilized in the combination that will best meet the present and future needs of the American people.? Similarly, the term 40 CFR 150223 "principal or major uses? includes, and is limited to, domestic livestock grazing, ?sh and wildlife development and utilization, mineral exploration and production, rights-of-way, outdoor recreation, and timber production. In administering the doctrine of Multiple Use and Sustained Yield, USFS and BLM are to prioritize multiple use and access to public lands over withdrawal and sequestration. This effectively places the burden upon the applicant in this case, USFS to demonstrate: 1) How the existing framework of environmental regulations insufficiently protects the natural environment; 2) How, from a technical perspective, the threat to the natural environment from mineral exploration/extraction sufficiently outweighs higher-order principal uses such that the withdrawal of public lands from productive use becomes necessary; and 3) Why the 1978 congressional withdrawal of the Boundary Waters Canoe and Wilderness Area requires expansion. EIS SCOPING PROCESS ALTERNATIVE ll: MINERALS WITHDRAWAL NORTHERN COUNTIES LAND USE COORDINATING BOARD Inventory of Highway and Road Access Corridors; In perpetuity Easements to Private Inholdings: Saint Louis County Inventory of Highway and Road Access Corridors; In perpetuity Easements to Private Inholdings: Lake County Statutory Evolution of the Superior National Forest; Boundary Inventory Required to Distinguish Management Jurisdictions; USFS Responsibility for Water Flow Limited; Consultation with US Army Corps of Engineers During EIS and RMP Required. In establishing the FLPMA criteria for land and mineral withdrawals of greater than 5,000 acres, the Congress codi?ed a 12? point criteria checklist for implementation by the Secretary. 43 USC ?1714(c)(2). These criteria formulate the required scope of studies, activities and analysis to be utilized in preparation of the EIS and RMP, review by the Secretary, and in noti?cation of the Congress. The Saint Louis County Land Commissioner has identified 21,667 acres of state-owned surface land, 16,963 acres of county-managed surface land, 46,288 acres of privately-owned surface land, and 172 acres of Bois Forte Band of Chippewa Native-American tribal land in the proposed withdrawal boundary. The Federal Land Policy Management Act (FLPMA) requires that the Secretary "ascertain the boundaries of public and "provide State and local governments with data from the inventory for the purpose of planning and regulating the uses of non-federal lands in proximity of such public lands." 43 USC ?1711(b). Similarly, FLPMA authorizes both the Secretaries of Interior and Agriculture to grant rights-of?way for transportation purposes. 43 USC ?1761(6). To ensure protection of valid existing rights and permanent access to landlocked inholdings, a boundary inventory of all stranded inholdings must be performed as part of the EIS, and a long-term, property-access mitigation plan included in the RMP which grants in perpetuity easements. The Lake County Land Commissioner has identified 55,979 acres of state-owned surface land, 3,075 acres of county- managed surface land, and 63,182 acres of privately?owned surface land in the proposed withdrawal boundary. The Federal Land Policy Management Act (FLPMA) requires that the Secretary "ascertain the boundaries of public and "provide State and local governments with data from the inventory for the purpose of planning and regulating the uses of non-federal lands in proximity of such public lands." 43 USC ?1711(b). Similarly, FLPMA authorizes both the Secretaries of Interior and Agriculture to grant rights-of-way for transportation purposes. 43 USC ?1761(6). To ensure protection of valid existing rights and permanent access to landlocked inholdings, a boundary inventory of all stranded inholdings must be performed as part of the EIS, and a long-term, property-access mitigation plan included in the RMP which grants in perpetuity easements. The complex history of land ownership and overlapping regulatory responsibilities within the boundaries of the Superior National Forest and proposed withdrawal area require careful and informed consideration during the EIS and RMP. The Timber and Stone Act of 1878 was a Congressional response to the belief that forest lands were best managed as private property, and it provided for the sale of public lands to private individuals. was extended to Minnesota in 1892 at about the same time the Federal government began withdrawing forested lands as national forest reserves under the provisions of the Forest Reserve Act of 1891. Lands sold to the public under the provisions of the conveyed to the purchaser three separate rights: 1) Timber rights, 2) Surface land rights, and 3) Subsurface rights. The lands that were reserved under the Forest Reserve Act of 1891 were the start of what became the Superior National Forest. The Forest Service Organic Administration Act of 1897 provided the initial statutory basis for the management of the forest reserves under the Department of Interior, until that responsibility was transferred to the Department of Agriculture by the Transfer Act of 1905. The terms "forest reservations? and "reservation" were changed to "national forests? and "national forest,? respectively, under the authority of the Transfer Act of March 4, 1907, 34 Stat. 1269. Throughout the statutory history of the Superior National Forest and up to the present, the State of Minnesota has never ceded its jurisdiction over surface and subsurface inholdings incorporated within the national forest. Forest practices of the time were not as well managed as they are today. The consequent damage to the lands that had been deforested and sometimes abandoned led the public to believe it would be better for the government to reacquire lands that had been sold under the Timber and Stone Act. Thus, the Weeks Act of 1911 was the response from Congress. EIS SCOPING PROCESS ALTERNATIVE ll: MINERALS WITHDRAWAL Authorities 43 USC ?1711?bl 43 USC ?1761?6 43 USC ?1711?bl 43 USC ?1761?USC ?500 16 USC ?515 USC Q1712?cl?4l 43 USC ?1714lcl12l12l 40 CFR ?1508.20 40 CFR 1508.20 The Impact of the Timber and Stone Act on Public Land Ownership in Northern Minnesota 33 CFR Part 209 36 CFR Part 254 40 CFR ?1502.25[b United States v. New Mexico. 438 US 69611978}. NORTHERN COUNTIES LAND USE COORDINATING BOARD The Weeks Act established the National Forest Reservation Commission, whose mission was to re-purchase private lands for inclusion in the National Forest system. A Superior National Forest purchase unit was formed in 1926, and that commission began purchasing land to add to the Superior National Forest. Maps showing Weeks Act units in and 1936 show how extensive those purchases were. It is essential that the inventory and boundary mapping required of the Secretary under the Federal Land Policy and Management Act (FLPMA) distinguish between Forest Service lands acquired through the provisions of the Forest Reserve Act of 1891, land exchanges with the state or private property owners, purchases or donations from private property owners that are not related to the Weeks Act, and Weeks Act purchases, because of a key inconsistency between the Weeks Act and other acquisition statutes. The results of the inventory must be reported in the EIS, and the differing management requirements distinguished in the RMP. 16 USC ?475 codi?es the Organic Act of 1897 that, among other provisions, mandates that the Forest Service manage its holdings . . for the purpose of securing favorable conditions of water ?ows . . for its part, 16 USC ?515 codi?ed the Weeks Act, requiring the Secretary of Agriculture to prioritize the purchase of lands in the watersheds that may be necessary to the regulation of the ?ows for navigation management. In US v. New Mexico, the Supreme Court of the United States affirmed that it was the intent of Congress that USFS manage watersheds in the Superior National Forest for water guantigI and this to ensure stable baselineI flows. Because the statutory record and relevant caselaw is silent with respect to the responsibility of USFS over water quality or groundwater management, a reasonable conclusion is that agency has no iurisdictional responsibility over management, permitting or regulation of water quality, which is the basis of their application for withdrawal. The Weeks Act mandate to purchase lands for regulation of water flow, and the US Army Corps of Engineers, (USACE) responsibility for navigability establishes a nexus between USFS and USACE as USACE has jurisdiction over flow emanating from responsible forest management. As part of the EIS and RMP, coordination with USACE is required to calculate flow and obtain permits for the various watershed points within the boundaries of the Superior National Forest - including the proposed withdrawal area. Managing for water ?ows must include active management, which includes periodic stand thinnings and the harvest of mature stands of timber. Passive management leads to the overgrowth of timber stands, which reduces water flows to streams. Active management means the building of roads, which are needed to access the mineral estate as part of forest road building and maintenance operations. This inconsistency with the purposes of the proposed withdrawal needs to be resolved as part of the EIS process. EIS SCOPING PROCESS ALTERNATIVE ll: MINERALS WITHDRAWAL NORTHERN COUNTIES LAND USE COORDINATING BOARD ATTACHMENT A: 0 August 9, 2017 Saint Louis County Land and Minerals Data Letter LOUIS Saint Louis County Land and Minerals Dept. - - Mark Weber Land Commissioner August 9, 2017 Mr. Jim Carlson Technical Solutions PO Box 93 Garden City, KS 67846 Dear Mr. Carlson This letter is in response to your request to review St. Louis County land records as they relate to the proposed withdrawal of approximately 248,328 acres of federally owned minerals within the Superior National Forest. The following data was compiled from existing county, state and federal GIS databases. Federal Holdings: 0 The total surface area enclosed within the boundary of the proposed federal mineral withdrawal is approximately 589,070 acres. The total enclosed surface area within St. Louis County is approximately 148,759 acres. 0 The US. Forest Service has surface holdings of approximately 63,039 acres within the boundary in St. Louis County. 0 There are approximately 34,295 acres of federally owned minerals within the boundary in St. Louis County. Tribal Government Holdings within the Federal Mineral Withdrawal Boundary in St. Louis County: 0 The Bois Forte Band of Chippewa has surface holdings of approximately 172 acres. State of Minnesota Holdings within the Federal Mineral Withdrawal Boundary in St. Louis County: 0 The State of Minnesota has surface holdings of approximately 21,667 acres. 0 The State of Minnesota has School Trust mineral holdings of approximately 12,400 acres, and Swamp Trust mineral holdings of approximately 12,600 acres. St. Louis County Holdings within the Federal Mineral Withdrawal Boundary: 0 St. Louis County manages approximately 16,963 acres of State Tax Forfeited land. 0 The State of Minnesota has identi?ed approximately 38,765 acres of mineral ownership that may have a tax forfeited mineral interest.l 1 More research is needed to verify State tax forfeited mineral ownership for many of these parcels. Land Commissioner?s Of?ce El Pike Lake Area Of?ce El Virginia Area Office 320 West Street. 680 208 5713 Old Miller Trunk Hwy 7820 Highway 135 Duluth, MN 55802 Duluth, MN 55811 Virginia. MN 55792 (21 8) 726-2606 (21 8) 625-3700 (21 8) 742.9898 Fax: (218) 726-2600 Fax: (218)625-3733 Fax: (218) 742-9870 'Tmst Lands, Managed For The People Of This County" Private Holdings within the Federal Mineral Withdrawal Boundary in St. Louis County: I There are approximately 46,288 acres of private surface ownership. 0 Forest Service document Appendix A (Land List for Proposed Superior National Forest Mineral Withdrawal Fee Simple Lands) does not list any parcels having private surface with federal mineral ownership in St. Louis County. Appendix A is missing a Township and Range heading on page 26 making it dif?cult to compare surface and mineral ownership. Also, ambiguous legal descriptions in Appendix A made it dif?cult to locate the listed parcels and demonstrate their impact. As a result, 68 privately and publically owned surface parcels totaling 246 acres were identi?ed in which the underlying federal mineral ownership is uncertain. 0 St. Louis County land records indicate there are two parcels totaling 40 acres having privately owned surface overlying federally owned minerals. State Mineral Leases within the Federal Mineral Withdrawal Boundary in St. Louis County: 0 The State of Minnesota has identi?ed approximately 5,596 acres of active State mineral leases and approximately 1,908 acres of active State Tax Forfeited mineral leases.2 Utility Corridors within the Federal Mineral Withdrawal Boundary in St. Louis County: 0 There are approximately 24 miles of ?ber optic lines. 0 There are approximately 164 miles of primary overhead; 36 miles of secondary overhead; and 51 miles of underground electrical power lines. 0 There are approximately 12 miles of high voltage transmission lines. Easements within the Federal Mineral Withdrawal Boundary in St. Louis County: 0 The Land and Minerals Department has issued approximately [0 miles of easements across State Tax Forfeited land. I- St. Louis County found no data for county road right?of?way easements. Roads within the Federal Mineral Withdrawal Boundary in St. Louis County: I There are approximately 61 miles of US and State highways. 0 There are approximately 86 miles of County and Township roads. Water Rights within the Federal Mineral Withdrawal Boundary in St. Louis County: 0 St. Louis County found no data on riparian water rights. Revenue Producing Operations within the Federal Mineral Withdrawal Boundary in St. Louis County: I St. Louis County has identi?ed 10 publically owned gravel pits. - St. Louis County is planning to harvest approximately 15 acres of State Tax Forfeited land over the next 10 years. 0 St. Louis County has 9 active Recreation Cabin Leases. Please note that this report was compiled from existing spatial data located in various county, state and federal of?ces, and St. Louis County is not responsible for any inaccuracies contained herein. Please let me know if you have any questions or if further actions are needed to ful?ll St. Louis County?s data request. 2 2012 State of MN data. Sincerely, Mommies, Mark Weber St. Louis County Land Commissioner ATTACHMENT B: 0 August 4, 2017 Lake County Land and Minerals Data Letter Nate Eide Land Commissioner Forestry/Land Dept. Mailing Address Lake County Courthouse 601 3rd Ave Two Harbors, MN 55616 Office Phone: 218-834-8340 Email: nate.eide@co.lake.mn.us August 4, 2017 Mr. Jim Carlson Stillwater Technical Solutions PO Box 93 Garden City, KS 67846 Dear Mr. Carlson This report is in response to your request to review Lake County land records as they relate to the proposed withdrawal of approximately 248,328 acres of federally owned minerals within the Superior National Forest. Federal Holdings: • The total surface area enclosed within the boundary of the proposed federal mineral withdrawal is approximately 589,070 acres. The total enclosed surface area within Lake County is approximately 421,146 acres. • The U.S. Forest Service has surface holdings of approximately 279,883 acres within the boundary in Lake County. • The Bureau of Land Management has mineral holdings of approximately 188,858 acres within the boundary in Lake County. Tribal Government Holdings within the Federal Mineral Withdrawal Boundary in Lake County: • None State of Minnesota Holdings within the Federal Mineral Withdrawal Boundary in Lake County: • The State of Minnesota has surface holdings of approximately 55,979 acres. • The State of Minnesota has School Trust mineral holdings of approximately 17,671 acres, and Swamp Trust mineral holdings of approximately 45,079 acres. Lake County Holdings within the Federal Mineral Withdrawal Boundary in Lake County: • Lake County manages approximately 3,075 acres of State Tax Forfeited land. • The State of Minnesota has identified approximately 16,169 acres of mineral ownership that may have a tax forfeited mineral interest.1 1 More research is needed to verify State Tax Forfeited mineral ownership. Private Holdings within the Federal Mineral Withdrawal Boundary in Lake County: • There are approximately 63,182 acres of private surface ownership. • Lake County is not aware of any parcels having private surface with federal mineral ownership. Mineral Leases within the Federal Mineral Withdrawal Boundary in Lake County: • The State of Minnesota has identified approximately 12,220 acres of active mineral leases. 237 acres of these are industrial mineral and 11,983 acres are non-ferrous. Utility Corridors within the Federal Mineral Withdrawal Boundary in Lake County: • There are approximately 16 miles of High Voltage lines Easements within the Federal Mineral Withdrawal Boundary in Lake County: • Readily available data is not available for county road right-of-way easements. Roads within the Federal Mineral Withdrawal Boundary in Lake County: Road Type Unknown State CSAH County Township UT Nat. Forest State Forest/Park State Forest/Park Private County Forest Sum Miles 3 36 54 12 14 2 398 37 1 33 1 591 Revenue Producing Operations within the Federal Mineral Withdrawal Boundary in Lake County: • Lake County has identified approximately 5 gravel pits (2 county, 1 private, 1 state, 1 federal) • There are 12 Recreation Cabin Leases with structures. Tax Revenue within the Federal Mineral Withdrawal Boundary in Lake County: • The annual tax revenue from the parcels within the Withdrawal Boundary in Lake County in 2017 is $2,621,051 Please note that this report was compiled from existing spatial data located in various county, state and federal offices, and Lake County is not responsible for any incorrectness herein. Please let me know if you have any questions or if further actions are needed to fulfill Lake County’s data request. Sincerely, Nate Eide Lake County Land Commissioner ATTACHMENT C: 0 July 31, 2017 Cook County Land and Minerals Data Letter COOK COUNTY LAND SERVICES TIM NELSON DIRECTOR LISA KERR - LAND PARKS TRAILS DIRECTOR 411 W. 2ND ST GRAND MARAIS, MN 55604 Phone (218) 387-3654 Fax (218) 387-3042 e-mail: lisa.kerr@co.cook.mn.us Cook Count MINNESOTA A July 31, 2017 Jim Carlson Stillwater Technical Solutions PO Box 93 6505 South Highway 83 Garden City, KS 67846 (620) 260-9169 icarlson@wbsnet.org Re: County Land~Data Request Dear Mr. Carlson As Cook County Land Commissioner have worked through your information request with the following results. The area of the USFS Withdrawal Application in Cook County is all owned by the Federal Government under the name of United States of America or USFS Superior National Forest with a total acreage of 11, 457.27. Within the USFS Withdrawal area there is 5 miles of Perent Lake Rd, which is a County Rd with an Public Road Easement dated 4-1~1993 with verbiage that the covenant shall attach to and run with the land. There is an old Federal Gravel Pit, labeled on the map, no longer in operation. There are two Severed Mineral interests within the USFS Withdrawal area with each being 80 Acres. One Severed Mineral Interest is in private ownership, RGGS Lands Minerals LTD LP, and the other is Cook County Tax Forfeit, also labeled on the map. Cook County contains roughly 92% publicly owned lands encompassing Federal, State, County and City ownerships. The area directly surrounding the USFS Withdrawal Area is Federally owned, with nearby State land holdings as well. These ownerships are designated on the map using numeric coding. The map identifies the boundary of the USFS Withdrawal Area, between Lake and Cook Counties as well as the boundary of the BWCAW(Boundary Waters Canoe Area Wilderness) that starts just north of the USFS Withdrawal Area. Any information not provided does not exist or pertain to Cook County for this data request. I hope the information provided here is sufficient to fulfill your data request. Please let me know if there are questions or further actions needed to fulfill Cook County?s data request. Rega rds, Lisa Kerr Cook County Land Commissioner/Parks Trails Director ATTACHMENT D: Bois Forte Band of Chippewa Tribal Land Data Report Tribal Lands Within Federal Withdrawal Boundary 030-0010-01770 030-0298-00040 030-0298-00050 030-0298-00080 030-0298-00010 030-0298-00020 030-0298-00030 030-0298-00060 030-0298-00070 465-0010-04380 465-0010-04440 465-0040-03530 Sum ACR E5 OWNAME BOIS FORTE BAND OF CHIPPEWA BOIS FORTE BAND OF CHIPPEWA BOIS FORTE BAND OF CHIPPEWA BOIS FORTE BAND OF CHIPPEWA BOIS FORTE BAND OF CHIPPEWA BOIS FORTE BAND OF CHIPPEWA BOIS FORTE BAND OF CHIPPEWA BOIS FORTE BAND OF CHIPPEWA BOIS FORTE BAND OF CHIPPEWA BOIS FORTE BAND CHIPPEWA BOIS FORTE BAND CHIPPEWA BOIS FORTE BAND CHIPPEWA 171914044 TOWNSHIP RANGE 0 62 62 63 Page 1 Ofl 12 12 13 SECTION BLOC PLDE SC 0 0000 0 0004 0 0005 0 0002 0 0001 0 0002 0 0003 0 0006 0 0001 30 31 23 015 001 001 002 001 001 001 001 002 ELY TOWER VIEW ESTATES OF ELY TOWER VIEW ESTATES OF ELY TOWER VIEW ESTATES OF ELY TOWER VIEW ESTATES OF ELY TOWER VIEW ESTATES OF ELY TOWER VIEW ESTATES OF ELY TOWER VIEW ESTATES OF ELY TOWER VIEW ESTATES OF ELY MORSE MORSE MORSE LEGAL ALL OF LOT 9 LOT 4 BLOCK 1 LOT 5 BLOCK 1 LOT 2 BLOCK 2 LOT 1 BLOCK 1 LOT 2 BLOCK 1 LOT 3 BLOCK 1 LOT 6 BLOCK 1 LOT 1 BLOCK 2 LOT 4 LOTS 2 3 LOT 8 ACRES 0.074554 0.578099 0.723991 0.412416 0.64116 4.998413 0.638302 0.909486 0.432099 58.776611 101.419319 2.309593 Northern Land Ust? Coordinating I- Board Dear Honorable Secretary Zinke: Member ('uuntics The Northern Counties Land Use Coordinating Board (NCLUCB) of Minnesota is submitting the enclosed report entitled Notification of Procedural and Statutory De?ciencies; Request for Cancellation of Withdrawal Application and Immediate Termination of Land Segregation as part of the Bureau of Land Management?s (BLM) (.WL Cum?. land withdrawal comment process. NCLUCB speci?cally is requesting that the Secretary of Interior to cancel the December 14, 2016 application for land withdrawal by Kathleen Atkinson, Regional Forester of the United States Department of Agriculture, Forest Service, and to terminate the segregation of 234,328 acres of lands set aside in three NCLUCB Lake (mum member counties. Count} Knochiching ('ounty The justification and rationale for this request is found in the attached document. Luke til the ()0th Federal law governing withdrawals of public lands contains speci?c, preconsultation and consistency?review responsibilities that agencies must ful?ll with local governments, prior to initiation of the withdrawal process. None of our members have Pennington ('uunty received meaningful contact from the agencies during the current action. The Federal Land Policy and Management Act (FLPMA) and Department of Interior mum} Policies are clear that authority to oversee land withdrawal processes must reside with the Secretary of Interior, oversights that have not been met and continue as transition occurs into the Trump administration. 81. Imm The attached comments document numerous procedural, teclmical and regulatory issues surrounding the proposed land withdrawal and process, and support our request for the current Secretary of the Interior to terminate the current withdrawal process and determine what further actions, if any, need to be taken. With this transmittal we are requesting to meet with the Secretary or an appropriate, signatory-level Department of Interior Deputy to review the details of our findings. Regards?) a Chairman The Northern Counties Land Use Coordinating Board "Planning.- Locally Today for Future Carnations" Nullmu Counties l. and list? Coordinating April 17, 2017 Honorable Ryan Zinke Secretary, Department of Interior 1849 Street NW, Mail Stop 7328 Washington, DC 20240 Katherine MacGregor Deputy Assistant Secretary for Land and Minerals Management 1849 Street NW Washington, DC 20240 Michael D. Nedd Acting Director, Bureau of Land Management 1849 Street NW, Room 5665 Washington, DC 20240 Edward T. Keable Deputy Solicitor, Department of Interior 1849 Street NW, Mail Stop 6456 Karen E. Mouritsen Bureau of Land Management State Director, Eastern States Of?ce 20 Street SE Suite 950 Washington, DC 20003 Kathleen Atkinson Regional Forester, Eastern Region 626 East Wisconsin Avenue Milwaukee, WI 53202 Deputy State Director of Geospatial Services Bureau of Land Management Eastern States Of?ce 20 Street, Suite 950 Washington, DC 20003 Re: Notice of Application for Withdrawal and Noti?cation of Public Meeting; Minnesota MNES 058247 Via: Federal Express, fax and electronic copy Report Transmittal: Noti?cation ofProcedural and Statuton Deficiencies: Request/or Cancellation of Withdrawal Application and Immediate Termination ofLanrl Segregation. \lt'en (chimes (imlx (Hunt, lxt?mciu-t line-g (hum; Lakct Mimi. .il~ a" duds l?rinan sjlul? nunl?x Roscau mint}. 5? lli ,tl\ 'n my BEFORE THE DEPARTMENT OF INTERIOR Bureau of Land Management NOTICE OF APPLICATION FOR WITHDRAWAL AND NOTIFICATION OF PUBLIC MEETING: MINNESOTA NMES-OS 8247 Federal Register Vol. 82, No. 12 Thursday, January 19, 2017 pg. 6639 Notification of Procedural and Statutory Deficiencies; Request for Cancellation of Withdrawal Application and Immediate Termination of Land Segregation By: Northern Counties Land Use Coordination Board, Minnesota: Aitkin County Cook County Koochiching County Lake County Lake of the Woods Pennington County Roseau County St. Louis County l?ecluncal Solutions ?Complex Problems Solved Well? Principal Authors: .R. Carlson Norm Macleod EXECUTIVE SUMMARY Federal statutes for withdrawal of public lands contain specific requirements governing delegation, procedures for preapplication consultation with local governments, and minimum technical and information standards. Stillwater Technical Solutions (STS) conducted a statutory, procedural and regulatory analysis of a mineral land withdrawal application proposed prepared by US Forest Service and currently under review by the Bureau of Land Management for a region in northeast Minnesota. Our research concludes the withdrawal application to be procedurally flawed, devoid of documentation required from the preapplication consultation process, and lacking information that could only be obtained though statutorily required, consistency review consultation with local governments. Particularly noteworthy are neglect for intermingled federal, state and private surface and mineral holdings within the proposed withdrawal boundary; disenfranchisement of local governments through noncontact; potential future conflicts with Minnesota school-trust mineral inholdings known to occur throughout the withdrawal area, and a significant departure from the standards of the Data Quality Act. This report also presents similar, massive land withdrawals in Arizona that failed judicial review, and we document flaws in the Federal Register notification and comment process, most notably that BLM is refusing to accept electronic comments. Because the administrative record is so glaringly deficient, lacking in procedural oversight and devoid of minimum standards, the USFS withdrawal application cannot be considered as procedurally legitimate or technically feasible. For this reason, STS recommends the current Secretary of Interior cancel the application and immediately terminate the segregation of 234,328 acres of lands set aside as part of the application process, pending review and resubmittal of an adequate withdrawal application. I 1 The Northern Counties Land Use Coordinating Board - 2 3 4 5 6 7 The Northern Counties Land Use Coordinating Board (NCLUCB) of Minnesota is a collaboration of eight (8) Minnesota county governments created to review, assist and actively participate in land use planning activities and policy making. Established in 1983 under the joint powers act, our members have local jurisdictional authority over 30% of Minnesota’s land area, 41% of forest lands, 43% of regulated surface water, 46% of state wetlands, 5% of the population, and 4% of the aggregate, net tax capacity. 8 Issue Summary; Action Requested With this submittal, NCLUCB is requesting an immediate review, intervention, and specific action from the Secretary of Interior (Secretary) of a federal land withdrawal application process currently being undertaken by the Bureau of Land Management (BLM) in the northern Minnesota region. In support of this request, we are requesting the Secretary to review BLM’s compliance with the statutory withdrawal provisions of the Federal Land Policy Act in 43 USC §1714(a), the withdrawal implementing regulations in 43 CFR §2310.1(a)(1) and 43 CFR §2310.1-1, and the delegation requirements found in Department of Interior’s own Departmental Manual Part 209, Chapter 7. We specifically request the Secretary to investigate a flawed land withdrawal application submitted on December 14, 2016 to BLM by Kathleen Atkinson, Regional Forester of the United States Department of Agriculture, Forest Service (USFS), to cancel that application for cause, and to immediately terminate the segregation of 234,328 acres of lands set aside as part of the application process1 (Attachment A). Our research concludes the USDA withdrawal application to be procedurally flawed, devoid of documentation required from the preapplication consultation process,2 and lacking information that could only be obtained though statutorily required, consistency review consultation with local governments. For its part, the application itself was hurried,3 is devoid of references, and lacks fundamental data and scientific standards mandated for proposed federal actions under the Data Quality Act.4 Similarly, the application is deficient of basic information required to understand how human systems, customs, cultures, local economies, and governmental prerogatives will be protected in the event the withdrawal process should proceed. If approved in its flawed state, the massive segregation of intermingled federal, state and private surface and mineral holdings within the proposed boundaries will result in regional economic distress, ongoing disenfranchisement of local governments, and future conflicts with Minnesota school-trust mineral inholdings known to occur throughout the area of the proposed withdrawal. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 1 Application for Withdrawal, Superior National Forest. Cook, Lake and Saint Louis Counties, Minnesota. Kathleen Atkinson, Regional Forester. December 14, 2016. 2 43 CFR § 2310.1(a)(1); 43 CFR 2310.1-1 Procedures: General. 3 One immediate example of poor-quality review is the ending date for the temporary land sequestration, published in the Federal Register, (Page 6640) is January 21, 2017. The application and process contain similar such errors. 4 Section 515(a) 3504(d)(1); 3516.4; 66 Federal Register 34489. September 28, 2001. 1 39 Background - 40 41 42 43 44 45 On December 14, 2016 USFS issued its non-consent for renewal of long-standing mineral leases for a currently operating regional mining concern 5 (Attachment B). That same day, the Regional Forester of USFS filed an application for withdrawal of a 234,328 acre parcel in the Rainy River Watershed adjacent to the existing Boundary Water Canoe Area Wilderness (BWCAW) lands with the Bureau of Land Management (BLM). On December 15, 2016 the BLM State Director of Eastern States, Karen E. Mouritsen, issued her decision6 to deny mineral leases of an ongoing mining concern based upon a March 8, 2016 opinion by a Solicitor of the Department of Interior (Attachments C and D). The public record indicates the mineral-lease renewal applications were submitted to BLM on October 22, 2012, and that BLM had not acted upon the applications for a duration of about 1,500 days when BLM State Director Mouritsen issued her December 2016 decision to deny the leases. On January 19, 2017 BLM published its notification of intent to pursue the withdrawal in the Federal Register, with Karen E. Mouritsen acting in her role as BLMs State Director for the Eastern States Office (Attachment E). 46 47 48 49 50 51 52 53 54 55 56 Issues, Points and Authorities I. Review, processing and oversight of the withdrawal application process by State Director Mouritsen is contrary to the statutory mandates in the policy statement of the Federal Land Policy and Management Act and the Department of Interior, Departmental Manual Part 209, Chapter 7: 57 58 59 60 61 62 U.S.C. 1714(a) “On and after the effective date of this Act the Secretary is authorized to make, modify, extend, or revoke withdrawals but only in accordance with the provisions and limitations of this section. The Secretary may delegate this withdrawal authority only to individuals in the Office of the Secretary who have been appointed by the President, by and with the advice and consent of the Senate.” 63 64 65 66 67 68 69 70 71 72 73 74 75 a. The Policy of the United States is unambiguous that withdrawal authorities must reside with the Secretary of Interior or Assistant Secretary, Minerals Management and both must have been appointed by the President of the United States (POTUS) and confirmed by the US Senate. 76 77 78 79 80 81 b. The Department of Interior Departmental Manual at 209 DM 7.1 B. delegates the Secretary’s withdrawal or reservation authority only to the Assistant Secretary – Lands and Minerals Management. At 209 DM 7.2, further delegation of authority to the Assistant Secretary’s subordinates is prohibited because redelegation is prohibited by 43 USC §1714(a) (Attachment F). 5 6 Correspondence. Tomas L. Tidwell of USDA to Neil Kornze, BLM. File Code 2670. December 14, 2016. Correspondence. United States Department of Interior, Bureau of Land Management, Eastern States Office. Decision; Lease Renewal Application Rejected. Karen E. Mouritsen, State Director Eastern States BLM Office. December 15, 2016. 2 82 83 84 85 c. Because the Federal Register is the official publication of major 86 87 88 89 90 d. The Congressional record and other public documents do not indicate that State Director Mouritsen, nor any other official meeting the Congressional intent of 43 USC §1714(a) and subordinate regulations 43 CFR §2300.0-5(b), have traceable and legitimate decisional authority to oversee the USFS application withdrawal process. 91 92 93 94 95 96 97 98 e. Because the administrative record is deficient with respect to direct oversight from the Secretary of Interior, Assistant Secretary Minerals Management, or other individuals appointed by the president with consent of the US Senate, the USFS withdrawal application cannot be documented as procedurally legitimate. As a result, review of the USFS withdrawal application cannot proceed until the current Secretary of Interior administers or appropriately delegates the process. 99 100 101 102 103 104 105 106 107 108 agency actions of the United States Government, notifications of land withdrawals must originate from the appropriate level of signatory authority. II. USFS and BLM have failed to fulfill pre-application consultation steps and responsibilities to local governments required in 43 CFR §2310.1(a)(1) and 43 CFR §2310.1-1: a. Neither BLM nor USFS have fulfilled the early notification, land-use plan consistency review, and land use plan “keep apprised” mandates in 43 USC §1712(c)(9), or the preapplication consultation requirements in 43 CFR §2310.1(a)(1) and 43 CFR § 2310.1-1. Neither NCLUCB nor its individual members have received any requests, written correspondence, comments or questions concerning land use plans, policies or local programs. 109 110 111 112 b. The public record and consultation with NCLUCB members indicates no meaningful contact whatsoever has occurred between BLM, USFS, and NCLUCB member governments - before or during the withdrawal application process. 113 114 115 116 117 118 119 120 121 c. Meaningful participation by affected NCLUCB counties at the preapplication consultation stage is essential to determine the type and scope of investigations, studies, analyses, public meetings, and negotiations necessary for thorough and future evaluation of the USFS withdrawal proposal. Leaving affected county governments out of the early planning stage results in failure to accurately understand the scope, interrelationship and interactions between the natural and human environments - which in turn leads to skewed decisions and diminution of local prerogatives. 122 123 124 125 126 d. During judicial review of a remarkably similar land withdrawal in the Arizona strip by former Secretary of Interior Salazar, the U.S. District Court for Arizona vacated the withdrawal because the BLM disregarded economic data, refused a consistency review with local governments, and ignored local interests (Attachment G). 127 3 III. The application by USFS demonstrates a remarkable lack of confidence, predetermining that commonly-available environmental controls and existing statutory and regulatory frameworks are inadequate to protect the natural environment, leaving withdrawal of working public lands from their primary use as the only satisfactory environmental remedy: 128 129 130 131 132 133 134 135 136 137 138 139 a. The withdrawal application is replete with undocumented future claims and unsubstantiated potential impacts that environmental damage could result from mineral exploration and development, concluding that "any failure of mitigation measures, containment facilities, or remediation efforts" could render USFS unable to protect designated public lands. 140 141 142 143 b. The withdrawal application is wholly deficient in scientific references, data, studies, and other Data Quality Act required information necessary to objectively conclude if segregation of working lands for further study may even be advisable. IV. In its application, USFS errantly prioritizes environmental values 144 145 146 147 148 and sequestration above the FLPMA doctrines of multiple use,7 sustained yield,8 and the hierarchy of principal or major uses9 - all of which prioritize balanced, beneficial and working use of public lands as a priority over withdrawal: a. Recognizing the intermingled, pre-existing status of water rights, 149 150 151 152 153 154 155 156 easements, grazing allotments, mining claims, timber operations, and various private inholdings, the 94th Congress, in promulgating FLPMA, established a hierarchal system that provides for the diverse land use interests around a central philosophy of productivity10 - not sequestration. To that end, the FLPMA doctrine of principal use11 establishes a first-among-multiple-use hierarchy for land use planning within region a proposed for land withdrawals: 1. 2. 3. 4. 5. Domestic livestock grazing; Fish and wildlife development and utilization; Mineral exploration and production; Rights-of-way; Outdoor recreation; and, 6. Timber production. 157 158 159 160 161 162 163 164 b. It is the Policy of the United States that public lands be managed first for balanced productivity, not segregation. 165 166 167 168 c. The application ignores that the adjacent Boundary Water Canoe Area Wilderness lands were previously designated for environmental purposes and the remaining lands were left for productive pursuits, such as timber production, minerals, range, and other productive pursuits. 169 7 43 USC 1702(c) 43 USC 1702(h) 9 43 USC 1702(l) 10 43 USC §1702 (c) 11 43 USC §1702 (l) 8 4 V. The proposed withdrawal would have negligible effect at curtailing mining, as approximately 190,321 acres of pre-existing surface and subsurface state and private lands would remain within the 234,328 acres proposed for withdrawal: 170 171 172 173 174 175 176 177 178 a. Development of state-owned mineral resources contributes substantially to fund the Minnesota public school system, and the proposed withdrawal poses both a threat to current and future state revenues and state sovereignty. Withdrawal will also produce unintended legal conflicts and other negative consequences. 179 180 181 182 b. Continuation of prior existing rights and access, as required by FLPMA and promised in the USFS Federal Register notification, will result in reduced lease and royalty revenues for the Federal purse, and additional management costs for BLM and USFS. 183 184 185 186 187 188 189 c. Because President Trump has issued an executive order12 and OMB has issued a directive13 to reorganize the Federal government, eliminate unnecessary federal agencies and programs, and reduce the size of Federal government, adding costs of a high level land withdrawal program that removes the opportunity for access to a statutorily preferred use and revenues to the federal government is unlikely to be well received. Other Issues VI. In its Notice of Application for Withdrawal and Notification of Public Meeting, the BLM inexplicably prohibited submission of comments by email: 190 191 192 193 194 195 a. Submission of public comment by electronic means is standard practice across the federal government for agencies at all levels. 196 197 198 199 b. There is potential for unnecessarily confusing the public when one agency (BLM) involved in a multi-agency process refuses to accept comments via email when a counterpart agency (USFS) welcomes comment via email. 200 201 202 c. When an agency refuses to accept comment via email, it causes more administrative time to prepare and provide multiple hard copies of comments for public review. VII.The comments submitted during this comment period are being made available for review at the BLM’s Eastern States Office, located in Washington, DC. No opportunity for public review of the comments is being made available for review within the Minnesota counties that would be affected by the proposed withdrawal: 203 204 205 206 207 a. The ability to readily obtain and review documents pertinent to a proposed action, especially in electronic medium, is essential to effective public participation in the process for a proposed federal 208 209 210 12 Executive Order 13781. Comprehensive Plan for Reorganizing the Executive Branch. President Donald Trump March 13, 2017. 13 Memorandum for Heads of Departments and Executive Agencies: Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian Workforce. Mick Mulvaney, Executive Office of the President Director of Office of Management and Budget. April 12, 2017. 5 211 212 213 214 215 216 217 218 219 220 221 222 223 224 agency action. Public comment documents located thousands of miles from the location of the proposed action cannot be deemed to be “readily accessible” to the public. b. Any public process that effectively denies access to the documents that are used in formulating the Secretary’s decision-making process, in an age where electronic access to information is nearly universal, is improper and indefensible. c. Through the use of online comment submission systems, such as those available at www.regulations.gov, members of the public are accustomed to ease-of-use electronic tools for public participation in government processes. In the absence of those tools, many people simply opt not to participate. This potentially denies the agencies access to crucial information that would otherwise substantially inform the Secretary’s decision-making in major proposed actions. 6 Attachment A December 14, 2016 USFS Application for Withdrawal APPLICATION FOR WITHDRAWAL Superior National Forest Cook, Lake, and Saint Louis Counties, Minnesota Items required by 43 C.F.R. 2310.1-2(c): 1. APPLICANT Regional Forester USDA Forest Service 626 East Wisconsin Ave Milwaukee, WI 53202 2. STATEMENT OF DELEGATION The general delegations of authority from the Secretary of Agriculture to the Chief of the Forest Service is set forth at 7 C.F.R. § 2.60. More specifically 7 C.F.R. § 2.60(a)(2) delegates authority to the Chief of the Forest Service to protect, manage, and administer the National Forest System. The Chief of the Forest Service has delegated the authority to request withdrawals to the Regional Foresters (FSM 2761.04). 3. OTHER AGENCY CONSENT The subject landsare National Forest System lands under the administration of the U.S. Department of Agriculture, Forest Service, which hereby consents to the requested withdrawal and segregation of those lands. 4. TYPE OF WITHDRAWAL ACTION This is a request for a new withdrawal. The Forest Service requests these lands be withdrawn from disposition under laws relating to mineral and geothermal leasing laws, subject to valid existing rights - including the Mineral Leasing Act of 1920 (30 U.S.C. 181 et seq. as amended), the Mineral Leasing Act for Acquired Lands of 1947 (30 U.S.C. 351 et seq. as amended), Section 402 of the President‘s Reorganization Plan No. 3 of 1946, 16 U.S.C. 520, and 16 U.S.C. 508b. All of the landswould remain subject to the laws providing for the disposal of mineral materials as defined by 36 C.F.R. Part 228, Subpart C. The Forest Service recognizes that any segregation or future withdrawal of these lands and interests in the landswill be subject to valid existing rights on Federal land. The segregation and withdrawal would also be inapplicable to private lands owned in fee, private mineral estates, and private fractional minerals interests. Withdrawal Application Page 1 5. LANDS INVOLVED IN WITHDRAWAL The Federal lands whose withdrawalis requested fall within a portion of the Rainy River watershed,outside the Boundary Waters Canoe Area Wilderness (BWCAW) and the Boundary Waters Canoe Area Wilderness Mining Protection Area (MPA), as indicated on the attached map (Appendix B). More specifically, the Forest Service requests the withdrawal of all landsidentified in Appendix A that include fully federally owned minerals that aresituated within the exterior boundaries of the area depicted on the attached map (Appendix B). The Forest Service also requests that the withdrawal be made applicable to all fee title lands subsequently acquired by the Federal Government that are situated within the exterior boundaries of the area depicted on the attached map (Appendix B). The Federal lands that are requested for withdrawal are within the Rainy River watershed and drain into the BWCAW. The application of the mineral leasing laws to the remaining Federal lands within portions of the Rainy River watershed, i.e., the BWCAW and the MPA,are already curtailed by virtue of Sec. 11(a) of Pub. L. 95-495, 92 Stat. 1649, 1655 (1978). The National Forest System lands for which withdrawal is requested in aggregate total approximately234,328 acres within the Superior National Forest. There are two categories of these National Forest System landswhich includefully Federally-owned mineral interests - lands reserved from the public domain owned by the United States in fee simple, andacquired lands owned by the United States in fee simple. 6. OTHER WITHDRAWALS The area containing the Federal lands whose withdrawal is requested by means of this application does not overlap any other withdrawal. no However, pursuant to Sec. 11(a) of Pub. L. 95-495, 92 Stat. 1649, 1655 (1978) ― permit, lease, or other authorization may be issued by any agency or authority of the United States for [the] exploration for, or mining of, minerals owned by the United States within the Boundary Waters Canoe Area Wilderness and Boundary Waters Canoe Area Mining Protection Area.‖ These areas are adjacent to the lands that this application requests be withdrawn from the disposition under laws relating to mineral and geothermal leasing. 7. PURPOSE OF WITHDRAWAL As previously noted, the 234,328 acres of Federal land for which the Forest Service requests withdrawal are located within the Vermillion and Rainy Headwaters subwatersheds of the Rainy River watershed in the Superior National Forest and areadjacent to the BWCAW and MPA. There is known interest in the development of hardrock minerals that have been found—and others that are thought to exist—in sulfide-bearing rock within this portion of the Rainy River watershed. Any development of these mineral Withdrawal Application Page 2 resources could ultimately result in the creation of permanently stored waste materials and other conditions upstream of the BWCAW and the MPA with the potential to generate and release water with elevated levels of acidity, metals, and other potential contaminants. Additionally, any failure of mitigation measures, containment facilities, or remediation efforts at mine sites and their related facilities located upstream of the BWCAW and the MPA could lead to irreversible impacts upon natural resources and therefore, render the Forest Service unable to meet the purposes for the designation of the BWCAW and the MPA specified by Sec. 2 of Pub. L. 95-495, 92 Stat. 1649 (1978). These concerns are exacerbated by the fact that perpetual maintenance of waste storage facilities along with the perpetual treatment of water discharge emanating from the waste storage facilities and the mines themselves would likely be required to ameliorate these adverse effects,yetit is not at all certain that such maintenance and treatment can be assured over possibly infinite timeframes. Thus, the purpose of this withdrawal request is to protect National Forest System lands (and waters) located in the Rainy River Watershed, the BWCAW, and the MPA from the adverse environmental impacts arising from exploration and development of fully Federally-owned minerals conducted pursuant to the mineral leasing laws. This will result in more efficient and effective Forest Service administration of such NFS lands (and waters) in accord with applicable Federal law. 8. EXTENT OF WITHDRAWAL AND SEGREGATION The Forest Service requests that the Federal lands within the area identified on the attached map (Appendix B) be withdrawn from disposition under laws relating to mineral and geothermal leasing – including the Mineral Leasing Act of 1920 (30 U.S.C. 181 et seq. as amended), the Mineral Leasing Act for Acquired Lands of 1947 (30 U.S.C. 351 et seq. as amended), Section 402 of the President‘s Reorganization Plan No. 3 of 1946, 16 U.S.C. 520, and 16 U.S.C. 508b - for the maximum period of 20 years authorized by 43 U.S.C. § 1714(c)(1), subject to valid existing rights. The Forest Service also requests that the notice of this withdrawal application published in the Federal Register pursuant to 43 C.F.R. § 2310.3–1(b)(1) provide that the National Forest System lands within the area identified on the attached map (Appendix B) are segregated from the operation of the mineral leasing laws for the maximum period of two years authorized by 43 U.S.C. § 1714(b)(1), subject to valid existing rights. The Forest Service intends that the National Forest System lands within the area identified on the attached map (Appendix B)remain subject to the laws providing for the disposal of mineral materials set forth by 36 C.F.R. Part 228, Subpart C throughout the duration of the segregation and any subsequent withdrawal. 9. ALLOWABLE TEMPORARY USES Statutorily authorized multiple uses of National Forest System lands, i.e., outdoor recreation, range, timber, watershed, and wildlife and fish purposes, along with the Withdrawal Application Page 3 disposal of mineral materials, maybe authorized by Forest Service officers during the requested 2-year segregation period. However, those uses would only be authorized if they would comply with applicable Forest Service regulations, the applicable land use plan, and they would not cause adverse environmental impacts to National Forest System lands (and waters) located in the Rainy River Watershed, the BWCAW, and the MPA comparable to those that could arise from exploration and development of Federallyowned minerals conducted pursuant to the mineral leasing laws. 10. ANALYSIS OF ALTERNATIVES Per 43 C.F.R. § 2310.1-2(b)(10), a withdrawal application should contain ― [a]n analysis and explanation of why neither a right-of-way under section 507 of the Act (43 U.S.C. 1767), nor a cooperative agreement under sections 302(b) (43 U.S.C. 1732(b)) and 307(b) (43 U.S.C. 1737(b)) of the act would adequately provide for the proposed use.‖ However, none of these statutory provisions are relevant to a withdrawal application submitted by the Forest Service for the withdrawal of National Forest System lands. Insofar as 43 U.S.C. §§ 1732(b) and 1737(b), portions of the Federal Land Policy and Management Act of 1976 [FLPMA] , are concerned, those provisions are not applicable because they grant the Secretary of the Interior (43 U.S.C. § 1702(g)) authority to manage the public lands. And for purposes of FLPMA, ― [t]he term ‗public lands‘ means any land and interest in land owned by the United States within the several States and administered by the Secretary of the Interior through the Bureau of Land Management….‖ In contrast, all national forest lands, including the Superior National Forest, are administered by the United States Department of Agriculture, Forest Service as part of the National Forest System (16 U.S.C. § 1609(a)). Indeed, 43 U.S.C. § 1702(k), a portion of the definitional section of FLPMA, explicitly distinguishes ― public lands‖ from ― lands within National Forests.‖ With regard to 43 U.S.C. § 1767(a), another portion of FLPMA, it permits ― the Secretary concerned‖ to utilize the authority granted by other provisions in the subchapter to provide another department or one of that department‘s agencies a right-of-way across land administered by the Secretary concerned. The shorthand formulation ― the Secretary concerned‖ in 43 U.S.C. § 1767(a) clearly refers to both the Secretary of the Interior and the Secretary of Agriculture as evidenced by a prior provision in the same subchapter: 43 U.S.C. § 1761(a). Per 43 U.S.C. § 1761(a), rights-of-way may be issued by ― [t]he Secretary [i.e., the Secretary of the Interior (43 U.S.C. § 1702(g))], with respect to the public lands … as defined in section 1702(e) of this title … and, [by] the Secretary of Agriculture, with respect to lands within the National Forest System….‖ Accordingly, 43 U.S.C. § 1767(a) merely authorizes the Secretary of Agriculture to issue rights-of-way across National Forest System lands to other departments and their agencies. That authority has no bearing with respect to the Forest Service‘s reason for requesting this withdrawal—to protect National Forest System lands (and waters) located in the Rainy River Watershed, the BWCAW, and the MPA from the adverse environmental impacts that would arise from exploration and development of Federally-managed hardrock minerals conducted pursuant to the mineral leasing laws. Withdrawal Application Page 4 FLPMA section 507, 43 U.S.C. § 1767(b), cannot achieve the Forest Service‘s purpose to protect the specified National Forest System lands because it merely prohibits the Secretary of the Interior from terminating or limiting a right-of-way for the benefit of any department or agency of the United States without that entity‘s consent. 11. WITHDRAWAL DURATION The Forest Service requests withdrawal of the Federal lands within the area indicated on the attached map(Appendix B) for the maximum period of 20 years authorized by 43 U.S.C. § 1714(c)(1). A withdrawal for themaximum duration of 20 yearsis warranted because the potential adverse effects from the exploration and development of the fully Federally-managed hardrock minerals in the Rainy River watershed. These potential impactsare a direct result of the location of the minerals with the sulfide-bearing rock present in that area. Thus, the need to protect the National Forest System lands (and waters) located in the Rainy River Watershed, the BWCAW, and the MPA from the adverse environmental impacts arising from exploration and development of Federally-managed hardrock minerals—the purpose of this withdrawal request—remains constant. 12. ALTERNATIVE SITES No additional valuable deposits of Federal hardrock minerals outside the Rainy River watershed have been found or presently are known. Therefore there are no other sites where equivalent hardrock mineral exploration or development could be authorized by the Department of the Interior. 13. WATER REQUIREMENTS No water rights will be needed to fulfill the purpose of this withdrawal request. The unique and irreplaceable resource this withdrawal seeks to protect is the 1.1 million acre Boundary Water Canoe Area Wilderness (BWCAW) located in the northern third of the Superior National Forest in Minnesota, extending nearly 200 miles along the international boundary with Canada. The BWCAW includes nearly 2,000 pristine lakes ranging in size from 10 acres to 10,000 acres, and nearly 1,200 miles of canoe routes. It is the only large-scale protected sub-boreal forest in the lower 48 United States. These healthy forests with extremely high water quality also provide a host of watershed benefits, such a purifying water, sustaining surface water and ground water flow, maintain fish habitats, and stabilizing streambanks. Withdrawal Application Page 5 14. LOCATION OF RECORDS Records related to this application for an extension of the withdrawal may be examined at: Superior National Forest Supervisor‘s Office 8901 Grand Ave Pl Duluth, MN 55808 Withdrawal Application Page 6 SUPPLEMENTAL INFORMATION Appendix A: Legal Description of Superior National Forest Mineral Fee Simple Lands for Withdrawal Application Appendix B: Map of Superior National Forest Withdrawal Application Area Withdrawal Application Page 7 Attachment December 14, 2016 USFS Non-Consent Letter Enclosure 3 United States Forest Washington: Of?ce ZDI Htli Street. SW Department of Service Washington, DC 20250 Agriculture File Code: 2670 Date: DEC 1 It 2015 Neil Kornze Director Bureau of Land Management 1849 C. Street NW. Rm. 5665 Washington. DC 20240 Dear Director Komze: On June 3, 20! 6. the Bureau of Land Management (BLM) requested the Forest Service (PS) provide a decision on whether it consents to renewal of two leases currently held by ?l?win Metals Minnesota (TMM) for lands within the Superior National Forest (SNF) in northern Minnesota. These two Preference Right leases. MN 352 and MNES-O 353. lie directly adjacent to and within three miles of the Boundary Waters Canoe Area Wilderness (BWCAW). respectively. The has considered the environmental conditions, nature and uses of the BWC AW by the public and tribes. economic benefits of mineral development and wilderness recreation, potential environmental consequences of mineral development on the leases. public opinion. rarity of copper-nickel sulfide ore mining in this region. and current laws and policy to inform the agency?s decision. Based on this analysis. 1 find unacceptable the inherent potential risk that development of a regionally-untested copper-nickel sul?de ore mine within the same watershed as the might cause serious and irreplaceable harm to this unique, iconic. and irreplaceable wildemess area. Therefore. the FS does not consent to renewal of Preference Right leases MN 352 and MNES-OIBSS. A summary of the basis for my decision follows. The BWCAW Is an Irreplaceable Resource The million acre the BWCAW is located in the northern third of the SNF in Minnesota. extending nearly 200 miles along the international boundary with Canada. It is the only large- scale protected sub-boreal forest in the lower 48 United States. The SNF holds 20 percent ol'thc National Forest System's fresh water supply. These healthy forests with extremely high water quality also provide a host of watershed benefits, such as purifying water, sustaining surface water and ground water ?ow, maintaining fish habitats. controlling erosion. and stabilizing streambanks. In addition to the existing high quality of the waters. the dramatic hydrogeology and interconnectedness of BW forests. lakes. streams. and wetlands make the region unique and susceptible to degradation. The BWCAW includes nearly 2,000 pristine lakes ranging in size from 10 acres to 10.000 acres. and more than 1,200 miles ofcanoe routes. With Voyageurs National Park and Quetico Provincial Park, BW AW is part of an international network of conserved land and wilderness. Quetico Provincial Park, located in Ontario, Canada. Caring for the Land and Serving People mm or. ?meant-m Enclosure 3 Neil Kornze lies within the same Rainy River watershed as the BWCAW. Quetico Provincial Park is an iconic wilderness class park, world renowned as a destination for backcountry eanocing with over 2,000 lakes and over one million acres of remote water-(based wilderness. Together, Quetico and BWCAW ?Form a core wilderness area of over tqu million acres. - Located northwest of the BWCAW, Voyageurs NatiOnal Park 1has established by Congress in 1971 to preserve and interpret fur trade history and the importance of canoe travel routes in northern Minnesota. The park is at the southern edge of the boreal forest, and lies within the same Rainy River watershed as the lt teatures spectacular canoeing and boating routes along with hiking trails exploring portage routes used by American Indians, early for traders, and gold miners; Approximately 240.000 people visit Voyageurs National Park every year. Just sooth of the BWCAW the Laurentian Divide separates three river systems: one allowing north to Hudson Bay; the Laurentian system ?owing eastward towards the Atlantic through the Great Lakes} and the Mississippi system, flowing south to the Gull?of Mexico. 'l?MM?s two leases subject to F5 decision are located in the Rainy River Watershed, which drains into the BWCAW, Quetico Provincial Park. and Voyageurs National Park. There are four HUC (liydrologic Unit Code) -1 t) sub-watersheds in the area of the leases and potential project site?? Birch Lake. Stony River. Isabella River and Kawishiwi River. Surface water flows north and west from Birch Lake and the Kawishiwi River watershed tlnough Kawishiwi River and several lakes into BWCAW. Water from the Stony River and the lsahella River watersheds ?ows into the Birch Lake watershed. The Natural Environment The SNF provides abundant and diverse habitat for thousands ol?breeding, wintering, and migratory species of terrestrial and aquatic wildlife, including over 100 species of migratory breeding birds in a zone with North America?s greatest diversity of songbirds and lt?orest- dependent The SNF also has one ofthe largest populations of gray wolves outside of Alaska. common icons. and moose. It has popular game Specie-s such as wall-eye, trout, deer. ruffed grouse, fisher, and beaver; and numerous rare species such as great gray ow], black- baeked woodpecker. tom?s-head ladyslippcr and other orchids, and lake sturgeon. The SNF also has a great diversity and abundance of species common to the boreal forest bionic. including three?toed woodpecker, horea] owl, boreal Chickadeea lynx, moose, and grizzled skipper butterle All these species provide a wide array of crucial ecological. social and economic bene?ts and uses From big game hunting and ?shing to wildlife watching and research. The BWCAW is also home to three threatened or endangered species: Canada lynx. northern long-cared bat. and gray wolf. Over the decades the BWCAW has been protected, it has provided reliugia for species under stress or with declining populations! such as moose. in the face of? climate change, the may be critical to the continued existence of these species within Minnesota. - Cultural Resources and Treaty Rights Associated with the BWCAW The BWCAW region has been home to Native Americans for millennia. The Minnesota Chippewa Tribe and three associated Bands the Grand Portage Band. the Fond du Lac Band, Enclosure 3 L2.) Neil Kornze and the Bois Forte Band retain hunting. ?shing. and other usuli'uctuary rights throughout the entire northeast portion of the State of Minnesota under the 1854 reaty ot?LaPointe. In the Coded Territory all Bands have a legal interest in protecting natural resources, and the FS shares in federal trust responsibility to maintain treaty resources. Man}! resident Ojihwc, who ceded lands that became the BWCAW. continue to visit ancestral sites and traditional gathering and ?shing locations within the wilderness. 'I?rihcs rely on natural resources like ?sh. wildlife and wild plants such as wild rice for subsistence and to support them spiritually, culturally. medicinally, and economically. The northern border of the BWCAW is situated along a winding. 120-mile canoe route known locally as the Border Route, or Voyageurs l~lighwa3n This historic canoe route. bordered on the north by Ontario?s Quetico Provincial Park, on the east by Grand Portage National Monument, and on the west by Voyageurs National Park, was utilized extensively by pre~contact Native Americans. European rm traders. and tribal groups such as the Dakota. Cree. and Ojibwe. There are approximately 1,500 cultural resource sites identified on National Forest System S) lands within the BWCAW. Many more cultural resources are believed to exist within the wilderness; as 0172015 only about 3 percent ol? the landscape has been intensively surveyed. Cultural resource sites include historic Ojibwa village sites. French and British period for trade sites dating from l730~1830, Woodland period village sites {1000-500 years old) situated on. wild rice lakes- Native American pictograph panel sites, Archaic period (8,000~3,000 years old) sites with copper tools. and large Paleoindian quarry sites such as those recently discovered on Knife Lake where Native Americans shaped stone tools up to 10,000 years ago. Wilderness Designation The irreplaceable natural qualities of the were recognized nearly a century ago in 1926 when the Department of Agriculture ?rst set aside the area to preserve its primitive character. The Wilderness Act ot?1964 of?cially designated land inside today?s BWCAW as part of the National Wilderness Preservation System. The Boundary Waters Canoe Area Wilderness Act of 1978 expanded the wilderness area to 13090000 acres. The 1978 Act also established a separate Boundary Waters Canoe Area Mining Protection Area. (MFA) to protect existing natural values and high standards of environmental quality from the adverse impacts associated with mineral development. Sec. 9, Pub. L. 95-495., 92 Stat. 1649, 1655 (1978). Congress provided very clear direction regarding the purposes ol?thc 13W CAW and MFA: provide For the protection and management of the ?sh and wildlife of the wilderness so as to enhance public enjoyment and appreciation ol?the unique biotic resources of the region, (2) protect and enhance the natural values and environmental totalityr of the lakes; streams. shorelines and associated forest areas of the wilderness. (3) maintain high water quality in such areas, (4) minimize to the maximum extent possible. the environmental impacts associated with mineral development affecting such areas. . .. Sec. 2. Pub. L. 95-495, 92. Stat. .1649 (1978'). Enclosure 3 Neii Kornze 4 The BWCAW Act bans authorization of federal mineral development within the B-WCAW and MFA. However. the BWCAW Act does not govern federal mineral development on other NFS lands. Instead, the authorities governing federal mineral development on SNP lands outside the and MPA are 16 .S.C. 508b and Section 402, of Reorganization Pian No. 3 ot?1946, 60 Stat. 1097, 1099?1 100. A decision withholding FS consent to the lease renewals is fatty consistent with this statutory ti'anieworlt. World Renowned Research laboratory Because ot?its unique quality and character, the BWCAW is a living laboratory supporting dozens of research projects each year. Scientists of all diseiptincs rely on scarce areas like the BWCAW to support scienti?c inquiry and serve as control areas in the study of water quality, climate change effects, and naturai ecological processes. The BWCAW is internationally known as a laboratory for ground?breaking research on forest fires, landscape patterns, biodiversity, wildlife, soils, nutrient cycles. other ecosystem processes, lakes, climate change, and recreational use .ot?wilderness. This body ofwork is widely cited by scientists around the world. As an exampie, Miron work on forest ?res in published during the 1970s- 19905, has been cited in more than 1,700 published studies. More recent BW?CAW-t?elated studies by Frelich and Reich have already been cited in 1,300 studies in 70 peer-reviewed science journals published in 20 countries on 4 continents. New results ticm BWCAW research are regularly presented at prestigious international meetings on scienti?c study. Recreation Values of the BWCAW The BWCAW is one of the most visited areas in the entire National Wilderness Preservation System, and the Systems oniy large lake-land wiiderness. It provides-an experience unique within the continental United States. The thousands of lakes and hundreds of miles of streams comprise about 190,000 acres (20 percent) of the surface area and provide for long distance travel by watercraft. The opportunity to pursue and experience expansive solitude, challenge and personal immersion in nature are integral to the BWCAW experience. Winter BWCAW visitors enjoy opportunities for skiing, dog-sledding, camping and ice ?shing. Fishing is one ot?thc most popular BWCAW activities throughout the year due to the range of species found in its waters, including smallmouth bass, northern pike, walleye, and lake trout. Social and Economic Environment leases are. located near Ely, in St. Louis and Lake Counties. The population of St. Louis County is concentrated in and around the City of Duluth, approximately 100 miles south of the lease area. The iron Range communities of Ely, Hibbing, and Virginia are smaller secondary population centers. The 20! Census shows area population has declined by heart): 10 percent since 1980, while Minnesota's population as a whole has increased by more than 30 percent. At least some of this population decline may be attributable to a loss oliiron industry jobs. he Fond du Lac, Grand Portage. and Bois Forte reservations are exceptions to the regional trend - populations there have increased since l990. The median income of area communities is signi?cantly lower than that of the State as a whole. It is also the case that the median income of the area?s accendary population centers is generally Enclosure 3 Neil Kornze lower than that of St. Louis County as a whole. In some of these communities, such as ly and lower. the median household income is more than half ot?thc state median. 111 many individual communities, poverty rates are as high as or higher than statewide (with the exceptions of the secondary population centers of Hoyt Lakes, Soudan, and Tower). Mining employment in St- Louis County declined from more than 12.000 jobs in 1980 to approximately 3,000 jobs in 2009. However, since mining employment can vary greatly "from one year to the next. this decline does not represent a steady reduction. employment is volatile and ?uctuates due to changes in the market price ot?commodities being extracted. During the same time period, set-vicenrelatcd employment (which includes the North American industry Classi?cation System. categories for professional services, management, health care, education, arts/entertainment, and accommodation/loud) in the study area has increased substantially, mirroring broader state and. national trends. Tourism is rooted in the region?s unique recreation. opportunities such as the and is broadly dependent on hunting, ?sh-inn. boating- sightseeing. and wilderness experiences provided by the region?s high-quality natural environment. Industries associated with tourism (arts, entertainment, recreation. accommodation. and food services) account for nearly 13 percent of all employment in St. Louis County- The landscape and recreational opportunities attracts retirees and new residents. Fishing in Minnesota lakes and rivers generates $2.8 billion in direct annual expenditures and contributes more than $640 million a year in tax revenues to the treasuries of the 'state and federal governments. The BWCAW itself has provided millions of visitors with a unique water? based recreation experience and provided an economic driver to local and the state of? Minnesota. Leases 352 and are surrounded by 29 resorts. outfitters, campgrounds and hundreds of homes and cabins. Similarly. Voyageurs National Park and Quetico Provincial Park both support vibrant tourism industries In 2015, 150,000 people visited the BWCAW. Economic benefits generated from recreation in the BWCAW average approximately $44.5 million annually. Continued economic returns rely on sustaining natural resource quality and wilderness character. The Role with Respect to I-lardroek Mineral Leases two leases include a mixture of NF lands reserved from the public domain and acquired NFS lands, with the vast majority being reserved lands. to U-S.C. 5% 508b applies to reserved NFS lands and provides in pertinent part: "the Secretary of the interior is authorized to permit the prospecting for and the development and utilization of [hard rock] mineral resources: provided. that the development and utilization of such mineral deposits shall not be permitted by the Secretary of the Interior except with the consent of the Secretary of Agriculture.? Section 40?. of Reorganization Plan No. 3 of?1946, 60 Stat. l0?97. 1099. applies to acquired NFS lands and provides in pertinent part: Enclosure 3 Neil Korn'ze 7 6 "The '?mctions or" the Secretary of Agriculture and the Department of Agriculture with respect to the uses of mineral dcpoSits in certain lands pursuant to 16 [1.3.0 520 are hereby transferred to the Secretary ot? the interior and shall he performed by him or by such of?cers and agencies ot?thc Department of the interior as he may designate: Provided, That mineral development on [lands acquired pursuant to the Weeks Act] shall be authorized by the Secretary of the Interior only when he is ad vised by the Secretary of Agriculture that such development will not interfere with the primary purposes for which the land was acquired and only in accordance with such conditions as may be speci?ed by the Secretary of Agriculture in order to protect such purposes." In pertinent part. 16 U.S.C. 52G provides: The Secretary ol?Agriculture is authorized, under general regulations to be prescribed by him, to permit the prospecting, developman and utilization of the mineral resources of the lands acquired under the Act ofMar-ch ?rst, nineteen hundred and eleven, known as the Weeks law, upon such terms and for speci?ed periods or otherwise, as he may deem to be liar the best interests of the United States. . .. Under the Weeks Act, 16 5159 the Secretary ongriculturc is authorized to purchase lands for the purposes of ?the regulation ofthe flow of navigable streams or the production of timber." The Department of the interior adopted regulations providing for disposal of mineral resources pursuant to 16 U.S.C. 50813 and Section 402 of Reorganization Plan No. 3 011946. 61} State 1097? 1099, by means of a leasing system governed by 43 part 3500. 43 CPR. (3) The Department ot?the interior?s reputations provide that issuance of leases for hard rock minerals, including deposits of copper, nickel and associated minerals, on lands administered by another scrfacc managing agency is ?[s]ubject to the consent ot?the surface managing agency,? 4.3 CFR. 3503.13(a} which in the case ot?NF lands is the United States Department of Agriculture, Forest Service. 16 1609(a). Speci?cally, 43 CPR. 3503.13fa) relates to lands acquired under the Weeks Act while 43 OER. 3503.13tc) relates to the reserved lands. On March 8, 2016, Department of interior Solicitor Hilary Tompkins issued. memorandum 37036 (M~Opinion) in response to a ELM request asking ?whether it has the discretion to grant or deny Twin Metals Minnesota?s pending application for renewal of two hardrock preference right leases in northern innesota.? The M-Opinion advises the BLM determining that, "Neither ofthe statutory authorities under which and are issued-"section 402 of Reorganization Plan No. 3 of 1946? 60 Stat. 11197, 1099-1 100, and 161.130 508b? creates an entitlement to a lease or otherwise mandates the issuance of leases? and ?No the contrary, both authorities expressly condition leasing on surface owner consent (in this instance the Forest Service) and thus are discretionary." on lune 3, 2016, the BLM advised the Forest Service: ?{iln light of the legal determination that the government has discretion in granting or denying the TMM lease renewal application, in accordance with 43 CFR 3503.20, 16 U.S.C. 508b, Section 402 ot?Reorganization Plan No. 3 of 1946, 6G Stat, 1139?, 1099; and 16 USC 520i the Enclosure 3 Neil Kornzc i? BLM requests that the USDA Forest Service provider in Writing. a decision on whether it consents or does not consent to the renewal of the leases." lrrespectivc ot?the M-Opinion, the consent to any hardroclt lease renewal is mandated by 16 .S.C. 5031) and Section 402 of Reorganization Plan No. 3 ol?1946, 60 Stat. 1097? 1099- Pursuant to 16 U.S.C. 5, 508b, the Secretary oi?Agriculture's right to consent to "the development and utilization of [hardrock] mineral resources" is coextensive with the Secretary ofthe authority to permit ?the development and utilization of [hardrock] mineral resources.? The fact that the Secretary of the Interior has implemented the authority to U.S.C- 50813 confers to permit ?the development and utilization ol?fhardrock] mineral resources? by means ol?a regulatory scheme containing a number ol?decisiou points simply means that the Secretary of Agriculture?s statutory consent authority with respect to hat-drool; mineral development and utilization authority expressed in terms identical to the Department of Interior's authority similarly extends to the same. universe ofdccision points providing those decisions have the potentialsto affect NFS surface resources, Whereas pursuant to Section 402 of Reorganization Plan No. 3 of l946, 60 Stat. 1097, i099, the Secretary of the Interior?s authority per '16 USE. 520 "to permit the develOpment oi" the [hardrock] mineral resources of the lands acquired under the Weeks lawn is contingent upon the Secretary of Agriculture's determination that "such development will not interfere with the primary purposes for which the land was It is well established that mineral "development" is authorized by a leasea whether it is one issued in the ?rst instance or a subsequent renewal. Indeed, the Mw0pinion explicitly recognizes that "the entire purpose" ol?a mineral lease is "for the lessee to develop the minerals. . . Another M-Opinion ?nds that since the 1970s hardroci: prospecting permits for NFS lands, which are the precursor for the issuance ofhardrock mineral leases including MNES-OI352 and WES-01353, have unil?onnly included the condition that ?no mineral development ol" any type is authorized hereby." Nil?36993, Options Regarding Applications for Hardrock Mineral Prospecting Perm-its on Acquired lands Near a Unit ofthc National Park System (1998 3515279? (April 16, 19-98)). Antlers-art Coalition/or rhe environment. -124 131A 211, 217 (1992) ("mineral development may only be authorized upon issuance ot?a [hardrock] lease}: John A. Nefertiti}! (forum (form Youth Association. 80 115?th 14, 26 (1984) (concurring Opinion) (development under a hardroek lease "is a logically foreseen result ot?suce-essl?ul prospecting"). So again, the fact that the Secretary of the interior has implemented the authority Section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099, confers to permit the development ofhardrock mineral resources on lands acquired pursuant to the Weeks Act by means of a regulatory scheme containing a number of decision points simply means that the Secretary of Agriculture?s consent authority with respect to hardrock mineral development authority expressed in tenns identical to lnterior?s authority similarly extends to the same universe ot?decision points providing those decisions have the potential to alleet NFS surface resources. Ofcourse, under Section 402 of Reorganization Plan No. 3 of ?9465 60 Stat. 1097? 1099, the Secretary of Agriculture cannot block mineral development absent a tindin that ?such development will interfere with the primary purposes for which the land was Herc? since the small percentage of acquired lands subject to two leases were purchased in accordance with the Weeks Act, those primary purposes were "the regulation of the flow of navigable streams or the production oftimber.? As discussed below, 'l?Ml'vl hopes to construct Enclosure 3 Neil Kornze 3 and operate an underground mine on its two leases not a strip mine. At this juncture the FS consequently cannot definitively say that the mineral development which TMM hopes to conduct on its leases will interfere with those purposes. Uncertainty about this question is of little import, however, since the lands subject to leases are an admixture of lands reserved train the public domain and acquired lands with the reserved lands being in excess of90% ol?the acreage included in both leases. Further, there is no reason to believe that mineral development exclusively could be confined to the acquired lands. The FS's conclusion that the agency should exercise the absolute discretion that 16 .S.C. .508b confers upon it to withhold consent to the renewal ofTMM?s leases insofar as the reserved lands are concerned accordingly has preclusive effect with respect to the lands acquired pursuant to the Weeks Act- The Role of Forest Plans The PS develops land and resource management plans to provide a homework that protects renewable surface resources. This framework balances both economic and environmental considerations to provide for multiple uses and sustained yield renewable surface resources. he 2004 SNF Plan at states: "Exploration and development of mineral and mineral. material resources is allowed on land. except for federally owned minerals in designated wilderness and the Mining Protection Area.? The Plan also provides that the FS will tonnage the BWCAW in a manner that perpetuates and protects its unique natural ecosystems. provides an enduring wilderness resource for linen: generations, and provides opportunities For a primitive and uncoofincd recreation experience. Although forest plans provide a framework, they do "not authorize projects or activities or commit the Forest Service to take action" (36 ERR. Instead lot-est plans provide broad management guidance and ensure all program elements and legal requirements are considered prior to critical project level decisions, such as a decision to authorize timber harvesting, grazing, or mining operations. As the Supreme Court has determined, forest plans: . .do not command anyone to do anything or to refrain from doing anything; the}! do not grant. withhold. or modify any tormal legal license. power. or authority; the}! do not subject anyone to any civil or criminal liability; they create no legal rights or obligations. Thus. for example, the Plan does not give anyone a legal right to cut trees; nor does it abolish anyone's legal authorin to object to trees being cut. Ohio Fare-soyAss r. Sierra Club. 523 US. 726. 733 (1998)." Following Forest Plan approrah proposals are evaluated" on a case-by-case basis. Proposals inconsistent with Plan direction may not be authorized (16 U.S.C. ?1604(i)). However; a proposal mi reveal the need to amend plan direction that would otherwise stand as an impediment to a proposal. Yet a proposal?s consistency with applicable Plan standards and guidelines is not an assurance that the proposal will be authorized. The PS retains discretionary judgment conceming overall multiple use. sustain-ed yield management lands. Further, denial of'a proposal consistent with applicable Plan standards and guidelines does not require alteration of the applicable direction. Enclosure 3 Neil Kornze 9 The SNF Plan does not prohibit mineral development within the management area where leases are located. But the FS is not bound to approve application for renewal of its leases either. Neither the statute nor regulations governing forest plans mandate the approval of proposals consistent with a Fet?est plan. Moreover, as discussed above. pursuant to the express terms of 16 and Section 402?. of Reorganization Plan No. 3 of 19463 60 Stat. 1097. . 1099, the FS retains discretion to withhold consent to ?l?llels lease renewals given the leases' purpose is mineral development, as recognized by the hit-Opinion. Speci?cally, the FS denial of consent to TMM's lease renewals is warranted for the reasons set out in the lVI-Opinion and also because the bar in both 16 U.S-C. 50% and Section 402 of Reorganization Plan No. 3 of l946, 60 Stat. 1097, 1099. against mineral development absent the consent ot?the Secretary of Agriculture applies with equal force to the initial issuance of the lease and any renewal ofthat lease. Accordingly. the FS may consider any potential negative environmental impacts that might ?ow from mineral development on those leases and their effect on future national forest conditions. National Environmental Policy Act (NEPA) Applicability NEPA ensures lcderal agencies take into account signi?cant environmental matters in their decision making. and that they disclose to the public that the agency has considered environmental concerns. An environmental impact statement (HIS) must be prepared when an agency proposes to undertake a major federal action that may signi?cantly ai?thct the quality of the human environment. in summary. NEPA tasks agencies to assess changes in the physical environment caused by the action it proposes to authorize. Council on Environmental Quality regulations implementing NEPA are clear that a pt?oposai ?exists at that stage in the oi?an action when an agency subject to the Ant 1 has a goal'and is actively preparing to make a decision on one or more alternative means of accomplishing that goal and the effects can be meaningfully evaluated.? 40 .F .R. 1508.23. This provision is reinforced by instruction that major federal actions ?includes actions with effects. 40 C.F.R. 1598.18. FS NEPA regulations establish a four part test for determining when NEPAL obligations arise. including whether Forest Service has a goal and is activer preparing to make a decision on one or more alternative means of accomplishing that goal and the eft?ects can he meaningfully evaluated. . . 36 ERR. Thus, when the FS declines to authorize a private application, the more contemplation of that application does not constitute a federal proposal and the FS is not required to conduct an environmental analysis under NEPA. As it .is my determination not to consent to issuance of lease renewals based on the application before the agency at this time. preparation of an environmental analysis is not required. As further explained below, no signi?cant environmental effects will occur as a result of the agency's :no?consent dctennination. This outcome is entirely in keeping with and its implementing regulations. Situations like this pose the unusual question of whether NEPA requires consideration of environmental effects of federal actions that foreclose development or use of natural resources. NEPA does not require- a federal agency to consider effects arising liom an action it has declined to allow third parties to undertake when that does not represent change in the physical environment caused by the federal Enclosure 3 Ncii Kor?rtze 0 action itself. in other words, only federal actions with signi?cant environmental effects trigger detailed statement requirement. Actions which do nothing to alter the natural physical environment and maintain the environmental status quo are not subject to NEPA. The FS routinely presereens non-mineral. Special use authorization appiications and agency regulations direct that nonconforming uses do not need to receive further evaluation and processing. See 36 CPR. 251.5402) (2). The F8 does not have regulations governing consideration oi'discretionary mineral leasing applications. but agency practice is consistent. As recently as 201-4. Regional Forester Atkinson rejected a request for consent to a prospecting permit on the Hiawatha National Forest without preparing a NEPA document. Diverting scarce budgetary resources to prepare NEPA documents for proposals that will not move forward trivializes NEPA and diminishes its utility in providing useful environmental analysis for actions that the agency accepts and actively evaluates for approval. In these circumstances, the Court of Appeals" Eighth Circuit holding that at PS decision to refrain from using herbicides as a method of vegetation control is not a ?proposal or action to which NEPA can apply? pertains. Pesticide Infra-oratirm and fitted. ?re. it Esp}: 29 F.3d 4423;, 443 (3th Cir. W94). NFS Land Management Perspectives Hallela century has passed since ?l'MM?s leases were issued in 1966. The original leases were issued prior to statutes such as the National Historic Preservation Act of 1966. National Environmental Policy Act oi?1969, Clean Water Act of 1972. Endangered Species Act of I973, Nation-oi Forest Management Act of 1976. and Boundary Waters Canoe Area Wilderness Act of 1978. Without these laws in place the environmental consequences of potential ?commercial development [of the nickel and copper deposit] by a large-scale mining operation? originally envisioned by BLM in 1956 on what are now leases received markedly less consideration in comparison with current requirements. Given changes in policy and information availability, it is not unreasonable to anticipate a higher level of interest and concern regarding these consequences than when leases were originally issued. as demonstrated in the examples to follow. in 1991 the Minnesota Department ol?Na-tural Resources recognized the value of the for its scenic beauty and solitude by establishing a State Mineral Management Corridor. in light of surface water ?ow and recreational uses. no surface disturbance or state ieases may he offered in the Corridor. The State Mineral Management Corridor overlaps with federal lease MNES- 1353. The federal relationship with Native American tribes has also evolved signi?cantly over the 50 years since the TMM leases were issued. The F3 has a legal obligation to acknowledge rights of Tribes and tribal members. including off~resctvation rights to hunt. can gather and continue cultural and spiritual practices. Such recognition did not occur until the late 19705 when Indians began to assert their rights to oftlreservation resources in federal court. including those rights to fish and gather wild rice. (195g: Lac Comte Oret'?es Bond afloat) Superior Chippeu-rr Indians v. State ofll?u 653 F. Supp. i420 (WD. Wis. '1 987) Lac Courts {)reifes? Bond of?ine Enclosure 3 Neil Romeo 1 Superior C?hippeu-?rt tedious a. Store oft-Visa. 668 F. Supp. 1233 (WD. is. 198?) (LCD WI). No documentation suggests that consultation occurred or treaty rights were considered in the 1966 decision to grant the two leases. Finally, since the last renewal ot?TMM?s leases in 20-04. we have gained experience with copper sul?de ore mining in different parts of the country. it is clear that these types of mines pose substantial risk of failure and environmental mitigation and remediation technologies are limited. and often ineffective. as discussed later in this letter. Awareness of the effects of mining, speci?cally those from copper-nickel mining. has increased since 2004. While economic values are important to area communities and the nation, preserving Wilderness Areas and their associated qualities also have natimtal and local support and precedent. Evaluation of the Present Lease Application In light of the 'M-Opinion?s legal conclusion that TMM does not have the right to automatic renewal of its leases and 353. on March 8. 2016 the BLM noti?ed TMM that the agency would review the company?s lease react-val application using the same criteria that are employed in deciding whether to grant initial ha.rdrock mineral leases. The letter also speci?ed that as part of its consideration ol?TMM's lease renewal application. the BLM would ask the FS whether it consents to the leases renewal. In response to the June 3, 2016 letter making that request of the the agency hogan considering whether to consent to the renewal of leases based upon the agency?s recognition that it has full discretion to consent or withhold consent to the renewal of two leases. As noted above. CEQ and t3 NtiiPA regulations make clear that an application must be accepted by the agency as a proposal be?tre NEPA obligations are triggered. At this time, the will not consent to lease renewal based on the submitted application and therefore does not have a goal that it is actively pursuing to authorize such activities. For this reason, no NEPA analysis is required. Acid Mine Drainage Bedrock geochemistry in northeastern Minnesota plays a large role in the low buffering capacity of the lakes and streams in the region. Both the Minnesota Pollution Control Agency and the Environmental Protection Agency (EPA) have identi?ed the surface waters of northeastern Minnesota as sensitive to changes in pH, acid deposition. and acid runoff. Unlike surface waters hounded by carbonate bedrock? or relatively thick carbonate rich glacial till where neutralization of acid runoff occurs through dissolution ot'limestone and cxsolution ot?carbon dioxide from water, the waters of northeastern Minnesota are largely underlain by igneous and metamorphic bedrock with thin overlying soils and surficial deposits with little acid neutralization capacity. A risk el?tnining development is acid mine drainage (AMD). AMD generally occurs when sul?de minerals present in one bodies and rock overburden are exposed to air and water. 'lhe exposure to air (oxidation) and water (hydrolysis) creates sulfuric acid, which subsequently increases water pit and leeches harmful metals such as copper, zinc, lead, cadmium, iron and nickel. FS data indicates between 20,000 and 50,000 mines currently generate acid on lands managed by the agency. Negative impacts from these mines affect 8.000 to l6,000 km of Enclosure 3 Neil Kornze streams. While AMD can originate naturally from the ore body itsell: its likelihood is dramatically increased by the generation ol?an}: mining product (stockpiles. overburden. and tailings) exposed to air and water. and can continue for decades- llardrock mines in sulfide bearing mineralization are known worldwide for producing AMI) that requires continuous management and perpetual water treatment. Production is prevalent in all mining operation elements: construction, waste nick, tailings, and mine structures such as pits and underground workings. Acid drainage is one ol? the most significant potential environmental impacts at hardka mine sites. Water from a mine site could potentially enter sir-suns and lakes through wastewater treatment plant discharges. runoff and leakage, concentrate spills. pipeline spills. truck accidents, spillway releases, tailings dam failures, tit-tater collection and treatment operation failures, and post-closure failures. All carry some risk to the environment. The magnitude and setting ofa failure would drive the signi?cance of the environmental risk and its potential impact. The AMD increases lake and stream acidity, with potential risks to aquatic life including sport ?sheries, A decline in water quality and aquatic species would have a negative ell?eet on recreational visitors to the BWCAW. For example, the USGS estimated that in 2010 approximately 31100 miles of streams degraded by acid mine drainage led to approximately $67 million in lost sport fishing revenue each year. Mining accidents are inherently unpredictable and can result from geotechnical failures or human error. Other circumstances that can at?leact the likelihood of mining failures or discharges include changing metals markets, financial crises. political events, and climate change. in addition. climatic trends affecting the frequency and magnitude of" storm events and seasonal temperatures could lead to unpredicted environmental changes in vegetative composition. water quality and quantity. and wildlife habitat making the environment more susceptible to damage resulting from mining operations. There is a direct ?ow of water from the lands subject to [crises to the BWCAW. Speci?cally. the leases are located within the South Kawishiwi River Watershed and the Birch Lake Watershed which both are catchments of the Rain}r River Watershed. Water ?ows from the lands embraced by the northern lease into the South Kawisliiwl River which in turn ?ows into Birch Lake. Water from the lands embraced by the southern lease also flows into Birch Lake and Birch Lake empties into the main Kawishiwi River and then into the leases overlay the Duluth Complex known for nickel-copper?platinum group elemcnt ore deposits. Due to the inherent sulfide chemistry of this ore type. mining facilities and byproducts can produce signi?cant amounts of acid. Consistent with the footprint and infrastructure of similar mines. as well as publically available preliminary from TMM about this speci?c site. potential project area could include underground minets) producing mainly copper and nickel. plus smaller amounts of other metals. project would require a concentrator thcility (potentially 1-2 miles west ofthc a tailing storage ,theility (potentially 13- miles southwest ot?concentrator). and connecting utility corridors. The utility corridors would include roads. rail lines, power transmission lines, natural gas pipelines, tailing - Enclosure 3 Neil Kornze and concentrate pipelines. and water pipelines. Pro-Feasibility Study also reveals that its project would involve four delineated ore bodies Maturi, Maturi Southwest, Birch and Spruce Road ail of which are nerd: and east ofthe I..aurentian Divide and thus in the watershed draining towards BWCAW. mining operations are expected to dispose of some waste rock and tailings underground. Other waste rock and tailings mould be disposed of using surface facilities. All of the waste rock and tailings derived from the sul?de ore bodies on the leases wouid have a high likelihood of oxidizing and becoming sources of AMI). Technical Report on Pro-?Feasibility Study shows that subsurface mining operations would occur north of the Divide and present contamination risks. That is also true ofTM M?s ore processing concentrator facilities. But Technical Report on Pie-Feasibility Study shows that ?i?MM's disposal facilities potentially'wouid be south of Laurentian Divide in the Superior Watershed. which drains away from the BWCAW. There are limitations in understanding the Full contours of the mineral operations that ultimately might occur on ?I?Mhrt?s leases, including the location of important features such as its tailings disposal facilities. The professibilit}? study is an economic feasibility anaiysis, not 'thth?s final proposal to mine the hardrock mineral deposits. But pursuant to the terms ot?hoth 16 .SC. 50% and Section 402 of Reorganization Plan No. 3 of 1946. 60 Stat. 1097. 1099?1 100. the consent is required for hardrock mineral development and the purpose of any lease. whether it is one issued in the ?rst instance or a subsequent renewal, is mineral development. indeed, the M- Opinion explicitly recognizes that "the entire purpose" ot?a mineral lease is "for the lessee to develop the minerals. Another ltd-Opinion reports that since the 19705 hardrock proSpecting permits for NF lands, which are the precursor for the issuance of Preference Right hardrock mineral teases inciuding and have been issued subject to the condition that "no mineral development ofany type is authorized hereby." ltd-36993, Options Regarding Applications For Hardroclt Mineral Permits on Acquired Lands Near A Unit National Park System (1998 WL 3515279? (April 16, 1998)). See atrojohuA. Nefertiti (Tamra Costa Youth Association. 80 IBLA 14. 26 U984) {concurring opinion) (development under a preference right lease ?is a, logicain foreseen reatilt ot'successful prospecting?). Another factor relevant to assessing the likelihood develops a mine on the lands subject to the two leases it seeks to renew is that the waters in the Rainy River watershed ?ow largely through bedrock fractures with limited carbonate rock surface area. Therefore the watershed has low capacity to buffer AMI). In sum, given the hydrology and hydrogeology of this area. the likelihood of these ore bodies being. exposed to water is very high, and given these particular ore bodies? composition. resulting drainage from the mine workings and mining wastes are likely to be highly acidic. Lessons from Similar Copper Sul?de Mines Contamination from mining operations can also occur instantaneously via catastrophic failure of the type that occurred in 2014 at the Mount. Pulley Mine in British Columbia, Canada and at . other copper mines. A review of quality impacts from 14 operating US. copper sul?de Enclosure 3 Neil Kornzc i4 mines toned: 180% ofthe mines experienced pipeline spills or accidental releases; 13 of 14 minesi water collection and treatment systems failed to control contaminated mine seepage resulting in signi?cant water quality impacts: tailings spills occurred at 9 operations; and a partial failure oftailing impoundments occurred at 4 mines. The inherent risks of mining hardrock mineral deposits on the lands leased to TMM set a high bar for potential mineral development within this watershed due to potentially severe consequences for the BWCA resulting from such failures. Because of the hydrology and hydrogeology of this particular area, should contamination occur, it could cover a. very broad region. Recent reviews of similar mining proposals in Minnesota and Alaska highlight inherent risks of metal mining to natural resources, and provide examples of risks associated with long term effectiveness of planned containment strategies. In Minnesota, the Final Environmental impact Statement for nearby Mining Project and Land Exchange recognizes that no matter the depth of analysis and planned containment strategies there remain uncertainties associated with mine development. operation and long?term water and waste rock treatment. Similarly, the EPA, in a l?roposal Determination Pursuant to Section 4040:} of the Clean Water Act for the Pebble Mine in Alaska, warns that, ?There is also real uncertainty as to whether severe accidents or failures, such as a complete wastewater treatment plant failure or a tailings darn failure, could be adequater presented over a management horizon or even in perpetuity, particularly in such a geographically remote area subject to climate extremes. if such events were to occur, they would have prolhuud ecological rami?cations.? While the rami?cations of these risks are possibly greater in the case of the Pebbic Mine, due to its location, the BWCAW shares many similarities in terms ol'hydrogeology, extreme weather and remoteness. Unique Attributes of Copper Sulfide Ore Mining, in the BWCAW Region Many operating copper mines in the United States are situated in the arid southwest or other drier areas ot?the Nation. Northern Minnesota has an established history of tacouitc mining - indeed, the region to the west ol'the lease sites is known as the ?Iron Range.? However, taconite is an domineering, oxide ore, Mining ol? the copper-nickel sulfide ore found on leases is untested in Northern Minnesota. This lack of experience with copper?nickel sulfide ore mines in environments with the complex hydrogeology of northern Minnesota complicates assessment of the consequences ofmining operations on 'l'MM?s leases, which could occur if those leases are renewed. Another variable in assessing the consecutences of these operations is climate change. In Minnesota, mean annual temperatures are expected to continue rising and precipitation is expected to increase, along with the size and magnitude of weather events. An increase in precipitation and water supply in association with signi?cant events could exacerbate the likelihood of AMD and water resource contamination. The projected changes in climate and associated impacts and vulnerabilities would have important implications for economically important timber species, forest dependent wildlife and plants, recreation, and long-range planning. The combined impacts of contaminants from mineral development and climate change could impact the ecosystem resilience of the BWCAW and the Superior National Forest outside of the wilderness. Enclosure 3 Neil Kornzc l5 The NerthMet Mining Project and [.and Exchange, the first copper-nickel mine proposed in Minnesota. has Similar concerns regarding AMD, climate change. and water qualitylhese concerns were addressed in linal EIS through engineering. permitting. and monitoring requirements. Signi?cantly, the NorthMet project is located in an area either previously disturbed andfor surrounded by brown-field taconite open pit mines and waste piles in the Laurentian Watershed. which drains away from the CAW . In contrast. leases are in close proximity to the and within its high quality watershed resource of outstanding value. The inherent and legislated wilderness values and untrammeled qualities of the BWCAW contrast with the extensively disturbed surroundings of NorthMet?s location. Additionally, if there is any potential for NorthMet?s copper-niche! mining project to sill-Eel the BWCAW and MFA. this potential would be far less than that associated with any copper?nickel mining operations TMM might ultimately conduct. if ultimately conducts mining operations on lands subject to its two leases and they result in AMI), metal. leaching. and water contamination, very few of the available containment and remediation strategies would be compatible with maintaining the quality and character. Available containment and remediation strategies such as sediment basins. water diversions, or construction and operation of water treatment plants have the potential to deleteriously affect the BWCAW. Ot?particular concern. given the location ofTMM?s leases. is the effectiveness of available methods to counteract AMD in the ease ol?seepage, spills, or facility failures. Water is the basic transport medium for contaminants. Consequently. all measures aimed at controlling AMI) generation and migration involve controlling water flow. To reduce the generation and release ot?Aile. the in?ltration of meteoric water (rain and snow) can be retarded through the use of sealing layers and the installation of under-drains, respectively. Diversion of contaminated water most conunonly requires installation of or sedimentation ponds. But even with the use of these measures successful long?term isolation of intercepted contaminated groundwater is. at best, very difficult to achieve. Moreover, even if available remediation techniques to handle contaminated water. such as ?ushing. containment and evaporation, discharge through wetlands, neutralization and precipitation, desalination. water treatment plant construction and operation, utilization of ditches or sedimentation ponds, and installation of cut-off walls. trenches or wells, are reflective, very few. if any. of them are compatible with maintaining the quality and character of BWCAW and MPA, as required by the Boundary Water Canoe Area Wilderness Act. Given the leases? proximity to the boundary (adjacent to in one case and less than 3 miles distant in the other) and the direct transport route of surface water from Birch Lake and the Kawishiwi River, it. is reasonable to expect direct effects of any mining operations on those leases to the BWCAW and MFA. I Potential impacts to Water. Fish. and Wildlife As noted above. the potential for environmental harm is inherent to copper-nickel and other sulfide-bearing ore mining operations. This potential exists during all phases of mine development, mineral extraction and processing. and long?term mine closure and remediation. Expected environmental harm could encompass damage to both surface and groundwater resources, including changes in water quantity. duality, and ?ow direction. contamination with acid and leached metals resulting from AMD and railings disposal facility thitures. and more. It Enclosure 3 Neil Kornze l6 is also well established that this emironmental damage can adverser lish populations and aquatic ecosystems directly and by indirect effects on food supplies and habitat. Recognizing this potential harm. the second edition Rainyiake of the Woods State of the. Basin Report (20l 4} recommends scienti?cally examining the effect of new mining proposals on water quality in the Rainy River Watershed. leaseholds lie within the Rainy River?s Birch Lake SubJ?V'atershed (HUC 10) \tv'hich the SNF has identi?ed as a priorin watershed per the Watershed Condition Framework. The Framework is a comprehensive approach for: I) evaluating the condition. of watersheds, 2) strategically implementing integrated restoration, and 3} tracking and monitoring outcome based program accomplishments. According to the Watershed Restoration Action Plan for Birch Lake the watershed is currently function-ting at risk. based on Fair ratings for aquatic biotic condition. water quality condition. aquatic habitat condition. soil condition, and tire cf?l?eetsf?re regime condition. The Action Plan recognizes that further development in the watershed has the potential to move the watershed from its suboptimal level of functioning at risk to the worst level of impaired functioning. As noted pres-riously, the BWCAW and SNF are home to dozens of sensitive species. Three species, the Canada Lynx. gray wolf and northern long?cared bat. are listed as threatened. Crucially, the BWCAW and SNF are considered critical habitat for the threatened Canada Lynx. which requires spruce-?r boreal forest with dense understory. Canada I .3an cover large areas, traveling extensively throughout the year. numniru:r that development and habitat fragmentation can affect the viability populations. The threatened northern longmcarcd bat lives in both Lake and St. Louis County. where leases are located. The northern long-cared bat Spends "its winter hibernating in caves. in summer it roasts in both live and dead trees, as well as caves. Northern long?seared hat populations are under signi?cant stress from White-nose which has caused drastic declines in bat populations across the country. increased impacts to their habitat could exacerbate population decline. The gray wolf population in the western Great Lakes. including the WCAW, was realistcd as threatened in 2014 by the Fish and Wildlife Service. Gray wolves also cover large areas to hunt. so wolf populations can be impacted by development and habitat liagmentation. Other animals bene?t from wolves living in Minnesota as carcasses wolves leave behind feed many other animals. Northern Minnesota is one ofthe [cw places in the continental US. where visitors can see moose. However. the state?s iconic moose population continues to decline decreasing by approximately 60 percent in the last decade, according to Minnesota?s State Department of Natural Resources. Given this population decline. the US. Fish and Wildlife Service initiated a status review for the .3. population of northwestern moose those in Michigan and Minnesota). The status review was initiated as a result ofa positive 90-day finding on a petition to list moose under the Endangered Species Act. FWS determined information in the petition provided substantial scienti?c or commercial information indicating that species listing may be warranted. Enclosure 3' Neil Kornze 17' Moose often gather around ponds. lake shores. bogs and streams where they feed on aquatic vegetation. 'i?hcy are under stress from climatic change, likely due to a greatly increased number of ticks brought about by warmer summers. Therefore they are ever more dependent on the extensive. high quality habitat available in the 13W CAW . Additional development, such as mining activit}r and associated road building. in the vicinity ol? the BWCAW could lead to habitat fragmentation that may further stress the moose population. While contamination ot'B WCAW waters by acid and leached metals could lead to habitat degradation that would also add to the moose population?s stress. The potential impacts of mining activities also could af?t?ect other species dependent upon forested areas through habit-at ii'agntentation. increased dispersal of invasive plant and animal species, and alterations to wildlife migration and residence patterns. Social and Economic Considerations The State ot?Minnesota has primary responsibilin under the Clean Water Act of 19?? to protect the water quality of the BWCAW and identifies the wilderness area as an ?outstanding resource value water? under Minnesota Rules (Minn. R. 70530180). That section also provides that ?[11]o person may cause or allow a new or expanded discharge ol?any sewage, industrial waste, or other waste to waters within the Boundary 1ilr?aters Canoe Area Wildemess.? On March 6. 2016. Minnesota Governor Mark Dayton sent, and publicly released. a letter to TMM stating that he had directed the State?s Department ot'Natural Resources ?not to authorize or enter into any new state access or lease agreements tier mining operations on those state lands? near the BWCAW. The stated he has grave concerns about. the use of state surface lands for mining near the ?lMly concern is for the inherent risks associated with any mining operation in close proximity to the BWCAW and about the State ot?Minnes-ota?s actively promoting advancement ot?such operations by permitting access to state lands." "As you know the is a crown jewel in Minnesota and a national treasure. It is the most visited wilderness in the eastern US, and a magni?cently unique assemblage of forest and waterbodies, an extra-ordinary legacy ot?wildemess adventure, and the home to iconic species like moose and I have an obligation to ensure it is not diminished in any way. Its uniqueness and fragility require that we exercise special care when we evaluate signi?cant land use changes in the area} and i am unwilling to take risks with that Minnesota environmental room." As a partner in managing and conserving natural resources within the State of Minnesota, the PS takes Governor Barton's statements seriously. The F8 shares many of the Governor?s These shared concerns also support the decision to withhold consent to renewal of leases 01352 and The F5 was aware ot?negatirc public sentiment regarding other mineral related projects on nearby SNF lands and many peoples concern about the possible renewal of leases WINES-01352 and 3'53. Consequently, on June 13, 2016 the FS announced it would provide a 30-day public input period commencing lane 20. 2016 and including a listening session on July 13. Enclosure 3 Neil Kornac . 18 201 6 to better understand public vice-*3 about renewal ol'TMM?s two leases. A second listening session on July t9. 2016 was subsequently announced. individuals and organizations expressed passionate views both in support of and opposition to renewing the leases during the input period and listening sessions. In addition. TMM submitted comments for the record during the public input period. Overall the FS received over 30,000 separate communications is response to the listening sessions. In total. this input provided FS decision makers the fullest possible understanding of 1 public views and concerns regarding the preposed lease renewals. Local sentiment is similarly mixed regarding the desirability of TMM developing a mine on the lands subject to its two leases. Northeastern Minnesota has a long history of mining, and much of the local economy along the Iron Range remains dependent on iron mining. Ely. Virginia; and other local communities, have a long-standing social identity associated with mining. During the two listening sessions, elected of?cials. union rt?tpresentatitit-3s= and miners expressed their concerns regarding the future of these communities, mining~associated tax levenues that support schools and local services. and high-payingjobs for future generations. These mining proponents often cited the potential economic bene?ts ot?miniug. should TMM develop a mine on its leases. They also stated that young people and families are leaving the area due to a depressed local economy. Mining proponents also referred to the need for strategic metals for American industry and national defense. including their use in sustainable technologies such as wind turbines and hybrid cars. Those who oppose TMME development ofa mine on the lands subject to its two leases emphasize the copper-nickel mining industry?s history of causing serious environmental hat-mo the potential mine?s proximity to the BWCAW. the interconnected hydrology of the leased lands and the BWCA W. and the probable negative impacts to water quality, quantity and aquatic ecosystems from. any mine TMM establish-es. These mining opponents often stated that mining has created a boom~bust economy that only now has stabilized with the creation of? sustainable recreation-based jobs reliant on an unspoiled environment. They also raised concerns about the probable negative impacts any TMM mine would have on the quality ot?individuals? future recreational experiences in the maintenance oi?thc wilderness character. and preservation ot?thc BWCAW for future generations. In its Technical Report on l?re~Feasibility Study, TMM estimates the company?s initial capital investment for mine construction will be billion while over the projected 30-year life ot'the mine its total capital investment will be $5.41 billion- TMM also estimates the potential economic contributions ol?mining the copper-nickel depOSits underlying its two leases could include the need for close to 12 million labor hours during the estimated three-year mine construction period and approximately 350 full-time jobs when the mine becomes operational. Based on accepted multipliers ol?direct and indirect economic contribution, il?MM?s mining operations predicated upon its two leases might generate approximath 13004.900 additional indirect jobs in the region's economy. Conversely. across the country. counties with designated wilderness areas are associated with - rapid population growth, greater employment, and enhanced personal income growth, relative to Enclosure 3 Neil Kornze l9 counties lacking wilderness areas- This attributable to the increasing mobility of service jobs, and many entrepreneurs? preference to locate their businesses in areas ol?l?ering a high quality of life. Speci?cally. up to l50,000 visitors visit the BWCAW annually. Economic benefits generated by EWCr-?tW-related recreation have been estimated at approximately $44.5 million annually. The wilderness recreation-based tourism and any derivative economic return is dependent upon preserving the BW natural quality and wildemess character. i th passage ot? the Boundary Waters Canoe Area Wilderness Act in 1978. the business model of industries and communities associated with the BWCAW shifted- Timber production was halted. Many resorts located within the wilderness were bought out by the federal government and others received ?nancial assistance to shift to a wilderness based business model. Gateway communities such as Elya Toftc and Grand Marais have also shifted to wilderness based economies? While the transition has been long and often dif?cult these communities are new highly dependent on revenue generated by the for economic sustainability. Potential unlbres-een impacts to natural resources and "water quality within the BWCAW would liker result in substantial economic impacts to established local businesses and communities now dependent upon a wilderness based business model. On April 5. 2015. Congresswoman Brett}r McColltun (D-MN) introduced the National Park and Wilderness Waters Protection Act (HR. 1796}. The Act would withdraw all federal lands in the Rainy River Watershed from the mining laws the mineral leasing laws. and the laws governing the disposal of mineral ittaterials. subject to valid existing rights. The Act also would additional restrictions on the issuance ol?any lease or permit for mineral related activities. In a February 2, 2016., letter to the Secretaries ol?Agricultui-e and the interior and the Director of CEQ. Congresswoman McCollum urged them ?to inunediately take action to protect two of America?s natural treasures - the BWCAW and Voyageurs National Park.? Specifically, Congresswoman McCollum requested the denial of TM "s requested lease renewals and administrative withdrawal of the Rainy River watershed- Former Vice President and fonner Minnesota Senator~~Waltcr Mondale also has advocated that the Department of the Interior deny the renewal ol?TMM?s leases and withdraw all federal minerals in the watershed. On April l. 2016. he wrote that ?Arizona has its Grand Canyon, Wyoming its Yellowstone, Califomia. its Yosemite. These wonder-s come to mind unbidden as images of a place when those states are named. The Boundary Waters is such an image Minnesota.? Vice President Mondale goes on to say: ?Vice President Hubert Humphrey and were deeply committed to protection ofthc Boundary Waters and its precious waters, Although we were mindful of the need the jobs. we knew that it was important to protect the magni?cence of the Boundaryr Waters. The Twin Metals mining proposal lacks this balance. That means that today I join Minnesota?s Gov. Mark Dayton and urge the Federal land management agencies to continue the work of nearly 100 years and to ensure that the Boundary Waters wilderness remains the place it is today." Then in a .luly l, 7016 letter characterizing the as pristine and irreplaceable wilderness, Vice President Mondale warned that the kind of heavy?metal mining that TMM proposes: Enclosure 3 Neil Kornze Ell ?is in a destructive class all its own. Enormous amounts of unusable waste rock containing sul?des are left behind on the surface. A byproduct of this kind of mining is sulfuric acid, which often ?nds its way into nearby waterways. Similar mines around the country have already poisoned lakes and thousands of miles of streams. The consequence of acid mine drainage polluting the pristine Boundary Waters would be catastrophic. it is a risk we simply can?t take." Conclusion The PS understands the important economic and national security benefits provided by mineral extraction and supports mining as a legitimate activity on NF lands. However, mining is not appropriate on all places within the NFS or on every acre lands. When evaluating whether to consent to issuance of an initial lease or the lease?s renewaL the FS may consider the unique ecological and cultural attributes ofall NFS lands that might be adversely allected by mineral development on the leasehold along with the social and economic consequences that could flow from both a decision to consent and to withhold consent. The PS also has an af?rmative responsibility to protect and maintain the character and quality of the BWCAW and MPA for present and future generations. Sec. 2, Pub. L. 95-495, 92 Stat. 1-649 Thus the agency may weigh the possible benefits ot'TMM"s potential mineral development against the possible harm ?l'MM's potential mineral development might do to the uniquely - valuable landscape. TMM's potential mineral development on its two 'leaseholds might contribute markedly to employment and economic growth in St. Louis County, Lake County, and nearby areas. Copper- nickcl mining conducted by TMM also 1would furnish metals important to US, industries and modern technology. Deposits ot?copper are relatively abundant in the United States and many operating copper mines in the United States are situated in arid or drier areas oi'the Nation where their potential for environmental harm maybe reduced. The United States Geological Survey reported that as ol?2015 there was only one operating nickel mine in the United States but nonetheless nickel was in oversupply and three other US. mining projects that would supply nickel were in developman The BWCAW contributes to the cultural and economic sustainability ol?communities within the State ofMinnesota, the Nation and beyond and to the ecological sustainability ot?uniqne landscapes and rare species dependent upon those landscapes that are valued withi the State of Minnesota, the Nation and beyond. The BWCAW is irreplaceable, but likely irreparable in the event of its signi?cant degradation. Based on information provided by to date its Technical Pro-Feasibility Report), existing science, and examination of similar proposals, there is no reason to doubt that the mining operations TMM hopes to eventually conduct could result in .AMD and concomitant metal leaching both during and after mineral development given the sought after copper-?nickel ore is sul:tidic. This fact is very significant given 'l?MM's two leases are adjacent or proximate to the BWCAW and within the same watershed as the wilderness. it might be possible for TMM to develop a mine which employs mitigation and containment strategies that reduce the mines potential to cause AMD and leached metals that could harm the wilderness. However, at the very least it is equally possible that available water treatment technologies would be unable to prevent the spread of any AMD and leached metals in the watershed. Further, there appears to be even Enclosure 3 Neil Kornze 2 less likelihood that any-contamination ol? the BWCAW resulting from mining operations could later be remediated, especially not in a manner compatible with the BWCAW's wilderness character. Moreover, any degree of contamination of the BWCAW by AMD and leached metals has the potential to seriously degrade the wilderness area?s character and quality. Thus. even if the probability that mining operations might generate and release of AMD and leached metals was very low. which the FS does not believe to be the case, the environmental harm to the BWC AW that could result from any contamination ol?thc area with AMD and leached metals might be extreme. Failing to prevent such damage also is contrary to Congress? determination that it is necessary to "protect the special qualities of the as a natural forest-lakcland wildcmess ecosystem of major esthetie. cultural. scienti?c, recreational and educational value to the Nation." Sec. 1. Pub. L. 95-495. 92 Stat. I649 (l978). Balancing what are primarily economic bene?ts of the mining operations that TMM hopes to conduct in connection with the renewal of its two leaxs against even a remote possibility of damaging the unique ecosystem that Minnesota elected otlieials have tittingly called irreplaceable and a national treasure?makes it clear that it is incumbent upon the PS to withhold consent to the renewal ol?TMM?s leases MNES-01352 and This decision withholding consent to the renewal of leases is subject to discretionary review by the Under Secretary for Natural Resources and Environment pursuant to 36 2 I but not appeal pursuant to 36 (ERR. part 2 4 (36 (ERR. No additional inl'onnation may be considered by the Under Secretary for Natural Resources and Environment in connection with the discretionary review of this decision (36 C.F.R. 214.l9(b) Sincerely. ?aim THOMAS Chief Attachment C December 15, 2016 Decision to Not Renew Mineral Leases Karen E. Mouritsen State Director, Eastern States BLM Office mum mm as mm: mini u; DEPARTMENT OF 941(le lulu? a! United States Department of the Interior BUREAU OF LAND MANAGEMENT Eastern States Office 20 Street, SE Suite 950 Washington, DC 20003 In Reply Refer To: 3500(930) MNES 01352, MNES 01353 CERTIFIED MAIL RETURN RECEIPT REQUESTED 7015 0640 0002 5642 3908 DECISION Mr. Ian Duckworth, Chief Operating Of?cer Leasing of Hardrock Minerals Twin Metals Minnesota Serial Number MNES 01352 380 St. Peter Street, Suite 705 Serial Number MNES 01353 St. Paul, MN 55102 Lease Renewal Application Rejected On December 14, 2016, the United States Forest Service (US. Forest Service or USFS) submitted a letter to the Bureau of Land Management (BLM) stating it did not consent to renewal of Preference Right Leases MNES 01352 and MNES 01353. As a result, with the approval of the Deputy Secretary, I hereby reject the application for renewal of these leases. The reasons for my decision to reject the lease renewals are set forth below. Background The Department of the Interior (DOI) Bureau of Land Management (BLM) Eastern States Office completed its review of the application for renewal of Preference Right Leases MNES 01352 and MNES 013 53, located within the Superior National Forest in Northern Minnesota, submitted by Twin Metals Minnesota (TMM), a subsidiary of ranconia Minerals (US) LLC, on October 21, 2012. The application for renewal was submittedtimely as the leases were scheduled to expire on January 1, 2014. The USF is the surface management agency for the lands where these two leases are located, and BLM has jurisdiction over the mineral rights. The predecessor in interest obtained the two original preference right leases that were issued in 1966 for a primary term of 20 years. The BLM issued two renewals, with US. Forest Service concurrence, in 1989 and 2004. Those leases allowed for the mining of copper, nickel, and associated minerals, but to date, TMM has not begun mineral production on either of the leases. The leases are located on the South Kawishiwi River on Superior NF lands south of the Boundary Waters Canoe Area (BWCA) Wilderness on acquired Weeks Act lands, as well as National Forest System lands reserved from the public domain and managed by USFS. These lands are not open to the operation of the Mining Law of 1872. Rather, the Secretary of the Interior?s (Secretary) authority, delegated to BLM, for mineral disposition on the acquired lands is in section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099?1100, and 16 U.S.C. 520, which governs mineral disposition on Weeks Act lands. The Secretary?s authority, delegated to BLM, for mineral disposition on reserved National Forest System lands in Minnesota is found in 16 U.S.C. 508b. For acquired lands, these authorities provide that ?mineral development on such lands shall be authorized by the Secretary only when he is advised by the Secretary of Agriculture that such development will not interfere with the primary purposes for which the land was acquired and only in accordance with such conditions as may be speci?ed by the Secretary of Agriculture in order to protect such purposes.? Section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099-1100. For public domain lands, the authorities provide that ?the development and utilization of such mineral deposits shall not be permitted by the Secretary of the Interior except with the consent of the Secretary of Agriculture.? 16 U.S.C. 508b. Since submission of the application for renewal of these Preference Right Leases, BLM has consulted with the DOI Of?ce of the Solicitor and the Department of Agriculture, U.S. Forest Service, about this application. In processing the application, BLM identified the need for a legal opinion to determine whether TMM has a non-discretionary right to renew the two preference right leases. The DOI Of?ce of the Solicitor (Solicitor) examined the issue. On March 8, 2016, the Solicitor issued Memorandum Opinion 37036 (M-Opinion) (Enclosure 1) determining that the lessee does not have a non?discretionary right to a third 10-year renewal and, therefore, that BLM has discretion to decide whether to grant or deny the application. The M-Opinion also noted that, even if the original 1966 lease terms apply, the renewal provision gives BLM discretion regarding whether to renew the leases and requires renewal as a matter of right only if the lessee has already begun production, which is not the case here. Therefore, BLM has discretion to grant or deny these leases and, in accordance with the relevant statutes identi?ed above and BLM regulations at 43 C.F.R. 3503.13, 3503.20, BLM must have written consent from the surface management agency to issue any permits or leases. U.S. Forest Service Consent Decision On June 3, 2016, BLM issued a letter to USF requesting a written decision on whether the Agency consents or does not consent to renewal of the leases (Enclosure 2). The USFS in turn issued a media release on June 13, 2016, announcing a 30?day period for public input. The USF held two listening sessions: one in Duluth, Minnesota, on July 12, 2016, and a second session in Ely, Minnesota, on July 19, 2016. On December 14. 2016. the US. Forest Service issued a letter stating it did not consent to the renewal of MN ES 0l352 and MNES 01353 (Enclosure 3). In its decision, USFS determined that these leases were inconsistent with the Agency?s af?nnative duty to protect and maintain the values in the BWCA Wilderness, embodied by the directive in the 2004 Superior National Forest Plan to manage the BWCA Wilderness in such a manner that ?perpetuates and protects its unique natural ecosystems, provides an enduring wilderness resource for future generations, and provides opportunities for a primitive and uncon?ned recreation experience.? in considering this renewal application, the Agency identi?ed grave concerns that the development of the copper sulfide-ore mining in the Rainy River Watershed, in particular the MNES 01352 and 01353 mineral leases, risks seriously impairing the ecosystem health of the wilderness area, and with it, poses unacceptable risks to the wildlife, recreational uses, tribal hunting, ?shing, and usufructuary rights, and tourism industry that depend on the pristine nature of the BWCA Wilderness. Conclusion As stated above, in accordance with section 402 of Reorganization Plan No. 3 of 1946. 60 Stat. 1097, 1099?1100, 16 U.S.C. 520, 16 U.S.C. 508b, and BLM regulations in 43 C.F.R. Subpart 3503, BLM must have written consent from the surface management agency before it may issue the leases on both public domain and acquired lands. In this instance, because USFS did not consent, BLM cannot grant your application for renewal of leases MNFS 01352 and MN 01353 and hereby rejects the lease renewal application. Final Agency Action It is my decision to reject your application to renew Twin Metals Leases MNES 01352 and MNES 01353 based on decision on December 14, 2016, not to consent. The lease expires upon receipt of this notice. 43 CPR. 3514.25. We are providing you 30 days to remove equipment ?'om the lease and remediate existing boreholes. If more time is needed, please contact the BLM Northeastern States District Manager to arrange for additional time for equipment removal and remediation. State Director Eastern States Office, BLM Attachment March 8, 2016 Lease Rejection Opinion Letter - Solicitor Hilary Tompkins Enclosure 1 United States Department of the Interior OFFICE or THE Soucrron 1849 STREET MW. DC 20240 M37036 MAR 5 it 2016 Memorandum To: Director, Bureau of Land Management From: Solicitor Subject: Twin Metals Minnesota Application to Renew Preference Right Leases (MNES- 01352 and WES-01353) The Bureau of Land Management (BLM) has asked whether it has the discretion to grant or deny Twin Metals Minnesota?s pending application for renewal ol'two hardrock preference right leases in northern I conclude that Twin Metals Minnesota does not have a non- discretionary right to renewal, but rather the BLM has discretion to grant or deny the pending renewal application. Background On October 21, 2012, Twin Metals Minnesota (TMM) submitted an application to renew two preference right leases WINES-01352 and WINES-01353) for lands that are located near the southern boundary of the Boundary Waters Canoe Area Wilderness in northern Minnesota.2 The two leases at issue are located on acquired Weeks Act lands, as well as National Forest System lands reserved from the public domain and managed by the United States Forest Service. The Secretary?s authority, delegated to the BLM, for mineral disposition on the acquired lands is in section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099-1 100, and 16 U.S.C. 520, which governs mineral disposition on Weeks Act lands. The Secretary?s authority, delegated to the BLM, for mineral disposition on reserved National Forest System lands in Minnesota is in 16 U.S.C. 508b. The BLM originally awarded the leases on June 1, 1966, for a primary term of twenty years, with the possibility of three ten-year renewals.3 On May 14, 1986, the lessee timely applied for a renewal .4 After receiving legal advice from the Of?ce of the Solicitor that the lease terms allowed for a renewal, the BLM granted a renewal of the leases on July 1, 1989, for a period of This memorandum does not address issues related to National Environmental Poiicy Act compiiance or any other legal issues surrounding these leases. 2 The Chippewa in Minnesota have hunting, ?shing, and other usu?'uctuary rights in the northeast portion of the state of Minnesota under the 1354 Treaty of LaPointe. Treaty with the Chippewa, t0 Stat. 1109 (1854). See t966 teases 5. 4 The regulations at 43 CPR. 3522.14 (i985) state that renewal applications ?must be ?led in the appropriate land of?ce within 9t) days prior to the expiration oftlu: lease term." The lessee filed an application for extension of the term of the leases on May 1986?30 days before the end of the primary twenty~year ten'n on June 14, I936, which was ?within 90 days" ofthe lease expiration. Consequently, the renewal application was timely ?led. Enclosure 1 ten years.? TMM timely applied for a second renewal on March 15, 1999. The BLM renewed the leases on January 1, 2004.?5 The 2004 leases state that they are for a period often years, ?with preferential right in the lessee to renew for successive periods of 10 years under such tenns and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.? On October 21, 2012, TM timely applied to renew the leases once more" TMM has been conducting exploration activities on the leaseholds based on the 2004 leases while the BLM considers 2012 renewal application. Under the original 1966 lease terms, as discussed more fully below, the lessee was required to commence production within the twenty-year primary term to qualify for three renewals of right. The leases provided that if there was no production at the end of the primary term, the leases would and unless the Secretary granted a lease renewal to extend the time to commence production.? Although there has been no production, the operator held the leases under production waivers for ?ve years and then through payment of minimum royalties in lieu of production payments for the rest of the time, consistent with the provisions of the 1966 leases that were incorporated by reference in the 2004 leases. Those provisions stated that, beginning after the tenth year of the primary term, the lessee is required to mine a quantity of minerals such that the royalties would be equal to $5 per annum per acre for the primary term and $10 per armum per acre during each renewal or, in lieu of that production, pay royalties equal to the minimum royalty. See 1966 leases 2(0) (incorporated into section 14 of the 2004 leases). Section 2(a) of the 1966 leases allowed the lessor to waive, reduce, or suspend the minimum royalty payment for reasonable periods of time in the interest of conservation or when such action does not adversely a?'ect the interest ofthe United States inaccordance with 43 C.F.R. 3222.62. Id. According to the records, the BLM relied on section 2(c) of the 1966 leases to grant individual waivers of production and minimum royalties for each of the ?rst ?ve lease years after the tenth year of the leases, beginning on June 1, 1976, and ending May 31, 1981, while the State of Minnesota was conducting environmental studies on the proposed mining operations, The three-year time period benaeen the date on which the lessee ?led for the ?rst ten?year lease renewal and the date on which the lease renewal was approved appears to have been due to BLM's consideration of the lessee?s minimum royalty waiver request, coordination efforts between the United State Forest Service and the BLM regarding the Forest Service approval for the renewals, and the consideration regarding the terms of the lease renetval. The lessce's application for a second renewal on March 15, I999 was 109 days before the end of the ?rst lease renewal on July 1, 1999. The regulations in force in 1999 state that application for lease renewal shall he ?led at least 90 days prior to the expiration ofthe lease tom" 43 C.F.R. 3528.! (1998). Consequently, the 1999 renewal application was timely ?led. The time period between the lessee's ?ling of the second renewal application in March 1999 and the BLM's approval of the lease renewal in January 20M appears to have been due to coordination e?'orts between the United States Forest Service and the BLM, as well a the internal review recess. The 2012 renewal application was submitted 438 days before the end of the second renewal on January I, 2014. The timing requirements for ?ling a renewal application in the crorent regulations are the same as those in the regulations that were in force in 1999. In! 351127005). Consequently. the 2012 application was timely tiled. Section 5 oflhe 1955 leases contains de?nite conditions for allowing such an extension, in the interest or or upon a satisfactory showing by the lessee that the lease cannot be successlirlly operated at a pro?t or for other reasons. Enclosure 1 which prevented Alloys International, Inc. predecessor in interest at the time of BLM's waiver decision), from developing the leases.9 The BLM records show that ?led another production and minimum royalty waiver request on June 26, 1985, for the period of July 1, 1981, to June 30, 1986. In response, the BLM issued a decision on January 28, 1987, ?nding that Minnesota had completed its environmental studies in 1979 and that INCO had not ?led any mining applications or royalty waiver applications since 1981. The decision stated that "there is no evidence that International is diligently working towards the development of these leases.? Based on the conclusion that INCO had not met the obligations of the leases, the agency denied the production and royalty waiver request. The decision also noti?ed the lessee that all delinquent payments were due before the BLM cotdd process the ?rst lease renewals at that time.?I Although the records show that INCO failed to timely pay the annual rentals and minimum royalties in lieu of production for the lease years from June 1, 1981, to May 31, 1985 (a four?year period), once received notice ?'om the BLM about the delinquency, INCO paid the fees for all four years. Consequently, the royalty payment records of the Of?ce of Natural Resources Rwanue (ONRR) show that TMM and its predecessors paid the minimum royalties in lieu of production for each of the delinquent years?1981 to 1985. The ONRR records also show that TMM paid the minimum royalty in lieu of production payments from 1936 to the present. In preparing to respond to the 1985 royalty waiver request, the BLM sought legal advice from the Solicitor?s Of?ce, which led to a 1986 legal memorandum regarding the use of one of the three renewals identi?ed in section 5 of the 1966 leases to extend the time to commence production. This 1986 Associate Solicitor?s Op'mion is discussed below in this memorandum.? As to the rental payments, the regulations in effect before 1986 provided that the ?rental paid for any year shall be credited against any royalties for that year.? 43 CPR. (1985). Beginning in 1999, the regulations have provided that the Minerals Management Service (now ONRR) ?will credit your lease rental for any year against the ?rst production royalties or minimum royalties . . . as the royalties accrue under the lease during that year.? Id. 3504.16(e) (2014). The ONRR records show that has paid the rentals and those payments have been recouped for payment of a portion of the minimum royalty payments. Warn Three provisions in the 2004 leases pertinent to whether TMM has a non-discretionary right to renewal: . Part I. Lease Rights Granted: This Lease Renewal entered into by and between the United States of America, through the Bureau of Land Management, hereinafter called lessor, and American Copper a 9 These annual waivers, beginning in June I976 and ending in May 1981, served to waive the production and minimum royalty requirements of the leases for that time period. The noti?cation tenors that BLM sent to the lessee for each of these waivers state that a waiver of production and minimum royalty requirements is granted and do not gate that the lease term is being extended for the period of the suspension. As noted above. the lessee applied for its ?rst lease renewal in May I986. Under the 1966 lease terms, the twenty~year primary term was due to expire in June I986. See tot-o p.12. Enclosure 1 Nickel Company, 922 19? Street, Golden, Colorado, 80401, hereina?er called lessee, is effective Jan-1 2004, for a period of 10 years, Sodium, Suiphur, Hat-drool: with preferential right in the lessee to renew for successive periods of 10 years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless othensise provided by law at the expiration of any period. Part 1, Section 2: Lessor, in consideration of any bonuses, rents, and royalties to be paid, and the conditions and covenants to be observed as herein set forth, hereby grants and leases to lessee the exclusive right and privilege to explore for, drill for, mine, extract, remove, bene?ciate, concentrate, or otherwise process and dispose of the copper deposits nickel 36 associated minerals hereinafter referred to as ?leased deposits,? in, upon, or under the following described lands: . . . . Part II, Section 14. Special Stipulations: The terms and conditions of the production royalties remains as stated in the attached original lease agreement [referring to the 1966 lease]. The minimum annual production and minimum royalty is 10.00 per acre or a fraction thereof as stated in the attached original lease agreement [referring to the 1966 lease]. Because the provisions of the 2004 leases govern for the reasons set forth below, the renewal provisions of the 1966 leases are not applicable. Nevertheless, to provide a comprehensive analysis, the renewal provisions of the 1966 leases are discussed in the analysis that follows. The three relevant provisions in the 1966 leases are: Introductory clause: This lease entered into . . . between the United States of America, as Lessor, through the Bureau of Land Management, and predecessor], as Lessee, pursuant . to the authority set out in, and subject to, Section 402 of the President?s Reorganimtion Plan No. 3 of 1946, 60 Stat. 1099, and the Act ofJune 30, 1950, 64 Stat. 311, and to all regulations of the Secretary of the Interior now in force when not inconsistent with any of the provisions herein. Section W. In consideration of the rents and royalties to be paid and conditions and coVenants to he observed as herein set forth the Lessor grants to the Lessee, subject to all privileges and uses heretofore duly authorized and prior valid claims, the exclusive right to mine, remove, and dispose of all the copper and/or nickel minerals and associated minerals . . . in, upon, or under [the described lands] . . . together with the right to construct and maintain thereon such structures and other facilities as may be necessary or convenient for the mining, preparation, and removal of said minerals, for a period of twenty (20) years with a right in the Lessee to renew the same for successive Enclosure 1 periods often (10) years each in accordance with rogulation 43 C.F.R. 3221.43) and the provisions of this lease. Section 5: Mallow. The Lessor shall have the right to reasonably readjust and for royalties payable hereunder at the end of the primary term of this lease and thereafter at the end of each successive renewal thereof unless otherwise provided by the law at the time of the expiration of any such period, and to readjust other terms and conditions of the lease, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover; provided, however, that the Lessee shall have the right to three successive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day. The Secretary of the Interior may gent extensions of time for commencement of production in the interest of conservation or upon a satisfactory showing by the Lessee that the lease cannot be successfully operated at a pro?t or for other reasons, and the Lessee shall be entitled to renewal as herein provided without readjustment except of royalties payable hereunder if at the end of the primary or renewal period such an extension shall be in effect, but the Lessee shall not be entitled to subsequent such renewals unless it shalt have begun production within the extended time. Ifthe Lessee shall be entitled to renewal without readjustment except of royalties payable hereunder, the Secretary of the Interior may in his discretion increase the royalty rate prescribed in subsectionfb) of Section 2 up to, but not exceeding 5% during the ?rst ten-year renewal period, (ii) 6% during the second ten-year renewal period, and 7% during the third ten?year renewal period. The extent of readjustmont of royalty, if any to be made under this section shall be determined prior to the commencement of the renewal period. . Auslxais The renewal rights of are governed by the applicable provisions of leases MNES 01352 and MNES 01353. At this time, the 2004 renewal leases are in effect, and they use the standard renewal language that has been in place since the 19803. In particular, the 2004 lease renewal terms grant the ?preferential right in the lessee to renew for successive periods often years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.? The Department has consistently interpreted this provision as not entitling the lessee to an automatic right of renewal: ?This preferential right of renewal does not entitle the lessee to renewal of the lease but ?gives the renewal lease applicant the legal right to be preferred against other parties, should the Secretary, in the exercise of his discretion, decide to continue leasing.? Gen. Chem. (Sada Ash) Partners, 176 IBLA l, 3 (2008) (emphasis in original) (quoting Sodium Lease Renewals, M- 36943, 89 Interior Dec. 173, 178 (1982) (1982 Solicitor?s Opinion)). The Interior Board of Land Appeals (IBLA) noted further that the ?Secretary may exercise his discretionary authority in renewing a lease in the same manner as in issuing an initial lease.? Id. Enclosure 1 In reaching this conclusion, I have care?tlly considered contention that the terms of the 1966 leases govern and require the BLM to renew the leases for a third ten-year term. As discussed below, I have concluded that the terms of the 2004 leases govern and that, in any event, the renewal provisions of the 1966 leases give the BLM discretion regarding whether to renew-the leases. The 2004 leases are each complete, integrated docmnents that contain all necessary lease terms and are duly signed by the lessee and lesser. The degree to which the original 1966 leases continue in effect are speci?cally described in the 2004 leases, with two special stipulations that incorporate by reference only two provisions from the 1966 leases. 2004 leases 14. The ?rst stipulation states that the ?terms and conditions of the production royalties remains as stated in the attached original lease agreement.? The second states that the ?minimum annual production and minimum royalty is $10.00 per acre or ?'action thereof as stated in the attached original lease agreement." Neither of these imported provisions includes the lease renewal provisions of the 1966 leases. Consequently, since at least the time that the BLM and the lessee signed the 2004 lease renewals, the renewal provisions of the 1966 leases have no longer applied and the only renewal terms are those described in the 2004 leases, as quoted in the previous paragraph Based on that well understood and unambiguous renewal language, the BLM has the same discretionary authority in considering whether to renew the 2004 leases as it had in issuing the initial 1966 leases. In a recent memorandum to me from TMM's legal counsel,'2 TMM asks the BLM to ignore the plain renewal terms of the 2004 leases and instead apply the renewal provisions of the 1966 leases. TMM relies on extrinsic evidence, placing heavy reliance on the circumstances leading up to the earlier 1989 renewal, which TMM asserts provide evidence that the BLM intended to simply renew the leascs under the exact same terms of the 1966 leases. TMM further asserts that the 2004 renewal, because it was executed using the same forms, must also have intended to renew the 1966 leases without any change in terms. As explained below in the discussion of the 1966 lease terms, the 1989 and 2004 renewals differ from each other because the discretion was limited in 1989 but not in 2004. In particular, the 1989 renewal served as a one-time extension of time for conunencement of production, as authorized under section 5 of the 1966 leases. But section 5 also states that if an extension is granted, the renewal must be on unaltered tenns (other than royalty). Accordingly, under section 5 of the 1966 leases, the 1989 renewal was effectively a ten-year extension of the 1966 lease terms, and the use of standard renewal forms in 1989 could have no effect other than to extend the leases for ten years to allow for commencement of production. But because no production continench during that extension, TMM was not entitled to any subsequent production extensions or renewals under the 1966 lease terms, so the BLM had discretion in 2004 over both whether to renew and the terms of any such renewal. The executed renewal in 2004 therefore has operative effect, and the plain language of the 2004 leases actually executed by the parties must be given effect. There is nothing in the duly executed 2004 leases that states that the 1966 terms somehow govern over the terms expressly set out in the 2004 leases. ?2 Memorandum from 1. Daniel Colton, Partner, Dorsey Whitney LLP, received under a cover letter dated January 26, 2016, to me ?'om Kevin L. Baker, Director, Legal Affairs, Twin Metals Minnesota, LLC. Enclosure 1 reliance on extrinsic evidence to attempt to negate the 2004 lease terms does not comply with the law of contracts. In the absence of ambiguity in the relevant lease provision, it is improper to rely on extrinsic evidence. See Coast Fed. Bank. FSB v. United States, 323 F.3d 1035, 1040 (Fed. Cir. 2006) (en banc) (?If the provisions are clear and unambiguous, they must be given their plain and ordinary meaning, and we may not resort to extrinsic evidence to interpret them.? (internal quotation marks and citation omitted?; see also Shell Oil Co. v. United States, 751 F.3d 1282, 1295 (Fed. Cir. 2014) (improper for government to rely on extrinsic evidence when contract provision is unambiguous); fireman v. Bureau of Land Mgmt. (on recon), 155 IBLA 266, 267 (2001) (?If the contract language is clear and unambiguous, the terms of the agreement are given plain meaning and the intent of the parties and the interpretation of the agreement will be determined from the four comers of the document alone." (internal citations omitted)). Under this objective law of contracts, the subjective intent of the parties is not relevant unless there is fraud, duress, or mutual mistake, none of which is alleged by TMM. See Armenian Assembly of Am, Inc. v. quesjian, 758 F.3d 265, 278 (D.C. Cir. 2014) ?objective? law of contracts . . . generally means that ?the written language embodying the terms of an agreement will govern the rights and liabilities of the parties, [regardless] of the intent of the parties at the time they entered into the contract, unless the written language is not susceptible of a clear and de?nite undertaking, or unless there is fraud, duress, or mutual mistake.? (alteration in original) (citations omitted)). In this case, there is nothing ambiguous with the renewal provision contained in the 2004 leases: there is no con?icting renewal provision referenced elsewhere in the 2004 [cases and the provision has a longstanding and well established meaning. While TMM has asserted that the ?preferential right? to renew is ambiguous because it is susceptible of more than one meaning, that argument is without merit.? TMM misinterprets the 1932 Solicitor?s Opinion, which held that the preference right to renew ?gives the renewal lease applicant the legal right to be preferred against other parties should the Secretary, in the proper exercise of his discretion, decide to continue leasing." 1982 Solicitor's Opinion, 89 Interior Dec. at 178. In reaching this conclusion, the Solicitor included a discussion of the meaning of ?preference right leases.? That discussion focused on the rights gained in the initial leasing decision, and distinguished between ?entitlement? leases, which are leases to which an applicant is by statute entitled to receive if it meets statutory criteria, and true ?preference right leases," which are issued only if the Secretary decides to lease. See id. Based on this discussion, asserts it is ambiguous whether its leases are entitlement leases or preference right leases. Even if this distinction altered renewal ri ts, which is an issue that does not need to be addressed for purposes of this memorandum, there is no ambiguity in this case. Neither of the statutory authorities under which the leases are issued?section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099-1 100, and 16 U.S.C. 508b?creates an entitlement to a lease or otherwise mandates the issuance of leases. To the contrary, both authorities expressly condition leasing on surface owner consent (in this instance the discretion of the Forest Service) and thus are discretionary. In short, there is no ambiguity, and the renewal provisions in the 2004 leases provide the BLM with discretion to decide whether to renew the leases. '3 A lease is not ambiguous merely because the parties disagree on the correct interpretation. fireman, 155 IBLA at 267 (citing Pollock v. Fed. Deposit Ins. Corp., 17 F.3d 798, 803 (5th Cir. 1994); Max?ower Recreational Funds Newpark Res. Inc, 917 F.2d I239, [247 (Will Cit. Enclosure 1 Finally, even if the 1966 lease renewal terms were in effect, they do not prohibit the BLM ?'orn exercising its discretion to decide whether to renew the leases. Section 1(a) of the 1966 leases granted to the lessee ?the exclusive right to mine, remove, and dispose of all the copper andlor nickel minerals and associated minerals . . . It also provided that renewal of the leases beyond the primary term is subject to 43 C.F.R. 3221.4(t) (1966) and the provisions of the lease. Section 3221.4?) provides that the lessee ?will be granted a right of renewal for successive periods, not exceeding 10 years each, under such reasonable terms and conditions as the Secretary of the Interior may prescribe, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover.? Based on this regulation, the BLM included a conditional renewal provision in section 5 of the 1966 leases. Section 5 of the 1966 leases describes both the conditions with which the lessee must comply to establish a right to renew the lease and the limitations on revisions to the lease terms when the lessee does have a right to renewal: Renewal Ion-ms. The Lessor shall have the right to reasonably readjust and ?x royalties payable hereunder at the end of the primary term of this lease and thereafter at the end of each successive renewal thereof unless otherwise provided by the law at the time of the expiration of any such period, and to readjust other terms and conditions of the lease, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction moreover; provided, however, that the Lessee shall have the right to three succsive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustmant of any of the other terms and conditions of this lease unis at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day. Th cc of nt 'or texten of pmduction in the interest of cogervgg? '9 or upon a sag?sfactog chanex nshall e' utth shal en? ubse ue ch to als all 'thi exte e. [fine Lessee shall be entitled to renewal without readjustment except of royalties payable hereunder, the Secretary of the Interior may in his discretion increase the royalty rate prescribed in subsection of Section 2 up to, but not exceeding 5% during the?rst ten-year renewal period, (it) 6% during the second ten-year renewal period and 7% during the third ten?year renewal period. The extent of readjustment of royalty, if any to be made under this section shall be determined prior to the commencement of the renewal period. 1966 [cases 5 (emphases added). As explained more fully below, since at least 1986, the Solicitor's Of?ce has interpreted section 5 to mean that, even if the Secretary can and does, as a matter of discretion, renew the lease to extend the time to commence production, there is no right Enclosure 1 to a further renewal when production? has not begun at the end of the ?rst renewal?extension period. The opening segment of the ?rst sentence of section 5 describes the BLM's right to readjust the royalties and other terms and conditions at the renewal stage. This provision means that, as a general rule, if renewing the lease, the BLM is allowed to readjust not only the lease royalties but also other terms and conditions at the renewal stage, including stipulations to protect the surface. The second segment of the ?rst sentence following the send-colon (highlighted in bold above) is a proviso that allows for three successive ten-year renewals, but conditions the lessee?s right to those renewals on the lessee beginning production before the end of the primary term of the lease. The key conditioning language is at the end of the ?rst sentence, as highlighted below: provided, however, that the Lessee shall have the right to three successive ten-year renewals of this lease with any readjustment in royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of the lease unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day.? This highlighted clause, which begins with ?unless,? quali?es the very right to renew and not merely, as the company has asserted, the phrase describing the level of discretion the BLM has to readjust the other terms and conditions of the leases upon renewal. In other words, the proper meaning of the proviso is clear when the last clause is placed next to the provision it actually quali?es: ?[Tlhe Lessee shall have the right to three successive ten?year renewals of this lease . . . unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day.? This conclusion is evident by the construction of the proviso. The two readjustment limitations are tied together and modify the ?right to three successive ten?year renewals" language. The use of the conjunctive ?and? between the two readjustment phrases (?with any readjustment in royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of the lease") ties them together as a single modi?er to the right-to-renew language. Accordingly, the production requirement set out as the last clause of the proviso cannot merely quality the readjustment phrases, as contended by TMM, but must apply to the overall right of renewal. In this way the proviso makes any non-discretionary renewal contingent on the lessee meeting the production requirement ?rst, and then the conditions of that renewal regarding royalties and lease terms are speci?ed in the readjustment phrases. This conclusion is further reinforced by the second sentence of section 5 {the portion of section 5 underlined above). That sentence has three clauses. The ?rst clause provides that the BLM has None of the Department?s solid minerals leasing regulations?including those in force at the time of the was Solicitcr's Opinion. those promulgated immediately thereafter, and those currently in force?expressly de?ne the term ?production.? However, the rights granted in section I of the I966 leases are described as mining, removing, and disposing of the copper andlor nickel minerals and associated minerals in, upon. or under the leased lands. These activities may be viewed to reasonably describe production. Enclosure 1 the discretion to grant the lessee an extension beyond the primary term to begin production, if doing so would be in the interest of conservation or the lessee cannot operate the lease at a pro?t or for other reasons. The second clause states that, if an extension is granted, the lessee is entitled to a renewal in which the only revision allowed is to the royalties provision. These two clauses allow the lessee to use the ?rst renewal as an extension time period to begin production. The third and ?nal clause of the sentence, however, limits this right to a renewal if there is no production by the end of the extension: ?but the Lessee shall not be entitled to subsequent such renewals unless it shall have begun productionwithin the extended time.? This ?nal clause reinforces the preceding sentence?s condition precedent that there must be production before the lace has a ?righ to subsequent renewals. The second sentence therefore again makes production a precondition for any right to renew and disallows the lessee ?'om obtaining a ?right? to a renewal if no production has occurred during the primary term or an extension that the Secretary may grant for commencement of production. The third sentence of section 5 (the portion of section 5 in italics above) describes the degree to which the BLM may readjust the royalty if the lessee is entitled to a ?limited adjustment" lease renewal under the first sentence, the Lessee is ?entitled to renewal without readjustment except of royalties payable hereunder . . . But without production, there would be no such entitlement. Taken as a whole, the language of section 5 does not give the lessee a non-discretionary right to three successive renewals. Rather, production is the condition precedent for the lessee to obtain any lease renewals of right. There is no right of renewal if there has been no production before the end of the primary term or at the end of any renewal that the BLM grants to extend the time for the lessee to commence production. The fact that the lease terms expressly state that subsequent renewals of right are not available if no production occurs during any extension the BLM may grant for commencement of production reiterates the linkage between renewals of right and production. It would be incongruent to link only the bene?t of unchanged lease terms to production, while leaving the lease renewal and royalty readjustment terms unaffected by a lack of production. Such arbitrary line drawing would create little incentive for the lessee to develop the minerals, which is the entire purpose for these mineral leases. in contrast, when production is a condition precedent for lease renewals, the lease renewal provision effectively serves as a minimal due diligence provision for the lessee. ?5 TMM asserts a different interpretation though. TMM reads the proviso of the ?rst sentence of section 5 to grant the lessee a non-discretionary right of renewal, with such right of renewal limited only to royalty readjustment and with no readjustment of any other lease terms. also reads the production requirement in the provision??muses at the end of the primary term of We note that section 14 of the [966 leases does not change this conclusion. Section 14 sets forth the royalty rates that would apply in the second ten years ofthe primary lease term and in the ?rst, second, and third ten-year renewal periods, if the lessee were to sink a shalt for underground exploration or development or otherwise begin ccnunereial development within ?ve years of obtaining the rights and authorimtions for W11, operation and maintenance of the leased premises. According to TMM, in 1967, its predecessor in interest, INCO, sunk an I too- foot shalt for exploration and development on lease MNES 01352. TMM asserts that section l4 connacniaily entitles it to these royalty rates during each oftlu'ee renewal periods. However, nothing in section 14 provides for a non-discretionary right of renewal. Rather, section 14 merely describes the royalty rate that would apply during the ?rst three ten-year renewals. It does not grant those renewals and does not state that sinking an exploration or development shaft entitles the lessee to those renewals. 10 Enclosure 1 this lease the Lessee shall not have begun modify only the readjustment limitation language, not the right to renewal language. Under interpretation of the provision, if the lessee begins production within the primary term, the BLM may make only limited royalty adjustments, as provided in the leases, and no adjustments to any other lease terms. If, on the other hand, the lessee fails to begin production within the primary term, according to TMM, the lack of production negates only the readjustment limitations in the provision, and the BLM would be able to impose greater royalty readjustments and readjust other terms and conditions of the leases upon renewal. In other words, under the company?s reading, a right to three successive ten-year renewals begins immediately following the primary terms regardless of whether production has occurred, and section 5 only affects the parameters for the readjustment of the lease terms in those non-discretionary three renewals. In addition to being unsupported by the terms of the proviso as described above, TMM's interpretation would allow it to hold the leases without any need to produce minerals in paying quantities for at least ?fty years, and longer in this instance given the time to process the lease renewals. This interpretation not only con?icts with the plain wording of the 1966 lease terms but also is contrary to the very intent of the applicable statutory framework under which the Secretary may authorize mineral development with an expectation of revenues, not speculative land holdings. See Reorganization Plan No. 3 of 1946 402, 60 Stat. 1097, 1099-1 100; 16 USS. 520. Interpreting the leases to allow for three non-discretionary renewals covering a thirty-year time span without the occurrence of the very underlying activity for which the leases are issued in the ?rst place would defeat the purpose of entering into the lease. Such an interpretation would allow for the speculative holding of mineral rights, which is contrary to Congress?s intent to encourage productive mineral development while also providing a fair return to the American taxpayer. Our interpretation that section 5 requires the lessee to begin production to obtain the bene?t of any non-discretionary right of renewal is not only mandated by the lease terms, but is consistent with the regulation regarding renewal applications cited in the lease. Section 1(a) of the 1966 leases requires the renewnls to be in accordance with 43 C.F.R. 3221.4(t) (1966), which in turn requires that renewal applications ?must be ?led in a manner similar to that prescribed for extension of a prospecting permit in Under 43 C.F.R. a prospector must show that he or she has ?diligently performed prospecting activities? to support an application for an extension of a prospecting permit.l6 Allowing for the difference between a prospecting permit application and a lease renewal application, 3221.3(a) requires that the lease renewal application include a showing of diligence in performing the lease activities (rather than the prospecting activities), which are reasonably viewed, consistent with the rights granted in section 1 of the lease terms, as mining, removing, and disposing of the copper andlor nickel minerals and associated minerals?Le, production. Consequently, by stating that any renewals must be ?in accordance with 43 C.F.R. the lease terms again identi?ed production as the baseline for obtaining a renewal of right. Based on the lease terms as a whole, and because there has been no production during the primary term or the succeeding extensions through lease renewals that the BLM has granted, TMM has not satis?ed the condition precedent Under 43 can. 5 322 (1966). in addition in making a show ofdiligence, the applicant must ?le an application in triplicate within ninety days before the expiration date of the lease term and must pay a ?ling fee. 11 Enclosure 1 for obtaining a renewal of right and, therefore, the BLM has discretion to make a decision regarding whether to renew the leases even if the 1966 renewal terms were in effect. In addition, the Solicitor-?3 Office has already concluded that the BLM is not required to renew the 1966 leases as a matter of right if there has been no production. In 1986, the Associate Solicitor for the Division of Energy and Resources sent a memorandum to the Deputy State Director for the BLM Eastern States Of?ce responding to three questions lion: the Deputy State Director." The ?rst?question was whether it was possible to grant lease renewals (for the same leases that are at issue here) when the leases had never been in production. In response, the Associate Solicitor examined the terms of the lease to determine whether or not lack of production precludes extending the lease term. The Associate Solicitor then relied on the second sentence of section 5 (the portion of section 5 mm above) to conclude that, while the leases may be extended for a period not exceeding ten years even though production has not occurred, ifproduction does not occur during the period of extension, ?no ?niher extensions will be allowed in accordance with the terms of the lease." Consistent with this legal advice and the provisions of section 5 of the 1966 leases, the BLM granted a ton-year extension by renewing these two leases in 1989. As noted above, the BLM also renewed the leases for a second ten-year period in 2004. Because no production had occurred by that time, the decision to renew the leases in 2004 was discretionary. The decision to renew the leases in 2004 does not impede the BLM ?'om again exercising discretion regarding the lessee?s application for a third renewal of the leases, particularly where this of?ce has previously concluded that the agency need not allow additional pro-production renewals.? It should be noted that the lessee?s payment of minimum royalties in lieu of production does not alter the foregoing analysis.? The payment of minimum royalties is certainly one incentive to produce that was imposed by the 1966 leases, but that incentive worked in tandem with the one created by the leases' production precondition for mandatory renewals. The second incentive See Memorandum ?'om Associate Solicitor, Energy and Resources, signed by Kenneth G. Lee. Assistant Solicitor, Branch of Eastem Resources, to Deputy State Director, Mineral Resources, Eastern States Of?ce, Bureau of Land Management, "Application for Minimum Royalty Waiver Submitted by Alloys International, Incorporated for Leases ES 01352 and ES 01353" (Apr. 2, 1986) (Attached). TMM has made no showing in its pending renewal application under 43 C.F.R. 3221.44?) (1966) that would entitle it to a third and ?nal renewal under section 5 of the 1966 leases. TMM has never begun production. 'l?MM's predecessor, INCO, sunk a development shaft and conducted bulk sampling, but neither of those actions quali?es as beginning production. Without any showing of diligence in mining. removing, or disposing of the copper, nickel, and associated minerals, and without beginning production, TMM is not entitled to any ?uther non-discretionary ten-year renewals. TMM has also asserted that the Department of the Interior is prohibited by 3D U.S.C. l84(h)(2), as well as the Department?s regulations at 43 35 MAO (20l5), from ?cancelling? TMM's interest in the leases at issue as TMM is a bona ?de purchaser. But the cancellation regulations have no applicability where. as here, the decisionis whether to renew a lease. Were BLM to exercise its discretion to deny the lease renewal application, it would not be cancelling the leases, as contemplated by 30 11.312. l84(h)(2) and 43 C.F.R. 3514.40. but rather would be allowing leases that have been in existence for ?fty years without production to terminate by their own terms. The original leases do not mention minimum royalties as a way to ful?ll the production requirement. And section 2(b) ol'TMM's 2004 leases merely provides that the request of the lessee, made prior to initiation of the lease year, the authorized of?cer may allow in writing the payment ofa $3.00 per acre or fraction thereof minimum royalty in lieu cf production for any particular lease year.? 12 Enclosure 1 expired when no production occurred by the end of the extension period granted by the 1989 renewal. While the 2004 renewal leases retain the minimum royalties payment incentive, that fact has no impact on the renewal provision of the 2004 leases. Ofconrse, for the leases to continue in e??eet during the renewal period, the lessee was required to continue to meet its obligation to pay royalties in lieu of production. However, that payment was and is not equivalent to production and does not somehow entitle the lessee to obtain a lease renewal of right; instead, it merely keeps the leases from terminating during the extension time period the BLM has granted through a lease renewal. The fact that the payment of royalties in lieu of production cannot be the basis for establishing the right to renew, and cannot be a defaero means of extending a lease in perpetuity, is also clear from IBLA case law. In General Chemical (Soda Ash) Partners, the IBLA held that minimum royalties in lieu of production have ?nothing to do with whether the Secretary, in looking at production from the mine of which the lease is a part at the end of the current lease term, will renew the lease for an additional term.? 176 IBLA at 9. The Board ?nther held, ?Moreover, ?[t]he Secretary has the authority to encourage production and development of federally leased sodium resources both through minimum development and production requirements and minimum royalties imposed on each lease.? 1d. (emphasis in original) (quoting 1982 Solicitor?s Opinion, 89 Interior Dec. at 185). The leases here use precisely both mechanisms to encourage production, albeit not successfully in this instance. 99. nclusigg For the foregoing reasons, the lessee has not established a non-discretionary right to a third ten- year renewal. Under the governing 2004 lease terms, the BLM has the same discretion regarding whether to renew the lease for a third time as it had in determining whether to grant the initial lease. While the 2004 lease terms give the lessee a preference over other potential lessees to lease the lands in question, they do not entitle the lessee to non-discretionary renewal of the CI Attachment 13 Attachment January 19, 2017 BLM Withdrawal Notice - Karen E. Mouritsen - Signatory Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices THENCE South 00°06′00″ West along said west line, a distance of 2502.98 feet to the point of beginning; THENCE South 89°07′50″ East, a distance of 805.67 feet; THENCE South 15°34′27″ West, a distance of 1473.72 feet to the point of intersection with the east and west center line of the southwest 1⁄4 of said Section 1; THENCE North 88°24′21″ West, along said east and west center line, a distance of 415.55 feet to the point of intersection with the aforementioned west line of the east 1210.00 feet of the west 1⁄2 of Section 1; THENCE North 00°06′00″ East along said west line, a distance of 1420.32 feet to the point of beginning. Containing 59.80 acres of land. Parcel No. 2 Sec. 1, lots 1 and 2, S1⁄2NE1⁄4, NE1⁄4NW1⁄4SE1⁄4, S1⁄2NW1⁄4SE1⁄4, N1⁄2SW1⁄4SE1⁄4, SW1⁄4SW1⁄4SE1⁄4, and N1⁄2SE1⁄4SW1⁄4SE1⁄4. Containing 224.56 acres of land. Parcel No. 3 Sec. 12, E1⁄2SE1⁄4. Containing 80.00 acres of land. The areas described for Parcels Nos. 1 through 3 aggregate 364.36 acres. Section 209(b) of the FLPMA authorizes the conveyance of the federally owned mineral interests in land to the surface owner when the surface interest is not federally owned, upon payment of administrative costs. The objective is to allow consolidation of the surface and mineral interests when either one of the following conditions exist: (1) There are no known mineral values in the land; or (2) Where continued Federal ownership of the mineral interests interferes with or precludes appropriate non-mineral development and such development is a more beneficial use of the land than mineral development. The applicant has deposited, a sum of funding sufficient to cover administrative costs, but not limited to, the cost for the mineral potential report. Subject to valid existing rights, on January 19, 2017 the federally owned mineral interests in the land described above are hereby segregated from all forms of appropriation under the public lands laws, including the mining laws, while the application is being processed to determine if either one of the two specified conditions exists and, if so, to otherwise comply with the procedural requirements of 43 CFR part 2720. The segregative effect shall terminate upon: (1) Issuance of a patent or other document of conveyance as to such mineral interests; (2) Final rejection of the application; or (3) January 22, 2019, whichever occurs first. Please submit all comments in writing to Benedict Parsons at the address listed above. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made available to the public at any time. While you can ask in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Authority: 43 CFR 2720.1–1. Leon Thomas, Phoenix District Manager. [FR Doc. 2017–01203 Filed 1–18–17; 8:45 am] BILLING CODE 4310–32–P DEPARTMENT OF THE INTERIOR Bureau of Land Management [MNES–058247] Notice of Application for Withdrawal and Notification of Public Meeting; Minnesota Bureau of Land Management, Interior. ACTION: Notice. AGENCY: The United States Forest Service (USFS) has filed an application with the Bureau of Land Management (BLM) requesting that the Secretary of the Interior withdraw, for a 20-year term, approximately 234,328 acres of National Forest System lands within the Rainy River Watershed on the Superior National Forest from disposition under the United States mineral and geothermal leasing laws, subject to valid existing rights. Publication of this notice temporarily segregates the lands for up to 2 years from the United States mineral and geothermal leasing laws while the withdrawal application is being processed. DATES: Comments regarding this withdrawal proposal must be received by April 19, 2017. The BLM and the USFS will hold a public meeting in connection with the proposed withdrawal on March 16, 2017, from 5 p.m. to 7:30 p.m. Central Time (CT) at the Duluth Entertainment and Convention Center, 350 Harbor Drive, Duluth, MN 55802. During this 90-day comment period, the BLM and USFS will hold additional meetings in other areas of the State, notices of which will be provided in local newspapers or on agency Web sites. The USFS’ 90-day scoping period associated with preparing an environmental impact statement (EIS) was announced on January 13, 2017 in the Federal SUMMARY: 6639 Register. The EIS will analyze the impacts of the proposed withdrawal and an amendment to the Superior National Forest Land and Resource Management Plan. Additional opportunities for public comment will be provided during the preparation of that EIS. ADDRESSES: Comments regarding this withdrawal proposal should be sent to the Deputy State Director of Geospatial Services, Bureau of Land Management, Eastern States Office, 20 M Street SE., Suite 950, Washington, DC 20003; or by facsimile at 202–912–7710. Comments sent by email will not be accepted. The March 16, 2017, BLM and USFS public meeting location is the Duluth Entertainment and Convention Center, 350 Harbor Drive, Duluth, MN 55802. FOR FURTHER INFORMATION CONTACT: Dominica VanKoten, BLM Eastern States Office, 202–912–7756 during regular business hours, 8 a.m. to 4:30 p.m. Monday through Friday, except holidays. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 1–800–877–8339 to contact the above individual. The Service is available 24 hours a day, 7 days a week, to leave a message or question. You will receive a reply during normal business hours. SUPPLEMENTARY INFORMATION: The applicant is the USFS. The application requests the Secretary of the Interior to withdraw National Forest System lands in the Superior National Forest from disposition under the United States mineral and geothermal leasing laws for a period of 20 years to protect and preserve the natural resources and waters located within the Rainy River Watershed that flow into the Boundary Waters Canoe Area Wilderness (BWCAW) and the Boundary Waters Canoe Area Wilderness Mining Protection Area (MPA) in northeastern Minnesota. The lands will remain open to other forms of use and disposition as may be allowed by law on National Forest System lands, including the disposition of mineral materials. All the National Forest System Lands identified in the townships below and any lands acquired by the Federal government within the exterior boundaries described below are included in the withdrawal application. This area excludes the BWCAW and the Boundary Waters Canoe Area Wilderness MPA, as depicted on the map entitled Appendix B: Superior National Forest, dated December 5, 2016. This map is available from the BLM Eastern States Office at the address listed above, and from the USFS Superior National Forest office, 8901 6640 Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices Grand Ave. Pl, Duluth, Minnesota, 55808. National Forest System Lands Superior National Forest 4th Principal Meridian, Minnesota Tps. 61 and 62 N., Rs. 5 W. Tps. 60 to 62 N., Rs. 6 W. Tps. 59 and 61 N., Rs. 7 W. Tps. 59 to 61 N., Rs. 8 W. Tps. 58 to 61 N., Rs. 9 W. Tps. 57 to 62 N., Rs. 10 W. Tps. 57 to 63 N., Rs. 11 W. Tp. 59 N., R. 12 W. Tps. 61 to 63 N., Rs. 12 W. Tps. 61 to 63 N., Rs. 13 W. Tp. 63 N., R. 15 W. Tp. 63 N., R. 16 W. Tps. 65 to 67 N., Rs. 16 W. Tp. 64 N., R. 17 W. The areas described contain approximately 234,328 acres of National Forest System lands in Cook, Lake, and Saint Louis Counties, Minnesota, located adjacent to the BWCAW and the MPA. Non-Federal lands within the area proposed for withdrawal total approximately 190,321 acres in Cook, Lake and Saint Louis Counties. As nonFederal lands, these parcels would not be affected by the temporary segregation or proposed withdrawal unless they are subsequently acquired by the Federal Government. The temporary segregation and proposed withdrawal are subject to valid existing rights, which would be unaffected by these actions. As stated in the application, the purpose of the requested withdrawal is to protect and preserve the natural resources and waters within the Rainy River Watershed that flow into the BWCAW and the MPA from the effects of mining and mineral exploration. Congress designated the BWCAW and established the MPA to protect and preserve the ecological richness of the lakes, waterways, and forested wilderness along the Canadian border. The protection of the Rainy River Watershed would extend the preservation of the BWCAW and MPA as well as Voyageurs National Park and Canada’s Quetico Provincial Park, which are all interconnected through the unique hydrology of this region. The application further states that the use of a right-of-way, interagency agreement, or cooperative agreement would not adequately constrain mineral and geothermal leasing to provide adequate protection throughout this pristine natural area. According to the application, no alternative sites are feasible because the lands subject to the withdrawal application are the lands for which protection is sought from the impacts of exploration and development under the United States mineral and geothermal leasing laws. No water will be needed to fulfill the purpose of the requested withdrawal. The USFS will serve as the lead agency for the EIS analyzing the impacts of the proposed withdrawal. The USFS will designate the BLM as a cooperating agency. The BLM will independently evaluate and review the draft and final EISs and any other documents needed for the Secretary of the Interior to make a decision on the proposed withdrawal. Records related to the application may be examined by contacting the individual listed in the FOR FURTHER INFORMATION CONTACT section above. For a period until April 19, 2017, all persons who wish to submit comments, suggestions, or objections in connection with the withdrawal application may present their views in writing to the BLM Deputy State Director of Geospatial Services at the BLM Eastern States Office address noted in the ADDRESSES section above. Comments, including the names and street addresses of respondents, will be available for public review at that address during regular business hours. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Notice is hereby given that a public meeting in connection with the application for withdrawal will be held at Duluth Entertainment and Convention Center, 350 Harbor Drive, Duluth, Minnesota 55802 on March 16, 2017, from 5 p.m. to 7:30 p.m. CT. The USFS will publish a notice of the time and place in a local newspaper at least 30 days before the scheduled date of the meeting. During this 90-day comment period, the BLM and USFS will hold additional meetings in other areas of the State, notices of which will be provided in local newspapers or on agency Web sites. For a period until January 21, 2017, subject to valid existing rights, the National Forest System lands described in this notice will be temporarily segregated from the United States mineral and geothermal leasing laws, unless the application is denied or canceled or the withdrawal is approved prior to that date. All other activities currently consistent with the Superior National Forest Land and Resource Management Plan could continue, including public recreation, mineral materials disposition and other activities compatible with preservation of the character of the area, subject to USFS discretionary approval, during the segregation period. The application will be processed in accordance with the regulations set forth in 43 CFR 2300. Karen E. Mouritsen, State Director, Eastern States Office. [FR Doc. 2017–01202 Filed 1–18–17; 8:45 am] BILLING CODE 3411–15–P DEPARTMENT OF THE INTERIOR Bureau of Land Management [LLNM004000 L91450000.EJ000 16X.LVDIG16ZGK00] Notice of Application for a Recordable Disclaimer of Interest: Dimmit County, Texas Bureau of Land Management, Interior. ACTION: Notice. AGENCY: The Bureau of Land Management (BLM) received an application for a Recordable Disclaimer of Interest (Disclaimer of Interest) from Gringita, Ltd. pursuant to the Federal Land Policy and Management Act of 1976 (FLPMA), as amended, and the regulations in 43 CFR subpart 1864, for certain mineral estate in Dimmit County, Texas. This notice is intended to inform the public of the pending application, give notice of BLM’s intention to grant the requested Disclaimer of Interest, and provide a public comment period for the proposed Disclaimer of Interest. DATES: Comments on this action should be received by April 19, 2017. ADDRESSES: Written comments must be sent to the Deputy State Director, Lands and Resources, BLM, New Mexico State Office, P.O. Box 27115, Santa Fe, NM 87502–0115. FOR FURTHER INFORMATION CONTACT: John Ledbetter, Realty Specialist, BLM Oklahoma Field Office, (405) 579–7172. Additional information pertaining to this application can be reviewed in case file TXNM114510 located in the Oklahoma Field Office, 201 Stephenson Parkway, Room 1200, Norman, Oklahoma 73072–2037. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service (FRS) at 1–800–877–8339 to contact the above individual during normal business hours. The Service is available 24 hours a day, 7 days a week, to leave a message or question with the SUMMARY: Attachment Department of Interior Departmental Manual 209 DM 7.1 B. Department of the Interior Departmental Manual Effective Date: 6/28/01 Series: Delegation Part 209: Secretarial Officers Chapter 7: Assistant Secretary - Land and Minerals Management Originating Office: Office of the Assistant Secretary - Land and Minerals Management 209 DM 7 7.1 Delegation. Subject to the limitations in 200 DM 1 and 209 DM 7.1E, the Assistant Secretary - Land and Minerals Management is authorized to exercise all of the authority of the Secretary including, but not limited to: A. the authority to issue amendments of and additions to the material in the Code of Federal Regulations. B. the authority delegated to the Secretary by Section 204(a) of Public Law 94-579 relating to the withdrawal or reservation of certain lands by the issuance of public land orders. C. the administration of the oath of office or any oath required by law in connection with employment. D. the authority to approve, approve with conditions, or disapprove initial State regulatory programs under Public Law 95-87. E. the authority to sign Mineral Entry Final Certificates and mineral patents under the Mining Law of 1872. The Assistant Secretary may redelegate this authority to the Director, Bureau of Land Management. No other redelegation of this authority by the Assistant Secretary is authorized. 7.2 Authority to Redelegate. Except where redelegation is prohibited by statute, Executive order, or limitations established by other competent authority, the Assistant Secretary - Land and Minerals Management may redelegate general administrative authority and those program authorities specifically related to the functions and responsibilities assigned to the Assistant Secretary - Land and Minerals Management in 109 DM 7. All redelegations of authority made by the Assistant Secretary - Land and Minerals Management will be in the form of a Departmental Manual release issued in strict compliance with the provisions of 200 DM 3. No other form of redelegation is authorized. 7.3 Deputy Assistant Secretary. A. In the absence of, and under conditions specified by the Assistant Secretary - Land and Minerals Management, a Deputy Assistant Secretary - Land and Minerals Management may exercise the authority delegated in 209 DM 7.1, excluding 209 DM 7.1B. B. A Deputy Assistant Secretary may not redelegate the authority conferred by this paragraph 209 DM 7.3. 6/28/01 #3364 Replaces 12/16/96 #3109 Attachment Judicial Review Decision - Yount V. Salazar Case 3:11-cv-08171-DGC Document 87 Filed 01/08/13 Page 1 of 47 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Gregory Yount, 9 10 11 Plaintiff, v. Ken Salazar, et al., 12 13 Defendants. National Mining Association, 14 15 16 v. Ken Salazar, et al., Defendants Northwest Mining Association, 19 20 21 v. Ken Salazar, et al., Defendants. Quaterra Alaska Incorporated, et al., 24 25 26 27 28 No. CV12-8042 PCT DGC Plaintiff 22 23 No. CV12-8038 PCT DGC Plaintiff 17 18 No. CV11-8171-PCT DGC (Lead case) Plaintiff v. Ken Salazar, et al., Defendants. No. CV12-8075 PCT DGC Case 3:11-cv-08171-DGC Document 87 Filed 01/08/13 Page 2 of 47 1 On November 1, 2011, Plaintiff Gregory Yount, a self-employed prospector and 2 miner, filed a pro se complaint seeking declaratory and injunctive relief in response to 3 Defendants’ actions withdrawing more than one million acres of federal land in Northern 4 Arizona from mining location and entry activities. Doc. 1, amended by Doc. 27. Other 5 Plaintiffs in the above-captioned actions – the National Mining Association (“NMA”) 6 and the Nuclear Energy Institute (“NEI”); the Northwest Mining Association 7 (“NWMA”); Quaterra Alaska, Inc. and Quaterra Resources, Inc. (collectively 8 “Quaterra”); and the Arizona Utah Local Economic Coalition (“the Coalition”), on behalf 9 of the Board of Supervisors of Mohave Country, Arizona (“Mohave County”), also filed 10 complaints challenging the withdrawal. On August 20, 2012, the Court consolidated the 11 cases and permitted Vane Minerals, LLC (“Vane Minerals”) to intervene as a plaintiff. 12 Doc. 56. 13 Defendants Kenneth L. Salazar, Secretary of the Department of the Interior; the 14 Department of the Interior (“DOI”); the Bureau of Land Management (“BLM”); the 15 Forest Service; and the Department of Agriculture (collectively, “Defendants”) have filed 16 motions to dismiss each of these actions. The Court held oral argument on October 26, 17 2012. For the reasons set forth below, the Court will grant the motions in part and deny 18 them in part. 19 I. Relevant Statutory and Regulatory Scheme. 20 Pursuant to the General Mining Law of 1872, 30 U.S.C. § 22, “all valuable 21 mineral deposits in lands belonging to the United States . . . shall be free and open to 22 exploration and purchase[.]” Vacant public land is “open to prospecting, and upon 23 discovery of mineral, to location and purchase.” 43 C.F.R. § 3811.1. To locate a mining 24 claim, a person establishes the boundaries of the land claimed and records a notice or 25 certificate of location. 43 C.F.R. § 3832.1. The claim is not valid until a discovery is 26 made within the boundaries of the claim. 43 C.F.R. § 3832.11. “If the validity of the 27 claim is contested, the claimant must prove that he has made a ‘discovery’ of a valuable 28 mineral deposit thereon.” McCall v. Andrus, 628 F.2d 1185, 1188 (9th Cir. 1980), -2- Case 3:11-cv-08171-DGC Document 87 Filed 01/08/13 Page 3 of 47 1 abrogated on other grounds by Miranda v. Anchondo, 684 F.3d 844, 846 (9th Cir. 2012). 2 There is a “distinction between the exploration work which must necessarily be 3 done before a discovery, and the discovery itself.” Converse v. Udall, 399 F.2d 616, 621 4 (9th Cir. 1968). Proof of discovery is judged by the prudent person test. “Where 5 minerals have been found, and the evidence is of such a character that a person of 6 ordinary prudence would be justified in the further expenditure of his labor and means, 7 with a reasonable prospect of success, in developing a valuable mine, the requirements of 8 the statute have been met.” Chisman v. Miller, 197 U.S. 313, 322 (1905). The mineral 9 must be physically exposed to constitute a valid discovery. 10 Wilderness Society v. Dombeck, 168 F.3d 367, 375 (9th Cir. 1999). 11 “The Secretary of the Interior is charged with seeing that valid claims are 12 recognized, invalid ones eliminated, and the rights of the public preserved.” United 13 States v. Coleman, 390 U.S. 599, 600 n.1 (1968) (internal quotation, ellipses, and 14 brackets omitted). Under § 204(c) of the Federal Land Policy and Management Act 15 (“FLPMA”), the Secretary may withdraw federal land “from settlement, sale, location, or 16 entry, under some or all of the general land laws, for the purpose of limiting activities 17 under those laws in order to maintain other public values.” 43 U.S.C. § 1702(j). For 18 withdrawals of more than 5,000 acres, the Secretary must notify both houses of Congress 19 and provide them with a comprehensive report of the withdrawal. Id. at § 1714(c)(1)-(2). 20 The statute states that Congress may terminate the withdrawal by adopting a concurrent 21 resolution within 90 days. Id. at § 1714(c)(1). Withdrawals by the Secretary are limited 22 to twenty years. Id. 23 Land withdrawals under the FLPMA are subject to valid existing rights, 43 U.S.C. 24 § 1701, Note (h), but the BLM or another federal land management agency must conduct 25 a mineral examination before allowing the development of noticed claims. See, e.g., 43 26 C.F.R. § 3809.100(a) (BLM regulations). 27 determine whether the claimant had a valid claim before withdrawal and whether the 28 claim remains valid. Id. Because the right to prospect for minerals ceases on the date of -3- The purpose of this examination is to Case 3:11-cv-08171-DGC Document 87 Filed 01/08/13 Page 4 of 47 1 withdrawal, a discovery must have existed – meaning that minerals must have been 2 exposed – by the date of withdrawal. Lara v. Sec’y of Interior, 820 F.2d 1535, 1542 (9th 3 Cir. 1987). 4 II. Background. 5 On July 21, 2009, Secretary Salazar published notice of his intent “to withdraw 6 approximately 633,547 acres of public lands and 360,002 acres of National Forest System 7 lands for up to 20 years from location and entry under the Mining Law of 1872.” Notice 8 of Proposed Withdrawal, 74 Fed. Reg. 35,887, (July 21, 2009) (the “2009 Notice”). The 9 2009 Notice had the effect of withdrawing the land from location and entry for up to two 10 years to allow time for analysis, including environmental analysis under the National 11 Environmental Protection Act (“NEPA”). Id. 12 On August 26, 2009, the BLM, an agency within DOI, published notice of its 13 intent to prepare an Environmental Impact Statement (“EIS”) under NEPA addressing the 14 proposed withdrawal. 15 withdrawal as explained in the notice was “to protect the Grand Canyon watershed from 16 adverse effects of locatable mineral exploration and mining, except for those effects 17 stemming from valid existing rights.” Id. at 43,152-53. 74 Fed. Reg. 43,152 (Aug. 26, 2009). The purpose of the 18 On February 18, 2011, after soliciting public comments, the BLM issued a notice 19 of availability of a Draft EIS. 76 Fed. Reg. 9,594 (Feb. 18, 2011). The Draft EIS 20 considered four alternatives in detail: a “No Action” alternative; the withdrawal of 21 approximately 1,010,776 acres for 20 years; the withdrawal of approximately 652,986 22 acres for 20 years; and the withdrawal of 300,681 acres for 20 years. Id. at 9,595. After 23 an additional, extended opportunity for public comment, the BLM published a notice of 24 availability of the Final EIS on October 27, 2011. 76 Fed. Reg. 66,747 (Oct. 27, 2011). 25 The Secretary issued a Record of Decision (“ROD”) on January 9, 2012, choosing to 26 “withdraw from location and entry under the Mining Law, subject to valid existing rights, 27 approximately 1,006,545 acres of federal land in Northern Arizona for a 20-year period.” 28 See No. 3:12-cv-08042, Doc. 27-1 at 3. -4- Case 3:11-cv-08171-DGC Document 87 Filed 01/08/13 Page 44 of 47 1 prospector, such exploration through drilling is a key to his recreational enjoyment of the 2 land. Id. at 20-21. 3 The Court is not persuaded that NEPA’s concern with aesthetic and recreational 4 enjoyment of the natural environment extends to protecting the specific interests in 5 continued uranium mining and exploratory drilling Yount asserts. Nothing in the ROD 6 prevents Yount from perceiving the beauty of the Kaibab forest, including its natural and 7 man-made works, or continuing to hike and observe the geology and surface of the land. 8 See Doc. 33, ex. 1 at 7 (The withdrawal “does not affect disposition, use, or management 9 of the lands other than under the Mining Law, including access to and across the lands.”). 10 Although Yount asserts that he had looked forward to enjoying the beauty of the Kaibab 11 Forest while drilling on his claims and developing mining operations (Doc. 44 at 29, 12 ¶ 16), the withdrawal has only restricted Yount’s drilling and mining operations. It has 13 not otherwise prohibited him from enjoying and recreating in the Kaibab forest. 14 Moreover, the mineral development activities that Yount contends add to his aesthetic 15 enjoyment of the land are activities the Mining Law has recognized as being for the 16 purpose of economic gain and not for other purposes. United States v. Coleman, 390 17 U.S. 599, 602 (1968). Yount points to no authority showing that such interests are within 18 the zone of interests NEPA protects. The Court concludes that Yount has failed to show 19 that he has prudential standing to assert a NEPA claim. 20 F. 21 The Coalition alleges that Mohave County “has a mandate to retain environmental 22 quality and to capitalize on its wealth of natural, built and human resources.” Doc. 30, 23 ¶ 24. This includes “the ‘growth of communities that maintain the health and integrity of 24 its valuable environmental features’; the protection of ‘wetlands, washes, aquifer 25 recharge areas, areas of unique flora and fauna, and areas with scenic, historic, cultural 26 and recreational value’; and avoiding industrial development that has the ‘undesired 27 effect of increasing air pollution.’” Id. (quoting Mohave County General Plan, p. 23). 28 The Coalition. NEPA requires agencies to take into account the comments and views of local - 44 - Case 3:11-cv-08171-DGC Document 87 Filed 01/08/13 Page 45 of 47 1 governments that are authorized to develop environmental standards. 42 U.S.C. 2 § 4332(2)(C). Mohave County is authorized under state law to implement environmental 3 standards and to develop a comprehensive plan to conserve natural resources and 4 promote the “health, safety, convenience and general welfare of the public.” Doc. 72-2 at 5 5-6, ¶¶ 7-9. 6 decision interferes with its ability to carry out identified environmental objectives of its 7 state-authorized plan. These are interests that the procedural requirements of NEPA were 8 designed to protect. See, e.g., City of Davis, 521 F.2d at 672 (municipality entrusted 9 under state law with enforcing environmental standards and developing a general plan 10 had “municipal interests [that] fall within the scope of NEPA’s protections.”); Douglas 11 County, 48 F.3d 1495 (County that was authorized by state law to develop environmental 12 standards and had statutory right to comment on proposed federal action had “concrete, 13 plausible interests, within NEPA’s zone of concern for the environment” underlying its 14 asserted procedural interests.). As discussed above, Mohave County has alleged that the withdrawal 15 Defendants argue that the Coalition is precluded from bringing NEPA claims 16 because it did not raise these issues during the NEPA process. Doc. 62 at 24. To 17 challenge agency action under NEPA, plaintiffs are required “to first raise their concerns 18 with the agency to allow the agency to give the issue meaningful consideration.” Am. 19 Indep. Mines, 733 F.Supp.2d. at 1267 (internal quotation marks and citations omitted). 20 The Coalition cites to the declaration of Buster Johnson, Chairman of the Mohave County 21 Board of Supervisors, stating that the BLM did not allow the local governments to submit 22 supplemental economic data about how the withdrawal would affect their communities, 23 the BLM disregarded Mohave County’s comprehensive plan, and the Secretary ignored 24 notices and invitations from Coalition members demanding coordination with them and 25 reconciliation of inconsistencies between the withdrawal and their local plans and 26 policies. Docs. 72 at 34; 72-2 at 9-10, Decl. of Buster Johnson, ¶¶ 21-23. These 27 allegations are sufficient at the pleading stage to show that the Coalition raised issues 28 within the zone of interests of NEPA during the NEPA process. The Coalition has shown - 45 - Case 3:11-cv-08171-DGC Document 87 Filed 01/08/13 Page 46 of 47 1 that it satisfies the zone of interests test for purposes of NEPA prudential standing. 2 VI. Standing to Assert Constitutional Claim. 3 Plaintiffs NMA, NEI, and NWMA claim that the withdrawal is unlawful because 4 § 204(c)(1) of the FLPMA, which allows Congress to block any administrative 5 withdrawal of lands over 5,000 acres, is unconstitutional. Doc. *56, ¶¶ 97-107; Doc. *1, 6 ¶¶ 127-145. Plaintiffs assert that this provision constitutes an impermissible legislative 7 veto because it allows Congress to act upon a concurrent resolution without presentment 8 to the president. See, e.g., Doc. *56, ¶ 99. They further assert that § 204(c)(1) is not 9 severable from § 204(c), which governs the Secretary’s ability to withdraw public lands, 10 because Congress would not have granted the Secretary authority to withdraw more than 11 5,000 acres without reserving for itself the authority to intervene. Id., ¶¶ 102-106. Thus, 12 they allege, the Secretary’s withdrawal decision, encompassing over one million acres of 13 public land, was made pursuant to an unconstitutional provision and should be set aside. 14 Id., ¶ 107. 15 Defendants argue that Plaintiffs do not have standing to make this constitutional 16 argument because the legislative veto at issue was not exercised in this case, Plaintiffs 17 cannot claim to have been harmed by it, and its exercise in any case would have 18 terminated rather than effectuated the withdrawal. Doc. *39 at 17. Defendants also 19 argue that the FLPMA’s severability clause would allow the court to sever the legislative 20 veto from the rest of § 204(c) without disturbing the Secretary’s actions under the 21 remainder of that provision. Id. at 18. 22 Plaintiffs have standing to assert their constitutional claim. They do not claim to 23 have been harmed by a legislative veto. They claim to have been harmed by the 24 withdrawal of land under an unconstitutional law. If the withdrawal provision of the 25 FLPMA is found unconstitutional because it contains an impermissible legislative veto, 26 the withdrawal will have been ineffective and Plaintiffs’ claimed harms will be redressed. 27 Whether the legislative veto provision is severable, as Defendants argue, is a question to 28 be resolved on the merits and not at the pleading stage. - 46 - Case 3:11-cv-08171-DGC Document 87 Filed 01/08/13 Page 47 of 47 1 VII. Vane’s Voluntary Dismissal. 2 On December 26, 2012, Vane Minerals filed a notice of dismissal stating that it 3 had voluntarily dismissed its complaint, pursuant to Federal Rule of Civil Procedure 4 41(a)(1)(A)(1), in order to pursue a damages claim against the United States of America 5 in the United States Court of Federal Claims based on the same operative facts. Doc. 86. 6 Accordingly, Vane’s complaint in intervention will be dismissed without prejudice. 7 IT IS ORDERED: 8 1. Defendants’ motions to dismiss Plaintiffs Gregory Yount (Doc. 33), 9 National Mining Association and Nuclear Energy Institute (Docs. 39 and 72, No. 3:12- 10 cv-08038), Northwest Mining Association (Doc. 27, No. 3:12-cv-08042), Quaterra 11 Alaska, Inc. and Quaterra Resources, Inc. (Doc. 62), and Vane Minerals (Doc. 68) are 12 denied with respect to Plaintiffs’ non-NEPA claims, and granted with respect to 13 Plaintiffs Northwest Mining Association’s, Quaterra’s, Vane’s, and Yount’s NEPA 14 claims. 15 2. Defendants’ motion to dismiss the Arizona Utah Local Economic Coalition 16 on behalf of named member the Board of Supervisors, Mohave County (Doc. 62) is 17 denied. 18 3. Vane Mineral’s complaint (Doc. 86) is dismissed without prejudice. 19 4. The Court will address further scheduling issues in a separate order. 20 Dated this 8th day of January, 2013. 21 22 23 24 25 26 27 28 - 47 - July 25, 2017 Honorable Secretary Sonny Perdue United States Department of Agriculture 1400 Independence Avenue SW Washington, DC 20250 Honorable Secretary Ryan Zinke United States Department of Interior 1849 C Street NW, Mail Stop 7328 Washington, DC 20240 Re: NCLUCB Public Testimony - Application for Withdrawal; Superior National Forest, Minnesota Good Evening Mr. Chairman - Member Counties: Aitkin Cook My name is Rich Sve, and I am a Commissioner from Lake County and Chairman of the Northern Counties Land Use Coordinating Board1 (NCLUCB). It is in my capacity as Chair of NCLUCB that I appear before you tonight. Itasca NCLUCB is on record as opposing the proposed mineral withdrawal by the Bureau of Land Management2,3 and it is in this context - as units of local government - that we will be working with Koochiching Federal agencies throughout the NEPA Scoping and EIS process. It is our intention to coordinate4 all aspects of the NEPA/EIS process with the Department of Interior, Lake Department of Agriculture, Council on Environmental Quality, and the Office of the President, as together we assess the suite of alternatives, mitigation programs, and socioeconomic impact of the Lake of the potential withdrawal to human systems and the natural environment. We have based our opposition on the following reasons: Woods First, in 1978 Congress set aside the Boundary Waters Canoe Area for exclusive use, and separated that area from other public lands with a specific buffer zone called a Mining Protection Area.5 That Pennington means the Congress has already decided the withdrawal question, concluding that additional federal withdrawals of public minerals throughout the region are neither necessary or appropriate. Roseau Second, the withdrawal proposal presupposes irresponsible mineral development and forecasts environmental harm, purporting withdrawal as the only solution. This approach prioritizes one value Lo to is be - that is, sequestration - over productive use, effectively denying Americans access to public lands that are byt law managed for a broad range of uses. In our opinion, this runs counter to the express construct of the Federal Land Policy and Management Act and doctrine of Multiple Use and Sustained Yield,6 which place a high importance on resource accessibility. Third, Federal law places the burden-of-proof on the US Forest Service to demonstrate how the proposal outweighs other priority land-use values, why the existing regulatory framework insufficiently protects the natural environment, and how the impact of the withdrawal upon Minnesota state school trust lands, private property access, diminution of the tax base and other socioeconomic impacts is outweighed by outright withdrawal. In our written comments to the scoping record we will be defining Scoping Items for the EIS, and outlining Planning Criteria and Planning Issues for revision of the Superior National Forest Resource Management Plan – which we believe should be undertaken as a separate federal action from the withdrawal proposal decision. In conclusion, we believe Federal law requires resource withdrawal decisions to made through collaborative processes with local governments, or perhaps even through Congress itself. Thank you, and I stand for any questions you may have. The 9 NCLUCB members collectively have land-use planning responsibility over 26% of Minnesota’s land area, 61% of the state’s forest lands, 56% of Minnesota’s lakes, 60% of Minnesota’s remaining wetlands, and 70% of all public lands. Notification of Procedural and Statutory Deficiencies; Request for Cancellation of Withdrawal Application and Immediate Termination of Land Segregation. Comments to the BLM public record. Stillwater Technical Solutions. April 25, 2017. 3 43 USC §1714 (a). 4 43 USC §1712 (c)(9). 5 Pub. L. 95-495. 95th Congress. October 21, 1978. 6 43 USC §1702 (c), (h); 43 USC §1702 (l). 1 2 "Planning Locally Today for Future Generations" Wednesday, August 23, 2017 I. II. III. OSMRE A. B. BLM Draft letter to Alaska in Usibelli A. B. Venting and flaring litigation and rulemaking C. Earthworks extension for reply brief D. Twin Metals E. CEMEX BOEM Draft instruction memo revising Oil & Gas Leasing Reform IM (2010) A. Seismic settlement extension C. Venoco sale to Black Raven B. Cape Wind D. Air Quality--Federal Land Managers F. Publication of NTLs A. Bennu bankruptcy E. IV. Draft letter to states about 2016 BA issues BSEE B. ECOP settlement ASRC SOO C. FOIA Twin Metals Potential Scenarios for Lease Renewal Twin Metals Potential Scenarios for Lease Renewal Scenario #1: (b) (5) Implementation Notes and Legal Implications: (b) (5) 1 Scenario h11ple1nentation Notes and Legal Implications: Date: August 18, 2017 To: Jack Haugrud Deputy Solicitor, Energy and Mineral Resources From: Karen Hawbecker Associate Solicitor. Mineral Resources Subject: DMR Friday Updates to Weekly Report Below is a list of new or updated items that did not appear in the weekly rep01t that may require the attention of the front office during the week of August 21-25. 2017. or thereafter: Signi?cant Decisions: 0 Nothing to report. Litigation: Legislation: 0 Nothing to report. Correspondence/Agency Actions: Meetings cc: Tom Bovard/Richard McNeer/Dennis Daugherty OD A WORK PRODUCT Date: August 18. 2017 To: Jack Hauguld From: Laura Brown Re: DLR?Upcoming Items for Week of August 21 Lands Branch ECR Branch cc: Moody: L. Wye Twin Metals Potential Scenarios for Lease Renewal - - Twin Metals Potential Scenarios for Lease Renewal Twin Metals Potential Scenarios for Lease Renewal Twin Metals Potential Scenarios for Lease Renewal T\n'n Metals Potential Scenarios for Lease Renewal . Commented I Formatted: Font: (Default) Calibri Commented I Commented Formatted: List Paragraph, Numbered Level: 1 Numbering Style: A, B. C. Start at: 1 Alignment: Left Aligned at: 0.25 Indent at: 0.5 O. Formatted: Font: (Default) Times New Roman, 12 pt Formatted: Superscript Formatted: Font: (Default) Times New Roman, 12 pt E: Commented .d 3 - - 4 Twin Metal_s Potential Scenarios for Lease Renewal Commented Commented Attomey-Client Privilege/Attorney Work Product BRIEFING MEMORANDUM DATE: August 6, 2017 FROM: Karen Hawbecker Associate Soliciton Mineral Resources SUBJECT: ranconia AIinera/s v. United States, No. 16-3042 (D. Minn.) Involving the Denied Renewal of Federal Hardrock Mineral Leases MNES 1352 and 1353 p?a A ORNE WORK PRODUCT Date: August 4, 2017 To: Jack Hauglud From: Laura Brown Re: DLR?Upcoming Items for Week of August 011 jury duty?I have to call in each day: Lois will be in. Lands Branch ECR Branch Variety of things underway, but nothing for your attention. cc: A. Moody; L. Wye Wednesday, August 2, 2017 I. OSMRE A. OSM-FWS reinitiation briefing for Mr. DeVito C. Farrell-Cooper B. D. E. II. F. BLM Johnson Family update Usibelli Notice of Intent re: King II A. Venting & Flaring Rule, litigation, etc. C. HF Rule rescission and litigation B. D. III. WV crayfish plan Twin Metals Lease Reinstatement NEPA IM E. Chevron Mining 10th Circuit next steps F. Pending FOIA requests BOEM A. Cape Wind C. Bonding policy input B. D. Louisiana settlement Air Quality rule E. Noncompetitive Sand and gravel for renewable projects G Venoco F. IV. Gulf seismic H. Publication of NTLs A. Taylor C. Monforte BSEE B. ECOP A ORNE WORK PRODUCT Date: July 28, 2017 To: Jack Haugnld From: Laura Brown Re: DLR?Upcoming Items for Week of July 31 Aaron will be 011 Lands Branch ECR Branch cc: A. Moody: L. Wye Wednesday, July 26, 2017 I. II. OSMRE A. B. BLM Venting & Flaring Rule, litigation, etc. C. HF Rule rescission and litigation D. BOEM Twin Metals BLM Coal report A. Cape Wind C. Gulf Sale 250 B. Appropriations riders D. Lease royalty rates F. Publication of NTLs E. IV. Farrell-Cooper A. B. III. OSM-FWS reinitiation status briefing for DOI management G. BSEE A. B. Atlantic seismic State of California legislation Helicopter fuel report Taylor Update C. Royalty relief D. Monforte suspension Privileged and Confidential/Attorney-Work Product Twin Metals Summary of NEPA performed on leases MNES-01352 and MNES-01353 (b) (5) Exam les 0f Mineral Rovaltv Rate I. Current Rate a. 4% of 1/3 the value of copper nickel in ore. b. Additional of 1/3 the value of copper nickel as proxy for associated minerals platinum group minerals). c. 'If value of associated minerals exceeds 20% of value of copper nickel, a 1% royalty due on value of associated minerals that exceed 20% value. d. This 1% may be renegotiated if value of associated minerals is greater than 30% of copper nickel. II. DOI Report (BLM Policy Overview a. Based upon 1993 D01 report a GAO report most metal operations subject to Net Smelter Return (N SR) royalty between 2 to 5 percent range. . Further analysis to re?ect Fair Market Value (FMV) (per FLPMA Sec. 102 c. Establishment of royalty rates under 43 CFR 3504.22 is a BLM determination. BLM Analysis a. Based upon a FMV analysis conducted by ESO Solid Mineral Lead W0320 Senior Economist (certi?ed appraiser). b. Royalty rate recommended after FMV analysis is 3.5% (A comparable of 4.5% - 1% overriding royalty [overriding royalty encumbrance on lease] Net Return Value (NRV). c. Analysis based upon principles laid out in i. Economic Evaluation of Coal Properties ii. Economic Evaluation of Oil Gas Properties Principles used in greater than 105 leases (Hard Rock or Sodium in last 10 years) IV. Legislative Proposal a. 2015 Budget Proposal for Hardrock Mining i. Leasing program ii. Annual rental payments Royalty of not less than 5% of gross proceeds b. Need to follow current policy? *?Net Smelter Return? and ?Net Return Value? are interchangeable. Alternative Royalty Systems Minnesota Federal Hardrock Minerals US. Department of the Interior Final Draft Report September 10, 2013 For Internal Discussion Purposes Only Final Draft Report - September 10, 2013 - For Internal Discussion Purposes Only Final Draft Re ort - Se tember 10 2013 - For Internal Discussion Pur . - Fina! Draft Re ternber 10, 2013 - For internal Discussion Purposes Onl Final Draft Report - September 10, 2013 - For Internal Discussion Pur oses Onl Final Draft Report - September 10, 2013 - For internal Discussion Purposes Only Final Draft Report September 10, 2013 - For Internal Diswssion Purposes Only 0 - Fr In rnal Di cussion Puroses On Final Draft Report September 10, 2013 - For Internal Discussion Purposes Only Final Draft Re ort - Se tember 10 2013 - For Internal Discussion Puroses Onl Final Draft Report September 10, 2013 - For !nterna Diswssion Purposes Only Final Draft Re - - Setember 10 2013 - For Internal Discussion Purposes Only Finaf Draft Reort-Sctember 10 2013 For In - Final Draft Report September 10, 2013 - For Internal Discussion Purposes Only Final Draft Report September 10, 2013 - For Internal Puroses Onl Final Draft RepOrt - September 10, 2013 - For Internal Discussion Purposes Only Final Draft Report - September 10, 2013 For Internal Discussion Purposes Only Final Draft Report September 10, 2013 - For Internal Discussion Puroses Onl Final Draft Re ort ~Setember 10 2013 - For Internal Di Rovaltv Rates in MNES-03152 and MNES-03153 Attomey-Client Privilege/Attorney Work Product BRIEFING MEMORANDUM DATE: July 20. 2017 FROM: Karen Hawbecker Associate Soliciton Mineral Resources SUBJECT: ranconia AIinera/s v. United States, No. 16-3042 (D. Minn.) Involving the Denied Renewal of Federal Hardrock Mineral Leases MNES 1352 and 1353 p?a 4 5 United States Department of the Interior BUREAU OF LAND MANAGEMENT Eastern States 7450 Boston Boulevard Springfield, Virginia 22153 http://www.es.blm.gov In Reply Refer To: MEMORANDUM To: John Ruhs From: Michael W. Glasson Date: June 3, 2014 Subject: Twin Metals Royalty Rate Review, MNES 1352 and MNES 1353 The current royalty provisions for the two existing Federal leases specify the following royalty rates: • • • • Four percent of one-third of the value of copper and nickel in ores; An additional 0.3 percent of one-third of the value of copper and nickel in ores as proxy for potential associated minerals, including platinum, palladium (PGM) and gold ; If the value of the associated minerals production exceeded 20 percent of the value of the copper and nickel production, a one percent royalty is due on the value of the associated minerals that exceeds 20 percent of the copper and nickel value; and The additional one percent royalty rate (above) may be renegotiated entirely if the gross value of the associated minerals exceeded 30 percent of the copper and nickel value. The original 1966 leases set the royalty rate at four percent of one-third of the value of copper and nickel in the ore. This is the most significant royalty term as copper and nickel are the primary anticipated targets for any development on these two leases. The other royalty provisions all relate to potential associated mineral production. A royalty obligation, simply put, is the royalty rate times the royalty base. For these leases the rate is four percent. The base is one-third the value of the copper and nickel in the ore. To determine the base, one would take the copper/nickel value and divide by 3. Presumably one-third the value is to represent/approximate the recovery factor in processing, i.e. 1/3 of the ore is recovered as concentrate and the remaining 2/3 cost might represent the mining, milling and processing costs. The royalty is then four percent of that value per ton of ore sold. The royalty is subject to an ever changing price for copper and nickel and it is also subject to the grade of the ore. The following is an example of the royalty obligation. (Hypothetical) Prices from the WSJ, 06/03/14. Using an average grade of 1% copper and 0.25% nickel, this represents 20 lbs of copper and 5 pounds of nickel per ton of ore. For copper, at $3.45 per pound times 20 pounds is $69 and for nickel at $9.64 per pound times 5 pounds is $48.20, together totaling $117.20 per ton of ore. One-third of that value is $39.07 and four percent of that value is $1.56 and therefore, the royalty for copper and nickel is $1.56 per ton of ore. The terms “Net Smelter Return” and “Net Return Value” are interchangeable and are both used in different literature. FYI….. • • • The BLM did not readjust the royalty provisions (or any other terms) found in the original leases in either of the first two renewals (1989 and 2004). The leases are subject to readjustment of royalty and other terms under section 5 of the two Lease agreements. The establishment of royalty rates, under 43 CFR § 3504.22 is determined by BLM. A ORNE WORK PRODUCT Date: July 21. 2017 To: Jack Hauglud From: Aaron Moody for Laura Brown Re: DLR?Upcoming Items for Week of July 24 Lands Branch ECR Branch cc: L. Brown; L. Wye Privileged and Confidential/Attorney-Work Product Twin Metals Summary of NEPA performed on leases MNES-01352 and MNES-01353 (b) (5) Examples of Diligence Provisions in Other Solid Minerals Leases Mineral Rovaltv Rate I. Current Rate a. 4% of 1/3 the value of copper nickel in ore. b. Additional of 1/3 the value of copper nickel as proxy for associated minerals platinum group minerals). c. 'If value of associated minerals exceeds 20% of value of copper nickel, a 1% royalty due on value of associated minerals that exceed 20% value. d. This 1% may be renegotiated if value of associated minerals is greater than 30% of copper nickel. II. DOI Report (BLM Policy Overview a. Based upon 1993 D01 report a GAO report most metal operations subject to Net Smelter Return (N SR) royalty between 2 to 5 percent range. . Further analysis to re?ect Fair Market Value (FMV) (per FLPMA Sec. 102 c. Establishment of royalty rates under 43 CFR 3504.22 is a BLM determination. BLM Analysis a. Based upon a FMV analysis conducted by ESO Solid Mineral Lead W0320 Senior Economist (certi?ed appraiser). b. Royalty rate recommended after FMV analysis is 3.5% (A comparable of 4.5% - 1% overriding royalty [overriding royalty encumbrance on lease] Net Return Value (NRV). c. Analysis based upon principles laid out in i. Economic Evaluation of Coal Properties ii. Economic Evaluation of Oil Gas Properties Principles used in greater than 105 leases (Hard Rock or Sodium in last 10 years) IV. Legislative Proposal a. 2015 Budget Proposal for Hardrock Mining i. Leasing program ii. Annual rental payments Royalty of not less than 5% of gross proceeds b. Need to follow current policy? *?Net Smelter Return? and ?Net Return Value? are interchangeable. Alternative Royalty Systems Minnesota Federal Hardrock Minerals US. Department of the Interior Final Draft Report September 10, 2013 For Internal Discussion Purposes Only Final Draft Repon - September 10, 2013 - For Internal Discussion Purposes Only Final Draft Re ort - Se tember 10 201 Fina! Draft Re ternber 10 2013 - For internal Discussion Pur Final Draft Report - September 10, 2013 - For Internal Discussion Pur oses Onl Final Draft Report - September 10, 2013 - For internal Discussion Purposes Only Final Draft Report September 10, 2013 - For Internal Diswssion Purposes Only Final Draft Report September 10, 2013 - For Internal Discussion Purposes Only - Fr Intrnal Discussion Puroses Onl Final Draft Report September 10, 2013 - For !nterna Diswssion Purposes Only Final Draft Re a Setember 10 2013 - For Internal Discussion Puroses Onl Finaf Draft Reort-Sc Final Draft Report September 10, 2013 - For Internal Discussion Purposes Only Final Draft Reort Setember 10 2013 - For Internal Discussio . L- Final Draft Re Ort - Setember 10, 2013 - For Internal Discussion Puroses On! Final Draft Report - September 10, 2013 For Internal Discussion Purposes Only Final Draft Report September 10, 2013 - For Internal Discussion Puroses Only Final Draft Re ort ~Setember 10 2013 - For Internal Discussion Purp - Rovaltv Rates in MNES-03152 and MNES-03153 Attomey-Client Privilege/Attorney Work Product BRIEFING MEMORANDUM DATE: July 20. 2017 FROM: Karen Hawbecker Associate Soliciton Mineral Resources SUBJECT: ranconia AIinera/s v. United States, No. 16-3042 (D. Minn.) Involving the Denied Renewal of Federal Hardrock Mineral Leases MNES 1352 and 1353 p?a A ORNE WORK PRODUCT Date: July 14. 2017 To: Jack Haugmd From: Laura Brown Re: DLR?Upcoming Items for Week of July 17 I will be out July 20 and 21. Lands Branch ECR Branch cc: A. Moody: L. Wye Date: April 28. 2017 To: Jack Haugrud Acting Solicitor Frorn: Karen Hawbecker Associate Solicitor Division of Mineral Resources Subject: DMR Friday Updates to Weekly Report Below is a list of new or updated items that did not appear in the weekly report that may require the attention of the front of?ce during the week of May 1-5 or thereafter: Significant Decisions: 0 Nothing to report. Litigation: Legislation: . Correspondence/Agency Actions: . Rulemakings: Meetings: cc: Tom Bovard/Dennis Daugherty/Richard McNeer OD A ORNE WORK PRODUCT Date: July 7. 2017 To: Jack Haugmd From: Laura Brown Re: DLR?Upcoming Items for Week of July 10 Lands Branch ECR Branch Nothing to repo?. cc: A. Moody: L. Wye A ORNE WORK PRODUCT Date: June 30? 2017 To: Jack Haugmd From: Laura Brown Re: DLR?Upcoming Items for Week of July 3 Aaron is 011 AL Monday?Greg is acting. Lois is 011 AL Monday and pans of Wed-Fri. Jeff is acting. Lands Branch ECR Branch cc: A. Moody; L. Wye WEEKLY REPORT TO THE SECRETARY DEPARTNIENT OF THE INTERIOR June 29, 2017 Of?ce of the Solicitor Week Ahead Schedule of Meetings;I Hearings: and Travel Nothing to report. Week Ahead Announcements and Actions SIGNIFICANT LITIGATION DEADLINES FOR NEXT TWO WEEKS SEPARATELY REPORTED NEW CASES: Nothing to report. SIGNIFICANT DECISIONS: OTHER LITIGATION NIATTERS: NON-LITIGATION MATTERS: DLR ex ects Assistant Secretary for Fish and Wildlife and Parks Week Ahead Schedule of Meetings, Hearings, and Travel Nothing to report. Week Ahead Announcements and Actions Nothing additional to report.On July 2-12, the UNESCO World Heritage Committee will hold its annual session in Krakow, Poland. The U.S. will send an observer delegation to the meeting: Casey Hammond representing the Office of the Assistant Secretary for Fish and Wildlife and Parks along with a NPS employee and two State Department representatives. The meeting affords an opportunity for DOI to learn about policies that could affect the U.S. World Heritage program and for informal conversations related to potential future U.S. nominations to the World Heritage List, such as the re-submission of a nomination for buildings by architect Frank Lloyd Wright. Acting Assistant Secretary Johnson is working closely with the U.S. Navy to resolve an issue at Camp Pendleton related to the NPS’s historic preservation responsibilities under the National Historic Preservation Act of 1966, as amended. In 2012, the California State Historic Preservation Officer (SHPO) submitted the nomination of Trestles Historic District to the Navy. Trestles is part of San Onofre State Beach, which the Navy at Camp Pendleton leases to the State. The nomination is based on the significance of the beach to the California surfing culture. The Navy has historically and currently conducts training exercises in this area. After 5 years of negotiations, the NPS is reviewing the latest appeal and is expected to render a decision by July 28, 2017. U.S. Fish and Wildlife Service Week Ahead Schedule of Meetings, Hearings, and Travel For the week from July 7-11, FWS Acting Director Greg Sheehan will be out of the office to attend the Western Association of Fish and Wildlife Agencies meeting. Week Ahead Announcements and Actions On or around Friday, June 30, in conjunction with NOAA and EPA, FWS plans to publish the Coastal Wetlands Loss Analysis: Summary Findings of Pilot Studies Conducted by the Interagency Coastal Wetlands Workgroup. FWS assisted in developing the report, which summarizes wetland loss assessments conducted in four coastal U.S. watersheds. The report was developed to support subsequent policy and management actions designed to decrease net wetland loss in coastal areas. It is not controversial. Stakeholders include NOAA and EPA, local, state and federal government organizations, and NGOs. The report will be made available online and disseminated to limited stakeholder groups primarily composed of representatives from government agencies with the purview to support coastal wetland conservation and restoration. No outreach is planned by FWS. 8 After the upcoming release of the Mexican wolf draft recovery plan, on or around Friday, June 30, and during the public comment period that follows, FWS will continue seeking review and comment on the peer-reviewed draft revision from local, state and federal agencies, tribes and the public in both the United States and Mexico. Due to the high level of visibility and controversy on Mexican wolf recovery in general, extensive outreach is planned including personal phone calls and public meetings. In addition, FWS will ensure information is readily available on the Mexican wolf recovery website and through social media (Facebook and Twitter). New postings will be done when key dates are occurring. To gain additional comments and feedback, FWS is hosting public meetings in Arizona and New Mexico on the updated Mexican wolf recovery plan between July 18 and July 22. On or around July 5, FWS and partners will begin removal of Hunters Pond Dam in Scituate, Massachusetts. The project, partially funded by DOI’s Hurricane Sandy Coastal Resiliency Competitive Grant program administered by the National Fish and Wildlife Foundation, is a high priority for the restoration of river herring and will open up five miles of riverine channel and 200 acres of alewife pond spawning habitat. Partners include Massachusetts Division of Ecological Restoration, NOAA, North and South Rivers Watershed Association, Town of Scituate and the Massachusetts Office of Coastal Zone Management. Local media and stakeholder outreach is planned. On or around July 7, FWS, state, and local officials will celebrate the reopening of the White River National Fish Hatchery. The hatchery was severely damaged after Hurricane Irene in 2010 and it took congressional appropriations to repair the damage and reopen the facility. The facility will focus efforts on restoring land-locked Atlantic salmon and lake trout to Lake Champlain and its tributaries in Vermont, New York, and Quebec as well as lake trout in Lakes Erie and Ontario. The Vermont congressional delegation has been invited. Local media advisory and news release are planned with a possible pitch to AP, which has covered the story. On or around July 7, through the Secretary, FWS plans to announce nearly $15 million in grants to 40 states for projects to support recreational boating through the Boating Infrastructure Grant (BIG) program. More than $9 million of this will go to six states (California, Maine, Michigan, South Carolina, Texas, and Washington) for competitive grants, and the remaining $5 million will go to 39 states, commonwealths, territories, and the District of Columbia for a smaller, noncompetitive grant program. Funding is generated through the Sport Fish Restoration and Boating Trust Fund by excise taxes on sport fishing and boating equipment and tackle, motorboat fuels, and import duties on fishing tackle, yachts, and pleasure craft. Grants, which are matched by funding from project partners, support construction or renovation of tie-ups, utilities, fuel stations, pump-out and dump stations, restrooms, and additional sanitary amenities such as laundry and showers for recreational boaters. Outreach to be determined by the Department and includes the potential for a Secretarial event possibly in conjunction with the CVA grants announcement (see below). Outreach (news release and social media) can be done with local and national media outlets and special interest media such as boaters, anglers, marina owners and conservation organizations. This is not controversial. On or around July 7, through the Secretary, FWS plans to announce nearly $15.4 million in 9 grants to 20 states for projects to support clean water and recreational boating through the Service’s Clean Vessel Act Grant (CVA) program. The CVA program provides grant funds to the states, the District of Columbia, and insular areas for the construction, renovation, operation and maintenance of pumpout stations and waste reception facilities for recreational boaters and also for educational programs that inform boaters of the importance of proper disposal of their sewage. Funding is generated through the Sport Fish Restoration and Boating Trust Fund by excise taxes on sport fishing and boating equipment and tackle, motorboat fuels and import duties on fishing tackle, yachts and pleasure craft. Outreach to be determined by the Department and includes the potential for a Secretarial event possibly in conjunction with the BIG grants announcement (see above). Outreach (news release and social media) can be done with local and national media outlets and special interest media such as boaters, anglers, marina owners, and conservation organizations. This is not controversial. National Park Service Week Ahead Schedule of Meetings, Hearings, and Travel Nothing to report. Week Ahead Announcements and Actions On June 22, three plainclothes USPP officers approached four suspects on the National Mall and took enforcement action regarding illegal vending. All four were immediately handcuffed. During the investigation it was determined that the adult suspect, who had previously been contacted for illegal vending, was not involved in this case released. Although the ages of the other 3 young men were unknown, this investigation revealed they were juveniles (ages 16, 17, and 17). The officers, using their discretion, decided to release them, without charge, to their parents/guardians. There continues to be media and Congressional interest in this matter. From now through September, preparations are underway for a major rehabilitation project at Arlington House, The Robert E. Lee Memorial. There will be periodic, partial closures of the house and site to accommodate the work. The site is expected to close completely in September for major construction, which is expected to last 18 months. On July 5, Theodore Roosevelt National Park in North Dakota will start a new process of transferring horses from its demonstration herd to the public through GSA. The reduction of horses from the demonstration herd is necessary to reduce the number of horses in the park and maintain a healthy herd. This initial operation will collect up to five yearlings and foals and the park will continue to work with the longtime partners to help connect the horses with potential buyers. There has been limited local media interest at this time. Local Congressional staff has been notified. On July 6, as part of the Anacostia Park Wetlands Management Plan, the D.C. Department of Energy and Environment (DOEE), under an agreement with the NPS, will round up and euthanize geese to regulate the resident population. The plan aims to restore the wetlands that surround the Anacostia River and eventually aid in restoring the river’s health. This is the second 10 year the park has done a goose roundup in paitnership with DOEE and Animal and Plant Health Inspection Service (APHIS). The meat will be donated to the DC Central Kitchen. 011 July 8, the NPS anticipates the announcement of the $3.623.162 (possibly including an additional $1.189.000) in available Battle?eld Land Acquisition grant funding. Grants will be used to protect 999 acres of Revolutionary and Civil War battle?elds in Virginia. Mississippi, New York. West Virginia. and Maiyland. The NPS works with private landowners. battle?eld friends groups. interested community groups. non-pro?t organizations. academic institutions. local. state. and tribal govenmlents and Federal agencies for prese1vation projects and local acquisition of Revolutionary War. War of 1812. and Civil War battle?eld land. The NPS is working with the Secretary?s of?ce 011 an event and the conmlunications plan. CLOSE HOLD LITIGATION-SETTLEMENT SENSITIVE) 11 Assistant Secretary - Indian Affairs and the Bureaus of Indian Affairs and Indian Education Week Ahead Schedule of Meetings, Hearings, and Travel On June 28, there will be a Senate Committee on Indian Affairs roundtable discussion on broadband access in Indian Country. Minority staff seeks a DOI-Indian Affairs representative to discuss the need and challenges of accessing broadband in Indian Country and BIE schools. On July 7, the Senate Committee on Indian Affairs will hold a field hearing in Santa Fe, New Mexico on Native American Art and Crafts authentic crafts and fraudulent crafts. Week Ahead Announcements and Actions June 30 will be the last day for Acting Deputy Assistant Secretary for Management – Indian Affairs James Burckman. 12 Assistant Secretary for Land and Minerals Management Week Ahead Schedule of Meetings, Hearings, and Travel Nothing to report. Week Ahead Announcements and Actions In early July, upon recommendation from the BOEM, ASLM is considering a proposal to implement of a 12.5% royalty rate for oil and gas production in shallow water depths only for leases offered in GOM Lease Sale 249, which is scheduled to take place on August 16, 2017. Bids for leasing in shallow waters have been in steady decline, primarily due the high incidents of natural gas in shallow water depths, which compete unfavorably with more onshore gas resource plays. If approved, the Bureau will make the announcement using a Note to Stakeholders and affected governors will be notified via correspondence. During the month of July, the U.S. Army will undertake a munitions cleanup in public access areas at BLM-CA’s Fort Ord National Monument. Fort Ord is located about ten miles northeast of Monterey and is in the Central California District Office. The cleanup encompasses about 800 acres of BLM-managed lands and Army-managed lands in the northern portion of the monument. The first phase of cleanup is cutting vegetation, which will require road and trail closures. Phase two will include prescribed burning. On July 3, BLM-AK will review and provide comments on the Donlin Gold preliminary final EIS for the U.S. Army Corps of Engineers, the lead agency for the project. Donlin Gold LLC applied for permits for an open pit, hard rock gold mine located approximately 277 miles west of Anchorage, in southwest AK. The project also requires transportation infrastructure and a pipeline. During the week of July 3, BOEM plans to initiate the process of developing a new Five Year Outer Continental Shelf (OCS) Oil and Gas Program (Five Year Program) with publication of a Request for Information and Comments. The decision to undertake a new Five Year OCS Program is currently scheduled to be announced on June 29 at an Energy Summit hosted by the Department of Energy. As required by section 18 of the OCS Lands Act, notification letters will be sent to all 50 Governors and several Federal agencies. This action will be taken pursuant the April 28, 2017, Executive Order entitled, “Implementing an America-First Offshore Energy Strategy” and Secretary’s Order 3350, issued on May 1, 2017. On July 5, BLM-NM Acting Rio Puerco Field Manager Angel Martinez will meet with the Governor of the Zia Pueblo Tribe at the Zia Pueblo. Among the topics they will discuss are the possibility of a local shooting range and access to the local off-highway vehicle area. On July 7, the Federal Register will publish the NOA of the Draft EIS for the Normally Pressured Lance (NPL) Natural Gas Development Project. The proposed project, which was submitted by Jonah Energy LLC, could unlock 5.25 trillion cubic feet of natural gas, providing a reliable, long-term energy source for the nation and creating more than 700 full-time jobs and 13 stable employment opportunities for southwestern Wyoming. The project could also create $2.2 billion in royalties, half of which would go to the State of Wyoming. 14 Assistant Secretary Policy, Management and Budget Week Ahead Schedule of Meetings, Hearings, and Travel Senate Committee on Indian Affairs Field Hearing ● Who: Indian Arts and Crafts Board and FWS Office of Law Enforcement ● What: Hearing before Senator Tom Udall (NM), Vice Chair of the Senate Committee on Indian Affairs, and Senator Martin Heinrich (NM). ● When: Friday, July 7, 10:00 am local time ● Where: Santa Fe, NM (Santa Fe Indian School) ● Press: Local media will attend ● Topics: "Cultural Sovereignty Series: Modernizing the Indian Arts and Crafts Act to Honor Native Identity and Expression (strengthening the Indian Arts and Crafts Act)" Week Ahead Announcements and Actions Suspension and Debarment Actions. On June 9, 2017, DOI debarred Danelle Arlene Newman based on her conviction for mail fraud in connection with the Land Buy Back Program for Tribal Nations (Program), managed by the DOI Office of the Special Trustee for American Indians (OST). Between January 2013 and July 2014, Newman illegally received $22,295.00 through the Program by fraudulently executing official forms, misrepresenting herself as another person in calls to the OST Trust Beneficiary Call Center, and on three separate occasions, fraudulently executing a Deed to Restricted Indian Lands belonging to another individual. Year 2017 Small Business Accomplishments to Date. As of June 22, 2017, the Department has awarded 55.02% of its contract award dollars to small businesses. The Department-wide small business goal, which was negotiated with the Small Business Administration (SBA), is 53.5%. The Department awarded 21.82% of its contract award dollars to small disadvantaged businesses and 14.12% of its contract award dollars to women-owned small businesses, exceeding the statutory goal of 5% for each. The Department awarded 3.53% of its contract award dollars to historically underutilized business zone small businesses and 3.72% of its contract award dollars to service-disabled veteran-owned small businesses. The statutory goal is 3% for each of these categories. Internal Control and Audit Follow-up. The Department has an annual goal of closing 85 percent of corrective actions scheduled for closure in the current FY to address issues raised in OIG and GAO engagements. As of June 23, 2017, the Department has closed 37 percent of open audit recommendations scheduled for closure in FY 2017. Royalty Policy Committee. ONRR issued a Federal Register Notice to extend the nomination period for the Royalty Policy Committee (Committee) by an additional 30 days. On April 3, 2017, the Department of the Interior published a notice establishing the Committee and requesting nominations. The last submission date for Committee nominations is now July 3, 2017. 15 Assistant Secretary for Water and Science Week Ahead Schedule of Meetings, Hearings, and Travel Nothing to report. Week Ahead Announcements and Actions In the coming weeks, the Department will release a new USGS report on critical minerals for the United States. This publication presents resource and geologic information for 23 mineral commodities currently viewed as important to our national economy and national security, many of which are sourced entirely outside of the United States. The report provides an in-depth look at each commodity's use, distribution of deposit types, and current status of production, resources, and reserves. The individual commodity chapters serve as an update to the 1973 commodity chapters of USGS Professional Paper 820, United States Mineral Resources. A DOI news release is planned. 16 30-60 DAY LOOK-AHEAD Office of the Solicitor SIGNIFICANT LITIGATION DEADLINES FOR NEXT THREE WEEKS SEPARATELY REPORTED Assistant Secretary for Fish and Wildlife and Parks On August 28, federal agencies will begin selling the new America the Beautiful Senior Pass which allows lifetime access to certain federal lands. The price will increase from $10 to $80. The NPS and DOI Communications Offices as well as the NPS and DOI legislative offices are working on the announcement plan. The new date has not yet been announced publicly. U.S. Fish And Wildlife Service FWS will seek public input to identify potential issues and concerns, impacts, and alternatives to be considered in development of either an Environmental Assessment or an Environmental Impact Statement under the National Environmental Policy Act, as amended for a proposed General Conservation Plan for oil and gas activities in Santa Barbara County, California. This action is not expected to be controversial. Interested stakeholders are oil and gas operators and environmental organizations in Santa Barbara County, California. Outreach will be targeted to Santa Barbara County area media, congressional staff and stakeholders. FWS will offer a briefing with staff from the Santa Ynez Band of Chumash Environmental Office in advance of Federal Register notification of public comment period. Target date for submitting to the Federal Register is July 17. Grants By July 15, FWS plans to announce approximately $1 million in white-nose syndrome grants to states. The grants will help states respond to the deadly white-nose syndrome disease of bats through actions such as looking for the fungus that causes the disease, carrying out decontamination procedures at state caves and mines, and monitoring bat populations. Whitenose syndrome is a disease caused by a fungus that has killed millions of valuable insect-eating bats and has been found in 31 states. Recent studies show that the agricultural value of insect control by bats is $1.4 billion annually in Texas alone. FWS leads the national response to the disease. This action is not controversial. A news release and outreach to interested stakeholders is planned and will be coordinated with Association of Fish and Wildlife Agencies (AFWA) and state wildlife directors. Pending Departmental clearance, FWS will announce the approval of around $4 million in grants for 31 projects throughout the Americas as part of the Neotropical Migratory Bird Conservation Act grant program. Exact date and award amount are not yet determined. News release and outreach to bird-centric media are planned. This is not controversial. Pending Departmental advisement, FWS will approve a slate of projects for funding under the 17 Competitive State Wildlife Grants program. The projects focus on “species of greatest conservation need” identified in State Wildlife Action Plans. Funds for this program are appropriated annually by Congress. FWS Regional Offices will submit individual grants for DOI approval prior to award. This is not controversial. No outreach is planned. Asian Carp On July 10, Representative Marcy Kaptur (D-Ohio) is hosting a public event in suburban Cleveland to discuss Great Lakes issues. Representative Kaptur is inviting several experts to sit on the panel and answer audience questions about the Great Lakes ecological issues. FWS Midwest Deputy Regional Director Charlie Wooley will attend and answer questions about Asian carp. Other groups represented will include NOAA, U.S. Army Corps of Engineers and Ohio Sea Grant/Stone Laboratory. This summer, the 2016 Water Resources Reform and Development Act Report to Congress on Asian carp will be finalized. Notable changes from the 2015 report include the slight range expansion of silver carp, the movement of juvenile Asian carps in the sub-basins and additional information on the status of black carp. As in previous years, the 2016 report will be made available to the public on AsianCarp.us. The Water Resources Reform and Development Act of 2014, includes direction from Congress to FWS to lead a multiagency effort to slow the spread of Asian carp in the Upper Mississippi River and Ohio River basins, in coordination with the U.S. Army Corps of Engineers, the National Park Service and the U.S. Geological Survey. Specifically, WRRDA calls for the FWS to develop and deliver a report to Congress summarizing all activities and expenditures (both federal and non-federal) related to Asian carp prevention efforts in the two watersheds, as well as describing any observed changes in the range of Asian carp in Upper Mississippi River and Ohio River basins. The report also outlines research that could improve the ability to control the spread of Asian carp and quantitative measures proposed for use in documenting progress in controlling the spread of Asian carp. This is potentially controversial due to the slight range expansion of silver carp. No public outreach is planned. FWS will conduct outreach to Congress. Endangered Species Act Recovery Actions FWS plans to send to the Federal Register a notice of availability of the revised draft recovery plan for the giant garter snake in California. The cost of certain actions pertaining to habitat acquisition, restoration, and management is listed as “To be decided,” reflecting the considerable uncertainty around what the actual cost of those actions will be once completed. Stakeholders include federal and state agencies, conservation organizations, local agricultural communities and local municipalities as it concerns water usage. This action is not expected to be controversial, although the estimated costs of voluntary actions and actions needed for recovery could generate local stakeholder and media attention. Planned outreach includes early notifications to stakeholders, news release to local media and postings to website and social media. This is pending clearance by the Department. On July 19-20, FWS will host public scoping meetings in Central Oregon to gather information to prepare a draft environmental impact statement related to the Deschutes Basin Habitat 18 Conservation Plan. The Deschutes Basin Board of Control and the City of Prineville are the permit applicants for the incidental take of three listed species: Oregon spotted frog, bull trout, and steelhead. Media is expected. Stakeholders include local farmers, irrigators, and recreationists. WaterWatch of Oregon, Center for Biological Diversity, Coalition for the Deschutes, Trout Unlimited and the Deschutes River Conservancy will likely get involved in the NEPA process. This will be regionally controversial. Outreach is planned to alert the public to the meetings. There will be a news release, social media posts, and outreach to local and state representatives. Phone calls will be made and emails sent to the partners already listed in the report item. The meetings are just the first step in the scoping process, so there will be follow-up outreach with interested partners after the meetings. On or around August 4, FWS plans to send to the Federal Register a notice of availability of a draft post-delisting monitoring plan and reopen the public comment period on the proposed rule to delist the black-capped vireo. The post-delisting monitoring plan will be finalized in concert with the decision on the final delisting rule in January 2018. This action may become controversial. Stakeholders include the petitioners, Pacific Legal Foundation, the Office of Travis Co. Judge, Big Bend National Park, and others. There have been a number of public comments opposing the delisting of the black-capped vireo, and a number of partner agencies concerned about having the necessary funds to implement the ongoing management needs (cowbird removal) and monitoring identified for their lands, which may also result in concerns about the viability of both the delisting and the post-delisting monitoring plan. Planned outreach will include notifications to local stakeholders, a press release to local media and social media posts. On or around August 4, FWS plans to send to the Federal Register a notice of availability of a draft post-delisting monitoring plan, and reopen the public comment period on the proposed rule to delist the lesser long-nosed bat. The post-delisting monitoring plan will be finalized in concert with the decision on the final delisting rule in January 2018. This action is not controversial. Stakeholders are the Pacific Legal Foundation and the New Mexico Cattle Growers Association. Planned outreach will include notifications to local stakeholders, a press release to local media, and social media posts. Endangered Species Act Listing/Delisting Actions Pending clearance, FWS plans to send to the Federal Register a final listing determination for the i’iwi, a Hawaiian bird. This action is not controversial. The only interested stakeholder groups are the petitioners, Center for Biological Diversity comment and Life Net. FWS is required by settlement agreement to submit the finding for the i’iwi to the Federal Register by September 20. Outreach is planned to Hawaiian media and to national conservation and birdcentric media. On or around July 14, FWS plans to send to the Federal Register a notice announcing a sixmonth extension of the final determination of whether to list the San Fernando Valley spineflower, a plant species from southern California, as a result of substantial scientific disagreement concerning the species. This notice will also reopen the comment period on the proposed rule to list the species for an additional 30 days. The spineflower listing is locally 19 controversial, but filing a six-month extension is not expected to be controversial. In August, the FWS will announce the availability of a draft Candidate Conservation Agreement (CCA) for public comment that outlines conservation measures to benefit the San Fernando Valley spineflower. The CCA was prepared in collaboration with Newhall Land and Farming Company. The interested stakeholder is Newhall Ranch. Outreach will include stakeholder notifications and posting of notice to field office newsroom. On or around July 17, FWS plans to send to the Federal Register a proposal to list the Louisiana pine snake, located in Louisiana and Texas, as a threatened species with a 4(d) rule. This action is controversial. Stakeholders include the U.S. Army, the U.S. Forest Service, State and private landowners and the timber industry. Planned outreach will include notifications to stakeholders and relevant members of Congress, press release to local media and social media posts. On or around July 19, FWS plans to send to the Federal Register a notice reopening for public comment the proposed listing of western glacier stonefly and meltwater lednian stonefly, located in Montana and Wyoming, as threatened species. The reopening will allow the public to comment on new range information regarding western glacier stonefly. This action is not expected to be controversial. Interested stakeholders include WildEarth Guardians and the States of Montana and Wyoming. A regional news release is planned. On or around July 28, FWS plans to send to the Federal Register a final rule to remove the eastern cougar (historically known to exist in southeastern Ontario, southern Quebec and New Brunswick in Canada and a region bounded from Maine to Michigan, Illinois, Kentucky, and South Carolina in the eastern United States) from the list of endangered and threatened species due to extinction. Although we do not anticipate major public controversy with regard to the final rule, opposition to our conclusion of extinction may be expressed by advocates and advocacy organizations for puma and large predator conservation who maintain that eastern cougars still exist. However, the best available information indicates that sightings of cougars in the east are cases of mistaken identity (with bobcats) or escaped captive animals or, rarely, cougars from western populations dispersing eastwards. Interested parties include eastern U.S. states, the Humane Society of the United States, the Animal Legal Defense Fund and the Cougar Network. National news bulletin and Congressional emails are planned. On or around August 1, FWS plans to send to the Federal Register a notice designating critical habitat for three plant species on Hawaii Island and correct the maps for existing designations for an additional four species there. We intend to exclude lands owned or managed by the Queen Liliuokalani Trust, the Department of Hawaiian Homelands, and other private landowners under Section 4(b)(2) of the Act. This action is not controversial. Interested stakeholders include the State of Hawaii and multiple state agencies, the County of Hawaii and various private landowners. Outreach includes a news release, social media, emails, and phone calls to Congressional offices and stakeholders mentioned above. On or around August 2, FWS plans to send to the Federal Register 90-day petition findings for five species: the oblong rocksnail, sicklefin chub, sturgeon chub, tricolored bat, and Venus flytrap. As part of this batched finding we are publishing a correction to the 90-day finding for leopards which clarifies the range and the entity we are evaluating in our status review. The 20 findings in this batch are not expected to be controversial, however, the substantial 90-day finding for the tricolored bat might generate attention, given that the primary threat to it is whitenosed syndrome (which is threatening other bat species across North America). Stakeholders for the tricolored bat include the wind, oil and gas industries, federal forest land managers (Department of Defense, Forest Service, National Park Service and the Bureau of Land Management), private forest landowners, States, Canada and Mexico, federal academic researchers (U.S. Geological Survey and universities), the caving community, and local municipalities and homeowners who have bats on their property. Stakeholders for the other species include the Center for Biological Diversity, Cahaba River Keeper, WildEarth Guardians, Defenders of Wildlife, the Humane Society, International Fund for Animal Welfare, the Fund for Animals and several individuals. Outreach will include notifications to stakeholders and petitioners and a low-key national news bulletin to media. On or around August 4, FWS plans to send to the Federal Register a 12-month finding and proposed delisting determination on the Deseret milkvetch, found in Utah. The Service concluded that the threats (residential development, highway widening, livestock grazing, and small population size) either have not occurred to the extent anticipated, are being adequately managed, or the species is more tolerant of the stressor than originally known. Interested stakeholders include the petitioner, Western Area Power Administration, entities that own lands occupied by the species, Utah Division of Wildlife Resources, and Utah Division of Transportation. Planned outreach will include a regional news release, emailing the news release to relevant congressional offices, and phone calls to the respective state wildlife directors. This is not expected to garner national attention. National Wildlife Refuge Actions By the end of July, FWS will publish a proposed rule and open a 30-day public comment period on the 2017-18 Refuge-Specific Hunting and Sport Fishing Regulations. The proposed rule would open various national wildlife refuges to hunting and/or sport fishing for the first time (new hunts) and expand hunting and fishing opportunities at others. Outreach is planned to include a national news release when the Federal Register notice is published and notifications to members of Congress in affected districts, with some stakeholder outreach. Migratory Bird Management Actions Only July 17, FWS plans to announce new regulations that will allow the sale, including consignment sale, of authentic Alaska Native handicrafts or clothing that incorporate nonedible migratory bird parts. Handicrafts must be made from migratory birds harvested for food during the subsistence season. There are 27 bird species from which parts may be used. On or around July 15, FWS plans to send to the Federal Register its annual proposal for administering tribal hunting, fishing and gathering rights under multiple treaties for several federally recognized tribes in the Great Lakes region. The proposal has been compiled in consultation with the Great Lakes Indian Fish and Wildlife Commission, which represents 11 tribes in Minnesota, Wisconsin, and Michigan. FWS has informed the Wisconsin, Minnesota, and Michigan DNRs of the agency’s support for these proposed regulations. A final decision will not be made until after public comments are reviewed and would not take effect until the fall 21 2017 hunting season. The proposal is expected to be controversial due to the inclusion of several new techniques for tribal members to take waterfowl, including electronic calls, hand held nets and snares, and use of these nets at night. Other On July 11, FWS will host a State-Tribe American Ginseng Program Coordination Meeting in Morgantown, West Virginia. American ginseng is a native plant extensively harvested for its roots for export to Asia where they are highly valued for their medicinal properties. Due to the high volume of international trade of wild ginseng, the species is included in Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Appendix II allows trade that is biologically sustainable and legal. The meeting will bring together the state and tribe ginseng program coordinators to discuss pressing current issues facing wild ginseng, management efforts, and necessary steps to improve the long-term sustainability of ginseng. The meeting is part of FWS’s ongoing efforts to improve coordination and consultation with states and tribes to ensure that FWS continues to meet its responsibility that exports of American ginseng are legal and sustainable. Immediately after the 1-day coordination meeting, is a 2-day (July 12-13) symposium on the “The Future of American Ginseng and Forest Botanicals.” The symposium, coordinated by the United Plant Savers and in collaboration with FWS, and supported by several herbal product companies, will present new biological and management information on the conservation and trade of American ginseng and other economically important forest plants that provide revenue to local economies, particularly the Appalachian Region. National Park Service On or about July 9, Golden Gate National Recreation Area is scheduled to host the Honorable Rick Colless, Member of the Legislative Council in New South Wales, Australia, who serves as the Parliamentary Secretary for Natural Resources. He is visiting as part of a Commonwealth Parliamentary Association study tour to the U.S. and Canada, and he has expressed specific interest in northern California and Yellowstone. They are interested in visits to national forests and parks and meetings with industry stakeholders to discuss forest and park management, natural resource management, conservation, and commercial logging policies and practices. In early July, the National Mall and Memorial Parks will drain the pond in Constitution Gardens for cleaning and maintenance. It is expected to be empty for approximately a week. Work will not commence until after the July 4th holiday. Neither of these projects are related to the recent draining of the Lincoln Memorial Reflecting Pool because of elevated parasite levels. On July 11, the NPS will meet with representatives of the Sitka Tribe of Alaska to begin negotiations regarding the Tribe’s proposal for compacting certain NPS functions at the park. A pre-negotiation meeting regarding the request was held in late May. The Tribe is seeking to manage maintenance and interpretation & education functions in the park in FY-18. In July, the NPS anticipates the announcement of the $1.75 million in available Maritime Heritage project grant funding. These grants will be used for maritime heritage education and 22 preservation projects related to the maritime heritage of the United States. The National Maritime Heritage Act established the National Maritime Heritage Grants Program within the Department of the Interior. The grants program is administered in partnership with the Maritime Administration. It provides funding for education and preservation projects designed to preserve historic maritime resources and is funded through a percentage of the proceeds from the sale or scrapping of obsolete vessels of the National Defense Reserve Fleet. All grants awarded must be matched on a 1-to-1 basis with non-Federal assets. In July, the NPS will announce the award of $18 million in centennial challenge projects. Many of the projects accomplish deferred maintenance projects, and all represent public-private partnerships, since each project requires a minimum 50/50 match with non-federal funds. The NPS is coordinating with DOI Communications on the public announcement and notification to the recipients. In July, the NPS anticipates the announcement of $15 million in Outdoor Recreation Legacy Partnership grant funding for approximately 25 projects. A total of 51 projects were submitted by states to acquire and develop outdoor recreation spaces. This competitive program supplements the annual Land and Water Conservation Fund apportionment to states by supporting projects for disadvantaged populations in urban areas. The NPS is coordinating with DOI Communications on the public announcement and notification to the recipients In July, the NPS will announce the apportionment of $1,635,742 in Native American Graves Protection and Repatriation Act grants to fund repatriation and reburial projects. The grants will assist in consultation, documentation, and repatriation of ancestors and sacred objects, objects of cultural patrimony, and funerary objects back to Indian tribes and Native Hawaiian organizations. Enacted in 1990, NAGPRA requires museums and Federal agencies to inventory and identify Native American human remains and cultural items in their collections, and to consult with Indian tribes, Alaska Native villages, and Native Hawaiian organizations regarding repatriation. Section 10 of the Act authorizes the Secretary of the Interior to award grants to assist in implementing provisions of the Act. The NPS will coordinate with DOI Communications on the public announcement and notification to the recipients In July, the Great Smoky Mountains National Park fire assessment review will be released. In February, a team of fire experts (federal and state) convened at Great Smoky Mountains National Park to conduct an independent review of the 2016 Chimney Tops 2 fire that started in the park on November 23. The purpose of the review is to assess the facts leading up to and during the Chimney Tops 2 fire within the boundaries of the park, as well as make recommendations on any planning, operational, or managerial issues which can be addressed locally, regionally, and/or nationally to reduce the chances of a similar incident in the future. The NPS has received tort claims related to this incident and expects additional lawsuits soon. In July, the NPS will announce $21 million in grants from the Historic Preservation Fund (HPF) to States and Territories. Grants will be awarded to 59 State Historic Preservation Offices (SHPOs), based on the amounts available under Consolidated Appropriations Act 115-31. SHPO grants receive minor press coverage when the awards are announced. Several SHPOs have contacted the NPS about their inability to meet payroll because of the late appropriation. 23 In July, the NPS will announce $4.5 million in grants from the Historic Preservation Fund (HPF) to Indian Tribes. Grants will be awarded to 169 Tribal Historic Preservation Offices (THPOs), based on the amounts available under Consolidated Appropriations Act PL115-31. THPO grants receive minor press coverage when the awards are announced. Several THPOs have contacted us about inability to meet payroll because of the late appropriation. In July, the NPS anticipates the announcement of $500,000 in Tribal Heritage grants from the Historic Preservation Fund (HPF) to Indian Tribes. Grants will be awarded to 14 Tribes, based on the amounts available under Consolidated Appropriations Act PL 115-31 and reapportioned funding from PL 114-113. Tribal Heritage grants receive press coverage when the awards are announced. On or about July 17, the FY 16 Annual Report on the Economic Impact of the Federal Historic Tax Credit is expected to be issued. The report finds that the $6.5 billion of private investment in historic rehabilitation for FY16 produced an estimated 109,000 jobs and benefited the national economy with over $12.3 billion in output, $6.2 billion in GDP, and $1.7 billion in taxes generated. The report was undertaken by the NPS through a cooperative agreement with the Rutgers University Center for Urban Policy Research and documents the wide breadth of economic impacts of the credit, as well as the cumulative impacts of the program since the program's inception in 1976 -- $13l.8 billion in leveraged private investment in the historic rehabilitation, over 42,000 certified projects, and over 2.44 million jobs. Commonly known as the Historic Tax Credit, the program provides a 20-percent federal tax credit to property owners who undertake a substantial rehabilitation of a historic building in a business or incomeproducing use, while maintaining its historic character. The program is administered by the NPS and the Internal Revenue Service, in partnership with the State Historic Preservation Offices. The NPS certifies that a historic building is eligible for the program and that its rehabilitation meets preservation standards On July 18, t the NPS will hold public meetings in Flagstaff, Arizona, seeking public input into the replacement of the Grand Canyon National Park's 12.5 mile long Trans-canyon Pipeline that conveys water from Roaring Springs located below the North Rim to the Indian Gardens Pump Station at the South Rim. This essential component of Grand Canyon's infrastructure is 44 years old, putting it well past its normal life expectancy. The pipeline is the sole source of water supporting park operations on the South Rim, providing all drinking and utility water for more than 4.7 million annual visitors and 2,500 year-round residents. In mid-July, Mojave National Preserve will begin a 60-day public comment period on the Water Resources Plan and draft Environmental Impact Statement (WRP/DEIS). The plan will manage both developed (diverted springs and wildlife guzzlers) and undeveloped water resources in the park. The process is being closely watched by local hunting groups interested in the management of wildlife guzzlers (large basins which catch rainwater and provide a watering source for wildlife and cattle), which are viewed as necessary to maintaining a healthy bighorn sheep population for hunting. In late July, George Washington Parkway will begin the work to clean, wax, and re-gild the U.S. 24 Marine Corps War Memorial, commonly referred to as the Iwo Jima Memorial. Visitor access will be affected. The project also includes engraving Iraq and Afghanistan on the memorial to honor those who served. The park will notify stakeholders of the project’s potential impacts. The project was made possible by a donation from philanthropist David Rubenstein. On August 18, Olympic National Park will host a special event at Hurricane Ridge celebrating the renaming of the Olympic Wilderness to the Daniel J. Evans Wilderness by a 2016 act of Congress. Evans, a former Washington state governor and U.S. Senator, was the lead sponsor of the Washington Park Wilderness Act of 1988. Evans will speak at the event and various Congress members and/or staff are expected to among the estimated 150 participants. The NPS is working on a communications plan and will coordinate with DOI Communications Office. Assistant Secretary - Indian Affairs and the Bureaus of Indian Affairs and Indian Education July 10 is the new deadline for public comments for the Bears Ears National Monument, and the deadline for comments on all other monument designations under review. On July 12, a Senate Committee on Indian Affairs hearing on S.943, Johnson-O'Malley Supplemental Indian Education Program Modernization Act is scheduled. An invitation for a Departmental witness is expected. July 15 is the deadline for comments on E.O 13871, how Interior and the Federal government can be reorganized. On July 19, a Senate Committee on Indian Affairs hearing oversight hearing on Indian Gaming is scheduled. On July 19-20, the Self-Governance Advisory Committee quarterly meeting will place at the Embassy Suites DC Convention Center, 900 10th St NW, Washington, DC 20001. The Acting Assistant Secretary for Indian Affairs is invited to attend on Thursday, July 20. On July 24, the Department’s Office of Policy Analysis will hold an Indian Economic Development Data workshop preceding the Tribal-Interior Budget Council meeting, at the Twin Arrows Navajo Casino Resort, 22181 Resort Blvd., Flagstaff, AZ. On July 25-27, The Tribal-Interior Budget Council (TIBC) will meet at the Twin Arrows Navajo Casino Resort, 22181 Resort Blvd., Flagstaff, AZ. On July 26, a Senate Committee on Indian Affairs oversight hearing on “Human Trafficking” is scheduled. August 12 is the deadline for proposals from Tribes for the Office of Indian Energy and Economic Development’s (IEED’s) FY 2017 Native American Business Development Institute (NABDI) economic development feasibility study grant program. This grant program has, 25 among other successes. enabled the Citizen Potawatomi Nation to build an industrial park and restore a 66?mile rail line that opens an east-west connection to four major north-south rail corridors for regional commerce. Items of Note/Ex ected Le islative Le al Polic Issues Regulations Ready for OS Review 0 None at this time. Regulations Pending Departmental Review, Then Ready for Signature Assistant Secretary for Land and lwinerals Management During the week of July 10. OSMRE anticipates submitting the B1111 Hill 2 mine plan decision documents to the ASLM for approval. Located in Latimer County. OK. the mine is owned by Farrell-Cooper Mining. employs 36 people, and contains approximately 384,000 tons of recoverable Federal coal. During the week of July 10. OSMRE anticipates publishing a Notice of Availability in a local newspaper for the Bridger Mine Mining Plan Modi?cation Draft EA. initiating a 30-day comment period. The Bridger Coal ompany?s Bridger Mine is an underground mine located in Sweetwater omity. WY that employs 5.40 people. If the modi?cation is approved, production is estimated to be 2.24 million tons per year. During the week of July 10, OSMRE plans to publish a Notice of Availability in a local newspaper for the Cordero Rojo Mine Mining Plan Modification Draft EA, initiating a 30-day public comment period. Cloud Peak Energy’s Cordero Rojo Mine is a surface mine located in Campbell County, WY. The mine employs 383 people and produces approximately 20 million tons of coal per year. On July 10, BOEM plans to publish the Record of Decision for a project to rehabilitate 4 miles of shoreline damaged by Hurricane Matthew in Martin County, FL. The Bureau will enter into a 3-party agreement with Martin County and the US Army Corps of Engineers to dredge up to 1,000,000 cubic yards of OCS sand. On July 10, four individuals charged with various crimes during the 2014 Gold Butte cattle impoundment are scheduled to be re-tried in U.S. District Court, Las Vegas, following the declaration of a mistrial on April 24, 2017. The BLM communications team has and will continue to coordinate with DOI communications on public statements or related materials. On July 11, BLM Cultural and Law Enforcement program staff will meet with the GAO to discuss looting and trafficking of Native American artifacts. GAO requested the meeting as part of its current focus on looting and trafficking and to follow-up on its prior review of Federal agency compliance with the Native American Graves Protection and Repatriation Act. On July 11, BSEE Director Scott Angelle is scheduled to speak at the American Petroleum Institute’s Safe Lifting Conference in Houston, TX. The conference will cover lifting operations and standards for platform-based cranes. On July 13, BOEM plans to hold an Intergovernmental Renewable Energy Task Force meeting in San Luis Obispo, CA to discuss the results of the collaborative data and information collection efforts and the potential areas identified for the Call for Information and Nominations (Call). Development of the Call was necessitated by an application for a commercial lease submitted by Trident Wind offshore Morrow Bay, CA in January 2016 and competitive interest indicated by Statoil in its response to the subsequent Request for Information in August 2016. On July 14, BSEE Director Scott Angelle will speak at a meeting of the National Ocean Industries Association’s Legislative Strategy Group in Washington, DC. From July 14 to August 25, BLM-AK plans a temporary shutdown of the Trans-Alaska Pipeline System. Alyeska Pipeline Services Company plans safety and integrity protection system downloads requiring short-term shutdowns for the Trans-Alaska Pipeline System this summer. The BLM Alaska Branch of Pipeline Monitoring will observe the shutdowns. In mid-July, OSMRE’s Western Region plans to publish a Notice of Availability in a local newspaper for the John Henry Mine Mining Plan Modification draft EA and unsigned FONSI, initiating a 30-day public comment period. Pacific Coast Coal Company’s John Henry Mine is a surface mine located in King County, WA. This coal mine has been inactive since 1999. 27 In mid to late July, BLM-CA anticipates the completion of the proposed Hester land exchange. The exchange will result in the BLM’s acquisition of approximately 550 acres of non-Federal lands within the new Sand to Snow National Monument in Riverside County, in exchange for 40 acres of Federal mineral interests located on private property in San Diego County. The exchange finalizes restitution of a trespass settlement that began in 2013. Rep. Duncan Hunter (R-CA-5) has been a strong advocate for the exchange and the BLM is keeping him informed of its progress. On July 17, BOEM plans to publish the Final Notice of Sale and Record of Decision for GOM Lease Sale 249. The sale is scheduled for August 16 and will be the first lease sale under the 2017-2022 OCS Oil & Gas Program as well as the first region-wide sale. During the week of July 17, BSEE Director Scott Angelle will attend individual meetings with members of the AK Congressional delegation to discuss offshore developing in the Arctic OCS region leading in to his trip to AL the following week. On July 18 – 20, Acting ASLM Kate MacGregor will participate in the 15th annual Governor’s Trail Ride hosted by the Idaho Cattle Association and Idaho Governor Butch Otter. The event, which will take place on historic ranchland in the Upper Snake River Valley, is designed to provide an opportunity to explore natural resource issues and will include discussions about improvements to the Federal grazing permit process and sustainable land use. On July 18 – 21, BLM Wild Horse and Burro Program Division Chief Dean Bolstad will participate, together with representatives from Federal and international agencies, academics and non-profit organizations, on a panel at the 8th International Wildlife Fertility Control conference in Washington, D.C., to discuss key needs and challenges regarding fertility control for wild horses and wildlife. The conference will be hosted by the Botstiber Institute for Wildlife Fertility Control, a partnership between The Humane Society of the United States and the Dietrich W. Botstiber Foundation. On July 18 and 25, BLM-Eastern States (ES), in conjunction with the US Forest Service, will hold public meetings in St. Paul, MN, and Virginia, MN, to solicit comments regarding the proposed 20-year withdrawal of 234,328 acres of Federal minerals from national forest system lands on the Superior National Forest within the Rainy River Watershed. Public comments received during project scoping will inform development of an EIS to study the proposed mineral withdrawal. The USFS is the lead agency for developing the EIS, and the BLM is a cooperating agency. BLM Northeastern States District Manager Dean Gettinger will attend. On July 19, BLM plans to hold an auction of Federally-owned crude helium. Under the Helium Stewardship Act of 2013, the BLM must offer for auction and sale annually a portion of the helium reserves stored underground at the Cliffside Gas Field, near Amarillo, TX. The BLM anticipates auctioning 500 MMcf in a total of 30 lots for delivery in FY 2018. Following the auction, the BLM will offer an allocated sale in which helium is offered to refiners, and a nonallocated sale in which the helium is offered to non-refiners. On July 19, OSMRE, the U.S. Fish and Wildlife Service (USFWS), and State regulatory authorities will meet in St. Louis to re-initiate Section 7 consultation under the Endangered Species Act, as a result of the nullification of the Stream Protection Rule and the 2016 Biological 28 Opinion. An internal draft of the Biological Assessment (BA) is under review by an interdisciplinary team and is expected to be completed, including all OSMRE and Solicitor reviews, by July 14, to allow the BA to be submitted to USFWS by the first week of August. On July 22, the BLM-OR/WA Lakeview Resource Area plans to hold an open house to discuss ongoing work with a private, non-profit partner to develop a multi-prong approach to managing the Beatty Butte Herd Management Area. For the first time, an external partner will work with BLM staff to bait trap horses, administer PZP to mares, and gentle horses considered good candidates for adoption. On July 24, BLM-CA’s Arcata Field Office will close its public protest period on a proposed amendment to the Headwaters Forest Reserve Management Plan. The amendment enables the field office to expand forest restoration activities beyond those from the original management plan completed in 2004. The BLM received few comments, which were all positive, during the public comment period on plan amendment development. The BLM and the CA Department of Fish and Wildlife jointly manage the 7,400-acre reserve. On July 28, BOEM will publish a Notice of Availability of the Final Supplemental EIS for the Cape Wind Project. The EIS will supplement the 2009 Final EIS and is being prepared pursuant to a remand order from the D.C. Circuit Court. The ROD will publish on August 11. On July 28, BOEM plans to publish the Notice of Availability of the Draft EIS for the Development and Production Plan for the Hilcorp Liberty Project. The Liberty Project is a 9acre man-made gravel island proposed to be constructed approximately 5.6 miles offshore in the Beaufort Sea that would be capable of facilitating both drilling and processing operations. On July 28, the BLM anticipates publishing proposed revisions to the Waste Prevention Rule in the Federal Register. In late July or early August, OSMRE’s Western Region plans to submit the Dry Fork Mine (WY) Mining Plan decision documents to OSMRE headquarters for review and approval by the ASLM. Western Fuels’ Dry Fork mine is a surface mining complex located in Campbell County, WY that employs 82 people. Estimated production per year is 6 million tons. On August 2, BLM-WO staff will meet with an International Visitor Leadership Program group hosted by the University of Montana at Main Interior. The University has requested that Secretary Zinke greet the group. Timothy Fisher, BLM program management analyst from the National Conservation Landscape Program, will meet with the group to discuss the BLM’s multiple use mission and priority programs. On August 3, BLM-NV’s Las Vegas Field Office will hold the spring land sale under the Southern Nevada Public Land Management Act (SNPLMA) in Las Vegas. The BLM proposes to offer for competitive sale 81.25 acres of public land in 17 parcels. In accordance with SNPLMA, funds generated by the sale will be used for projects such as the development of parks, trails, and natural areas, capital improvements on Federal lands, acquisition of environmentally sensitive land, and Lake Tahoe restoration projects. 29 In early to mid-August, OSMRE’s Western Region plans to submit the Cordero Rojo Mine’s Mining Plan decision documents to Headquarters for review and approval by the ASLM. Cloud Peak Energy’s Cordero Rojo Mine is a surface mine located in Campbell County, WY. The mine employs 383 people and produces approximately 20 million tons of coal per year. In early to mid-August, OSMRE’s Western Region plans to submit the Belle Ayr Mine’s Mining Plan decision documents to OSMRE headquarters for review and approval by the ASLM. Contura Coal West, LLC’s Belle Ayr Coal Mine is a surface coal mine located in Campbell County, WY. The mine employs 259 people and produces approximately 20 million tons of coal per year. On August 10, OSMRE's Western Region anticipates releasing for public comment a draft EIS for Western Energy Company’s Rosebud Coal Mine Area F, located near Colstrip, MT. The proposed permit area for Area F would add 6,746 acres to the 25,576-acre surface coal mine. The mine currently employs 400 people, and produces 12.3 million tons per year. On August 23 - 24, 2017, OSMRE’s Mid-Continent Region (MCR) will hold an All-States Meeting, in Kansas City, MO. The meeting allows the MCR and its 11 states to exchange information on updates to regulations, policies, trends, technology, grants, personnel and budget issues. On August 22, BSEE Director Scott Angelle will speak at the Deepwater Technology Symposium in New Orleans, and then hold various stakeholder meetings in the Gulf region. On September 19, BSEE Director Scott Angelle will speak at the Louisiana Oil and Gas Association’s annual meeting in Lafayette, LA. On September 20, BSEE Director Scott Angelle will speak at the Center for Offshore Safety’s Annual Forum in Houston, TX. Assistant Secretary Policy, Management and Budget OMB Travel. Mike Hagan and Ben Burnett, Interior Branch Examiners, are planning to travel to Montana and North Dakota to review energy programs. The Office of Budget is working on initial details for the trip. FY 2019 Budget Formulation. Bureau FY 2019 Submissions to the Department are due on Friday, July 7, to the Office of Budget. POB will hold meetings with Bureaus and DOI Leadership July 11-13. Border Security Meetings, Santa Ana, TX, July 6, 2017. Interagency Borderlands Coordinator Jon Andrew and new Coordinator Brent Range will attend a planning meeting with National Wildlife Refuge staff and U.S. Customs and Border Protection facilities personnel at the Santa Ana National Wildlife Refuge Headquarters. Pre-planning activities, including 30 proposed geotechnical surveys, will be reviewed. Visits to possible construction sites may also be conducted. Border Coordination Meetings, San Diego, July 11-12, 2017. Interagency Borderlands Coordinator Jon Andrew and new Coordinator Brent Range will attend coordination meetings with Fish and Wildlife Service, Bureau of Land Management and U.S. Border Patrol field personnel in the San Diego area. They will also attend the San Diego Sector Borderlands Management Task Force Meeting on July 11. Border Security Forum, Tucson, AZ, September 2017. A border wide leadership meeting on southwest border security and environmental protection is still expected to take place in September 2017 in Tucson, AZ. Planning for possible new border security infrastructure is expected to be the main focus of the meeting. Senior officials at DOI, CBP, U.S. Border Patrol and USDA Forest Service are expected to attend. A specific date has not been determined at this time. U.S. Coral Reef Task Force Meeting August 7-12, 2017. The Office of Policy Analysis (PPA), the NOAA Coral Reef Conservation Program, and the State of Florida are coordinating the U.S. Coral Reef Task Force (USCRTF) biannual meeting to be held in Ft. Lauderdale, with a public Business Meeting to be held on August 11. The Governor of Florida will host the meeting and will tentatively make remarks at the Business Meeting. The theme of the meeting is “Healthy Reefs for a Healthy Economy” and the focus of discussion will be on the value of coral reefs and local actions taken to address key issues in the Florida reef tract. The meeting will include several progress reports on implementation of the USCRTF Strategy and FY16-20 Framework for Action. GAO Entrance Conferences North American Energy Integration and Security (Job Code 102037) – June 29, 2017, with Office of International Affairs Personnel. Per request by the Chair and Ranking Member of the Subcommittee on the Western Hemisphere, House Committee on Foreign Affairs, GAO will review: (1) actions U.S. agencies have taken in regards to North American energy integration and the extent to which these agencies coordinate their efforts; (2) U.S. government agencies’ communication and interaction with their counterparts in Mexico and Canada in regards to North American energy integration; (3) U.S. agencies’ communication and interaction with industry and civil society regarding North American energy integration; and (4) options stakeholders have identified in infrastructure, border processing, and labor collaboration that the U.S. government could implement to better integrate the North American energy market. GAO Exit Conference/Pending Reports Department of Homeland Security (DHS) Financial Management System Modernization (Job Code 100679) - June 27, 2017, with Interior Business Center (IBC) Personnel. Per response to a congressional mandate included in the Consolidated Appropriations Act, 2016, GAO reviewed: (1) risks of DHS' outsourcing its financial management system modernization 31 efforts to the IBC: (2) IBC ?s capabilities for expanding its services to additional Federal agencies; and (3) services and capabilities of Federal and shared service providers. Recent Draft GAO Re orts Per GAO distribution is hi hl restricted Recent Final GAO Reports Improper Payments: Additional Guidance Could Provide More Consistent Compliance Determinations and Reporting by Inspectors General (GAO-17-484). Pursuant to its authority under 31 U.S.C . 717 to evaluate programs and activities of the US. Government, GAO analyzed improper payments. Pursuant to the Improper Payments Elimination and Recovery Act of 2010 (IPERA), the Inspectors General (IG) of the 24 Chief Financial Of?cers Act of 1990 agencies must assess and report compliance with six IPERA criteria related to improper payments. GAO issued the ?nal report June 13 with OMB coordinate with the Council of the Inspectors General 011 Integrity and Ef?ciency to develop and issue guidance specifying what procedures should be conducted as part of the IPERA compliance determinations: and (2) the Department of Agriculture submit a proposal to Congress as required. in response to thee or more years of noncompliance with IPERA criteria. GAO issued no to the Department and no fruther action is required. Oil, Gas, and Coal Royalties: Raising Federal Rates Could Decrease Production on Federal Lands but Increase Federal Revenue Per response to a Congressional mandate in the Consolidated Appropriations Act of 2016. GAO reviewed studies. interviewed stakeholders about Federal royalty rates, and found that while increasing royalty rates may slightly decrease production on Federal lands, higher royalty rates could increase revenue by millions of dollars annually. GAO issued the final report on June 20 with no recommendations and action required. OIG Exit Conference/Pending Reports Verification Review of Bureau of Indian Affairs (BIA) and U.S. Fish and Wildlife Service (FWS) Safety of Dams: Emergency Preparedness (2017-WR-030). The OIG has tentatively completed its verification review of 13 recommendations presented in the evaluation report, "BIA and FWS Safety of Dams: Emergency Preparedness" (WR-EV-MOA-0002-2013). The OIG’s preliminary conclusion is that all 13 recommendations are resolved and implemented. OIG does not plan to hold an exit conference. Rules and Regulations for Publication in 2017 (Update) AA20: Repeal of Consolidated Federal Oil & Gas and Federal & Indian Coal Valuation Reform final rule. The Office of Natural Resources Revenue (ONRR) published the proposed rulemaking in the Federal Register on April 4, 2017, and the comment period closed May 4, 2017. ONRR is finalizing the regulatory and preamble language for review by management. We received and posted 95 public comments for the proposed rulemaking. Also, we received approximately 2,269 “standard form” public comments. We are reviewing and analyzing the public comments. We plan to publish the Repeal rule by July 21 or September 14, 2017, depending on whether or not OMB chooses to review the rule. Assistant Secretary for Water and Science The afternoon of July 24, Acting AS/WS Scott Cameron and AS/WS Advisor Ryan Nichols will host the quarterly DOI Urban Team meeting. Representatives from NPS, FWS, USGS, and Reclamation have been meeting quarterly for the last three years to share information about respective bureau work in cities to encourage collaboration and, most importantly, leveraging funding and expertise in urban areas, where it is expensive to operate. The Team will be focusing efforts and resources on four cities over the next 2-3 years: Albuquerque, San Antonio, NW Indiana area, and New York City. The morning of July 24, the District Department of Transportation’s Green Infrastructure Director will host W&S, FWS, USGS, The Conservation Fund, American Forests, Bradley Site Design, and EPA at a green infrastructure project site visit featuring restoration and stormwater management components. This tour is part of the Anacostia Urban Waters Federal Partnership, a coalition of 14 federal agencies working collectively with local partners in 19 cities to restore urban waters and the surrounding lands. In August, USGS and W&S will select projects for four Urban Waters Federal Partnership locations. In the 2017 budget omnibus, Congress dedicated $717K of USGS funds for Urban Waters-focused projects. USGS has been working with local city partners to identify high priority, water-related projects to implement. 33 34 Monday, June 26, 2017 I. OSMRE A. B. Touhy request in Farrell Cooper fraud case D. Scheduling meeting re: publication of BiOp C. E. II. Senate Directive on AOC Farrell Cooper briefing paper Johnson Family F. Rulemaking petition memo A. Venting & Flaring Rule Case, 705 notice C. HF Rule Appeal and Rescission BLM B. D. E. F. Twin Metals Juliana (Climate Change) Case BLM Comments on EPA CERCLA 108(b) Proposed Rule Bohmker v. Oregon G. Coal Reports I. Silver Buckle Mines v. United States (maintenance fee typo class action) (CFC) H. J. K. FOIAs concerning SO 3338 Federal-Aid Highway Projects memo BLM’s plans for its O&G program III. BOEM A. Five Year Program & NEPA C. Offshore Wind & Fisheries E. Settlement of 8(g) litigation G. Air Quality B. D. F. IV. BSEE A. Cape Wind Gulf G & G EIS Publication of NTLs Taylor Update B. Pacific well stim litigation D. Inspection fee advice C. E. F. G. ECOP Hilcorps OSRP POOLLC enforcement FOIA for Pacific “white paper” Date: June 23, 2017 To: Jack Haugrud Deputy Solicitor, Energy and Mineral Resources From: Karen Hawbecker Associate Solicitor, Mineral Resources Subject: DMR Friday Updates to Weekly Report Below is a list of new or updated items that did not appear in the weekly report that may require the attention of the front office during the week of June 26-30 or thereafter: Significant Decisions: ● Nothing to report. Litigation: ● (b) (5) Legislation: Correspondence/Agency Actions: Meetings: cc: Richard McNeer/Dennis Daugherty/Tom Bovard A ORNE WORK PRODUCT Date: June 23. 2017 To: Jack Haugmd From: Laura Brown Re: DLR?Upcoming Items for Week of J1me 26 I am 011 AL Monday and Tuesday?Lois is acting. Aaron is 011 AL this week?Greg is acting. Lands Branch ECR Branch cc: A. Moody: L. Wye WEEKLY REPORT TO THE SECRETARY DEPARTNIENT OF THE INTERIOR June 22, 2017 Of?ce of the Solicitor Week Ahead Schedule of Meetings;I Hearings: and Travel Nothing to report. Week Ahead Announcements and Actions SIGNIFICANT DECISIONS: OTHER LITIGATION MATTERS: p?n Assistant Secretary for Fish and Wildlife and Parks Week Ahead Schedule of Meetings, Hearings, and Travel For the week of June 26, Acting Assistant Secretary Virginia Johnson will be in the office all week. On June 27, she will join Jim Cason for a meeting with the Citizens for the Economic Future of Swain County and later with the Executive Committee of the National Association of State Park Directors. Week Ahead Announcements and Actions Nothing additional to report. U.S. Fish and Wildlife Service Week Ahead Schedule of Meetings, Hearings, and Travel On June 26-27, FWS Acting Director Greg Sheehan will represent FWS at the Midwestern Association of Fish and Wildlife Agencies Annual Meeting. Week Ahead Announcements and Actions On June 22 and 23, FWS will meet with the Department of the Navy to discuss the ongoing consultation and draft biological opinion for the Marines' relocation to Guam and its impact on endangered species. The consultation is being conducted as required by Section 7 of the Endangered Species Act. It is being closely monitored by environmental groups in Guam, Hawaii and the mainland for an action that is extremely important for the Pacific area national security focus. FWS is on track to meet its commitment the Navy to be finished with the consultation by July 19. This is potentially controversial to some environmental groups. This is for internal notification purposes only, so no outreach is currently planned. On or around June 22, FWS plans to announce a final determination on the bureau’s March 11, 2016, proposal to identify the Greater Yellowstone Ecosystem (GYE) grizzly bear population of Montana, Idaho and Wyoming as a distinct population segment (DPS) and revise the List of Endangered and Threatened Wildlife by removing grizzly bears within the GYE DPS due to recovery. This action is controversial. Interested stakeholder groups include the Interagency Grizzly Bear Committee (including federal, tribal, state and local government entities), agricultural producers, hunting groups and environmental groups. Comprehensive outreach is planned to include a broadly distributed news release to media, tribal letters and calls, emails to Congress, in-person Congressional calls to select members and a Congressional telebriefing and embargoed media calls. Endangered Species Act Recovery Actions In coming weeks, FWS plans to send to the Federal Register a notice designating two areas in northwest Oregon as nonessential experimental population areas for the reintroduction of Oregon 5 silverspot butterfly. The butterfly is listed as threatened under the ESA. This action is not controversial. Stakeholders include the Oregon Department of Fish and Wildlife, U.S. Forest Service, Oregon State Parks and Recreation, Oregon Zoo, The Nature Conservancy and local tribal partners. Outreach will include notifications to stakeholders, news release to local and regional media and social media and website posts. This action is pending clearance by the Department. In coming weeks, FWS plans to send to the Federal Register draft population assessment reports for the Southern Beaufort Sea and Chukchi-Bering seas populations of polar bear in Alaska and open a 90-day public comment period. This action is not controversial. Interested stakeholder groups are the Alaska Department of Fish and Game and the North Slope Borough. In coming weeks, FWS plans to send to the Federal Register a notice of availability of the revised draft recovery plan for the giant garter snake in California. The cost of certain actions pertaining to habitat acquisition, restoration and management is listed as “To be decided,” reflecting the considerable uncertainty around what the actual cost of those actions will be once completed. Stakeholders include federal and state agencies, conservation organizations, local agricultural communities and local municipalities as it concerns water usage. This action is not expected to be controversial, although the estimated costs of voluntary actions and actions needed for recovery could generate local stakeholder and media attention. Planned outreach includes early notifications to stakeholders, news release to local media and postings to website and social media. This is pending clearance by the Department. FWS plans to release an environmental assessment (EA) for public review later this month. The document evaluates visitor services facilities, infrastructure and habitat improvements on the 57acre Three Sisters Springs unit of the Crystal River NWR, which provides critical winter habitat for the Florida manatee and the most popular site for public manatee viewing in the state. FWS manages the Three Sisters Springs unit by agreement with the City of Crystal River and the Southwest Florida Water Management District. The EA deals primarily with terrestrial features and activities, and incorporates the input of a city and FWS sponsored community working group. Implementation of the EA is contingent on the renegotiation of the FWS’ management agreement. Issues related to the Three Sisters Springs unit tend to be locally controversial. Local outreach is planned to include posting the EA on the refuge’s website, a news release and inperson communications with the Citrus Chronicle editorial board. On June 26, FWS expects to publish a notice announcing consideration of a draft candidate conservation agreement (CCA), draft candidate conservation agreement with assurances (CCAA) and draft environmental assessment for the Texas hornshell (proposed for listing) and other covered species (Rio Grande River cooter, gray redhorse, blue sucker and Pecos springsnail), and an enhancement of survival permit application under the Endangered Species Act submitted by the Center of Excellence. The covered area would include portions of Eddy County, New Mexico, and Culberson County, Texas. The proposed listing of the hornshell may be controversial in Texas and southern New Mexico. Significant outreach has been conducted already; no additional outreach is planned. Endangered Species Act Listing/Delisting Actions 6 Pending clearance, FWS plans to send to the Federal Register a final listing determination for the i’iwi, a Hawaiian bird. This action is not controversial. The only interested stakeholder groups are the petitioners, Center for Biological Diversity and Life Net. FWS is required by settlement agreement to submit the finding for the i’iwi to the Federal Register by September 20. Outreach is planned to Hawaiian media and to national conservation and bird-centric media. In late June, FWS plans to send to the Federal Register 12-month findings on petitions to list the Mohave shoulderband snail found in southern Kern County, California; and the San Felipe gambusia, a Texas fish. These actions are not expected to be controversial. Stakeholders include WildEarth Guardians, the Center for Biological Diversity and Gold Queen Mine for the Mohave shoulderband snail. The primary stakeholder is WildEarth Guardians for the San Felipe gambusia. FWS is required by settlement agreement to submit the finding for the Mohave shoulderband snail to the Federal Register by June 30. Outreach will involve stakeholder notifications, news releases to local media and website posts. National Park Service Week Ahead Schedule of Meetings, Hearings, and Travel Nothing to report. Week Ahead Announcements and Actions From now through September, preparations are underway for a major rehabilitation project at Arlington House, The Robert E. Lee Memorial. There will be periodic, partial closures of the house and site to accommodate the work. The site is expected to close completely in September for the major construction which is expected to last 18 months. On June 25, the National Mall and Memorial Parks (NAMA) will drain the Rainbow Pool and other water features at the World War II Memorial to replace light fixtures as part of the ongoing Energy Savings Performance Contract. Pools will be refilled and operational again on June 30. The work is being scheduled to avoid conflicting with any Honor Flights that will be visiting the memorial. In early July, NAMA will drain the pond in Constitution Gardens for cleaning and maintenance. It is expected to be empty for approximately a week. Work will not commence until after the July 4th holiday. Neither of these projects are related to the recent draining of the Lincoln Memorial Reflecting Pool because of elevated parasite levels. On June 25, Little Bighorn Battlefield National Monument, Crow Agency, Montana, will host an annual anniversary event honoring all who fought in the Battle of Little Bighorn. Tribal leaders from 17 associated nations and the Montana Congressional delegation have been invited to attend. Local media will be present. On June 26, the NPS plans to initiate a 30-day public scoping on a plan to replace Grand Canyon National Park’s trans-canyon pipeline. The trans-canyon pipeline serves the park's South Rim, which supplies water to facilities serving more than 5 million visitors and 2,500 residents 7 annually. The pipeline reached the end of its serviceable life and experiences frequent breaks. The cost to replace the pipeline is estimated at $131.8 million and construction is expected to begin in 2019. The NPS plans to hold public meetings at the park's South Rim and in Flagstaff, Arizona, and will consult with the park's 11 associated tribes. On June 28, at their 126th Continental Congress in Washington DC, the Daughters of the American Revolution will announce that they are planning to raise funds to donate trees to the NPS. The project includes planting and caring for 76 trees within Independence National Historical Park and 250 trees between and in Valley Forge National Historical Park and Bartram’s Garden in Philadelphia. This project is in celebration of the 250th anniversary of the USA, in cooperation with members of the congressionally chartered Semiquincentennial Commission. On June 30, Golden Gate National Recreation Area will host 14 international emerging leaders selected to participate in a U.S. Department of State’s International Visitor Leadership Program about cultural heritage preservation. Countries represented include: Belarus, Cambodia, Egypt, Estonia, Federated States of Micronesia, Lebanon, Montenegro, Panama, People’s Republic of China, Russia, South Africa, Tanzania, Tunisia, and Turkey. 8 Assistant Secretary - Indian Affairs and the Bureaus of Indian Affairs and Indian Education Week Ahead Schedule of Meetings, Hearings, and Travel Indian Affairs leadership and staff continue to lead Tribal listening sessions on E.O. 13781, Reorganization of the Executive Branch; the remaining sessions are: ● June 22, 8:30 am – 12 pm, Bering Sea Conference Room, Frontier Building, 3601 C Street, Anchorage, AK 99503 ● June 27, 8:30 am – 12 pm, Tulsa Convention Center 100 Civic Center Tulsa, OK 74103 On July 19 and July 20, the Self-Governance Advisory Committee quarterly meeting will be held at the Embassy Suites DC Convention Center, 900 10th St NW, Washington, DC 20001. The Acting Assistant Secretary for Indian Affairs is invited to attend on Thursday, July 20, 2017. On July 23, there will be a briefing on the President’s Indian Affairs budget request to Senate Committee on Indian Affairs majority and minority staff at the Dirksen Senate Office Building. On July 24, the Department’s Office of Policy Analysis will hold an Indian Economic Development Data Workshop, preceding the Tribal/Interior Budget Council meeting. On July 25 through July 27, the Tribal/Interior Budget Council (TIBC) meeting will take place at the Twin Arrows Navajo Casino Resort, located at 22181 Resort Boulevard, Flagstaff, AZ 86004. On June 27-28, the Indian Energy Service Center will host a Standard Operation Procedures (SOP) training on the Onshore Federal and Indian Energy and Mineral Lease Management manual in Oklahoma City, OK. The SOP training is open to all Department of the Interior staff. On June 28, there will be a Senate Committee on Indian Affairs roundtable discussion on broadband access in Indian Country. Minority staff seeks a DOI-Indian Affairs representative to discuss the need and challenges of accessing broadband in Indian Country and BIE schools. Week Ahead Announcements and Actions On June 23 or 26, the final rule on waiving Departmental review of appraisals and valuations of Indian property (43 CFR 100) will publish. 9 Assistant Secretary for Land and Minerals Management Week Ahead Schedule of Meetings, Hearings, and Travel Nothing to report. Week Ahead Announcements and Actions During the week of June 26, OSMRE plans to submit the Bull Hill #2 mine plan decision documents to the ASLM for review and approval. Located in Latimer County, OK, the mine is owned by Farrell-Cooper Mining and contains approximately 384,000 tons of recoverable Federal coal, employing 36 people. On June 26, BLM-NM State Director Amy Lueders and Associate State Director Aden Seidlitz will meet in Albuquerque with the Interagency Borderlands Committee, including Brent Range, the Department’s new Interagency Borderlands Coordinator. Other attendees will include representatives from BLM law enforcement, the Solicitor’s Office, USFWS, and NPS. On June 26 - 28, the Western Governors’ Association (WGA) will hold its annual meeting in Whitefish, MT, during which Secretary Zinke and BLM Acting Director Mike Nedd are scheduled to speak. During the WGA meeting, the National Invasive Species Council (NISC) will present a strategic plan that has been integrated with Federal, state and tribal commitments. The NISC membership consists of senior leadership from the Departments of State, Treasury, Agriculture and the Interior, OMB, and EPA, among others. The purpose of the Council is to provide high-level vision and leadership to sustain and expand Federal efforts to prevent, eradicate, and control invasive species. On June 26 - 30, BLM-CA State Director Jerry Perez plans to conduct courtesy visits with members and staff of the CA Congressional delegation in Washington, DC to discuss public land management issues, including oil and gas development, planning efforts, wildfire, renewable energy, and recreation. On June 27, BOEM is scheduled to hold a meeting with the Mashpee Wampanoag Tribe concerning the MA, NY, and RI Wind Energy Areas (WEA). This is part of a series of government-to-government consultation meetings held with area tribes on pertaining to these nearby and adjacent WEA’s. On June 27 – 29, FERC will hold three public scoping meetings in Coos Bay, Roseburg, and Klamath Falls, OR, on its controversial Jordan Cove Liquefied Natural Gas Facility and Pacific Connector Gas Pipeline EIS. As the cooperating agency, the BLM will adopt FERC's EIS. The BLM analyzed the project's conformance with the current RMPs in April and May 2017 and concluded that amendments to the Northwestern, Coastal and Southwestern RMPs will likely be needed for the project to move forward. The project has been criticized by activist groups with regards to the pipeline’s potential greenhouse gas emissions and damage to oyster beds in Coos Bay, as well as potential public safety hazards. 10 On June 28, BLM-CO’s Grand Junction Field Office will release for public comment an amended Environmental Assessment (EA) for the Fram Whitewater oil and gas Master Development Plan. Fram proposes to drill 108 oil and gas wells on 12 new well pads. The amended EA considers specific impacts to air quality and well stimulation. The company estimates the project could produce up to 8.7 million barrels of oil over 20 years. If approved, an estimated 65 new jobs would be created. On June 28, BSEE will hold a workshop with NASA on Probabilistic Risk Assessment (PRA). NASA will introduce its guide to PRA to industry stakeholders and solicit input on its potential application to offshore oil and gas projects. On June 29, the House Natural Resources Subcommittee on Energy and Mineral Resources plans to hold a hearing on access to onshore oil and gas development on public lands. Acting Assistant Secretary for Land and Minerals Kate MacGregor will be the Department’s witness. On June 30, the U.S. Army Corps of Engineers will publish the NOA for the Alaska Standalone Pipeline draft supplemental Environmental Impact Statement (EIS), initiating a 45-day comment period. The proposed 733-mile natural gas pipeline would run from Prudhoe Bay on the Arctic Ocean to Point MacKenzie on Cook Inlet/Knik Arm, and would require a right-of-way to cross 230 miles of public lands. BLM-AK is a cooperating agency on the supplemental EIS and prepared an analysis of subsistence impacts in accordance with Section 810 of the Alaska National Interest Lands Conservation Act. On June 30, BOEM plans to publish a final rule to address the use of OCS sand, gravel, and shell resources for shore protection, beach restoration, and coastal wetlands restoration projects by Federal, state, and local government agencies for construction projects authorized by or funded in whole or part by the Federal Government. The rule will describe the negotiated noncompetitive agreement process and codify new and existing procedures. On June 30, BLM-UT is scheduled to begin a second 15-day public comment period for the Gunnison Valley Seismic Project Environmental Assessment, analyzing Dawson Geophysical’s seismic survey proposal. The proponent seeks to conduct a 3-D geophysical seismic study on approximately 38,700 acres located about 26 miles northwest of Moab, UT. On June 30, BOEM plans to publish the Record of Decision for a project to rehabilitate 4 miles of shoreline damaged by Hurricane Matthew in Martin County, FL. The Bureau will enter into a 3-party agreement with Martin County and the US Army Corps of Engineers (USACE) to dredge up to 1,000,000 cubic yards of OCS sand. In late June, upon recommendation from the BOEM, ASLM is considering a proposal to implement of a 12.5% royalty rate for oil and gas production in shallow water depths only for leases offered in GOM Leas Sale 249. Bids for leasing in shallow waters have been in steady decline, primarily due the high incidents of natural gas in shallow water depths, which compete unfavorably with more onshore gas resource plays. The Bureau will make the announcement using a Note to Stakeholders and affected governors will be notified via correspondence. 11 In late June/early July, depending on the Department’s approval process, BLM plans to issue the Boardman to Hemingway Record of Decision. On February 28, BLM received the Biological Opinion from the National Marine Fisheries Service. BLM-OR land use plan amendments are being handled concurrently and the decision will be issued simultaneously with the ROD for the EIS and approval to issue a right-of-way grant. In late June or early July, pending Departmental approval, BOEM plans to initiate the process of developing a new Five Year Outer Continental Shelf (OCS) Oil and Gas Program with publication of a Request for Information and Comments. As required by section 18 of the OCS Lands Act, notification letters will be sent to all 50 Governors and several Federal agencies. This action will be taken pursuant the April 28, 2017, Executive Order entitled, “Implementing an America-First Offshore Energy Strategy” and Secretary’s Order 3350, issued on May 1, 2017. 12 Assistant Secretary Policy, Management and Budget Week Ahead Schedule of Meetings, Hearings, and Travel ● ● ● ● ● ● Who: DAS-PRE Harry Humbert and Office of Wildland Fire (OWF) Director Bryan Rice What: 41st Annual National Indian Timber Symposium When: June 26-29, 2017 Where: Yakima, Washington Press: Open Topic: DAS-PRE Humbert will give the DOI Wildland Fire Update and Director Rice will speak on two panels providing leadership perspective on wildland fire and viewpoints on how Tribes can effectively engage with other agencies. ● ● ● ● ● ● Who: Office of Natural Resources Revenue (ONRR) State and Indian Coordination What: Montana Agreement Review When: June 26-30, 2017 Where: Helena, Montana Press: Closed Topic: Agreement reviews are conducted to assure the States and Tribes comply with the terms and conditions of the 202/205 Agreements. The main areas reviewed include: agreement costs, safeguarding of records, equipment assessment, compliance review manual standards, and contract performance. ● Who: Office of Environmental Policy and Compliance (OEPC) Portland and spill response professionals from all sectors ● What: Clean Waterways Conference ● When: June 27-28, 2017 ● Where: Louisville, KY ● Press: Open ● Topic: Regional Environmental Officer (REO) Portland will present on the Department’s efforts to prepare for inland oil spills ● Who: Interagency Borderlands Coordinator Jon Andrew and new Coordinator Brent Range ● What: Mini-Border Forum ● When: June 29, 2017 ● Where: Tuscon, Arizona ● Press: Closed ● Topic: A mini-Border Forum will be convened in Tucson, Arizona. In attendance will be DOI land managers, USDA Forest Service personnel, and U.S. Border Patrol from the Yuma and Tucson sectors. Week Ahead Announcements and Actions OMB issues Memorandum to Reduce Federal Agency Reporting Burden. On June 15, 2017, OMB issued Memorandum M-17-26, Reducing Burden for Federal Agencies by Rescinding and 13 Modifying OMB Memoranda. This action, the first of a multi-phased effort, removes administrative burden from agencies by rescinding, modifying, or pausing 59 requirements including grants metric reporting, compliance goals for contractor past performance reporting, Value Engineering reporting, and elimination of the Council on Financial Assistance Reform. In the coming months, OMB will continue examining other reporting requirements and work with Federal agencies and Congress to identify and remove additional layers of burdensome policies and guidance documents. Suspension and Debarment Actions. On June 9, 2017, DOI proposed to debar Margaret Maldonado based on her conviction on the charge of theft by swindle. Maldonado was an employee of the U.S. Fish and Wildlife Service in Bloomington, Minnesota, whose duties involved selling Federal Duck Stamps and senior citizen park passes, and depositing the sales proceeds to the Treasury repository. An audit disclosed that during Fiscal Years 2015 and 2016 several thousand dollars of cash and checks from the sales proceeds were never deposited. Maldonado pled guilty and was convicted in November 2016. On June 9, 2017, DOI debarred Sharon Ann Baldwin, a/k/a Sharon Ann Emerson, based on her conviction on the charge of theft of Government money. Baldwin knowingly and willfully stole and converted for her own use approximately $130,000 belonging to the National Park Service. At the time of the offense, Baldwin was an employee of the National Park Service. From approximately February 2011 through approximately March 2016, Baldwin stole a portion of the park entrance fees for her own use and altered electronic records and documentation to conceal the theft. ONRR Civil Penalties. The Office of Natural Resources Revenue (ONRR) anticipates issuing a civil penalty of about $14,600 to Slawson Exploration (Slawson). ONRR investigated Slawson’s failure to correct volume variances timely for January, 2011 through December, 2012 on one agreement in the State of North Dakota. ONRR issued a Notice of Noncompliance (NONC) to Slawson detailing the volume variances and provided a 20-day cure period to correct. Slawson failed to comply during the cure period. Since Slawson is a small company with no prior violations, OE computed the civil penalty assessment using the standard rates of $5 per day per violation for the first 40 days and $10 per day, per violation thereafter. Year 2017 Small Business Accomplishments to Date. As of June 14, 2017, the Department has awarded 54.71% of its contract award dollars to small businesses. The Department-wide small business goal, which was negotiated with the Small Business Administration (SBA), is 53.5%. The Department awarded 21.42% of its contract award dollars to small disadvantaged businesses and 13.93% of its contract award dollars to women-owned small businesses, exceeding the statutory goal of 5% for each. The Department awarded 3.46% of its contract award dollars to historically underutilized business zone small businesses and 3.52% of its contract award dollars to service-disabled veteran-owned small businesses. The statutory goal is 3% for each of these categories. Royalty Policy Committee. ONRR issued a Federal Register Notice to extend the nomination period for the Royalty Policy Committee (Committee) by an additional 30 days. On April 3, 2017, the Department of the Interior published a notice establishing the Committee and 14 requesting nominations. The last submission date for Committee nominations is now July 3, 2017. 15 Assistant Secretary for Water and Science Week Ahead Schedule of Meetings, Hearings, and Travel On June 27, Acting AS/WS Scott Cameron will present an overview and progress-to-date of the Department’s Invasive Mussels Initiative, and discuss opportunities for collaboration and next steps at the 100th Meridian Initiative Columbia River Basin Team meeting in Helena, Montana. Scott will return to Washington, DC, on June 28. Week Ahead Announcements and Actions In the coming weeks, the Department will release a new USGS report on critical minerals for the United States. This publication presents resource and geologic information for 23 mineral commodities currently viewed as important to our national economy and national security, many of which are sourced entirely outside of the United States. The report provides an in-depth look at each commodity's use, distribution of deposit types, and current status of production, resources, and reserves. The individual commodity chapters serve as an update to the 1973 commodity chapters of USGS Professional Paper 820, United States Mineral Resources. A DOI news release is planned. On June 27, Acting Assistant Secretary for Water and Science Scott Cameron will present at a meeting of state and Federal agencies in Helena, Montana, on efforts undertaken over the last three months in cooperation with the Western Governors’ Association to integrate policy among Federal, state, and tribal partners to improve the prevention, eradication, and containment of aquatic invasive species in the Pacific Northwest. On June 28, W&S will participate in the Greater Baltimore Wilderness Coalition (GBWC) twiceyearly steering committee meetings. GBWC was established under the Baltimore Urban Waters Federal Partnership with the goals of creating accessible, interconnected and healthy green spaces from downtown to the countryside. FWS, The Conservation Fund, and the American Planning Association are founding partners of GBWC. W&S and USGS have been strong participants. 16 30-60 DAY LOOK-AHEAD Office of the Solicitor SIGNIFICANT LITIGATION DEADLINES FOR NEXT THREE WEEKS SEPARATELY REPORTED Assistant Secretary for Fish and Wildlife and Parks On August 18, Olympic National Park will host a special event at Hurricane Ridge celebrating the renaming of the Olympic Wilderness to the Daniel J. Evans Wilderness by a 2016 act of Congress. Evans, a former Washington state governor and U.S. Senator, was the lead sponsor of the Washington Park Wilderness Act of 1988. Evans will speak at the event and various Congress members and/or staff are expected to among the estimated 150 participants. U.S. Fish And Wildlife Service Grants On or around July 7, through the Secretary, FWS plans to announce nearly $15 million in grants to 40 states for projects to support recreational boating through the Boating Infrastructure Grant (BIG) program. More than $9 million of this will go to six states (California, Maine, Michigan, South Carolina, Texas and Washington) for competitive grants, and the remaining $5 million will go to 39 states, commonwealths, territories and the District of Columbia for a smaller, noncompetitive grant program. Funding is generated through the Sport Fish Restoration and Boating Trust Fund by excise taxes on sport fishing and boating equipment and tackle, motorboat fuels and import duties on fishing tackle, yachts and pleasure craft. Grants, which are matched by funding from project partners, support construction or renovation of tie-ups, utilities, fuel stations, pump-out and dump stations, restrooms and additional sanitary amenities such as laundry and showers for recreational boaters. Outreach to be determined by the Department and includes the potential for a Secretarial event possibly in conjunction with the CVA grants announcement (see below). Outreach (news release and social media) can be done with local and national media outlets and special interest media such as boaters, anglers, marina owners and conservation organizations. This is not controversial. On or around July 7, through the Secretary, FWS plans to announce nearly $15.4 million in grants to 20 states for projects to support clean water and recreational boating through the Service’s Clean Vessel Act Grant (CVA) program. The CVA program provides grant funds to the states, the District of Columbia and insular areas for the construction, renovation, operation and maintenance of pumpout stations and waste reception facilities for recreational boaters and also for educational programs that inform boaters of the importance of proper disposal of their sewage. Funding is generated through the Sport Fish Restoration and Boating Trust Fund by excise taxes on sport fishing and boating equipment and tackle, motorboat fuels and import duties on fishing tackle, yachts and pleasure craft. Outreach to be determined by the Department and includes the potential for a Secretarial event possibly in conjunction with the BIG grants announcement (see above). Outreach (news release and social media) can be done with local and 17 national media outlets and special interest media such as boaters, anglers, marina owners and conservation organizations. This is not controversial. By July 15, FWS plans to announce about $1 million in white-nose syndrome grants to states. The grants will help states respond to the deadly white-nose syndrome disease of bats through actions such as looking for the fungus that causes the disease, carrying out decontamination procedures at state caves and mines, and monitoring bat populations. White-nose syndrome is a disease caused by a fungus that has killed millions of valuable insect-eating bats and has been found in 31 states. Recent studies have shown that the agricultural value of insect control by bats is $1.4 billion annually in Texas alone. The FWS leads the national response to the disease. This action is not controversial. A news release and outreach to interested stakeholders is planned – we will coordinate with AFWA and/or state wildlife directors. Pending Departmental clearance, FWS will announce the approval of around $4 million in grants for 31 projects throughout the Americas as part of the Neotropical Migratory Bird Conservation Act grant program. Exact date and award amount are not yet determined. News release and outreach to bird-centric media are planned. This is not controversial. Pending Departmental advisement, FWS will approve a slate of projects for funding under the Competitive State Wildlife Grants program. The projects focus on “species of greatest conservation need” identified in State Wildlife Action Plans. Funds for this program are appropriated annually by Congress. FWS Regional Offices will submit individual grants for DOI approval prior to award. This is not controversial. No outreach is planned. Hot Topics On July 10, Representative Marcy Kaptur (D-Ohio) is hosting a public event in suburban Cleveland to discuss Great Lakes issues. Rep. Kaptur is inviting several experts to sit on the panel and answer audience questions about the Great Lakes ecological issues. FWS Midwest Deputy Regional Director Charlie Wooley will attend and answer questions about Asian carp. Other groups represented will include NOAA, U.S. Army Corps of Engineers and two or three NGOs. Asian Carp The 2016 Water Resources Reform and Development Act Report to Congress on Asian carp is currently being finalized for delivery to the Office of the Assistant Secretary for Fish and Wildlife and Parks for review by June 30. Notable changes from the 2015 report include the slight range expansion of silver carp, the movement of juvenile Asian carps in the sub-basins and additional information on the status of black carp. As in previous years, the 2016 report will be made available to the public on AsianCarp.us. The Water Resources Reform and Development Act of 2014, includes direction from Congress to FWS to lead a multiagency effort to slow the spread of Asian carp in the Upper Mississippi River and Ohio River basins, in coordination with the U.S. Army Corps of Engineers, the National Park Service and the U.S. Geological Survey. Specifically, WRRDA calls for the FWS to develop and deliver a report to Congress summarizing all activities and expenditures (both federal and non-federal) related to Asian carp 18 prevention efforts in the two watersheds, as well as describing any observed changes in the range of Asian carp in Upper Mississippi River and Ohio River basins. The report also outlines research that could improve the ability to control the spread of Asian carp and quantitative measures proposed for use in documenting progress in controlling the spread of Asian carp. This is potentially controversial due to the slight range expansion of silver carp. No public outreach is planned. FWS will conduct outreach to Congress. Endangered Species Act Recovery Actions On July 19-20, FWS will host public scoping meetings in Central Oregon to gather information to prepare a draft environmental impact statement related to the Deschutes Basin Habitat Conservation Plan. The Deschutes Basin Board of Control and the City of Prineville are the permit applicants for the incidental take of three listed species: Oregon spotted frog, bull trout and steelhead. Media expected. Stakeholders include local farmers, irrigators, and recreationists. WaterWatch of Oregon, Center for Biological Diversity, Coalition for the Deschutes, Trout Unlimited and the Deschutes River Conservancy will likely get involved in the NEPA process. This will be regionally controversial. Outreach is planned to alert the public to the meetings. There will be a news release, social media posts and outreach to local and state representatives. Phone calls will be made and emails sent to the partners already listed in the report item. The meetings are just the first step in the scoping process, so there will be follow-up outreach with interested partners after the meetings. After the upcoming release of the Mexican wolf draft recovery plan and during the public comment period that follows, FWS will continue seeking review and comment on the peerreviewed draft revision from local, state and federal agencies, tribes and the public in both the United States and Mexico. Due to the high level of visibility and controversy on Mexican wolf recovery in general, extensive outreach is planned including personal phone calls and public meetings. In addition, FWS will ensure information is readily available on the Mexican wolf recovery website and through social media (Facebook and Twitter). New postings will be done when key dates are occurring. To gain additional comments and feedback, FWS is hosting public meetings in Arizona and New Mexico on the updated Mexican wolf recovery plan between July 18 and July 22. In early August, FWS plans to send to the Federal Register a notice of availability of a draft post-delisting monitoring plan and reopen the public comment period on the proposed rule to delist the black-capped vireo. The post-delisting monitoring plan will be finalized in concert with the decision on the final delisting rule in January 2018. This action may become controversial. Stakeholders include the petitioners, Pacific Legal Foundation, the Office of Travis Co. Judge, Big Bend National Park and others. There have been a number of public comments opposing the delisting of the black-capped vireo, and a number of partner agencies concerned about having the necessary funds to implement the ongoing management needs (cowbird removal) and monitoring identified for their lands, which may also result in concerns about the viability of both the delisting and the post-delisting monitoring plan. Planned outreach will include notifications to local stakeholders, a press release to local media and social media posts. In early August, FWS plans to send to the Federal Register a notice of availability of a draft 19 post-delisting monitoring plan, and reopen the public comment period on the proposed rule to delist the lesser long-nosed bat. The post-delisting monitoring plan will be finalized in concert with the decision on the final delisting rule in January 2018. This action is not controversial. Stakeholders are the Pacific Legal Foundation and the New Mexico Cattle Growers Association. Planned outreach will include notifications to local stakeholders, a press release to local media and social media posts. Endangered Species Act Listing/Delisting Actions In mid-July, FWS plans to send to the Federal Register a notice announcing a six-month extension of the final determination of whether to list the San Fernando Valley spineflower, a plant species from southern California, as a result of substantial scientific disagreement concerning the species. This notice will also reopen the comment period on the proposed rule to list the species for an additional 30 days. The spineflower listing is locally controversial, but filing a six-month extension is not expected to be controversial. Interested stakeholder is Newhall Ranch. Outreach will include stakeholder notifications, press release to local media and posting of notice to field office newsroom. In mid-July, FWS plans to send to the Federal Register a proposal to list the Louisiana pine snake, located in Louisiana and Texas, as a threatened species with a 4(d) rule. This action is controversial. Stakeholders include the U.S. Army, the U.S. Forest Service, State and private landowners and the timber industry. Planned outreach will include notifications to stakeholders and relevant members of Congress, press release to local media and social media posts. In mid-July, FWS plans to send to the Federal Register a notice reopening for public comment the proposed listing of western glacier stonefly and meltwater lednian stonefly, located in Montana and Wyoming, as threatened species. The reopening will allow the public to comment on new range information regarding western glacier stonefly. This action is not expected to be controversial. Interested stakeholders include WildEarth Guardians and the States of Montana and Wyoming. A regional news release is planned. In late July, FWS plans to send to the Federal Register a 12-month finding and proposed delisting determination on the Deseret milkvetch, found in Utah. The Service concluded that the threats (residential development, highway widening, livestock grazing, and small population size) either have not occurred to the extent anticipated, are being adequately managed, or the species is more tolerant of the stressor than originally known. Interested stakeholders include the petitioner, Western Area Power Administration, entities that own lands occupied by the species, Utah Division of Wildlife Resources and Utah Division of Transportation. Planned outreach will include a regional news release, emailing the news release to relevant congressional offices and phone calls to the respective state wildlife directors. This is not expected to garner national attention. In late July, FWS plans to send to the Federal Register a final rule to remove the eastern cougar (historically known to exist in southeastern Ontario, southern Quebec and New Brunswick in Canada and a region bounded from Maine to Michigan, Illinois, Kentucky and South Carolina in the eastern United States) from the list of endangered and threatened species due to extinction. 20 Although we do not anticipate major public controversy with regard to the final rule, opposition to our conclusion of extinction may be expressed by advocates and advocacy organizations for puma and large predator conservation who maintain that eastern cougars still exist. However, the best available information indicates that sightings of cougars in the east are cases of mistaken identity (with bobcats) or escaped captive animals or, rarely, cougars from western populations dispersing eastwards. Interested parties include eastern U.S. states, the Humane Society of the United States, the Animal Legal Defense Fund and the Cougar Network. National news bulletin and Congressional emails are planned. In early August, FWS plans to send to the Federal Register a noticedesignating critical habitat for three plant species on Hawaii Island and correct the maps for existing designations for an additional four species there. We intend to exclude lands owned or managed by the Queen Liliuokalani Trust, the Department of Hawaiian Homelands and other private landowners under Section 4(b)(2) of the Act. This action is not controversial. Interested stakeholders include the State of Hawaii and multiple state agencies, the County of Hawaii and various private landowners. Outreach includes a news release, social media, emails and phone calls to Congressional offices and stakeholders mentioned above. In early August, FWS plans to send to the Federal Register 90-day petition findings for five species: the oblong rocksnail, sicklefin chub, sturgeon chub, tricolored bat and Venus flytrap. As part of this batched finding we are publishing a correction to the 90-day finding for leopards which clarifies the range and the entity we are evaluating in our status review. The findings in this batch are not expected to be controversial, however, the substantial 90-day finding for the tricolored bat might generate attention, given that the primary threat to it is white-nosed syndrome (which is threatening other bat species across North America). Stakeholders for the tricolored bat include the wind, oil and gas industries, federal forest land managers (Department of Defense, Forest Service, National Park Service and the Bureau of Land Management), private forest landowners, States, Canada and Mexico, federal academic researchers (U.S. Geological Survey and universities), the caving community, and local municipalities and homeowners who have bats on their property. Stakeholders for the other species include the Center for Biological Diversity, Cahaba River Keeper, WildEarth Guardians, Defenders of Wildlife, the Humane Society, International Fund for Animal Welfare, the Fund for Animals and several individuals. Outreach will include notifications to stakeholders and petitioners and a low-key national news bulletin to media. National Wildlife Refuge Actions In July, FWS will publish a proposed rule and open a 30-day public comment period on the 2017-18 Refuge-Specific Hunting and Sport Fishing Regulations. The proposed rule would open various national wildlife refuges to hunting and/or sport fishing for the first time (new hunts) and expand hunting and fishing opportunities at others. Outreach is planned to include a national news release when the Federal Register notice is published and notifications to members of Congress in affected districts, with some stakeholder outreach. Migratory Bird Management Actions 21 On or around July 15, FWS plans to send to the Federal Register its annual proposal for administering tribal hunting, fishing and gathering rights under multiple treaties for several federally recognized tribes in the Great Lakes region. The proposal has been compiled in consultation with the Great Lakes Indian Fish and Wildlife Commission, which represents 11 tribes in Minnesota, Wisconsin and Michigan. FWS has informed the Wisconsin, Minnesota and Michigan DNRs of the agency’s support for these proposed regulations. A final decision will not be made until after public comments are reviewed and would not take effect until the fall 2017 hunting season. The proposal is expected to be controversial due to the inclusion of several new techniques for tribal members to take waterfowl, including electronic calls, hand held nets and snares, and use of these nets at night. Hurricane Sandy Recovery On or about July 5, FWS and partners will begin removal of Hunters Pond Dam in Scituate, Massachusetts. The project, partially funded by DOI’s Hurricane Sandy Coastal Resiliency Competitive Grant program administered by the National Fish and Wildlife Foundation, is a high priority for the restoration of river herring and will open up five miles of riverine channel and 200 acres of alewife pond spawning habitat. Partners include Massachusetts Division of Ecological Restoration, National Oceanic and Atmospheric Administration, North and South Rivers Watershed Association, Town of Scituate and the Massachusetts Office of Coastal Zone Management. Local media and stakeholder outreach is planned. On or about July 7, FWS, state and local officials will celebrate the reopening of the White River National Fish Hatchery. The hatchery was severely damaged after Hurricane Irene in 2010 and it took congressional appropriations to repair the damage and reopen the facility. The facility will focus efforts on restoring land-locked Atlantic salmon and lake trout to Lake Champlain and its tributaries in Vermont, New York and Quebec as well as lake trout in Lakes Erie and Ontario. The Vermont congressional delegation has been invited. Local media advisory and news release are planned with a possible pitch to AP, which has covered the story. National Park Service In July, the NPS anticipates the announcement of the $1.75 million in available Maritime Heritage project grant funding. These grants will be used for maritime heritage education and preservation projects related to the maritime heritage of the United States. The National Maritime Heritage Act established the National Maritime Heritage Grants Program within the Department of the Interior. The grants program is administered in partnership with the Maritime Administration. It provides funding for education and preservation projects designed to preserve historic maritime resources and is funded through a percentage of the proceeds from the sale or scrapping of obsolete vessels of the National Defense Reserve Fleet. All grants awarded must be matched on a 1-to-1 basis with non-Federal assets. In July, the NPS anticipates the announcement of the $3,623,162 in available Battlefield Land Acquisition grant funding. Grants will be used to protect 999 acres of Revolutionary and Civil War battlefields in Virginia, Mississippi, New York, West Virginia, and Maryland. The NPS works with private landowners, battlefield friends groups, interested community groups, non- 22 profit organizations, academic institutions, local, state, and tribal governments and Federal agencies for preservation projects and local acquisition of Revolutionary War, War of 1812, and Civil War battlefield land. The NPS is working with the Secretary’s office on an event and the communications plan. In July, the NPS will announce the award of $18 million in centennial challenge projects. Many of the projects accomplish deferred maintenance projects, and all represent public-private partnerships, since each project requires a minimum 50/50 match with non-federal funds. NPS is coordinating with DOI Communications on the public announcement and notification to the recipients. In July, the NPS anticipates the announcement of $15 million in Outdoor Recreation Legacy Partnership grant funding for approximately 25 projects. A total of 51 projects were submitted by states to acquire and develop outdoor recreation spaces. This competitive program supplements the annual Land and Water Conservation Fund apportionment to states by supporting projects for disadvantaged populations in urban areas. NPS is coordinating with DOI Communications on the public announcement and notification to the recipients In July, the NPS will announce the apportionment of $1,635,742 in Native American Graves Protection and Repatriation Act grants to fund repatriation and reburial projects. The grants will assist in consultation, documentation, and repatriation of ancestors and sacred objects, objects of cultural patrimony, and funerary objects back to Indian tribes and Native Hawaiian organizations. Enacted in 1990, NAGPRA requires museums and Federal agencies to inventory and identify Native American human remains and cultural items in their collections, and to consult with Indian tribes, Alaska Native villages, and Native Hawaiian organizations regarding repatriation. Section 10 of the Act authorizes the Secretary of the Interior to award grants to assist in implementing provisions of the Act. The NPS will coordinate with DOI Communications on the public announcement and notification to the recipients In July, the Great Smoky Mountains National Park fire assessment review will be released. In February, a team of fire experts (federal and state) convened at Great Smoky Mountains National Park to conduct an independent review of the 2016 Chimney Tops 2 fire that started in the park on November 23. The purpose of the review is to assess the facts leading up to and during the Chimney Tops 2 fire within the boundaries of the park, as well as make recommendations on any planning, operational, or managerial issues which can be addressed locally, regionally, and/or nationally to reduce the chances of a similar incident in the future. The NPS has received tort claims related to this incident and expects additional lawsuits soon. On July 11, the NPS will meet with representatives of the Sitka Tribe of Alaska to begin negotiations regarding the Tribe’s proposal for compacting certain NPS functions at the park. A pre-negotiation meeting regarding the request was held in late May. The Tribe is seeking to manage maintenance and interpretation & education functions in the park in FY-18. In mid-July, Mojave National Preserve will begin a 60-day public comment period on the Water Resources Plan and draft Environmental Impact Statement (WRP/DEIS). The plan will manage both developed (diverted springs and wildlife guzzlers) and undeveloped water resources in the 23 park. The process is being closely watched by local hunting groups interested in the management of wildlife guzzlers (large basins which catch rainwater and provide a watering source for wildlife and cattle). which are viewed as necessary to maintaining a healthy bighorn sheep population for himting. Assistant Secretary - Indian Affairs and the Bureaus of Indian Affairs and Indian Education 011 July 7. the Senate ornmittee 011 Indian Affairs will hold a ?eld hearing in Santa Fe. New Mexico 011 Native American Art and Crafts authentic crafts and ?'audulent crafts. July 10 is the new deadline for public comments for the Bears Ears National Monument, and the deadline for conmrents on all other monument designations under review. 011 July 12. a Senate Committee on Indian Affairs hearing 011 Federal Recognition bills S. 1285 and S. 1223 is scheduled. July 15 is the deadline for cormnents 011 13.0 1387]. how Interior and the Federal government can be reorganized. 011 July 19. 2017. a Senate Committee 011 Indian Affairs hearing oversight hearing on Indian Gaming is scheduled. 011 July 26. a Senate ormnittee on Indian Affairs oversight hearing 011 ?Human Traf?cking? is scheduled. August 12 is the deadline for proposals from Tribes for the Of?ce of Indian Energy and Economic Development?s FY 2017 Native American Business Development Institute (NABDI) economic development feasibility study grant program. This grant program has. among other successes. enabled the Citizen Potawatomi Nation to build an industrial park and restore a 66-mile rail line that opens an east-west connection to four major north-south rail corridors for regional Items of Note/Expected Legislative, Legall Policy Issues Regulations Ready for 05' Review 0 None at this time. Regulations Pending Departmental Review, Then Ready for Signature 24 Upcoming FA A Committee Notices 0 BIE Negotiated Rulemaking on Accountability (25 CFR 30): The Every Student Succeeds Act (ESSA) requires BIE to use a negotiated rulemaking process to develop regulations for implementation no later than the 2017-2018 academic year and to de?ne the standards, assessments, and accountability system consistent with Section 1111 of the Elementary and Secondary Education Act (ESEA) for the schools frmded by BIE on a national, regional, or tribal basis. - Status: [No Change] BIE is preparing a new notice of intent to establish the committee and solicitation for membership. Assistant Secretary for Land and Minerals Management Dru'ing the month of July, the US. Army will rmdertake a rmmitions cleanup in public access areas at Fort Ord National Monument. Fort Ord is located about ten miles northeast of Monterey and is in the Central California District Of?ce. The cleanup encompasses about 800 acres of BLM-managed lands and Army-managed lands in the northern portion of the monument. The ?rst phase of cleanup is cutting vegetation, which will require road and trail closm?es. Phase two will include prescribed bmning. On July 3, BLM-AK will review and provide cormnents on the Donlin Gold preliminary ?nal EIS for the US. Army Corps of Engineers, the lead agency for the project. Donlin Gold LLC applied for permits for an open pit, hard rock gold mine located approximately 277 miles west of Anchorage, in southwest AK. The project also requires transportation and a pipeline. 011 July 10, four individuals charged with various crimes during the 2014 Gold Butte cattle impoundment are scheduled to be re-tried following the declaration of a mistrial on April 24, 2017. ommrurications Of?ce is coordinating with BLM-WO and the Department of Justice. Dm'ing the week of July 10, OSMRE anticipates publishing a Notice of Availability for the Bridger Mine Mining Plan Modi?cation Draft EA, initiating a 30-day comment period. The Bridger Mine is an rmderground mine located in Sweetwater ormty, WY that employs 540 people. If the modi?cation is approved, production is estimated to be 2.24 million tons per year. During the week of July 10, OSMRE plans to publish a Notice of Availability for the ordero Rojo Mine Mining Plan Modi?cation Draft EA, initiating a 30-day public cornnrent period. Cloud Peak Energy?s ordero Rojo Mine is a surface mine located in Campbell County, WY. The urine employs 383 people and produces approximately 20 million tons of coal per year. On July 11, BSEE Director Scott Angelle is scheduled to speak at the American Petroleum Institute’s Safe Lifting Conference in Houston, TX. The conference will cover lifting operations and standards for platform-based cranes. On July 13, BOEM plans to hold an Intergovernmental Renewable Energy Task Force meeting in San Luis Obispo, CA to discuss the results of the collaborative data and information collection efforts and the potential areas identified for the Call for Information and Nominations (Call). Development of the Call was necessitated by an application for a commercial lease submitted by Trident Wind offshore Morrow Bay, CA in January 2016 and competitive interest indicated by Statoil in its response to the subsequent Request for Information in August 2016. On July 14, BSEE Director Scott Angelle will speak at a meeting of the National Ocean Industries Association (NOIA) Legislative Strategy Group in Washington, DC. In mid-July, OSMRE’s Western Region plans to publish a Notice of Availability for the John Henry Mine Mining Plan Modification draft EA and unsigned FONSI, initiating a 30-day public comment period. Pacific Coast Coal Company’s John Henry Mine is a surface mine located in King County, WA. This coal mine has been inactive since 1999. On July 17, BOEM plans to publish the Final Notice of Sale and Record of Decision for GOM Lease Sale 249. The sale is scheduled for August 16 and will be the first lease sale under the 2017-2022 OCS Oil & Gas Program as well as the first region-wide sale. During the week of July 17, BSEE Director Scott Angelle will attend individual meetings with members of the AK Congressional delegation to discuss offshore developing in the Arctic OCS region leading in to his trip to AL the following week. On July 18 – 20, Acting ASLM Kate MacGregor and Acting BLM Director Mike Nedd will participate in the 15th annual Governor’s Trail Ride hosted by the Idaho Cattle Association and Idaho Governor Butch Otter. The event, which will take place on historic ranchland in the Upper Snake River Valley, is designed to provide an opportunity to explore natural resource issues and will include discussions about improvements to the Federal grazing permit process and sustainable land use. On July 19, BLM plans to hold an auction of Federally-owned crude helium. Under the Helium Stewardship Act of 2013, the BLM must offer for auction and sale annually a portion of the helium reserves stored underground at the Cliffside Gas Field, near Amarillo, TX. The BLM anticipates auctioning 500 MMcf in a total of 30 lots for delivery in FY 2018. Following the auction, the BLM will offer an allocated sale in which helium is offered to refiners, and a nonallocated sale in which the helium is offered to non-refiners. On July 22, the BLM-OR/WA Lakeview Resource Area plans to hold an open house to discuss ongoing work with a private, non-profit partner to develop a multi-prong approach to managing the Beatty Butte Herd Management Area. For the first time, an external partner will work with BLM staff to bait trap horses, administer PZP to mares, and gentle horses considered good candidates for adoption. 26 On July 28, BOEM will publish a Notice of Availability of the Final Supplemental EIS for the Cape Wind Project. The EIS will supplement the 2009 Final EIS and is being prepared pursuant to a remand order from the D.C. Circuit Court. The ROD will publish on August 11. On July 28, BOEM plans to publish the Notice of Availability of the Draft EIS for the Development and Production Plan for the Hilcorp Liberty Project. The Liberty Project is a 9acre man-made gravel island proposed to be constructed approximately 5.6 miles offshore in the Beaufort Sea that would be capable of facilitating both drilling and processing operations. On July 28, the BLM anticipates publishing proposed revisions to the Waste Prevention Rule in the Federal Register. On August 3, BLM-NV Las Vegas Field Office will hold the spring land sale under the Southern Nevada Public Land Management Act (SNPLMA) in Las Vegas. The BLM proposes to offer for competitive sale 81.25 acres of public land in 17 parcels. In accordance with SNPLMA, funds generated by the sale will be used for projects such as the development of parks, trails, and natural areas, capital improvements on Federal lands, acquisition of environmentally sensitive land, and Lake Tahoe restoration projects. Assistant Secretary Policy, Management and Budget GAO’s High Risk List: Management of Federal Oil and Gas Resources. The GAO added the Department’s Management of Federal Oil and Gas Resources to its High Risk List in 2011. GAO’s concerns included: (1) collecting appropriate revenues from companies drilling for oil and gas on Federal lands and waters; (2) challenges with hiring, training, and retaining staff to oversee and manage oil and gas operations; and (3) undertaking a major reorganization of its oversight of offshore oil and gas management and revenue collection functions. To address GAO’s findings highlighted in several reports, the Department implemented 109 of the 120 oil and gas-related recommendations. GAO is currently undergoing review of BLM’s Management of Oil and Gas Lease Suspensions, BLM’s Oil and Gas Inspection and Enforcement Program, BLM’s Oil and Gas Well Liability, and Factors Affecting Oil and Gas Bonus Bids. The Department is considering a meeting with GAO to discuss potential findings in the ongoing reviews and final actions to remove Oil and Gas from the High Risk List. DATA Act Review Entrance Conference. The Department has received notification of a new GAO review that will examine the implementation of the Digital Accountability and Transparency Act. GAO's objectives are to: (1) assess the completeness, timeliness, and accuracy of selected data elements submitted by agencies under the DATA Act for display on USASpending.gov or successor system, and (2) assess OMB and Treasury’s progress toward addressing issues related to implementation of the DATA Act. The entrance conference for the review was conducted on Thursday, June 15, 2017. The focus of the review will be on the 24 CFO agencies and the audit will compare original data source to published data. Agency records must meet records management standards and Systems of Records Notifications must be in place. The review is expected to complete by November 8, 2017. Border Security Meetings, Santa Ana, TX, June 2017. Interagency Borderlands Coordinator 27 Jon Andrew and new Coordinator Brent Range will attend a planning meeting with National Wildlife Refuge staff and U.S. Customs and Border Protection facilities personnel at the Santa Ana National Wildlife Refuge Headquarters. Pre-planning activities, including proposed geotechnical surveys, will be reviewed. Visits to possible construction sites may also be conducted. U.S. Coral Reef Task Force Meeting, August 7-12, 2017. The Office of Policy Analysis (PPA), the NOAA Coral Reef Conservation Program, and the State of Florida are coordinating the U.S. Coral Reef Task Force (USCRTF) biannual meeting to be held in Ft. Lauderdale, with a public Business Meeting to be held on August 11. The Governor of Florida will host the meeting and will tentatively make remarks at the Business Meeting. The theme of the meeting is “Healthy Reefs for a Healthy Economy” and the focus of discussion will be on the value of coral reefs and local actions taken to address key issues in the Florida reef tract. The meeting will include several progress reports on implementation of the USCRTF Strategy and FY16-20 Framework for Action. OMB Travel, August 14-18, 2017. Craig Crutchfield, Interior Branch Chief, will travel to Oregon August 14-18 to visit FWS, NPS, and BLM sites. Details are still being finalized. Olivia Ferriter, DAS-BFPA, will accompany him on the trip. Border Security Forum, Tucson, AZ, September 2017. A border wide leadership meeting on southwest border security and environmental protection is still expected to take place in September 2017 (date TBD) in Tucson, AZ. Planning for possible new border security infrastructure is expected to be the main focus of the meeting. Senior officials at DOI, U.S. Customs and Border Protection (CBP), U.S. Border Patrol and USDA Forest Service are expected to attend. New Government Accountability Office (GAO) Audits Illegal Federal Timber Export (Job Code 102109). Per request from Congressman Peter DeFazio, GAO will review: (1) policies and procedures the U.S. Forest Service (USFS) and the Bureau of Land Management (BLM) have in place to prevent illegal Federal timber export or substitution; (2) extent to which unprocessed Federal timber has been exported or substituted in violation of the law during the past decade, and enforcement actions agencies have taken in response to any detected violations; and (3) additional agency policies or procedures that, if implemented, could reduce the incidence of illegal Federal timber export or substitution. The entrance with BLM staff is not scheduled. Recent Final GAO Reports Wildland Fire Risk Reduction: Multiple Factors Affect Federal-Nonfederal Collaboration, but Action Could Be Taken to Better Measure Progress (GAO-17-357). Per request from Congressman Peter DeFazio, Ranking Member Raul Grijalva of the House Committee on Natural Resources, and Ranking Member Alan Lowenthal of the Subcommittee on Energy and Mineral Resources, House Committee on Natural Resources, GAO reviewed collaboration to reduce wildland fire risk to communities and examined Federal officials' and stakeholders' views 28 on factors impacting collaboration aimed at reducing wildland fire risk to communities and actions that could improve their ability to reduce risk to communities. GAO issued the final report on June 9 and recommends that USFS and the Department work with the Wildland Fire Leadership Council to develop measures to assess progress toward achieving the Cohesive Strategy's goals. The Department's 60-day letter addressing the recommendation is due August 9. Recent Draft OIG Reports U.S. Fish and Wildlife Service Wildlife and Sport Fish Restoration Program Grants Awarded to the State of Mississippi, Department of Marine Resources From July 1, 2014, Through June 30, 2016 (2017-EXT-003). The OIG audited costs claimed under grants awarded by the State of Mississippi, Department of Marine Resources by the U.S. Fish and Wildlife Service (FWS). FWS provided the grants to the State under the Sport Fish Restoration Program (Program). The audit included claims totaling $2,024,635 on 20 grants that were open during the State fiscal years that ended June 30, 2015, and June 30, 2016. The audit also covered the Department’s compliance with applicable laws, regulations, and FWS guidelines, including those related to collecting and using fishing license revenue and reporting program income. The OIG questioned costs totaling $12,651 due to inadequate oversight of its financial reporting process. The OIG issued the draft report June 9 with three recommendations to the FWS. The response is due July 24. Assistant Secretary for Water and Science On July 24, W&S Scott Cameron and Ryan Nichols will host the quarterly DOI Urban Team meeting. Representatives from NPS, FWS, USGS, and Reclamation have been meeting quarterly to share information about respective bureau work in cities, to encourage collaboration and, most importantly, leveraging funding and expertise in urban areas, where it is expensive to operate. The Team will be focusing efforts and resources on four cities over the next 2-3 years: Albuquerque, San Antonio, NW Indiana region, and New York City. In August, USGS and W&S will select projects for four Urban Waters Federal Partnership locations (Albuquerque, San Antonio, NW Indiana Region, and NYC). In the 2017 budget omnibus, Congress dedicated $717K of USGS funds for Urban Waters-focused projects. USGS has been working with local partners to identify high priority, water-related projects to implement. 29 WEEKLY REPORT TO THE SECRETARY DEPARTMENT OF THE INTERIOR June 22, 2017 Of?ce of the Solicitor Week Ahead Schedule of Meetin 5 Con ressional Hearin and Travel Nothing to repo?. Week Ahead Announcements and Actions SIGNIFICANT LITIGATION DEADLINES FOR NEXT TWO WEEKS SEPARATELY REPORTED SIGNIFICANT DECISIONS: 30-60 Dav Look-Ahead Signi?cant Litigation Deadlines reponed separately in 100-day report. WEEKLY REPORT TO THE SECRETARY DEPARTMENT OF THE INTERIOR June 21, 2017 Of?ce of the Solicitor Week Ahead Schedule of Meetin 5 Con ressional Hearin and Travel Nothing to repo?. Week Ahead Announcements and Actions SIGNIFICANT LITIGATION DEADLINES FOR NEXT TWO WEEKS SEPARATELY REPORTED Date: June 16, 2017 To: Jack Haugrud Deputy Solicitor, Energy and Mineral Resources From: Karen Hawbecker Associate Solicitor, Mineral Resources Subject: DMR Friday Updates to Weekly Report Below is a list of new or updated items that did not appear in the weekly report that may require the attention of the front office during the week of June 19-23 or thereafter: Significant Decisions: ● Nothing to report Litigation: (b) (5) for a 90-day extension of the briefing deadlines. (Chris Rhymes? 202-208-4307) Legislation: 0 Nothing to report. Correspondence/Agency Actions: (b) (5) Rulemakings: ● (b) (5) Meetings: ● (b) (5) cc: Richard McNeer/Dennis Daugherty/Tom Bovard 3 TWIN were? May 26, 2017 The Honorable Ryan Zinke Secretary of the Interior Department of the Interior 1849 Street NW. Washington, DC. 20240 The Honorable Sonny Perdue Secretary of Agriculture U.S. Department of Agriculture 1400 Independence Ave, S.W. Washington, DC. 20250 Re: United States Forest Service Application for Withdrawal in the Superior National Forest On January 13, 2017, the United States Forest Service submitted an application to the Secretary of the Interior proposing a 20-year withdrawal of approximately 234,328 acres in the Superior National Forest (the Forest). The proposed withdrawal is illegal and outside the agencies? authority for the following reasons: 1) Congress speci?cally intended to develop the minerals in the Forest and passed special laws pertaining thereto; 2) the Federal Land Policy and Management Act (F LPMA) is inapplicable to leasable minerals, which are the type of minerals located in the Forest; and 3) the agencies are not authorized to modify or alter the boundaries of Congressionally designated withdrawals. The attached memorandum discusses each of these points in more detail. Twin Metals Minnesota respectfully requests that the USFS cancel the proposed withdrawal, or failing that, the Bureau of Land Management deny the Forest Service application. 380 St. Peter St, Suite 705 St. Paul, MN 55102 USA Tel: +165] 842 6800 Fax: +1 651 842 6801 TWIN I further request an opportunity to meet with you and your staff in the very near future to discuss this important issue. Sincerely,? Ian Duckw Chief Operating Of?cer Twin Metals Minnesota 380 St. Peter Suite 705 St. Paul, MN 55102 USA Tel: +1 651 842 6800 Fax: +1 651 842 6801 TWIN was. MEMORANDUM From: Twin Metals Minnesota Date: May 26, 2017 Re: Forest Service A lication for Withdrawal in the Su erior National Forest A. Congress speci?cally intended for minerals in the Superior National Forest to be developed. In 1950, Congress passed a law authorizing mineral development of public domain lands in the Superior National orest.l Congress intended not just to permit mining within the Forest, but to promote it as a ?highly desirable? activity?one that derives important bene?ts for the general public.2 The Wilderness Act of 1964, as well as the Boundary Waters Canoe Wilderness Act of 1978 support this mineral policy, while simultaneously offering increased protections for important wilderness areas in the Forest. These laws represent a signi?cant and time- honored compromise between the preservation of wilderness areas like the Boundary Waters and the protection of important mineral rights. The Forest Service withdrawal application reneges on this compromise and departs from more than 65 years of mineral policy and agency practice, the stability of which mining companies have relied on through the investment of hundreds of millions of dollars in the Forest for mineral exploration and development. The proposed withdrawal also represents a breach on the Congressional promise to the people of Minnesota that mineral development was not to occur within the wilderness area but was to be encouraged outside the wilderness area and its designated buffer zone. Prior to the creation of the Forest, the minerals in question were withdrawn from applicability to the general mining laws of the United States (GML) and not part of the public domain. With the 1950 Act, Congress intentionally overturned the effects of this withdrawal and opened these minerals for exploration and development. Congress, l6 U.S.C. 508(b). 2 S. Rep. No. 81-1778; H. Rep. No. 81-795. 380 St. Peter St, Suite 705 St. Paul, MN 55102 USA Tel; +1 651 842 6800 Fax: +1 65] 842 6801 TWIN mass however, did not place these minerals back under the regulatory framework of the GML. It instead created a special mineral framework for the regulation of these minerals that applies solely and exclusively to the two national forests within the state of Minnesota. The agencies lack authority to circumvent Congress? decision that mineral development be allowed on these public lands by proposing an administrative withdrawal; particularly, when Congress directly acted to overturn the previous withdrawal of these minerals and implemented a special regulatory framework to ensure their development, um?estricted from the types of actions currently proposed. B. The proposed withdrawal is outside of the authority granted to the agencies under the Federal Land Policy and Minerals Act The Forest Service proposal is brought pursuant to the Secretary?s withdrawal authority in FLPMA, 43 U.S.C. 1714. However, the withdrawal authority in FLPMA is applicable to non-locatable minerals, such as those in the Forest; it was intended only for minerals subject to the GML. i. FLPAM ?s withdrawal authority does not extend to leasable minerals Withdrawal was never intended to be used for non-locatable minerals, leasable minerals), where the government retains regulatory control over the ultimate development of the minerals. For leasable minerals within the Forest, the agencies have special regulatory control over how and when mineral development should occur. A prospector is required to ?rst apply for a prospecting permit where the agencies exercise consent authority for the proposed exploration area. The agencies also have speci?c regulatory control through imposition of permit stipulations prior to the pcrmit?s issuance. Once a prospecting permit is granted, the prospector is given exclusivity to explore for minerals in the defined area for a limited time period and must apply for speci?c use permits in order to conduct onsite activities that are beyond casual use. If a valuable mineral deposit is discovered on public domain lands the prospector is entitled to a mineral lease subject to successive renewals; however, the agencies have additional control in negotiating reasonable terms and conditions to the lease. Finally, the leases themselves do not allow actual mining to occur; rather they mandate that the prospector demonstrate legal and environmental compliance prior to the granting of any mining permits. 380 St. Peter St, Suite 705 St. Paul, MN 55102 USA Tel: +1 651 842 6800 Fax: +1 651 842 680] wwawin-melals.com TWIN mesa All of these controls ensure that mineral development in the Forest is conducted in a responsible and environmentally sound manner in harmony with the Forest?s management plans and best practices. This regulatory framework is in stark contrast to that for locatable minerals subject to the GML. For locatable minerals, the GML allows prospectors, without restriction, to locate mineral claims on any open federal lands. Because the government does not have the regulatory control relating to the timing, location, and manner of exploration and development for these mineral claims, the only available means the government has for regulating the development of locatable minerals is through closing the entire area through a withdrawal. This is in contrast to leasable minerals, for which the government retains suf?cient regulatory control. Additionally, the major legal distinction between the regulatory framework for leasable minerals and those for locatable minerals is the granting of fee title mineral rights. For locatable minerals under the GML, the prospector is rewarded with the opportunity to obtain fee title to valuable discoveries. Under the leasing system for public domain lands in the Forest, the prospector is rewarded with a renewable leasehold interest but not fee title, which the government retains at all times. The withdrawal authority under FLPMA applies only to mineral rights that transfer fee title, which is not the case with respect to minerals on either public domain or acquired lands in the Forest. FLPMA de?nes ?withdrawal? as ?withholding an area of Federal lands from settlement, sale, location, or entry, under some or all of the general land laws.? 43 U.S.C. 17026). The combination and sequence of terms has a speci?c meaning, and the United States Supreme Court as well as the BLM have held that ?settlement, location, sale, or entry? does not include mineral leasing. See, Udall v. Tallman, 380 U.S. l, 5, 19 (1965). Because title to land is not transferred to the lessee under mineral leasing schemes, mineral leasing does not fall within de?nition of withdrawal or authority. The preamble to the BLM withdrawal regulations reinforces that FLPMA excludes mineral leasing from withdrawal provisions. In the preamble, BLM noted that a few commenters on the proposed rule ?were concerned about the emphasis placed on withdrawing lands from the general mining laws.? Federal Land Withdrawals; Amendment to Withdrawal Procedures, 46 Fed. Reg. 5794, 5795 (Jan. 19, 1981). BLM made no changes based on these comments, explaining: Withdrawal from the general mining laws is speci?cally mentioned in the rulemaking because withdrawal is the only method the Secretary of the Interior has to close Federal lands, on a long-term basis, to location and 380 St. Peter St, Suite 705 St. Paul, MN 55102 USA Tel: +1 651 842 6800 Fax: +1 651 842 6801 wwawin-metals.com TWIN has? disposal under the general mining laws. This is true because the 1872 Mining Law is a nondiscretionary land law which grants anyone the right to enter those public lands not closed to its operation for the purpose of exploring for and extracting hard rock minerals. The Mineral Leasing Act of 1920, as amended, on the other hand, gives the Secretary the discretion to preclude leasing of the minerals on the public lands that are covered by that Act, so the Secretary can, when necessary, prevent mining activity involving these minerals. Id. statement is a clear indication that LPMA withdrawals do not extend to leasable minerals. As a result, the Forest Service withdrawal application is a violation of agency policy and law. ii. Section 5 08(2)) supersedes FLPAM and any general mining or leasing laws Most minerals in the Forest are on public domain lands that are authorized under 16 U.S.C. 508(b). A close read of section 508(b) makes clear that the minerals in the Forest cannot be subject to any withdrawal. Section 508(b) provides, in relevant part: Where, through withdrawal or reservation or by statutory limitation or otherwise, all or any part of the mineral resources in public?domain lands . . . situated within the exterior boundaries of the national forests in Minnesota, are not subject to development or utilization under the mining laws of the United States or the mineral leasing laws, and for the development and utilization of which no other statutory authority exists, the Secretary of the Interior is authorized, under general regulations to be prescribed by him and upon such terms and for speci?ed periods or otherwise as he may deem to be for the best interests of the United States, to permit the prospecting for and the development and utilization of such mineral resources. Thus, Congress has speci?cally authorized the Secretary of the Interior to allow the development of these minerals even a?er they have been withdrawn. This law is both retrospective and prospective, and it negates the effects of any prior or future withdrawal on these minerals. Therefore, any withdrawal the agencies may choose to implement would not have any legal effect; the Secretary of the Interior would still have authority to develop these minerals within the Forest. 380 St. Peter St, Suite 705 St. Paul, MN 55102 USA Tel: +1 651 842 6800 Fax: +1 651 842 6801 TWIN was? does not authorize the agencies to expand buffer zones or to modify the boundaries of previous Congressional withdrawals. When Congress passed the 1978 Boundary Water Canoe Area Wilderness (BWCAW) Act,3 it created a 220,000-acre buffer zone of Forest lands outside the designated wilderness area. The purpose of this buffer zone is ?to protect existing natural values and high standards of environmental quality from the adverse impacts of mineral development.? Both the BWCAW and its buffer zone speci?cally exclude mining activities and represent a Congressional withdrawal of mineral lands within the Forest. The USFS is now proposing to withdraw an additional 234,328 acres of Forest lands for the same purpose. LPMA expressly prohibits the agencies from this activity. FLPMA provides that BLM ?shall not make, modi?, or revoke any withdrawal created by Act of Congress.? 43 U.S.C. 17140) (emphasis added). The BWCAW and the Mine Protection Area are both withdrawals ?created by Act of Congress.? The proposed agency withdrawal seeks to nearly double the Mine Protection Area administratively, without an act of Congress. FLPMA expressly prohibits such a modi?cation to a Congressional mandate. C. TMM has Valid Existing Mineral Rights that must be recognized and protected The USP and BLM have previously consented to mineral exploration and development in the Forest. This consent is based in sound NEPA review and is the express will and outcome of Congress. TMM has invested in and conducted exploration with reasonable diligence on its existing prospecting permits. TMM has also at the written direction and request of the BLM and USPS, ?led prospecting permit applications relating to its project needs. The agencies? delay or failure in processng these applications and renewals in a timely basis is inexcusable and any attempt by the agencies to withhold such permits or applications because of this proposed withdrawal would be inconsistent with basic principles of law and fairness. TMM asserts that it has valid existing rights in all federal prospecting permit applications, prospecting permits, preference right lease applications and leases applied for or issued prior to the issuance of the withdrawal notice that are not subject to this withdrawal. 3 BWCAW Act, Pub. L. No. 95-495 11, 92 Stat. 1649, 1655 (1978). 380 St. Peter Suite 705 St. Paul, MN 55102 USA Tel: +1 651 842 6800 Fax: +1 651 84? 6801 wwawin-meials.com Ian Duclmrorth Chief Operating Of?cer Twin Metals Minnesota 380 St. Peter St, Suite 705 St. Paul. MN 55102 Dear Mr. Duclm/orth. Sincerely, cc: United States Department of Agriculture TWIN were? May 26, 2017 The Honorable Ryan Zinke Secretary of the Interior Department of the Interior 1849 Street NW. Washington, DC. 20240 The Honorable Sonny Perdue Secretary of Agriculture U.S. Department of Agriculture 1400 Independence Ave, S.W. Washington, DC. 20250 Re: United States Forest Service Application for Withdrawal in the Superior National Forest On January 13, 2017, the United States Forest Service submitted an application to the Secretary of the Interior proposing a 20-year withdrawal of approximately 234,328 acres in the Superior National Forest (the Forest). The proposed withdrawal is illegal and outside the agencies? authority for the following reasons: 1) Congress speci?cally intended to develop the minerals in the Forest and passed special laws pertaining thereto; 2) the Federal Land Policy and Management Act (F LPMA) is inapplicable to leasable minerals, which are the type of minerals located in the Forest; and 3) the agencies are not authorized to modify or alter the boundaries of Congressionally designated withdrawals. The attached memorandum discusses each of these points in more detail. Twin Metals Minnesota respectfully requests that the USFS cancel the proposed withdrawal, or failing that, the Bureau of Land Management deny the Forest Service application. 380 St. Peter St, Suite 705 St. Paul, MN 55102 USA Tel: +165] 842 6800 Fax: +1 651 842 6801 TWIN I further request an opportunity to meet with you and your staff in the very near future to discuss this important issue. Sincerely,? Ian Duckw Chief Operating Of?cer Twin Metals Minnesota 380 St. Peter Suite 705 St. Paul, MN 55102 USA Tel: +1 651 842 6800 Fax: +1 651 842 6801 TWIN was. MEMORANDUM From: Twin Metals Minnesota Date: May 26, 2017 Re: Forest Service A lication for Withdrawal in the Su erior National Forest A. Congress speci?cally intended for minerals in the Superior National Forest to be developed. In 1950, Congress passed a law authorizing mineral development of public domain lands in the Superior National orest.l Congress intended not just to permit mining within the Forest, but to promote it as a ?highly desirable? activity?one that derives important bene?ts for the general public.2 The Wilderness Act of 1964, as well as the Boundary Waters Canoe Wilderness Act of 1978 support this mineral policy, while simultaneously offering increased protections for important wilderness areas in the Forest. These laws represent a signi?cant and time- honored compromise between the preservation of wilderness areas like the Boundary Waters and the protection of important mineral rights. The Forest Service withdrawal application reneges on this compromise and departs from more than 65 years of mineral policy and agency practice, the stability of which mining companies have relied on through the investment of hundreds of millions of dollars in the Forest for mineral exploration and development. The proposed withdrawal also represents a breach on the Congressional promise to the people of Minnesota that mineral development was not to occur within the wilderness area but was to be encouraged outside the wilderness area and its designated buffer zone. Prior to the creation of the Forest, the minerals in question were withdrawn from applicability to the general mining laws of the United States (GML) and not part of the public domain. With the 1950 Act, Congress intentionally overturned the effects of this withdrawal and opened these minerals for exploration and development. Congress, l6 U.S.C. 508(b). 2 S. Rep. No. 81-1778; H. Rep. No. 81-795. 380 St. Peter St, Suite 705 St. Paul, MN 55102 USA Tel; +1 651 842 6800 Fax: +1 65] 842 6801 TWIN mass however, did not place these minerals back under the regulatory framework of the GML. It instead created a special mineral framework for the regulation of these minerals that applies solely and exclusively to the two national forests within the state of Minnesota. The agencies lack authority to circumvent Congress? decision that mineral development be allowed on these public lands by proposing an administrative withdrawal; particularly, when Congress directly acted to overturn the previous withdrawal of these minerals and implemented a special regulatory framework to ensure their development, um?estricted from the types of actions currently proposed. B. The proposed withdrawal is outside of the authority granted to the agencies under the Federal Land Policy and Minerals Act The Forest Service proposal is brought pursuant to the Secretary?s withdrawal authority in FLPMA, 43 U.S.C. 1714. However, the withdrawal authority in FLPMA is applicable to non-locatable minerals, such as those in the Forest; it was intended only for minerals subject to the GML. i. FLPAM ?s withdrawal authority does not extend to leasable minerals Withdrawal was never intended to be used for non-locatable minerals, leasable minerals), where the government retains regulatory control over the ultimate development of the minerals. For leasable minerals within the Forest, the agencies have special regulatory control over how and when mineral development should occur. A prospector is required to ?rst apply for a prospecting permit where the agencies exercise consent authority for the proposed exploration area. The agencies also have speci?c regulatory control through imposition of permit stipulations prior to the pcrmit?s issuance. Once a prospecting permit is granted, the prospector is given exclusivity to explore for minerals in the defined area for a limited time period and must apply for speci?c use permits in order to conduct onsite activities that are beyond casual use. If a valuable mineral deposit is discovered on public domain lands the prospector is entitled to a mineral lease subject to successive renewals; however, the agencies have additional control in negotiating reasonable terms and conditions to the lease. Finally, the leases themselves do not allow actual mining to occur; rather they mandate that the prospector demonstrate legal and environmental compliance prior to the granting of any mining permits. 380 St. Peter St, Suite 705 St. Paul, MN 55102 USA Tel: +1 651 842 6800 Fax: +1 651 842 680] wwawin-melals.com TWIN mesa All of these controls ensure that mineral development in the Forest is conducted in a responsible and environmentally sound manner in harmony with the Forest?s management plans and best practices. This regulatory framework is in stark contrast to that for locatable minerals subject to the GML. For locatable minerals, the GML allows prospectors, without restriction, to locate mineral claims on any open federal lands. Because the government does not have the regulatory control relating to the timing, location, and manner of exploration and development for these mineral claims, the only available means the government has for regulating the development of locatable minerals is through closing the entire area through a withdrawal. This is in contrast to leasable minerals, for which the government retains suf?cient regulatory control. Additionally, the major legal distinction between the regulatory framework for leasable minerals and those for locatable minerals is the granting of fee title mineral rights. For locatable minerals under the GML, the prospector is rewarded with the opportunity to obtain fee title to valuable discoveries. Under the leasing system for public domain lands in the Forest, the prospector is rewarded with a renewable leasehold interest but not fee title, which the government retains at all times. The withdrawal authority under FLPMA applies only to mineral rights that transfer fee title, which is not the case with respect to minerals on either public domain or acquired lands in the Forest. FLPMA de?nes ?withdrawal? as ?withholding an area of Federal lands from settlement, sale, location, or entry, under some or all of the general land laws.? 43 U.S.C. 17026). The combination and sequence of terms has a speci?c meaning, and the United States Supreme Court as well as the BLM have held that ?settlement, location, sale, or entry? does not include mineral leasing. See, Udall v. Tallman, 380 U.S. l, 5, 19 (1965). Because title to land is not transferred to the lessee under mineral leasing schemes, mineral leasing does not fall within de?nition of withdrawal or authority. The preamble to the BLM withdrawal regulations reinforces that FLPMA excludes mineral leasing from withdrawal provisions. In the preamble, BLM noted that a few commenters on the proposed rule ?were concerned about the emphasis placed on withdrawing lands from the general mining laws.? Federal Land Withdrawals; Amendment to Withdrawal Procedures, 46 Fed. Reg. 5794, 5795 (Jan. 19, 1981). BLM made no changes based on these comments, explaining: Withdrawal from the general mining laws is speci?cally mentioned in the rulemaking because withdrawal is the only method the Secretary of the Interior has to close Federal lands, on a long-term basis, to location and 380 St. Peter St, Suite 705 St. Paul, MN 55102 USA Tel: +1 651 842 6800 Fax: +1 651 842 6801 wwawin-metals.com TWIN has? disposal under the general mining laws. This is true because the 1872 Mining Law is a nondiscretionary land law which grants anyone the right to enter those public lands not closed to its operation for the purpose of exploring for and extracting hard rock minerals. The Mineral Leasing Act of 1920, as amended, on the other hand, gives the Secretary the discretion to preclude leasing of the minerals on the public lands that are covered by that Act, so the Secretary can, when necessary, prevent mining activity involving these minerals. Id. statement is a clear indication that LPMA withdrawals do not extend to leasable minerals. As a result, the Forest Service withdrawal application is a violation of agency policy and law. ii. Section 5 08(2)) supersedes FLPAM and any general mining or leasing laws Most minerals in the Forest are on public domain lands that are authorized under 16 U.S.C. 508(b). A close read of section 508(b) makes clear that the minerals in the Forest cannot be subject to any withdrawal. Section 508(b) provides, in relevant part: Where, through withdrawal or reservation or by statutory limitation or otherwise, all or any part of the mineral resources in public?domain lands . . . situated within the exterior boundaries of the national forests in Minnesota, are not subject to development or utilization under the mining laws of the United States or the mineral leasing laws, and for the development and utilization of which no other statutory authority exists, the Secretary of the Interior is authorized, under general regulations to be prescribed by him and upon such terms and for speci?ed periods or otherwise as he may deem to be for the best interests of the United States, to permit the prospecting for and the development and utilization of such mineral resources. Thus, Congress has speci?cally authorized the Secretary of the Interior to allow the development of these minerals even a?er they have been withdrawn. This law is both retrospective and prospective, and it negates the effects of any prior or future withdrawal on these minerals. Therefore, any withdrawal the agencies may choose to implement would not have any legal effect; the Secretary of the Interior would still have authority to develop these minerals within the Forest. 380 St. Peter St, Suite 705 St. Paul, MN 55102 USA Tel: +1 651 842 6800 Fax: +1 651 842 6801 TWIN was? does not authorize the agencies to expand buffer zones or to modify the boundaries of previous Congressional withdrawals. When Congress passed the 1978 Boundary Water Canoe Area Wilderness (BWCAW) Act,3 it created a 220,000-acre buffer zone of Forest lands outside the designated wilderness area. The purpose of this buffer zone is ?to protect existing natural values and high standards of environmental quality from the adverse impacts of mineral development.? Both the BWCAW and its buffer zone speci?cally exclude mining activities and represent a Congressional withdrawal of mineral lands within the Forest. The USFS is now proposing to withdraw an additional 234,328 acres of Forest lands for the same purpose. LPMA expressly prohibits the agencies from this activity. FLPMA provides that BLM ?shall not make, modi?, or revoke any withdrawal created by Act of Congress.? 43 U.S.C. 17140) (emphasis added). The BWCAW and the Mine Protection Area are both withdrawals ?created by Act of Congress.? The proposed agency withdrawal seeks to nearly double the Mine Protection Area administratively, without an act of Congress. FLPMA expressly prohibits such a modi?cation to a Congressional mandate. C. TMM has Valid Existing Mineral Rights that must be recognized and protected The USP and BLM have previously consented to mineral exploration and development in the Forest. This consent is based in sound NEPA review and is the express will and outcome of Congress. TMM has invested in and conducted exploration with reasonable diligence on its existing prospecting permits. TMM has also at the written direction and request of the BLM and USPS, ?led prospecting permit applications relating to its project needs. The agencies? delay or failure in processng these applications and renewals in a timely basis is inexcusable and any attempt by the agencies to withhold such permits or applications because of this proposed withdrawal would be inconsistent with basic principles of law and fairness. TMM asserts that it has valid existing rights in all federal prospecting permit applications, prospecting permits, preference right lease applications and leases applied for or issued prior to the issuance of the withdrawal notice that are not subject to this withdrawal. 3 BWCAW Act, Pub. L. No. 95-495 11, 92 Stat. 1649, 1655 (1978). 380 St. Peter Suite 705 St. Paul, MN 55102 USA Tel: +1 651 842 6800 Fax: +1 651 84? 6801 wwawin-meials.com Ian Duclmrorth Chief Operating Of?cer Twin Metals Minnesota 380 St. Peter St, Suite 705 St. Paul. MN 55102 Dear Mr. Duclm/orth. Sincerely, cc: United States Department of Agriculture Attorney-Client Privileged/Attorney Work Product INFORMATION MEMORANDUM FOR THE SECRETARY DATE: June 9, 2017 FROM: Office of the Solicitor, Divisions of Mineral and Land Resources SUBJECT: Options for Reversal of BLM’s Rejection of Twin Metals Minnesota’s Lease Renewal Application and Solicitor’s M-Opinion 37036 (b) (5) 1 United States Department of the Interior OFFICE or THE SOLICITOR 1849 STREET N.W. WASHINGTON, DC 20240 M-37036 MAR 8 2016 Memorandum To: Director, Bureau of Land Management From: Solicitor Subject: Twin Metals Minnesota Application to Renew Preference Right Leases (MNES- 01352 and MNES-01353) The Bureau of Land Management (BLM) has asked whether it has the discretion to grant or deny Twin Metals Minnesota?s pending application for renewal of two hardrock preference right leases in northern Minnesota.1 I conclude that Twin Metals Minnesota does not have a non- discretionary right to renewal, but rather the BLM has discretion to grant or deny the pending renewal application. Background On October 21, 2012, Twin Metals Minnesota (TMM) submitted an application to renew two preference right leases and MN ES-01353) for lands that are located near the southern boundary of the Boundary Waters Canoe Area Wilderness in northern Minnesota.2 The two leases at issue are located on acquired Weeks Act lands, as well as National Forest System lands reserved from the public domain and managed by the United States Forest Service. The Secretary?s authority, delegated to the BLM, for mineral disposition on the acquired lands is in section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099-1100, and 16 U.S.C. 520, which governs mineral disposition on Weeks Act lands. The Secretary?s authority, delegated to the BLM, for mineral disposition on reserved National Forest System lands in Minnesota is in 16 U.S.C. 508b. The BLM originally awarded the leases on June 1, 1966, for a primary term of twenty years, with the possibility of three ten-year renewals.3 On May 14, 1986, the lessee timely applied for a renewal.4 After receiving legal advice from the Of?ce of the Solicitor that the lease terms allowed for a renewal, the BLM granted a renewal of the leases on July 1, 1989, for a period of This memorandum does not address issues related to National Environmental Policy Act compliance or any other legal issues surrounding these leases. 2 The Chippewa in Minnesota have hunting, ?shing, and other usufructuary rights in the northeast portion of the state of Minnesota under the 1854 Treaty of LaPointe. Treaty with the Chippewa, 10 Stat. 109 (1854). 3 See 1966 leases 5. 4 The regulations at 43 C.F.R. 3522.1-1 (1985) state that renewal applications ?must be ?led in the appropriate land of?ce within 90 days prior to the expiration of the lease term.? The lessee ?led an application for extension of the term of the leases on May 14, 1986?30 days before the end of the primary twenty-year term on June 14, 1986, which was ?within 90 days? of the lease expiration. Consequently, the renewal application was timely ?led. ten years.5 TMM timely applied for a second renewal on March 15, 1999. The BLM renewed the leases on January 1, 2004.6 The 2004 leases state that they are for a period of ten years, ?with preferential right in the lessee to renew for successive periods of 10 years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.? On October 21, 2012, TM timely applied to renew the leases once more.7 TMM has been conducting exploration activities on the leaseholds based on the 2004 leases while the BLM considers 2012 renewal application. Under the original 1966 lease terms, as discussed more fully below, the lessee was required to commence production within the twenty-year primary term to qualify for three renewals of right. The leases provided that if there was no production at the end of the primary term, the leases would end unless the Secretary granted a lease renewal to extend the time to commence production.8 Although there has been no production, the operator held the leases under production waivers for ?ve years and then through payment of minimum royalties in lieu of production payments for the rest of the time, consistent with the provisions of the 1966 leases that were incorporated by reference in the 2004 leases. Those provisions stated that, beginning after the tenth year of the primary term, the lessee is required to mine a quantity of minerals such that the royalties would be equal to $5 per annum per acre for the primary term and $10 per annum per acre during each renewal or, in lieu of that production, pay royalties equal to the minimum royalty. See 1966 leases 2(c) (incorporated into section 14 of the 2004 leases). Section 2(0) of the 1966 leases allowed the lessor to waive, reduce, or suspend the minimum royalty payment for reasonable periods of time in the interest of conservation or when such action does not adversely affect the interest of the United States in accordance with 43 CPR. 3222.6-2. Id. According to the records, the BLM relied on section 2(c) of the 1966 leases to grant individual waivers of production and minimum royalties for each of the ?rst ?ve lease years after the tenth year of the leases, beginning on June 1, 1976, and ending May 31, 1981, while the State of Minnesota was conducting environmental studies on the proposed mining operations, 5 The three-year time period between the date on which the lessee ?led for the ?rst ten-year lease renewal and the date on which the lease renewal was approved appears to have been due to consideration of the lessee?s minimum royalty waiver request, coordination efforts between the United State Forest Service and the BLM regarding the Forest Service approval for the renewals, and the consideration regarding the terms of the lease renewal. 6 The lessee?s application for a second renewal on March 15, 1999 was 109 days before the end of the ?rst lease renewal on July 1, 1999. The regulations in force in 1999 state that application for lease renewal shall be ?led at least 90 days prior to the expiration of the lease term.? 43 C.F.R. 3528.1 (1998). Consequently, the 1999 renewal application was timely ?led. The time period between the lessee?s ?ling of the second renewal application in March 1999 and the approval of the lease renewal in January 2004 appears to have been due to coordination efforts between the United States Forest Service and the BLM, as well as the internal review rocess. The 2012 renewal application was submitted 438 days before the end of the second renewal on January 1, 2014. The timing requirements for ?ling a renewal application in the current regulations are the same as those in the regulations that were in force in 1999. Id. 3511.27 (2015). Consequently, the 2012 application was timely ?led. 8 Section 5 of the 1966 leases contains de?nite conditions for allowing such an extension, in the interest of conservation or upon a satisfactory showing by the lessee that the lease cannot be successfully operated at a pro?t or for other reasons. which prevented INCO Alloys International, Inc. predecessor in interest at the time of waiver decision), from developing the leases.9 The BLM records show that IN CO ?led another production and minimum royalty waiver request on June 26, 1985, for the period of July 1, 1981, to June 30, 1986. In response, the BLM issued a decision on January 28, 1987, ?nding that Minnesota had completed its environmental studies in 1979 and that INCO had not ?led any mining applications or royalty waiver applications since 1981. The decision stated that ?there is no evidence that INCO International is diligently working towards the development of these leases.? Based on the conclusion that INCO had not met the obligations of the leases, the agency denied the production and royalty waiver request. The decision also noti?ed the lessee that all delinquent payments were due before the BLM could process the ?rst lease renewals at that time.10 Although the records show that INCO failed to timely pay the annual rentals and minimum royalties in lieu of production for the lease years from June 1, 1981, to May 31, 1985 (a four-year period), once INCO received notice from the BLM about the delinquency, INCO paid the fees for all four years. Consequently, the royalty payment records of the Of?ce of Natural Resources Revenue (ONRR) show that TMM and its predecessors paid the minimum royalties in lieu of production for each of the delinquent years?1981 to 1985. The ONRR records also show that TMM paid the minimum royalty in lieu of production payments from 1986 to the present. In preparing to respond to the 1985 royalty waiver request, the BLM sought legal advice from the Solicitor?s Of?ce, which led to a 1986 legal memorandum regarding the use of one of the three renewals identi?ed in section 5 of the 1966 leases to extend the time to commence production. This 1986 Associate Solicitor?s Opinion is discussed below in this memorandum.ll As to the rental payments, the regulations in effect before 1986 provided that the ?rental paid for any year shall be credited against any royalties for that year.? 43 C.F.R. (1985). Beginning in 1999, the regulations have provided that the Minerals Management Service (now ONRR) ?will credit your lease rental for any year against the ?rst production royalties or minimum royalties . . . as the royalties accrue under the lease during that year.? Id. 3504.16(e) (2014). The ONRR records show that TMM has paid the rentals and those payments have been recouped for payment of a portion of the minimum royalty payments. Relevant Lease Provisions Three provisions in the 2004 leases are pertinent to whether TMM has a non-discretionary right to renewal: Part I. Lease Rights Granted: This Lease Renewal entered into by and between the United States of America, through the Bureau of Land Management, hereinafter called lessor, and American Copper 9 These annual waivers, beginning in June 1976 and ending in May 1981, served to waive the production and minimum royalty requirements of the leases for that time period. The noti?cation letters that BLM sent to the lessee for each of these waivers state that a waiver of production and minimum royalty requirements is granted and do not state that the lease term is being extended for the period of the suspension. 10 As noted above, the lessee applied for its ?rst lease renewal in May 1986. Under the 1966 lease terms, the twenty-year primary term was due to expire in June 1986. See infra p. 12. Nickel Company, 922 19?h Street, Golden, Colorado, 80401, hereina?er called lessee, is effective Jan-1 2004, for a period of 10 years, Sodium, Sulphur, Hardrock with preferential right in the lessee to renew for successive periods of 10 years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period. Part 1, Section 2: Lessor, in consideration of any bonuses, rents, and royalties to be paid, and the conditions and covenants to be observed as herein set forth, hereby grants and leases to lessee the exclusive right and privilege to explore for, drill for, mine, extract, remove, bene?ciate, cOncentrate, or otherwise process and dispose of the copper deposits nickel associated minerals hereinafter referred to as ?leased deposits,? in, upon, or under the following described lands: . . . . Part II, Section 14. Special Stipulations: The terms and conditions of the production royalties remains as stated in the attached original lease agreement [referring to the 1966 lease]. The minimum annual production and minimum royalty is $10.00 per acre or a fraction thereof as stated in the attached original lease agreement [referring to the 1966 lease]. Because the provisions of the 2004 leases govern for the reasons set forth below, the renewal provisions of the 1966 leases are not applicable. Nevertheless, to provide a comprehensive analysis, the renewal provisions of the 1966 leases are discussed in the analysis that follows. The three relevant provisions in the 1966 leases are: Introductory clause: This lease entered into . . . between the United States of America, as Lessor, through the Bureau of Land Management, and predecessor], as Lessee, pursuant to the authority set out in, and subject to, Section 402 of the President?s Reorganization Plan No. 3 of 1946, 60 Stat. 1099, and the Act of June 30, 1950, 64 Stat. 311, and to all regulations of the Secretary of the Interior now in force when not inconsistent with any of the provisions herein. Section Rights of Lessee. In consideration of the rents and royalties to be paid and conditions and covenants to be observed as herein set forth the Lessor grants to the Lessee, subject to all privileges and uses heretofore duly authorized and prior valid claims, the exclusive right to mine, remove, and dispose of all the copper and/or nickel minerals and associated minerals . . . in, upon, or under [the described lands] . . . together with the right to construct and maintain thereon such structures and other facilities as may be necessary or convenient for the mining, preparation, and removal of said minerals, for a period of twenty (20) years with a right in the Lessee to renew the same for successive periods of ten 10) years each in accordance with regulation 43 C.F.R. 3221 and the provisions of this lease. Section 5: Renewal Terms. The Lessor shall have the right to reasonably readjust and ?x royalties payable hereunder at the end of the primary term of this lease and thereafter at the end of each successive renewal thereof unless otherwise provided by the law at the time of the expiration of any such period, and to readjust other terms and conditions of the lease, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover; provided, however, that the Lessee shall have the right to three successive ten?year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day. The Secretary of the Interior may grant extensions of time for commencement of production in the interest of conservation or upon a satisfactory showing by the Lessee that the lease cannot be successfully operated at a pro?t or for other reasons, and the Lessee shall be entitled to renewal as herein provided without readjustment except of royalties payable hereunder if at the end of the primary or renewal period such an extension shall be in effect, but the Lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time. If the Lessee shall be entitled to renewal without readjustment except of royalties payable hereunder, the Secretary of the Interior may in his discretion increase the royalty rate prescribed in subsection of Section 2 up to, but not exceeding 5% during the ?rst ten-year renewal period, (ii) 6% during the second ten-year renewal period, and 7% during the third ten-year renewal period. The extent of readjustment of royalty, if any to be made under this section shall be determined prior to the commencement of the renewal period. Analysis The renewal rights of TMM are governed by the applicable provisions of leases MNES 01352 and MNES 01353. At this time, the 2004 renewal leases are in effect, and they use the standard renewal language that has been in place since the 19803. In particular, the 2004 lease renewal terms grant the ?preferential right in the lessee to renew for successive periods of ten years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.? The Department has consistently interpreted this provision as not entitling the lessee to an automatic right of renewal: ?This preferential right of renewal does not entitle the lessee to renewal of the lease but ?gives the renewal lease applicant the legal right to be preferred against other parties, should the Secretary, in the exercise of his discretion, decide to continue leasing.?? Gen. Chem. (Soda Ash) Partners, 176 IBLA 1, 3 (2008) (emphasis in original) (quoting Sodium Lease Renewals, M- 36943, 89 Interior Dec. 173, 178 (1982) (1982 Solicitor?s Opinion?. The Interior Board of Land Appeals (IBLA) noted further that the ?Secretary may exercise his discretionary authority in renewing a lease in the same manner as in issuing an initial lease.? Id. In reaching this conclusion, I have carefully considered contention that the terms of the 1966 leases govern and require the BLM to renew the leases for a third ten-year term. As discussed below, I have concluded that the terms of the 2004 leases govern and that, in any event, the renewal provisions of the 1966 leases give the BLM discretion regarding whether to renew the leases. The 2004 leases are each complete, integrated documents that contain all necessary lease terms and are duly signed by the lessee and lessor. The degree to which the original 1966 leases continue in effect are speci?cally described in the 2004 leases, with two special stipulations that incorporate by reference only two provisions from the 1966 leases. 2004 leases 14. The ?rst stipulation states that the ?terms and conditions of the production royalties remains as stated in the attached original lease agreement.? The second states that the ?minimum annual production and minimum royalty is $10.00 per acre or fraction thereof as stated in the attached original lease agreement.? Neither of these imported provisions includes the lease renewal provisions of the 1966 leases. Consequently, since at least the time that the BLM and the lessee signed the 2004 lease renewals, the renewal provisions of the 1966 leases have no longer applied and the only renewal terms are those described in the 2004 leases, as quoted in the previous paragraph. Based on that well understood and unambiguous renewal language, the BLM has the same discretionary authority in considering whether to renew the 2004 leases as it had in issuing the initial 1966 leases. In a recent memorandum to me from legal counsel,?2 TMM asks the BLM to ignore the plain renewal terms of the 2004 leases and instead apply the renewal provisions of the 1966 leases. TMM relies on extrinsic evidence, placing heavy reliance on the circumstances leading up to the earlier 1989 renewal, which TMM asserts provide evidence that the BLM intended to simply renew the leases under the exact same terms of the 1966 leases. TMM ?n'ther asserts that the 2004 renewal, because it was executed using the same forms, must also have intended to renew the 1966 leases without any change in terms. As explained below in the discussion of the 1966 lease terms, the 1989 and 2004 renewals di??er ?'om each other because the discretion was limited in 1989 but not in 2004. In particular, the 1989 renewal served as a one-time extension of time for commencement of production, as authorized under section 5 of the 1966 leases. But section 5 also states that if an extension is granted, the renewal must be on unaltered terms (other than royalty). Accordingly, under section 5 of the 1966 leases, the 1989 renewal was effectively a ten-year extension of the 1966 lease terms, and the use of standard renewal forms in 1989 could have no effect other than to extend the leases for ten years to allow for commencement of production. But because no production commenced during that extension, TMM was not entitled to any subsequent production extensions or renewals under the 1966 lease terms, so the BLM had discretion in 2004 over both whether to renew and the terms of any such renewal. The executed renewal in 2004 therefore has operative effect, and the plain language of the 2004 leases actually executed by the parties must be given effect. There is nothing in the duly executed 2004 leases that states that the 1966 terms somehow govern over the terms expressly set out in the 2004 leases. '2 Memorandum ?'om 1. Daniel Colton, Partner, Dorsey Whitney LLP, received under a cover letter dated January 26, 2016, to me ?om Kevin L. Baker, Director, Legal Affairs, Twin Metals Minnesota, LLC. reliance on extrinsic evidence to attempt to negate the 2004 lease terms does not comply with the law of contracts. In the absence of ambiguity in the relevant lease provision, it is improper to rely on extrinsic evidence. See Coast Fed. Bank, FSB v. United States, 323 F.3d 1035, 1040 (Fed. Cir. 2006) (en banc) (?If the provisions are clear and unambiguous, they must be given their plain and ordinary meaning, and we may not resort to extrinsic evidence to interpret them.? (internal quotation marks and citation omitted)); see also Shell Oil Co. v. United States, 751 F.3d 1282, 1295 (Fed. Cir. 2014) (improper for government to rely on extrinsic evidence when contract provision is unambiguous); Thoman v. Bureau of Land Mgmt. (on recon. 155 IBLA 266, 267 (2001) (?If the contract language is clear and unambiguous, the terms of the agreement are given plain meaning and the intent of the parties and the interpretation of the agreement will be determined from the four comers of the document alone.? (internal citations omitted)). Under this objective law of contracts, the subjective intent of the parties is not relevant unless there is fraud, duress, or mutual mistake, none of which is alleged by TMM. See Armenian Assembly of Am., Inc. v. Cafesjian, 758 F.3d 265, 278 (DC. Cir. 2014) ?objective? law of contracts . . . generally means that ?the written language embodying the terms of an agreement will govern the rights and liabilities of the parties, [regardless] of the intent of the parties at the time they entered into the contract, unless the written language is not susceptible of a clear and de?nite undertaking, or unless there is fraud, duress, or mutual mistake.? (alteration in original) (citations omitted)). In this case, there is nothing ambiguous with the renewal provision contained in the 2004 leases: there is no con?icting renewal provision referenced elsewhere in the 2004 leases and the provision has a longstanding and well established meaning. While TMM has asserted that the ?preferential right? to renew is ambiguous because it is susceptible of more than one meaning, that argument is without merit.13 TMM misinterprets the 1982 Solicitor?s Opinion, which held that the preference right to renew ?gives the renewal lease applicant the legal right to be preferred against other parties should the Secretary, in the proper exercise of his discretion, decide to continue leasing.? 1982 Solicitor?s Opinion, 89 Interior Dec. at 178. In reaching this conclusion, the Solicitor included a discussion of the meaning of ?preference right leases.? That discussion focused on the rights gained in the initial leasing decision, and distinguished between ?entitlement? leases, which are leases to which an applicant is by statute entitled to receive if it meets statutory criteria, and true ?preference right leases,? which are issued only if the Secretary decides to lease. See id. Based on this discussion, TMM asserts it is ambiguous whether its leases are entitlement leases or preference right leases. Even if this distinction altered renewal rights, which is an issue that does not need to be addressed for purposes of this memorandum, there is no ambiguity in this case. Neither of the statutory authorities under which the leases are issued?section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099-1100, and 16 U.S.C. 508b?creates an entitlement to a lease or otherwise mandates the issuance of leases. To the contrary, both authorities expressly condition leasing on surface owner consent (in this instance the discretion of the Forest Service) and thus are discretionary. In short, there is no ambiguity, and the renewal provisions in the 2004 leases provide the BLM with discretion to decide whether to renew the leases. '3 A lease is not ambiguous merely because the parties disagree on the correct interpretation. Thoman, 155 IBLA at 267 (citing Pollock v. Fed. Deposit Ins. Corp., 17 F.3d 798, 803 (5th Cir. 1994); Stichting May?ower Recreational Fonds v. Newpark Res, Inc., 917 F.2d 1239, 1247 (10th Cir. 1990)). Finally, even if the 1966 lease renewal terms were in effect, they do not prohibit the BLM from exercising its discretion to decide whether to renew the leases. Section 1(a) of the 1966 leases granted to the lessee ?the exclusive right to mine, remove, and dispose of all the copper and/or nickel minerals and associated minerals . . . It also provided that renewal of the leases beyond the primary term is subject to 43 C.F.R. 3221.4(0 (1966) and the provisions of the lease. Section 3221 provides that the lessee ?will be granted a right of renewal for successive periods, not exceeding 10 years each, under such reasonable terms and conditions as the Secretary of the Interior may prescribe, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover.? Based on this regulation, the BLM included a conditional renewal provision in section 5 of the 1966 leases. Section 5 of the 1966 leases describes both the conditions with which the lessee must comply to establish a right to renew the lease and the limitations on revisions to the lease terms when the lessee does have a right to renewal: Renewal Terms. The Lessor shall have the right to reasonably readjust and ?x royalties payable hereunder at the end of the primary term of this lease and therea?er at the end of each successive renewal thereof unless otherwise provided by the law at the time of the expiration of any such period, and to readjust other terms and conditions of the lease, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover; provided, however, that the Lessee shall have the right to three successive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day. The Secretm of the Interior may grant extensions of time for commencement of production in the interest of conservation or upon a satisfactog showing by the Lessee that the lease cannot be successfully operated at a pro?t or for other reasons, and the Lessee shall be entitled to renewal as herein provided without readjustment except of royalties payable hereunder if at the end of the prima_ry or renewal period such an extension shall be in effect. but the Lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time. If the Lessee shall be entitled to renewal without readjustment except of royalties payable hereunder, the Secretary of the Interior may in his discretion increase the royalty rate prescribed in subsection of Section 2 up to, but not exceeding 5% during the ?rst ten-year renewal period, (ii) 6% during the second ten-year renewal period, and 7% during the third ten-year renewal period. The extent of readjustment of royalty, if any to be made under this section shall be determined prior to the commencement of the renewal period. 1966 leases 5 (emphases added). As explained more fully below, since at least 1986, the Solicitor?s Of?ce has interpreted section 5 to mean that, even if the Secretary can and does, as a matter of discretion, renew the lease to extend the time to commence production, there is no right to a ?irther renewal when production14 has not begun at the end of the ?rst renewal-extension period. The opening segment of the ?rst sentence of section 5 describes the right to readjust the royalties and other terms and conditions at the renewal stage. This provision means that, as a general rule, if renewing the lease, the BLM is allowed to readjust not only the lease royalties but also other terms and conditions at the renewal stage, including stipulations to protect the surface. The second segment of the ?rst sentence following the semi-colon (highlighted in bold above) is a proviso that allows for three successive ten-year renewals, but conditions the lessee?s right to those renewals on the lessee beginning production before the end of the primary term of the lease. The key conditioning language is at the end of the ?rst sentence, as highlighted below: provided, however, that the Lessee shall have the right to three successive ten-year renewals of this lease with any readjustment in royalties payable hereunder limited to that hereina?er provided and with no readjustment of any of the other terms and conditions of the lease unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day. This highlighted clause, which begins with ?unless,? quali?es the very right to renew and not merely, as the company has asserted, the phrase describing the level of discretion the BLM has to readjust the other terms and conditions of the leases upon renewal. In other words, the proper meaning of the proviso is clear when the last clause is placed next to the provision it actually quali?es: ?[T]he Lessee shall have the right to three successive ten-year renewals of this lease . . . unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day.? This conclusion is evident by the construction of the proviso. The two readjustment limitations are tied together and modify the ?right to three successive ten-year renewals? language. The use of the conjunctive ?and? between the two readjustment phrases (?with any readjustment in royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of the lease?) ties them together as a single modi?er to the right-to-renew language. Accordingly, the production requirement set out as the last clause of the proviso cannot merely qualify the readjustment phrases, as contended by TMM, but must apply to the overall right of renewal. In this way the proviso makes any non-discretionary renewal contingent on the lessee meeting the production requirement ?rst, and then the conditions of that renewal regarding royalties and lease terms are speci?ed in the readjustment phrases. This conclusion is further reinforced by the second sentence of section 5 (the portion of section 5 underlined above). That sentence has three clauses. The ?rst clause provides that the BLM has '4 None of the Department?s solid minerals leasing regulations?including those in force at the time of the 1986 Solicitor?s Opinion, those promulgated immediately thereafter, and those currently in force?expressly define the term ?production.? However, the rights granted in section 1 of the 1966 leases are described as mining, removing, and disposing of the copper and/or nickel minerals and associated minerals in, upon, or under the leased lands. These activities may be viewed to reasonably describe production. the discretion to grant the lessee an extension beyond the primary term to begin production, if doing so would be in the interest of conservation or the lessee cannot operate the lease at a pro?t or for other reasons. The second clause states that, if an extension is granted, the lessee is entitled to a renewal in which the only revision allowed is to the royalties provision. These two clauses allow the lessee to use the ?rst renewal as an extension time period to begin production. The third and ?nal clause of the sentence, however, limits this right to a renewal if there is no production by the end of the extension: ?but the Lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time.? This ?nal clause reinforces the preceding sentence?s condition precedent that there must be production before the lessee has a ?right? to subsequent renewals. The second sentence therefore again makes production a precondition for any right to renew and disallows the lessee from obtaining a ?right? to a renewal if no production has occurred during the primary term or an extension that the Secretary may grant for commencement of production. The third sentence of section 5 (the portion of section 5 in italics above) describes the degree to which the BLM may readjust the royalty if the lessee is entitled to a ?limited adjustment? lease renewal under the ?rst sentence, the Lessee is ?entitled to renewal without readjustment except of royalties payable hereunder . . . But without production, there would be no such entitlement. Taken as a whole, the language of section 5 does not give the lessee a non-discretionary right to three successive renewals. Rather, production is the condition precedent for the lessee to obtain any lease renewals of right. There is no right of renewal if there has been no production before the end of the primary term or at the end of any renewal that the BLM grants to extend the time for the lessee to commence production. The fact that the lease terms expressly state that subsequent renewals of right are not available if no production occurs during any extension the BLM may grant for commencement of production reiterates the linkage between renewals of right and production. It would be incongruent to link only the bene?t of unchanged lease terms to production, while leaving the lease renewal and royalty readjustment terms unaffected by a lack of production. Such arbitrary line drawing would create little incentive for the lessee to develop the minerals, which is the entire purpose for these mineral leases. In contrast, when production is a condition precedent for lease renewals, the lease renewal provision effectively serves as a minimal due diligence provision for the lessee.15 TMM asserts a different interpretation though. TMM reads the proviso of the ?rst sentence of section 5 to grant the lessee a non-discretionary right of renewal, with such right of renewal limited only to royalty readjustment and with no readjustment of any other lease terms. TMM also reads the production requirement in the provision??unless at the end of the primary term of '5 We note that section 14 of the 1966 leases does not change this conclusion. Section 14 sets forth the royalty rates that would apply in the second ten years of the primary lease term and in the ?rst, second, and third ten-year renewal periods, if the lessee were to sink a shaft for underground exploration or development or otherwise begin commercial development within ?ve years of obtaining the rights and authorizations for construction, operation and maintenance of the leased premises. According to TMM, in 1967, its predecessor in interest, INCO, sunk an 1100- foot shaft for exploration and development on lease MNES 01352. TMM asserts that section 14 contractually entitles it to these royalty rates during each of three renewal periods. However, nothing in section 14 provides for a non-discretionary right of renewal. Rather, section 14 merely describes the royalty rate that would apply during the ?rst three ten-year renewals. It does not grant those renewals and does not state that sinking an exploration or development shaft entitles the lessee to those renewals. 10 this lease the Lessee shall not have begun production??-to modify only the readjustment limitation language, not the right to renewal language. Under interpretation of the provision, if the lessee begins production within the primary term, the BLM may make only limited royalty adjustments, as provided in the leases, and no adjustments to any other lease terms. If, on the other hand, the lessee fails to begin production within the primary term, according to TMM, the lack of production negates only the readjustment limitations in the provision, and the BLM would be able to impose greater royalty readjustments and readjust other terms and conditions of the leases upon renewal. In other words, under the company?s reading, a right to three successive ten-year renewals begins immediately following the primary terms regardless of whether production has occurred, and section 5 only affects the parameters for the readjustment of the lease terms in those non-discretionary three renewals. In addition to being unsupported by the terms of the proviso as described above, interpretation would allow it to hold the leases without any need to produce minerals in paying quantities for at least ?fty years, and longer in this instance given the time to process the lease renewals. This interpretation not only con?icts with the plain wording of the 1966 lease terms but also is contrary to the very intent of the applicable statutory framework under which the Secretary may authorize mineral development with an expectation of revenues, not speculative land holdings. See Reorganization Plan No. 3 of 1946 402, 60 Stat. 1097, 1099-1100; 16 U.S.C. 520. Interpreting the leases to allow for three non-discretionary renewals covering a thirty-year time span without the occurrence of the very underlying activity for which the leases are issued in the ?rst place would defeat the purpose of entering into the lease. Such an interpretation would allow for the speculative holding of mineral rights, which is contrary to Congress?s intent to encourage productive mineral development while also providing a fair return to the American taxpayer. Our interpretation that section 5 requires the lessee to begin production to obtain the bene?t of any non-discretionary right of renewal is not only mandated by the lease terms, but is consistent with the regulation regarding renewal applications cited in the lease. Section 1(a) of the 1966 leases requires the renewals to be in accordance with 43 C.F.R. 3221 (1966), which in turn requires that renewal applications ?must be ?led in a manner similar to that prescribed for extension of a prospecting permit in Under 43 C.F.R. a prospector must show that he or she has ?diligently performed prospecting activities? to support an application for an extension of a prospecting permit.l6 Allowing for the difference between a prospecting permit application and a lease renewal application, 3221.3(a) requires that the lease renewal application include a showing of diligence in performing the lease activities (rather than the prospecting activities), which are reasonably viewed, consistent with the rights granted in section 1 of the lease terms, as mining, removing, and disposing of the copper and/or nickel minerals and associated minerals?i.e., production. Consequently, by stating that any renewals must be ?in accordance with 43 C.F.R. the lease terms again identi?ed production as the baseline for obtaining a renewal of right. Based on the lease terms as a whole, and because there has been no production during the primary term or the succeeding extensions through lease renewals that the BLM has granted, TMM has not satis?ed the condition precedent '6 Under 43 C.F.R. 3221.3(a) (1966), in addition to making a show of diligence, the applicant must ?le an application in triplicate within ninety days before the expiration date of the lease term and must pay a ?ling fee. 11 fOr obtaining a renewal of right and, therefore, the BLM has discretion to make a decision regarding whether to renew the leases even if the 1966 renewal terms were in effect. In addition, the Solicitor?s Of?ce has already concluded that the BLM is not required to renew the 1966 leases as a matter of right if there has been no production. In 1986, the Associate Solicitor for the Division of Energy and Resources sent a memorandum to the Deputy State Director for the BLM Eastern States Of?ce responding to three questions from the Deputy State Director.17 The ?rst question was whether it was possible to grant lease renewals (for the same leases that are at issue here) when the leases had never been in production. In response, the Associate Solicitor examined the terms of the lease to determine whether or not lack of production precludes extending the lease term. The Associate Solicitor then relied on the second sentence of section 5 (the portion of section 5 underlined above) to conclude that, while the leases may be extended for a period not exceeding ten years even though production has not occurred, if production does not occur during the period of extension, ?no further extensions will be allowed in accordance with the terms of the lease.? Consistent with this legal advice and the provisions of section 5 of the 1966 leases, the BLM granted a ten-year extension by renewing these two leases in 1989. As noted above, the BLM also renewed the leases for a second ten-year period in 2004. Because no production had occurred by that time, the decision to renew the leases in 2004 was discretionary. The decision to renew the leases in 2004 does not impede the BLM from again exercising discretion regarding the lessee?s application for a third renewal of the leases, particularly where this of?ce has previously concluded that the agency need not allow additional pre-production renewals. '8 It should be noted that the lessee?s payment of minimum royalties in lieu of production does not alter the foregoing analysis. 19 The payment of minimum royalties is certainly one incentive to produce that was imposed by the 1966 leases, but that incentive worked in tandem with the one created by the leases? production precondition for mandatory renewals. The second incentive ?7 See Memorandum from Associate Solicitor, Energy and Resources, signed by Kenneth G. Lee, Assistant Solicitor, Branch of Eastern Resources, to Deputy State Director, Mineral Resources, Eastern States Of?ce, Bureau of Land Management, ?Application for Minimum Royalty Waiver Submitted by INCO Alloys International, Incorporated for Leases ES 01352 and ES 01353? (Apr. 2, 1986) (Attached). '8 TMM has made no showing in its pending renewal application under 43 C.F.R. 3221.4(t) (1966) that would entitle it to a third and ?nal renewal under section 5 of the 1966 leases. TMM has never begun production. predecessor, INCO, sunk a development sha? and conducted bulk sampling, but neither of those actions quali?es as beginning production. Without any showing of diligence in mining, removing, or disposing of the copper, nickel, and associated minerals, and without beginning production, TMM is not entitled to any further non-discretionary ten-year renewals. TMM has also asserted that the Department of the Interior is prohibited by 30 U.S.C. l84(h)(2), as well as the Department?s regulations at 43 C.F.R. 3514.40 (2015), from ?cancelling? interest in the leases at issue as TMM is a bona ?de purchaser. But the cancellation regulations have no applicability where, as here, the decision is whether to renew a lease. Were BLM to exercise its discretion to deny the lease renewal application, it would not be cancelling the leases, as contemplated by 30 U.S.C. l84(h)(2) and 43 C.F.R. 3514.40, but rather would be allowing leases that have been in existence for years without production to terminate by their own terms. '9 The original leases do not mention minimum royalties as a way to ful?ll the production requirement. And section 2(b) of 2004 leases merely provides that the request of the lessee, made prior to initiation of the lease year, the authorized of?cer may allow in writing the payment of a $3.00 per acre or ?action thereof minimum royalty in lieu of production for any particular lease year.? 12 expired when no production occurred by the end of the extension period granted by the 1989 renewal. While the 2004 renewal leases retain the minimum royalties payment incentive, that fact has no impact on the renewal provision of the 2004 leases. Of course, for the leases to continue in effect during the renewal period, the lessee was required to continue to meet its obligation to pay royalties in lieu of production. However, that payment was and is not equivalent to production and does not somehow entitle the lessee to obtain a lease renewal of right; instead, it merely keeps the leases from terminating during the extension time period the BLM has granted through a lease renewal. The fact that the payment of royalties in lieu of production cannot be the basis for establishing the right to renew, and cannot be a defacto means of extending a lease in perpetuity, is also clear from IBLA case law. In General Chemical (Soda Ash) Partners, the IBLA held that minimum royalties in lieu of production have ?nothing to do with whether the Secretary, in looking at production from the mine of which the lease is a part at the end of the current lease term, will renew the lease for an additional term.? 176 IBLA at 9. The Board further held, ?Moreover, ?[t]he Secretary has the authority to encourage production and development of federally leased sodium resources both through minimum development and production requirements and minimum royalties imposed on each lease.? Id. (emphasis in original) (quoting 1982 Solicitor?s Opinion, 89 Interior Dec. at 185). The leases here use precisely both mechanisms to encourage production, albeit not successfully in this instance. Conclusion For the foregoing reasons, the lessee has not established a non-discretionary right to a third ten- year renewal. Under the governing 2004 lease terms, the BLM has the same discretion regarding whether to renew the lease for a third time as it had in determining whether to grant the initial lease. While the 2004 lease terms give the lessee a preference over other potential lessees to lease the lands in question, they do not entitle the lessee to non-discretionary renewal of the leases. Attachment 13 United States Department of the Interior OFFICE OF THE SOLICITOR 350 South Pickett Street ALEXANDRIA. VIRGINIA 22304 BLM.ER.O335 Am - 2 sea Memorandum To: Deputy State Director, Mineral Resources (970) Eastern States Office, Bureau of Land Management From: Associate Solicitor, Energy and Resources Subject: Application for Minimum Royalty Waiver Submitted by INCO Alloys International, Incorporated for Leases 88 01352 and as 01353 You have requested a legal opinion addressing three questions raised in a memorandum from the Milwaukee District Office. The answers along with these questions are set forth below. - Question No. 1: "Is it possible to grant lease renewals for these leases when the leases have never been in production? The lease documents and the regulations are not clear on this point. This question will surely be asked by INCO since the initial 20 year lease term expires on May 31, 1986." A lease for hardrock minerals may be issued for a period not ex- ceeding 20 years. The primary term on the subject leases was for a 20 year period. The lease shall be subject to a preferential right to renew for a term not to exceed 10 years at the end of the initial term and each succeeding term thereafter, upon such terms and conditions as may be incorporated in each lease or prescribed in the general regulations issued by the Secretary. 43 C.F.R. The Secretary of the Interior has promulgated no regulations that require production as a prereq- uisite to the extension of such leases. Accordingly, we must look to the terms of the lease to determine whether or not lack of production precludes extending the lease term. Section 5 of the lease states that, "The Secretary of the Interior may grant extensions of time for commencement of production in the interest of conservation or upon a satisfactory showing by the lessee that the lease cannot be successfully operated at a profit or for other reasons . . . but the lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time." Therefore, according to the terms of the lease, such lease may be extended even though production has not occurred, for a period not exceeding 10 years. If production does not occur during the period of extension, no further extensions will be allowed in accordance with the terms of the lease. Question No. 2: has been given waivers of minimum royalty payments for 5 years due to condition beyond its control -2- enyironmental analysis), and is now asking for a waiver based on additional conditions beyond its control low copper and nickel prices). Has BLM set a binding precedence [sic] by granting the original waivers?" INCO's failure to pay minimum royalties as set forth in section 2(c) of the lease, constitutes a breach of the covenants and conditions contained in the lease agreement. In section 6(b) of the lease, the United States reserved the right to waive any breach of the covenants and conditions contained therein but any such waiver shall extend only to the particular breach so waived and shall not limit the rights of the lessor with respect to any future breach. Therefore, waiver of a prior breach of the minimum royalty payments, does not obligate the Bureau to grant any subsequent waivers. Question No. 3: Section 2(a) of the lease states, I'Lessee [sic] may . . . waive . . . minimum royalty payments for reasonable periods of time . . . Waivers were given for the first 5 years they were due, which is one-fourth of the initial lease term. WOuld granting of further waivers be conceived to extend beyond a "reasonable period?" Section 2(c) states that, ?Lessor may in its discretion, waive, reduce, or suspend the minimum royalty payment for reasonable periods of time in the interest of conservation or when such action does not adversely affect the interest of the United States. . . Whether or not the waiver period is ?reasonable? must be determined by an examination of the purpose for which such discretion was exercised. Obviously if the reason for such waiver was due to a condition that only existed for 3 years, then a waiver of minimum royalty for a 10 year period would probably be deemed unreasonable. we suggest that the information submitted by the lessee be examined and considered in its entirety in order to determine what is reasonable given the facts set forth in that information. In addition, the reasonable period of time is to be viewed in the context of the ?interest of conservation' and the "interest of the United States.? If you should have any further questions relating to this matter. please contact Barry Crowell at 274-0204. 6 Ken G. Lee Assistant Solicitor Branch of Eastern Resources Attachment Attomey-Client Privilege/Attorney Work Product BRIEFING MEMORANDUM DATE: June 8? 2017 FROM: Karen Hawbecker Associate Soliciton Mineral Resources SUBJECT: ranconia Alinera/s v. United States, No. 16?3042 (D. Minn.) Involving the Denied Renewal of Federal Hardrock Mineral Leases MNES 1352 and 1353 p?a Attomey-Client Privilege/Attorney Work Product BRIEFING MEMORANDUM DATE: June 8? 2017 FROM: Karen Hawbecker Associate Soliciton Mineral Resources SUBJECT: ranconia Alinera/s v. United States, No. 16?3042 (D. Minn.) Involving the Denied Renewal of Federal Hardrock Mineral Leases MNES 1352 and 1353 p?a WEEKLY REPORT TO THE SECRETRY DEPARTMENT OF THE INTERIOR June 7, 2017 Of?ce of the Solicitor Week Ahead Schedule of Meetings, Congressional Hearings, and Travel Nothing to repo?. Week Ahead Announcements and Actions WEEKLY REPORT TO THE SOLICITOR DEPARTMENT OF THE INTERIOR June 7, 2017 Of?ce of the Solicitor Week Ahead Schedule of Meetings, Congressional Hearings, and Travel Meeting with Realty and Refuge Managers The Twin Cities Field Solicitor will hold his meeting in the coming week with FWS Realty and Refuge managers to assess and prioritize legal workload for J1me. This ongoing meeting has helped the Twin Cities Of?ce reduce its backlog, decrease tumaround time. and spend more of its time on the highest priority matters. (Tony Sullins. 612-713-7100) Manager Schedule and Other Key Administrative Matters Boston Of?ce Move The Boston Field Of?ce has left the suburbs and now is located in the heait of downtown Boston. The new address is: 15 State Street, Boston, MA 02109-3502. Week Ahead Announcements and Actions WEEKLY REPORT TO THE SECRETARY DEPARTNIENT OF THE INTERIOR June 08, 2017 Of?ce of the Solicitor Week Ahead Schedule of Meetings;I Hearings: and Travel Nothing to report. Week Ahead Announcements and Actions SIGNIFICANT LITIGATION DEADLINES FOR NEXT TWO WEEKS SEPARATELY REPORTED NEW CASES: SIGNIFICANT DECISIONS: CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 1 of 26 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA FRANCONIA MINERALS (US) LLC and TWIN METALS MINNESOTA LLC, Plaintiffs, v. UNITED STATES OF AMERICA, et al., Defendants, and NORTHEASTERN MINNESOTANS FOR WILDERNESS, Defendant-Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL NO. 16-3042 SRN/LIB MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ SUPPLEMENTAL AND AMENDED COMPLAINT CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 2 of 26 TABLE OF CONTENTS I.  INTRODUCTION .............................................................................................................. 1  II.  BACKGROUND ................................................................................................................ 2  III.  STANDARD OF REVIEW ................................................................................................ 6  IV.  ARGUMENT ...................................................................................................................... 8  A.  V.  This Contract Action May Only be Brought under the Tucker Act in the Court of Federal Claims. ......................................................................................... 8  1.  Plaintiffs Fail Megapulse’s First Requirement Because their Asserted Right to Renewal is Contractual. ............................................... 10  2.  Plaintiffs Also Fail to Satisfy the Second Requirement of Megapulse Because the Remedy They Seek is Contractual........................................ 13  B.  Plaintiffs Cannot Invoke this Court’s Jurisdiction under the QTA....................... 14  C.  The Forest Service’s Decision to Withhold Consent Is Not Reviewable Under the APA...................................................................................................... 16  1.  Plaintiffs Have an Adequate Remedy at Law in the Court of Federal Claims, Precluding Their APA Claim. ..................................................... 16  2.  The Forest Service’s Decision is Committed to Agency Discretion by Law. ..................................................................................................... 17  CONCLUSION ................................................................................................................. 20  ii CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 3 of 26 TABLE OF AUTHORITIES Cases  Ahern Fire Prot. v. U.S. Postal Serv., No. 4:03–CV–40691, 2004 WL 1737388 (S.D. Iowa July 15, 2004) ........................................ 9 Albrecht v. Comm. on Emp. Benefits, 357 F.3d 62 (D.C. Cir. 2004) ...................................................................................................... 8 B & B Trucking, Inc. v. U.S. Postal Serv., 406 F.3d 766 (6th Cir. 2005) ...................................................................................................... 9 Cadorette v. United States, 988 F.2d 215 (1st Cir. 1993) ..................................................................................................... 15 Carlson Holdings, Inc. v. NAFCO Ins. Co., 205 F. Supp. 2d 1069 (D. Minn. 2001) ....................................................................................... 7 Christensen v. Harris Cty., 529 U.S. 576 (2000) ................................................................................................................. 19 Christopher Vill., L.P. v. United States, 360 F.3d 1319 (Fed. Cir. 2004) ................................................................................................ 16 Consol. Edison Co. of New York, Inc. v. U.S. Dep’t of Energy, 247 F.3d 1378 (Fed. Cir. 2001) ................................................................................................ 17 Cty. of Suffolk, N.Y., v. United States, 19 Cl. Ct. 295 (1990) ................................................................................................................ 17 Del-Rio Drilling Programs, Inc. v. United States, 146 F.3d 1358 (Fed. Cir. 1998) ................................................................................................ 12 Dohse v. Potter, No. 8:04CV355, 2006 WL 379901 (D. Neb. Feb. 15, 2006) ..................................................... 9 Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073 (9th Cir. 2014) .................................................................................................. 18 Dunbar Corp. v. Lindsey, 905 F.2d 754 (4th Cir.1990) ..................................................................................................... 15 Evers v. Astrue, 536 F.3d 651 (7th Cir. 2008) ...................................................................................................... 9 Forsyth Cty. v. U.S. Army Corps of Eng’rs, 633 F.3d 1032 (11th Cir. 2011) ................................................................................................ 18 Friedman v. United States, 391 F.3d 1313 (11th Cir. 2004) .................................................................................................. 9 Ginsberg v. United States, 707 F.2d 91 (4th Cir. 1983) ...................................................................................................... 15 iii CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 4 of 26 Griffin & Griffin Expl., LLC v. United States, 116 Fed. Cl. 163 (2014) ............................................................................................................ 10 Heckler v. Chaney, 470 U.S. 821 (1985) .................................................................................................................. 18 Ingersoll–Rand Co. v. United States, 780 F.2d 74 (D.C. Cir. 1985) .............................................................................................. 10, 14 Kenney v. Glickman, 96 F.3d 1118 (8th Cir. 1996) .................................................................................................... 18 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) .................................................................................................................... 6 Landow v. Carmen, 555 F. Supp. 195 (D. Md. 1983) ............................................................................................... 16 McKay v. United States, 516 F.3d 848 (10th Cir. 2008) .......................................................................... 11, 12, 13, 14, 15 McMaster v. United States, 177 F.3d 936 (11th Cir. 1999) .................................................................................................. 15 McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178 (1936) .................................................................................................................... 7 Megapulse, Inc. v. Lewis, 672 F.2d 959 (D.C. Cir. 1982) ........................................................................................ 9, 10, 13 Moubry ex rel. Moubry v. Indep. Sch. Dist. No. 696, 951 F. Supp. 867 (D. Minn. 1996) .............................................................................................. 7 Mullally v. United States, 95 F.3d 12 (8th Cir. 1996) .......................................................................................................... 8 Normandy Apartments, Ltd. v. U.S. Dep't of Hous. & Urban Dev., 554 F.3d 1290 (10th Cir. 2009) .................................................................................................. 9 Ohio Forestry Association v. Sierra Club, 523 U.S. 726 (1998) .................................................................................................................. 19 Perry Capital LLC v. Mnuchin, 848 F.3d 1072 (D.C. Cir. 2017) .................................................................................................. 8 Presidential Gardens Assocs. v. United States, 175 F.3d 32 (2d Cir. 1999) ......................................................................................................... 8 Robbins v. U.S. Bureau of Land Mgmt., 438 F.3d 1074 (10th Cir. 2006) .................................................................................................. 8 Sea-Land Serv., Inc. v. Brown, 600 F.2d 429 (3d Cir. 1979) ....................................................................................................... 8 iv CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 5 of 26 Star Alaska v. United States, 14 F.3d 36 (9th Cir. 1994) .......................................................................................................... 9 Suburban Mortg. Assocs., Inc. v. U.S. Dep’t of Hous. & Urban Dev., 480 F.3d 1116 (Fed. Cir. 2007) ................................................................................................ 17 Target Training Int’l., Ltd. v. Lee, 1 F. Supp. 3d 927 (N.D. Iowa 2014)........................................................................................... 7 Tucson Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641 (9th Cir. 1998) ...................................................................................................... 8 United Fed. Leasing, Inc. v. United States, 33 F. App'x 672 (4th Cir. 2002) .................................................................................................. 9 United States v. J & E Salvage Co., 55 F.3d 985 (4th Cir. 1995) ................................................................................................ 10, 11 United States v. Sherwood, 312 U.S. 584 (1941) .................................................................................................................. 15 Up State Fed. Credit Union v. Walker, 198 F.3d 372 (2d Cir. 1999) ....................................................................................... 8, 9, 12, 14 V S Ltd. P’ship v. Dep’t of Hous. & Urban Dev., 235 F.3d 1109 (8th Cir. 2000) .............................................................................................. 8, 13 W. Radio Servs. Co. v. Espy, 79 F.3d 896 (9th Cir. 1996) ...................................................................................................... 19 Webster v. Doe, 486 U.S. 592 (1988) .................................................................................................................. 18 Whitney v. Guys, Inc., 700 F.3d 1118 (8th Cir. 2012) .................................................................................................... 7 Statutes  5 U.S.C. § 701(a)(2) ............................................................................................................ 7, 16, 17 5 U.S.C. § 704 ......................................................................................................................... 16, 17 16 U.S.C. § 508b ..................................................................................................... 6, 11, 16, 18, 19 16 U.S.C. § 520 ............................................................................................................................... 3 28 U.S.C. § 1346 ............................................................................................................................. 8 28 U.S.C. § 1346(f) ....................................................................................................................... 14 28 U.S.C. § 1491 ..................................................................................................................... 10, 17 28 U.S.C. § 1491(a)(1).................................................................................................................... 1 28 U.S.C. § 2409a(a)................................................................................................................. 8, 14 v CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 6 of 26 30 U.S.C. § 48 ................................................................................................................................. 2 41 U.S.C. § 7102(a) ...................................................................................................................... 10 Pub. L. No. 64-390.......................................................................................................................... 3 Pub. L. No. 81-594.......................................................................................................................... 2 Rules  Fed. R. Civ. P. 12(b)(1)................................................................................................................... 7 Fed. R. Civ. P. 12(h)(3)................................................................................................................... 7 Regulations  36 C.F.R. § 219.2(b)(2)................................................................................................................. 19 43 C.F.R. § 3221.4 ........................................................................................................................ 12 43 C.F.R. § 3221.4(f) ................................................................................................................ 3, 12 43 C.F.R. § 3501.1(b)(1)............................................................................................................... 12 Other Authorities  H.R. REP. NO. 94-1656, at 12-13, reprinted in (1976) U.S.C.C.A.N. 6121,6133 .......................... 9 S. REP. No. 81-1778 reprinted in (1950) U.S.C.C.A.N. 2662; H.R. REP. NO. 81-795 (1949) .... 18 vi CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 7 of 26 I. INTRODUCTION This case involves a dispute over the terms of two mineral leases between the United States and Plaintiffs Franconia Minerals LLC and Twin Metals LLC. Plaintiffs challenge a decision by the Bureau of Land Management (“BLM”) not to renew two leases located south of the Boundary Waters Canoe Area Wilderness in Minnesota, claiming that the BLM violated Plaintiffs’ contractual right to the automatic renewal of their leases. Plaintiffs also allege that the Forest Service deprived Plaintiffs of their long-established lease rights by refusing to grant consent to BLM’s renewal of the leases. In an attempt to establish this Court’s jurisdiction, Plaintiffs cast this contract dispute as a real property dispute under the Quiet Title Act (“QTA”) and an action for judicial review under the Administrative Procedure Act (“APA”). Plaintiffs’ case must be dismissed for three related reasons. First, a contract dispute does not provide a cognizable cause of action in this Court under the QTA or APA. The Tucker Act confers exclusive jurisdiction upon the United States Court of Federal Claims for “any claim against the United States founded . . . upon any express or implied contract with the United States,” exceeding $10,000. 28 U.S.C. §§ 1491(a)(1), 1346(a)(2). Here, the gravamen of the Amended Complaint is clearly contractual. The alleged source of all four counts – an automatic right of renewal into perpetuity – derives solely from the leases with the BLM. The type of relief sought – an order requiring the BLM and Forest Service to renew the lease – is specific performance of the leases, a purely contractual remedy. The case must therefore be brought in the Court of Federal Claims under the Tucker Act, precluding jurisdiction in this Court. Second, Plaintiffs are further foreclosed from pursuing their QTA claim against the United States (Count I) because they have failed to identify an interest in real property that is CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 8 of 26 cognizable under the QTA. In short, the QTA does not provide a remedy for disputes arising under leases with the United States, as is the case here. Third, Plaintiffs cannot maintain their APA claim against the Forest Service (Count IV) for two additional, but related, reasons. Count IV is an extension of Plaintiffs’ contract claims against the BLM, for which the exclusive remedy resides in the Court of Federal Claims. Thus, review is not available under the APA. Moreover, the Forest Service’s decision to withhold consent is committed to agency discretion by law, and thus is unreviewable under the APA. II. BACKGROUND “Mineral lands” belonging to the United States in Minnesota, Michigan, and Wisconsin were excluded from the general mining laws by the act of February 18, 1873 (Rev. Stat. 2345, 17 Stat. 465, 30 U.S.C. § 48). Consequently, these lands were not open to hardrock mineral development when they were subsequently reserved from the public domain for what is now known as the National Forest System. In 1950, Congress enacted legislation that authorized the Secretary of the Interior to permit mineral development on reserved public-domain lands subject to 30 U.S.C. § 48, but only within the exterior boundaries of national forests in Minnesota and only with the consent of the Forest Service. See Pub. L. No. 81-594, 64 Stat. 311 (1950) (codified at 16 U.S.C. § 508b). The legislation provides that “the development and utilization of such mineral deposits shall not be permitted by the Secretary of the Interior except with the consent of the Secretary of Agriculture.” Id. Congress also authorized the Secretary of the Interior to permit mineral development on acquired lands, but only if the Secretary of Agriculture advised “that such development will not interfere with the primary purposes for which the land was acquired and only in accordance with such conditions as may be specified by the Secretary of Agriculture in order to protect such 2 CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 9 of 26 purposes.” See Act of Mar. 4, 1917, Pub. L. No. 64-390, 39 Stat. 1134, 1150, amended by Reorganization Plan No. 3 of 1946 § 402, 60 Stat. 1097, 1099 (1946) (codified at 16 U.S.C. § 520). On June 1, 1966, the United States, through the BLM, issued two hardrock mineral leases, MNES 1352 and MNES 1353, to the International Nickel Company, Inc. (“INCO”). Suppl. & Am. Compl. Ex. 1, ECF No. 72-1 (hereinafter “1966 Leases”). The leased lands are located south of the Boundary Waters Canoe Area Wilderness on a mixture of National Forest System lands reserved from the public domain and acquired lands. Suppl. & Am. Compl. ¶¶ 4147, ECF No. 72 (“Am. Compl.”). The 1966 Leases conveyed to INCO “the exclusive right to mine, remove, and dispose of all the copper and/or nickel minerals and associated minerals” within the area covered by each lease. ECF No. 72-1, § 1(a). By their own terms, each lease was valid for a “period of twenty (20) years with a right in the Lessee to renew the same for successive periods of ten (10) years each in accordance with regulation 43 C.F.R. § 3221.4(f) and the provisions of this lease.” Id. Section 5 of each lease set forth “Renewal Terms.” Id. § 5. This section provided for three successive ten-year renewals “unless at the end of the primary term of the lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day.” Id. In that circumstance, the Secretary of the Interior “may grant extensions of time for commencement of production in the interest of conservation or upon a satisfactory showing by the Lessee that the lease cannot be successfully operated at a profit or for other reasons, and the Lessee shall be entitled to renewal as herein provided without readjustment except of royalties payable hereunder if at the end of the primary or renewal period such an extension shall 3 CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 10 of 26 be in effect, but the Lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time.” Id. The BLM renewed the leases twice, in 1989 and 2004. See Am. Compl. Exs. 2 & 3, ECF Nos. 72-2 & 72-3. The 1989 renewed leases were titled “Renewal Preference Right Lease” and utilized BLM’s standard lease form, Form 3520-7 (December 1984). ECF No. 72-2 (hereinafter “1989 Renewals”). The 1989 Renewals were effective “for a period of ten years” and gave INCO a “preferential right . . . to renew for successive periods of ten years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.” Id. The 1989 Renewals attached the original 1966 Leases and included two “special stipulations” stating that “[t]he terms and conditions of the production royalties remains as stated in the attached original lease agreement” and “[t]he minimum annual production and minimum royalty is $10.00 per acre or a fraction thereof as stated in the attached original lease agreement.” Id. § 14. The 2004 renewed leases were also titled “Preference Right Lease Renewal” and also utilized BLM’s standard 1984 lease form. ECF No. 72-3 (hereinafter “2004 Renewals”). Like the 1989 Renewals, the 2004 Renewals were effective “for a period of 10 years” and conveyed to American Copper and Nickel Company, the successor of INCO, a “preferential right . . . to renew for successive periods of 10 years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.” Id. The 2004 Renewals attached the original 1966 Leases and included the same two special stipulations included in the 1989 Renewals. Id. § 14. On October 16, 2012, Beaver Bay, Inc., the successor of American Copper and Nickel Company, and Franconia Minerals (US) LLC, Beaver Bay’s joint venture partner, jointly 4 CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 11 of 26 submitted an application for a third renewal of the leases. Am. Compl. Ex. 9, ECF No. 72-9; Am. Compl. ¶¶ 84-86. After receiving the application, BLM asked the Solicitor of the Department of the Interior for guidance as to “whether it has the discretion to grant or deny” the pending application for renewal of the two leases. Am. Compl. Ex. 4, ECF No. 72-4 at 1. On March 8, 2016, Solicitor Hilary C. Tompkins issued a Memorandum Opinion, M37036, concluding that “Twin Metals Minnesota does not have a non-discretionary right to renewal, but rather the BLM has discretion to grant or deny the pending renewal application.” Id. The Solicitor found that the terms of the 2004 Renewals, rather than those of the original 1966 Leases, controlled. Id. at 5-6. Because the 2004 Renewals provide a “preferential right of renewal,” the Solicitor found that the lessee was not entitled to renewal of the leases but, rather, had a “legal right to be preferred against other parties, should the Secretary, in the exercise of his discretion, decide to continue leasing.” Id. at 5 (quoting Gen. Chem. (Soda Ash) Partners, 176 IBLA 1, 3 (2008)). Nonetheless, the Solicitor went on to consider the terms of the original 1966 Leases, as urged by Plaintiffs’ counsel in a January 26, 2016 memorandum to the Department. Id. at 6 & n.12. The Solicitor analyzed the language of Section 5 of the original 1966 Leases and found it to mean that “even if the Secretary can and does, as a matter of discretion, renew the lease to extend the time to commence production, there is no right to a further renewal when production has not begun at the end of the first renewal-extension period.” Id. at 8-9. For that reason, the Solicitor concluded that “the lessee has not established a non-discretionary right to a third ten-year renewal” and “BLM has the same discretion regarding whether to renew the lease for a third time as it had in determining whether to grant the initial lease.” Id. at 13. On June 6, 2016, BLM issued a letter to the Forest Service requesting, in writing, a decision on whether the agency consents or does not consent to renewal of the leases. Am. 5 CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 12 of 26 Compl. ¶ 94. In response, the Forest Service analyzed its statutory authority and concluded that it had absolute discretion to grant or withhold consent for the issuance of the leases on reserved public domain lands, which constitute approximately ninety percent of the combined area of the leases. See Notice, Ex. A at 8, ECF No. 53 (citing 16 U.S.C. § 508b)). The Forest Service withheld its consent, concluding that “there is no reason to believe that TMM’s mineral development exclusively could be confined to the acquired lands,” which constituted less than ten percent of the leases. Id. On December 15, 2016, BLM rejected Plaintiffs’ application to renew the leases on the grounds that the Forest Service refused to provide consent. Plaintiffs amended their complaint to reflect the BLM’s final decision not to renew the leases and the Forest Service’s decision withholding consent. Plaintiffs dispute the Solicitor’s conclusions, contending that the terms of the 1966 Leases control and that Section 5 of the 1966 Leases provides them with a non-discretionary (i.e., automatic) right of renewal into perpetuity. Am. Compl. ¶¶ 2-4, 110-112. In Count I, Plaintiffs ask this Court to quiet title to the leases, as Plaintiffs interpret them, under the QTA. Id. Count II alleges that BLM’s denial of the lease renewals is contrary to law because it “disregards the renewal right in section 1, alters the language of section 5, and misconstrues the contractual and regulatory term ‘preference right lease.’” Id. ¶ 118. Count III alleges that the BLM gave “an erroneous construction to the negotiated terms of the Leases,” and thus acted arbitrarily and capriciously in refusing to renew the leases. Id. ¶¶ 120-122. Finally, Count IV attacks the Forest Service’s decision to withhold consent for renewal of the leases, claiming the Forest Service “deprive[d] plaintiffs of their longstanding mineral rights.” Id. ¶ 127. III. STANDARD OF REVIEW “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 6 CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 13 of 26 375, 377 (1994). When considering a motion under Federal Rule of Civil Procedure 12(b)(1), the burden of establishing the court’s subject-matter jurisdiction resides with the party seeking to invoke it, and that party must establish jurisdiction by a preponderance of the evidence. McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936). If the Court, at any time, determines that it lacks subject-matter jurisdiction, the case should be dismissed. Fed. R. Civ. P. 12(h)(3). “In order to properly dismiss an action under Rule 12(b)(1), the challenging party must successfully attack the Complaint, either upon its face or upon the factual truthfulness of its averments.” Moubry ex rel. Moubry v. Indep. Sch. Dist. No. 696, 951 F. Supp. 867, 882 (D. Minn. 1996). This motion presents a facial attack on the sufficiency of the Amended Complaint’s allegations as to the Court’s subject-matter jurisdiction. As such, the factual allegations advanced in the Amended Complaint are assumed to be true for purposes of this motion. Carlson Holdings, Inc. v. NAFCO Ins. Co., 205 F. Supp. 2d 1069, 1073 (D. Minn. 2001). This motion also moves to dismiss claims under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. See Target Training Int’l., Ltd. v. Lee, 1 F. Supp. 3d 927, 937 (N.D. Iowa 2014) (dismissal pursuant to Rule 12(b)(6) is appropriate where there is a “lack of a cognizable legal theory for judicial review of an agency action ‘committed to agency discretion by law’” (quoting 5 U.S.C. § 701(a)(2)). When considering a Rule 12(b)(6) motion, the Court may consider documents that are “undisputed” and are “embraced” by the Amended Complaint. Id. at 938 (quoting Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012)). Here, the Amended Complaint references the Letter from Thomas L. Tidwell, Chief, U.S. Forest Service, 7 CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 14 of 26 to Neil Kornze, Director, BLM (Dec. 14, 2016), Am. Compl. ¶ 101, which is also in the docket. See ECF No. 53. IV. ARGUMENT A. This Contract Action May Only be Brought under the Tucker Act in the Court of Federal Claims. The Tucker Act vests exclusive subject matter jurisdiction over contract actions against the federal government in excess of $10,000 in the Court of Federal Claims. 28 U.S.C. §§ 1346, 1491; V S Ltd. P’ship v. Dep’t of Hous. & Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000) (citing Mullally v. United States, 95 F.3d 12, 14 (8th Cir. 1996)). Consistent with this exclusive grant of jurisdiction, the QTA expressly excludes claims “which may be or could have been brought under . . . [the Tucker Act] . . . .” 28 U.S.C. § 2409a(a). Likewise, courts have interpreted the Tucker Act to “‘impliedly forbid[ ]’ contract claims against the Government from being brought in district court under the waiver in the APA.” Perry Capital LLC v. Mnuchin, 848 F.3d 1072, 1099 (D.C. Cir. 2017) (quoting Albrecht v. Comm. on Emp. Benefits, 357 F.3d 62, 67–68 (D.C. Cir. 2004)); Robbins v. U.S. Bureau of Land Mgmt., 438 F.3d 1074, 1082 (10th Cir. 2006); Up State Fed. Credit Union v. Walker, 198 F.3d 372, 375 (2d Cir. 1999) (per curiam) (quoting Presidential Gardens Assocs. v. United States, 175 F.3d 32, 143 (2d Cir. 1999)); SeaLand Serv., Inc. v. Brown, 600 F.2d 429, 432–33 (3d Cir. 1979); Tucson Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 646 (9th Cir. 1998). Though the Eighth Circuit has yet to weigh in on this point, the House Report on the 1976 APA Amendments clearly demonstrates that Congress intended for the Tucker Act to impliedly forbid relief for contract claims under § 702 of the APA: [I]n the [Tucker Act], Congress created a damage remedy for contract claims with jurisdiction limited to the Court of [Federal] Claims except in suits for less than $10,000. The measure is intended to foreclose specific performance of government contracts. . . . [T]he Tucker Act, ‘impliedly forbids’ relief [for contract claims] other than the remedy 8 CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 15 of 26 provided by the Act. Thus, the partial abolition of sovereign immunity brought about by this bill does not change existing limitations on specific relief, if any, derived from statutes dealing with such matters as government contracts . . . . H.R. REP. NO. 94-1656, at 12-13, reprinted in 1976 U.S.C.C.A.N. 6121, 6133 (emphasis added). Plaintiffs’ APA and QTA claims must therefore be dismissed by this Court for lack of subject matter jurisdiction if they could have been brought under the Tucker Act in the Court of Federal Claims. The D.C. Circuit has articulated a two-part test for determining when a plaintiff’s claims are essentially contractual such that jurisdiction lies solely in the Court of Federal Claims: “The classification of a particular action as one which is or is not ‘at its essence’ a contract action depends both on the source of the rights upon which the plaintiff bases its claims, and upon the type of relief sought (or appropriate).” Megapulse, Inc. v. Lewis, 672 F.2d 959, 968 (D.C. Cir. 1982).1 Under this rights and remedies test, all four counts in the Amended Complaint are clearly contractual. The source of the rights upon which the claims are based derive solely from lease agreements with the BLM. The type of relief sought, specific performance requiring renewal of the lease, is also contractual. Accordingly, exclusive jurisdiction lies in the Court of Federal Claims under the Tucker Act, requiring dismissal of Plaintiffs’ case for lack of subject matter jurisdiction. 1 This “rights and remedies” test is applied in most circuit courts, and has been applied by district courts in the Eighth Circuit, to determine whether an action sounds in contract. Normandy Apartments, Ltd. v. U.S. Dep't of Hous. & Urban Dev., 554 F.3d 1290, 1299 (10th Cir. 2009); Evers v. Astrue, 536 F.3d 651, 658 (7th Cir. 2008); B & B Trucking, Inc. v. U.S. Postal Serv., 406 F.3d 766, 768 (6th Cir. 2005); Friedman v. United States, 391 F.3d 1313, 1315 (11th Cir. 2004) (per curiam); Up State Fed. Credit Union v. Walker, 198 F.3d 372, 376 (2d Cir. 1999); N. Star Alaska v. United States, 14 F.3d 36, 37 (9th Cir. 1994); United Fed. Leasing, Inc. v. United States, 33 F. App'x 672, 674 (4th Cir. 2002) (per curiam); see also Dohse v. Potter, No. 8:04CV355, 2006 WL 379901, at *3 (D. Neb. Feb. 15, 2006); Ahern Fire Prot. v. U.S. Postal Serv., No. 4:03–CV–40691, 2004 WL 1737388 at *3 (S.D. Iowa July 15, 2004). 9 CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 16 of 26 1. Plaintiffs Fail Megapulse’s First Requirement Because their Asserted Right to Renewal is Contractual. The first step of the Megapulse test is to determine the source of the claimed legal right. 672 F.2d at 968. Applying this analysis, the Fourth Circuit determined that an action by the United States to recover four helicopter transmissions from a salvage company, although presented as a tort case (a conversion and replevin action), was “essentially one of contract” that could not be brought in federal district court. United States v. J & E Salvage Co., 55 F.3d 985, 988 (4th Cir. 1995). The action rested on a “specific contract” – a bill of sale – and the “merits question presented [was] one of contract interpretation,” i.e., did the bill of sale transfer ownership of the helicopter transmissions to the defendant salvage company? Id. Because it was “possible to conceive of this dispute as entirely contained within the terms of the contract,” the court held that the case belonged in the Court of Federal Claims, not the district court. Id. (quoting Ingersoll–Rand Co. v. United States, 780 F.2d 74, 78 (D.C. Cir. 1985)).2 So too here, this is essentially a contract action that turns on the terms of the lease agreements between the United States and Plaintiffs’ predecessors. All four counts rest on a specific contract – the lease agreements between Plaintiffs’ predecessors and the United States3 – and the merits question is purely a question of contract interpretation, i.e., do the leases grant Plaintiffs an automatic right to renewal? Plaintiffs allege that their right to renewal was “memorialized in two leases for hardrock minerals (copper, nickel, and platinum-group metals) that were executed with the United States in 1966: MNES-01352 and MNES-0153.” Am. 2 This claim was preempted by the Contract Disputes Act (CDA) which, like the Tucker Act, applies only to express or implied contracts with the government. Compare 41 U.S.C. § 7102(a) with 28 U.S.C. § 1491. 3 It cannot be disputed that these lease agreements are contracts. See Griffin & Griffin Expl., LLC v. United States, 116 Fed. Cl. 163, 171 (2014) (“A lease, of course, is a contract.” (citing Prudential Ins. Co. v. United States, 801 F.2d 1295, 1296 (Fed. Cir. 1986)). 10 CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 17 of 26 Compl. ¶ 2. Plaintiffs attached both 1966 Leases to the Amended Complaint, ECF No. 72-1, and point exclusively to Section 1 of the leases as allegedly granting them a “non-discretionary right to renew the Leases.” Am. Compl. ¶ 65; see also id. ¶ 121 (“The leases unambiguously vest plaintiffs with a non-discretionary right to renew . . . .”). This alleged contractual right serves as the “renewable leasehold interest” supporting Plaintiffs’ QTA claim, id. ¶ 113 (Count I); the purported reason why the BLM’s refusal to renew the leases should be set aside under the APA as arbitrary and capricious under Count II, id. ¶ 118 (“BLM’s lease denial[s] . . . are contrary to law because they deny plaintiffs the renewable leases to which they are entitled under federal law”), and Count III, id. ¶ 121 (“The Leases unambiguously vest plaintiffs with a nondiscretionary right to renew . . . .”); and an alleged basis for why the Forest Service’s refusal to grant consent exceeded its authority under Count IV, id. ¶ 127 (“The Forest Service’s denial . . . deprive[s] plaintiffs of their long-established mineral rights.”). Hence, just as in J & E Salvage Co., it is “possible to conceive of this dispute as entirely contained within the terms of the contract.” 55 F.3d at 988 (citations omitted). Plaintiffs cannot disguise the contractual basis for their claims by citing the statutory and regulatory regime governing mineral leasing on the Superior National Forest. The dispositive question is “whether a claim seeks to enforce contract rights through contract remedies (such as damages for breach and specific performance of obligations) or to enforce legal rights based on independent, non-contractual sources through non-contractual remedies (such as mandamus and injunctive relief).” McKay v. United States, 516 F.3d 848, 851 (10th Cir. 2008). Plaintiffs summarize the General Mining Law of 1872, the Mineral Leasing Act of 1920, the Mineral Leasing Act for Acquired Lands of 1947, Reorganization Plan No. 3 § 402, 16 U.S.C. § 508b, and various BLM regulations on mineral leasing. Am. Compl. ¶¶ 30-57. Setting aside the fact 11 CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 18 of 26 that some of these laws are inapplicable to the leases at issue here,4 none of these laws provides an “independent, non-contractual” source for Plaintiffs’ claims. McKay, 516 F.3d at 851. For example, Plaintiffs characterize the BLM’s 1966 regulations for issuing mineral leases, claiming that 43 C.F.R. § 3221.4 entitles a permittee to a “non-discretionary right of renewal.” Id. ¶ 56. But this regulation does not provide Plaintiffs with an independent basis for relief. The regulation was cited in Section 1 of the 1966 Leases, which provides that the leases may be renewed “in accordance with the regulation 43 C.F.R. § 3221.4(f) and the provisions of this lease.” Am. Compl. ¶ 65. The regulation thus provides context for interpreting the leases, but that does not diminish the fact that Plaintiffs’ claims are based in contract. See Del-Rio Drilling Programs, Inc. v. United States, 146 F.3d 1358, 1367 (Fed. Cir. 1998) (“It is often necessary to interpret or apply statutory or common law principles in order to resolve contract claims, but the fact that the resolution of a contract claim may turn on the interpretation of a statute does not deprive the Court of Federal Claims of jurisdiction over that claim.”). To the contrary, Plaintiffs’ reliance on 43 C.F.R. § 3221.4(f) to interpret the leases confirms that this dispute must be brought in the Court of Federal Claims. See Up State Fed. Credit Union, 198 F.3d at 377 (“Because the adjudication of this dispute requires an interpretation of the expired land lease, we conclude that the source of the right at issue here is the contract between the parties rather than Army Regulation [].”). 4 For example, the Amended Complaint attempts to graft concepts of the General Mining Law onto the leases at issue in this case to create the impression Plaintiffs were entitled to renewal. Am. Compl. ¶ 40. There is no support for this proposition, and Plaintiffs even concede that “[t]he acquisition of federal hardrock minerals by private parties in the Superior National Forest is not governed by the General Mining Law . . . .” Id. (emphasis added); see also 43 C.F.R. § 3501.1(b)(1), (3). 12 CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 19 of 26 2. Plaintiffs Also Fail to Satisfy the Second Requirement of Megapulse Because the Remedy They Seek is Contractual. The second step of the Megapulse test focuses on both the nature of the relief available and the type of relief sought for the claim asserted. See 672 F.2d at 968. Here, Plaintiffs claim that they have invested $400 million in the leases and that $40 billion of mineral value are at stake in this dispute. Am. Compl. ¶¶ 6-7. Money damages, if any, are available only under the Tucker Act, which “vests exclusive jurisdiction over all contract actions exceeding $10,000 against the United States in the Court of Federal Claims, and then limits the remedies available in that court.” V S Ltd. P’ship, 235 F.3d at 1112. To the extent that Plaintiffs have a valid claim, the Court of Federal Claims is the sole forum in which they can seek relief. Plaintiffs cannot circumvent the limitations of the Tucker Act by foregoing monetary relief in this case and seeking specific performance of the leases instead. In McKay, the court was unable to find “any contract case holding that the Tucker Act may be avoided and the § 2409a(a) exclusion [of the QTA] defeated by forgoing the damages remedy the [Tucker] Act permits and seeking equitable relief it prohibits.” 516 F.3d at 851. Rather, the Tucker Act’s limitation “preserves the sovereign’s immunity from being compelled to perform obligations it prefers to breach and compensate financially[;]” the court thus precluded plaintiffs from “artfully” seeking equitable relief for what are “‘in essence’ claims for breach of contract . . . .” Id. That principle applies here: while Plaintiffs may style this case as a demand for equitable relief, i.e., renewal of the lease applications, Am Compl. Prayer for Relief ¶ B, the thrust of their claims is for breach of contract, for which Congress has limited them to recovering money damages under the Tucker Act. In any event, the relief expressly sought by Plaintiffs – a declaration and order from the Court directing BLM to renew the lease applications with the consent of the Forest Service, 13 CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 20 of 26 Prayer for Relief ¶¶ A, B – is contractual in nature. The effect of such an order would be to reinstate the currently expired leases, a form of specific performance. Up State Fed. Credit Union, 198 F.3d at 377 (finding that “an order directing the Army to enter into a facility lease, as requested by the Credit Union, would be analogous to a contractual remedy for specific performance because it would enforce an alleged agreement between the parties.”); IngersollRand, 780 F.2d at 79–80 (request that the court reinstate the original contract “is a request for specific performance of the original contract.”). Thus, no matter how Plaintiffs style their case, their demand for relief is contractual, confirming that the case must be brought under the Tucker Act in the Court of Federal Claims. In sum, all four counts are in essence breach of contract claims; thus, exclusive jurisdiction lies in the Court of Federal Claims under the Tucker Act. Plaintiffs cannot create jurisdiction in this Court by artfully pleading breach of contract claims under the QTA or APA. McKay, 516 F.3d at 853 (“[T]hat claim is in essence one for breach of contract and, as such, cannot be brought under the QTA”); Up State Fed. Credit Union, 198 F.3d at 377 (holding that Tucker Act provided sole basis for waiver of sovereign immunity for a contract dispute and dismissing plaintiffs’ “attempts to characterize this action as an APA challenge rather than a contract dispute”). Their case must be dismissed for lack of subject matter jurisdiction. B. Plaintiffs Cannot Invoke this Court’s Jurisdiction under the QTA. The Court must dismiss Count I for the additional reason that the Amended Complaint does not establish a cognizable property interest under the QTA. The Quiet Title Act waives sovereign immunity and provides jurisdiction in the district courts over a cause of action “to adjudicate a disputed title to real property in which the United States claims an interest . . . .” 28 U.S.C. § 2409a(a); see also 28 U.S.C. § 1346(f). As a waiver of sovereign immunity, the QTA’s 14 CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 21 of 26 provisions must be strictly construed in favor of the United States. United States v. Sherwood, 312 U.S. 584, 586 (1941). The QTA is not a broad authorization to sue the government on any claim somehow relating to property; “a QTA complaint must assert some cognizable ‘right, title, or interest . . . in . . . real property.’” McKay, 516 F.3d at 850 (quoting 28 U.S.C. § 2409a(d)). The plain words of the statute extend only to disputes over title to real property. See Cadorette v. United States, 988 F.2d 215, 223 (1st Cir. 1993) (“The words of the statute, taken literally, permit adjudications [under the Quiet Title Act] only when the title or ownership of real property is in doubt.”); McMaster v. United States, 177 F.3d 936, 942 (11th Cir. 1999) (finding no QTA jurisdiction where parties disputed the terms of a no-camping promise and a no-hunting restrictive covenant, but not the fact that the Government held title to the land in question); Dunbar Corp. v. Lindsey, 905 F.2d 754, 759 (4th Cir.1990) (“Under the QTA, this court has equated the requirement of a disputed title with disputed ownership.”). Here, Plaintiffs have failed to identify a cognizable property interest within the meaning of the QTA. They do not dispute that the United States is the fee owner of the federal minerals under the leases. Am. Compl. ¶109. Instead, Plaintiffs claim that they have a “renewable leasehold interest in the relevant mineral estate.” Id. ¶ 111. There is, however, no support for the proposition that such “a renewable leasehold interest” establishes a cognizable interest under the QTA absent a dispute over the title of the land at issue. Even if such authority did exist, and even if such an interest were cognizable under the QTA, Plaintiffs’ claim rests on their interpretation of the 1966 Leases, as discussed above and set forth in the Amended Complaint. This “dispute over an alleged breach of contract hardly casts doubt on the title or ownership of the property.” Ginsberg v. United States, 707 F.2d 91, 93 (4th Cir. 1983) (holding that district 15 CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 22 of 26 court did not have jurisdiction under QTA to adjudicate claim for possession by landlord against United States as lessee); see also Landow v. Carmen, 555 F. Supp. 195, 196–97 (D. Md. 1983) (“[W]here, as here, the only dispute between the parties concerns the terms of a lease agreement which does not call into question the ownership of real property, there is no jurisdiction under the Quiet Title Act.”). Plaintiffs have thus failed to state a claim within the meaning of the QTA and Count I of the Amended Complaint must be dismissed for this additional reason. C. The Forest Service’s Decision to Withhold Consent Is Not Reviewable Under the APA. There are two additional reasons for dismissing Count IV against the Forest Service. First, Plaintiffs have an adequate remedy at law in the Court of Federal Claims – namely a contract action under the Tucker Act; therefore, they cannot bring a claim against the Forest Service under the APA, 5 U.S.C. § 704. Second, there is no standard by which to judge the Forest Service’s decision to withhold consent under 16 U.S.C. § 508b, which grants the Secretary of Agriculture unbridled discretion to grant or deny “consent.” The decision is “committed to agency discretion by law,” which precludes judicial review under the APA. 5 U.S.C. § 701(a)(2). 1. Plaintiffs Have an Adequate Remedy at Law in the Court of Federal Claims, Precluding Their APA Claim. The APA limits judicial review to “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court . . . .” 5 U.S.C. § 704. Where a plaintiff has a remedy in contract in the Court of Federal Claims to vindicate its alleged rights against the federal government, the plaintiffs cannot use the APA to force separate review of the federal government’s actions. See Christopher Vill., L.P. v. United States, 360 F.3d 1319, 1327 (Fed. Cir. 2004) (“[A] litigant’s ability to sue the government for money damages in the Court of Federal Claims is an ‘adequate remedy’ that precludes an APA waiver 16 CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 23 of 26 of sovereign immunity in other courts.” (quoting Consol. Edison Co. of New York, Inc. v. U.S. Dep’t of Energy, 247 F.3d 1378, 1384 (Fed. Cir. 2001)). Here, Plaintiffs claim that the Forest Service exceeded its authority or unreasonably withheld its consent to renewal of the leases, resulting in a breach of Plaintiffs’ claimed right to automatic renewal. Plaintiffs can adjudicate these contractual rights in the Court of Federal Claims, as explained above. If the Forest Service failed to act consistent with Plaintiffs’ rights under the leases, relief available under the Tucker Act would constitute an “adequate remedy,” precluding review under the APA. Suburban Mortg. Assocs., Inc. v. U.S. Dep’t of Hous. & Urban Dev., 480 F.3d 1116, 1128 (Fed. Cir. 2007) (“Because an adequate remedy is available under the Tucker Act in the Court of Federal Claims, this case cannot proceed in the district court under the APA.”). Plaintiffs cannot therefore use the APA to attack the Forest Service’s non-consent decision in this Court. See Cty. of Suffolk, N.Y., v. United States, 19 Cl. Ct. 295, 299 (1990) (“But the APA applies only with respect to ‘final agency action for which there is no other adequate remedy in a court.’ 5 U.S.C. § 704. For the reasons explained above, since plaintiff can attack the EPA’s decision in this court in a breach of contract action under the Tucker Act (28 U.S.C. § 1491), there is an ‘adequate remedy at law’ and pursuant to its terms, the APA would not apply.”) (footnote omitted). In sum, Plaintiffs have an adequate remedy for their potential alleged injuries by the Forest Service’s actions. Accordingly, dismissal of any APA claim against the Defendants premised on the Forest Service’s decision to withhold consent is proper. 2. The Forest Service’s Decision is Committed to Agency Discretion by Law. Subsection 701(a)(2) of the APA excludes from judicial review agency actions “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). “This narrow exception to the presumption of judicial review of agency action under the APA applies ‘if the statute is drawn so 17 CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 24 of 26 that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.”’ Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1082 (9th Cir. 2014) (quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985); citing Webster v. Doe, 486 U.S. 592, 599 (1988)). In Drakes Bay, the Ninth Circuit found that the Secretary of the Interior’s decision not to issue a special use permit was afforded complete discretion under the relevant statute, and thus the court could only review “whether the Secretary followed whatever legal restrictions applied to his decision-making process,” and that the statute did not provide any such restrictions. See id. at 1082–85; see also Forsyth Cty. v. U.S. Army Corps of Eng’rs, 633 F.3d 1032, 1042 (11th Cir. 2011) (finding “no ‘law to apply’ and no ‘meaningful standard against which to judge’” agency’s weighing of preferences in granting lease). Here, there is no law for the Court to apply in determining whether the Forest Service’s non-consent decision was arbitrary and capricious. 16 U.S.C. § 508b allows the Secretary of the Interior to permit mineral development on National Forest System lands reserved from the public domain in Minnesota only “with the consent of the Secretary of Agriculture.” Nothing in the statute qualifies, restricts, or guides the Secretary of Agriculture’s unbridled discretion to grant or deny “consent.” Nor does the legislative history provide a meaningful standard for reviewing the Forest Service’s basis for granting or withholding consent. See S. Rep. No. 81-1778 (1950), reprinted in 1950 U.S.C.C.A.N. 2662; H.R. REP. NO. 81-795 (1949). Finally, there are no regulations implementing 16 U.S.C. § 508b that would provide any “law to apply.” See Kenney v. Glickman, 96 F.3d 1118, 1124 (8th Cir. 1996) (finding law to apply in regulations by the agency interpreting the underlying statute). Consequently, there are no meaningful standards that would guide the Court in determining whether the Forest Service’s non-consent decision in this case was arbitrary and capricious. See Drakes Bay, 747 F.3d at 1088 (“As Section 124 18 CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 25 of 26 affords no basis for us to review the substance of the Secretary’s decision, we have no measuring stick against which to judge Drakes Bay’s various claims that the Secretary’s policy determination was mistaken.”). Plaintiffs claim that the Forest Service violated its internal policy manual that describes the procedures the agency should follow for wilderness management. Am. Compl. ¶ 129 (citing Forest Service Manual § 2320.3.5). But agency policy documents do not have the force of law. See Christensen v. Harris Cty., 529 U.S. 576 587 (2000) (noting that “policy statements, agency manuals, and enforcement guidelines” all “lack the force of law”); W. Radio Servs. Co. v. Espy, 79 F.3d 896, 901 (9th Cir. 1996) (holding that the Forest Service “Manual and Handbook do not have the independent force and effect of law”). And even if agency policy documents did have the force of law, the referenced provision of the Forest Service Manual is from the policy section for wilderness management generally5 and was not enacted as part of a statutory scheme under 16 U.S.C. § 508b. Equally misplaced is Plaintiffs’ reliance on the Land and Resource Management Plan for the Superior National Forest (“Forest Plan”), which they claim establishes mineral development as a “desired condition.” Am. Compl. ¶ 129. The Forest Plan does not, however, “authorize projects or activities or commit the Forest Service to take action.” 36 C.F.R. § 219.2(b)(2). As the Supreme Court explained in Ohio Forestry Association v. Sierra Club, 523 U.S. 726, 733 (1998), forest plans “do not command anyone to do anything or to refrain from doing anything; . . . they create no legal rights or obligations.” Plaintiffs have thus failed to identify any law governing the Forest Service’s decision to withhold consent for mineral development on the 5 The cited provision of the Forest Service Manual, FSM § 2320.3.5, sets forth a policy statement for wilderness management. 19 CASE 0:16-cv-03042-SRN-LIB Document 92 Filed 06/05/17 Page 26 of 26 National Forest System lands reserved from the public domain underlying the leases. The Forest Service’s decision not to renew the leases was committed to agency discretion, see Notice, Ex. A at 8, ECF No. 53; thus, Plaintiffs’ claim must be dismissed as it is not actionable under the APA. V. CONCLUSION This Court lacks jurisdiction to entertain this contract action, which must be brought under the Tucker Act in the Court of Federal Claims. In addition, Plaintiffs have failed to identify a property interest that is cognizable under the QTA and are precluded by the APA from attacking the Forest Service’s non-consent decision. Respectfully submitted this 5th day of June, 2017, JEFFREY H. WOOD Acting Assistant Attorney General /s/ Stuart C. Gillespie MARISSA A. PIROPATO (MA 651630) CLARE BORONOW (Admitted to MD bar) SEAN C. DUFFY (NY 4103131) STUART GILLESPIE (CO 42861) United States Department of Justice Environment & Natural Resources Division 601 D Street NW Washington, DC 20004 Tel: (202) 305-0470 (Piropato) (303) 844-1362 (Boronow) (202) 305-0445 (Duffy) (303) 844-1382 (Gillespie) E-mail: Marissa.Piropato@usdoj.gov Clare.Boronow@usdoj.gov Sean.C.Duffy@usdoj.gov Stuart.Gillespie@usdoj.gov Attorneys for Defendants 20 CASE 0:16-cv-03042-SRN-LIB Document 92-1 Filed 06/05/17 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA ) ) ) ) ) CIVIL NO. 16-3042 SRN/LIB ) ) ) CERTIFICATE OF COMPLIANCE ) WITH LOCAL RULE 7.1 ) ) ) ) ) ) ) ) ) ) FRANCONIA MINERALS (US) LLC and TWIN METALS MINNESOTA LLC, Plaintiffs, v. UNITED STATES OF AMERICA, et al., Defendants, and NORTHEASTERN MINNESOTANS FOR WILDERNESS, Defendant-Intervenor. I hereby certify that the Memorandum of Law in Support of Defendants’ Motion to Dismiss Supplemental and Amended Complaint conforms to the requirements of Local Rule 7.1 for a brief produced using a proportional font. The length of the brief is 6,638 words and it was prepared in 13-point Times New Roman font. This brief was prepared using Microsoft Word 2013, and the program’s word-count function was applied to all text, including headings, footnotes, and quotations. Respectfully submitted this 5th day of June, 2017. JEFFREY H. WOOD Acting Assistant Attorney General /s/ Stuart C. Gillespie MARISSA A. PIROPATO (MA 651630) CLARE BORONOW (Admitted to MD bar) SEAN C. DUFFY (NY 4103131) STUART GILLESPIE (CO 42861) 1 CASE 0:16-cv-03042-SRN-LIB Document 92-1 Filed 06/05/17 Page 2 of 2 United States Department of Justice Environment & Natural Resources Division 601 D Street NW Washington, DC 20004 Tel: (202) 305-0470 (Piropato) (303) 844-1362 (Boronow) (202) 305-0445 (Duffy) (303) 844-1382 (Gillespie) E-mail: Marissa.Piropato@usdoj.gov Clare.Boronow@usdoj.gov Sean.C.Duffy@usdoj.gov Stuart.Gillespie@usdoj.gov Attorneys for Defendants  2 CASE 0:16-cv-03042-SRN-LIB Document 90 Filed 06/05/17 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) FRANCONIA MINERALS (US) LLC and TWIN METALS MINNESOTA LLC, Plaintiffs, v. UNITED STATES OF AMERICA, et al., Defendants, and NORTHEASTERN MINNESOTANS FOR WILDERNESS, Defendant-Intervenor. CIVIL NO. 16-3042 SRN/LIB DEFENDANTS’ MOTION TO DISMISS SUPPLEMENTAL AND AMENDED COMPLAINT Federal Defendants hereby move this Court to dismiss Plaintiffs’ Supplemental and Amended Complaint (ECF No. 72) pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). This Court lacks jurisdiction over Plaintiffs’ claims because a contract dispute does not provide a cognizable cause of action under the Quiet Title Act or the Administrative Procedure Act (“APA”). The case must be brought in the Court of Federal Claims under the Tucker Act, precluding jurisdiction in this Court. In addition, this Court lacks jurisdiction over Count I because Plaintiffs have failed to identify an interest in real property that is cognizable under the Quiet Title Act. The Court must also dismiss Count IV because Plaintiffs have an adequate alternative remedy at law and fail to state a claim against the United States Forest Service for which relief can be granted. 1 CASE 0:16-cv-03042-SRN-LIB Document 90 Filed 06/05/17 Page 2 of 2 This Motion is supported with a Memorandum of Law filed herewith. Respectfully submitted this 5th day of June, 2017. JEFFREY H. WOOD Acting Assistant Attorney General /s/ Stuart C. Gillespie MARISSA A. PIROPATO (MA 651630) CLARE BORONOW (Admitted to MD bar) SEAN C. DUFFY (NY 4103131) STUART GILLESPIE (CO 42861) United States Department of Justice Environment & Natural Resources Division 601 D Street NW Washington, DC 20004 Tel: (202) 305-0470 (Piropato) (303) 844-1362 (Boronow) (202) 305-0445 (Duffy) (303) 844-1382 (Gillespie) E-mail: Marissa.Piropato@usdoj.gov Clare.Boronow@usdoj.gov Sean.C.Duffy@usdoj.gov Stuart.Gillespie@usdoj.gov Attorneys for Defendants  2 CASE Document 86 Filed 06/05/17 Page 1 of 35 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA FRANCONIA MINERALS (US) LLC and TWIN METALS MINNESOTA LLC, Plaintiffs, V. Case No. UNITED STATES OF AMERICA, et al. Defendants, and NORTHEASTERN MINNESOTANS FOR WILDERNESS Defendant-Intervenor dc-883873 CASE Document 86 Filed 06/05/17 Page 2 of 35 TABLE OF CONTENTS Page MEMORANDUM IN SUPPORT OF INTERVENOR-DEFENDANT NORTHEASTERN MINNESOTANS FOR MOTION TO DISMISS I. FACTUAL BACKGROUND AUTHORITY AND ARGUMENT ..5 II. STANDARD OF REVIEW ..5 PLAINTIFF QUIET TITLE ACT CAUSE OF ACTION SHOULD BE DISMISSED BECAUSE THE QUIET TITLE ACT DOES NOT PROVIDE FOR JURISDICTION WHERE TITLE IS NOT IN DISPUTE ..6 IV. REVIEW IS UNAVAILABLE UNDER THE APA ..8 A. The Court Lacks Jurisdiction over Plaintiffs? APA Claims Because They Are Founded on Contract ..9 B. Plaintiffs? APA Claims Also Are Foreclosed Due to the Existence of Adequate Alternative Remedies ..12 V. THE COURT SHOULD DISMISS COUNT II BECAUSE PLAINTIFF HAVE FAILED TO IDENTIFY ANY STATUTE OR REGULATION THAT ENTITLES THEM TO A PERPETUAL RENEWABLE LEASEHOLD INTEREST ..13 A. Plaintiffs Have Not Identi?ed Any Statute or Regulation That Entities Them to the Requested Renewals ..l3 1. The Statutes Say Nothing About Renewal Rights ..14 2. The Regulations Do Not Grant Perpetual Renewal Rights ..15 B. Even if They Provided the Basis of an APA Claim, the Leases Themselves Do Not Grant an Inde?nite Right to Renew .. 18 l. The Applicable Renewal Clause is in the 2004 Renewal Leases, Not the 1966 Leases .. 18 2. Even Under the Renewal Clause of the 1966 Leases, There Is No Automatic and Indefinite Right to Renewal ..20 VI. THE COURT SHOULD DISMISS FOURTH COUNT AGAINST THE DEPARTMENT OF AGRICULTURE AND FOREST SERVICE UNDER RULE ..21 dc-883873 A. Plaintiffs Have Cited No Law or Regulation Constraining the Forest Service?s Discretion to Withhold Consent ..22 dc?883873 CASE Document 86 Filed 06/05/17 Page 3 of 35 TABLE OF CONTENTS Page MEMORANDUM IN SUPPORT OF INTERVENOR-DEFENDANT NORTHEASTERN MINNESOTANS FOR MOTION TO DISMISS ..1 I. FACTUAL BACKGROUND AUTHORITY AND ARGUMENT ..5 II. STANDARD OF REVIEW ..5 QUIET TITLE ACT CAUSE OF ACTION SHOULD BE DISMISSED BECAUSE THE QUIET TITLE ACT DOES NOT PROVIDE FOR JURISDICTION WHERE TITLE IS NOT IN DISPUTE ..6 IV. REVIEW IS UNAVAILABLE UNDER THE APA ..8 A. The Court Lacks Jurisdiction over Plaintiffs? APA Claims Because They Are Founded on Contract ..9 B. Plaintiffs? APA Claims Also Are Foreclosed Due to the Existence of Adequate Alternative Remedies ..12 V. THE COURT SHOULD DISMISS COUNT II BECAUSE PLAINTIFFS HAVE FAILED TO IDENTIFY ANY STATUTE OR REGULATION THAT ENTITLES THEM TO A PERPETUAL RENEWABLE LEASEHOLD INTEREST ..l3 A. Plaintiffs Have Not Identi?ed Any Statute or Regulation That Entitles Them to the Requested Renewals ..13 l. The Statutes Say Nothing About Renewal Rights .. l4 2. The Regulations Do Not Grant Perpetual Renewal Rights ..15 B. Even if They Provided the Basis of an APA Claim, the Leases Themselves Do Not Grant an Inde?nite Right to Renew ..18 1. The Applicable Renewal Clause is in the 2004 Renewal Leases, Not the 1966 Leases ..18 2. Even Under the Renewal Clause of the 1966 Leases, There Is No Automatic and Inde?nite Right to Renewal ..20 VI. THE COURT SHOULD DISMISS FOURTH COUNT AGAINST THE DEPARTMENT OF AGRICULTURE AND FOREST SERVICE UNDER RULE ..21 A. Plaintiffs Have Cited No Law or Regulation Constraining the Forest Service?s Discretion to Withhold Consent ..22 CASE Document 86 Filed 06/05/17 Page 4 of 35 TABLE OF CONTENTS (continued) Page B. Plaintiffs Have Not Explained?Why Environmental Impacts Are an Irrelevant Consideration ..24 C. The Forest Service Manual Is Not Judicially Enforceable ..24 CONCLUSION ..26 -11.. dc?883 873 CASE Document 86 Filed 06/05/17 Page 5 of 35 TABLE OF AUTHORITIES Page(s) Cases Albrecht v. Comm. on Employee Benefits of ed. Reserve Employee Bene?ts Sys., 357 F.3d 62 (DC. Cir. 2004) ..9 Ashcroft v. Iqbal, 556 US. 662 (2009) ..5 Barlow Haun, Inc. v. United States, 118 Fed. C1. 597 (2014) ..10 Brazos Elec. Power Co?op., Inc. v. United States, 144 F.3d 784 (Fed. Cir. 1998) .. 11 C. Sanchez and Son, Inc. v. United States, 6 F.3d 1539 (Fed. Cir. 1993) ..18 Cadorette v. United States, 988 F.2d 215 (lst Cir. 1993) ..7 Central Platte Natural Resources Distgriculture, 643 F.3d 1142 (8th Cir. 2011) ..12 Corp. v. Brown, 441 US. 281 (1979) ..25 City of Oakland v. 798 F.3d 1159 (9th Cir. 2015) ..12 Coast Fed. Bank, FSB v. United States, 323 F.3d 1035 (Fed. Cir. 2006) ..19 Del-Rio Drilling Programs, Inc. v. United States, 146 F.3d 1358 (Fed. Cir. 1998) ..11 Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073 (9th Cir. 2014) ..22 Dunbar Corp. v. Lindsey, 905 F.2d 754 (4th Cir. 1990) ..7, 8 411? dc-883873 CASE Document 86 Filed 06/05/17 Page 6 of 35 Fraternal Order of Police 12. Gates, 602 F.Supp.2d 104 (D.D.C. 2009) ..24 Ginsberg v. United States, I I 707 F.2d 91 (4th Cir. 1983) ..8 Gri?in Gri?in Exploration, LLC v. United States, 116 Fed. C1. 163 (2014) ..11 Heckler v. Chaney, 470 US. 821 (1985) ..21, 22 Int?l Eng. Co. v. Richardson, 512 F.2d 573 (DC. Cir. 1975) ..12 Kenney v. Glickman, 96 F.3d 1118 (8th Cir. 1996) ..22 Lane v. Pena, 518 US. 187 (1996) ..7 Lion Oil Co., Inc. v. osco Corp, 90 F.3d 268 (8th Cir.1996) ..5 Mann v. United States, 86 Fed. Cl. 649 (2009) ..11 McMaster v. United States, 177 F.3d 936 (11th Cir. 1999) ..7 Megapulse, Inc. v. Lewis, 672 F.2d 959 (DC. Cir. 1982) ..9 Miller v. Redwood Toxicology Lab, Inc., 688 F.3d 928 (8th Cir.2012) ..6 Motor Vehicle Mfrs. Ass ?n of US, Inc. v. State Farm Mut. Auto. Ins. Co., 463 US. 29 (1983) ..24 Ohio Forestry Assn, Inc. v. Sierra Club, 523 US. 726 (1998) ..25 Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654 (DC. Cir. 1975) ..12 dC-883873 CASE Document 86 Filed 06/05/17 Page 7 of 35 Osborn v. United States, 918 F.2d 724 (8th Cir. 1990) ..6 Parkhill v. Minn. Mut. Life Ins. Col, . 286 F.3d 1051 (8th Cir. 2002) ..5 Parnes v. Gateway 2000, Inc, 122 F.3d 539 (8th Cir.1997) ..5 Petra Mex, LLC v. United States, 122 Fed. C1. 536 (2015) ..10 Porcus Media COrp. v. ?Pall Corp, 186 F. 3d 1077 (8th Cir. 1999) ..6 Prudential Ins. Co. v. United States, 801 F.2d 1295 (Fed. Cir. 1986) ..10 Sharp v. Weinberger, 798 F.2d 1521 (DC. Cir. 1986) ..9 Shell Oil Co. v. United States, 751 F.3d 1282 (Fed. Cir. 2014) ..19 Smith v. Orr, 855 F.2d 1544 (Fed. Cir. 1988) ..9 Spectrum Leasing Corp. v. United States, 764 F.2d 891 (DC. Cir. 1985) .. 11 State of ND. ex rel. Bd. Of University and School Lands v. uetter, 914 F.2d 1031 (8th Cir. 1990) ..23 Stone Forest Industries v. United States, 973 F.2d 1548 (Fed.Cir. 1992) ..25 Suburban Mortg. Assocs., Inc. v. US. Dep ?t of Housing Urban Development, 480 F.3d 1116 (Fed. Cir. 2007) ..12 Titus v. Sullivan, . 4 F. 3d 590 (8th Cir. 1993) ..6 ransohio Savings Bank v. Director, Of?ce of Thrift Supervision, 967 F.2d 598 (DC. Cir. 1992) ..9 dc?883 873 CASE Document 86 Filed 06/05/17 Page 8 of 35 Underwood Livestock, Inc. v. United States, 89 Fed. C1. .287 (2009) 13 United Int ?1 Investigative Serv. v. United States, . A 109 F.3d 734 (Fed. Cir. 1997) ..19 VS Ltd. Partnership v. Dep ?t of Housing Urban Development, 235 F.3d 1109 (8th Cir. 2000) ..11 Western Radio Services Co. Inc. v. Espy, 79 F.3d 896 (9th Cir. 1996) ..25 Woodies Holdings, LLC v. United States, 120 Fed. C1. 113 (2015) ..10 Statutes 5 U.S.C. 702 ..9 701(a)(2) ..22 704 ..12 ..22 16 U.S.C. ?508b ..14, 16, 23 508b and 520 ..4 520 ..14 1604(1) ..25 28 U.S.C. 1346(a)(2) ..9 1346(f) ..6 1491 ..9 2409a(a) ..6, 7 30 U.S.C. 181 ..17 207(a) ..226(e) .. 17 262 .. 18 283 ..17 351 ..17 dc-883873 CASE Document 86 Filed 06/05/17 Page 9 of 35 Other Authorities 36 CPR. .L ?219.10(e) ..25 43 C.F.R. ?3221.4(1966) ..16 ?3221.4(f) ..2, 3, 20 3221.4(t) and 3225 (1966) ..18 3325.2 (1966) ..16 . (2.004) ..l6 . 3514.25 (2004) ..16 Federal Rules of Civil Procedure Rule l2(b)(l) ..6, 8, 21, 26 l2(b)(6) 5, 6, 26 60 Stat. 1099 No. 3, 402 (1946) ..14, 15 Mineral Leasing Act for Acquired Lands of 1947 .. l7 -Vii? dc?883873 CASE Document 86 Filed 06/05/17 Page 10 of 35 MEMORANDUM IN SUPPORT OF INTERVENOR-DEFENDANT NORTHEASTERN MINNESOTANS FOR MOTION TO DISMISS . The Court should dismiss the Amended Complaint of Franconia Minerals (US) LLC (?Franconia?) and Twin Metals Minnesota LLC under Federal Rules of Civil Procedure 12(b)(l) and Plaintiffs invoke this Court?s jurisdiction under the Quiet Title Act but that statute provides no jurisdiction for disputes over lease terms. Instead, it covers disputes over title to real-property, and Plaintiffs have alleged no such dispute here. Thus, this Court lacks jurisdiction over Count I of the Amended Complaint. The three counts Plaintiffs allege under the Administrative Procedure Act should also be dismissed. The APA provides no cause of action for Plaintiffs? lease claims because they can be asserted as claims for contract damages in the Court of Federal Claims. And none Of the statutes, regulations, or contractual provisions Plaintiffs invoke give them the remarkable bene?t they assert an automatic right to renew valuable mineral leases over and over again without any exercise Of discretion by the leases? counter-party: the United States. The Court should grant the motion to dismiss of Intervenor?Defendant Northeastern Minnesotans for Wilderness. I. FACTUAL BACKGROUND The United States, through the Bureau of Land Management issued two hardrock mineral leases, MNES 1352 and MNES 1353, on June 1, 1966 to the International Nickel Company, Inc. for certain lands located in the Superior National Forest south of the Boundary Waters Canoe Area Wilderness in the State Of dc-883 873 CASE Document 86 Filed 06/05/17 Page 11 of 35 Minnesota. Amended Complaint, Exhibit 1. The leases conveyed ?the exclusive right to mine, remove, and dispose of all the copper and/or nickel minerals and associated I minerals? within the leased areas. Id. The leases were valid for a ?period of twenty (20) years with a right in the Lessee to renew the same for successive periods of ten (10) years each in accordance with regulation 43 CPR. 3221 and the provisions of this lease.? Id. BLM renewed the leases twice, in 1989 and 2004. Id., Exhibits 2 and 3. The 1989 renewal leases were titled ?Renewal Preference Right Lease? and utilized standard lease form, Form 3520?7 (December 1984). Id., Exhibit 2. The renewal leases were effective ?for a period of ten years? and gave INCO a ?preferential right . . . to renew for successive periods of ten years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.? Id. The 1989 renewal leases attached the original 1966 leases and included two ?special stipulations? incorporating speci?c terms of the original leases. Id. The renewal terms of the original 1966 leases were not among the two ?special stipulations.? Id. The 2004 renewal leases were titled ?Preference Right Lease Renewal? and were on the same standard 1984 form. 1d,, Exhibit 3. Like the 1989 renewal leases, the 2004 renewal leases were good for 10 years and provided for a ?preferential right . . . to renew for successive periods of 10 years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.? Id. The 2004 renewal leases attached the original 1966 leases and included the 2 dc?883 873 CASE Document 86 Filed 06/05/17 Page 12 of 35 same two special stipulations included in the 1989 renewals. Id. Again, the renewal terms of the original 1966 leases werernot among the two ?"special stipulations.? Id. On October 16, 2012, Beaver Bay, Inc. and Franconia jointly submitted an application for a third renewal of the leases. Amended Complaint, Exhibit 9. BLM then asked the Solicitor of the Department of the Interior for guidance on ?whether it has the discretion to grant or deny? the application for renewal of the leases. On March 8, 2016, the Solicitor issued an opinion concluding that ?Twin Metals Minnesota does not have a non-discretionary right to renewal, but rather the BLM has discretion to grant or deny the pending renewal application.? Amended Complaint, Exhibit 4. The Solicitor analyzed the language of the leases in question as well as the relevant statutes and regulations. She found that the renewal provisions of the 2004 renewal leases, rather than those of the original 1966 leases, controlled. Id. Because the 2004 renewal leases provided only a ?preferential right of renewal,? the lessee was not entitled to renewal of the leases but rather had a ?legal right to be preferred against other parties, should the Secretary, in the exercise of his discretion, decide to continue leasing.? Id. Although she found the issue was resolved by the terms of the 2004 renewal leases, the Solicitor also addressed the argument made by Plaintiffs that the 1966 lease terms entitled them to mandatory renewals. The Solicitor opined that the terms of the original 1966 leases meant that ?even if the Secretary can and does, as a matter of discretion, renew the lease to extend the time to commence production, there is no right to a further renewal when production has not begun at the end of the ?rst renewal- extension period.? Id. The Solicitor concluded that has the same discretion 3 dc?883873 CASE Document 86 Filed 06/05/17 Page 13 of 35 regarding whether to renew the lease for a third time as it had in determining whether to grant the initial lease.? Id. On June 3, 2016, in accordance with 16 508b and 520, the statutes authorizing mineral leasing in the Superior National Forest, BLM requested the Chief of the United States Forest Service (?Forest Service?), as the delegee of the Secretary of Agriculture, to provide a decision on whether he consented to the renewal of the MNES 1352 and MNES 1353. On September 12, 2016, before the Forest Service had answered question, and before BLM had acted on the lease renewal requests, Plaintiffs Franconia and Twin Metals Minnesota LLC ?led a complaint in this Court. The complaint asked the Court to quiet title under the QTA, to set aside the Solicitor?s Opinion under the APA as arbitrary, capricious, and contrary to law, and to order the BLM to issue the requested renewal leases. On December 14, 2016, the Chief of the Forest Service, Thomas Tidwell, informed the Director of the BLM, Neil Kornze, that the Forest Service did not consent to renewal of the leases. Letter from Thomas L. Tidwell, Chief, US. Forest Service, to Neil Kornze, Director, BLM (Tidwell Ltr.) at 1 (Exhibit A). Chief Tidwell explained that he found ?unacceptable the inherent potential risk that development of a regionally-untested copper?nickel sul?de ore mine within the same watershed as the [Boundary Waters Canoe Area Wilderness] might cause serious and irreplaceable harm to this unique, iconic, and irreplaceable wilderness area.? 1d. Chief Tidwell?s twenty?eight page letter detailed the factual and legal considerations that contributed to his judgment. On 4 dc?883873 CASE Document 86 Filed 06/05/17 Page 14 of 35 December 15, 2016, based on the Forest Service?s decision to withhold consent, the BLM Eastern States Director, Karen M?our?itsen, denied the renewal applications. On February 21, 2017, Plaintiffs ?led the Amended Complaint in this Court. The Amended Complaint re-asserted actions under the QTA and APA against BLM, Interior Department, and a number of their officials. It also added a fourth count alleging an APA Violation by the Forest Service in withholding consent to the lease renewals. AUTHORITY AND ARGUMENT II. STANDARD OF REVIEW To survive a motion to dismiss under Rule ?a complaint must contain suf?cient factual matter, accepted as true, to ?state a claim to relief that is plausible on its face.? Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Judgment under Rule 12(b)(6) should be granted if the moving party establishes that there are no material issues of fact and that it is entitled to judgment as a matter of law. See Lion Oil Co., Inc. v. 0300 Corp, 90 F.3d 268, 270 (8th Cir. 1996). The court must accept as true all factual allegations in the complaint, but gives no effect to statements of law. See Par/chill v. Minn. Mat. Life Ins. Co, 286 F.3d 1051, 1058 (8th Cir. 2002). Thus, where the allegations show on the face of the complaint there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate. Parnes v. Gateway 2000, Inc, 122 F.3d 539, 546 (8th Cir.l997). When considering a motion to dismiss under Rule the court generally must ignore materials outside the pleadings, but it may consider materials that are part of the public record as well as materials that are necessarily embraced by the pleadings, dc-883 873 CASE Document 86 Filed 06/05/17 Page 15 of 35 including exhibits attached to the complaint. Porous Media Corp. v. Pall Corp. 186 F. 3d 1077,, 1079 (8th Cir. 1999). This includes ?matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint whose authenticity is unquestioned.? Miller v. Redwood Toxicology Lab, Inez, 688 F.3d 928, 931 n. 3 (8th Cir.2012). If an extraneous document is referenced either directly or by inference in the complaint and its authenticity is not questioned, the district court may properly consider it in ruling on a motion to dismiss. Id. A motion to dismiss for lack of jurisdiction under Rule 12(b)(1) that is limited to a facial attack on the pleadings is subject to the same standard as a motion under Rule Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir. 1990). Accordingly, under Rule all of the factual allegations concerning jurisdiction are presumed to be true and the motion is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction. Titus v. Sullivan, 4 F. 3d 590, 593 (8th Cir. 1993). PLAINTIFF QUIET TITLE ACT CAUSE OF ACTION SHOULD BE DISMISSED BECAUSE THE QUIET TITLE ACT DOES NOT PROVIDE FOR JURISDICTION WHERE TITLE IS NOT IN DISPUTE. The Court should dismiss Plaintiffs? QTA claim for lack of jurisdiction and failure to state a claim because there is no title in dispute here. The QTA establishes a cause of action, waives sovereign immunity, and provides jurisdiction for district courts ?to adjudicate a disputed title to real property in which the United States claims an interest . . . 28 U.S.C. 2409a(a); see also 28 U.S.C. 1346(f). Because the QTA is a waiver of sovereign immunity, all questions about the scope of the waiver or limitations on its 6 dc?883 873 CASE Document 86 Filed 06/05/17 Page 16 of 35 applicability must be construed in favor of immunity. Lane 12. Pena, 518 US. 187, 192 (1996).. 9 Under the plain language of the QTA, it applies only when there is ?disputed title to real property.? 28 U.S.C. 2409a(a) (emphasis added). Multiple circuit courts have adhered to the statute?s plain terms and have rejected attempts to extend them to cover other types of disputes involving real property. See, e. Cadorette v. United States, 988 F.2d 215, 223 (1st Cir. 1993) (?The words of the statute, taken literally, permit adjudications [under the only when the title or ownership of real property is in doubt?); McMaster v. United States, 177 F.3d 936, 942 (11th Cir. 1999) (?nding no QTA jurisdiction where parties disputed the terms of a no-camping promise and a no- hunting restrictive covenant, but not the fact that the Government held title to the land in question); Dunbar Corp. v. Lindsey, 905 F.2d 754, 759 (4th Cir. 1990) (?Under the this court has equated the requirement of a disputed title with disputed ownership?). Plaintiffs here do not satisfy this fundamental requirement of the QTA because they make no claim involving title to, or ownership of, land. They do not contest that the United States owns fee title to the mineral estate. See Amended Complaint jl 109. They merely allege that BLM is prohibited from denying Plaintiffs? request to renew the expired leases. Id. 61-83, 111-112. This defect is not cured by Plaintiffs? characterization of their claim as involving a ?renewable leasehold interest in the mineral estate.? See, e. g, id. 1] 111. A ?renewable leasehold interest? is not title. See McMaster v. United States, 177 F.3d 936, 942 (1 1th 7 dc-883 873 CASE Document 86 Filed 06/05/17 Page 17 of 35 Cir. 1999) (a no?camping promise and a no?hunting restrictive covenant did not equate to title); Dunbar Corp. v. Lindsey, 905 F.2d 754, 759 (4th Cir. 1990) (non?ownership .possessory interest did not amount to title). . Even if the leasehold interest Plaintiffs claim were a kind of ?title,? the QTA still would not cover their claim. That is so because Plaintiffs? argument depends entirely upon their interpretation of the leases? renewal terms and their attempt to refute the Solicitor?s contrary interpretation of the leases. But a ?dispute over an alleged breach of contract hardly casts doubt on the title or ownership of the property.? Ginsberg v. United States, 707 F.2d 91, 93 (4th Cir. 1983) (holding that district court did not have jurisdiction under QTA to adjudicate claim for possession by landlord against United States as lessee). Plaintiffs do not, and cannot, claim title that is adverse to the United States. Therefore, Count I of the Amended Complaint fails to state a claim for which relief can be granted, the Court lacks jurisdiction over this Count, and the Count must be dismissed. IV. REVIEW IS UNAVAILABLE UNDER THE APA. The Court also lacks jurisdiction over Counts II, and IV, which assert claims under the APA based on rejection of Plaintiffs? renewal application. Under the Tucker Act, plaintiffs with contract?based claims against the United States must bring them in the Court of Federal Claims and may seek only money damages. A federal district court is precluded from entertaining such claims, even when dressed up as alleged APA violations. Accordingly, this Court should dismiss these counts for lack of jurisdiction under Rule dc-883 873 CASE Document 86 Filed 06/05/17 Page 18 of 35 A. The Court Lacks Jurisdiction over Plaintiffs? APA Claims Because They Are Founded on Contract. The limited waiver of sovereign immunity does not extend to claims for relief where another statute ?expressly or impliedly forbids the relief which is sought.? 5 U.S.C. 702. The Tucker Act is such a statute. It forecloses APA claims that are based on a contract because the Tucker Act gives the Court of Federal Claims exclusive jurisdiction over such actions. 28 U.S.C. 1491 .1 Indeed, it is well established that ?under 702 and the Tucker Act, litigants may bring common-law contract claims only as actions for money damages in the Claims Court.? ransohio Savings Bank v. Director, O?ice of Thrift Supervision, 967 F.2d 598, 610 (DC. Cir. 1992).2 Whether a claim is ?founded upon? a contract for purposes of the Tucker Act ?depends both on the source of the rights upon which the plaintiff bases its claims, and upon the type of relief sought (or appropriate)? Megapulse, Inc. v. Lewis, 672 F.2d 959, 968 (DC. Cir. 1982). Each of Plaintiffs? three APA claims is founded upon alleged rights under leases with the United States and thus those claims are not properly before the Court. Speci?cally, Count II alleges refusal to renew Plaintiffs? leases must be set aside 1 If the amount claimed does not exceed $10,000, the ?Little Tucker Act,? 28 U.S.C. 1346(a)(2), grants United States District Courts concurrent jurisdiction with the Court of Federal Claims. A plaintiff wishing to maintain its claim in district court, however, can do so only if it waives its right to the recovery of damages in excess of the $10,000 jurisdictional limit. Smith v. Orr, 855 F.2d 1544, 1553 (Fed. Cir. 1988). 2 See also Albrecht v. Comm. on Employee Bene?ts of Fed. Reserve Employee Bene?ts Sys., 357 F.3d 62, 6869 (DC. Cir. 2004) Tucker Act ?impliedly forbids in APA terms not only district court awards of money damages, which the Claims Court may grant, but also injunctive relief, which the Claims Court may not.?? (citation omitted?; Sharp v. Weinberger, 798 F.2d 1521, 1523 (DC. Cir. 1986) (Scalia, J.) (?The waiver of sovereign immunity in the does not run to actions seeking declaratory relief . . . in contract cases?). dc-883873 CASE Document 86 Filed 06/05/17 Page 19 of 35 because BLM ?disregard[ed] the renewal right in section 1, alter[ed] the language of section and misconstrue[d] the contractual and regulatory term ?preference right lease?? Amended Complaint 11 118. Count 111 similarly alleges: denial of renewal of the Leases . . . give[s] an erroneous construction to the negotiated terms of the Leases and the subsequent renewals?; ?[t]he Leases unambiguously vest plaintiffs with a non?discretionary right to renew?; and ?the parties intended the Leases to establish a non? discretionary right to renewal.? Id. 111] 120?22. Count IV likewise is based on denial of plaintiffs? lease renewal application.? Id. 11 126. Premised on an alleged entitlement under the leases? terms, Plaintiffs seek declaratory and injunctive relief requiring the BLM to renew the leases. Id, Prayer for Relief. ?[T]hough a lease may concern and convey a property interest, it is also very much a contract.? Prudential Ins. Co. v. United States, 801 F.2d 1295, 1298 (Fed. Cir. 1986) (holding that Claims Court possessed Tucker Act jurisdiction to adjudicate alleged violations of terms of a lease with the United States). For that reason, numerous decisions of the Court of Federal Claims address disputes over the terms of leases for real property as breach of contract actions, including disputes over the terms of BLM leases of mineral rights. See, e. g, Petra Mex, LLC v. United States, 122 Fed. Cl. 536 (2015) (adjudicating oil and gas leaseholder?s claim that terms of lease did not allow BLM to terminate lease); Woodies Holdings, LLC v. United States, 120 Fed. Cl. 113 (2015) (adjudicating lessor?s claim that terms of lease required Government to reimburse lessor for portions of local property tax paid for the property); Barlow Haun, Inc. v. United States, 118 Fed. C1. 597 (2014) (adjudicating leaseholders? claims that suspension 10 dc?883873 CASE Document 86 Filed 06/05/17 Page 20 of 35 of their rights to explore for and produce oil and gas violated terms of leases); Gri?in Gri??inExploration, LLC v] United States, 116 Fed; Cl. 163 (2014) (adjudicating oil and gas leaseholders? claim that terms of leases prevented BLM from canceling the leases); Mann v. United States, 86 Fed. Cl. 649 (2009) (adjudicating leaseholder?s claim that BLM breached terms of geothermal lease). Because the Tucker Act provides exclusive jurisdiction over claims founded upon a contract and because ?the source of [Plaintiffs?] right to relief" is the terms of a contract, this Court lacks jurisdiction. Spectrum Leasing Corp. v. United States, 764 F.2d 891, 894?95 (DC. Cir. 1985) (?nding claim with some statutory elements was essentially contractual because ?the source of [plaintiff 5] right to relief" lay in contract). Plaintiffs? citation of extraneous mining statutes and regulations, see Section V, infra, does not alter the fact that this is a contract dispute. While such statutes and regulations may be relevant to contract interpretation, they do not provide the relevant substantive rights. See Del?Rio Drilling Programs, Inc. v. United States, 146 F.3d 1358, 1367 (Fed. Cir. 1998) (claims arising out of allegedly breached leases were contract claims, even though court was required to analyze leases in light of statutes and regulations governing mining). Because this dispute turns on the terms of Plaintiffs? leases, the case sounds in contract, and Plaintiffs? sole and adequate remedy is money damages in the Court of Federal Claims. See VS Ltd. Partnership v. Dep ?t of Housing Urban Development, 235 F.3d 1109, 1112 (8th Cir. 2000) (af?rming district court?s ?nding that it lacked jurisdiction over plaintiffs equitable claims arising out of Government contract dispute); Brazos Elec. Power Co?op., Inc. v. United States, 144 11 dc-883873 CASE Document 86 Filed 06/05/17 Page 21 of 35 F.3d 784, 788 (Fed. Cir. 1998) (holding that APA suit for equitable relief could not proceed where dispute sounded in contract and money damages under Tucker Act would provide adequate relief). Therefore, the Court should dismiss Plaintiffs? APA claims. B. Plaintiffs? APA Claims Also Are Foreclosed Due to the Existence of Adequate Alternative Remedies. Plaintiffs? APA claims fail for a second independent reason. Review is available - under the APA only where ?there is no other adequate remedy in a court.? 5 U.S.C. 704; see Int ?1 Eng. Co. 12. Richardson, 512 F.2d 573, 580 (DC. Cir. 1975) (?judicial review is inappropriate where there exists some ?other adequate remedy in a court??) (quoting 5 U.S.C. 704). As explained above, an adequate remedy (indeed, the exclusive remedy) for the alleged breach of Plaintiffs? leases exists in the Court of Federal Claims under the Tucker Act. The availability of an action for money damages under the Tucker Act ?is presumptively ?an adequate remedy? for 704 purposes.?? Suburban Mortg. Assocs., Inc. v. US. Dep ?t of Housing Urban Development, 480 F.3d 1116, 1126 (Fed. Cir. 2007) (availability of money damages under Tucker Act precluded APA suit) (citation omitted). Therefore, 704 of the APA provides an additional basis for dismissal of Plaintiffs? APA claims. See id; see also City oankland v. 798 F.3d 1159, 1167 (9th Cir. 2015) (affirming dismissal of APA claim where plaintiff participation in pending forfeiture action provided an adequate remedy); Central Platte Natural Resources Dist. v. US. Dep ?t of Agriculture, 643 F.3d 1142, 1149 (8th Cir. 2011) (affirming dismissal of APA claim where adequate remedy existed under Freedom of Information Act); Oljato '12 dc-883873 CASE Document 86 Filed 06/05/17 Page 22 of 35 Chapter of Navajo Tribe 12. Train, 515 F.2d 654, 664 (DC. Cir. 1975) (af?rming dismissal of APA claim where adequate remedy existed under Clean Air Act). Moreover, if the Court does not dismiss Plaintiffs? QTA claim, see Section supra, the QTA also would provide an adequate legal remedy precluding Plaintiffs? APA claims. Because Plaintiffs seek essentially the same remedy equitable relief entitling them to inde?nite renewal of their leases based upon the same material allegations under both the APA and the QTA grounds, see Amended Complaint 1W 113?114, 118, 123?124, 130-131, these claims are duplicative and cannot both survive. See Underwood Livestock, Inc. v. United States, 89 Fed. Cl. 287, 295 n.8 (2009) (noting that district court dismissed plaintiff?s APA claims where QTA provided another adequate remedy). V. THE COURT SHOULD DISMISS COUNT II BECAUSE PLAINTIFFS HAVE FAILED TO IDENTIFY ANY STATUTE OR REGULATION THAT ENTITLES THEM TO A PERPETUAL RENEWABLE LEASEHOLD INTEREST. Even if the APA claim in Count II were properly before the Court, it would fail on the merits as a matter of law. None of the statutes or regulations on which Plaintiffs? Amended Complaint relies entitles them to the perpetual renewable leases that they claim. A. Plaintiffs Have Not Identi?ed Any Statute or Regulation That Entitles Them to the Requested Renewals. Plaintiffs? second count alleges that lease denial and the Solicitor?s Opinion ?are contrary to law because they deny plaintiffs the renewable Leases to which 13 dc?883873 CASE Document 86 Filed 06/05/17 Page 23 of 35 they are entitled under federal law.? Amended Complaint 1] 118.3 But none of the statutes or regulations Plaintiffs cite provide any such entitlement. 1. The Statutes Say Nothing About Renewal Rights. The two statutes Plaintiffs cite for their supposed right to inde?nitely renewable leases provide for nothing of the sort. See Amended Compl. 1} 42 (citing l6 U.S.C. 508b);1l1l 46-47 (citing 16 U.S.C. 520). Title 16 U.S.C. 508b authorizes the Secretary of the Interior, ?under general regulations to be prescribed by him and upon such terms and for speci?ed periods or otherwise as he may deem to be for the best interests of the United States, to permit the prospecting for and the development and utilization of mineral resources? in certain public domain national forest lands in Minnesota. Other than conditioning such leasing on the consent of the Secretary of Agriculture, this statute imposes no requirements on the Interior Secretary?s exercise of this leasing authority, nor does it give an entitlement to renew leases. To the contrary, the statute vests wide discretion in the Secretary, authorizing him to act ?as he may deem to be for the best interests of the United States.? Id. Similarly, l6 U.S.C. 520 (as amended by Reorganization Plan No. 3, 402, 60 Stat. 1099 (1946)) authorizes the Secretary of the Interior to lease minerals on certain acquired lands ?under general regulations to be prescribed by him. . .upon such terms and 3 Count 111 alleges denial of renewal of the Leases . . . give an erroneous construction to the negotiated terms of the Leases and the subsequent renewals.? Amended Complaint 1] 120. It therefore appears to allege a breach of contract, which is clearly outside this Court?s jurisdiction. Supra at Section IV. To the extent this count also alleges statutory or regulatory violations, however, it should be dismissed for the same reasons as Count II. 14 dc?883873 CASE Document 86 Filed 06/05/17 Page 24 of 35 for speci?ed periods or otherwise, as he may deem to be for the best interests of the United States.? Again, thevonly requirement imposed by this leasing authority is that the Interior Secretary receive prior consent from the Agriculture Secretary. Id. And far from requiring the Interior Secretary to renew leases inde?nitely, the statute vests wide discretionto act ?as he may deem to be for the best interests of the United States.? Id. 2. The Regulations Do Not Grant Perpetual Renewal Rights. The regulations Plaintiffs cite likewise do not grant them a right to perpetual renewals. As an initial matter, the 1966 regulations that Plaintiffs cite are irrelevant because they were not in force in 2004 when the leases that are the subject of the renewal request were issued. It is well established that only the statutes and regulations in effect at the time of a lease?s renewal apply to the renewal lease. As the Solicitor has explained, ?statutes enacted after the parties have entered into a contract but before the contract is renewed appl[y] to that contract.? Assistant Secretary, Land and Water Resources, Assistant Secretary, Energy and Minerals, GFS (MIN) SO-2 (1982), 1981 WL 29121. Indeed, the renewal leases here expressly provide that they are subject ?to the regulations and general mining orders of the Secretary of the Interior in force on the date this lease issued.? Amended Complaint, Exhibit 3 (emphasis added). Since the renewal leases issued on January 1, 2004, the regulations in force on that date are the ones that govern. The regulations in effect at the time of the 2004 renewal provided at most for only a preferential right to renew, not the absolute and perpetual one Plaintiffs claim. While the regulations themselves did not mention any right to renew perpetual, preferential or 15 dc-883873 CASE Document 86 Filed 06/05/17 Page 25 of 35 otherwise - they did expressly contemplate the possibility of rejection of a renewal 4 request. 43 C.F.R. 3514.25 (2004) (?If you ?le'a timely application 'for'lease renewal under 3511.27 of this part, your lease expires on the expiration date or the date BLM I rejected your application, whichever is later?). That the regulations expressly contemplate that a renewal application could be rejected con?icts with Plaintiffs? contention that BLM has no authority to reject a renewal application. Moreover, those regulations state that BLM was to issue leases on a standard form, to which BLM would add the rental rate, royalty obligations, and any special stipulations. 43 C.F.R. 3511.12 (2004). Consistent with mining statutes, discussed infra at Section V.B.ii, the form BLM used in this case provided for only a ?preferential right in the lessee to renew. . Amended Complaint, Exhibit 3 (emphasis added). In other words, Plaintiffs had a right to preference over others if the Secretary decided to renew the leases, but they had no entitlement to a renewal. Even if the 1966 regulations were relevant, Plaintiffs still would have no claim. First, the 1966 regulations expressly conditioned leasing on the consent of the Secretary of Agriculture, thus making any renewal right subject to such consent. The authorization to lease minerals on national forest lands in Minnesota provided that ?[l]eases and permits under [16 U.S.C. 508b], may be issued only with the prior consent of the Secretary of Agriculture or his designee. 43 C.F.R. 3325.2 (1966). This regulation implements the statutory consent requirement. See 16 U.S.C. 508b. Thus, any right to a renewal lease in 43 C.F.R. 3221.4 (1966) is subject to the consent requirement of 43 C.F.R. 3325.2 (1966). Here, the Chief of the Forest Service, as designee of the 16 dc-883873 CASE Document 86 Filed 06/05/17 Page 26 of 35 Secretary of Agriculture, has withheld his consent, and this Court may not review that - decision under the APA, infra at Section VLA. Second, to the extent the 1966 regulations were modeled on the Mineral Leasing Act, as Plaintiffs appear to allege, the regulatory renewal provision should be construed as a preferential, not absolute, right to renew like its 2004 successor.4 The Amended Complaint includes a discussion of preference rights leasing under the Mineral Leasing Act of 1920 (30 U.S.C. 181 et seq.) and the Mineral Leasing Act for Acquired Lands of 1947 (30 U.S.C. 351 et seq.).5 Amended Complaint 1111 3439. However, as Plaintiffs admit, those laws do not actually govern the lands in question here. Id. 11 40. Rather than applying wholesale, a portion of the Mineral Leasing Act appears to have served as a model for the leasing regulations for national forests in Minnesota. The Mineral Leasing Act provides for differing lease terms, and differing treatment with respect to renewals and readjustments, depending on the mineral leased. For instance, phosphate and potash leases are issued for 20?year terms, after which they can be ?readjusted? without applying for a renewal. 3O U.S.C. 212, 283. Oil and gas leases are for a primary term of 10 years and continue in force so long as the lessee continues producing in paying quantities. 3O U.S.C. 223, 226(e); see also 30 207(a) (providing for a similar scheme for coal leases). Most notably, sodium leases are issued 4 A preferential right to renew confers ?the legal right to be preferred against other parties, should the Secretary, in the exercise of his discretion, decide to continue leasing.? Sodium Lease Renewals, M-3 6943, 89 Interior Dec. 173, 178 (1982). 5 For simplicity, these two laws are referred to herein as the Mineral Leasing Act. 17 dc?883 873 CASE Document 86 Filed 06/05/17 Page 27 of 35 ?for a period of twenty years, with preferential right in the lessee to renew for successive periods often years. 30 U.S.C. 262. The 1966 regulations for mineral leases in Minnesota national forests provided for a 20-year base period and 10-year renewals that closely parallel the scheme for sodium leases under the Mineral Leasing Act. 43 CPR. 3221.4(f) and 3225 (1966). Like sodium leases under the Mineral Leasing Act, the 1966 regulations provide for ?renewals? instead of ?readjustments.? Also like sodium leases, the 1966 regulations provide for a 20~year base period and 10?year renewals. Following this model, since renewals of sodium leases are preferential, rather than absolute, the leasing regime in the 1966 regulations, even if applied, would not grant Plaintiffs a non?discretionary right to renew the leases in perpetuity. B. Even if They Provided the Basis of an APA Claim, the Leases Themselves Do Not Grant an Inde?nite Right to Renew. Even if disputes over the proper interpretation of a lease were reviewable under the APA, but see supra at Section IV, Plaintiffs? claim still would fail. None of the leases provide for inde?nite renewals. 1. The Applicable Renewal Clause is in the 2004 Renewal Leases, Not the 1966 Leases. The leases Plaintiffs claim the Secretary was required to renew are the 2004 renewal leases, not the long-ago expired 1966 leases, and the plain terms of the renewal leases provide for only a preferential right to renew. A contract, including a lease, is read in accordance with its express terms and the plain meaning thereof. C. Sanchez and Son, Inc. v. United States, 6 F.3d 1539, 1543 18 dc-883 873 CASE Document 86 Filed 06/05/17 Page 28 of 35 (Fed. Cir. 1993). It must also be interpreted to give effect to all provisions and to avoid an interpretation that renders a clause meaningless. United Int ?l Investigative Serv. v. United States, 109 F.3d 734, 737 (Fed. Cir. 1997). Extrinsic evidence may be used to interpret a lease only when the lease is ambiguous. Coast Fed. Bank, FSB v. United States, 323 F.3d 1035, 1040 (Fed. Cir. 2006); Shell Oil Co. v. United States, 751 F.3d 1282, 1295 (Fed. Cir. 2014). Extrinsic evidence may not be used to create an ambiguity where the meaning is clear. Coast Fed Bank, 323 F.3d at 1038. The renewal provision of the 2004 leases is clear and unambiguous. It states there is only a ?preferential right in the lessee to renew for successive periods of 10 years. . Amended Complaint, Exhibit 3 (emphasis added). The Interior Department has long interpreted a preferential right to renew as one that ?gives the renewal lease applicant the legal right to be preferred against other parties should the Secretary, in the pmper exercise of his discretion, decide to continue leasing.? 1982 Solicitor?s Opinion, 89 Interior Dec. at 178 (emphasis added). The renewal provision in the 2004 renewal leases, not the renewal provision of the superseded 1996 leases, governs. The 2004 renewal leases contain two special stipulations that incorporate by reference only two provisions from the 1966 leases. Amended Complaint, Exhibit 2. Both relate to the production royalties not renewal.6 6 The 2004 renewal leases also contain a number of provisions that are inconsistent with those in the 1966 leases. For instance, the 2004 renewal leases call for a $5,000 bond while the 1966 leases called for a $10,000 bond. Id., Exhibits 1 and 3. The 1966 and 2004 leases also have materially different assignment/transfer provisions. Id. 19 dc-883873 CASE Document 86 Filed 06/05/17 Page 29 of 35 The plain terms of the governing leases that provide only for a preferential right to renew I thus defeat Plaintiffs? claim. 2. Even Under the Renewal Clause of the 1966 Leases, There Is 0 Automatic and Inde?nite Right to Renewal. Even if the renewal term of the 1966 leases applied, Plaintiffs still would not be entitled to the perpetual right to renewal they claim. The 1966 leases provided that renewal of the leases beyond the primary term is subject to 43 C.F.R. 3221.4(1) (1966) and the provisions of the lease. Amended Complaint, Exhibit 1. Section 5 of the 1966 leases speci?cally described the conditions with which the lessee had to comply to establish a right to renew. The main condition for lease renewal was commencement of actual production. Id. Since 1986, the Solicitor?s Of?ce has interpreted this provision to mean that the Secretary has discretion to renew the lease to extend the time to commence production, but there is no right to a further renewal when production has not begun by the end of the ?rst renewal period. Amended Complaint, Exhibit 4. This is in accordance with 43 C.F.R. 3221 (1966), which required the lessee to show diligence in performing the lease activities (rather than prospecting activities) in its lease renewal application. In short, nothing in the 1966 leases gave Plaintiffs an unconditional, non- discretionary right to renewals. Instead, any non?discretionary right of renewal was conditioned on starting production. Because Plaintiffs do not allege that they had begun production by the end of the first 10?year lease renewal, they failed to trigger the condition precedent to any renewal right under the 1966 leases. 20 dc~883 873 CASE Document 86 Filed 06/05/17 Page 30 of 35 v1. THE COURT SHOULD DISMISS FOURTH COUNT AGAINST THE DEPARTMENT OF AGRICULTURE AND FOREST SERVICE UNDER RULE ThiS Court also should dismiss Plaintiffs? Fourth COunt, asserting an APA Claim against the Department of Agriculture and the Forest Service, because this Court lacks jurisdiction. The Amended Complaint appears to assert three theories in connection with the Forest Service?s decision to withhold consent. Plaintiffs allege the Forest Service violated, the because it: 1) acted of Statutory authOrity? in denying consent to the lease renewals, Amended Complaint 11 127; 2) violated the Forest Service Manual by creating a ?buffer strip,? id. 129; and 3) made an ?unexplained change in the agency?s position,? id. 11 130. Plaintiffs? Count IV must be dismissed in its entirety because the statute pursuant to which the Forest Service denied its consent ?is drawn so that a court would have no meaningful standard against which to judge the agency?s exercise of discretion,? Heckler 12. Chaney, 470 US. 821, 830 (1985), and therefore an APA Claim alleging a violation of that law is not subject to judicial review. Underscoring this point, Plaintiffs contend the Forest Service was precluded from considering environmental factors because they are ?irrelevant,? but they cite no legal basis for this conclusion. In addition, the alleged violation of the Forest Service Manual is not subject to APA review because the manual is not a binding regulation. 21 dc?8 83 873 CASE Document 86 Filed 06/05/17 Page 31 of 35 A. Plaintiffs Have Cited N0 Law or Regulation Constraining the Forest Service?s Discretion to Withhold Consent. The Amended Complaint alleges multiple APA Violations in?connection with the Forest Service?s decision to withhold consent. Amended Complaint 127?130. Each of Plaintiffs? theories suffers from a common legal defect: the statute in question provides no meaningful standard for judicial review and therefore an alleged violation of that statute is exempt from APA review. Accordingly, this Court lacks jurisdiction over Count IV of the Amended Complaint. The APA provides jurisdiction to set aside agency action that is ?in excess of statutory jurisdiction, authority, or 5 U.S.C. The APA, however, precludes review when the agency?s action is ?committed to agency discretion by law.? 5 U.S.C. 701(a)(2); Heckler v. Chaney, 470 US. 821, 830 (1985) (APA review precluded when statute ?is drawn so that a court would have no meaningful standard against which to judge the agency?s exercise of discretion?). As the Ninth Circuit explained in dismissing an APA claim that the Secretary of the Interior impermissibly considered wilderness values, APA review is unavailable when the statute ?affords no basis for us to review the substance of the Secretary?s decision? since the absence of a statutory standard means there is ?no measuring stick against which to judge [Plaintiffs] various claims that the Secretary?s policy determination was mistaken.? Drakes Bay Oyster Co. v. Jewell, 747 .3d 1073, 1088 (9th Cir. 2014). ?Courts have found that ?law to apply? may exist in the underlying statute or in regulations by the agency interpreting the underlying statute.? Kenney v. Glickman, 96 F.3d 1118, 1124 22 dc-883873 CASE Document 86 Filed 06/05/17 Page 32 of 35 (8th Cir. 1996). However, where neither the statute nor the regulations provide ?any meaningful standard against which a court could judge the Secretary?s exercise of his discretion,? the court should dismiss the claim for lack of jurisdiction. State of ND. ex rel. Bd. 0f University and School Lands v. Yuetter, 914 F.2d 1031, 1035 (8th Cir. 1990). Plaintiffs? allegation that the Forest Service?s denial of consent violated the APA should be dismissed because there is no ?law to apply? to the Forest Service?s consent decision. The Forest Service withheld consent pursuant to 16 U.S.C. 508b. Tidwell Ltr. at 7-8 (Exhibit A). That statute provides, in relevant part: the Secretary of the Interior is authorized, under general regulations to be prescribed by him and upon such terms and for speci?ed periods or otherwise as he may deem to be for the best interests of the United States, to permit the prospecting for and the development and utilization of such mineral resources: Provided, That the development and utilization of such mineral deposits shall not be permitted by the Secretary of the Interior except with the consent of the Secretary of Agriculture. 16 U.S.C. 508b. Nothing in the statute provides objective criteria or other standards the Chief of the Forest Service (acting as the Secretary?s delegee) must follow in making his decision. To the contrary, it leaves the Secretary?s consent decision completely open-ended. Nor do Plaintiffs cite any other statutes or regulations that might provide some judicially enforceable standard against which to judge the Forest Service?s decision. Plaintiffs do not even attempt to supply their own criteria. This is precisely the sort of statute that forecloses any meaningful judicial review. Accordingly, the Forest Service?s consent decision under 508b is not subject to judicial review under the APA and the Fourth Count of the Amended Complaint should be dismissed. 23 dc-883 873 CASE Document 86 Filed 06/05/17 Page 33 of 35 B. Plaintiffs Have Not Explained Why Environmental Impacts Are an Irrelevant Consideration. Even assuming the Forest Service?s determination were reViewable, Plaintiffs? challenge would fail. Plaintiffs allege the Forest Service erred in considering environmental impacts because such factors are ?irrelevant.? Amended Complaint 1] 128. The Amended Complaint, however, does not provide any explanation for why the . environmental factors are irrelevant to renewal of a mineral rights lease. It therefore is - i insuf?cient to make out an APA claim. A court must uphold an agency action so long as it is ?based on consideration of the relevant factors, and within the scope of the authority delegated to the agency by the statute.? Motor Vehicle Mfrs. ASS 'n of US, Inc. v. State Farm Mat. Auto. Ins. Co., 463 US. 29, 42 (1983). To state a claim that an agency unlawfully considered certain factors, a plaintiff must identify suf?cient facts to support its claim. Fraternal Order of Police v. Gates, 602 F.Supp.2d 104, 110 (D.D.C. 2009). Conclusory statements that do not explain how the agency exceeded its authority are insuf?cient. Id. Here, Plaintiffs have not explained why environmental impacts are irrelevant to the decision of whether to consent to renewal of a mining lease. Their conclusory allegation that environmental impacts are irrelevant is insuf?cient to state a claim. For this reason, this aspect of Count IV should be dismissed. C. The Forest Service Manual Is Not Judicially Enforceable. Count IV of the Amended Complaint also alleges the Forest Service violated the Forest Service Manual, on the theory that the Forest Service has no authority to maintain 24 dc~883873 CASE Document 86 Filed 06/05/17 Page 34 of 35 buffer strips that create an informal expansion of a wilderness area. Amended Complaint 1} 129. This is-not a cognizable claim under the APA because the Forest Service Manual, is not judicially enforceable. Courts review an agency?s ?alleged noncompliance with an agency pronouncement only if that pronouncement actually has the force and effect of law.? Western Radio Services Co. Inc. v. Espy, 79 F.3d 896, 900 (9th Cir. 1996); Corp. 12. Brown, 441 US. 281, 301 (1979). The Forest Service Manual is not promulgated in accordance with the APA and is not published in the Federal Register or the Code of Federal Regulations. It also is not issued pursuant to any speci?c statutory authority. Accordingly, alleged violations of the Forest Service Manual are not reviewable by a district court in an APA action. Western Radio Services Co. Inc. v. Espy, 79 F.3d 896, 901 (9th Cir. 1996); Stone Forest Industries v. United States, 973 F.2d 1548, 1551 (F ed.Cir. 1992).7 Indeed, the Forest Service Manual is issued under the authority of the Chief of the Forest Service, not the Secretary of Agriculture, and thus could not bind the Secretary?s decisions in any event. See 36 CPR. Because an alleged 7 Plaintiffs also allege that the Forest Plan designates mineral development as a ?desired condition? and that if ?the Forest Service wants to prohibit mining outside the wilderness boundary and the Mining Protection Area that Congress has protected, it must, at a minimum, amend the Forest Plan.? Amended Complaint 129. Plaintiffs cite no law or regulation that would require such an amendment. To the extent Plaintiffs are pleading a consistency claim under the National Forest Management Act, such a claim must fail since the Forest Service is not required to approve a proposal simply because it is consistent with a forest plan. See Ohio Forestry Assn, Inc. 12. Sierra Club, 523 US. 726, 729-730 (1998) (forest plans do not authorize specific actions). Rather, the law is that the Forest Service may not approve an action that is inconsistent with a forest plan. See 16 U.S.C. 1604(i); 36 CPR. 25 dc-883 873 CASE Document 86 Filed 06/05/17 Page 35 of 35 violation of the Forest Service Manual is not reviewable under the APA, the Court should dismiss this aSpect of Count IV pursuant to. Rule CONCLUSION Accordingly, Plaintiffs? Amended Complaint should be dismissed under Federal Rules of Civil Procedure 12(b)(1) and Dated: June 5, 2017 Respectfully submitted, By: Alex Ward J. Alex Ward MORRISON FOERSTER LLP 2000 Ave, NW Washington, DC 20006-1888 Telephone: 202.887.1500 Facsimile: 202.887.0763 jward@mofo.com Thomas B. Heffelfinger Amy S. Conners (#0387375) BEST FLANAGAN LLP 60 South Sixth Street, Suite 2700 Minneapolis, MN 55402 Telephone: 612.339.7121 theffelfinger@bestlaw.com aconners@bestlaw.com Stephen J. Snyder (#103019) MORRISON FOERSTER LLP Canadian Paci?c Plaza, Suite 2550 120 South Sixth Street Minneapolis, MN 55402 Telephone: 612.787.3101 26 dc?883873 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA FRANCONIA MINERALS (US) LLC and TWIN METALS MINNESOTA LLC, Plaintiffs, v. UNITED STATES OF AMERICA, et al., Defendants, and NORTHEASTERN MINNESOTANS FOR WILDERNESS, Defendant-Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL NO. 16-3042 SRN/LIB MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ SUPPLEMENTAL AND AMENDED COMPLAINT 7 5 Commented "(5an We Formatted: Highlight Updated 052417 - Significant Litigation Deadlines Formatted: Font: Bold, Italic. Highlight Formatted: Font: Italic Formatted: Font: Bold, Italic Formatted: Font: Italic Formatted: Font: Bold, Italic Formatted: Font: Italic Formatted: Font: Bold, Italic Formatted: Font: (Default) Arial, 11 pt I Formatted: Font: (Default) Arial, 11 pt . 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Bold, High'lght Formatted: Font: (DefaUlt) Arial- 11 pt' Highlight Formatted: Font: Bold, Italic Formatted: Font: Bold Formatted: Font: Bold Formatted: Font: Bold Formatted: Font: Bold Formatted: Font: Bold, Font color: Custom Formatted: Font color: Custom Color(RG 27 28 Date: June 2, 2017 To: Jack Haugrud Deputy Solicitor, Energy and Mineral Resources From: Karen Hawbecker Associate Solicitor, Mineral Resources Subject: DMR Friday Updates to Weekly Report Below is a list of new or updated items that did not appear in the weekly report that may require the attention of the front office during the week of June 5-9 or thereafter: Significant Decisions: ● Nothing to report. Litigation: (b) (5) Legislation: ● Nothing to report. Correspondence/Agency Actions: ● (b) (5) Rulemakings: Meetings: cc: Richard McNeer/Dennis Daugherty/Tom Bovard MEMO DATE: June 1, 2017 FOR: Doug Domenech FROM: Kathleen Benedetto, Special Assistant to the Secretary - BLM Hallway, Room 5650, Ph: (202) 208-5934 SUBJECT: Twin Metals Project in the Superior National Forest, northern Minnesota and the impact of the segregation and proposed 234,328 acre withdrawal from mineral leasing, exploration, and development in the Superior National Forest. BACKGROUND: The Twin Metals Minnesota (TMM) project is a World Class copper, nickel, and platinum group deposit. To date, TMM has invested $400 million exploring the deposit and created more than 200 jobs. They estimate that the mine would be in operation for 100 years. The Bureau of Land Management (BLM) completed a mineral report on the deposit in October 2014 based on the review of data from 550 core holes and geophysical data. BLM verified the presence of a valuable mineral deposit worth $48.9 billion dollars with an estimated 44% internal rate of return. Federal lands in the Superior National Forest are subject to the Mineral Leasing Act for Acquired Lands of 1947. BLM is responsible for the onshore mineral estate, approximately 700 million acres, this includes minerals underlying National Forest Lands such as the Superior National Forest. BLM cannot issue leases for mineral development on National Forest Lands without the consent of the U.S. Forest Service (FS), which has surface management responsibility. The Preference Right leases held by TMM were originally issued in 1996 and have been renewed twice. On October 21, 2012, Twin Metals submitted an application to renew two of their three preference right leases near the Southern boundary of the Boundary Waters Canoe Wilderness Area. In March 2016, DOI Solicitor Hilary Tompkins issued an ‘M Opinion’ providing FS and BLM discretion to grant or deny TMM lease renewal application. Following the ‘M Opinion,’ in December of 2016, the FS notified the BLM they did not consent to the renewal of the hardrock mineral leases and submitted an application to BLM to withdraw 234,328 acres from mineral leasing, exploration and development, subject to prior existing rights. Without consent from the FS, BLM cancelled the leases. FS published a Federal Register Notice on 1/13/17 announcing their intent to prepare an EIS related the proposed withdrawal. BLM published a Federal Register Notice on 1/19/17 announcing the segregation of the proposed withdrawal area from mineral leasing for a two year period. The segregation and proposed withdrawal will adversely impact another 46 mineral leases. TMM filed suit in September 2016 challenging the M Opinion, in January, the suit was amended to incorporate the decision to deny the lease renewals. Minnesotans for Wilderness have been granted intervenor-defendant status. The Solicitor’s office is preparing an ‘options paper’ - court filings are due 6/5/17. The American Taxpayer has significant exposure to takings litigation as a result of the FS request and BLM’s required actions. BLM determined that TMM deposit was worth $48.9 billion dollars. Attomey-Client Privilege/Attorney Work Product BRIEFING MEMORANDUM DATE: April 21. 2017 FROM: Karen Hawbecker Associate Soliciton Mineral Resources SUBJECT: ranconia AIinera/s v. United States, No. 16-3042 (D. Minn.) Involving the Denied Renewal of Federal Hardrock Mineral Leases MNES 1352 and 1353 inion 37036 on March 8, 2016, in res onse to the re nest see attachment).3 The M-Opinion Attorney-Client Privileged/Attorney Work Product MEMORANDUM FOR THE SECRETARY DATE: April XX. 2017 FROM: Office of the Solicitor, Divisions of Mineral and Land Resources SUBJECT: Options for Reversal of Rejection of Twin Metals Mnmesota?s Lease Renewal Application and Solicitor?s M-Opinion 37036 The purpose of this memo is to provide a set of options for reversing the Bureau of Land Management?s (BLM) decision to reject the renewal of hardrock mining leases MNES 1352 and 1353. held by Twin Metals Miimesota (Twin Metals). Wednesday, May 31, 2017 I. OSMRE II. BLM A. Marfork and Usibelli A. Venting & Flaring Rule Case C. Citizens for Clean Energy Twin Metals B. III. D. Comments on EPA’s CERCLA 108(b) rule A. Five Year Program BOEM B. C. Third party bonds/decommissioning trust agreements E. Draft memo for your review: Enforcement of bonding orders D. IV. NRDC Gulf Seismic BSEE Air Quality A. Suspensions C. OPA Civil Penalties B. Director’s briefings Date: May 26, 2017 To: Jack Haugrud Acting Solicitor From: Richard McNeer Acting Associate Solicitor Division of Mineral Resources Subject: DMR Friday Updates to Weekly Report Below is a list of new or updated items that did not appear in the weekly report that may require the attention of the front office during the week of May 29 - June 2 or thereafter: Significant Decisions: ● (b) (5) ​​ Litigation: ● (b) (5) ​ ● (b) (5) ​ ​ ​ ​ ​ ​ Legislation: ● Nothing to report. Correspondence/Agency Actions: ● (b) (5) 2 Rulemakings: Meetingscc: Karen Hawbecker/Dennis Daugherty/Tom Bovard Date: May 26, 2017 To: Jack Haugrud Acting Solicitor From: Richard McNeer Acting Associate Solicitor Division of Mineral Resources Subject: DMR Friday Updates to Weekly Report Below is a list of new or updated items that did not appear in the weekly report that may require the attention of the front office during the week of May 29 - June 2 or thereafter: Significant Decisions: (b) (5) Litigation: ● (b) (5) Legislation: Nothing to report. Correspondence/Agency Actions: 0 ● (b) (5) Rulemakings: ● (b) (5) Meetings: Nothing to report. cc: Karen Hawbecker/Dennis Daugherty/Tom Bovard 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA FRANCONIA MINERALS (US) LLC and TWIN METALS MINNESOTA LLC, Plaintiffs, v. UNITED STATES OF AMERICA, et al., Defendants, and NORTHEASTERN MINNESOTANS FOR WILDERNESS, Defendant-Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL NO. 16-3042 SRN/LIB MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ SUPPLEMENTAL AND AMENDED COMPLAINT I (b) (5) JEFFREY H. WOOD Acting Assistant Attorney General /s/ draft MARISSA A. PIROPATO (MA 651630) CLARE BORONOW (Admitted to MD bar) SEAN C. DUFFY (NY 4103131) STUART GILLESPIE (CO 42861) United States Department of Justice Environment & Natural Resources Division 601 D Street NW Washington, DC 20004 Tel: (202) 305-0470 (Piropato) (303) 844-1362 (Boronow) (202) 305-0445 (Duffy) (303) 844-1382 (Gillespie) E-mail: Marissa.Piropato@usdoj.gov Clare.Boronow@usdoj.gov Sean.C.Duffy@usdoj.gov Stuart.Gillespie@usdoj.gov Attorneys for Defendants 20 WEEKLY REPORT TO THE SECRETARY DEPARTIWENT OF THE INTERIOR May 25, 2017 Of?ce of the Solicitor Week Ahead Schedule of Meetings;I Hearings: and Travel Nothing to report. Week Ahead Announcements and Actions p?n Assistant Secretary for Fish and Wildlife and Parks Week Ahead Schedule of Meetings, Hearings, and Travel Acting Assistant Secretary Virginia Johnson and Acting FWS Director Jim Kurth will be in the office all week. On May 31 and June 1, Acting NPS Director Michael Reynolds will be traveling to Cumberland Island National Park with Stan Austin, NPS Southeast Regional Director, to meet with park staff and local stakeholders. Week Ahead Announcements and Actions FWS has met with representatives from the U.S. Customs and Border Protection (CBP) to identify future infrastructure and management capability requirements by CBP on Cabeza Prieta NWR to improve operational success and efficiency. This includes the capability to maintain existing roads, the development and maintenance of new roads, the potential expansion of existing facilities (i.e., Camp Grip), installation of new infrastructure such as IFTs (integrated fixed towers) and LMRs (land mobile radios), and the deployment of mobile surveillance systems. By June 6, CBP will submit their initial request to FWS. Meanwhile, FWS will identify environmentally sensitive areas that Border Patrol should attempt to avoid or mitigate. In July, FWS and CBP will begin discussions on what processes will be necessary to move forward on CBP’s proposals including NEPA compliance, compatibility determinations, minimum requirements analyses, etc. and how these processes will be funded. To complicate this, the proposals will likely be inconsistent with the Cabeza Prieta’s existing comprehensive conservation plan and will mostly lie within designated wilderness. On May 24, Yosemite National Park concessioner, Yosemite Hospitality, notified High Sierra Camps' June reservation holders that their reservations for this year are cancelled. The cancellation is due to delays caused by the large snowpack in the Sierra Nevada Mountains. Visitors will be given the option to re-book for June 2018. This will affect 34 groups with a total of 135 individuals. By June 1, the park and Yosemite Hospitality will make a decision if the High Sierra Camps will open this summer. U.S. Fish and Wildlife Service Week Ahead Schedule of Meetings, Hearings, and Travel Nothing to Report Week Ahead Announcements and Actions On May 31, FWS will join agencies in Canada, other U.S. federal agencies, Canadian federal agencies, First Nations in Canada, and two federally recognized tribes in the U.S. (the Houlton Band of Maliseets and the Aroostook Band of Micmacs) at an event in Edmundston, Quebec, to sign the St. John Watershed Collaboration Agreement. The non-binding agreement affirms the relationship between these governments to restore sea-run fish species such as shad and herring 5 Assistant Secretary - Indian Affairs and the Bureaus of Indian Affairs and Indian Education Week Ahead Schedule of Meetings, Hearings, and Travel Week Ahead Announcements and Actions 10 Assistant Secretary for Land and Minerals Management Week Ahead Schedule of Meetings, Hearings, and Travel Nothing to report. Week Ahead Announcements and Actions On May 30, the BLM will participate in a tribal listening session regarding E.O. 13792, “Review of Designations Under the Antiquities Act,” hosted by the BIA in Billings, MT. The session will allow tribal members the opportunity to provide input on monuments prior to issuance of the Secretary’s interim report to the President on June 15. On May 31, BLM-MT Acting State Director Jon Raby will attend the annual Montana Association of State Grazing Districts meeting in Great Falls, MT, to provide a brief update on recent BLM activities in the State. The meeting is scheduled in conjunction with the Montana Stockgrowers mid-year meeting and Sen. Daines’ Agricultural Summit. On May 31 – June 1, to kick off June as Great Outdoors Month, Partners Outdoors 2017 will take place at the South Interior Building. This annual event brings partners from the public and private sectors together to highlight recreation community efforts and showcase innovation. BLM Acting Director Mike Nedd and BLM staff will participate. On May 31, BSEE Director Scott Angelle will discuss Bureau priorities at an All-Hands Meeting at BSEE’s Sterling office. Director Angelle will discuss these priorities, along with the FY2018 budget request, at a June 1 BSEE media roundtable with Washington, D.C., Louisiana, and trade media organizations. On June 1, BLM-CO Southwest District Manager Joe Meyer and staff will tour the West Elk Mine, owned by Mountain Coal Company, near Somerset, CO, to observe its longwall coal mining operations in connection with a two pending lease modifications. The lease modifications will add 800 and 922 acres to existing leases and will ensure coal reserves are recovered and not bypassed. The West Elk Mine employs over 300 people and produces 5.1 million tons of coal per year. The USFS has the lead, with the BLM as a cooperating agency, for analysis of the proponent’s request for a coal lease modification adjacent to the existing mine. On June 1, the BLM will participate in a tribal listening session regarding E.O. 13792, “Review of Designations Under the Antiquities Act,” hosted by the BIA in Phoenix, AZ. The session will allow tribal members the opportunity to provide input on monuments prior to issuance of the Secretary’s interim report to the President on June 15. On June 2, pending approval, BOEM plans to initiate the process of developing a new Five Year Outer Continental Shelf (OCS) Oil and Gas Program, with publication of a Request for Information and Comments. Notification letters will also be sent to all 50 Governors and several Federal agencies, as required under section 18 of the OCS Lands Act. This action will be taken 11 pursuant to the direction provided in the April 28, 2017, Executive Order entitled, “Implementing an America-First Offshore Energy Strategy” and Secretary’s Order 3350, issued on May 1, 2017. On June 3 – August 24, planned Trans-Alaska Pipeline system shutdowns will occur for maintenance and testing of emergency systems. The first 18-hour maintenance shutdown took place on May 6 to isolate the main incoming crude header for cleaning and inspection. Alyeska Pipeline Services Company and BLM-AK’s Branch of Pipeline Monitoring will observe the shutdowns. 12 Assistant Secretary Policy, Management and Budget Week Ahead Schedule of Meetings, Hearings, and Travel ● ● ● ● ● ● Who: Office of Wildland Fire (OWF), Director Bryan Rice What: National Association of State Foresters Wildland Fire Committee Meeting When: May 30-June 1, 2017 Where: St. Louis, Missouri Press: Closed Topic: Director Rice will provide an update on fire season readiness, discuss leader’s intent, and talk about Cohesive Strategy implementation. Week Ahead Announcements and Actions Border Security Infrastructure. Borderlands Coordinator Jon Andrew has been working with U.S. Customs and Border Protection to coordinate proposed additional security infrastructure on the U.S. Mexico border. Coordination efforts include a review of the need for tribal consultation and possible permitting for preconstruction planning work on DOI lands. Various meetings are being scheduled in the coming weeks. Internal Control and Audit Follow-up. The Department has an annual goal of closing 85% of corrective actions scheduled for closure in FY 2017 to address issues raised in OIG and GAO engagements. As of May 19, 2017, the Department has closed 32% of open audit recommendations scheduled for closure. DATA Act Compliance - Inspector General Review. The Inspector General has requested the Business Integration Office provide an overview of the DATA Act submission process including reconciliation. This review is scheduled for June 1, 2017. Secretary’s visit to National Interagency Fire Center (NIFC), Boise, ID, June 2, 2017. Secretary Zinke and Secretary Perdue are scheduled to visit the National Interagency Fire Center. Tentatively, the Secretaries will sign the 2017 Direction to Wildland Fire Leadership Memorandum, setting forth leaders’ intent to improve the way that both agencies manage wildfires by ensuring that all of our firefighting assets are utilized in the most efficient way possible. U.S. Department of the Interior Receives an “A+” on the FY 2016 Scorecard. The Small Business Administration has awarded the U.S. Department of the Interior an “A+” on its annual Small Business Procurement Scorecard. During Fiscal Year 2016, the Department awarded 59.67 percent of its procurement dollars (Federal government goal is 23%) to small business which equates to approximately $1.8 billion of the approximately $2.7 billion spent on contracts by the Department. Through the hard work and commitment of program managers, acquisition professionals, and senior officials, DOI excelled in meeting its procurement goals with small business. 13 Year 2017 Small Business Accomplishments to Date: As of May 10, 2017, the Department has awarded 54.04% of its contract award dollars to small businesses. The Department-wide small business goal, which was negotiated with the Small Business Administration (SBA), is 53.5%. The Department awarded 21.45% of its contract award dollars to small disadvantaged businesses and 13.91% of its contract award dollars to women-owned small businesses, exceeding the statutory goal of 5% for each. The Department awarded 3.12% of its contract award dollars to historically underutilized business zone small businesses and 3.06% of its contract award dollars to service-disabled veteran-owned small businesses. The statutory goal is 3% for each of these categories. 14 Assistant Secretary for Water and Science Week Ahead Schedule of Meetings, Hearings, and Travel Acting AS/WS Scott Cameron will be on AL the week of May 29 and back in the office June 7. Kerry Rae will be in DC all week. Week Ahead Announcements and Actions May 31: Funding Announced for Cooperative Watershed Management Program and Drought Contingency Planning Funding: On May 31, dependent on departmental approval, Reclamation will announce the selected funding for Cooperative Watershed Management Program and Drought Contingency Planning. The CWMP provides funding to watershed groups to encourage diverse stakeholders to form local solutions to address their water management needs. Through drought contingency planning, Reclamation provides financial assistance on a competitive basis for applicants to develop a drought contingency plan or to update an existing plan. [UPDATED] On May 31, USGS will announce a new Open-File Report that determines there were 28 species of cyanobacterium present during a 2016 harmful algal bloom (HAB) event in Lake Okeechobee, Florida. An extensive harmful algal bloom grew in Lake Okeechobee, the St. Lucie Canal and River and the Caloosahatchee River in Florida in 2016. In addition to the very visible bloom of the cyanobacterium Microcystis aeruginosa, this study identified several other cyanobacteria present in the HAB. These other species, though less conspicuous, have the potential to create a variety of toxins in addition to those commonly associated with microcystis. The report will be available from the USGS website and a news release is planned. Around June 1, USGS will release The USGS Integrated Drought Science Plan which represents a coordinated, in-depth path forward toward better understanding drought impacts to advance critical information necessary for decision-makers to strengthen long-term drought resilience in the coming decades. Drought poses a serious threat to the resilience of people, infrastructure, and ecosystems in the United States. The USGS identified drought-related research and our scientific capabilities to develop a coordinated multi-discipline science approach that brings the full USGS capacity to bear on this national crisis. Ultimately, this approach will help our Nation prepare for and cope with drought to protect people, infrastructure, the economy, and national security. The plan will be available on the USGS website and a technical release is planned. June 6: Reclamation to Launch New Prize Competition: On June 6, Reclamation will launch a prize competition for developing corrosion protection of infrastructure. The prize competition invites problem solvers to develop new or improved methods and applications. This competition will look at developing long-term corrosion protection of hydraulic steel structures in the field. A video describing the competition is prepared and will be used in the launch. 15 30-60 DAY LOOK-AHEAD Office of the Solicitor SIGNIFICANT LITIGATION DEADLINES FOR NEXT THREE WEEKS SEPARATELY REPORTED Assistant Secretary for Fish and Wildlife and Parks In late May or early June, FWS will publish a proposed rule and open a 30-day public comment period on the 2017-18 Refuge-Specific Hunting and Sport Fishing Regulations. The proposed rule would open various national wildlife refuges to hunting and/or sport fishing for the first time (new hunts) and expand hunting and fishing opportunities at others. In late May or early June, FWS plans to publish in the Federal Register the final 2017-18 hunting regulations for certain migratory game birds. FWS annually prescribes frameworks, or outer limits, for dates and times when hunting may occur and the number of birds that may be taken and possessed in hunting seasons. These frameworks are necessary to allow state selections of seasons and limits and to allow recreational harvest at levels compatible with population and habitat conditions. There are no substantive changes between the proposed regulations and the final. If-asked talking points will be available. In June, the NPS plans to initiate a 30-day public scoping on a plan to replace Grand Canyon National Park’s trans-canyon pipeline. The trans-canyon pipeline serves the park's South Rim, which supplies water to facilities serving more than 5 million visitors and 2,500 residents annually. The pipeline reached the end of its serviceable life and experiences frequent breaks. The cost to replace the pipeline is estimated at $131.8 million and construction is expected to begin in 2019. The NPS plans to hold public meetings at the park's South Rim and in Flagstaff, Arizona, and will consult with the park's 11 associated tribes. U.S. Fish And Wildlife Service Asian Carp In June, FWS plans to send the 2016 Water Resources Reform and Development Act (WRRDA) report to Congress. WRRDA includes direction from Congress to FWS to lead a multiagency effort to slow the spread of Asian carp in the Upper Mississippi River and Ohio River basins, in coordination with the U.S. Army Corps of Engineers, the National Park Service and the U.S. Geological Survey. Specifically, WRRDA calls for FWS to develop and deliver a report to Congress summarizing all activities and expenditures (both federal and non-federal) related to Asian carp prevention efforts in the two watersheds, as well as describing any observed changes in the range of Asian carp in Upper Mississippi River and Ohio River basins. Notable changes from the 2015 report include updates on a slight range expansion of silver carp, the movement of juvenile Asian carps in the sub-basins and additional information on the status of black carp. As 16 in previous years, the 2016 report will be made available to the public on AsianCarp.us. The report also outlines research that could improve the ability to control the spread of Asian carp and quantitative measures proposed for use in documenting progress in controlling the spread of Asian carp. Potentially controversial due to the slight range expansion of silver carp. No public outreach is planned; outreach to Congress will be conducted. Endangered Species Act Recovery Actions In early June, FWS plans to send to the Federal Register a notice designating two areas in northwest Oregon as nonessential experimental population areas for the reintroduction of Oregon silverspot butterflies. On June 7, FWS plans to formally recognize Fort Hood as the recipient of FWS’s Military Conservation Partner Award. FWS presents this award annually to a military installation whose efforts represent significant conservation accomplishments achieved in partnership with FWS and other conservation agencies. The U.S. Army Garrison Fort Hood Military Installation encompasses 218,824 acres in Bell and Coryell counties in Texas. Fort Hood is one of the Army’s premier installations, encompassing the largest area of any installation in the continental United States. It conducts the full range of mission-related training activities and also manages the largest known populations of the endangered golden-cheeked warbler and black-capped vireo. Outreach is planned. The ceremony is open to media. On June 15, FWS anticipates announcing the availability of the Mexican Wolf Draft Recovery Plan, First Revision (draft recovery plan). The Mexican wolf is listed as endangered under the Endangered Species Act. The draft recovery plan includes specific recovery criteria to be met to enable FWS to remove this species from the List of Endangered and Threatened Wildlife. FWS will seek review and comment on the revised plan from local, state and federal agencies; tribes; and the public, in both the United States and Mexico. Of significant Congressional interest. FWS will provide advance notification to Members prior to announcing availability of the recovery plan. FWS will host public meeting on the updated Mexican wolf recovery plan in late July. In late June, FWS will publish a notice of intent to prepare a draft Environmental Impact Statement and initiate scoping related to the Deschutes Basin Habitat Conservation Plan. In July, following publication of this notice, the Service will host four public scoping meetings in central Oregon to gather information for the NEPA analysis. The Deschutes Basin Board of Control and the city of Prineville are developing the plan to mitigate for the incidental take of three listed species – Oregon spotted frog, bull trout, and steelhead – resulting from operations of eight central Oregon irrigation districts. Media expected. While there are controversial issues with development of the habitat conservation plan, the notice and initiation of scoping is not expected to be controversial in itself. In early July, FWS plans to send to the Federal Register a notice announcing the availability of a draft post-delisting monitoring plan for the proposed delisting of gypsum wild-buckwheat for public review and comment. It will be finalized in concert with the decision on the final delisting rule in January 2018. 17 In early July, FWS plans to send to the Federal Register a notice announcing the availability of a draft post-delisting monitoring plan for the proposed delisting of lesser long-nosed bat for public review and comment. It will be finalized in concert with the decision on the final delisting rule in January 2018. In early July, FWS plans to send to the Federal Register a notice announcing the availability of a draft post-delisting monitoring plan for the proposed delisting of black-capped vireo plan for public review and comment. It will be finalized in concert with the decision on the final delisting rule in January 2018. Endangered Species Act Listing/Delisting Actions In early June, FWS plans to send to the Federal Register a final determination on the bureau’s March 11, 2016, proposal to identify the Greater Yellowstone Ecosystem (GYE) grizzly bear population of Montana, Idaho, and Wyoming as a distinct population segment (DPS) and revise the List of Endangered and Threatened Wildlife by removing grizzly bears within the GYE DPS due to recovery. Outreach is planned. In June, FWS expects to publish a notice announcing consideration of a draft Candidate Conservation Agreement (CCA), draft Candidate Conservation Agreement with Assurances (CCAA), and draft environmental assessment for the Texas hornshell (proposed for listing) and other covered species (Rio Grande River cooter, gray redhorse, blue sucker and Pecos springsnail), and an enhancement of survival permit application under the Endangered Species Act (ESA) submitted by the Center of Excellence. The covered area would include portions of Eddy County, New Mexico, and Culberson County, Texas. In early June, FWS plans to send to the Federal Register a final rule to remove the Hualapai Mexican vole, located in Arizona, from the list of endangered and threatened species due to the fact that the original taxonomic classification is no longer appropriate. Outreach is planned. In mid-June, FWS plans to send to the Federal Register a 12-month finding on a petition to list the San Felipe gambusia, a Texas fish. Outreach is planned. In late June, FWS plans to send to the Federal Register 12-month findings on petitions to list Kirtland's snake and the Mohave shoulderband snail. FWS is required by settlement agreement to submit the finding for the Mohave shoulderband snail to the Federal Register by June 30 and the finding for Kirtland’s snake to the Federal Register by September 30. Outreach is planned. In early July, FWS plans to send to the Federal Register a 12-month finding and proposed delisting determination on the Deseret milkvetch, found in Utah. Outreach is planned. FWS plans to send to the Federal Register a notice to reopen the comment period on proposed rules to list and designate critical habitat for the Guadalupe fescue, downlist the Tobusch fishhook cactus from endangered to threatened, downlist the Kuenzler hedgehog cactus from endangered to threatened, and delist gypsum wild-buckwheat. Stakeholder outreach is planned. The package is pending clearance by the Department. Migratory Bird Management Actions 18 Within the next 30-60 days, FWS plans to send to the Federal Register its annual proposal for administering tribal hunting, fishing, and gathering rights under multiple treaties for several federally recognized tribes in the Great Lakes region. The proposal has been compiled in consultation with the Great Lakes Indian Fish and Wildlife Commission, which represents 11 tribes in Minnesota, Wisconsin, and Michigan. FWS has informed the Wisconsin, Minnesota and Michigan DNRs of the agency’s support for these proposed regulations. A final decision will not be made until after public comments are reviewed and would not take effect until the fall 2017 hunting season. The proposal is expected to be controversial due to the inclusion of several new techniques for tribal members to take waterfowl. No outreach is planned. Through the Department, FWS will announce the approval of around $4 million in grants for 32 projects throughout the Americas as part of the Neotropical Migratory Bird Conservation Act grant program. Exact date and award amount are not yet determined. Outreach through the Department is planned. Energy FWS has concluded formal consultation with the Federal Regulatory Energy Commission (FERC) on the relicensing of the Loup River Hydroelectric Project in Nebraska. The Project is located on the Loup and Platte Rivers and diverts water from the Loup River into a power canal and then discharges it into the Platte River. Consultation began in 2008 and culminated with a final biological Opinion (Opinion) in December 2016. Species consulted upon include the endangered pallid sturgeon, endangered interior least tern and threatened piping plover. FERC accepted the opinion without objection as it was based on the information provided in the final Environmental Assessment, and FERC is currently in the process of issuing a final license. The applicant, Loup Power District (LPD), provided comments on the opinion and believes it to be restrictive on future operations. In January 2017, LPD wrote a letter to the FWS, FERC, DOI, Congressional members, and the Nebraska governor expressing its concerns about the opinion. On May 16, the FWS sent a response letter that does not accurately convey the tone the Secretary has established to LPD. The letter had NOT been cleared by the FWS/FWP policy staff who had already opened a dialogue with the applicant in April to look for a collaborative path forward. Direction has been provided to both HQ and regional FWS leadership to engage LPD expeditiously and resolve concerns appropriately. National Park Service In mid-June, when the Half Dome Cables are in place, Yosemite National Park is increasing the permit fees to hike to the summit of Half Dome. The nominal fee increase is due to the increased fees associated with the national bridge contract and passing these fees to the users. Public notification of the fee increase will be announced via a news release, and the cables are expected to go up later than usual this year due to the heavy snowpack. In July, the Great Smoky Mountains National Park fire assessment review will be released. In February, a team of fire experts (federal and state) convened at Great Smoky Mountains National Park to conduct an independent review of the 2016 Chimney Tops 2 fire that started in the park 19 on November 23. The purpose of the review is to assess the facts leading up to and during the Chimney Tops 2 fire within the boundaries of the park, as well as make recommendations on any planning, operational, or managerial issues which can be addressed locally, regionally, and/or nationally to reduce the chances of a similar incident in the future. The NPS has received tort claims related to this incident and expects additional lawsuits soon. Assistant Secretary - Indian Affairs and the Bureaus of Indian Affairs and Indian Education On May 24 – 26, BIA’s Division of Energy and Mineral Development staff will meet with representatives of the Crow Nation. The primary purpose of the visit is to hold a kick-off meeting for Crow Nation’s solar and biomass projects. The team will also discuss other tribal energy projects such as the hydro-electrification of the Yellowtail Dam Afterbay. On May 25, the Affiliated Tribes of Northwest Indians Mid-Year Conference will be held at the DoubleTree by Hilton in Portland, OR. On June 5-9, BIA’s Division of Real Estate Services (DRES) will be hosting their first 2017 National Realty Training at the National Indian Programs Training Center in Albuquerque, New Mexico. Training is open to BIA and Tribal (638 and Self-Gov) field realty staff. On June 12-15, the National Congress of American Indians (NCAI) 2017 Mid-Year Conference and Marketplace will take place at the Mohegan Sun in Uncasville, CT. On July 25-27, Tribal/Interior Budget Council meetings will take place at the Twin Arrows Navajo Casino Resort (22181 Resort Boulevard, Flagstaff, AZ 86004). Items of Note/Expected Legislative, Legal, Policy Issues Regulations Ready for OS Review ● None at this time. Regulations Pending IA Transition Team Review, Then Ready for AS-IA Signature ● Proposed rules pending publication: o Indian Electric Power Utilities (25 CFR 175): This proposed rule would not make any substantive changes to the regulations, but would revise the regulations to be in plain language. The regulations affect only a limited number of Tribes because there are only three BIA electric power utilities: Colorado River (serving the Colorado River Indian Tribes Reservation), Mission Valley Power (serving the Salish & Kootenai Tribes, Flathead Indian Reservation), and San Carlos Irrigation Project (serving Gila River Indian Community). ▪ Status: [No Change] The proposed rule will be presented to the AS-IA transition contact in preparation for AS-IA signature. Federal Register Notices Ready for OS Review 20 ● Advisory Board for Exceptional Children: The request for nominations of individuals to serve on the Advisory Board is ready for OS review. As of September 2017, there will be eight slots available; members serve staggered two-year terms. The notice of an upcoming meeting of the Advisory Board has been withdrawn in accordance with the May 5, 2017, memorandum directing postponement of meetings until September 2017. ● Trust Acquisitions for Cherokee Nation, Chickasaw Nation, and Wilton Rancheria: Five Federal Register notices announcing trust acquisitions that were finalized in the last Administration are pending approval for publication. The Department’s regulations require publication of notice of the acquisitions in the Federal Register. ● Paperwork Reduction Act notices: o Renewal of Agency Information Collection for Home-Living Programs and School Closure and Consolidation (60-day notice) o Renewal of Agency Information Collection for Application for Job Placement and Training Services (60-day notice) o Renewal of Agency Information Collection for Tribal Energy Development Capacity Program (60-day notice) ● Draft Programmatic EIS for the 2015 Integrated Resource Management Plan for the Colville Indian Reservation, Nespelem, Washington: This notice announces the availability of the draft programmatic environmental impact statement for public review and comment. Federal Register Notices Ready for AS-IA Signature ● Liquor Control Ordinances: Pueblo of Santa Clara: This notice announces that BIA certifies that the Tribe has amended its liquor control ordinance. Upcoming FACA Committee Notices ● BIE Negotiated Rulemaking on Accountability (25 CFR 30): The Every Student Succeeds Act (ESSA) requires BIE to use a negotiated rulemaking process to develop regulations for implementation no later than the 2017-2018 academic year and to define the standards, assessments, and accountability system consistent with Section 1111 of the Elementary and Secondary Education Act (ESEA) for the schools funded by BIE on a national, regional, or tribal basis. ▪ Status: [No Change] BIE is preparing a new notice of intent to establish the committee and solicitation for membership. Policy & Procedures ● Pending AS-IA ● 3 IAM 4: Delegation of Authority – Director, BIA to Deputy Bureau Director, Field Operations and to Regional Organizational Levels to include the changes to delegation in the Acting ASIA memo issued April 6, 2017, regarding Off- 21 Reservation Fee-to-Trust Decisions ● 18 IAM 5: Directives System to include necessary updates regarding the functions of the Office of Regulatory Affairs and Collaborative Action (RACA) Assistant Secretary for Land and Minerals Management In early June, OSMRE and BLM anticipate publishing a Notice of Availability for the Environmental Assessment (EA) for the King II Coal Lease Modification, initiating a 30-day comment period. OSMRE and BLM are co-leads in analyzing the proposed lease modification. The mine, which is located in Hesperus, CO, is operated by Grupo Cementos de Chihuahua (GCC Energy) of Mexico and employs 120 employees and subcontractors and would entail a 952-acre expansion. In early June, BSEE Director Scott Angelle will conduct Capitol Hill visits with majority and minority staff for relevant Congressional committees and offices. Office calls with certain individual members may also be scheduled. During the week of June 5, OSMRE anticipates publishing a Notice of Availability for the Bridger Mine Mining Plan Modification Draft EA, initiating a 30-day comment period. The Bridger Mine is an underground mine located in Sweetwater County, WY that employs 540 people. If the modification is approved, production is estimated to be 2.24 million tons per year. On June 6, BLM-AK State Director Bud Cribley will present an update on the status of the environmental cleanup at the Red Devil Mine in southwest AK to the Orutsararmiut Native Council in Bethel, AK. On June 7, BLM-MT Acting State Director Jon Raby will attend the annual Governor’s Fire Season Briefing in Missoula, MT. Hosted by the State, the briefing will also include representatives from the USFWS, BIA, USFS, and rural fire departments. On June 7, the BLM implementation lead for the Desert Renewable Energy Conservation Plan, Russell Scofield, will present an update at the annual Mojave Commanders’ Summit at Edwards Air Force Base. Military commanders and staff from the China Lake Naval Weapons Center, Navy Region Southwest, Fort Irwin, Edwards Air Force Base, and Twenty Nine Palms Marine Corps Base will attend. On June 7, BSEE officials will meet with representatives and counsel of Taylor Energy in New Orleans to discuss the current status of ongoing negotiations regarding disposition of the Taylor MC-20 site. On June 7, BSEE staff from the Houston and Gulf of Mexico offices will attend the Offshore Operators Committee (OOC) held at the Anadarko corporate office in Houston, TX. The OOC consists of representatives from offshore oil and gas companies and serves as the industry’s principal representative on matters related to the regulation of Gulf of Mexico offshore operations. 22 On June 8, BLM-CO will hold an online oil and gas lease sale for 86 parcels totaling 73,288 acres in Jackson, Routt, Rio Blanco and Moffat Counties. BLM-CO removed 20 parcels in Grand County from its original parcel list due to low energy potential and reduced industry interest in the geographic area, as well as concern from local government and the public regarding impacts to water resources. Bidding is not expected to be robust. On June 8, BLM-NM will hold an online oil and gas lease sale for 18 parcels totaling 4,376 acres in Roger Mills, Ellis, Canadian, and Major Counties, OK; and Live Oak, McMullen, Washington, Burleson, and Jackson Counties, TX. This sale may be controversial as BLM received 26 protests from homeowners adjacent to Lake Somerville, TX, regarding potential impacts to water quality. Bidding is not expected to be robust. On June 8 – 9, BLM-NV Elko District Office staff will host a booth at the annual Elko Mining Expo, which attracts an estimated 10,000 attendees and more than 400 vendors around the world. Staff will answer questions about mining and minerals, recreation, invasive weeds, and the wild horse and burro program. On June 9, BLM anticipates circulating for BLM and Department review the draft Venting & Flaring Interim Rule and supporting documents. The interim rule delays implantation of the final rule by 18 months which, in accordance with S.O. 3349, was reviewed and determined by the BLM to not be fully consistent with the President’s Executive Order “Promoting Energy Dependence and Economic Growth”. On June 11 - 14, BLM’s Wild Horse and Burro Program Division Chief Dean Bolstad will present updates on the program at the American Horse Council annual conference in Washington, DC. On June 12, the BLM will participate in a tribal listening session regarding E.O. 13792 hosted by the BIA in Uncasville, CT. The session, which is being held in conjunction with the National Congress of American Indians Mid-Year Conference, will allow tribal members the opportunity to provide input on Antiquities Act monuments prior to issuance of the Secretary’s interim report to the President on June 15. During the week of June 12, OSMRE plans to publish a Notice of Availability for the Cordero Rojo Mine Mining Plan Modification Draft EA, initiating a 30-day public comment period. Cloud Peak Energy’s Cordero Rojo Mine is a surface mine located in Campbell County, WY. The mine employs 383 people and produces approximately 20 million tons of coal per year. On June 12 – 16, Acting BLM-MT State Director Jon Raby plans to conduct courtesy visits with members and staff of the MT, ND and SD delegations in Washington, DC to discuss public land issues, including energy development, pipelines, grazing and rangeland, mining, and fire management. On June 13, BLM-MT will hold an online oil and gas lease sale for 156 parcels totaling 69,056 acres in Custer, Garfield, Fallon, Carter, Rosebud, Big Horn, and Powder River Counties. All of the parcels are located in the Miles City area. The sale is not expected to be controversial. The 23 bidding is not expected to be particularly robust. On June 13, BLM-UT will hold an online oil and gas lease sale for 20 parcels covering 23,733 acres in Sevier, Piute, Garfield, and Sanpete Counties. While approximately half of the parcels are within Sage-Grouse Priority Habitat Management Areas, the sale is not expected to be controversial. The bidding may be robust on a few parcels that are located close to a producing field. On June 14, BLM-NV will hold an online oil and gas lease sale for 106 parcels totaling 195,732 acres in Nye, Eureka, and Lander Counties. The sale is expected to be controversial based on public reaction to the lease Environmental Assessment, which included concerns regarding the proximity of the parcels to wetland areas and cultural sites. Bidding has the potential to be robust. On June 15, BLM plans to publish in the Federal Register a Notice of Intent to prepare an Environmental Impact Statement (EIS) for the West Antelope 3 Lease-by-Application for approximately 3,508.31 acres (containing approximately 441 million tons of in-place coal). The acreage is a tract of Federal coal adjacent to the Antelope Mine in Campbell and Converse counties, WY, and is necessary to maintain production at the existing mine. The notice will also announce the date of a public scoping meeting to be held in Wright, WY. On June 15, BOEM plans to hold a New York Offshore Renewable Energy Intergovernmental Task Force meeting. The purpose of the meeting is to discuss the status of current offshore renewable energy leases, receive lessee updates on future activities, and discuss the new unsolicited lease requests offshore Massachusetts and New York. In mid-June, BOEM, through its contractor, plans to conduct detailed geological surveys of specific areas off two Mid-Atlantic States. These surveys, coupled with already-underway geophysical surveys, are being conducted to determine potential volumes and the extent of new sand resources. This is a continuation of work initiated for the Atlantic Sand Assessment Project following Hurricane Sandy to identify new potential sand resources for future beach and coastal protection and restoration projects. On June 19, BLM plans to publish in the Federal Register a Notice of Intent to Prepare a Supplemental EIS for the Mont Hope Project, a new molybdenum mine, in Eureka County, NV. The project encompasses approximately 8,355 acres of new surface disturbance, 8,092 of which are on public lands administered by the BLM. The Supplemental EIS is being prepared following a decision by the Ninth Circuit finding the justification for air quality analysis insufficient. The SEIS will also supplement the analysis of public water reserves. On June 20 or June 27, the Senate Energy and Natural Resources Committee tentatively plans to hold a hearing on “Federal/State partnerships to Restore Landscapes.” A BLM witness, yet to be determined, will testify. On June 21, BOEM plans to hold Lease Sale 244 in Cook Inlet, AK. The lease sale will offer 224 blocks, consisting of approximately 1.09 million acres. Though turnouts for lease sales in 24 the Cook Inlet historically have been lower than other areas on the OCS, the Bureau believes that there is potential to receive bids for this sale. On June 21, BLM plans to hold an auction of Federally-owned crude helium. Under the Helium Stewardship Act of 2013, the BLM must offer for auction and sale annually a portion of the helium reserves stored underground at the Cliffside Gas Field, near Amarillo, Texas. The BLM anticipates auctioning 500 MMcf in a total of 30 lots for delivery in FY 2018. Following the auction, the BLM will offer an allocated sale in which helium is offered to refiners, and a nonallocated sale in which the helium is offered to non-refiners. In early summer, BOEM plans to publish a final rule to address the use of OCS sand, gravel, and shell resources for shore protection, beach restoration, or coastal wetlands restoration projects by Federal, state, and local government agencies for construction projects authorized by or funded in whole or part by the Federal Government. The rule will describe the negotiated noncompetitive agreement process and codify new and existing procedures. On June 22, BLM-Eastern States (ES) will hold an online oil and gas lease sale for 2 parcels totaling 160 acres in AR. Bidding is not expected to be robust, and the sale is not expected to be controversial. On June 22, BLM-WY will hold an online oil and gas lease sale for 26 parcels totaling 31,975 acres in Laramie, Carbon, Sweetwater, Sublette, and Uinta Counties. Bidding is not expected to be robust, and the sale is not expected to be controversial. On June 22, BLM and Okanogan-Wenatchee National Forest staff will hold a public scoping meeting on a 20-year mineral withdrawal proposal by the USFS for approximately 340,000 acres of land in the upper Methow River drainage in Washington State. Currently, there are preexisting mining claims in this area and valid existing rights will be honored. The proposed action will withdraw these lands from settlement, sale, location, and entry for a period of 20 years while Congress considers legislation introduced by U.S. Senators Murray and Cantwell to permanently withdraw the areas. On June 22 - 25, BLM-AK will partner with Project Healing Waters Fly Fishing to host an annual fly-fishing event for wounded veterans in the Delta Wild and Scenic River corridor. On June 23, BLM-OR’s Myrtlewood Field Office will hold the Crystal Clear Timber Sale (116 acres; 5,605 mbf) and First Floras Timber Sale (25 acres; 1,295 mbf). These sales may be controversial due to ongoing conflicts between conservation interests and the logging/timber industry. On June 26, four individuals charged with various crimes during the 2014 Gold Butte cattle impoundment are scheduled to be re-tried following the declaration of a mistrial on April 24, 2017. BLM-NV communications are being coordinated with BLM-WO and the Department of Justice. On June 26 - 30, BLM-CA State Director Jerry Perez plans to conduct courtesy visits with 25 members and staff of the CA Congressional delegation in Washington, DC to discuss public land management issues, including oil and gas development, planning efforts, wildfire, renewable energy, and recreation. On June 28, BSEE will hold a workshop with NASA on Probabilistic Risk Assessment (PRA). NASA will introduce its guide to PRA to industry stakeholders and solicit input on its potential application to offshore oil and gas projects. In late-June/early July, BLM plans to issue the Boardman to Hemingway Record of Decision. On February 28, BLM received the Biological Opinion from the National Marine Fisheries Service. BLM-OR land use plan amendments are being handled concurrently and the decision will be issued simultaneously with the ROD for the EIS and approval to issue a right-of-way grant. The ROD will be set up for ASLM approval and will be submitted in advance for review. On July 7, BOEM will publish a Notice of Availability of the Final Supplemental EIS for the Cape Wind Project. This is EIS will supplement the 2009 Final EIS and is being prepared pursuant to a remand order from the D.C. Circuit Court. Publication of the Record of Decision for the project is planned for August 11. In mid-July, OSMRE Western Region plans to publish a Notice of Availability for the John Henry Mine Mining Plan Modification draft EA and unsigned FONSI, initiating a 30-day public comment period. Pacific Coast Coal Company’s John Henry Mine is a surface mine located in King County, Washington. On July 13, the BLM-AK Glennallen Field Office will begin issuing permits for the 2017 - 2018 Unit 13 Federal subsistence moose and caribou hunting seasons. The BLM issues nearly 3,500 Federal subsistence permits annually and provides permitting opportunities to rural residents in Delta Junction, Cantwell, Slana, and Glennallen. Federal subsistence hunting maps, answers to frequently asked questions, and subsistence education materials and links are updated annually, and available at the BLM Glennallen Field Office. On July 17, BOEM plans to publish the Final Notice of Sale and Record of Decision for GOM Lease Sale 249. The sale is scheduled for August 16 and will be the first lease sale under the 2017-2022 OCS Oil & Gas Program as well as the first region-wide sale. On August 3, BLM-NV Las Vegas Field Office will hold the spring land sale under the Southern Nevada Public Land Management Act (SNPLMA) in Las Vegas. The BLM proposes to offer 81.25 acres of public land in 17 parcels for competitive sale. In accordance with SNPLMA, funds generated by this proposed sale will be used for projects such as the development of parks, trails, and natural areas, capital improvements on Federal lands, acquisition of environmentally sensitive land, and Lake Tahoe restoration projects. Five percent of the sale revenue will be directed to the State of Nevada General Education Fund and ten percent to the Southern Nevada Water Authority. Assistant Secretary Policy, Management and Budget 26 New Interagency Borderlands Coordinator. On June 11, 2017, Brent Range, Superintendent at Organ Pipe Cactus National Monument, will begin work as the Interagency Borderlands Coordinator. Transition meetings will be scheduled for locations along the border with key leadership and staff later this month and in June. Capitol Hill Ocean Week (CHOW) and World Oceans Day, June 13–15, 2017. Capitol Hill Ocean Week, hosted by the National Marine Sanctuaries Foundation, will be held in Washington, DC. PPA and the DOI Senior Ocean Policy Team are coordinating DOI’s participation in CHOW. World Oceans Day is on June 8, 2017 and June has also historically been proclaimed as National Oceans Month. Columbia River Treaty (CRT) Collaborative Modeling Workshop, Vancouver, Canada, June 16, 2017. Office of Environmental Policy and Compliance (OEPC), Bureau of Reclamation (BOR) and US Geological Survey (USGS) will attend and participate in this workshop in Vancouver. The modeling workshop was established by the State Department and Canada’s Global Affairs to conduct technical modeling of alternative operations of CRT reservoirs, and the resulting operational changes to Canadian and U.S. reservoirs. This information is anticipated to be able to support the negotiations between the United States and Canada to modernize the Columbia River Treaty when those formal negotiations are approved to begin. Participants include representatives from state, federal, and tribal government agencies, as well as from the Public Utility Districts which operate dams and reservoirs on the Columbia River and are directly affected by the CRT. Wildland Fire Leadership Council (WFLC), June 15, 2017. The Wildland Fire Leadership Council in-person meeting was cancelled. DAS-PRE Humbert and Director Rice will participate in the one hour conference call. Eagle Horizon Exercise, Site C, June 21, 2017. The entire Department of the Interior COOP team will participation in the interagency Continuity of Operations (COOP) Exercise EAGLE HORIZON 17 (EH-17) to provide incoming senior leadership insight into the operational aspects of the Department’s COOP and Devolution plans, to include the functionality of the Department’s alternate sites, and a review of the Department’s Primary Mission Essential Functions (PMEFs), Mission Essential Functions (MEFs) and Essential Supporting Activities (ESAs) which are the primary focus during catastrophic emergencies. 41st Annual National Indian Timber Symposium, Yakima, Washington, June 25-29, 2017. DAS-PRE Humbert and Office of Wildland Fire Director will be attending this symposium. Director Rice will speak on two panels on June 26 and 27 and DAS-PRE Humbert will provide the DOI Wildland Fire Update on June 29. Border Security. A leadership meeting on southwest border security and environmental protection is now expected to take place in September 2017 (date TBD) in Tucson, AZ. Planning for possible border security is expected to be the main focus of the meeting. Senior officials at DOI, CBP, U.S. Border Patrol and USDA Forest Service are expected to attend. New Government Accountability Office (GAO) Audits Implementation of the Automated Commercial Environment (ACE) (Job Code 101338). 27 The Trade Facilitation and Trade Enforcement Act (TFTEA) of 2015 requires GAO to review implementation of ACE by Customs and Border Protection (CBP) and other Federal agencies that work with CBP to enforce U.S. customs and trade laws. GAO will review: (1) to what extent Federal agencies other than CBP are accessing and utilizing ACE; and (2) potential cost savings and trade law enforcement benefits that may result from implementation of the elements identified in TFTEA. The entrance conference with the Fish and Wildlife Service is not scheduled. GAO Entrance Conferences San Francisco Bay Watershed Restoration Efforts (Job Code 101963) – May 26, 2017, with FWS, U.S. Geological Survey, National Park Service, and Bureau of Reclamation (BOR) Staff. Per request from the Chair and Ranking Member of the House Committee on Transportation and Infrastructure, GAO plans to review: (1) San Francisco Bay watershed restoration efforts and related expenditures for fiscal years 2007 through 2016; (2) how effectively and through what means are Federal and other entities coordinating their San Francisco Bay watershed restoration efforts; (3) extent to which Federal and other entities have developed measurable goals and assessed progress for San Francisco Bay watershed restoration efforts; and (4) stakeholder views on factors that may affect or limit the San Francisco Bay watershed restoration progress. Freedom of Information Act (FOIA) Compliance (Job Code 101411) – May 25, 2017, with the Departmental FOIA Officer. Per request from the Chairman and Ranking Member of the House Committee on Oversight and Government Reform, Chairman and Ranking Member of the Senate Committee on the Judiciary, Chairman of the House Committee on the Judiciary, Subcommittee on Courts, Intellectual Property, and the Internet, and Chairman of the Senate Committee on the Judiciary, Subcommittee on the Constitution, GAO will: (1) determine the extent to which selected agencies have implemented certain FOIA requirements, including methods to reduce backlogged requests, and policies to allow non-custodians to respond to Congressional and FOIA requests; (2) identify the use of statutory exemption (b) (3) as the basis for redacting records; (3) determine if any FOIA requests were received and processed by agencies related to entities that received assistance under Title 1 of the Emergency Economic Stabilization Act of 2008; and (4) determine the number of times court decisions about agencies’ improper withholding of records resulted in administrative actions against responsible agency personnel. GAO Exit Conference/Pending Reports Drinking Water and Wastewater Infrastructure Coordination (Job Code 100758) – May 25, 2017, with BOR staff. Per request from Ranking Member Grace Napolitano, Subcommittee on Water Resources and Environment, Committee on Transportation and Infrastructure, U.S. House of Representatives; Jared Huffman, Ranking Member, Subcommittee on Water, Power and Oceans, Committee on Natural Resources, U.S. House of Representatives; and Paul Tonko, Ranking Member, Subcommittee on Environment and the Economy, Committee on Energy and Commerce, U.S. House of Representatives, GAO reviewed: (1) which agencies provide funding for drinking water and wastewater infrastructure and the role they play in meeting drinking water 28 and wastewater infrastructure needs; (2) 110w Federal agencies identify drinking water and wastewater? infrastructure needs: and (3) Federal agency coordination of efforts to address drinking water and wastewater infrastructure needs. Recent Final GAO Reports Avian In?uenza: USDA Has Taken Actions to Reduce but Needs a Plan to Evaluate Its Efforts GAO issued the final report May 11. 2017? and reconmrends that USDA develop a plan for evaluating the effectiveness of the corrective actions it has taken. No r'ecormnendations and further action is required of the Department. Recent Draft OIG Reports Assistant Secretary for Water and Science 011 June 5, USGS will announce a new paper ?nding that westward ice drift has increased in the Beaufort and hukchi seas. causing polar bears to expend more energy walking eastward on a faster moving ?treadmill? of sea ice. USGS and University of Wyoming scientists evaluated the behavioral and energetic consequences to the bears from the changing sea ice drift. The energetic costs to polar bears contending with faster ice drift are happening at the same time the bears are contending with rapid and expansive ice melt during sunmrer that reduces their ability to Inuit seals and creates a complex environment of ice and water that is more dif?cult to travel across. The paper will be published in Global Change Biology. and a news release is planned. June 5-8: Central Valley Project Tour for Acting Commissioner )Iikkelsen (CA): Reclamation?s Mid-Paci?c Region is planning a tour of Central Valley Project facilities for Acting C?ormnissioner Alan hr?likkelsen. The tour is tentatively scheduled June 5-8. June 12: Secretary to Host Call with Colorado River Basin States: On June 12. Secretary 29 Zinke will host a call with the seven Colorado River Basin States. The primary purpose of the call will be to meet and greet, and establish a working relationship with the Basin States Governors representatives in his role as Watermaster of the Lower Colorado River Basin. In early June, USGS and partners will use nutrient load data and modeling to forecast the size of the hypoxic zone in the Gulf of Mexico this year. For years, the USGS has partnered with NOAA and other organizations to estimate the size of the area of low to no oxygen in the Gulf of Mexico. The actual size of the dead zone will be announced in early August. June 26-28: Multi-Agency National Invasive Species Council Meeting (MT): From June 2628, Special Assistant to the Secretary Scott Cameron and Reclamation will participate in a meeting sponsored by the National Invasive Species Council (NISC). The meeting will be held concurrent with the June 26-28 Western Governors’ Association Meeting in Whitefish, MT. Several DOI agencies and the DOI Office of Policy Analysis will also participate. The meeting aims to integrate policy among federal and state (and possibly tribal) partners that will improve the prevention, eradication, and containment of aquatic invasive species in the Pacific Northwest. In addition, the group will study ways to reduce the risk of zebra/quagga mussel introduction into the Columbia River Basin. June 28: Cameron and Mikkelsen to Testify on Reclamation Budget: On June 28, Special Assistant to the Secretary Scott Cameron and Acting Commissioner Alan Mikkelsen will testify before the Senate Energy and Water Development Appropriations Committee, in a joint hearing with the Army Corps of Engineers, on the Bureau of Reclamation’s fiscal year 2018 budget. June: Funding Opportunity Posted for Water Infrastructure Improvements for the Nation (WIIN) Act Section 4009: In June, Reclamation will post a funding opportunity seeking proposals for projects under WIIN Section 4009. The Act provides a path for new desalination and water recycling projects to become eligible to compete for federal funding under a competitive process. Projects are eligible if the project sponsor has a Reclamation-reviewed desalination or water recycling feasibility study and Reclamation has notified Congress stating the feasibility study meets Reclamation's requirements. Reclamation is planning on notifying Congress in May. In June, FEMA will release a report on estimated annual losses from earthquakes in the United States. USGS science on earthquake hazards was a critical component to this analysis. The report concludes that earthquakes are estimated to cost the nation $6.1 billion annually in building stock losses. The last report was published in 2008, and the new estimate incorporates the most recent USGS earthquake hazard maps. USGS will work with FEMA on coordinated outreach on the report. By the end of June: Reclamation Announces Winners for Stage I of the Arsenic Sensor Challenge: By the end of June, Reclamation will announce the selected ideas for the Arsenic Sensor Challenge that sought ideas for a rapid, low-cost monitoring of arsenic that would benefit water treatment plant operations, wastewater monitoring, contaminated site remediation, private well owners, scientific research and other interested parties. 30 July 6-7: Congressman Costa’s Northern California Tour (CA): On July 6-7, Congressman Jim Costa is planning to visit the Bureau of Reclamation’s Shasta Dam, Red Bluff Fish Passage Improvement Project, the sites reservoir location and the state of California’ Oroville Dam. More information to come. In the coming weeks, the Department will release a new USGS report on critical minerals for the United States. This publication presents resource and geologic information for 23 mineral commodities currently viewed as important to our national economy and national security, many of which are sourced entirely outside of the United States. The report provides an in-depth look at each commodity's use, distribution of deposit types, and current status of production, resources, and reserves. The individual commodity chapters serve as an update to the 1973 commodity chapters of USGS Professional Paper 820, United States Mineral Resources. A DOI news release is planned. In the coming weeks, USGS will announce a new update report on Pacific walrus demographics. USGS walrus research has focused on demographics, habitat use, sea ice projections, and energetics, and this update will add to this body of knowledge by providing the results of a population dynamics model that synthesizes population size, age structure, reproductive rates, and harvest for the period 1974-2015. The research, conducted in collaboration with the Alaska Department of Fish and Game and the USFWS, shows that the walrus population has halved in that amount of time. However, the population decline lessened over time, and the odds that the population is still decreasing are roughly equal to the odds that it is stationary or possibly increasing. By September 30, USFWS is required to make a listing decision on the Pacific walrus. The USGS role is to provide objective science to help inform the decision. The findings will be published in Marine Mammal Science and a news release is planned. In the coming weeks, USGS will announce a new assessment of undiscovered potash resources of the Pripyat Basin of Belarus and the Dnieper-Donets Basin of Ukraine. The study was undertaken because potash is a critical mineral resource for agricultural production, and these deposits are in a geopolitically sensitive area of interest. A technical announcement is planned. 31 WEEKLY REPORT TO THE SECRETARY DEPARTIWENT OF THE INTERIOR May 24, 2017 Of?ce of the Solicitor Week Ahead Schedule of Meetin 5 Con ressional Hearin and Travel Week Ahead Announcements and Actions Wednesday, May 24, 2017 I. OSMRE A. II. III. BLM A. Venting & Flaring Rule Case B. Twin Metals C. Citizens for Clean Energy D. Comments on EPA’s CERCLA 108(b) rule E. Juliana v. U.S. BOEM A. Five Year Program B. League of Conservation Voters C. Earning extended terms D. Sale 249 issues--royalties, RUEs E. Supplemental DPP for fracking F. IV. ESA consultation Draft memo for your review: Enforcement of bonding orders BSEE A. Taylor B. Time Between Operations C. Inspector General Idle Iron report D. Island Operating IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA FRANCONIA MINERALS (US) LLC and TWIN METALS MINNESOTA LLC, Plaintiffs, v. UNITED STATES OF AMERICA, et al., Defendants, and NORTHEASTERN MINNESOTANS FOR WILDERNESS, Defendant-Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL NO. 16-3042 SRN/LIB MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ SUPPLEMENTAL AND AMENDED COMPLAINT 4' Commented [c3w1] Commented - Commented Commented - Commented .I?l Formatted: Normal \u Formatted: Space Before: 0 pt, After: 0 pt Formatted: Normal Formatted: Font: Italic Formatted: Font: Italic Formatted: Font: Italic Formatted: No underline Date: May 19, 2017 To: Jack Haugrud Acting Solicitor From: Tom Bovard Acting Associate Solicitor Division of Mineral Resources Subject: DMR Friday Updates to Weekly Report Below is a list of new or updated items that did not appear in the weekly report that may require the attention of the front office during the week of May 22-26 or thereafter: Significant Decisions: ● Nothing to report. Litigation: ● (b) (5) 2 (b) (5) Legislation: ● Nothing to report. Correspondence/Agency Actions: ● (b) (5) Rulemakings: ● (b) (5) 3 Meetings: cc: Karen Hawbecker/Dennis Daugherty/Richard McNeer M-Opinion reversal arguments Commented Wednesday, May 17, 2017 I. OSMRE A. Attorneys’ fees issues: Defenders of Wildlife, Marfork, Usibelli C. ESA consultation B. II. BLM A. Venting & Flaring Rule Case C. Citizens for Clean Energy B. III. Twin Metals D. Mineral Materials Sales for Federal Aid Highways. A. Briefings of ASLMM 5-18-17 10 a.m. SLA boundaries Virginia and Alaska 11 a.m. Five Year Program with or without EIS BOEM B. C. D. IV. Memo on terminating rulemaking petitions E. BSEE A. B. Atlantic seismic League of Conservation Voters litigation Sale 249 & Royalty rates Draft memo for your review: Enforcement of bonding orders Unitization Taylor C. Pacific Well Stim Litigation D. BSEE Director briefings next week CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 1 of 26 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA FRANCONIA MINERALS (US) LLC and TWIN METALS MINNESOTA LLC, Plaintiffs, v. UNITED STATES OF AMERICA; U.S. DEPARTMENT OF THE INTERIOR; SALLY JEWELL, Secretary of the U.S. Department of the Interior; HILARY C. TOMPKINS, Solicitor, U.S. Department of the Interior; and BUREAU OF LAND MANAGEMENT, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL NO. 16-3042 SRN/LIB MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 2 of 26 TABLE OF CONTENTS I.  INTRODUCTION .................................................................................................... 1  II.  BACKGROUND ...................................................................................................... 1  III.  STANDARD OF REVIEW...................................................................................... 5  IV.  ARGUMENT ........................................................................................................... 6  V.  A.  The Court lacks jurisdiction over Plaintiffs’ APA claims because they do not challenge a final agency action .......................................................... 6  B.  This Court Lacks Jurisdiction Over Plaintiffs Claims Because They Are Not Ripe for Review ............................................................................ 13  C.  Dismissal of Plaintiffs’ Quiet Title Act Cause of Action is Appropriate Where there is no Title Dispute. ............................................. 17  CONCLUSION ...................................................................................................... 20  i CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 3 of 26 TABLE OF AUTHORITIES Cases  Abbott Labs. v. Gardner, 387 U.S. 136 (1967) ............................................................................................. 7, 10, 14 Air Brake Sys., Inc. v. Mineta, 202 F. Supp. 2d 705 (E.D. Mich. 2002) ........................................................................ 11 Air Cal. v. U.S. Dep’t of Transp., 654 F.2d 616 (9th Cir. 1981) ......................................................................................... 11 Alaska v. United States, 201 F.3d 1154 (9th Cir. 2000) ....................................................................................... 19 Am. Ins. Co. v. St. Jude Med., Inc., 597 F. Supp. 2d 973 (D. Minn. 2009) ............................................................................ 13 Bennett v. Spear, 520 U.S. 154 (1997) ............................................................................................... 6, 7, 12 Berry v. U.S. Dep’t of Labor, 832 F.3d 627 (6th Cir. 2016) ........................................................................................... 6 Block v. North Dakota ex rel Bd. of Univ. and Sch. Lands, 461 U.S. 273 (1983) ................................................................................................. 17, 18 Cadorette v. United States, 988 F.2d 215 (1st Cir. 1993) .......................................................................................... 18 Carlson Holdings, Inc. v. NAFCO Ins. Co., 205 F. Supp. 2d 1069 (D. Minn. 2001) ............................................................................ 6 Ctr. For Native Ecosystems v. Salazar, 711 F. Supp. 2d 1267 (D. Colo. 2010)............................................................................. 8 DRG Funding Corp. v. Sec’y of Housing & Urban Dev., 76 F.3d 1212 (D.C. Cir. 1996) ....................................................................................... 11 FTC v. Standard Oil Co. of Cal., 449 U.S. 232 (1980) ....................................................................................................... 16 Fund for Animals, Inc. v. U.S. BLM, 460 F.3d 13 (D.C. Cir. 2006) ........................................................................................ 11 Gen. Chem. (Soda Ash) Partners, 176 IBLA 1 (2008) .......................................................................................................... 4 ii CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 4 of 26 Georator Cotp. v. EEOC, 592 F.2d 765 (4th Cir. 1979) ......................................................................................... 10 Hawkes Co., Inc. v. U.S. Army Corps of Eng’rs, 782 F.3d 994 (8th Cir. 2015) ......................................................................................... 12 Hinton v. Udall, 364 F.2d 676 (D.C. Cir. 1966) ..................................................................................... 8, 9 Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013) ......................................................................................... 16 Kane County v. United States, 772 F.3d 1205 (10th Cir. 2014) ..................................................................................... 17 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) ......................................................................................................... 5 Lane v. Pena, 518 U.S. 187 (1996) ....................................................................................................... 17 Lane v. U.S. Dep't of Agric., 187 F.3d 793 (8th Cir. 1999) ......................................................................................... 14 Lehman v. Nakshian, 453 U.S. 156 (1981) ....................................................................................................... 17 Massachusetts v. EPA, 415 F.3d 50 (D.C. Cir. 2005) ........................................................................................... 8 McKay v. United States, 516 F.3d 848 (10th Cir. 2008) ....................................................................................... 19 McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178 (1936) ......................................................................................................... 5 Miami Tribe of Okla. v. United States, 198 F. App'x 686 (10th Cir. 2006)............................................................................... 7, 9 Mills v. United States, 742 F.3d 400 (9th Cir. 2014) ......................................................................................... 17 Minn. Pub. Util. Comm'n. v. FCC, 483 F.3d 570 (8th Cir. 2007) ................................................................................... 13, 15 Minn. Sch. Bd. Ass’n Ins. Trust v. EEOC, 184 F. Supp. 2d 899 (D. Minn. 2001) ............................................................................ 10 Missouri v. Cuffley, 112 F.3d 1332 (8th Cir. 1997) ....................................................................................... 13 iii CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 5 of 26 Missourians for Fiscal Accountability v. Klahr, 830 F.3d 789 (8th Cir. 2016) ......................................................................................... 15 Moubry v. Indep. Sch. Dist. No. 696, 951 F. Supp. 867 (D. Minn. 1996) ................................................................................... 6 Nat’l Automatic Laundry & Cleaning Council, 443 F.2d 689 (D.C. Cir. 1971) ................................................................................. 12, 13 Nat'l Park Hosp. Ass'n v. Dep't of Interior, 538 U.S. 803 (2003) ................................................................................................. 15, 16 Navajo Nation v. U.S. Dep't of Interior, 819 F.3d 1084 (9th Cir. 2016) ......................................................................................... 8 Neb. Pub. Power Dist. v. MidAmerican Energy Co., 234 F.3d 1032 (8th Cir. 2000) ................................................................................. 14, 16 Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726 (1998) ....................................................................................................... 15 Parrish v. Dayton, 761 F.3d 873 (8th Cir. 2014) ............................................................................... 1, 15, 16 Port of Boston Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62 (1970) ..................................................................................................... 6, 13 Ripplin Shoals Land Co., LLC v. U.S. Army Corps of Eng’rs, 440 F.3d 1038 (8th Cir. 2006) ....................................................................................... 14 Rocky Mountain Oil & Gas Ass’n v. Watt, 696 F.2d 734 (10th Cir. 1982) ......................................................................................... 8 Sabella v. United States, 863 F. Supp. 1 (D.D.C. 1994) .......................................................................................... 8 Sackett v. EPA, 182 S. Ct. 1367 (2012) ................................................................................................... 12 Sierra Club v. U.S. Army Corps of Eng’rs, 446 F.3d 808 (8th Cir. 2006) ........................................................................................... 7 Texas v. United States, 523 U.S. 296 (1998) ....................................................................................................... 15 U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807 (2016) ........................................................................................... 6, 7, 12 United States v. Bedford Assocs., 657 F.2d 1300 (2d Cir. 1981) .................................................................................. 17, 18 iv CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 6 of 26 United States v. Mottaz, 476 U.S. 834 (1986) ....................................................................................................... 18 United States v. Sherwood, 312 U.S. 584 (1941) ....................................................................................................... 17 Statutes  5 U.S.C. § 704 ..................................................................................................................... 7 16 U.S.C. § 508b ................................................................................................................. 5 28 U.S.C. § 1491 ............................................................................................................... 19 28 U.S.C. § 2409a .......................................................................................................... 1, 17 28 U.S.C. § 2409a(a) ................................................................................................... 17, 18 28 U.S.C. § 2409a(d) ......................................................................................................... 17 Rules  Fed. R. Civ. P. 12(b)(1) ....................................................................................................... 5 Fed. R. Civ. P. 12(h)(3) ....................................................................................................... 6 Regulations  43 C.F.R. § 3221.4(f) ........................................................................................................... 2 43 C.F.R. § 3503.20 ............................................................................................................. 5 43 C.F.R. § 3514.25 ..................................................................................................... 10, 15 Other Authorities  U.S. Dep’t of the Interior, Departmental Manual, 209 DM 3.2(11) (Mar. 16, 1992) ....... 10 v CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 7 of 26 I. INTRODUCTION This Court lacks jurisdiction to entertain this action for three reasons. First, the Complaint fails to challenge final agency action as required by the Administrative Procedure Act (“APA”). Instead, the Complaint challenges an opinion by the Solicitor of the Department of the Interior (“Department”) — the M-Opinion — which merely opines on whether the Department has the authority not to renew the leases at issue here. The MOpinion neither recommends a course of action nor mandates any particular outcome. Unless and until the Department renders a decision on whether to renew Plaintiffs’ leases, this suit cannot lie. Second, because there is no final agency action, this matter is not ripe. Plaintiffs’ suit questions whether the Department will renew their leases, but such a “hypothetical or speculative disagreement” is not ripe for review. Parrish v. Dayton, 761 F.3d 873, 875 (8th Cir. 2014) (internal citation and quotation marks omitted). Finally, Plaintiffs do not make the requisite showing under the Quiet Title Act (“QTA”), 28 U.S.C. § 2409a, that there is a dispute over title. Plaintiffs instead attempt to parlay a dispute over lease terms into a real property dispute. But a contract dispute does not provide a cognizable cause of action under the QTA. For these reasons, dismissal of Plaintiffs’ Complaint is appropriate. II. BACKGROUND On June 1, 1966, the United States, through the Bureau of Land Management (“BLM”), issued two hardrock mineral leases, MNES 1352 and MNES 1353, to the International Nickel Company, Inc. (“INCO”). Compl. Ex. 1, ECF No. 1-1. The leased lands are located in the Superior National Forest, south of the Boundary Waters Canoe 1 CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 8 of 26 Area Wilderness. Compl. (ECF No. 1) ¶ 47. The leases conveyed to INCO “the exclusive right to mine, remove, and dispose of all the copper and/or nickel minerals and associated minerals” within the area covered by each lease. ECF No. 1-1, § 1(a). By its own terms, each lease was valid for a “period of twenty (20) years with a right in the Lessee to renew the same for successive periods of ten (10) years each in accordance with regulation 43 C.F.R. § 3221.4(f) and the provisions of this lease.” Id. Section 5 of each lease set forth “Renewal Terms.” Id. § 5. This section stated in part: The Lessor shall have the right to reasonably readjust and fix royalties payable hereunder at the end of the primary term of this lease and thereafter at the end of each successive renewal thereof unless otherwise provided by law at the time of the expiration of any such period, and to readjust other terms and conditions of the lease, including the revision of or imposition of stipulations for the protection of the surface of the lands as may be required by the agency having jurisdiction thereover; provided, however, that the Lessee shall have the right to three successive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of the lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day. The Secretary of the Interior may grant extensions of time for commencement of production in the interest of conservation or upon a satisfactory showing by the Lessee that the lease cannot be successfully operated at a profit or for other reasons, and the Lessee shall be entitled to renewal as herein provided without readjustment except of royalties payable hereunder if at the end of the primary or renewal period such an extension shall be in effect, but the Lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time. Id. BLM renewed the leases twice, in 1989 and 2004. See Compl. Exs. 2 & 3, ECF Nos. 1-2 & 1-3. The 1989 renewed leases were titled “Renewal Preference Right Lease” and utilized BLM’s standard lease form, Form 3520-7 (December 1984). ECF No. 1-2. 2 CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 9 of 26 The renewed leases were effective “for a period of ten years” and gave INCO a “preferential right . . . to renew for successive periods of ten years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.” Id. The 1989 renewals attached the original 1966 leases and included two “special stipulations” stating that “The terms and conditions of the production royalties remains as stated in the attached original lease agreement” and “The minimum annual production and minimum royalty is $10.00 per acre or a fraction thereof as stated in the attached original lease agreement.” Id. § 14. The 2004 renewed leases were titled “Preference Right Lease Renewal” and also utilized BLM’s standard 1984 lease form. ECF No. 1-3. Like the 1989 renewals, the 2004 renewed leases were effective “for a period of 10 years” and conveyed to American Copper and Nickel Company, the successor of INCO, a “preferential right . . . to renew for successive periods of 10 years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.” Id. The 2004 renewals attached the original 1966 leases and included the same two special stipulations included in the 1989 renewals. Id. § 14. On October 16, 2012, Beaver Bay, Inc., the successor of American Copper and Nickel Company, and Franconia Minerals (US) LLC, Beaver Bay’s joint venture partner, jointly submitted an application for a third renewal of the leases. Comp. Ex. 9, ECF No. 1-9; Compl. ¶¶ 73-75. After receiving the application, BLM asked the Solicitor of the Department of the Interior for guidance as to “whether it has the discretion to grant or 3 CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 10 of 26 deny” the pending application for renewal of the two leases. Compl. Ex. 4, ECF No. 1-4 at 1. On March 8, 2016, Solicitor Hilary C. Tompkins issued a Memorandum Opinion, M-37036, concluding that “Twin Metals Minnesota does not have a non-discretionary right to renewal, but rather the BLM has discretion to grant or deny the pending renewal application.” Id. The Solicitor found that the terms of the 2004 renewed leases, rather than those of the original 1966 leases, controlled. Id. at 5-6. Because the 2004 renewed leases provide a “preferential right of renewal,” the lessee was not entitled to renewal of the leases but, rather, had a “legal right to be preferred against other parties, should the Secretary, in the exercise of his discretion, decide to continue leasing.” Id. at 5 (quoting Gen. Chem. (Soda Ash) Partners, 176 IBLA 1, 3 (2008)). Nonetheless, the Solicitor went on to consider the terms of the original 1966 lease, as urged by Plaintiffs’ counsel in a January 26, 2016 memorandum to the Department. Id. at 6 & n.12. The Solicitor analyzed the language of Section 5 of the original 1966 leases and found it to mean that “even if the Secretary can and does, as a matter of discretion, renew the lease to extend the time to commence production, there is no right to a further renewal when production has not begun at the end of the first renewal-extension period.” Id. at 8-9. For that reason, the Solicitor concluded that “the lessee has not established a non-discretionary right to a third ten-year renewal” and “BLM has the same discretion regarding whether to renew the lease for a third time as it had in determining whether to grant the initial lease.” Id. at 13. 4 CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 11 of 26 To date, BLM has not acted on Plaintiffs’ pending renewal application. Before it does so, the surface managing agency, the United States Forest Service, must indicate whether it consents to the proposed renewal. 16 U.S.C. § 508b; 43 C.F.R. § 3503.20. On June 6, 2016, BLM issued a letter to the Forest Service requesting, in writing, a decision on whether the agency consents or does not consent to renewal of the leases. The Forest Service has not yet issued a consent decision. On September 12, 2016, Plaintiffs Franconia Minerals (US) LLC and Twin Metals Minnesota LLC filed this lawsuit. ECF No. 1. They dispute the Solicitor’s conclusions, contending that the terms of the 1966 leases control and that Section 5 of the 1966 leases provides them a non-discretionary right of renewal. ECF No. 1, Compl. ¶¶ 10-11, 100-102. They ask this Court to quiet title to the leases, as they interpret them, under the QTA and to set aside the Solicitor’s Opinion under the APA as arbitrary, capricious, and contrary to law. Id. at ¶¶ 98, 104. III. STANDARD OF REVIEW “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). When considering a motion under Fed. R. Civ. P. 12(b)(1), the burden of establishing the court’s subject-matter jurisdiction resides with the party seeking to invoke it, and that party has the burden of establishing jurisdiction by a preponderance of the evidence. McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936). If the Court, at any time, determines that it lacks subject-matter jurisdiction, the case should be dismissed. Fed. R. Civ. P. 12(h)(3). 5 CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 12 of 26 “In order to properly dismiss an action under Rule 12(b)(1), the challenging party must successfully attack the Complaint, either upon its face or upon the factual truthfulness of its averments.” Moubry v. Indep. Sch. Dist. No. 696, 951 F. Supp. 867, 882 (D. Minn. 1996). This motion presents a facial attack on the sufficiency of the Complaint’s allegations as to the Court’s subject-matter jurisdiction. As such, the factual allegations advanced in the Complaint are assumed to be true for purposes of this motion. Carlson Holdings, Inc. v. NAFCO Ins. Co., 205 F. Supp. 2d 1069, 1073 (D. Minn. 2001). IV. ARGUMENT A. The Court lacks jurisdiction over Plaintiffs’ APA claims because they do not challenge a final agency action The Court should dismiss Plaintiffs’ APA claims because they challenge only the Solicitor’s M-Opinion, which is not a final agency action as required by the APA. “The APA, by its terms, provides a right to judicial review of all ‘final agency action for which there is no other adequate remedy in a court.’” Bennett v. Spear, 520 U.S. 154, 175 (1997) (quoting 5 U.S.C. § 704). Two conditions must be met for an agency action to be “final.” “First, the action must mark the ‘consummation’ of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature.” U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1813 (2016) (quoting Bennett, 520 U.S. at 17778). This requirement ensures that “judicial review of the action [will not] disrupt the orderly process of” agency decision-making. Berry v. U.S. Dep’t of Labor, 832 F.3d 627, 633 (6th Cir. 2016) (quoting Port of Boston Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)). “[S]econd, the action must be one by which rights 6 CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 13 of 26 or obligations have been determined, or from which legal consequences will flow.” Hawkes Co., 136 S. Ct. at 1813 (quoting Bennett, 520 U.S. at 178). In other words, it must have a “sufficiently direct and immediate” impact on the aggrieved party and a “direct effect on [its] day-to-day business.” Abbott Labs. v. Gardner, 387 U.S. 136, 152 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). The M-Opinion meets neither of these requirements. First, it does not mark the consummation of BLM’s decision-making process on the two leases. BLM’s final agency action with regard to the leases is its future decision whether to renew them. The MOpinion takes no position on that issue. Rather, it addresses only whether, as a matter of law, BLM has discretion to grant or deny Plaintiffs’ pending application for renewal. ECF No. 1-4 at 1, 13. Until BLM issues a final decision on the renewal application, the agency has taken no final action reviewable by this Court. 5 U.S.C. § 704 (allowing for judicial review of “[a] preliminary, procedural, or intermediate agency action or ruling not directly reviewable . . . on the review of the final agency action”); see also Sierra Club v. U.S. Army Corps of Eng’rs, 446 F.3d 808, 813 (8th Cir. 2006) (finding memorandum of agreement contemplating possible future agency action was not itself final agency action because it did not obligate agencies to act). Caselaw supports this conclusion. Numerous courts have held that legal guidance provided to an agency decision-maker is not itself a final agency action. See Miami Tribe of Oklahoma v. United States, 198 F. App'x 686, 690 (10th Cir. 2006) (holding Department of the Interior opinion letter provided to National Indian Gaming Commission is not final agency action because “[o]nly the NIGC's final determination 7 CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 14 of 26 regarding a gaming contract is final agency action subject to appeal under the APA”); Navajo Nation v. U.S. Dep't of Interior, 819 F.3d 1084, 1091-92 (9th Cir. 2016) (holding Park Service decision-making process consummated when it decided to take action, not when it received Solicitor’s guidance); Massachusetts v. EPA, 415 F.3d 50, 54 (D.C. Cir. 2005), rev'd on other grounds, 549 U.S. 497 (2007) (holding EPA General Counsel’s memorandum “consisting of legal advice to the EPA Administrator, did not in itself constitute ‘final action’ of the Administrator.”); Sabella v. United States, 863 F. Supp. 1, 5 (D.D.C. 1994) (holding that legal opinion of General Counsel of National Oceanic and Atmospheric Administration interpreting a statute was not “final agency action”). This is because “a difference of opinion on legal issues is one for a moot court, and not our court, unless and until someone takes or threatens to take the action claimed to be illegal.” Hinton v. Udall, 364 F.2d 676, 679 (D.C. Cir. 1966). Thus, courts have found that Solicitor opinions are subject to judicial review only when the agency took a final action in reliance on the opinion. See Rocky Mountain Oil & Gas Ass’n v. Watt, 696 F.2d 734, 741 (10th Cir. 1982) (“Interior’s adoption of the Solicitor’s interpretation . . . and its reliance on that interpretation in promulgating the Wilderness Handbook and the Interim Management Policy and Guidelines constitute final agency action . . . .”); Ctr. For Native Ecosystems v. Salazar, 711 F. Supp. 2d 1267, 1273 n.5 (D. Colo. 2010) (“[T]he de-listing decision relying upon the Memorandum Opinion constitutes challengeable agency action.”). Nor does the Solicitor’s conclusion that BLM has discretion to grant or deny renewal of the leases predetermine BLM’s final renewal decision. Per the Solicitor’s 8 CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 15 of 26 guidance, BLM remains free to exercise its discretion to grant Plaintiffs’ renewal application. The M-Opinion does not even recommend a course of action. While Plaintiffs may argue that the M-Opinion presages a denial of their renewal application, this is unsupported prognostication and provides no grounds for judicial intervention. If the Court were to “intervene at this stage of the agency decisionmaking process, [it] would be inappropriately imposing on the [BLM] what [it] think[s] its final decision will be.” Miami Tribe of Oklahoma, 198 F. App’x at 690–91; see also Hinton, 364 F.2d at 679 (refusing to “predict[] how the Secretary would act on [] a request” to restore tribal surface rights despite existence of Solicitor’s opinion finding that Secretary had authority to restore certain lands to the Tribe). The reverse situation makes this point clear. If the Solicitor had found that the leases were non-discretionary and that BLM had a legal obligation to grant Plaintiffs’ renewal application, her opinion still would not constitute final agency action, even though her interpretation leads to a single potential outcome. The consummation of the agency’s decision-making process occurs only when BLM takes action on the pending renewal applications. Even though the legal interpretation in a Solicitor’s M-Opinion is binding on the Department, unless later overruled or modified by the Solicitor, Deputy Secretary, or Secretary, the legal interpretation in the Solicitor’s Opinion at issue here provided for discretion on BLM’s part to make a decision about whether to renew the two leases. U.S. Dep’t of the Interior, Departmental Manual, 209 DM 3.2(11) (Mar. 16, 9 CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 16 of 26 1992).1 The binding nature of that legal interpretation does not bind BLM to a particular course of action in its decision-making.2 In addition to not marking the consummation of BLM’s decision-making process, the M-Opinion is also not final agency action because it does not alter Plaintiffs’ rights or obligations and has no “direct effect on [their] day-to-day business.” Abbot Labs., 387 U.S. at 152. The M-Opinion represents internal legal guidance from the Solicitor to BLM. Unless and until BLM takes an action in reliance on that guidance, the M-Opinion has no legal effect on third parties. Plaintiffs may continue to develop the leases under the 2004 lease terms until BLM issues a decision on its renewal applications. 43 C.F.R. § 3514.25. Thus, standing alone, the M-Opinion is “lifeless, and can fix no obligation nor impose any liability on the plaintiff. It is merely preparatory to further proceedings.” Minn. Sch. Bd. Ass’n Ins. Trust v. EEOC, 184 F. Supp. 2d 899, 909 (D. Minn. 2001) (quoting Georator Cotp. v. EEOC, 592 F.2d 765, 768 (4th Cir. 1979) (referring to an EEOC determination of reasonable cause that alone fixed no legal obligation or liability on any party)). Plaintiffs may claim that the M-Opinion affects their holdings by raising the possibility that BLM could, in its discretion, deny their renewal application. But agency actions “that do[] not [themselves] adversely affect [the] complainant but only affect[] his rights adversely on the contingency of future administrative action” are not final agency 1 The Department of Interior Departmental Manual is available at http://elips.doi.gov/elips/browse.aspx. 10 CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 17 of 26 actions. Fund for Animals, Inc. v. U.S. BLM, 460 F.3d 13, 22 (D.C. Cir. 2006) (quoting DRG Funding Corp. v. Sec’y of Housing & Urban Dev., 76 F.3d 1212, 1214 (D.C. Cir. 1996)). While Plaintiffs may, as a practical matter, make business decisions in light of the M-Opinion, such choices are not “legal consequences” of the M-Opinion. See Air Cal. v. U.S. Dep’t of Transp., 654 F.2d 616, 620-21 (9th Cir. 1981) (finding letter from FAA Chief Counsel to Orange County Board of Supervisors warning that a failure to allow new air carriers could result in penalties was not a final agency action even though it may have induced the Board to take certain actions because it “was neither a definitive statement of the agency’s position nor a document with the status of law”); Air Brake Sys., Inc. v. Mineta, 202 F. Supp. 2d 705, 712 (E.D. Mich. 2002) (finding reliance on an agency legal opinion “does not automatically convert the letter into ‘final agency action’ under the Administrative Procedures Act”), aff’d, 357 F.3d 632 (6th Cir. 2004). This case is analogous to Glamis Imperial Corp. v. Babbitt, No. 3:00-cv-01934W-POR (S.D. Cal. Oct. 31, 2000), attached hereto as an exhibit, in which the Department of the Interior issued a legal opinion regarding the plaintiff mining company’s proposed project. The company brought suit alleging that the legal opinion jeopardized approval of its [p]roject, in which it had already expended over $14 million. Id. at 2. The court held that the legal opinion was not a final agency action because it “merely articulates the legal background the BLM will employ in reviewing the [mining] [p]roject, and does not make any determination as to its approval.” Id. at 4. Even though the legal opinion “may harm the [mining] project’s chances of ultimate approval, it does not mandate the BLM’s final decision.” Id. at 4-5. 11 CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 18 of 26 The same analysis applies here. Unlike agency actions found to have legal consequences in other cases, the M-Opinion does not mandate a particular outcome. Cf. Bennett, 520 U.S. at 178 (finding Biological Opinion and Incidental Take Statement has “direct and appreciable legal consequences” because it authorizes a take of endangered species); Sackett v. EPA, 182 S. Ct. 1367, 1372-73 (2012) (finding EPA administrative compliance order under Clean Water Act has legal consequences because it exposes the plaintiffs to liability and sets forth their legal obligations to restore their property). BLM retains discretion to grant or deny Plaintiffs’ renewal applications. Nor does the MOpinion set forth standards or warnings that could reasonably result in “expected conformity” by Plaintiffs. Cf. Nat’l Automatic Laundry & Cleaning Council v. Schultz, 443 F.2d 689, 698 (D.C. Cir. 1971) (finding that letter from Department of Labor Administrator to plaintiff’s attorneys stating that certain employees are covered by minimum wage and overtime requirements created an expectation of conformity); Hawkes Co., Inc., 136 S. Ct. at 1815 (finding Army Corps jurisdictional determination has legal consequences in that it warns recipient of penalties for discharge without a permit). Indeed, as the M-Opinion is limited to a single narrow legal issue and takes no position on the pending renewal application, Plaintiffs would be hard-pressed to find a way to comply with or disobey it. Because the M-Opinion represents only a step on the way to a final agency decision, rather than the culmination of BLM’s decision-making process for the renewal application, judicial review at this stage would “disrupt the orderly process of adjudication.” Hawkes Co., Inc. v. U.S. Army Corps of Eng’rs, 782 F.3d 994, (8th Cir. 12 CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 19 of 26 2015), affirmed by 136 S. Ct. 1807 (quoting Port of Boston Marine Terminal Ass’n, 400 U.S. at 70-71. Until BLM makes a final decision, it is unknown to what extent that decision will rely on the Solicitor’s Opinion. Premature review of the M-Opinion also has the potential to have a chilling effect: “Advisory opinions should, to the greatest extent possible, be available to the public as a matter of routine; it would be unfortunate if the prospect of judicial review were to make an agency reluctant to give them.” Nat’l Automatic Laundry & Cleaning Council, 443 F.2d at 699-700. Plaintiffs will have the opportunity to challenge BLM’s final decision, whatever it may be, when it is made. This Court should not permit them to short-circuit BLM’s decision-making process based upon predictions that may or may not prove true. B. This Court Lacks Jurisdiction Over Plaintiffs Claims Because They Are Not Ripe for Review “A court lacks subject matter jurisdiction over an action if the action is not ripe for resolution.” Am. Ins. Co. v. St. Jude Med., Inc., 597 F. Supp. 2d 973, 979 (D. Minn. 2009). Because Plaintiffs have not challenged a final agency action, their claims are not ripe for review. The ripeness doctrine rests upon the same principles as the APA’s prohibition on the judicial review of non-final agency actions: it “prevent[s] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Minn. Pub. Util. Comm'n. v. FCC, 483 F.3d 570, 582 (8th Cir. 2007) (quoting Missouri v. Cuffley, 112 F.3d 1332, 1337 (8th Cir. 13 CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 20 of 26 1997)). To determine whether claims are ripe, a court looks to “both the ‘fitness of the issues for judicial decision’ and ‘the hardship to the parties of withholding court consideration.’” Neb. Pub. Power Dist. v. MidAmerican Energy Co., 234 F.3d 1032, 1038 (8th Cir. 2000) (quoting Abbott Labs. 387 U.S. at 149). Factors that guide this analysis include whether “(1) the issues presented are purely legal, (2) the issues are based on final agency action, (3) the controversy has a direct and immediate impact on the plaintiff's business, and (4) the litigation is calculated to expedite final resolution rather than delay or impede effective agency enforcement.” Lane v. U.S. Dep't of Agric., 187 F.3d 793, 795 (8th Cir. 1999). Applying these factors, the Eighth Circuit has held that “[w]here there is no final agency action, a claim in federal court challenging the agency's action is not ripe for review.” Ripplin Shoals Land Co., LLC v. U.S. Army Corps of Eng’rs, 440 F.3d 1038, 1045 (8th Cir. 2006) (citing Lane, 187 F.3d at 795). Because, for the reasons discussed above, the M-Opinion is not a final agency action, Plaintiffs’ APA claims challenging it are not ripe for review. Plaintiffs’ QTA claim is also unripe: because the alleged dispute in title on which it is premised derives from the M-Opinion, Plaintiffs’ QTA claim is not based on a final agency action. Nor can Plaintiffs contend that their claims should be exempt from the Eighth Circuit’s clear-cut rule due to alleged hardships arising from the M-Opinion. The MOpinion has no adverse legal effect on Plaintiffs because it “do[es] not command anyone to do anything or to refrain from doing anything; [it] do[es] not grant, withhold, or modify any formal legal license, power, or authority; [it] do[es] not subject anyone to any 14 CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 21 of 26 civil or criminal liability; [it] create[s] no legal rights or obligations.” Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998). That is, the M-Opinion neither grants renewal of the lease nor denies it, and it does not set forth any standards that could “force [Plaintiffs] to modify [their] behavior in order to avoid future adverse consequences.” Id. at 734. Plaintiffs can continue to develop their leases during the pendency of BLM’s review of their renewal applications. 43 C.F.R. § 3514.25. Nor is harm “certainly impending,” such that Plaintiffs should be permitted to challenge the outcome of BLM’s review of its renewal application before the agency issues its decision. Missourians for Fiscal Accountability v. Klahr, 830 F.3d 789, 799 (8th Cir. 2016) (quoting Parrish, 761 F.3d at 875). “A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’” Parrish, 761 F.3d at 875-76 (quoting Texas v. United States, 523 U.S. 296, 300 (1998)). Because BLM retains discretion to grant or deny the renewal applications, Plaintiffs’ presumption that it will deny them is a “mere prediction” insufficient to make their claims ripe. Minn. Pub. Util. Comm’n, 483 F.3d at 582-83. And while Plaintiffs may have concerns about the accuracy of the M-Opinion’s determination that BLM has discretion to deny the renewal, “mere uncertainty as to the validity of a legal rule” does not “constitute[] a hardship for purposes of the ripeness analysis.” Nat'l Park Hosp. Ass'n v. Dep't of Interior, 538 U.S. 803, 811 (2003). After all, if uncertainty about how an agency’s legal determination might affect a business were grounds for ripeness, “courts would soon be overwhelmed with requests for what essentially would 15 CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 22 of 26 be advisory opinions because most business transactions could be priced more accurately if even a small portion of existing legal uncertainties were resolved.” Id. In contrast to Plaintiffs who can continue to develop their leases in the interim, judicial intervention at this stage will harm both the administrative process and this Court’s review. “Judicial intervention into the agency process denies the agency an opportunity to correct its own mistakes and to apply its expertise.” FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 242 (1980). It also “leads to piecemeal review which at the least is inefficient and upon completion of the agency process might prove to have been unnecessary.” Id. This is particularly true here where BLM could still choose to grant the lease renewals. Additionally, “postponing a procedural challenge to an agency guidance document may be appropriate where further factual development regarding the agency's application of the document would aid [the court’s] decision.” Iowa League of Cities v. EPA, 711 F.3d 844, 867 (8th Cir. 2013). Until BLM applies the M-Opinion in a final decision on the renewal applications, neither the parties nor the Court can know the facts and reasons underpinning that decision. Plaintiffs’ assumption that BLM’s decision will turn on the M-Opinion and will lead to denial of their renewal applications is just that— an assumption. And as such it is a “hypothetical or speculative disagreement” that is not ripe for review. Parrish, 761 F.3d at 875 (quoting Neb. Pub. Power Dist., 234 F.3d at 1038)). 16 CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 23 of 26 C. Dismissal of Plaintiffs’ Quiet Title Act Cause of Action is Appropriate Where there is no Title Dispute. Dismissal is also appropriate here because Plaintiffs have failed to make the requisite threshold showing under the Quiet Title Act, 28 U.S.C. § 2409a, that would trigger the limited waiver of federal sovereign immunity. To bring an action under the Quiet Title Act’s waiver of sovereign immunity in Section 2409a(a), a plaintiff must demonstrate that the United States has explicitly or implicitly disputed the plaintiff’s title to the property in question. See Kane County v. United States, 772 F.3d 1205, 1212 (10th Cir. 2014); Mills v. United States, 742 F.3d 400, 405 (9th Cir. 2014); United States v. Bedford Assocs., 657 F.2d 1300, 1316 (2d Cir. 1981). No such dispute exists here. Under the doctrine of federal sovereign immunity, the United States is immune from suit except to the extent Congress expressly waives that immunity. See Lane v. Pena, 518 U.S. 187, 192 (1996); Lehman v. Nakshian, 453 U.S. 156, 160 (1981); United States v. Sherwood, 312 U.S. 584, 586 (1941). The Quiet Title Act provides that “[t]he United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest.” 28 U.S.C. § 2409a(a). A plaintiff must “set forth with particularity the nature of the right, title, or interest which the plaintiff claims in the real property, the circumstances under which it was acquired, and the right, title, or interest claimed by the United States.” Id. § 2409a(d). The Quiet Title Act is the “exclusive means by which adverse claimants [may] challenge the United States' title to real property.” Block v. North Dakota ex rel Bd. of Univ. and Sch. Lands, 461 U.S. 273, 286 (1983). Where Quiet Title Act jurisdiction lies, 17 CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 24 of 26 the court can adjudicate title disputes between the plaintiff and the United States and render judgment as between them. See Cadorette v. United States, 988 F.2d 215, 223 (1st Cir. 1993). The Quiet Title Act must be strictly construed in the government’s favor because it is a limited waiver of federal sovereign immunity. United States v. Mottaz, 476 U.S. 834, 841 (1986); Block, 461 U.S. at 287. Section 2409a(a) of the QTA provides that a plaintiff must demonstrate that “title” to the property in question is “disputed.” 28 U.S.C. 2409a(a). To that end, Section 2409a(a) requires the United States to have explicitly or implicitly disputed the plaintiff’s rights in the property. If a party claims title but the United States does not make any explicit or implicit claim of an interest adverse to that party, there is not a disputed title. In the instant case, there is no dispute that the United States owns fee title to the mineral estate. The nature of Plaintiff Franconia’s interest is also undisputed: it holds two expired mineral rights leases with pending renewal applications. On its face, there is no disputed title. Nor can Plaintiffs manufacture such a dispute by pointing to the United States’ underlying fee interest in the land. Where, as here, a mineral interest is claimed, the United States’ claim of the underlying fee interest in the land is not sufficient to create “disputed” title, as the United States’ ownership of the underlying fee is not adverse to the rights of the party claiming the right to the mineral estate. See Bedford Assocs., 657 F.2d at 1316 (Section 2409a “permits the government to be named as a defendant whenever it claims an interest in real property that is adverse to that of the plaintiff.”) (internal quotation marks omitted), cert. denied, 456 U.S. 914 (1982). 18 CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 25 of 26 To the extent that Plaintiffs’ complaint is that BLM could deny its renewal based on the M-Opinion, a title is not “disputed” simply because a dispute might arise in the future. Alaska v. United States, 201 F.3d 1154, 1164-65 (9th Cir. 2000) (noting that there is not a viable title dispute because while the United States has reserved rights in the river, it has not yet claimed an interest). Likewise, the M-Opinion — and the assertion in that Opinion that BLM has the authority to approve or deny Plaintiffs’ renewal request — does not create a title dispute. Rather than presenting a bona fide title dispute, Plaintiffs’ Complaint emphasizes that the M-Opinion incorrectly interprets the leases and the scope of their right to renewal. Compl. ¶¶ 58-68. Plaintiffs’ dispute with the M-Opinion’s interpretation of the terms of the relevant leases does not equate to a dispute over title. That is, Plaintiffs are improperly attempting to cast a potential contract dispute, which is itself unripe, into a title dispute. McKay v. United States, 516 F.3d 848, 853 (10th Cir. 2008) (finding that “the claim is in essence one for breach of contract and, as such, cannot be brought under the QTA.”). To the extent Plaintiffs have a cognizable lease dispute, this is not the forum for such a suit. See 28 U.S.C. § 1491 (“The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded . . . upon . . . any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.”). Because Plaintiffs have not presented a title dispute within the meaning of the Quiet Title Act, jurisdiction does not lie and Count I of the Complaint must be dismissed. 19 CASE 0:16-cv-03042-SRN-LIB Document 47 Filed 12/12/16 Page 26 of 26 V. CONCLUSION This Court lacks jurisdiction to entertain this action because the Complaint fails to challenge final agency action. As there is no final agency action, this matter is not ripe. Finally, Plaintiffs’ do not make the requisite showing under the Quiet Title Act that there is a dispute over title. For these reasons, dismissal of Plaintiffs’ Complaint is appropriate. Respectfully submitted this 12th day of December, 2016. JOHN C. CRUDEN Assistant Attorney General Environment and Natural Resources Division /s/ Marissa A. Piropato MARISSA A. PIROPATO (MA 651630) CLARE BORONOW (Admitted to MD bar) United States Department of Justice Environment & Natural Resources Division 601 D Street NW Washington, DC 20004 (202) 305-0470 (Piropato) (202) 305-0492 (Boronow) Marissa.Piropato@usdoj.gov Clare.Boronow@usdoj.gov Counsel for Defendants 20 Date: May 12, 2017 To: Jack Haugrud Acting Solicitor From: Karen Hawbecker Associate Solicitor Division of Mineral Resources Subject: DMR Friday Updates to Weekly Report Below is a list of new or updated items that did not appear in the weekly report that may require the attention of the front office during the week of May 15-19 or thereafter: Significant Decisions: ● Nothing to report. 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Highlight Font: Bold, Font color. Black I Formatted: Font color. Black Formatted: Font: Bold, Font color. Black Formatted: Formatted: Highlight Font color. Black. Highlight Font color. Custom Color(RG Formatted: I Formatted Font color. Black. Highlight Font: Bold, Font color. Black. Highlight Formatted: Font color. Black. Highlight Formatted: Font colon Black. Highlight Wednesday, May 10, 2017 I. OSMRE A. Johnson Families brief C. Defenders of Wildlife attorneys’ fees B. II. III. BLM Farrell Cooper cases A. Juliana Venting & Flaring Rule Case B. C. Coal Working Group Report D. HF Rule Rescission NPR E. HF Rule Appeal F. Twin Metals G. BOEM Citizens for Clean Energy A. Atlantic seismic C. Offshore executive order--21 day report E. Louisiana 8(g) B. D. F. Gulf seismic Fisheries Survival Fund meeting NTL publication G. IV. BSEE Draft memo for your review: Enforcement of bonding orders A. Implementing approps rider on time between operations Atlantic seismic C. Technology Suspensions B. Taylor Wednesday, May 3, 2017 I. OSMRE A. Marfork and Usibelli attorneys’ fees C. ESA consultation B. II. III. BLM A. Pit River C. B. Juliana D. Coal Working Group Report Wyoming Venting & Flaring Rule Case--status report due 5/5 E. HF Rule Rescission NPR F. Wyoming HF Rule case--brief due 5/15 G. Twin Metals BSEE A. Taylor stays C. Offshore executive order and rules E. FOIA for Bernhardt Taylor records B. D. IV. Johnson Families brief BOEM Black Elk oral argument Appropriations Riders A. Atlantic seismic C. NRDC Gulf seismic B. Executive Order re: Five Year Program & withdrawals D. Air Quality rule F. NTL publication E. G. Fisheries Survival Fund Draft memos for your review: Enforcement of bonding orders Automatic severance policy WEEKLY REPORT TO THE SECRETARY DEPARTMENT OF THE INTERIOR February 1, 2017 Office of the Solicitor Week Ahead Schedule of Meetings, Congressional Hearings, and Travel Meeting with Senator Udall Staff Regarding Santa Ana and San Felipe Boundary Concerns Staff from Senator Udall’s office will be meeting with the BIA-Southwest Region and this office regarding the boundary dispute between the Pueblo of Santa Ana and Pueblo of San Felipe on Friday, February 3. This dispute is commonly referred to as “the overlap area” and “El Ranchito” tract. Following the Solicitor’s M-Opinion #37027, the BLM resurveyed the “overlap” area of the grants to the Santa Ana pueblo and San Felipe pueblo. San Felipe appealed the results of the resurvey and Santa Ana intervened. The matter is fully briefed and awaiting a decision. (SOLSWR Frank Lupo, 505.248.5611). Twin Metals Briefing for Acting BLM Director DMR attorneys will be attending a briefing for Acting BLM Deputy Director Jerome Perez on Wednesday at 2:30 pm about Twin Metals. (Karen Hawbecker, 202-208-4146) USGS call with OMB re: Information Quality Act Issues On Thursday, February 2, USGS and OMB will hold a call to discuss OMB’s edits to a draft USGS IQA response. The IQA complaint critiques USGS’ use of third-party data in their publications discussing water quality in the NJ highlands area. USGS’ research was conducted in cooperation with NJ regulatory agencies, and their research has formed the basis of state and local regulatory actions. In reviewing USGS’ proposed response, OMB has stated that USGS’ Fundamental Science Practices (FSPs) do not comply with OMB guidance, and that USGS needs to 1) revise its FSPs relating to third-party data, and 2) revise its procedures for identifying “highly influential” scientific activities. (Gabriel Lohr, 202-513-0512) Resettlement Trust Fund for the People of Bikini On February 1, the Assistant Solicitor for the Branch of General Legal Services will meet with the Director of the Office of Insular Affairs to discuss the Resettlement Trust Fund for the People of Bikini. The trust fund, which the United States established in the 1980's to fully satisfy all claims of the People of Bikini related in any way to the U.S. government's nuclear testing program affecting the Bikini atoll, presently has a balance of approximately $70 million, after having begun with a balance of $90 million. The Director is concerned that the Bikinians will look to the Secretary of the Interior to preserve the trust funds' corpus, despite the fact the Office of Insular Affairs' budget officials do not view the trust fund's corpus (or its income) to be federal funds. Regardless of the characterization of the funds. an unexpired 1988 trust fund agreement between the Secretary of the Interior and the Bikini orurcil envisions the Secretary meeting with the trust fund's liaison agent at least once a year to review plans for the proposed expenditure of the fund's income or corpus. (Tim Mruphy. 202-208-3510) Bakers?eld Decision Acting BLM Deputy Director has asked for SOL to send an attorney to a brie?ng about this decision. DMR is coordinating with DLR and the Sacramento Region. The brie?ng is scheduled for Wednesday at 9:30 am. (Karen Hawbecker?, 202-208-4146) Week Ahead Announcements and Actions SIGNIFICANT LITIGATION DEADLINES FOR NEXT TWO WEEKS SEPARATELY REPORTED WEEKLY REPORT TO THE SECRETARY DEPARTMENT OF THE INTERIOR February 1, 2017 Office of the Solicitor Week Ahead Schedule of Meetings, Congressional Hearings, and Travel Meeting with Senator Udall Staff Regarding Santa Ana and San Felipe Boundary Concerns Staff from Senator Udall’s office will be meeting with the BIA-Southwest Region and this office regarding the boundary dispute between the Pueblo of Santa Ana and Pueblo of San Felipe on Friday, February 3. This dispute is commonly referred to as “the overlap area” and “El Ranchito” tract. Following the Solicitor’s M-Opinion #37027, the BLM resurveyed the “overlap” area of the grants to the Santa Ana pueblo and San Felipe pueblo. San Felipe appealed the results of the resurvey and Santa Ana intervened. The matter is fully briefed and awaiting a decision. (SOLSWR Frank Lupo, 505.248.5611). Twin Metals Briefing for Acting BLM Director DMR attorneys will be attending a briefing for Acting BLM Deputy Director Jerome Perez on Wednesday at 2:30 pm about Twin Metals. (Karen Hawbecker, 202-208-4146) USGS call with OMB re: Information Quality Act Issues On Thursday, February 2, USGS and OMB will hold a call to discuss OMB’s edits to a draft USGS IQA response. The IQA complaint critiques USGS’ use of third-party data in their publications discussing water quality in the NJ highlands area. USGS’ research was conducted in cooperation with NJ regulatory agencies, and their research has formed the basis of state and local regulatory actions. In reviewing USGS’ proposed response, OMB has stated that USGS’ Fundamental Science Practices (FSPs) do not comply with OMB guidance, and that USGS needs to 1) revise its FSPs relating to third-party data, and 2) revise its procedures for identifying “highly influential” scientific activities. (Gabriel Lohr, 202-513-0512) Resettlement Trust Fund for the People of Bikini On February 1, the Assistant Solicitor for the Branch of General Legal Services will meet with the Director of the Office of Insular Affairs to discuss the Resettlement Trust Fund for the People of Bikini. The trust fund, which the United States established in the 1980's to fully satisfy all claims of the People of Bikini related in any way to the U.S. government's nuclear testing program affecting the Bikini atoll, presently has a balance of approximately $70 million, after having begun with a balance of $90 million. The Director is concerned that the Bikinians will look to the Secretary of the Interior to preserve the trust funds' corpus, despite the fact the Office of Insular Affairs' budget officials do not view the trust fund's corpus (or its income) to be federal funds. Regardless of the characterization of the funds. an unexpired 1988 trust fund agreement between the Secretary of the Interior and the Bikini orurcil envisions the Secretary meeting with the trust fund's liaison agent at least once a year to review plans for the proposed expenditure of the fund's income or corpus. (Tim Mruphy. 202-208-3510) Bakers?eld Decision Acting BLM Deputy Director has asked for SOL to send an attorney to a brie?ng about this decision. DMR is coordinating with DLR and the Sacramento Region. The brie?ng is scheduled for Wednesday at 9:30 am. (Karen Hawbecker?, 202-208-4146) Rob Lehman a Senior Public Policy Advisor Co-Chair, Public Policy and Legislative Affairs Practice rob Iehman@wilmerhale.oom 1875 Avenue, NW Washington, DC 20006 +1 202 663 6907 +1 202 663 6363 Biography Regulatory and Government Affairs Rob Lehman focuses on government relations and developing and implementing Public Policy and Legislative Affairs strategies to help clients achieve their objectives in Congress and in Federal Strategic Response agencies. With more than 20 years of experience on Capitol Hill, he is well-equipped International Trade lnvesmem and to address critical issues ranging from trade, tax. energy, homeland security, Market Access transportation and ?nancial services to healthcare, competition and intellectual EDUCAHON property. Mr. Lehman is co-chair of the ?nn's Public Policy and Legislative Affairs BA, Govemment and Politics, PraCt'ce- University of Maryland at College Park. 1987 Prior to joining the ?rm, Mr. Lehman served as Chief of Staff to Senator Rob Portman (R-OH). As Chief of Staff, he led policy and strategic development and implementation of Senator Portman's legislative priorities, including the introduction of 65 bipartisan bills. Mr. Lehman also previously served as Chief of Staff for the Of?ce of Management and Budget (OMB), Chief of Staff for the United States Trade Representative (USTR) and senior leadership aide to a member in the US House of Representatives. In addition, Mr. Lehman previously managed federal and state govemment relations for a top international law ?rm, where he represented Fortune 100 companies, trade associations and non-pro?t organizations before the executive and legislative branches of government. As Senior Public Policy Advisor, Mr. Lehman's practice is limited to US legislative and executive branch lobbying matters. Wilmer Cutler Pickering Hale and Dorr LLP is a Delaware limited liability partnership. WilmerHale principal law o?ices: 60 State Street, Boston, Massachusetts 02109, +1 617 526 6000; 1875 Avenue, NW. Washington, DC 20006, +1 202 663 6000. Our United Kingdom of?ce is operated under a separate Delaware limited liability partnership of solicitors and registered foreign lawyers authorized and regulated by the Solicitors Regulation Authority (SRA No. 287488). Our professional rules can be found at page. A list of partners and their professional quali?cations is available for inspection at our UK of?ce. In Beijing. we are registered to operate as a Foreign Law Firm Representative Of?ce. This material is for general informational purposes only and does not represent our advice as to any particular set of facts; nor does it represent any undertaking to keep recipients advised of all legal developments. Prior results do not guarantee a similar outcome. 2004-2017 Wilmer Cutler Pickering Hale and Don LLP ANTOF AGASTA PLC April 2017 The Honorable Ryan Zinke Secretary of the Interior U.S. Department of the Interior 1849 Street NW. Washington, D.C. 20240 Dear Secretary Zinke: As the Chief Executive Officer of Antofagasta plc. one of the largest copper producers in the world, I have been proud to support the development of strategic minerals in the United States. As such. I write to respectfully request a meeting to discuss the Twin Metals Minnesota project during my visit in Washington. D.C. on Tuesday, May 2nd or Wednesday. May 3rd. As you know. Twin Metals is a mineral development project. currently in the exploratory phase. in an area of the Superior National Forest of Minnesota. If allowed to proceed. this project will create thousands of jobs and infuse millions of dollars into the regional economy. We anticipate the project to unlock access to one of the world?s largest deposits of valuable minerals that includes copper. nickel. platinum. gold, and silver. Our exploration of these strategic resources and designs to develop them through environmentally sound and scienti?cally rigorous processes has already cost upwards of $400 million in investment to date. Unfortunately. as you are aware, our past and future investment now hangs in the balance. due to decisions made in the last days of the Obama administration, including: 1) the Solicitor?s M-Opinion concluding that the Bureau of Land Management (BLM) has the discretion to deny these mineral leases in Minnesota; 2) the BLM's decision to rescind Twin Metals' mineral leases based on the M-Opinion; 3) the joint decision of the BLM and U.S. Forest Service to initiate a process to withdraw hundreds of thousands of acres from mineral development, thereby threatening any future mineral development in the region. 1 hope to have the opportunity to discuss a viable path forward with you. Rob Lehman at WilmerHale will be handling the scheduling of my meetings on May 2nd and May 3rd. He can be reached at rob.Iehman@wilmerhale.com or (202) 663-6907. Thank you for your time and consideration of this request. Jabt Arriagada Chief Executive Of?cer Antofagasta Sincerely. Av. Apoqumdo 4001, Piso 18, Las Condes. Santiago, Chile. CP. 7550162 LOS PELAMBRES CENTINELA Tel. (56-2) 2798 7000 ANTUCOYA ZALDIVAR TWIN mat? March 22, 2017 The Honorable Ryan Zinke Secretary of the Interior Department of the Interior 1849 Street NW. Washington, DC. 20240 Dear Secretary Zinke: In the last days of the Obama Administration, the BLM inappropriately rejected Twin Metals Minnesota?s application to renew two hard rock mineral leases in Minnesota?s Superior National Forest?leases that were signed in 1966 and renewed without controversy in 1989 and 2004. refusal to renew the leases is based on a March 2016 opinion by then-Interior Solicitor Hilary Tompkins. That opinion rejected previous agency practice and policy, unilaterally changing the nature of the mineral tenure from one that is non-discretionary to one that is discretionary. The agencies then withheld consent for the renewal based upon arbitrary and unsupportable assumptions. As explained in the attached letters to then-Secretary Jewell and Solicitor Tompkins, the opinion is based upon material legal error. It also re?ects incorrect policy judgments inconsistent with federal mineral policy embraced by both Congress and prior administrations. Congress speci?cally intended for these minerals to be developed. It passed laws authorizing this mineral development and that carefully balanced the preservation of important wilderness areas in the Forest. For over 65 years mining companies, like Twin Metals, have relied on the stability of this legal foundation to invest hundreds of millions of dollars in the Forest but outside of the wilderness area and its congressionally designated buffer zone. The failure to renew the leases will have devastating economic impacts reaching far beyond Twin Metals, affecting thousands of families who live and work in these communities. Northeast Minnesotans have depended for generations on good-paying mining jobs. Twin Metals? project will provide thousands of such jobs for generations to come. The failure to renew these leases as well as the withdrawal currently contemplated by the agencies will have an immediate and draconian impact on people?s lives and the viability of these communities costing the region billions of dollars in future economic growth. Finally, the United States itself will be harmed, losing access to one of the world?s largest domestic deposits of important strategic resources. 380 St. Peter St, Suite 705 St. Paul, MN 55l 02 USA Tel: ?Sl 8:12 6800 Fax: +1 65] 842 6801 TWIN - METALS A MINNESOTA A Twin Metals ?led a lawsuit last September challenging the Tompkins opinion; however, there is no need for costly and time-consuming litigation. 1 am writing to request that, for the all the reasons given above, you instead rescind the opinion (under 43 C.F.R. and direct BLM to renew the leases. I ?JIther request an opportunity to meet with you and your staff in the very near future to discuss these issues further. Sincer Ian Duckworth Chief Operating Of?cer Twin Metals Minnesota 380 St. Peter St, Suite 705 St. Paul, MN 55 02 USA Tel: +1 651 842 6800 Fax: +1 651 842 6801 wwawin-mefals.com Seth P. Waxman July 1, 2016 The Honorable Sally Jewell Secretary of the Interior Department of the Interior 1849 C Street N.W. Washington, D.C. 20240 Re: +1 202 663 6800 (t) +1 202 663 6363 (f) seth.waxman@wilmerhale.com Twin Metals Minnesota Mineral Lease Renewals Dear Secretary Jewell: Twin Metals Minnesota is in receipt of a March 8, 2016, opinion from Solicitor Hilary Tompkins (the “Solicitor’s Opinion” or “Opinion”) regarding the company’s right to renew two mineral leases on federal land within Minnesota’s Superior National Forest. The Opinion concludes (p.1) that Twin Metals does not have a non-discretionary right to renewal of the leases, and that, instead, the Bureau of Land Management “has discretion to grant or deny the pending renewal application.” That conclusion has unjustifiably cast a cloud of uncertainty over Twin Metals’ valid existing rights to the minerals and jeopardized its substantial investment to date. The Solicitor’s conclusion is both legally erroneous and predicated on a fundamental misunderstanding of the policy considerations and factual background that led to the issuance of these unique leases 50 years ago. We request that you rescind the Opinion and reaffirm Twin Metals’ non-discretionary right to renew the leases.1 1. The Opinion’s Legal Analysis Is Flawed Contrary to the position in the Opinion, Twin Metals has a contractual right to renewal. The enclosed legal memorandum describes in detail the errors in the Solicitor’s analysis. In summary, the terms of the original 1966 leases unambiguously vest Twin Metals with a non-discretionary right to renewal, a right that is not contingent on the initiation of production. The parties’ course of conduct throughout the lease period confirms their intent to grant that non-discretionary right. This course of conduct includes the original granting of prospecting permits, the discovery of a valuable mineral deposit, the process by which the leases were negotiated, and the subsequent renewals of the leases in 1989 and again in 2004. Nothing in this course of conduct suggests that the parties intended to deny Twin Metals or its predecessors the critical non-discretionary renewal right. 1 The Secretary has the authority to overturn opinions of the Solicitor under 43 C.F.R. §4.5(a)(2). The Honorable Sally Jewell July 1, 2016 Page 2 The leases do not make Twin Metals’ right to renewal contingent on the initiation of production within a specified time period. Instead, the parties negotiated higherthan-usual royalty payments in lieu of a production requirement, in recognition of the enormous time and effort that would be required before development would be feasible. Section 5 of the leases does specify that, as part of the renewal process, BLM may “readjust” the terms and conditions of the leases in enumerated circumstances. But it may not deny the renewals altogether. 2. The Opinion Misunderstands The Policy And Factual Background Of The Leases A non-discretionary right to renew is consistent with established policy favoring mineral development in select portions of the Superior National Forest. The Opinion is contrary to that longstanding policy and reflects a misunderstanding of the history of mineral leasing in Minnesota in general, and the unique factual circumstances that led to these leases in particular. In 1950 Congress expressly opened Forest land to mineral exploration and development. See Pub. L. No. 81-594, 64 Stat. 311 (June 30, 1950) (codified at 16 U.S.C. §508b). The legislative history makes clear that Congress intended not merely to permit, but in fact to encourage, mining on public lands within the Forest—based in part on testimony from officials at the Departments of Agriculture and Interior that it was “highly desirable to permit the prospecting, development, mining, removal, and utilization of the mineral resources.” S. Rep. No. 81-1778, at 2 (1950) (emphasis added). Twin Metals’ leases were issued under this 1950 Act (and in fact are the only leases for mineral rights within the Superior National Forest ever granted under the statute). Twin Metals’ predecessor obtained a prospecting permit in 1951 and, following the discovery of a valuable hardrock mineral deposit, engaged in lease negotiations with the government over the course of a decade. Those extensive negotiations culminated in the signing in 1966 of these two leases. Crucially, by the time the leases were signed, Twin Metals’ predecessor was entitled to such a lease, based on its discovery of a valuable mineral deposit. The lease terms were then tailored to address the unique characteristics and challenges associated with the discovered deposits. The parties drew on concepts from other hardrock mineral leases, in particular the concepts of “non-competitive” and “indeterminate” leases. As a result, BLM agreed—consistent with policy for hardrock minerals discovered in unknown geologic deposits—to a non-discretionary right to successive renewals of the mineral leases, consistent with Congress’s intent to give The Honorable Sally Jewell July 1, 2016 Page 3 private parties (such as Twin Metals and its predecessors) an incentive to bear the risk and commit the resources necessary to evaluate and define an unknown hardrock mineral resource. The Solicitor’s Opinion would allow the government to renege on this agreement. Notably, Congress reaffirmed its support for mining in the Superior National Forest well after the issuance of the leases, when it designated the Boundary Waters Canoe Area Wilderness in 1978. See Pub. L. No. 95-495, 92 Stat. 1649 (1978). The product of intense public debate, the act reflected a compromise that balanced the interests of preservation with the need for access to important mineral resources in the Forest. While mineral development was prohibited in the Area Wilderness, it was expressly permitted in other parts of the Forest—including the lands subject to Twin Metals’ leases. To ensure that the mineral development would not harm the Area Wilderness, Congress established a “Mining Protection Area” bordering the wilderness to serve as a buffer zone. See id. §§9-10, 92 Stat. at 1655. The areas covering Twin Metals’ leases are located outside of this buffer zone. Consistent with Congress’s intent, the Superior National Forest Land and Resource Management Plan, updated most recently in 2004, states that “[e]xploration and development of mineral and mineral material resources” is a “desired condition” and is explicitly permitted on Forest land outside the Area Wilderness and the buffer zone. The Management Plan further recognizes that responsible mining in the Forest is beneficial to both economic and national defense interests. The Opinion does not account for this crucial policy context. Hardrock mineral development is inherently risky, difficult, time-consuming, and expensive. No reasonable party would have explored for minerals and then entered into a lease that did not account for this reality by guaranteeing long-term mineral rights, and no company would have been willing to incur the substantial cost of exploration and development activities without such an assurance. In short, Congress has concluded that mineral development is desirable on the Superior National Forest lands subject to Twin Metals’ leases. It is not for the agency to second-guess that determination. Twin Metals (and its predecessors) explored for and discovered a valuable hardrock mineral deposit, which represents one of the world’s largest undeveloped resources of copper and nickel. The promise of secure, long-term mineral rights is precisely what the parties negotiated and memorialized in the terms of the 1966 leases, and affirmation of that right is what Twin Metals seeks and is entitled to today. The Honorable Sally Jewell July 1, 2016 Page 4 3. The Solicitor’s Opinion Has Caused Twin Metals Significant Harm By purporting to deprive Twin Metals of its contractual rights, the Solicitor’s Opinion has caused Twin Metals—and will continue to cause it—substantial and immediate harm. In reliance on the security of its mineral tenure, Twin Metals has invested approximately $400 million in acquisition, exploration, technical development, and other preliminary activities to define the mineral deposit and prepare for future development of the resource. Twin Metals conservatively estimates that its federal leases cover lands containing more than $40 billion of in-ground mineral value. In addition, Twin Metals has discovered additional valuable federal mineral deposits, and also possesses adjacent state and private leases that together encompass another $90 billion of in-ground mineral value. The lands subject to Twin Metals’ leases are interconnected with its other mineral rights; development of one lease affects the development of the others. Thus, denying Twin Metals’ right to renew its federal leases also prejudices the discovery of its other federal mineral rights and jeopardizes the value of its state and private leases. The possibility that BLM will exercise its purported discretion to grant rather than deny Twin Metals’ renewal applications is no substitute for the rights Twin Metals properly has under the leases. A non-discretionary right to renew is a fundamentally different property right from a lease that can be terminated at BLM’s discretion every 10 years. If the Solicitor’s Opinion stands, Twin Metals will have no protection against a future denial. This uncertainty will inhibit Twin Metals’ long-term planning, investment, development, and operational decisions. It also casts doubt on Twin Metals’ ability to recoup the significant investment it has already made. 4. The Only Issue At This Stage Is The Proper Interpretation Of The Leases Twin Metals is committed to protecting Minnesota’s wilderness and natural environment; it understands and shares the desire to safeguard the Area Wilderness and its watershed. Twin Metals intends to deploy state-of-the-art technologies to develop the natural resources held under its federal, state, and private mineral leases within the Superior National Forest in an environmentally sensitive manner, and thus is confident that it can design a responsible, environmentally sound mining plan that meets or exceeds all federal and state requirements. W1 LM ERHALE The Honorable Sally Jewell July 1,2016 Page 5 The government will have every opportunity to con?rm that for itself, because any future operations under the leases will be subject to stringent environmental review by federal and state agencies pursuant to the National Environmental Policy Act, Minnesota Environmental Policy Act, and other laws. In fact, the leases require that the government approve any proposed plan of operations based on a consideration of potential environmental impacts, including water pollution and ground disturbances. Thus, once a future mining plan is developed, Twin Metals expects and welcomes a rigorous environmental review and stakeholder engagement process. But that is not the question now. The lone question at this stage is whether Twin Metals has a non-discretionary right to renew the leases. That is separate from the question whether any future mining project will be approved. The appropriate time to evaluate potential environmental impacts and required mitigation measures is when a site-speci?c proposal is submitted. All Twin Metals asks today is that its longstanding contract-based property rights in the two leases be reaf?rmed. For the reasons above and those given in the attached legal memorandum, we request that you exercise your authority to rescind the Solicitor? Opinion. Twin Metals is committed to working with you and others within the Department to reach a resolution of this issue, but is also prepared, if necessary, to take any other available actions to secure its mineral rights, and will regard any action taken in reliance on the Solicitor?s Opinion as subject to challenge. In hopes of minimizing the need for such action, I request an opportunity to meet with you and your staff in the very near future to discuss these issues further. Yours sincerely, Adi/?15774?? Seth P. Waxman cc: Honorable Thomas Vilsack Seth P. Waxman July 1, 2016 The Honorable Hilary C. Tompkins Solicitor Department of the Interior 1849 C Street N.W. Washington, D.C. 20240 Re: +1 202 663 6800 (t) +1 202 663 6363 (f) seth.waxman@wilmerhale.com Solicitor’s Opinion M-37036 Dear Solicitor Tompkins: I write on behalf of Twin Metals Minnesota in response to your opinion M-37036, dated March 8, 2016 (the “Solicitor’s Opinion” or “Opinion”). The Opinion concludes (p.1) that Twin Metals “does not have a non-discretionary right to renewal” of hardrock leases MNES-01352 and MNES-01353, but rather that the Bureau of Land Management “has discretion to grant or deny the pending renewal application.” For the reasons given herein, Twin Metals submits that that conclusion is wrong and that the Opinion should be withdrawn. INTRODUCTION In 1966, after ten years of extensive negotiations, BLM and Twin Metals’ predecessor in interest executed two hardrock mineral leases with respect to land in the Superior National Forest in northern Minnesota. Consistent with the lengthy negotiations that preceded them, the leases set forth comprehensive—and unique— terms. One of those terms is a right to renew the lease (in fact, to successive renewals). This right is critical to the parties’ overall bargain: The investment required of the lessee under the leases is enormous. But because of recognized operational problems in the area, producing minerals in the short term would have been impossible. The leases thus would serve no rational purpose absent a non-discretionary right to renew; no company would undertake the necessary investment for exploration and development knowing that it could be unilaterally deprived of any ability to recoup that investment. Recognizing this, section 1 of the leases provides an unambiguous “right in the Lessee to renew … for successive periods of ten … years.” 1966 Leases §1(a). This renewal right is textually unqualified save for the requirement of being consistent “with regulation 43 C.F.R. § 3221.4(f) and the provisions of this lease,” id.—both of which, as explained below, support the conclusion that BLM has no discretion to deny the right of renewal. The Honorable Hilary Tompkins July 1, 2016 Page 2 In accordance with section 1, BLM in 1989 granted a ten-year renewal of the leases, renewing “under the existing terms and conditions of the original leases.” Ex. 1 (BLM Letter) at 1 (Apr. 25, 1989). To effect this renewal, BLM presented the lessee with short, standard forms, forms that attached the 1966 leases in full. The parties executed those forms. In 2004, the parties again renewed the leases by executing short, standard forms—the very same forms as in 1989—to which they again attached the 1966 leases in full. Importantly, the parties completed this renewal without any discussion, much less negotiation, of any contract terms. The renewal was routine and administrative in nature. In 2012, Twin Metals applied for a third ten-year renewal. BLM subsequently asked your office whether it has the discretion to grant or deny the application. In response, your office issued the Opinion, taking the position (p.1) that Twin Metals “does not have a non-discretionary right to renewal.” Respectfully, that position rests on three overarching errors. First, the Opinion erroneously concludes that the renewal provision in the 2004 standard forms controls. In fact, the 1966 leases control. The Opinion’s contrary view depends on its assertion (p.6) that the 2004 forms are “integrated” contracts. But they are not; the 2004 forms lack any integration clause (a point the Opinion does not acknowledge), and there is no other basis on which to conclude that the 2004 forms— divorced from the 1966 leases that the parties attached—were integrated contracts. In light of this, the Opinion’s refusal to consider extrinsic evidence conflicts with established law. Once the forms are considered in light of that evidence (i.e., the relevant surrounding circumstances), the only reasonable conclusion is the parties’ written agreement when they renewed the leases in 2004 was the standard forms and the complete 1966 leases that the parties attached. Second, the Opinion (p.10) erroneously construes the 1966 leases as establishing (in section 5) a “condition precedent” to any renewal, namely production within the original 20-year term. That interpretation renders meaningless the renewal right in section 1—a right that the Opinion never confronts. The interpretation also runs afoul of the plain text of section 5. By contrast, Twin Metals’ interpretation of the leases gives effect to the text and purposes of both sections: Section 1 provides Twin Metals with a non-discretionary right to renew, while section 5 governs the terms of any renewal, and specifically addresses the scope of BLM’s authority to adjust royalties and other conditions under specified circumstances. The Honorable Hilary Tompkins July 1, 2016 Page 3 Third, having concluded that the 2004 standard forms control the renewal analysis, the Opinion concludes (p.7) that the undefined phrase “preferential right” in those forms is unambiguous. That conclusion conflicts with both relevant case law and a prior Solicitor’s opinion. Because the phrase is ambiguous, extrinsic evidence must be considered, and it confirms that the parties’ intent in executing the 2004 forms was to re-confirm that Twin Metals has a non-discretionary right to renew. Even if extrinsic evidence did not resolve the ambiguity, the rule of contra proferentem would require that this phrase be construed against BLM, which drafted the 2004 standard forms. Because the Opinion’s ultimate conclusion flows from these three errors, the conclusion is unsustainable, and the Opinion should be withdrawn. BACKGROUND A. The Act Of 1950 Leases MNES-01352 and MNES-01353 were issued under the Act of 1950, a law authorizing mining in the Superior National Forest. See Pub. L. No. 81-594, 64 Stat. 311 (codified at 16 U.S.C. §508b). In the words of the accompanying Senate report, the law was “special legislation to meet a special situation.” S. Rep. No. 81-1778, at 2 (1950). The statute authorizes the Secretary of the Interior, with the consent of the Secretary of Agriculture, to “permit the prospecting for and the development and utilization of … mineral resources” on national forest land in Minnesota. 64 Stat. at 312. As the legislative history makes clear, Congress intended not just to “permit” mining, but to encourage it as a “highly desirable” activity, S. Rep. No. 81-1778, at 2—i.e., one that yields substantial benefits for the general public. Congress enacted the Act of 1950 against the backdrop of the executive branch’s failure to honor and protect mining companies’ legitimate reliance interests, resulting in severe economic consequences for those companies. As the Act’s legislative history recounts, mining permits had been granted in Minnesota before 1950, under a ruling from the Solicitor of the Department of Agriculture. S. Rep. No. 81-1778, at 2; H.R. Rep. No. 81-795, at 2 (1949). But that ruling was later reversed, forcing mining companies to liquidate their investments. S. Rep. No. 81-1778, at 2; H.R. Rep. No. 81795, at 2. It was Congress’s dissatisfaction with this outcome—“investment losses resulting from cancellation of mining permits in the Minnesota forests,” S. Rep. No. 811778, at 2—that spurred passage of the Act of 1950. In particular, Congress’s view was that companies that “have made investments for the mining and removal of mineral substances from the described lands should be given the privilege of renewing or retaining their permits or leases.” H.R. Rep. No. 81-792, at 2 (1949). The Honorable Hilary Tompkins July 1, 2016 Page 4 B. 1966 Leases And Renewals 1. 1966 Leases The International Nickel Company (“INCO”) is Twin Metals’ predecessor in interest. Shortly after Congress enacted the Act of 1950, INCO acquired prospecting permits for the lands at issue here. See Ex. 2 (INCO Letter) at 1, 8-9 (Mar. 27, 1956). INCO invested significant money and effort in prospecting on those lands, ultimately discovering a valuable copper and nickel deposit—and thereby acquiring vested mineral rights. In 1956, INCO sought a lease with BLM to have those vested rights formalized. See Ex. 2 (INCO Letter) at 1, 8-9. This gave rise to a decade of what BLM later labeled “intensive negotiations.” Ex. 3 (BLM Memo re Recommendation for Lease Renewals) at 1 (Oct. 14, 1988); see also id. at 2 (noting the “highly negotiated terms and conditions” of the 1966 leases). During those negotiations, INCO was clear that it was “not considered possible to set forth minimum production requirements in the leases” in light of “special problems … involved in developing mining operations in the area.” Ex. 4 (1965 Memo) at 1, 2 (Apr. 15, 1965). In lieu of such a requirement, the parties negotiated and INCO agreed to pay minimum royalties that were significantly higher than normal. This was to ensure—again as BLM itself later confirmed—that INCO retained a financial incentive for development. See Ex. 3 at 1 (“Th[e] high minimum royalty payment … is intended to serve as the ‘production incentive’ or ‘diligent development’ provision in the leases[.]”). On June 14, 1966, INCO and BLM memorialized their agreement, executing the 1966 leases. Consistent with the extensive negotiations that preceded them, the 1966 leases are unique; the parties opted not to use BLM’s standard leasing forms, instead tailoring the leases to address the recognized development challenges in mining operations in the area. In line with Congress’s concern when it enacted the Act of 1950 about protecting mining companies’ investments—and in line with the type of investment required for hardrock minerals in unexplored areas, the very first section (indeed the very first subsection) of the 1966 leases gives the lessee not only the exclusive right to mine on the subject lands, but also the right to renew the lease. More specifically, section 1 (entitled “Rights of Lessee”) provides that the lessee has: a right … to renew … for successive periods of ten (10) years each in accordance with regulation 43 CFR § 3221.4(f) and the provisions of this lease. The Honorable Hilary Tompkins July 1, 2016 Page 5 1966 Leases §1(a). Like section 1 itself, the regulation cited at the end of this language provided that a “lease will be issued for a period not exceeding 20 years,” and that the “lessee will be granted a right of renewal for successive periods, not exceeding 10 years each, under such reasonable terms and conditions as the Secretary of the Interior may prescribe.” 43 C.F.R. §3221.4(f) (1966) (emphasis added). Section 2 of the leases then sets forth comprehensive terms—ranging from rental rates and royalties to the payment of taxes and non-discrimination provisions. Consistent with the parties’ negotiations, section 2(c) establishes a higher-than-usual minimum royalty requirement. Pursuant to this section, INCO and its successors have paid over $1.4 million dollars in royalties to the government. Finally, section 5 of the leases—entitled “Renewal Terms”—authorizes BLM to “readjust” lease terms during “each successive renewal,” except as otherwise provided. As BLM later confirmed, neither section 5 nor any other provision of the 1966 leases establishes “a production requirement.” Ex. 3 at 1. Section 5 instead creates a production incentive, providing that if INCO was producing by the end of the initial 20year term, then BLM would only have limited readjustment rights during the first three renewals. In particular, upon renewal BLM would only be able to readjust the royalty provisions by specified amounts, and would not be able to adjust other terms and conditions at all. See 1966 Leases §5. If instead INCO was not producing before the initial term ended, then BLM would have the right, starting with the first renewal, to readjust terms and conditions without these limitations. Id. 2. 1989 Renewal In 1986, INCO timely applied for the first ten-year renewal of the 1966 leases. Three years later, BLM used standard-form documents to renew the leases—notably stating that it was “agree[ing] to the renewal … under the existing terms and conditions of the original leases.” Ex. 1 at 1. Not surprisingly in light of this, the 1966 leases were attached in full to the standard forms, with certain provisions expressly referenced therein. See 1989 Renewal Forms §14 (referring to the “attached original lease agreement”). Underscoring the fact that the renewal was under the terms of the 1966 leases, BLM, during the process leading up to renewal, withdrew an earlier decision that would have altered the terms of those leases. More specifically, in 1986 an official at BLM’s Milwaukee office submitted a memo offering “recommendations regarding the renewal of the leases.” Ex. 5 (BLM Letter) at 1 (July 9, 1986). These recommendations would have changed the 1966 lease terms in various ways, including by requiring that “INCO … produce 1% of the reserves … by the date of lease expiration.” Id. at 2. “Failure to The Honorable Hilary Tompkins July 1, 2016 Page 6 comply” with that requirement, the memo recommended, “would result in the termination of both leases.” Id. As the 1986 memo recommended, BLM initially sent lease-renewal forms that would have altered the terms and conditions of the original leases. See Ex. 6 (Sept. 12, 1988). A month later, however—after “further review of the leases and their case files”—another official at BLM’s Milwaukee office wrote to “revise our recommendations concerning the subject renewals.” Ex. 3 at 1. He rejected the 1986 memo’s call to revise the lease terms (including by adding a production requirement), instead recommending that “these leases be renewed under the existing terms and conditions.” Id. at 2. As to a production requirement, he noted that “these INCO leases contain a high minimum royalty payment requirement, which was agreed would serve as the production incentive,” and further concluded that a production requirement would be “inappropriate.” Id. BLM promptly embraced these recommendations, withdrawing the lease-renewal forms previously sent to INCO. The withdrawal letter explained that “the new lease forms submitted for signature [would have] alter[ed] the terms and conditions of the original leases.” Ex. 7 (BLM Vacatur Decision) at 1 (Nov. 7, 1988). Instead, BLM sent short standard lease forms, together with full copies of the 1966 leases, explaining, as mentioned, that the renewal was “under the existing terms and conditions of the original leases.” Ex. 1 at 1. The 1989 standard forms referred to the lessee’s “preferential right” to renew, but did not define the phrase. 1989 Renewal Forms part I. The forms did not include an integration clause.1 3. 2004 Renewal After the 1989 renewal, American Copper and Nickel, Inc. acquired leases MNES-01352 and MNES-01353. In 1999, it timely applied for a second ten-year renewal. BLM renewed the leases in 2004, using the very same standard forms the 1 While INCO’s renewal application was pending, BLM asked the Solicitor’s Office whether it could renew the leases even though production had not begun. In a memo dated April 2, 1986, an assistant solicitor concluded that the lease could be extended “for a period not exceeding 10 years,” but that “[i]f production does not occur during th[at] period of extension, no further extensions will be allowed.” Att. to Solicitor’s Opinion at 1. As explained herein, that reading of the leases was wrong—and BLM recognized it was wrong, because even though production had not yet begun by 2004 (which would have prohibited renewal according to the assistant solicitor), BLM because renewed the leases that year. The Honorable Hilary Tompkins July 1, 2016 Page 7 parties had executed in 1989 (and again attaching the 1966 leases in full). See 2004 Renewal Forms. Although the 1989 and 2004 forms were the same, the processes leading up to the renewals in those two years were significantly different. As just discussed, in 1989 BLM engaged in significant internal discussions, seeking advice on renewal before issuing certain lease forms and then withdrawing those and issuing others. In 2004, by contrast, there was no significant discussion about renewal terms, either within the government or between the parties. Instead, BLM—speaking through the same official who oversaw the 1989 renewal (Vincent Vogt)—simply recommended that the leases be renewed “for ten years, as stipulated within the lease language.” Ex. 8 (BLM Letter) at 1 (Apr. 12, 1999). Similarly, the Forest Service stated that it “has no objection to the renewal of the above preference right leases. The terms, conditions and stipulations have been reviewed, and it has been determined that they are sufficient to protect the resources of the United States.” Ex. 9 (Forest Service Memo) at 1 (July 18, 2003). Like the (identical) 1989 standard forms, the 2004 forms did not include an integration clause, and they referred to the lessee’s “preferential right” to renew without defining that phrase. C. Solicitor’s Opinion Twin Metals acquired the leases at issue in 2011. The following year, it applied for a third ten-year renewal. BLM then asked your office “whether it has the discretion to grant or deny Twin Metals Minnesota’s pending application for renewal.” Solicitor’s Opinion 1. Both at an in-person presentation on January 14, 2016, and by memorandum dated January 26, 2016, Twin Metals detailed for your office its position that BLM has no discretion to deny lease renewal. Twin Metals also responded to questions raised by you and by letter from the Northeastern Minnesotans for Wilderness. On March 8, 2016, your office issued the Opinion, taking the position (p.1) that Twin Metals “does not have a non-discretionary right to renewal, but rather the BLM has discretion to grant or deny the pending renewal application.” As explained at the outset of this letter, that position rests on three principal conclusions. First, the Opinion asserts (p.6) that the 2004 standard forms are “complete, integrated documents,” and thus their renewal provision governs the analysis here. In making this assertion, the Opinion does not acknowledge the lack of any integration clause in the 2004 standard forms. The Opinion does recognize that the 1966 leases The Honorable Hilary Tompkins July 1, 2016 Page 8 were attached and referred to in the 2004 standard forms, but it concludes that the parties incorporated “only two provisions from the 1966 leases.” Id. It does not explain how that could be true, however, given that: (1) the 1989 renewal was “under the existing terms and conditions of the original leases,” Ex. 1 at 1, and (2) the 2004 forms were the same ones used in 1989. Second, based solely on the phrase “preferential right,” the Opinion (p.5) interprets the 2004 standard forms as granting Twin Metals only a “a right to be preferred against other parties.” According to the Opinion (id.), the department has “consistently interpreted” the phrase “preferential right” “as not entitling the lessee to an automatic right of renewal.” The Opinion rejects as “without merit” (p.7) Twin Metals’ argument that that phrase is in fact is ambiguous. The Opinion accordingly refuses (p.6) to consider any of the extrinsic evidence that Twin Metals maintained confirms that “BLM intended to simply renew the leases under the exact same terms of the 1966 leases.” Third, the Opinion concludes (p.8) that even if the 1966 leases governed, “they do not prohibit the BLM from exercising its discretion to decide whether to renew the leases.” Ignoring the unqualified renewal right in section 1, the Opinion focuses on section 5, which reads: The Lessor shall have the right to reasonably readjust and fix royalties payable hereunder at the end of the primary term of this lease and thereafter at the end of each successive renewal thereof unless otherwise provided by the law at the time of the expiration of any such period, and to readjust other terms and conditions of the lease, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover; provided, however, that the Lessee shall have the right to three successive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production[.] 1966 Leases §5 (emphasis added). The Opinion (p.10) reads section 5 to mean that “production is the condition precedent for the lessee to obtain any lease renewals of right.” In particular, the Opinion (p.9) interprets the emphasized “unless” clause to qualify “the very right to renew” rather than the right described in the immediately preceding phrase, i.e., the right to renew with BLM’s readjustment authority limited as described in the balance of section 5. The Honorable Hilary Tompkins July 1, 2016 Page 9 ARGUMENT I. UNDER THE 1966 LEASES, WHICH GOVERN THE ANALYSIS HERE, T WIN METALS HAS A NON-DISCRETIONARY RIGHT TO RENEW A. The Parties Incorporated The 1966 Leases In Full Into The 2004 Standard Forms The Solicitor’s Opinion concludes (p.6) that whether Twin Metals has a nondiscretionary right to renew the leases at issue is governed by the renewal provision in the 2004 standard forms, rather than its counterpart in the 1966 leases, because the 2004 standard forms are supposedly “complete, integrated documents.” That is not correct. “A written contract is considered integrated when the parties intend it to constitute the complete and final expression of their agreement.” Starter Corp. v. Converse, Inc., 170 F.3d 286, 295 (2d Cir. 1999) (citing Farnsworth, Contracts §7.3 (2d ed. 1990)). “When a contract lacks an express integration clause [courts] must ‘determine whether the parties intended their agreement to be an integrated contract by reading the writing in light of the surrounding circumstances.’” Id. (emphasis added); see also, e.g., McAbee Constr., Inc. v. United States, 97 F.3d 1431, 1434 (Fed. Cir. 1996) (“extrinsic evidence is ‘especially pertinent … where … the writing itself contains no recitals or other evidence testifying to its intended completeness and finality’”); Montwood Corp. v. Hot Springs Theme Park Corp., 766 F.2d 359, 362 (8th Cir. 1985) (“absence [of an integration clause] is relevant in determining whether the parties intended to integrate their entire agreement into the document” at issue). Here, the 2004 standard forms lack an integration clause—a point not mentioned in the Solicitor’s Opinion. That “very basic fact,” United Precision Prods. Co. v. Avco Corp., 540 F. App’x 489, 493 (6th Cir. 2013), requires consideration of extrinsic evidence.2 Once extrinsic evidence is considered, it is clear that the parties did not intend the 2004 forms to be a “complete and final expression of their agreement.” Starter Corp., 170 F.3d at 295. The forms are short, boilerplate documents, and hence unlikely to encompass all of the parties’ intended terms for such a consequential and complex undertaking. Furthermore, the 2004 forms’ execution was preceded by virtually no discussion—much less actual negotiation—of any contract terms. Again, particularly 2 Even where there is an integration clause, that is not necessarily “conclusive,” and courts will still look to the “surrounding circumstances.” United States v. Basin Elec. Power Coop., 248 F.3d 781, 809 (8th Cir. 2001) (citing Restatement (Second) of Contracts §209 cmt. b (1981)). The Honorable Hilary Tompkins July 1, 2016 Page 10 given the monumental economic interests at stake, this factor further weighs heavily against a finding of integration. See, e.g., ARB (American Research Bureau), Inc. v. ESystems, Inc., 663 F.2d 189, 199 (D.C. Cir. 1980) (“The length of the contract, its exhaustive detail, and the prolonged period of negotiation preceding its signing, collectively considered, support [the] conclusion” that the contract was integrated.). It is all the more implausible that in 2004 the parties intended to depart from the terms of the 1966 leases given that: (1) those leases were attached to the 2004 forms (as they were with the 1989 forms), and (2) all of the 1966 lease terms were in effect when the 2004 renewal was executed. See Ex. 1 at 1 (government agreeing to the 1989 renewal “under the existing terms and conditions of the original leases”). The Opinion disputes this second point, asserting (p.6) that “only two provisions from the 1966 leases” were incorporated in 2004, via “two special stipulations.” But that cannot be right. As just mentioned, the government acknowledged that the 1989 renewal was “under the existing terms and conditions of the original leases,” i.e., all of those existing terms. And the 1989 forms contained the exact same stipulations that the Opinion points to in the 2004 forms as evidence that only the provisions mentioned in those stipulations were incorporated. See 1989 Renewal Forms §14. The Opinion’s conclusion, in short, is that by filling out the same form in 2004 that they had filled out in 1989, in the same way that they had in 1989, and by attaching the same complete copy of the 1966 leases that they had attached in 1989, the parties—without a word to one another on the topic—agreed not only to do something different than what they had done in 1989, but also to do something far-reaching, namely to significantly revise the deal they had both lived under for nearly four decades. That is extraordinarily unlikely. The Opinion appears to address this point in asserting (p.6) that “the 1989 and 2004 renewals differ … because the BLM’s discretion was limited in 1989 but not in 2004.” It was “limited in 1989,” according to the Opinion, because “the 1989 renewal served as a one-time extension of time for commencement of production, as authorized under section 5 of the 1966 leases.” Id. A threshold flaw in this assertion is its premise that section 5 created a production requirement. In fact, as BLM recognized, that section created a production incentive, see Ex. 3 at 1, while also adopting higher-thannormal royalty payments in lieu of a production requirement. In any event, the Opinion points to nothing even suggesting that the 1989 renewal was an extension rather than an actual renewal. No extension was requested, and the relevant contemporaneous documents—including the leases themselves—use the term “renewal,” not “extension.” Indeed, the leases use that term in the title (which surely describe what the document is), as well as in the very opening sentence of text: “This … Lease Renewal … is effective … Jul[y] 01, 1989….” 1989 Renewal Forms at 1. The cover sheet transmitting the forms likewise repeatedly used the term “renewal,” stating: “The Forest Service The Honorable Hilary Tompkins July 1, 2016 Page 11 and [BLM] have agreed to the renewal of the enclosed Preference Right Leases …. Enclosed are lease renewal forms transmitted for your signature and return to this office.” Ex. 1 at 1; see also Ex. 5 at 1 (BLM letter repeatedly using the word renewal); Ex. 3 (same); Ex. 7 (same); Ex. 10 (similar for Agriculture Department memo dated June 19, 1986). This consistent terminology confirms that the 1989 renewal was just that, and not a production extension. In fact, the Opinion appears to recognize this, as it says the 1989 renewal was only “effectively” an extension (p.6). Even if the 1989 renewal were an extension, moreover, the 2004 renewal would have to be as well, because again—although the Opinion ignores this crucial fact—those two renewals are identical. Hence, if the 1989 renewal “limited” BLM’s discretion (Opinion 6), then so did the 2004 renewal. There is no basis to distinguish between the two. And given the government’s acknowledgement at the time that the 1989 renewal was done under all the terms and conditions of the original leases, see Ex. 1, it cannot now retroactively deny that the identical 2004 renewal was as well. The Opinion also claims (p.6) that “nothing in the … 2004 leases … states that the 1966 terms somehow govern over the terms expressly set out in the 2004 leases.” That flips contract law on its head. As a leading treatise explains, “two or more agreements, though of a similar nature and made between the same parties, will not be read together when the later one expressly states that it supersedes or annuls the prior one.” 11 Lord, Williston on Contracts §30:26 (4th ed. 2012) (emphasis added). Hence, the question is not, as the Opinion contends (p.6), whether the 2004 forms “expressly set out” that the 1966 Leases govern. The question instead is whether the 2004 standard forms “expressly state[]” that they have “supersede[d] or annul[ed]” the 1966 leases. They do not. The “subsequent writing” should therefore be “construed in harmony with the original contract.” Fairbrook Leasing, Inc. v. Mesaba Aviation, Inc., 295 F. Supp. 2d 1063, 1075 (D. Minn. 2003). Put simply, the only reasonable conclusion is that the 1989 and 2004 documents were identical because the two renewals were identical: Each incorporated all of the terms in the attached 1966 leases. That conclusion makes sense because the 1966 leases, as discussed, were the product of extensive negotiations, carried out over a decade. Given the enormous effort that went into hammering out the terms of those leases, it would be entirely sensible for the parties to want to retain them. See Arborjet, Inc. v. Rainbow Treecare Sci. Advancements, Inc., 794 F.3d 168, 172 (1st Cir. 2015) (Souter, J.) (“Common sense is as much a part of contract interpretation as is the dictionary or the arsenal of canons.”); Westchester Fire Ins. Co. v. Wallerich, 563 F.3d 707, 712 (8th Cir. 2009) (“The language must be considered within its context, and with common sense.”). The Honorable Hilary Tompkins July 1, 2016 Page 12 Because the parties incorporated the 1966 leases in 2004, it is the renewal provision in the leases that controls. B. The 1966 Leases Establish A Non-Discretionary “Right In The Lessee To Renew … For Successive” Ten-Year Periods The analysis of whether the 1966 leases gives Twin Metals a non-discretionary right to renew the lease “begins with the language of the written agreement.” NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004). In conducting that analysis, the contract must be “construe[d] … as a whole so as not to render any terms meaningless.” Affordable Cmtys. of Mo. v. Federal Nat’l Mortg. Ass’n, 714 F.3d 1069, 1075 (8th Cir. 2013) (quotation marks omitted). Only Twin Metals’ interpretation of the leases is consistent with these tenets. As explained below, section 1 of the leases governs whether Twin Metals has a right to renew—and it answers that question in the affirmative, unambiguously establishing a non-discretionary and unqualified right to successive renewals. Section 5 then governs the terms of any renewal, addressing the scope of BLM’s readjustment authority under certain conditions. This reading “harmonize[s] and give[s] reasonable meaning to all of [the contract’s] parts.” NVT Techs., 370 F.3d at 1159. The interpretation adopted by the Solicitor’s Opinion’s, by contrast, renders meaningless the renewal right established in section 1, and improperly reads critical language out of section 5. 1. Section 1 Entitled “Rights of Lessee,” section 1 of the 1966 leases establishes “a right in the Lessee to renew … for successive periods of ten (10) years each in accordance with regulation 43 CFR § 3221.4(f) and the provisions of this lease.” 1966 Leases §1(a). This language is clear: Twin Metals has a “right … to renew” for “successive” ten-year periods. Nothing in the other “provisions of th[e] lease” or the cited regulation diminishes that right. The Opinion nowhere attempts to give meaning to the renewal language in section 1. Indeed, although the Opinion describes section 1 as one of “[t]he three relevant provisions in the 1966 leases” (p.4), it then ignores that section’s renewal language in its eight pages of analysis. That is remarkable because the entire issue here The Honorable Hilary Tompkins July 1, 2016 Page 13 is the scope of the renewal right under the leases. The Opinion’s complete disregard of the language that speaks directly to the “right in the Lessee to renew” is telling.3 2. Section 5 According to the Opinion (pp.8, 10), section 5 of the 1966 leases contains a “conditional renewal provision,” under which “production is the condition precedent for the lessee to obtain any lease renewals of right.” That is not correct. As discussed above, BLM repeatedly acknowledged over the years that the 1966 leases do not contain a production requirement—and affirmatively reversed course after attempting to impose one as part of the 1989 renewal. BLM’s acknowledgements were wellfounded, given that a production requirement would have been wholly irrational. As INCO made clear in the negotiations preceding the 1966 leases, the area covered by the leases poses special challenges, such that production within the original 20-year lease term would be impossible. Given that, it defies reason and common sense to conclude that INCO would have agreed to condition its renewal rights on production. It did not. The text of section 5 makes this clear. To begin with, the section’s title, “Renewal Terms,” leaves no doubt that the section speaks to the terms of any renewal, not to whether Twin Metals has an unconditional right to renew in the first place. See, e.g., In re Coffman, 766 F.3d 1246, 1251 (11th Cir. 2014) (“title[s] and headings are permissible indicators of meaning” (alteration in original)). A sentence-by-sentence analysis of the section confirms that conclusion. a. sentence one The first sentence of section 5 consists of two principal clauses, separated by a semi-colon. The first clause grants BLM certain “readjust[ment]” rights upon renewal, while the second imposes a limitation on those rights: The Lessor [BLM] shall have the right to reasonably readjust and fix royalties payable hereunder at the end of the primary term of this lease and thereafter at the end of each successive renewal thereof unless otherwise provided by law at the time of the expiration of any such period, and to readjust other terms and conditions of the lease, including the revision 3 Underscoring the extent to which it seeks to avoid engaging with the section 1 renewal language, the Opinion states (p.10) that Twin Metals “reads … section 5 to grant the lessee a non-discretionary right of renewal.” That is wrong. Twin Metals’ consistent position has been that the “non-discretionary right of renewal” is granted by section 1, with section 5 governing (as its title states) the “Renewal Terms.” The Honorable Hilary Tompkins July 1, 2016 Page 14 of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover; provided, however, that the Lessee [Twin Metals] shall have the right to three successive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day. The structure of this sentence leaves no doubt about its meaning: The clause before the semi-colon establishes a general rule, namely that each time the lease is renewed BLM can “reasonably readjust … royalties” and “readjust other terms and conditions.” The clause after the semi-colon then creates an exception to that general rule—for the first “three successive ten-year renewals,” BLM’s royalty readjustments are capped and adjustment of other terms and conditions is barred—but adds that this exception does not apply if the lessee has not “begun production” by the end of the original 20-year lease term. Hence, the consequence of a failure to begin production within that term is not denial of any right to renew, as the Opinion asserts. As explained, the right to renew is granted in section 1 (which, again, the Opinion ignores), and there is no basis to conclude that this separate section (which nowhere refers to section 1) limits that right. Rather, under section 5 the consequence of a failure to begin production within the original term is that even for the first three renewals, BLM can reasonably adjust royalties without regard to the specified caps as well as reasonably adjust “other terms and conditions.”4 The Opinion offers a different reading of the first sentence of section 5. It states (p.9) that the “unless” clause at the end of the sentence “qualifies the very right to renew.” This meaning is supposedly demonstrated by “plac[ing]” the clause “next to 4 Based apparently on section 5’s reference to “three … renewals,” the Opinion states at the outset (p.1) that the 1966 leases offered “the possibility of three ten-year renewals” in total, i.e., no more than three renewals under any circumstances. See also id. at 11. In reality, the “three … renewals” reference refers to the number of renewals with limited BLM royalty readjustments that the lessee would be entitled to if it began production during the original 20-year lease term. The Opinion’s assertion on this point just underscores that its reading renders section 1 meaningless. That section establishes a right to “successive” renewals—without further limitation. Section 5 similarly refers in the opening clause to (unlimited) “successive” renewals. The Honorable Hilary Tompkins July 1, 2016 Page 15 the provision it actually qualifies: ‘[T]he Lessee shall have the right to three successive ten-year renewals of this lease … unless at the end of the primary term of this lease the Lessee shall not have begun production.’” Id. (alteration and ellipsis in original). This reading is untenable. To begin with, the “unless” clause appears in the part of the sentence following the semi-colon. But as the Opinion repeatedly recognizes, everything after the semi-colon is a proviso (hence the phrase “provided, however, that”). That is important because a proviso, by definition, is not a standalone provision; it instead qualifies “the matter immediately preceding” it. Black’s Law Dictionary 1420 (10th ed. 2014); accord, e.g., Barnhart v. Thomas, 540 U.S. 20, 26 (2003) (“[A] limiting clause or phrase … should ordinarily be read as modifying only the noun or phrase that it immediately follows.”); Rintoul v. Sun Life Assurance Co. of Can., 142 F.2d 776, 778 (7th Cir. 1944) (“A proviso is construed to apply to the provision or clause immediately preceding.”). Under the Opinion’s reading, however, the proviso is a standalone provision: It creates a freestanding “right to renew,” unconnected to the material before the semi-colon—material that “describes the BLM’s right to readjust the royalties and other terms and conditions at the renewal stage.” Opinion 9. That does not make sense. A clause establishing a freestanding right to renew is not in any proper sense of the word a “proviso” to a clause regarding BLM’s readjustment rights. By contrast, Twin Metals’ reading respects the second clause’s status as a proviso. As explained, under this reading the second clause confers not a right to renew simpliciter, but rather a right to renew with limits on BLM’s readjustment authority. That is a proper proviso, because the immediately preceding clause is what gives BLM the right to make those readjustments in the first place. The Opinion’s reading also requires that a portion of the first sentence of section 5 be deleted entirely. As noted, the Opinion states that: the proper meaning of the proviso is clear when the last clause is placed next to the provision it actually qualifies: “[T]he Lessee shall have the right to three successive ten-year renewals of this lease … unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day.” Opinion 9 (alteration and ellipsis in original). But this is not what the contract says. Upon reinserting (and emphasizing) the language that the Opinion replaced with an ellipsis, the sentence reads: The Honorable Hilary Tompkins July 1, 2016 Page 16 provided, however, that the Lessee shall have the right to three successive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production. 1966 Leases §5 (emphasis added). The Opinion’s approach is not legitimate; text cannot simply be deleted for purposes of interpretation. And doing so here is particularly inappropriate because the deleted text is a restrictive modifier, describing which “right to … renew[]” depends on production “hav[ing] begun.” Deleting the restrictive modifier thus effects a significant substantive change in the contract. The Opinion (p.9) rejects this analysis on the ground that the use of the word “and” between the two readjustment phrases (i.e., readjustment of royalties and readjustment of other terms and conditions) “ties them together as a single modifier to the right-to-renew language.” The Opinion asserts that because of this, the “unless” clause “cannot merely qualify the readjustment phrases, … but must apply to the overall right of renewal.” Id. But the Opinion does not explain why that conclusion necessarily (or logically) follows, and it does not. That the right to renew described in section 5 includes two benefits—limited readjustment of royalties by BLM and no readjustment of other terms and conditions—rather than one has no bearing on what the “unless” clause modifies. This point, and the Opinion’s erroneous reading of the first sentence of section 5 more generally, is illustrated with a simpler hypothetical. Imagine an airline ticket that stated: The ticket holder shall have the right to board the aircraft with one large carry-on and one personal item unless the overhead compartments are full. As shown by the side-by-side immediately comparison below, this sentence has the same basic structure as the section 5 proviso. The phrase “[t]he ticket holder shall have the right to board the aircraft” corresponds to “the Lessee shall have the right to successive … renewals”; the phrase “with one large carry-on item and one personal item” corresponds to “with any readjustment in the royalties…” (i.e., all of the italicized language in the prior block quotation); and the two “unless” clauses correspond: The Honorable Hilary Tompkins July 1, 2016 Page 17 1966 Leases [1] the Lessee shall have the right to three successive ten-year renewals of this lease [2] with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease [3] unless at the end of the primary term of this lease the Lessee shall not have begun production Airline Ticket [1] The ticket holder shall have the right to board the aircraft [2] with one large carryon and one personal item [3] unless the overhead compartments are full. Under the Opinion’s reasoning, this airline provision would mean that if the overhead compartments are full, then the passenger has no right to board the aircraft at all. It would have that meaning because under the Opinion’s reasoning, the “ticket holder shall have the right to board” language creates a freestanding “right to board,” just like section 5 supposedly creates a freestanding “right to renew,” and the “unless the overhead compartments are full” language modifies that freestanding right (just like the “unless” clause in section 5 supposedly “qualifies the very right to renew,” Opinion 9). But that is obviously not what the airline ticket means. It means instead that when the overhead compartments are full, the person may still board the plane, but has no right to do so with one large carry-on item and one personal item. Likewise, section 5 says that if production has not begun, the lessee still has the right to renew, but does not have the right to do it with caps on BLM’s royalty-readjustment authority and a prohibition on BLM’s adjustment of other terms and conditions. Even this hypothetical, however, addresses only one of the Opinion’s errors, namely deleting the crucial restrictive modifier. The hypothetical does not address two additional errors mentioned above: the Opinion’s failure to give any meaning to section 1 of the 1966 leases, and the Opinion’s failure to account for the fact that the material after the semi-colon in section 5’s first sentence is a proviso. Those two errors can be illustrated by making three additional assumptions about the airline ticket. First, assume the hypothetical language above appears in a section of the ticket entitled “Terms of Boarding,” just as section 5 of the leases is entitled “Renewal Terms.” Second, assume there is a separate section of the ticket entitled “Ticketholder’s Rights,” just as section 1(a) of the leases is entitled “Rights of Lessee,” and that this separate section states: “The Ticketholder shall have the right to board the aircraft in accordance with FAA regulations and the provisions of this ticket.” The Honorable Hilary Tompkins July 1, 2016 Page 18 Third, assume that the original airline provision (regarding boarding with one carry-on and one personal item) is a proviso, with the immediately preceding language stating that the airline “may limit carry-on items for safety or other reasons.” Putting these assumptions together with the original language, the ticket would say: Section 1. Ticket holder’s Rights: The ticket holder shall have the right to board the aircraft in accordance with FAA regulations and the provisions of this ticket. Section 5. Terms of Boarding: The airline may limit ticket holders’ carryon items for safety or other reasons; provided, however, that the ticket holder shall have the right to board the aircraft with one large carry-on and one personal item unless the overhead compartments are full. Again, under the Opinion’s reasoning, the proper reading of section 5 of the ticket would be that if the overhead compartments are full, the ticketholder has no right to board at all—notwithstanding that section 1 is what creates the right to board, notwithstanding that the section 5 right is only a right to board with a large carry-on and a personal item (and hence only that right is qualified by the “unless” clause), and notwithstanding that this reading gives no effect to the proviso’s status as such. That reading is indefensible as to the airline ticket, and it is indefensible as to the 1966 leases. b. sentence two The Solicitor’s Opinion asserts (p.9) that its “conclusion is further reinforced by the second sentence of section 5.” That sentence states: The Secretary of the Interior may grant extensions of time for commencement of production in the interest of conservation or upon a satisfactory showing by the Lessee that the lease cannot be successfully operated at a profit or for other reasons, and the Lessee shall be entitled to renewal as herein provided without readjustment except of royalties payable hereunder if at the end of the primary or renewal period such an extension shall be in effect, but the Lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time. This sentence’s meaning is straightforward—particularly when one recalls that the preceding sentence provided that if production had not commenced by the end of the original lease term then the lessee’s right to have BLM’s adjustment authority limited during the first three renewals did not apply, that is, BLM could make reasonable adjustments for all renewals. The second sentence then says that if the Secretary The Honorable Hilary Tompkins July 1, 2016 Page 19 extends the time for commencing production, and the extension is in effect when the time comes to renew, then the lessee has the right to renew “without readjustment except of royalties payable hereunder.” The final clause (“but the Lessee”) then provides that this “without-readjustment” right does not extend to later renewals unless production begins before the end of the extension period. Although the Opinion agrees with Twin Metals’ reading of most of the sentence, it reads the last clause (“but the Lessee…”) differently—and that difference leads the Opinion to state (p.10) that the sentence “reinforces the preceding sentence’s condition precedent that there must be production before the lessee has a ‘right’ to subsequent renewals.” The flaw in that interpretation is that it reads out of the contract the critical word “such” in the “but the Lessee” clause. Again, the clause states that “but the Lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time.” Hence, the clause does not, as the Opinion asserts, make production a condition precedent to any renewals. It instead makes production a condition precedent to “such renewals.” The “such” refers to the “renewals” described earlier in the same sentence, i.e., “renewal … without readjustment except of royalties payable hereunder.” As with the first sentence of section 5, then, the Opinion’s reading of the second sentence depends on deleting crucial language in the contract. That is not permissible. c. sentence three The third sentence of section 5 specifies the limits on royalty adjustments that BLM may make under the circumstances specified in the first two sentences. In particular, it states that “[i]f the Lessee shall be entitled to renewal without readjustment except of royalties payable hereunder, the Secretary of the Interior may in his discretion increase the royalty rates” by percentages specified in the balance of the sentence. Regarding this sentence, the Opinion states (p.10) only that “without production, there would be no such entitlement.” That is true but as explained, the “entitlement” to which the third sentence refers is “renewal … without readjustment except of royalties.” Under the Opinion’s reading, by contrast, the “entitlement” is to renew at all. Because that is not how the third sentence defines the relevant “entitlement,” that sentence likewise refutes the Opinion’s interpretation. * * * Sections 1 and 5 of the 1966 leases have distinct terms and purposes. Section 1 establishes Twin Metals’ unqualified “right … to renew” for unlimited “successive The Honorable Hilary Tompkins July 1, 2016 Page 20 periods of ten … years.” Section 5 governs the terms of such renewals—without imposing a production requirement. The Opinion’s contrary reading cannot be reconciled with the contractual text. C. The Opinion’s Remaining Arguments Lack Merit The Opinion offers various other arguments in support of its conclusion that section 5 imposes a production requirement, and more generally that BLM has discretion to deny renewal. None of these arguments has merit. 1. The Opinion states (p.11) that its interpretation “is consistent with the regulation regarding renewal applications cited in the lease.” In fact, the cited regulation, 43 C.F.R. §3221.4(f) (1966), supports Twin Metals’ interpretation. Far from suggesting any authority to deny renewal (whether based on a production requirement or otherwise), §3221.4(f) stated: “The lessee will be granted a right of renewal for successive periods, not exceeding 10 years each, under such reasonable terms and conditions as the Secretary of the Interior may prescribe” (emphasis added). The word “will” makes clear that renewal is non-discretionary. The Solicitor’s Opinion (p.8) quotes this language from the regulation but argues that it merely led BLM to “include[] a conditional renewal provision in section 5 of the 1966 leases.” That argument fails for the reasons already discussed, namely that section 5 concerns only the terms of renewal. The argument also repeats the Opinion’s fundamental error of ignoring the renewal provision in section 1. The Opinion cannot simply write out central provisions of the contract. The Opinion also discusses this regulation’s last sentence, which prescribes procedural requirements for a lease-renewal application. Specifically, the sentence states: “An application for renewal of the lease must be filed in a manner similar to that prescribed for extension of a [prospecting] permit in § 3221.3(a)” (emphasis added). The Opinion (p.11) reasons from this language that because §3221.3(a) requires a person seeking an extension of a prospecting permit to show that he or she has “diligently performed prospecting activities,” §3221.4(f) must require a person who is filing for renewal of a lease to make “a showing of diligence in performing … production.” That is meritless. The last sentence of the regulation draws a link between a lease renewal and a prospecting application only for purposes of the “manner” in which each “must be filed.” The requirement that a prospecting applicant show diligence is not part of the “manner” in which an application is filed. In any event, the fact that a lessee has not begun The Honorable Hilary Tompkins July 1, 2016 Page 21 production does not demonstrate a lack of “diligence in performing the lease activities.” Opinion 11. Diligence means “[e]arnest and persistent application to an undertaking; steady effort.” American Heritage Dictionary of the English Language 523 (3d ed. 1992). Given the extreme challenges involved in mining in the relevant areas, a lessee can certainly make a “steady effort” and yet not start production within the original lease term—a reality recognized by section 5 of the 1966 leases, which as discussed authorized the Secretary of the Interior to grant extensions of time for the beginning of production. 2. The Opinion suggests (p.11) that its interpretation of the 1966 leases is consistent with congressional intent. As discussed, however, Congress authorized mining in the Superior National Forest by means of “special legislation to meet a special situation with respect to investment losses resulting from cancellation of mining permits in the Minnesota forests.” S. Rep. No. 81-1778, at 2. Congress recognized the devastating effect that withdrawal of mining authorization can have on a company, and emphasized the importance of security in mining investments. See id. It thus stated that those companies “who have made investments for the mining and removal of mineral substances from the described lands should be given the privilege of renewing or retaining their permits or leases.” H.R. Rep. No. 792, at 2. For the government to suddenly reverse course after Twin Metals and its predecessors have held the leases for half a century—and invested $400 million in acquisition, exploration, technical development, and other preliminary activities to define the mineral deposit and prepare for future development of the resource—utterly fails to respect congressional intent in this regard.5 3. Citing no authority, the Opinion asserts (p.11) that Congress was concerned about ensuring “a fair return to the American taxpayer.” To begin with, as just explained what spurred Congress to act was concern about harm to mining companies. But even assuming the Opinion is correct on this point, that does not justify the Opinion’s conclusion. Taxpayers have received a fair return under the leases, and if the leases are renewed they would continue to do so. The leases provide that return via significantly higher-than-usual minimum royalties—pursuant to which Twin Metals and its predecessors have paid over $1.4 million to the taxpayers. 4. Relatedly, the Opinion rejects (p.13) Twin Metals’ explanation that the 1966 leases include higher-than-usual minimum royalty payments in lieu of a production requirement. But the authority the Opinion relies for this point, General Chemicals 5 The $400 million expenditure also refutes the Opinion’s suggestion that Twin Metals has not been “diligent” in preparing for production. The Honorable Hilary Tompkins July 1, 2016 Page 22 (Soda Ash) Partners, 176 I.B.L.A. 1 (2008), is inapposite because it involved starkly different contractual language (and mineral rights). The appellant in General Chemicals argued that under both a department regulation and the terms of the relevant lease, payment of minimum royalties satisfied the lease’s production requirement. See id. at 9. The Board disagreed based on a provision of the relevant lease stating that “[t]he authorized officer will reject an application for renewal of this lease if, at the end of the lease’s current term, sodium is not being produced.” Id. at 5. That phrase is a clear production requirement—but there is nothing remotely like it in the 1966 leases. If anything, then, General Chemicals undermines the Opinion’s conclusion, by showing that the department knows how to include a production requirement in its leases when it wants to, and that it did not do so here. The Opinion also states in a footnote (p.12 n.19) that “[t]he original leases do not mention minimum royalties as a way to fulfill the production requirement.” That omission is unsurprising given that there is no production requirement. Moreover, the Opinion’s implication that the original leases draw no link between production and minimum royalties is wrong: Section 2(c) states that the lessee agreed, “[b]eginning after the tenth year of the lease …, to mine each year from the area covered by the lease a quantity” that would produce a specified royalty, “or in lieu thereof to pay … as royalty” certain specified amounts. 5. Finally, the Opinion notes (p.12) that a 1986 memorandum by an assistant solicitor “concluded that the BLM is not required to renew the 1966 leases as a matter of right if there has been no production.” The assistant solicitor concluded that the original leases could be “extended … for a period not exceeding 10 years,” but that “[i]f production does not occur during th[at] period of extension, no further extensions will be allowed.” Att. to Solicitor’s Opinion at 1. For the reasons discussed above, that opinion is wrong. Section 5 of the 1966 leases does not place a ten-year limit (or any other limit) on the extensions of time that may be granted to start production, nor do the leases cap the permissible number of renewals in the event production has not begun (let alone cap it at one). The 1986 opinion is also tenuous authority indeed given that BLM itself disagreed with the assistant solicitor, renewing the leases for a second time in 2004 despite the absence of production—a step the assistant solicitor’s opinion said was prohibited. II. EVEN I F THE 2004 R ENEWAL FORMS CONTROL, TWIN METALS HAS A NONDISCRETIONARY RIGHT TO RENEW Even if the 2004 renewal forms had superseded the 1966 leases, the Opinion’s analysis would still fail. Because the renewal provision in the 2004 standard forms is The Honorable Hilary Tompkins July 1, 2016 Page 23 ambiguous, extrinsic evidence must be considered. And for the reasons set forth above, as well as in Twin Metals’ letter and memorandum to you dated January 26, 2016, the relevant extrinsic evidence confirms the parties’ intent: that Twin Metals has a nondiscretionary right to successive renewals. The 2004 forms provide for a “preferential right in the lessee to renew for successive periods of 10 years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.” The Opinion (p.7) interprets this provision to give BLM “discretion to decide whether to renew the leases.” This interpretation rests exclusively on the undefined phrase “preferential right.” That phrase, the Opinion asserts, is unambiguous, giving Twin Metals only the right to be preferred against other parties if BLM decides to continue leasing, and not an entitlement to renewal. Id. at 5, 7. That reasoning is flawed. As the D.C. Circuit has held: “The meaning of the term [‘preference right lease’] is, in fact, ambiguous.” Natural Res. Def. Council, Inc. v. Berklund, 609 F.2d 553, 557 (D.C. Cir. 1979) (per curiam), cited in Utah Int’l, Inc. v. Andrus, 488 F. Supp. 976, 983-984 (D. Colo. 1980). Indeed, a source on which the Opinion itself relies for its conclusion (p.5)—a 1982 Solicitor’s opinion—confirms that the phrase is susceptible to two different meanings. See Sodium Lease Renewals, 89 Interior Dec. 173, 177-178 (1982). There, the Solicitor acknowledged that “preference right” can refer either to a “noncompetitive ‘entitlement lease[]’” or the right to be “preferred against third parties.” Id. at 177, 178. The Opinion here does not discuss Berklund—which also noted that “the term [‘preference right lease’] has … been construed by the agency consistently for nearly 60 years to mean an automatic entitlement of a prospecting permittee who establishes the presence of commercial quantities of coal in the area covered by the permit,” 609 F.2d at 558-559 (emphasis added). The Opinion does discuss Sodium Lease Renewals, trying to distinguish it by arguing (p.7) that the analysis there “focused on the rights obtained in the initial leasing decision.” That is irrelevant. The question is whether the undefined phrase “preferential right” is “‘susceptible of more than one reasonable interpretation.’” Giove v. Department of Transp., 230 F.3d 1333, 1341 (Fed. Cir. 2000). Both Berklund and Sodium Lease Renewals show that it is.6 Where a provision in a contract is ambiguous, courts resort to extrinsic evidence to resolve the ambiguity by “determin[ing] the intent and meaning of the parties.” 6 These opinions also refute the Opinion’s erroneous suggestion (p.7 n.13) that Twin Metals is arguing that the term is ambiguous “merely because the parties disagree on the correct interpretation.” WILMERHALE The Honorable Hilary Tompkins July 1, 2016 Page 24 Sonthland Metals, Inc. v. American Castings, LLC, 800 F.3d 452, 459 (8th Cir. 2015); accord 11 thtz?ston on Contracts ?30:7 (an ambiguous contract must be interpreted in light of ?relevant extrinsic evidence of the parties? intent and the meaning of the words that they used?). For the reasons Twin Metals has already given, both here and in its prior memorandum the extrinsic evidence con?rms the parties? intent in executing the 2004 standard forms: that Twin Metals has a non?discretionary right to renewal. The Opinion says nothing to the contrary. Moreover, here again Twin Metals? interpretation accords with common sense. It was clear in 2004 that Twin Metals would not be able to start producing by 2014, within the ten-year renewal period. It would have been wholly irrational for Twin Metals nonetheless to have signed a renewal and spent hundreds of millions of dollars if the renewal did not ensure that it would have an opportunity to mine the minerals. Twin Metals Memo 10-11. Finally, even if extrinsic evidence did not resolve the ambiguity here, the rule of contra proferentem would apply. See, Mata v. United States, 114 Fed. Cl. 736, 746 (2014). Under that doctrine, ?[w]hen a dispute arises as to the interpretation of a contract contra proferentem requires that ambiguous or unclear terms that are subject to more than one reasonable interpretation be construed against the party who drafted the document.? Turner Constr. Co. United States, 367 F.3d 1319, 1321 (Fed. Cir. 2004). Here, of course, BLM drafted the 2004 standard forms (which were not negotiated with Twin Metals? predecessor). If any ambiguity remains after consulting extrinsic evidence, then, the phrase ?preferential right? must be construed against BLM, to mean a non-discretionary right to renewal rather than simply a right to be preferred over other parties in the event renewal is granted. CONCLUSION Solicitor?s Opinion M-37036 should be withdrawn. Yours sincerely, M79. Seth P. Waxman Enclosures I 1353; . 4wu'. mm.me m. 397'- cu ?Musd?higux?-tw?wa a - . -- i a 1130* .. I 67%11 .. POI . Mar 1956 '1 - - But-emu. lama ?mgamm . off. #5116.- Imam- 25,139: - - Maris-in - - I - gm. rem-tows .10th- - .. . mm; 1354; new. the? 311$ sistaint' 1360' 613%? '39. as?dqr?san?? with'fa?ch l?fh?er-g-?hB-??d? . wail,? .. Him} ?5:sz sf axipliiaa?imii? f0 ?t of mi?graljlaa .. i swanky-usu?ht Agenti'zf?j 533: I f3"? i Pan-?31 7 . - . .. Unin States I - ?'ri?aapaxhivi?s reigx?eaitn- - Qxhi'hms": e??swa, titw?; this gouge-lid; "1-3333; a; $634.19 oi" tim- inah???6.13 ?ara?hmr? my Whining 218m) m: ?by; ?bwiing$he if: Nubia land- ?sh-e: . mama Mimi-63? We 3?81. . .. . . warms-=9 pacii?ri?g .Jl-a??iai?' i . Elf-aw? .. ?g atafis?i?? '3 - 7:22; I I - . gala"th max-ma?a" Eithibi?15291; fh?iig? -. - - .amas ma rum-e 151'? . . . 39$ .9: @916? ?Paw. 19:53 .a'.me-mga. .- . . 1 $91; . - fMe?arandum manager sq;1d Minerals, . for '??aia?f 0f - OFFICE- Tn: -$tat?7birettbr (97o) the;assistant bruary-l, I988, th?i?ol 3% g?er??neu?d'in attord?hte wiih Tri?ihal +0 hgir.?asg.fiy?s, __H?m?ni?jindi?at?dgi? and a aih? ihe k?yaitv fat?fi QT '?ro -on 1n: Shdish?uidf?dt _Item 6-fec??me?d5 th? impasition of a ?rdduction reduif?m??i! simil?FIfb development" requirement intlud?d id all Fe?Eral C961 leases. ?As mantioned.?r?uiously, these high minimum deS?rye ?g inte?iiVe; i5 i?app??pri?i ?nch 3? quugkemeht as ?heh?n__ Hh?r?hh?df?ck-ieaSes in Our Digtrict cantain sucn~a '?ing lease OD. gwu??me*a tall: Betau?e-bf the highly m? .whichxconiain many referenc95'io?ren_ 5 'egistihg-tetmg and . new leaSe farm. If you have-any-quegixgngi gr-mpositgcn 0f minimum Royalties WiLn~ out recuirements :were with Inca went ahead w; the as$ujiuckj imcnt that i? would be . .. 0'1 1'1 "3 "Er-'1 .1 (rum 5: .3. .., . Lag.oporationu in tne a?ea qnired to Operations an informed that mineral leases 9n the Same area are generally fg?Vmg??3?? -influ?nned by-many factars.m du??ionWand-the abili?y 1?3? insoLun spenduiunag premiumu -- areag_for Qw Accordingly theSe matters are net? 9 Side-(tilt: ?w-mlcf?; Willi. *an.e??nomi? ?s?ata a?d?myivate lands in? '1 wiijitn?9ndicTiTpi?2di. ?ni?h ?33 total in Qf'Gne milii?n_ vaern? 5f the .ig?33y?;op1ng Shale-. We are 0 qomplete_the_work preliminarg_?@ ?ne develegme?t-a?? t9 . 96? thisi??eai-= I .minimumiprdan?ti?anK?f' 6&3 iin??ng ?me?ge? ?hfbf ?7a?3?h??l?aSES7arefv - isftim? or it$.ability? ,t?iri?a??g?g?dz 'preS??t7?irq The-peridd gg?f?mggm?gumil - .. 4 Mamcfandum I To: State . =Fromi Assi?tantjp mjget5?6r Energy and Hiaerals; Milwaukee' Leases i3 issued}: to the International :Nic?k?el Thefse l?ase's? granted. to the -ni?kelgr.a?ds associated: minerals .from (53113. the USDA, Service. Mineral leases-a. corporation (ERGO) j; I I: I I. -?anagem??t16?"these"1ands ta your irecommenda?ion?:n?gi it" renewal-g of the] leases . 'i'f proud-mg; the following .9f the I. l. g?m?nt Service? IN REFER 5T0: I is daunties; MinnEQOtai ?The sur?a?e_ the corpgration 7 .nq' .prcducti-on Was realized from the" In .r?e'v -. shguldjrequirE' wit-H; the. auhe;r1_. I 'r?i??nsi5t?nt with the requirements set ?brin at 43 GER I_2(b) LEGO subuld'B? regainedzby.lease stipulation oriconditionyo? reneWal px??ention_?ith?r le??ed pxdperty by is H?7jyi? . - er acre persyear; and.shauld he grad d.aga *y.a?crue ta - $h?uld remain. at per 1e3aSe until fits Iatime; b6nd-_ for each inc-rean .120 a: level Ieg?f?b payment. of Z, ;a?a ,1 i .wf I - Exhibit I i I CE . .- 350' Sire-(GEgri?iEpTNQ;;2;59635h5f558 Pr?ference'Right'Leases "u??e-Nev Y?fk CI. 0. O. nc? Right Lease ?ghEWalS .uTra?_Lip?edj?6r15ig?ature MNES 1352 and MNES i353 the exi?ti TL ?=f?fms ate transmitt?de you: ComplEtioh?a?d 30I?ays. tFaiLd?e to c?mply bf this t?h?wal . d??iSiOHVWill BBCOWE fihal330 "lfto-thezl?terior Edard.of Land Appeals, Office bf an appeal 1 ydut NQEice of Appeal . .. 0f5r?aS??Sw5 i-i. .7 serwedldn-the foice- the . sgna a . . onsj-Wfitten arguments} or briefs t0 the foiee an'ag?Ea1, thef?-muSt be strict:' compliance Wi?h the ami Deputy'state-Directar . for'Minefaeresources 2 Enclosures . .i 5':5 a - (a ?3 - - - . :7 LL. 2 - i T?c?ditienzs and skim: Shave-Ibie?hmiemd; and if 1353*?! .isfuiajg?ct. mm 25%:15 any; - *0 . aim: Sze-M?g-Mfge] . mm? 'wk-M Mum-v Win?"- . . . nt.?f _$?rvioe Regimn Kilw??k?h;;?i??0??in 53203- - w; .- 282a DEW Jim 3? m: I. - as inc. Hm ixgzaaternas?ates=or?1?e. Bataan cf our ?g dongent t9 ?ne ranewal_?f the ahave ngted'l?ab??lf?r _:Tpgrigd, 'Eh? and Go??iti?n? are I the Swarm? i?a-tia?ai Famst. Elan: . 'i 2:15:9933312' da'tsad- June 6: 4391;33:91? which a; gpur bffiae?' any areag i?en?ifiad-in Eh? - ?term? Again-ma A?pro-priation Mt. April 27, 2017 r. NCLUCB Northern Counties Land Use Coordinating in." Dear Seeretary Zinke, Director Nedd, and Solicitor Keable: Attached is a report by Stillwater Technical Solutions (STS) entitled "Notification of Procedure! and Statutory De?ciencies; Request for Cancellation of Withdrawn! Application and Immediate Termination oferd Segregation" and a March 201? Department of Interior (D01) Memo requiring improvement in land planning processes with local governments. The STS report identi?es a substantial procedural flaw with respect to oversight ofa withdrawal applications under the Federal Land Policy Management Act and D01 Policy - namely that land withdrawals of greater than 5,000 acres, by statute, must be conducted under the authority of the Secretary of Interior or Assistant Secretary, Minerals Management. Perhaps more importantly, there is no record BLM advised US Forest Service (USPS) of its duty to perform the FLPMA?required, consistency review of county land use plans and policies in the three counties proposed for the segregation/withdrawal, and no NCLUCB county received requests for information. As a result, the pro-application consultation record lacks information that could only be obtained through consultation with local governments, such as intermingled federal, state and private Surface and mineral holdings or potential con?icts with Minnesota school-trust mineral inholdings - both which are known to occur. As a recult of the attached documents, we are requesting the Secretary of Interior to cancel the land application and immediately terminate the segregation of 234,328 acres of lands set aside as part of the application process, pending resubmittal of an adequate withdrawal application. For our part, NCLUCB is going to continue reviewing the USPS Application for consistency with member land use plans and policies. Following this review, we will provide our analysis and recommendations to the Secretary of Agriculture as to whether we believe USFS should withdraw the land use, mineral-withdrawal application from consideration by BLM. Sincerely, f. f? Rich Sve NCLUCB Chairman "Planning Locally 'l"oclay for Future Generations" Member 'ountics' .J?titltin ("minty (ml; County Knochiching County Lake 'uunty Lake of the \l-"ootls Pennington {'ounly Roseau ("on nly SI. liouis (runny Northern Land Ust? Coordinating I- Board Dear Honorable Secretary Zinke: Member ('uuntics The Northern Counties Land Use Coordinating Board (NCLUCB) of Minnesota is submitting the enclosed report entitled Notification of Procedural and Statutory De?ciencies; Request for Cancellation of Withdrawal Application and Immediate Termination of Land Segregation as part of the Bureau of Land Management?s (BLM) (.WL Cum?. land withdrawal comment process. NCLUCB speci?cally is requesting that the Secretary of Interior to cancel the December 14, 2016 application for land withdrawal by Kathleen Atkinson, Regional Forester of the United States Department of Agriculture, Forest Service, and to terminate the segregation of 234,328 acres of lands set aside in three NCLUCB Lake (mum member counties. Count} Knochiching ('ounty The justification and rationale for this request is found in the attached document. Luke til the ()0th Federal law governing withdrawals of public lands contains speci?c, preconsultation and consistency?review responsibilities that agencies must ful?ll with local governments, prior to initiation of the withdrawal process. None of our members have Pennington ('uunty received meaningful contact from the agencies during the current action. The Federal Land Policy and Management Act (FLPMA) and Department of Interior mum} Policies are clear that authority to oversee land withdrawal processes must reside with the Secretary of Interior, oversights that have not been met and continue as transition occurs into the Trump administration. 81. Imm The attached comments document numerous procedural, teclmical and regulatory issues surrounding the proposed land withdrawal and process, and support our request for the current Secretary of the Interior to terminate the current withdrawal process and determine what further actions, if any, need to be taken. With this transmittal we are requesting to meet with the Secretary or an appropriate, signatory-level Department of Interior Deputy to review the details of our findings. Regards?) a Chairman The Northern Counties Land Use Coordinating Board "Planning.- Locally Today for Future Carnations" Nullmu Counties l. and list? Coordinating April 17, 2017 Honorable Ryan Zinke Secretary, Department of Interior 1849 Street NW, Mail Stop 7328 Washington, DC 20240 Katherine MacGregor Deputy Assistant Secretary for Land and Minerals Management 1849 Street NW Washington, DC 20240 Michael D. Nedd Acting Director, Bureau of Land Management 1849 Street NW, Room 5665 Washington, DC 20240 Edward T. Keable Deputy Solicitor, Department of Interior 1849 Street NW, Mail Stop 6456 Karen E. Mouritsen Bureau of Land Management State Director, Eastern States Of?ce 20 Street SE Suite 950 Washington, DC 20003 Kathleen Atkinson Regional Forester, Eastern Region 626 East Wisconsin Avenue Milwaukee, WI 53202 Deputy State Director of Geospatial Services Bureau of Land Management Eastern States Of?ce 20 Street, Suite 950 Washington, DC 20003 Re: Notice of Application for Withdrawal and Noti?cation of Public Meeting; Minnesota MNES 058247 Via: Federal Express, fax and electronic copy Report Transmittal: Noti?cation ofProcedural and Statuton Deficiencies: Request/or Cancellation of Withdrawal Application and Immediate Termination ofLanrl Segregation. \lt'en (chimes (imlx (Hunt, lxt?mciu-t line-g (hum; Lakct Mimi. .il~ a" duds l?rinan sjlul? nunl?x Roscau mint}. 5? lli ,tl\ 'n my BEFORE THE DEPARTMENT OF INTERIOR Bureau of Land Management NOTICE OF APPLICATION FOR WITHDRAWAL AND NOTIFICATION OF PUBLIC MEETING: MINNESOTA NMES-OS 8247 Federal Register Vol. 82, No. 12 Thursday, January 19, 2017 pg. 6639 Notification of Procedural and Statutory Deficiencies; Request for Cancellation of Withdrawal Application and Immediate Termination of Land Segregation By: Northern Counties Land Use Coordination Board, Minnesota: Aitkin County Cook County Koochiching County Lake County Lake of the Woods Pennington County Roseau County St. Louis County l?ecluncal Solutions ?Complex Problems Solved Well? Principal Authors: .R. Carlson Norm Macleod EXECUTIVE SUMMARY Federal statutes for withdrawal of public lands contain specific requirements governing delegation, procedures for preapplication consultation with local governments, and minimum technical and information standards. Stillwater Technical Solutions (STS) conducted a statutory, procedural and regulatory analysis of a mineral land withdrawal application proposed prepared by US Forest Service and currently under review by the Bureau of Land Management for a region in northeast Minnesota. Our research concludes the withdrawal application to be procedurally flawed, devoid of documentation required from the preapplication consultation process, and lacking information that could only be obtained though statutorily required, consistency review consultation with local governments. Particularly noteworthy are neglect for intermingled federal, state and private surface and mineral holdings within the proposed withdrawal boundary; disenfranchisement of local governments through noncontact; potential future conflicts with Minnesota school-trust mineral inholdings known to occur throughout the withdrawal area, and a significant departure from the standards of the Data Quality Act. This report also presents similar, massive land withdrawals in Arizona that failed judicial review, and we document flaws in the Federal Register notification and comment process, most notably that BLM is refusing to accept electronic comments. Because the administrative record is so glaringly deficient, lacking in procedural oversight and devoid of minimum standards, the USFS withdrawal application cannot be considered as procedurally legitimate or technically feasible. For this reason, STS recommends the current Secretary of Interior cancel the application and immediately terminate the segregation of 234,328 acres of lands set aside as part of the application process, pending review and resubmittal of an adequate withdrawal application. I 1 The Northern Counties Land Use Coordinating Board - 2 3 4 5 6 7 The Northern Counties Land Use Coordinating Board (NCLUCB) of Minnesota is a collaboration of eight (8) Minnesota county governments created to review, assist and actively participate in land use planning activities and policy making. Established in 1983 under the joint powers act, our members have local jurisdictional authority over 30% of Minnesota’s land area, 41% of forest lands, 43% of regulated surface water, 46% of state wetlands, 5% of the population, and 4% of the aggregate, net tax capacity. 8 Issue Summary; Action Requested With this submittal, NCLUCB is requesting an immediate review, intervention, and specific action from the Secretary of Interior (Secretary) of a federal land withdrawal application process currently being undertaken by the Bureau of Land Management (BLM) in the northern Minnesota region. In support of this request, we are requesting the Secretary to review BLM’s compliance with the statutory withdrawal provisions of the Federal Land Policy Act in 43 USC §1714(a), the withdrawal implementing regulations in 43 CFR §2310.1(a)(1) and 43 CFR §2310.1-1, and the delegation requirements found in Department of Interior’s own Departmental Manual Part 209, Chapter 7. We specifically request the Secretary to investigate a flawed land withdrawal application submitted on December 14, 2016 to BLM by Kathleen Atkinson, Regional Forester of the United States Department of Agriculture, Forest Service (USFS), to cancel that application for cause, and to immediately terminate the segregation of 234,328 acres of lands set aside as part of the application process1 (Attachment A). Our research concludes the USDA withdrawal application to be procedurally flawed, devoid of documentation required from the preapplication consultation process,2 and lacking information that could only be obtained though statutorily required, consistency review consultation with local governments. For its part, the application itself was hurried,3 is devoid of references, and lacks fundamental data and scientific standards mandated for proposed federal actions under the Data Quality Act.4 Similarly, the application is deficient of basic information required to understand how human systems, customs, cultures, local economies, and governmental prerogatives will be protected in the event the withdrawal process should proceed. If approved in its flawed state, the massive segregation of intermingled federal, state and private surface and mineral holdings within the proposed boundaries will result in regional economic distress, ongoing disenfranchisement of local governments, and future conflicts with Minnesota school-trust mineral inholdings known to occur throughout the area of the proposed withdrawal. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 1 Application for Withdrawal, Superior National Forest. Cook, Lake and Saint Louis Counties, Minnesota. Kathleen Atkinson, Regional Forester. December 14, 2016. 2 43 CFR § 2310.1(a)(1); 43 CFR 2310.1-1 Procedures: General. 3 One immediate example of poor-quality review is the ending date for the temporary land sequestration, published in the Federal Register, (Page 6640) is January 21, 2017. The application and process contain similar such errors. 4 Section 515(a) 3504(d)(1); 3516.4; 66 Federal Register 34489. September 28, 2001. 1 39 Background - 40 41 42 43 44 45 On December 14, 2016 USFS issued its non-consent for renewal of long-standing mineral leases for a currently operating regional mining concern 5 (Attachment B). That same day, the Regional Forester of USFS filed an application for withdrawal of a 234,328 acre parcel in the Rainy River Watershed adjacent to the existing Boundary Water Canoe Area Wilderness (BWCAW) lands with the Bureau of Land Management (BLM). On December 15, 2016 the BLM State Director of Eastern States, Karen E. Mouritsen, issued her decision6 to deny mineral leases of an ongoing mining concern based upon a March 8, 2016 opinion by a Solicitor of the Department of Interior (Attachments C and D). The public record indicates the mineral-lease renewal applications were submitted to BLM on October 22, 2012, and that BLM had not acted upon the applications for a duration of about 1,500 days when BLM State Director Mouritsen issued her December 2016 decision to deny the leases. On January 19, 2017 BLM published its notification of intent to pursue the withdrawal in the Federal Register, with Karen E. Mouritsen acting in her role as BLMs State Director for the Eastern States Office (Attachment E). 46 47 48 49 50 51 52 53 54 55 56 Issues, Points and Authorities I. Review, processing and oversight of the withdrawal application process by State Director Mouritsen is contrary to the statutory mandates in the policy statement of the Federal Land Policy and Management Act and the Department of Interior, Departmental Manual Part 209, Chapter 7: 57 58 59 60 61 62 U.S.C. 1714(a) “On and after the effective date of this Act the Secretary is authorized to make, modify, extend, or revoke withdrawals but only in accordance with the provisions and limitations of this section. The Secretary may delegate this withdrawal authority only to individuals in the Office of the Secretary who have been appointed by the President, by and with the advice and consent of the Senate.” 63 64 65 66 67 68 69 70 71 72 73 74 75 a. The Policy of the United States is unambiguous that withdrawal authorities must reside with the Secretary of Interior or Assistant Secretary, Minerals Management and both must have been appointed by the President of the United States (POTUS) and confirmed by the US Senate. 76 77 78 79 80 81 b. The Department of Interior Departmental Manual at 209 DM 7.1 B. delegates the Secretary’s withdrawal or reservation authority only to the Assistant Secretary – Lands and Minerals Management. At 209 DM 7.2, further delegation of authority to the Assistant Secretary’s subordinates is prohibited because redelegation is prohibited by 43 USC §1714(a) (Attachment F). 5 6 Correspondence. Tomas L. Tidwell of USDA to Neil Kornze, BLM. File Code 2670. December 14, 2016. Correspondence. United States Department of Interior, Bureau of Land Management, Eastern States Office. Decision; Lease Renewal Application Rejected. Karen E. Mouritsen, State Director Eastern States BLM Office. December 15, 2016. 2 82 83 84 85 c. Because the Federal Register is the official publication of major 86 87 88 89 90 d. The Congressional record and other public documents do not indicate that State Director Mouritsen, nor any other official meeting the Congressional intent of 43 USC §1714(a) and subordinate regulations 43 CFR §2300.0-5(b), have traceable and legitimate decisional authority to oversee the USFS application withdrawal process. 91 92 93 94 95 96 97 98 e. Because the administrative record is deficient with respect to direct oversight from the Secretary of Interior, Assistant Secretary Minerals Management, or other individuals appointed by the president with consent of the US Senate, the USFS withdrawal application cannot be documented as procedurally legitimate. As a result, review of the USFS withdrawal application cannot proceed until the current Secretary of Interior administers or appropriately delegates the process. 99 100 101 102 103 104 105 106 107 108 agency actions of the United States Government, notifications of land withdrawals must originate from the appropriate level of signatory authority. II. USFS and BLM have failed to fulfill pre-application consultation steps and responsibilities to local governments required in 43 CFR §2310.1(a)(1) and 43 CFR §2310.1-1: a. Neither BLM nor USFS have fulfilled the early notification, land-use plan consistency review, and land use plan “keep apprised” mandates in 43 USC §1712(c)(9), or the preapplication consultation requirements in 43 CFR §2310.1(a)(1) and 43 CFR § 2310.1-1. Neither NCLUCB nor its individual members have received any requests, written correspondence, comments or questions concerning land use plans, policies or local programs. 109 110 111 112 b. The public record and consultation with NCLUCB members indicates no meaningful contact whatsoever has occurred between BLM, USFS, and NCLUCB member governments - before or during the withdrawal application process. 113 114 115 116 117 118 119 120 121 c. Meaningful participation by affected NCLUCB counties at the preapplication consultation stage is essential to determine the type and scope of investigations, studies, analyses, public meetings, and negotiations necessary for thorough and future evaluation of the USFS withdrawal proposal. Leaving affected county governments out of the early planning stage results in failure to accurately understand the scope, interrelationship and interactions between the natural and human environments - which in turn leads to skewed decisions and diminution of local prerogatives. 122 123 124 125 126 d. During judicial review of a remarkably similar land withdrawal in the Arizona strip by former Secretary of Interior Salazar, the U.S. District Court for Arizona vacated the withdrawal because the BLM disregarded economic data, refused a consistency review with local governments, and ignored local interests (Attachment G). 127 3 III. The application by USFS demonstrates a remarkable lack of confidence, predetermining that commonly-available environmental controls and existing statutory and regulatory frameworks are inadequate to protect the natural environment, leaving withdrawal of working public lands from their primary use as the only satisfactory environmental remedy: 128 129 130 131 132 133 134 135 136 137 138 139 a. The withdrawal application is replete with undocumented future claims and unsubstantiated potential impacts that environmental damage could result from mineral exploration and development, concluding that "any failure of mitigation measures, containment facilities, or remediation efforts" could render USFS unable to protect designated public lands. 140 141 142 143 b. The withdrawal application is wholly deficient in scientific references, data, studies, and other Data Quality Act required information necessary to objectively conclude if segregation of working lands for further study may even be advisable. IV. In its application, USFS errantly prioritizes environmental values 144 145 146 147 148 and sequestration above the FLPMA doctrines of multiple use,7 sustained yield,8 and the hierarchy of principal or major uses9 - all of which prioritize balanced, beneficial and working use of public lands as a priority over withdrawal: a. Recognizing the intermingled, pre-existing status of water rights, 149 150 151 152 153 154 155 156 easements, grazing allotments, mining claims, timber operations, and various private inholdings, the 94th Congress, in promulgating FLPMA, established a hierarchal system that provides for the diverse land use interests around a central philosophy of productivity10 - not sequestration. To that end, the FLPMA doctrine of principal use11 establishes a first-among-multiple-use hierarchy for land use planning within region a proposed for land withdrawals: 1. 2. 3. 4. 5. Domestic livestock grazing; Fish and wildlife development and utilization; Mineral exploration and production; Rights-of-way; Outdoor recreation; and, 6. Timber production. 157 158 159 160 161 162 163 164 b. It is the Policy of the United States that public lands be managed first for balanced productivity, not segregation. 165 166 167 168 c. The application ignores that the adjacent Boundary Water Canoe Area Wilderness lands were previously designated for environmental purposes and the remaining lands were left for productive pursuits, such as timber production, minerals, range, and other productive pursuits. 169 7 43 USC 1702(c) 43 USC 1702(h) 9 43 USC 1702(l) 10 43 USC §1702 (c) 11 43 USC §1702 (l) 8 4 V. The proposed withdrawal would have negligible effect at curtailing mining, as approximately 190,321 acres of pre-existing surface and subsurface state and private lands would remain within the 234,328 acres proposed for withdrawal: 170 171 172 173 174 175 176 177 178 a. Development of state-owned mineral resources contributes substantially to fund the Minnesota public school system, and the proposed withdrawal poses both a threat to current and future state revenues and state sovereignty. Withdrawal will also produce unintended legal conflicts and other negative consequences. 179 180 181 182 b. Continuation of prior existing rights and access, as required by FLPMA and promised in the USFS Federal Register notification, will result in reduced lease and royalty revenues for the Federal purse, and additional management costs for BLM and USFS. 183 184 185 186 187 188 189 c. Because President Trump has issued an executive order12 and OMB has issued a directive13 to reorganize the Federal government, eliminate unnecessary federal agencies and programs, and reduce the size of Federal government, adding costs of a high level land withdrawal program that removes the opportunity for access to a statutorily preferred use and revenues to the federal government is unlikely to be well received. Other Issues VI. In its Notice of Application for Withdrawal and Notification of Public Meeting, the BLM inexplicably prohibited submission of comments by email: 190 191 192 193 194 195 a. Submission of public comment by electronic means is standard practice across the federal government for agencies at all levels. 196 197 198 199 b. There is potential for unnecessarily confusing the public when one agency (BLM) involved in a multi-agency process refuses to accept comments via email when a counterpart agency (USFS) welcomes comment via email. 200 201 202 c. When an agency refuses to accept comment via email, it causes more administrative time to prepare and provide multiple hard copies of comments for public review. VII.The comments submitted during this comment period are being made available for review at the BLM’s Eastern States Office, located in Washington, DC. No opportunity for public review of the comments is being made available for review within the Minnesota counties that would be affected by the proposed withdrawal: 203 204 205 206 207 a. The ability to readily obtain and review documents pertinent to a proposed action, especially in electronic medium, is essential to effective public participation in the process for a proposed federal 208 209 210 12 Executive Order 13781. Comprehensive Plan for Reorganizing the Executive Branch. President Donald Trump March 13, 2017. 13 Memorandum for Heads of Departments and Executive Agencies: Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian Workforce. Mick Mulvaney, Executive Office of the President Director of Office of Management and Budget. April 12, 2017. 5 211 212 213 214 215 216 217 218 219 220 221 222 223 224 agency action. Public comment documents located thousands of miles from the location of the proposed action cannot be deemed to be “readily accessible” to the public. b. Any public process that effectively denies access to the documents that are used in formulating the Secretary’s decision-making process, in an age where electronic access to information is nearly universal, is improper and indefensible. c. Through the use of online comment submission systems, such as those available at www.regulations.gov, members of the public are accustomed to ease-of-use electronic tools for public participation in government processes. In the absence of those tools, many people simply opt not to participate. This potentially denies the agencies access to crucial information that would otherwise substantially inform the Secretary’s decision-making in major proposed actions. 6 Attachment A December 14, 2016 USFS Application for Withdrawal APPLICATION FOR WITHDRAWAL Superior National Forest Cook, Lake, and Saint Louis Counties, Minnesota Items required by 43 C.F.R. 2310.1-2(c): 1. APPLICANT Regional Forester USDA Forest Service 626 East Wisconsin Ave Milwaukee, WI 53202 2. STATEMENT OF DELEGATION The general delegations of authority from the Secretary of Agriculture to the Chief of the Forest Service is set forth at 7 C.F.R. § 2.60. More specifically 7 C.F.R. § 2.60(a)(2) delegates authority to the Chief of the Forest Service to protect, manage, and administer the National Forest System. The Chief of the Forest Service has delegated the authority to request withdrawals to the Regional Foresters (FSM 2761.04). 3. OTHER AGENCY CONSENT The subject landsare National Forest System lands under the administration of the U.S. Department of Agriculture, Forest Service, which hereby consents to the requested withdrawal and segregation of those lands. 4. TYPE OF WITHDRAWAL ACTION This is a request for a new withdrawal. The Forest Service requests these lands be withdrawn from disposition under laws relating to mineral and geothermal leasing laws, subject to valid existing rights - including the Mineral Leasing Act of 1920 (30 U.S.C. 181 et seq. as amended), the Mineral Leasing Act for Acquired Lands of 1947 (30 U.S.C. 351 et seq. as amended), Section 402 of the President‘s Reorganization Plan No. 3 of 1946, 16 U.S.C. 520, and 16 U.S.C. 508b. All of the landswould remain subject to the laws providing for the disposal of mineral materials as defined by 36 C.F.R. Part 228, Subpart C. The Forest Service recognizes that any segregation or future withdrawal of these lands and interests in the landswill be subject to valid existing rights on Federal land. The segregation and withdrawal would also be inapplicable to private lands owned in fee, private mineral estates, and private fractional minerals interests. Withdrawal Application Page 1 5. LANDS INVOLVED IN WITHDRAWAL The Federal lands whose withdrawalis requested fall within a portion of the Rainy River watershed,outside the Boundary Waters Canoe Area Wilderness (BWCAW) and the Boundary Waters Canoe Area Wilderness Mining Protection Area (MPA), as indicated on the attached map (Appendix B). More specifically, the Forest Service requests the withdrawal of all landsidentified in Appendix A that include fully federally owned minerals that aresituated within the exterior boundaries of the area depicted on the attached map (Appendix B). The Forest Service also requests that the withdrawal be made applicable to all fee title lands subsequently acquired by the Federal Government that are situated within the exterior boundaries of the area depicted on the attached map (Appendix B). The Federal lands that are requested for withdrawal are within the Rainy River watershed and drain into the BWCAW. The application of the mineral leasing laws to the remaining Federal lands within portions of the Rainy River watershed, i.e., the BWCAW and the MPA,are already curtailed by virtue of Sec. 11(a) of Pub. L. 95-495, 92 Stat. 1649, 1655 (1978). The National Forest System lands for which withdrawal is requested in aggregate total approximately234,328 acres within the Superior National Forest. There are two categories of these National Forest System landswhich includefully Federally-owned mineral interests - lands reserved from the public domain owned by the United States in fee simple, andacquired lands owned by the United States in fee simple. 6. OTHER WITHDRAWALS The area containing the Federal lands whose withdrawal is requested by means of this application does not overlap any other withdrawal. no However, pursuant to Sec. 11(a) of Pub. L. 95-495, 92 Stat. 1649, 1655 (1978) ― permit, lease, or other authorization may be issued by any agency or authority of the United States for [the] exploration for, or mining of, minerals owned by the United States within the Boundary Waters Canoe Area Wilderness and Boundary Waters Canoe Area Mining Protection Area.‖ These areas are adjacent to the lands that this application requests be withdrawn from the disposition under laws relating to mineral and geothermal leasing. 7. PURPOSE OF WITHDRAWAL As previously noted, the 234,328 acres of Federal land for which the Forest Service requests withdrawal are located within the Vermillion and Rainy Headwaters subwatersheds of the Rainy River watershed in the Superior National Forest and areadjacent to the BWCAW and MPA. There is known interest in the development of hardrock minerals that have been found—and others that are thought to exist—in sulfide-bearing rock within this portion of the Rainy River watershed. Any development of these mineral Withdrawal Application Page 2 resources could ultimately result in the creation of permanently stored waste materials and other conditions upstream of the BWCAW and the MPA with the potential to generate and release water with elevated levels of acidity, metals, and other potential contaminants. Additionally, any failure of mitigation measures, containment facilities, or remediation efforts at mine sites and their related facilities located upstream of the BWCAW and the MPA could lead to irreversible impacts upon natural resources and therefore, render the Forest Service unable to meet the purposes for the designation of the BWCAW and the MPA specified by Sec. 2 of Pub. L. 95-495, 92 Stat. 1649 (1978). These concerns are exacerbated by the fact that perpetual maintenance of waste storage facilities along with the perpetual treatment of water discharge emanating from the waste storage facilities and the mines themselves would likely be required to ameliorate these adverse effects,yetit is not at all certain that such maintenance and treatment can be assured over possibly infinite timeframes. Thus, the purpose of this withdrawal request is to protect National Forest System lands (and waters) located in the Rainy River Watershed, the BWCAW, and the MPA from the adverse environmental impacts arising from exploration and development of fully Federally-owned minerals conducted pursuant to the mineral leasing laws. This will result in more efficient and effective Forest Service administration of such NFS lands (and waters) in accord with applicable Federal law. 8. EXTENT OF WITHDRAWAL AND SEGREGATION The Forest Service requests that the Federal lands within the area identified on the attached map (Appendix B) be withdrawn from disposition under laws relating to mineral and geothermal leasing – including the Mineral Leasing Act of 1920 (30 U.S.C. 181 et seq. as amended), the Mineral Leasing Act for Acquired Lands of 1947 (30 U.S.C. 351 et seq. as amended), Section 402 of the President‘s Reorganization Plan No. 3 of 1946, 16 U.S.C. 520, and 16 U.S.C. 508b - for the maximum period of 20 years authorized by 43 U.S.C. § 1714(c)(1), subject to valid existing rights. The Forest Service also requests that the notice of this withdrawal application published in the Federal Register pursuant to 43 C.F.R. § 2310.3–1(b)(1) provide that the National Forest System lands within the area identified on the attached map (Appendix B) are segregated from the operation of the mineral leasing laws for the maximum period of two years authorized by 43 U.S.C. § 1714(b)(1), subject to valid existing rights. The Forest Service intends that the National Forest System lands within the area identified on the attached map (Appendix B)remain subject to the laws providing for the disposal of mineral materials set forth by 36 C.F.R. Part 228, Subpart C throughout the duration of the segregation and any subsequent withdrawal. 9. ALLOWABLE TEMPORARY USES Statutorily authorized multiple uses of National Forest System lands, i.e., outdoor recreation, range, timber, watershed, and wildlife and fish purposes, along with the Withdrawal Application Page 3 disposal of mineral materials, maybe authorized by Forest Service officers during the requested 2-year segregation period. However, those uses would only be authorized if they would comply with applicable Forest Service regulations, the applicable land use plan, and they would not cause adverse environmental impacts to National Forest System lands (and waters) located in the Rainy River Watershed, the BWCAW, and the MPA comparable to those that could arise from exploration and development of Federallyowned minerals conducted pursuant to the mineral leasing laws. 10. ANALYSIS OF ALTERNATIVES Per 43 C.F.R. § 2310.1-2(b)(10), a withdrawal application should contain ― [a]n analysis and explanation of why neither a right-of-way under section 507 of the Act (43 U.S.C. 1767), nor a cooperative agreement under sections 302(b) (43 U.S.C. 1732(b)) and 307(b) (43 U.S.C. 1737(b)) of the act would adequately provide for the proposed use.‖ However, none of these statutory provisions are relevant to a withdrawal application submitted by the Forest Service for the withdrawal of National Forest System lands. Insofar as 43 U.S.C. §§ 1732(b) and 1737(b), portions of the Federal Land Policy and Management Act of 1976 [FLPMA] , are concerned, those provisions are not applicable because they grant the Secretary of the Interior (43 U.S.C. § 1702(g)) authority to manage the public lands. And for purposes of FLPMA, ― [t]he term ‗public lands‘ means any land and interest in land owned by the United States within the several States and administered by the Secretary of the Interior through the Bureau of Land Management….‖ In contrast, all national forest lands, including the Superior National Forest, are administered by the United States Department of Agriculture, Forest Service as part of the National Forest System (16 U.S.C. § 1609(a)). Indeed, 43 U.S.C. § 1702(k), a portion of the definitional section of FLPMA, explicitly distinguishes ― public lands‖ from ― lands within National Forests.‖ With regard to 43 U.S.C. § 1767(a), another portion of FLPMA, it permits ― the Secretary concerned‖ to utilize the authority granted by other provisions in the subchapter to provide another department or one of that department‘s agencies a right-of-way across land administered by the Secretary concerned. The shorthand formulation ― the Secretary concerned‖ in 43 U.S.C. § 1767(a) clearly refers to both the Secretary of the Interior and the Secretary of Agriculture as evidenced by a prior provision in the same subchapter: 43 U.S.C. § 1761(a). Per 43 U.S.C. § 1761(a), rights-of-way may be issued by ― [t]he Secretary [i.e., the Secretary of the Interior (43 U.S.C. § 1702(g))], with respect to the public lands … as defined in section 1702(e) of this title … and, [by] the Secretary of Agriculture, with respect to lands within the National Forest System….‖ Accordingly, 43 U.S.C. § 1767(a) merely authorizes the Secretary of Agriculture to issue rights-of-way across National Forest System lands to other departments and their agencies. That authority has no bearing with respect to the Forest Service‘s reason for requesting this withdrawal—to protect National Forest System lands (and waters) located in the Rainy River Watershed, the BWCAW, and the MPA from the adverse environmental impacts that would arise from exploration and development of Federally-managed hardrock minerals conducted pursuant to the mineral leasing laws. Withdrawal Application Page 4 FLPMA section 507, 43 U.S.C. § 1767(b), cannot achieve the Forest Service‘s purpose to protect the specified National Forest System lands because it merely prohibits the Secretary of the Interior from terminating or limiting a right-of-way for the benefit of any department or agency of the United States without that entity‘s consent. 11. WITHDRAWAL DURATION The Forest Service requests withdrawal of the Federal lands within the area indicated on the attached map(Appendix B) for the maximum period of 20 years authorized by 43 U.S.C. § 1714(c)(1). A withdrawal for themaximum duration of 20 yearsis warranted because the potential adverse effects from the exploration and development of the fully Federally-managed hardrock minerals in the Rainy River watershed. These potential impactsare a direct result of the location of the minerals with the sulfide-bearing rock present in that area. Thus, the need to protect the National Forest System lands (and waters) located in the Rainy River Watershed, the BWCAW, and the MPA from the adverse environmental impacts arising from exploration and development of Federally-managed hardrock minerals—the purpose of this withdrawal request—remains constant. 12. ALTERNATIVE SITES No additional valuable deposits of Federal hardrock minerals outside the Rainy River watershed have been found or presently are known. Therefore there are no other sites where equivalent hardrock mineral exploration or development could be authorized by the Department of the Interior. 13. WATER REQUIREMENTS No water rights will be needed to fulfill the purpose of this withdrawal request. The unique and irreplaceable resource this withdrawal seeks to protect is the 1.1 million acre Boundary Water Canoe Area Wilderness (BWCAW) located in the northern third of the Superior National Forest in Minnesota, extending nearly 200 miles along the international boundary with Canada. The BWCAW includes nearly 2,000 pristine lakes ranging in size from 10 acres to 10,000 acres, and nearly 1,200 miles of canoe routes. It is the only large-scale protected sub-boreal forest in the lower 48 United States. These healthy forests with extremely high water quality also provide a host of watershed benefits, such a purifying water, sustaining surface water and ground water flow, maintain fish habitats, and stabilizing streambanks. Withdrawal Application Page 5 14. LOCATION OF RECORDS Records related to this application for an extension of the withdrawal may be examined at: Superior National Forest Supervisor‘s Office 8901 Grand Ave Pl Duluth, MN 55808 Withdrawal Application Page 6 SUPPLEMENTAL INFORMATION Appendix A: Legal Description of Superior National Forest Mineral Fee Simple Lands for Withdrawal Application Appendix B: Map of Superior National Forest Withdrawal Application Area Withdrawal Application Page 7 Attachment December 14, 2016 USFS Non-Consent Letter Enclosure 3 United States Forest Washington: Of?ce ZDI Htli Street. SW Department of Service Washington, DC 20250 Agriculture File Code: 2670 Date: DEC 1 It 2015 Neil Kornze Director Bureau of Land Management 1849 C. Street NW. Rm. 5665 Washington. DC 20240 Dear Director Komze: On June 3, 20! 6. the Bureau of Land Management (BLM) requested the Forest Service (PS) provide a decision on whether it consents to renewal of two leases currently held by ?l?win Metals Minnesota (TMM) for lands within the Superior National Forest (SNF) in northern Minnesota. These two Preference Right leases. MN 352 and MNES-O 353. lie directly adjacent to and within three miles of the Boundary Waters Canoe Area Wilderness (BWCAW). respectively. The has considered the environmental conditions, nature and uses of the BWC AW by the public and tribes. economic benefits of mineral development and wilderness recreation, potential environmental consequences of mineral development on the leases. public opinion. rarity of copper-nickel sulfide ore mining in this region. and current laws and policy to inform the agency?s decision. Based on this analysis. 1 find unacceptable the inherent potential risk that development of a regionally-untested copper-nickel sul?de ore mine within the same watershed as the might cause serious and irreplaceable harm to this unique, iconic. and irreplaceable wildemess area. Therefore. the FS does not consent to renewal of Preference Right leases MN 352 and MNES-OIBSS. A summary of the basis for my decision follows. The BWCAW Is an Irreplaceable Resource The million acre the BWCAW is located in the northern third of the SNF in Minnesota. extending nearly 200 miles along the international boundary with Canada. It is the only large- scale protected sub-boreal forest in the lower 48 United States. The SNF holds 20 percent ol'thc National Forest System's fresh water supply. These healthy forests with extremely high water quality also provide a host of watershed benefits, such as purifying water, sustaining surface water and ground water ?ow, maintaining fish habitats. controlling erosion. and stabilizing streambanks. In addition to the existing high quality of the waters. the dramatic hydrogeology and interconnectedness of BW forests. lakes. streams. and wetlands make the region unique and susceptible to degradation. The BWCAW includes nearly 2,000 pristine lakes ranging in size from 10 acres to 10.000 acres. and more than 1,200 miles ofcanoe routes. With Voyageurs National Park and Quetico Provincial Park, BW AW is part of an international network of conserved land and wilderness. Quetico Provincial Park, located in Ontario, Canada. Caring for the Land and Serving People mm or. ?meant-m Enclosure 3 Neil Kornze lies within the same Rainy River watershed as the BWCAW. Quetico Provincial Park is an iconic wilderness class park, world renowned as a destination for backcountry eanocing with over 2,000 lakes and over one million acres of remote water-(based wilderness. Together, Quetico and BWCAW ?Form a core wilderness area of over tqu million acres. - Located northwest of the BWCAW, Voyageurs NatiOnal Park 1has established by Congress in 1971 to preserve and interpret fur trade history and the importance of canoe travel routes in northern Minnesota. The park is at the southern edge of the boreal forest, and lies within the same Rainy River watershed as the lt teatures spectacular canoeing and boating routes along with hiking trails exploring portage routes used by American Indians, early for traders, and gold miners; Approximately 240.000 people visit Voyageurs National Park every year. Just sooth of the BWCAW the Laurentian Divide separates three river systems: one allowing north to Hudson Bay; the Laurentian system ?owing eastward towards the Atlantic through the Great Lakes} and the Mississippi system, flowing south to the Gull?of Mexico. 'l?MM?s two leases subject to F5 decision are located in the Rainy River Watershed, which drains into the BWCAW, Quetico Provincial Park. and Voyageurs National Park. There are four HUC (liydrologic Unit Code) -1 t) sub-watersheds in the area of the leases and potential project site?? Birch Lake. Stony River. Isabella River and Kawishiwi River. Surface water flows north and west from Birch Lake and the Kawishiwi River watershed tlnough Kawishiwi River and several lakes into BWCAW. Water from the Stony River and the lsahella River watersheds ?ows into the Birch Lake watershed. The Natural Environment The SNF provides abundant and diverse habitat for thousands ol?breeding, wintering, and migratory species of terrestrial and aquatic wildlife, including over 100 species of migratory breeding birds in a zone with North America?s greatest diversity of songbirds and lt?orest- dependent The SNF also has one ofthe largest populations of gray wolves outside of Alaska. common icons. and moose. It has popular game Specie-s such as wall-eye, trout, deer. ruffed grouse, fisher, and beaver; and numerous rare species such as great gray ow], black- baeked woodpecker. tom?s-head ladyslippcr and other orchids, and lake sturgeon. The SNF also has a great diversity and abundance of species common to the boreal forest bionic. including three?toed woodpecker, horea] owl, boreal Chickadeea lynx, moose, and grizzled skipper butterle All these species provide a wide array of crucial ecological. social and economic bene?ts and uses From big game hunting and ?shing to wildlife watching and research. The BWCAW is also home to three threatened or endangered species: Canada lynx. northern long-cared bat. and gray wolf. Over the decades the BWCAW has been protected, it has provided reliugia for species under stress or with declining populations! such as moose. in the face of? climate change, the may be critical to the continued existence of these species within Minnesota. - Cultural Resources and Treaty Rights Associated with the BWCAW The BWCAW region has been home to Native Americans for millennia. The Minnesota Chippewa Tribe and three associated Bands the Grand Portage Band. the Fond du Lac Band, Enclosure 3 L2.) Neil Kornze and the Bois Forte Band retain hunting. ?shing. and other usuli'uctuary rights throughout the entire northeast portion of the State of Minnesota under the 1854 reaty ot?LaPointe. In the Coded Territory all Bands have a legal interest in protecting natural resources, and the FS shares in federal trust responsibility to maintain treaty resources. Man}! resident Ojihwc, who ceded lands that became the BWCAW. continue to visit ancestral sites and traditional gathering and ?shing locations within the wilderness. 'I?rihcs rely on natural resources like ?sh. wildlife and wild plants such as wild rice for subsistence and to support them spiritually, culturally. medicinally, and economically. The northern border of the BWCAW is situated along a winding. 120-mile canoe route known locally as the Border Route, or Voyageurs l~lighwa3n This historic canoe route. bordered on the north by Ontario?s Quetico Provincial Park, on the east by Grand Portage National Monument, and on the west by Voyageurs National Park, was utilized extensively by pre~contact Native Americans. European rm traders. and tribal groups such as the Dakota. Cree. and Ojibwe. There are approximately 1,500 cultural resource sites identified on National Forest System S) lands within the BWCAW. Many more cultural resources are believed to exist within the wilderness; as 0172015 only about 3 percent ol? the landscape has been intensively surveyed. Cultural resource sites include historic Ojibwa village sites. French and British period for trade sites dating from l730~1830, Woodland period village sites {1000-500 years old) situated on. wild rice lakes- Native American pictograph panel sites, Archaic period (8,000~3,000 years old) sites with copper tools. and large Paleoindian quarry sites such as those recently discovered on Knife Lake where Native Americans shaped stone tools up to 10,000 years ago. Wilderness Designation The irreplaceable natural qualities of the were recognized nearly a century ago in 1926 when the Department of Agriculture ?rst set aside the area to preserve its primitive character. The Wilderness Act ot?1964 of?cially designated land inside today?s BWCAW as part of the National Wilderness Preservation System. The Boundary Waters Canoe Area Wilderness Act of 1978 expanded the wilderness area to 13090000 acres. The 1978 Act also established a separate Boundary Waters Canoe Area Mining Protection Area. (MFA) to protect existing natural values and high standards of environmental quality from the adverse impacts associated with mineral development. Sec. 9, Pub. L. 95-495., 92 Stat. 1649, 1655 (1978). Congress provided very clear direction regarding the purposes ol?thc 13W CAW and MFA: provide For the protection and management of the ?sh and wildlife of the wilderness so as to enhance public enjoyment and appreciation ol?the unique biotic resources of the region, (2) protect and enhance the natural values and environmental totalityr of the lakes; streams. shorelines and associated forest areas of the wilderness. (3) maintain high water quality in such areas, (4) minimize to the maximum extent possible. the environmental impacts associated with mineral development affecting such areas. . .. Sec. 2. Pub. L. 95-495, 92. Stat. .1649 (1978'). Enclosure 3 Neii Kornze 4 The BWCAW Act bans authorization of federal mineral development within the B-WCAW and MFA. However. the BWCAW Act does not govern federal mineral development on other NFS lands. Instead, the authorities governing federal mineral development on SNP lands outside the and MPA are 16 .S.C. 508b and Section 402, of Reorganization Pian No. 3 ot?1946, 60 Stat. 1097, 1099?1 100. A decision withholding FS consent to the lease renewals is fatty consistent with this statutory ti'anieworlt. World Renowned Research laboratory Because ot?its unique quality and character, the BWCAW is a living laboratory supporting dozens of research projects each year. Scientists of all diseiptincs rely on scarce areas like the BWCAW to support scienti?c inquiry and serve as control areas in the study of water quality, climate change effects, and naturai ecological processes. The BWCAW is internationally known as a laboratory for ground?breaking research on forest fires, landscape patterns, biodiversity, wildlife, soils, nutrient cycles. other ecosystem processes, lakes, climate change, and recreational use .ot?wilderness. This body ofwork is widely cited by scientists around the world. As an exampie, Miron work on forest ?res in published during the 1970s- 19905, has been cited in more than 1,700 published studies. More recent BW?CAW-t?elated studies by Frelich and Reich have already been cited in 1,300 studies in 70 peer-reviewed science journals published in 20 countries on 4 continents. New results ticm BWCAW research are regularly presented at prestigious international meetings on scienti?c study. Recreation Values of the BWCAW The BWCAW is one of the most visited areas in the entire National Wilderness Preservation System, and the Systems oniy large lake-land wiiderness. It provides-an experience unique within the continental United States. The thousands of lakes and hundreds of miles of streams comprise about 190,000 acres (20 percent) of the surface area and provide for long distance travel by watercraft. The opportunity to pursue and experience expansive solitude, challenge and personal immersion in nature are integral to the BWCAW experience. Winter BWCAW visitors enjoy opportunities for skiing, dog-sledding, camping and ice ?shing. Fishing is one ot?thc most popular BWCAW activities throughout the year due to the range of species found in its waters, including smallmouth bass, northern pike, walleye, and lake trout. Social and Economic Environment leases are. located near Ely, in St. Louis and Lake Counties. The population of St. Louis County is concentrated in and around the City of Duluth, approximately 100 miles south of the lease area. The iron Range communities of Ely, Hibbing, and Virginia are smaller secondary population centers. The 20! Census shows area population has declined by heart): 10 percent since 1980, while Minnesota's population as a whole has increased by more than 30 percent. At least some of this population decline may be attributable to a loss oliiron industry jobs. he Fond du Lac, Grand Portage. and Bois Forte reservations are exceptions to the regional trend - populations there have increased since l990. The median income of area communities is signi?cantly lower than that of the State as a whole. It is also the case that the median income of the area?s accendary population centers is generally Enclosure 3 Neil Kornze lower than that of St. Louis County as a whole. In some of these communities, such as ly and lower. the median household income is more than half ot?thc state median. 111 many individual communities, poverty rates are as high as or higher than statewide (with the exceptions of the secondary population centers of Hoyt Lakes, Soudan, and Tower). Mining employment in St- Louis County declined from more than 12.000 jobs in 1980 to approximately 3,000 jobs in 2009. However, since mining employment can vary greatly "from one year to the next. this decline does not represent a steady reduction. employment is volatile and ?uctuates due to changes in the market price ot?commodities being extracted. During the same time period, set-vicenrelatcd employment (which includes the North American industry Classi?cation System. categories for professional services, management, health care, education, arts/entertainment, and accommodation/loud) in the study area has increased substantially, mirroring broader state and. national trends. Tourism is rooted in the region?s unique recreation. opportunities such as the and is broadly dependent on hunting, ?sh-inn. boating- sightseeing. and wilderness experiences provided by the region?s high-quality natural environment. Industries associated with tourism (arts, entertainment, recreation. accommodation. and food services) account for nearly 13 percent of all employment in St. Louis County- The landscape and recreational opportunities attracts retirees and new residents. Fishing in Minnesota lakes and rivers generates $2.8 billion in direct annual expenditures and contributes more than $640 million a year in tax revenues to the treasuries of the 'state and federal governments. The BWCAW itself has provided millions of visitors with a unique water? based recreation experience and provided an economic driver to local and the state of? Minnesota. Leases 352 and are surrounded by 29 resorts. outfitters, campgrounds and hundreds of homes and cabins. Similarly. Voyageurs National Park and Quetico Provincial Park both support vibrant tourism industries In 2015, 150,000 people visited the BWCAW. Economic benefits generated from recreation in the BWCAW average approximately $44.5 million annually. Continued economic returns rely on sustaining natural resource quality and wilderness character. The Role with Respect to I-lardroek Mineral Leases two leases include a mixture of NF lands reserved from the public domain and acquired NFS lands, with the vast majority being reserved lands. to U-S.C. 5% 508b applies to reserved NFS lands and provides in pertinent part: "the Secretary of the interior is authorized to permit the prospecting for and the development and utilization of [hard rock] mineral resources: provided. that the development and utilization of such mineral deposits shall not be permitted by the Secretary of the Interior except with the consent of the Secretary of Agriculture.? Section 40?. of Reorganization Plan No. 3 of?1946, 60 Stat. l0?97. 1099. applies to acquired NFS lands and provides in pertinent part: Enclosure 3 Neil Korn'ze 7 6 "The '?mctions or" the Secretary of Agriculture and the Department of Agriculture with respect to the uses of mineral dcpoSits in certain lands pursuant to 16 [1.3.0 520 are hereby transferred to the Secretary ot? the interior and shall he performed by him or by such of?cers and agencies ot?thc Department of the interior as he may designate: Provided, That mineral development on [lands acquired pursuant to the Weeks Act] shall be authorized by the Secretary of the Interior only when he is ad vised by the Secretary of Agriculture that such development will not interfere with the primary purposes for which the land was acquired and only in accordance with such conditions as may be speci?ed by the Secretary of Agriculture in order to protect such purposes." In pertinent part. 16 U.S.C. 52G provides: The Secretary ol?Agriculture is authorized, under general regulations to be prescribed by him, to permit the prospecting, developman and utilization of the mineral resources of the lands acquired under the Act ofMar-ch ?rst, nineteen hundred and eleven, known as the Weeks law, upon such terms and for speci?ed periods or otherwise, as he may deem to be liar the best interests of the United States. . .. Under the Weeks Act, 16 5159 the Secretary ongriculturc is authorized to purchase lands for the purposes of ?the regulation ofthe flow of navigable streams or the production of timber." The Department of the interior adopted regulations providing for disposal of mineral resources pursuant to 16 U.S.C. 50813 and Section 402 of Reorganization Plan No. 3 011946. 61} State 1097? 1099, by means of a leasing system governed by 43 part 3500. 43 CPR. (3) The Department ot?the interior?s reputations provide that issuance of leases for hard rock minerals, including deposits of copper, nickel and associated minerals, on lands administered by another scrfacc managing agency is ?[s]ubject to the consent ot?the surface managing agency,? 4.3 CFR. 3503.13(a} which in the case ot?NF lands is the United States Department of Agriculture, Forest Service. 16 1609(a). Speci?cally, 43 CPR. 3503.13fa) relates to lands acquired under the Weeks Act while 43 OER. 3503.13tc) relates to the reserved lands. On March 8, 2016, Department of interior Solicitor Hilary Tompkins issued. memorandum 37036 (M~Opinion) in response to a ELM request asking ?whether it has the discretion to grant or deny Twin Metals Minnesota?s pending application for renewal of two hardrock preference right leases in northern innesota.? The M-Opinion advises the BLM determining that, "Neither ofthe statutory authorities under which and are issued-"section 402 of Reorganization Plan No. 3 of 1946? 60 Stat. 11197, 1099-1 100, and 161.130 508b? creates an entitlement to a lease or otherwise mandates the issuance of leases? and ?No the contrary, both authorities expressly condition leasing on surface owner consent (in this instance the Forest Service) and thus are discretionary." on lune 3, 2016, the BLM advised the Forest Service: ?{iln light of the legal determination that the government has discretion in granting or denying the TMM lease renewal application, in accordance with 43 CFR 3503.20, 16 U.S.C. 508b, Section 402 ot?Reorganization Plan No. 3 of 1946, 6G Stat, 1139?, 1099; and 16 USC 520i the Enclosure 3 Neil Kornzc i? BLM requests that the USDA Forest Service provider in Writing. a decision on whether it consents or does not consent to the renewal of the leases." lrrespectivc ot?the M-Opinion, the consent to any hardroclt lease renewal is mandated by 16 .S.C. 5031) and Section 402 of Reorganization Plan No. 3 ol?1946, 60 Stat. 1097? 1099- Pursuant to 16 U.S.C. 5, 508b, the Secretary oi?Agriculture's right to consent to "the development and utilization of [hardrock] mineral resources" is coextensive with the Secretary ofthe authority to permit ?the development and utilization of [hardrock] mineral resources.? The fact that the Secretary of the Interior has implemented the authority to U.S.C- 50813 confers to permit ?the development and utilization ol?fhardrock] mineral resources? by means ol?a regulatory scheme containing a number ol?decisiou points simply means that the Secretary of Agriculture?s statutory consent authority with respect to hat-drool; mineral development and utilization authority expressed in terms identical to the Department of Interior's authority similarly extends to the same. universe ofdccision points providing those decisions have the potentialsto affect NFS surface resources, Whereas pursuant to Section 402 of Reorganization Plan No. 3 of l946, 60 Stat. 1097, i099, the Secretary of the Interior?s authority per '16 USE. 520 "to permit the develOpment oi" the [hardrock] mineral resources of the lands acquired under the Weeks lawn is contingent upon the Secretary of Agriculture's determination that "such development will not interfere with the primary purposes for which the land was It is well established that mineral "development" is authorized by a leasea whether it is one issued in the ?rst instance or a subsequent renewal. Indeed, the Mw0pinion explicitly recognizes that "the entire purpose" ol?a mineral lease is "for the lessee to develop the minerals. . . Another M-Opinion ?nds that since the 1970s hardroci: prospecting permits for NFS lands, which are the precursor for the issuance ofhardrock mineral leases including MNES-OI352 and WES-01353, have unil?onnly included the condition that ?no mineral development ol" any type is authorized hereby." Nil?36993, Options Regarding Applications for Hardrock Mineral Prospecting Perm-its on Acquired lands Near a Unit ofthc National Park System (1998 3515279? (April 16, 19-98)). Antlers-art Coalition/or rhe environment. -124 131A 211, 217 (1992) ("mineral development may only be authorized upon issuance ot?a [hardrock] lease}: John A. Nefertiti}! (forum (form Youth Association. 80 115?th 14, 26 (1984) (concurring Opinion) (development under a hardroek lease "is a logically foreseen result ot?suce-essl?ul prospecting"). So again, the fact that the Secretary of the interior has implemented the authority Section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099, confers to permit the development ofhardrock mineral resources on lands acquired pursuant to the Weeks Act by means of a regulatory scheme containing a number of decision points simply means that the Secretary of Agriculture?s consent authority with respect to hardrock mineral development authority expressed in tenns identical to lnterior?s authority similarly extends to the same universe ot?decision points providing those decisions have the potential to alleet NFS surface resources. Ofcourse, under Section 402 of Reorganization Plan No. 3 of ?9465 60 Stat. 1097? 1099, the Secretary of Agriculture cannot block mineral development absent a tindin that ?such development will interfere with the primary purposes for which the land was Herc? since the small percentage of acquired lands subject to two leases were purchased in accordance with the Weeks Act, those primary purposes were "the regulation of the flow of navigable streams or the production oftimber.? As discussed below, 'l?Ml'vl hopes to construct Enclosure 3 Neil Kornze 3 and operate an underground mine on its two leases not a strip mine. At this juncture the FS consequently cannot definitively say that the mineral development which TMM hopes to conduct on its leases will interfere with those purposes. Uncertainty about this question is of little import, however, since the lands subject to leases are an admixture of lands reserved train the public domain and acquired lands with the reserved lands being in excess of90% ol?the acreage included in both leases. Further, there is no reason to believe that mineral development exclusively could be confined to the acquired lands. The FS's conclusion that the agency should exercise the absolute discretion that 16 .S.C. .508b confers upon it to withhold consent to the renewal ofTMM?s leases insofar as the reserved lands are concerned accordingly has preclusive effect with respect to the lands acquired pursuant to the Weeks Act- The Role of Forest Plans The PS develops land and resource management plans to provide a homework that protects renewable surface resources. This framework balances both economic and environmental considerations to provide for multiple uses and sustained yield renewable surface resources. he 2004 SNF Plan at states: "Exploration and development of mineral and mineral. material resources is allowed on land. except for federally owned minerals in designated wilderness and the Mining Protection Area.? The Plan also provides that the FS will tonnage the BWCAW in a manner that perpetuates and protects its unique natural ecosystems. provides an enduring wilderness resource for linen: generations, and provides opportunities For a primitive and uncoofincd recreation experience. Although forest plans provide a framework, they do "not authorize projects or activities or commit the Forest Service to take action" (36 ERR. Instead lot-est plans provide broad management guidance and ensure all program elements and legal requirements are considered prior to critical project level decisions, such as a decision to authorize timber harvesting, grazing, or mining operations. As the Supreme Court has determined, forest plans: . .do not command anyone to do anything or to refrain from doing anything; the}! do not grant. withhold. or modify any tormal legal license. power. or authority; the}! do not subject anyone to any civil or criminal liability; they create no legal rights or obligations. Thus. for example, the Plan does not give anyone a legal right to cut trees; nor does it abolish anyone's legal authorin to object to trees being cut. Ohio Fare-soyAss r. Sierra Club. 523 US. 726. 733 (1998)." Following Forest Plan approrah proposals are evaluated" on a case-by-case basis. Proposals inconsistent with Plan direction may not be authorized (16 U.S.C. ?1604(i)). However; a proposal mi reveal the need to amend plan direction that would otherwise stand as an impediment to a proposal. Yet a proposal?s consistency with applicable Plan standards and guidelines is not an assurance that the proposal will be authorized. The PS retains discretionary judgment conceming overall multiple use. sustain-ed yield management lands. Further, denial of'a proposal consistent with applicable Plan standards and guidelines does not require alteration of the applicable direction. Enclosure 3 Neil Kornze 9 The SNF Plan does not prohibit mineral development within the management area where leases are located. But the FS is not bound to approve application for renewal of its leases either. Neither the statute nor regulations governing forest plans mandate the approval of proposals consistent with a Fet?est plan. Moreover, as discussed above. pursuant to the express terms of 16 and Section 402?. of Reorganization Plan No. 3 of 19463 60 Stat. 1097. . 1099, the FS retains discretion to withhold consent to ?l?llels lease renewals given the leases' purpose is mineral development, as recognized by the hit-Opinion. Speci?cally, the FS denial of consent to TMM's lease renewals is warranted for the reasons set out in the lVI-Opinion and also because the bar in both 16 U.S-C. 50% and Section 402 of Reorganization Plan No. 3 of l946, 60 Stat. 1097, 1099. against mineral development absent the consent ot?the Secretary of Agriculture applies with equal force to the initial issuance of the lease and any renewal ofthat lease. Accordingly. the FS may consider any potential negative environmental impacts that might ?ow from mineral development on those leases and their effect on future national forest conditions. National Environmental Policy Act (NEPA) Applicability NEPA ensures lcderal agencies take into account signi?cant environmental matters in their decision making. and that they disclose to the public that the agency has considered environmental concerns. An environmental impact statement (HIS) must be prepared when an agency proposes to undertake a major federal action that may signi?cantly ai?thct the quality of the human environment. in summary. NEPA tasks agencies to assess changes in the physical environment caused by the action it proposes to authorize. Council on Environmental Quality regulations implementing NEPA are clear that a pt?oposai ?exists at that stage in the oi?an action when an agency subject to the Ant 1 has a goal'and is actively preparing to make a decision on one or more alternative means of accomplishing that goal and the effects can be meaningfully evaluated.? 40 .F .R. 1508.23. This provision is reinforced by instruction that major federal actions ?includes actions with effects. 40 C.F.R. 1598.18. FS NEPA regulations establish a four part test for determining when NEPAL obligations arise. including whether Forest Service has a goal and is activer preparing to make a decision on one or more alternative means of accomplishing that goal and the eft?ects can he meaningfully evaluated. . . 36 ERR. Thus, when the FS declines to authorize a private application, the more contemplation of that application does not constitute a federal proposal and the FS is not required to conduct an environmental analysis under NEPA. As it .is my determination not to consent to issuance of lease renewals based on the application before the agency at this time. preparation of an environmental analysis is not required. As further explained below, no signi?cant environmental effects will occur as a result of the agency's :no?consent dctennination. This outcome is entirely in keeping with and its implementing regulations. Situations like this pose the unusual question of whether NEPA requires consideration of environmental effects of federal actions that foreclose development or use of natural resources. NEPA does not require- a federal agency to consider effects arising liom an action it has declined to allow third parties to undertake when that does not represent change in the physical environment caused by the federal Enclosure 3 Ncii Kor?rtze 0 action itself. in other words, only federal actions with signi?cant environmental effects trigger detailed statement requirement. Actions which do nothing to alter the natural physical environment and maintain the environmental status quo are not subject to NEPA. The FS routinely presereens non-mineral. Special use authorization appiications and agency regulations direct that nonconforming uses do not need to receive further evaluation and processing. See 36 CPR. 251.5402) (2). The F8 does not have regulations governing consideration oi'discretionary mineral leasing applications. but agency practice is consistent. As recently as 201-4. Regional Forester Atkinson rejected a request for consent to a prospecting permit on the Hiawatha National Forest without preparing a NEPA document. Diverting scarce budgetary resources to prepare NEPA documents for proposals that will not move forward trivializes NEPA and diminishes its utility in providing useful environmental analysis for actions that the agency accepts and actively evaluates for approval. In these circumstances, the Court of Appeals" Eighth Circuit holding that at PS decision to refrain from using herbicides as a method of vegetation control is not a ?proposal or action to which NEPA can apply? pertains. Pesticide Infra-oratirm and fitted. ?re. it Esp}: 29 F.3d 4423;, 443 (3th Cir. W94). NFS Land Management Perspectives Hallela century has passed since ?l'MM?s leases were issued in 1966. The original leases were issued prior to statutes such as the National Historic Preservation Act of 1966. National Environmental Policy Act oi?1969, Clean Water Act of 1972. Endangered Species Act of I973, Nation-oi Forest Management Act of 1976. and Boundary Waters Canoe Area Wilderness Act of 1978. Without these laws in place the environmental consequences of potential ?commercial development [of the nickel and copper deposit] by a large-scale mining operation? originally envisioned by BLM in 1956 on what are now leases received markedly less consideration in comparison with current requirements. Given changes in policy and information availability, it is not unreasonable to anticipate a higher level of interest and concern regarding these consequences than when leases were originally issued. as demonstrated in the examples to follow. in 1991 the Minnesota Department ol?Na-tural Resources recognized the value of the for its scenic beauty and solitude by establishing a State Mineral Management Corridor. in light of surface water ?ow and recreational uses. no surface disturbance or state ieases may he offered in the Corridor. The State Mineral Management Corridor overlaps with federal lease MNES- 1353. The federal relationship with Native American tribes has also evolved signi?cantly over the 50 years since the TMM leases were issued. The F3 has a legal obligation to acknowledge rights of Tribes and tribal members. including off~resctvation rights to hunt. can gather and continue cultural and spiritual practices. Such recognition did not occur until the late 19705 when Indians began to assert their rights to oftlreservation resources in federal court. including those rights to fish and gather wild rice. (195g: Lac Comte Oret'?es Bond afloat) Superior Chippeu-rr Indians v. State ofll?u 653 F. Supp. i420 (WD. Wis. '1 987) Lac Courts {)reifes? Bond of?ine Enclosure 3 Neil Romeo 1 Superior C?hippeu-?rt tedious a. Store oft-Visa. 668 F. Supp. 1233 (WD. is. 198?) (LCD WI). No documentation suggests that consultation occurred or treaty rights were considered in the 1966 decision to grant the two leases. Finally, since the last renewal ot?TMM?s leases in 20-04. we have gained experience with copper sul?de ore mining in different parts of the country. it is clear that these types of mines pose substantial risk of failure and environmental mitigation and remediation technologies are limited. and often ineffective. as discussed later in this letter. Awareness of the effects of mining, speci?cally those from copper-nickel mining. has increased since 2004. While economic values are important to area communities and the nation, preserving Wilderness Areas and their associated qualities also have natimtal and local support and precedent. Evaluation of the Present Lease Application In light of the 'M-Opinion?s legal conclusion that TMM does not have the right to automatic renewal of its leases and 353. on March 8. 2016 the BLM noti?ed TMM that the agency would review the company?s lease react-val application using the same criteria that are employed in deciding whether to grant initial ha.rdrock mineral leases. The letter also speci?ed that as part of its consideration ol?TMM's lease renewal application. the BLM would ask the FS whether it consents to the leases renewal. In response to the June 3, 2016 letter making that request of the the agency hogan considering whether to consent to the renewal of leases based upon the agency?s recognition that it has full discretion to consent or withhold consent to the renewal of two leases. As noted above. CEQ and t3 NtiiPA regulations make clear that an application must be accepted by the agency as a proposal be?tre NEPA obligations are triggered. At this time, the will not consent to lease renewal based on the submitted application and therefore does not have a goal that it is actively pursuing to authorize such activities. For this reason, no NEPA analysis is required. Acid Mine Drainage Bedrock geochemistry in northeastern Minnesota plays a large role in the low buffering capacity of the lakes and streams in the region. Both the Minnesota Pollution Control Agency and the Environmental Protection Agency (EPA) have identi?ed the surface waters of northeastern Minnesota as sensitive to changes in pH, acid deposition. and acid runoff. Unlike surface waters hounded by carbonate bedrock? or relatively thick carbonate rich glacial till where neutralization of acid runoff occurs through dissolution ot'limestone and cxsolution ot?carbon dioxide from water, the waters of northeastern Minnesota are largely underlain by igneous and metamorphic bedrock with thin overlying soils and surficial deposits with little acid neutralization capacity. A risk el?tnining development is acid mine drainage (AMD). AMD generally occurs when sul?de minerals present in one bodies and rock overburden are exposed to air and water. 'lhe exposure to air (oxidation) and water (hydrolysis) creates sulfuric acid, which subsequently increases water pit and leeches harmful metals such as copper, zinc, lead, cadmium, iron and nickel. FS data indicates between 20,000 and 50,000 mines currently generate acid on lands managed by the agency. Negative impacts from these mines affect 8.000 to l6,000 km of Enclosure 3 Neil Kornze streams. While AMD can originate naturally from the ore body itsell: its likelihood is dramatically increased by the generation ol?an}: mining product (stockpiles. overburden. and tailings) exposed to air and water. and can continue for decades- llardrock mines in sulfide bearing mineralization are known worldwide for producing AMI) that requires continuous management and perpetual water treatment. Production is prevalent in all mining operation elements: construction, waste nick, tailings, and mine structures such as pits and underground workings. Acid drainage is one ol? the most significant potential environmental impacts at hardka mine sites. Water from a mine site could potentially enter sir-suns and lakes through wastewater treatment plant discharges. runoff and leakage, concentrate spills. pipeline spills. truck accidents, spillway releases, tailings dam failures, tit-tater collection and treatment operation failures, and post-closure failures. All carry some risk to the environment. The magnitude and setting ofa failure would drive the signi?cance of the environmental risk and its potential impact. The AMD increases lake and stream acidity, with potential risks to aquatic life including sport ?sheries, A decline in water quality and aquatic species would have a negative ell?eet on recreational visitors to the BWCAW. For example, the USGS estimated that in 2010 approximately 31100 miles of streams degraded by acid mine drainage led to approximately $67 million in lost sport fishing revenue each year. Mining accidents are inherently unpredictable and can result from geotechnical failures or human error. Other circumstances that can at?leact the likelihood of mining failures or discharges include changing metals markets, financial crises. political events, and climate change. in addition. climatic trends affecting the frequency and magnitude of" storm events and seasonal temperatures could lead to unpredicted environmental changes in vegetative composition. water quality and quantity. and wildlife habitat making the environment more susceptible to damage resulting from mining operations. There is a direct ?ow of water from the lands subject to [crises to the BWCAW. Speci?cally. the leases are located within the South Kawishiwi River Watershed and the Birch Lake Watershed which both are catchments of the Rain}r River Watershed. Water ?ows from the lands embraced by the northern lease into the South Kawisliiwl River which in turn ?ows into Birch Lake. Water from the lands embraced by the southern lease also flows into Birch Lake and Birch Lake empties into the main Kawishiwi River and then into the leases overlay the Duluth Complex known for nickel-copper?platinum group elemcnt ore deposits. Due to the inherent sulfide chemistry of this ore type. mining facilities and byproducts can produce signi?cant amounts of acid. Consistent with the footprint and infrastructure of similar mines. as well as publically available preliminary from TMM about this speci?c site. potential project area could include underground minets) producing mainly copper and nickel. plus smaller amounts of other metals. project would require a concentrator thcility (potentially 1-2 miles west ofthc a tailing storage ,theility (potentially 13- miles southwest ot?concentrator). and connecting utility corridors. The utility corridors would include roads. rail lines, power transmission lines, natural gas pipelines, tailing - Enclosure 3 Neil Kornze and concentrate pipelines. and water pipelines. Pro-Feasibility Study also reveals that its project would involve four delineated ore bodies Maturi, Maturi Southwest, Birch and Spruce Road ail of which are nerd: and east ofthe I..aurentian Divide and thus in the watershed draining towards BWCAW. mining operations are expected to dispose of some waste rock and tailings underground. Other waste rock and tailings mould be disposed of using surface facilities. All of the waste rock and tailings derived from the sul?de ore bodies on the leases wouid have a high likelihood of oxidizing and becoming sources of AMI). Technical Report on Pro-?Feasibility Study shows that subsurface mining operations would occur north of the Divide and present contamination risks. That is also true ofTM M?s ore processing concentrator facilities. But Technical Report on Pie-Feasibility Study shows that ?i?MM's disposal facilities potentially'wouid be south of Laurentian Divide in the Superior Watershed. which drains away from the BWCAW. There are limitations in understanding the Full contours of the mineral operations that ultimately might occur on ?I?Mhrt?s leases, including the location of important features such as its tailings disposal facilities. The professibilit}? study is an economic feasibility anaiysis, not 'thth?s final proposal to mine the hardrock mineral deposits. But pursuant to the terms ot?hoth 16 .SC. 50% and Section 402 of Reorganization Plan No. 3 of 1946. 60 Stat. 1097. 1099?1 100. the consent is required for hardrock mineral development and the purpose of any lease. whether it is one issued in the ?rst instance or a subsequent renewal, is mineral development. indeed, the M- Opinion explicitly recognizes that "the entire purpose" ot?a mineral lease is "for the lessee to develop the minerals. Another ltd-Opinion reports that since the 19705 hardrock proSpecting permits for NF lands, which are the precursor for the issuance of Preference Right hardrock mineral teases inciuding and have been issued subject to the condition that "no mineral development ofany type is authorized hereby." ltd-36993, Options Regarding Applications For Hardroclt Mineral Permits on Acquired Lands Near A Unit National Park System (1998 WL 3515279? (April 16, 1998)). See atrojohuA. Nefertiti (Tamra Costa Youth Association. 80 IBLA 14. 26 U984) {concurring opinion) (development under a preference right lease ?is a, logicain foreseen reatilt ot'successful prospecting?). Another factor relevant to assessing the likelihood develops a mine on the lands subject to the two leases it seeks to renew is that the waters in the Rainy River watershed ?ow largely through bedrock fractures with limited carbonate rock surface area. Therefore the watershed has low capacity to buffer AMI). In sum, given the hydrology and hydrogeology of this area. the likelihood of these ore bodies being. exposed to water is very high, and given these particular ore bodies? composition. resulting drainage from the mine workings and mining wastes are likely to be highly acidic. Lessons from Similar Copper Sul?de Mines Contamination from mining operations can also occur instantaneously via catastrophic failure of the type that occurred in 2014 at the Mount. Pulley Mine in British Columbia, Canada and at . other copper mines. A review of quality impacts from 14 operating US. copper sul?de Enclosure 3 Neil Kornzc i4 mines toned: 180% ofthe mines experienced pipeline spills or accidental releases; 13 of 14 minesi water collection and treatment systems failed to control contaminated mine seepage resulting in signi?cant water quality impacts: tailings spills occurred at 9 operations; and a partial failure oftailing impoundments occurred at 4 mines. The inherent risks of mining hardrock mineral deposits on the lands leased to TMM set a high bar for potential mineral development within this watershed due to potentially severe consequences for the BWCA resulting from such failures. Because of the hydrology and hydrogeology of this particular area, should contamination occur, it could cover a. very broad region. Recent reviews of similar mining proposals in Minnesota and Alaska highlight inherent risks of metal mining to natural resources, and provide examples of risks associated with long term effectiveness of planned containment strategies. In Minnesota, the Final Environmental impact Statement for nearby Mining Project and Land Exchange recognizes that no matter the depth of analysis and planned containment strategies there remain uncertainties associated with mine development. operation and long?term water and waste rock treatment. Similarly, the EPA, in a l?roposal Determination Pursuant to Section 4040:} of the Clean Water Act for the Pebble Mine in Alaska, warns that, ?There is also real uncertainty as to whether severe accidents or failures, such as a complete wastewater treatment plant failure or a tailings darn failure, could be adequater presented over a management horizon or even in perpetuity, particularly in such a geographically remote area subject to climate extremes. if such events were to occur, they would have prolhuud ecological rami?cations.? While the rami?cations of these risks are possibly greater in the case of the Pebbic Mine, due to its location, the BWCAW shares many similarities in terms ol'hydrogeology, extreme weather and remoteness. Unique Attributes of Copper Sulfide Ore Mining, in the BWCAW Region Many operating copper mines in the United States are situated in the arid southwest or other drier areas ot?the Nation. Northern Minnesota has an established history of tacouitc mining - indeed, the region to the west ol'the lease sites is known as the ?Iron Range.? However, taconite is an domineering, oxide ore, Mining ol? the copper-nickel sulfide ore found on leases is untested in Northern Minnesota. This lack of experience with copper?nickel sulfide ore mines in environments with the complex hydrogeology of northern Minnesota complicates assessment of the consequences ofmining operations on 'l'MM?s leases, which could occur if those leases are renewed. Another variable in assessing the consecutences of these operations is climate change. In Minnesota, mean annual temperatures are expected to continue rising and precipitation is expected to increase, along with the size and magnitude of weather events. An increase in precipitation and water supply in association with signi?cant events could exacerbate the likelihood of AMD and water resource contamination. The projected changes in climate and associated impacts and vulnerabilities would have important implications for economically important timber species, forest dependent wildlife and plants, recreation, and long-range planning. The combined impacts of contaminants from mineral development and climate change could impact the ecosystem resilience of the BWCAW and the Superior National Forest outside of the wilderness. Enclosure 3 Neil Kornzc l5 The NerthMet Mining Project and [.and Exchange, the first copper-nickel mine proposed in Minnesota. has Similar concerns regarding AMD, climate change. and water qualitylhese concerns were addressed in linal EIS through engineering. permitting. and monitoring requirements. Signi?cantly, the NorthMet project is located in an area either previously disturbed andfor surrounded by brown-field taconite open pit mines and waste piles in the Laurentian Watershed. which drains away from the CAW . In contrast. leases are in close proximity to the and within its high quality watershed resource of outstanding value. The inherent and legislated wilderness values and untrammeled qualities of the BWCAW contrast with the extensively disturbed surroundings of NorthMet?s location. Additionally, if there is any potential for NorthMet?s copper-niche! mining project to sill-Eel the BWCAW and MFA. this potential would be far less than that associated with any copper?nickel mining operations TMM might ultimately conduct. if ultimately conducts mining operations on lands subject to its two leases and they result in AMI), metal. leaching. and water contamination, very few of the available containment and remediation strategies would be compatible with maintaining the quality and character. Available containment and remediation strategies such as sediment basins. water diversions, or construction and operation of water treatment plants have the potential to deleteriously affect the BWCAW. Ot?particular concern. given the location ofTMM?s leases. is the effectiveness of available methods to counteract AMD in the ease ol?seepage, spills, or facility failures. Water is the basic transport medium for contaminants. Consequently. all measures aimed at controlling AMI) generation and migration involve controlling water flow. To reduce the generation and release ot?Aile. the in?ltration of meteoric water (rain and snow) can be retarded through the use of sealing layers and the installation of under-drains, respectively. Diversion of contaminated water most conunonly requires installation of or sedimentation ponds. But even with the use of these measures successful long?term isolation of intercepted contaminated groundwater is. at best, very difficult to achieve. Moreover, even if available remediation techniques to handle contaminated water. such as ?ushing. containment and evaporation, discharge through wetlands, neutralization and precipitation, desalination. water treatment plant construction and operation, utilization of ditches or sedimentation ponds, and installation of cut-off walls. trenches or wells, are reflective, very few. if any. of them are compatible with maintaining the quality and character of BWCAW and MPA, as required by the Boundary Water Canoe Area Wilderness Act. Given the leases? proximity to the boundary (adjacent to in one case and less than 3 miles distant in the other) and the direct transport route of surface water from Birch Lake and the Kawishiwi River, it. is reasonable to expect direct effects of any mining operations on those leases to the BWCAW and MFA. I Potential impacts to Water. Fish. and Wildlife As noted above. the potential for environmental harm is inherent to copper-nickel and other sulfide-bearing ore mining operations. This potential exists during all phases of mine development, mineral extraction and processing. and long?term mine closure and remediation. Expected environmental harm could encompass damage to both surface and groundwater resources, including changes in water quantity. duality, and ?ow direction. contamination with acid and leached metals resulting from AMD and railings disposal facility thitures. and more. It Enclosure 3 Neil Kornze l6 is also well established that this emironmental damage can adverser lish populations and aquatic ecosystems directly and by indirect effects on food supplies and habitat. Recognizing this potential harm. the second edition Rainyiake of the Woods State of the. Basin Report (20l 4} recommends scienti?cally examining the effect of new mining proposals on water quality in the Rainy River Watershed. leaseholds lie within the Rainy River?s Birch Lake SubJ?V'atershed (HUC 10) \tv'hich the SNF has identi?ed as a priorin watershed per the Watershed Condition Framework. The Framework is a comprehensive approach for: I) evaluating the condition. of watersheds, 2) strategically implementing integrated restoration, and 3} tracking and monitoring outcome based program accomplishments. According to the Watershed Restoration Action Plan for Birch Lake the watershed is currently function-ting at risk. based on Fair ratings for aquatic biotic condition. water quality condition. aquatic habitat condition. soil condition, and tire cf?l?eetsf?re regime condition. The Action Plan recognizes that further development in the watershed has the potential to move the watershed from its suboptimal level of functioning at risk to the worst level of impaired functioning. As noted pres-riously, the BWCAW and SNF are home to dozens of sensitive species. Three species, the Canada Lynx. gray wolf and northern long?cared bat. are listed as threatened. Crucially, the BWCAW and SNF are considered critical habitat for the threatened Canada Lynx. which requires spruce-?r boreal forest with dense understory. Canada I .3an cover large areas, traveling extensively throughout the year. numniru:r that development and habitat fragmentation can affect the viability populations. The threatened northern longmcarcd bat lives in both Lake and St. Louis County. where leases are located. The northern long-cared bat Spends "its winter hibernating in caves. in summer it roasts in both live and dead trees, as well as caves. Northern long?seared hat populations are under signi?cant stress from White-nose which has caused drastic declines in bat populations across the country. increased impacts to their habitat could exacerbate population decline. The gray wolf population in the western Great Lakes. including the WCAW, was realistcd as threatened in 2014 by the Fish and Wildlife Service. Gray wolves also cover large areas to hunt. so wolf populations can be impacted by development and habitat liagmentation. Other animals bene?t from wolves living in Minnesota as carcasses wolves leave behind feed many other animals. Northern Minnesota is one ofthe [cw places in the continental US. where visitors can see moose. However. the state?s iconic moose population continues to decline decreasing by approximately 60 percent in the last decade, according to Minnesota?s State Department of Natural Resources. Given this population decline. the US. Fish and Wildlife Service initiated a status review for the .3. population of northwestern moose those in Michigan and Minnesota). The status review was initiated as a result ofa positive 90-day finding on a petition to list moose under the Endangered Species Act. FWS determined information in the petition provided substantial scienti?c or commercial information indicating that species listing may be warranted. Enclosure 3' Neil Kornze 17' Moose often gather around ponds. lake shores. bogs and streams where they feed on aquatic vegetation. 'i?hcy are under stress from climatic change, likely due to a greatly increased number of ticks brought about by warmer summers. Therefore they are ever more dependent on the extensive. high quality habitat available in the 13W CAW . Additional development, such as mining activit}r and associated road building. in the vicinity ol? the BWCAW could lead to habitat fragmentation that may further stress the moose population. While contamination ot'B WCAW waters by acid and leached metals could lead to habitat degradation that would also add to the moose population?s stress. The potential impacts of mining activities also could af?t?ect other species dependent upon forested areas through habit-at ii'agntentation. increased dispersal of invasive plant and animal species, and alterations to wildlife migration and residence patterns. Social and Economic Considerations The State ot?Minnesota has primary responsibilin under the Clean Water Act of 19?? to protect the water quality of the BWCAW and identifies the wilderness area as an ?outstanding resource value water? under Minnesota Rules (Minn. R. 70530180). That section also provides that ?[11]o person may cause or allow a new or expanded discharge ol?any sewage, industrial waste, or other waste to waters within the Boundary 1ilr?aters Canoe Area Wildemess.? On March 6. 2016. Minnesota Governor Mark Dayton sent, and publicly released. a letter to TMM stating that he had directed the State?s Department ot'Natural Resources ?not to authorize or enter into any new state access or lease agreements tier mining operations on those state lands? near the BWCAW. The stated he has grave concerns about. the use of state surface lands for mining near the ?lMly concern is for the inherent risks associated with any mining operation in close proximity to the BWCAW and about the State ot?Minnes-ota?s actively promoting advancement ot?such operations by permitting access to state lands." "As you know the is a crown jewel in Minnesota and a national treasure. It is the most visited wilderness in the eastern US, and a magni?cently unique assemblage of forest and waterbodies, an extra-ordinary legacy ot?wildemess adventure, and the home to iconic species like moose and I have an obligation to ensure it is not diminished in any way. Its uniqueness and fragility require that we exercise special care when we evaluate signi?cant land use changes in the area} and i am unwilling to take risks with that Minnesota environmental room." As a partner in managing and conserving natural resources within the State of Minnesota, the PS takes Governor Barton's statements seriously. The F8 shares many of the Governor?s These shared concerns also support the decision to withhold consent to renewal of leases 01352 and The F5 was aware ot?negatirc public sentiment regarding other mineral related projects on nearby SNF lands and many peoples concern about the possible renewal of leases WINES-01352 and 3'53. Consequently, on June 13, 2016 the FS announced it would provide a 30-day public input period commencing lane 20. 2016 and including a listening session on July 13. Enclosure 3 Neil Kornac . 18 201 6 to better understand public vice-*3 about renewal ol'TMM?s two leases. A second listening session on July t9. 2016 was subsequently announced. individuals and organizations expressed passionate views both in support of and opposition to renewing the leases during the input period and listening sessions. In addition. TMM submitted comments for the record during the public input period. Overall the FS received over 30,000 separate communications is response to the listening sessions. In total. this input provided FS decision makers the fullest possible understanding of 1 public views and concerns regarding the preposed lease renewals. Local sentiment is similarly mixed regarding the desirability of TMM developing a mine on the lands subject to its two leases. Northeastern Minnesota has a long history of mining, and much of the local economy along the Iron Range remains dependent on iron mining. Ely. Virginia; and other local communities, have a long-standing social identity associated with mining. During the two listening sessions, elected of?cials. union rt?tpresentatitit-3s= and miners expressed their concerns regarding the future of these communities, mining~associated tax levenues that support schools and local services. and high-payingjobs for future generations. These mining proponents often cited the potential economic bene?ts ot?miniug. should TMM develop a mine on its leases. They also stated that young people and families are leaving the area due to a depressed local economy. Mining proponents also referred to the need for strategic metals for American industry and national defense. including their use in sustainable technologies such as wind turbines and hybrid cars. Those who oppose TMME development ofa mine on the lands subject to its two leases emphasize the copper-nickel mining industry?s history of causing serious environmental hat-mo the potential mine?s proximity to the BWCAW. the interconnected hydrology of the leased lands and the BWCA W. and the probable negative impacts to water quality, quantity and aquatic ecosystems from. any mine TMM establish-es. These mining opponents often stated that mining has created a boom~bust economy that only now has stabilized with the creation of? sustainable recreation-based jobs reliant on an unspoiled environment. They also raised concerns about the probable negative impacts any TMM mine would have on the quality ot?individuals? future recreational experiences in the maintenance oi?thc wilderness character. and preservation ot?thc BWCAW for future generations. In its Technical Report on l?re~Feasibility Study, TMM estimates the company?s initial capital investment for mine construction will be billion while over the projected 30-year life ot'the mine its total capital investment will be $5.41 billion- TMM also estimates the potential economic contributions ol?mining the copper-nickel depOSits underlying its two leases could include the need for close to 12 million labor hours during the estimated three-year mine construction period and approximately 350 full-time jobs when the mine becomes operational. Based on accepted multipliers ol?direct and indirect economic contribution, il?MM?s mining operations predicated upon its two leases might generate approximath 13004.900 additional indirect jobs in the region's economy. Conversely. across the country. counties with designated wilderness areas are associated with - rapid population growth, greater employment, and enhanced personal income growth, relative to Enclosure 3 Neil Kornze l9 counties lacking wilderness areas- This attributable to the increasing mobility of service jobs, and many entrepreneurs? preference to locate their businesses in areas ol?l?ering a high quality of life. Speci?cally. up to l50,000 visitors visit the BWCAW annually. Economic benefits generated by EWCr-?tW-related recreation have been estimated at approximately $44.5 million annually. The wilderness recreation-based tourism and any derivative economic return is dependent upon preserving the BW natural quality and wildemess character. i th passage ot? the Boundary Waters Canoe Area Wilderness Act in 1978. the business model of industries and communities associated with the BWCAW shifted- Timber production was halted. Many resorts located within the wilderness were bought out by the federal government and others received ?nancial assistance to shift to a wilderness based business model. Gateway communities such as Elya Toftc and Grand Marais have also shifted to wilderness based economies? While the transition has been long and often dif?cult these communities are new highly dependent on revenue generated by the for economic sustainability. Potential unlbres-een impacts to natural resources and "water quality within the BWCAW would liker result in substantial economic impacts to established local businesses and communities now dependent upon a wilderness based business model. On April 5. 2015. Congresswoman Brett}r McColltun (D-MN) introduced the National Park and Wilderness Waters Protection Act (HR. 1796}. The Act would withdraw all federal lands in the Rainy River Watershed from the mining laws the mineral leasing laws. and the laws governing the disposal of mineral ittaterials. subject to valid existing rights. The Act also would additional restrictions on the issuance ol?any lease or permit for mineral related activities. In a February 2, 2016., letter to the Secretaries ol?Agricultui-e and the interior and the Director of CEQ. Congresswoman McCollum urged them ?to inunediately take action to protect two of America?s natural treasures - the BWCAW and Voyageurs National Park.? Specifically, Congresswoman McCollum requested the denial of TM "s requested lease renewals and administrative withdrawal of the Rainy River watershed- Former Vice President and fonner Minnesota Senator~~Waltcr Mondale also has advocated that the Department of the Interior deny the renewal ol?TMM?s leases and withdraw all federal minerals in the watershed. On April l. 2016. he wrote that ?Arizona has its Grand Canyon, Wyoming its Yellowstone, Califomia. its Yosemite. These wonder-s come to mind unbidden as images of a place when those states are named. The Boundary Waters is such an image Minnesota.? Vice President Mondale goes on to say: ?Vice President Hubert Humphrey and were deeply committed to protection ofthc Boundary Waters and its precious waters, Although we were mindful of the need the jobs. we knew that it was important to protect the magni?cence of the Boundaryr Waters. The Twin Metals mining proposal lacks this balance. That means that today I join Minnesota?s Gov. Mark Dayton and urge the Federal land management agencies to continue the work of nearly 100 years and to ensure that the Boundary Waters wilderness remains the place it is today." Then in a .luly l, 7016 letter characterizing the as pristine and irreplaceable wilderness, Vice President Mondale warned that the kind of heavy?metal mining that TMM proposes: Enclosure 3 Neil Kornze Ell ?is in a destructive class all its own. Enormous amounts of unusable waste rock containing sul?des are left behind on the surface. A byproduct of this kind of mining is sulfuric acid, which often ?nds its way into nearby waterways. Similar mines around the country have already poisoned lakes and thousands of miles of streams. The consequence of acid mine drainage polluting the pristine Boundary Waters would be catastrophic. it is a risk we simply can?t take." Conclusion The PS understands the important economic and national security benefits provided by mineral extraction and supports mining as a legitimate activity on NF lands. However, mining is not appropriate on all places within the NFS or on every acre lands. When evaluating whether to consent to issuance of an initial lease or the lease?s renewaL the FS may consider the unique ecological and cultural attributes ofall NFS lands that might be adversely allected by mineral development on the leasehold along with the social and economic consequences that could flow from both a decision to consent and to withhold consent. The PS also has an af?rmative responsibility to protect and maintain the character and quality of the BWCAW and MPA for present and future generations. Sec. 2, Pub. L. 95-495, 92 Stat. 1-649 Thus the agency may weigh the possible benefits ot'TMM"s potential mineral development against the possible harm ?l'MM's potential mineral development might do to the uniquely - valuable landscape. TMM's potential mineral development on its two 'leaseholds might contribute markedly to employment and economic growth in St. Louis County, Lake County, and nearby areas. Copper- nickcl mining conducted by TMM also 1would furnish metals important to US, industries and modern technology. Deposits ot?copper are relatively abundant in the United States and many operating copper mines in the United States are situated in arid or drier areas oi'the Nation where their potential for environmental harm maybe reduced. The United States Geological Survey reported that as ol?2015 there was only one operating nickel mine in the United States but nonetheless nickel was in oversupply and three other US. mining projects that would supply nickel were in developman The BWCAW contributes to the cultural and economic sustainability ol?communities within the State ofMinnesota, the Nation and beyond and to the ecological sustainability ot?uniqne landscapes and rare species dependent upon those landscapes that are valued withi the State of Minnesota, the Nation and beyond. The BWCAW is irreplaceable, but likely irreparable in the event of its signi?cant degradation. Based on information provided by to date its Technical Pro-Feasibility Report), existing science, and examination of similar proposals, there is no reason to doubt that the mining operations TMM hopes to eventually conduct could result in .AMD and concomitant metal leaching both during and after mineral development given the sought after copper-?nickel ore is sul:tidic. This fact is very significant given 'l?MM's two leases are adjacent or proximate to the BWCAW and within the same watershed as the wilderness. it might be possible for TMM to develop a mine which employs mitigation and containment strategies that reduce the mines potential to cause AMD and leached metals that could harm the wilderness. However, at the very least it is equally possible that available water treatment technologies would be unable to prevent the spread of any AMD and leached metals in the watershed. Further, there appears to be even Enclosure 3 Neil Kornze 2 less likelihood that any-contamination ol? the BWCAW resulting from mining operations could later be remediated, especially not in a manner compatible with the BWCAW's wilderness character. Moreover, any degree of contamination of the BWCAW by AMD and leached metals has the potential to seriously degrade the wilderness area?s character and quality. Thus. even if the probability that mining operations might generate and release of AMD and leached metals was very low. which the FS does not believe to be the case, the environmental harm to the BWC AW that could result from any contamination ol?thc area with AMD and leached metals might be extreme. Failing to prevent such damage also is contrary to Congress? determination that it is necessary to "protect the special qualities of the as a natural forest-lakcland wildcmess ecosystem of major esthetie. cultural. scienti?c, recreational and educational value to the Nation." Sec. 1. Pub. L. 95-495. 92 Stat. I649 (l978). Balancing what are primarily economic bene?ts of the mining operations that TMM hopes to conduct in connection with the renewal of its two leaxs against even a remote possibility of damaging the unique ecosystem that Minnesota elected otlieials have tittingly called irreplaceable and a national treasure?makes it clear that it is incumbent upon the PS to withhold consent to the renewal ol?TMM?s leases MNES-01352 and This decision withholding consent to the renewal of leases is subject to discretionary review by the Under Secretary for Natural Resources and Environment pursuant to 36 2 I but not appeal pursuant to 36 (ERR. part 2 4 (36 (ERR. No additional inl'onnation may be considered by the Under Secretary for Natural Resources and Environment in connection with the discretionary review of this decision (36 C.F.R. 214.l9(b) Sincerely. ?aim THOMAS Chief Attachment C December 15, 2016 Decision to Not Renew Mineral Leases Karen E. Mouritsen State Director, Eastern States BLM Office mum mm as mm: mini u; DEPARTMENT OF 941(le lulu? a! United States Department of the Interior BUREAU OF LAND MANAGEMENT Eastern States Office 20 Street, SE Suite 950 Washington, DC 20003 In Reply Refer To: 3500(930) MNES 01352, MNES 01353 CERTIFIED MAIL RETURN RECEIPT REQUESTED 7015 0640 0002 5642 3908 DECISION Mr. Ian Duckworth, Chief Operating Of?cer Leasing of Hardrock Minerals Twin Metals Minnesota Serial Number MNES 01352 380 St. Peter Street, Suite 705 Serial Number MNES 01353 St. Paul, MN 55102 Lease Renewal Application Rejected On December 14, 2016, the United States Forest Service (US. Forest Service or USFS) submitted a letter to the Bureau of Land Management (BLM) stating it did not consent to renewal of Preference Right Leases MNES 01352 and MNES 01353. As a result, with the approval of the Deputy Secretary, I hereby reject the application for renewal of these leases. The reasons for my decision to reject the lease renewals are set forth below. Background The Department of the Interior (DOI) Bureau of Land Management (BLM) Eastern States Office completed its review of the application for renewal of Preference Right Leases MNES 01352 and MNES 013 53, located within the Superior National Forest in Northern Minnesota, submitted by Twin Metals Minnesota (TMM), a subsidiary of ranconia Minerals (US) LLC, on October 21, 2012. The application for renewal was submittedtimely as the leases were scheduled to expire on January 1, 2014. The USF is the surface management agency for the lands where these two leases are located, and BLM has jurisdiction over the mineral rights. The predecessor in interest obtained the two original preference right leases that were issued in 1966 for a primary term of 20 years. The BLM issued two renewals, with US. Forest Service concurrence, in 1989 and 2004. Those leases allowed for the mining of copper, nickel, and associated minerals, but to date, TMM has not begun mineral production on either of the leases. The leases are located on the South Kawishiwi River on Superior NF lands south of the Boundary Waters Canoe Area (BWCA) Wilderness on acquired Weeks Act lands, as well as National Forest System lands reserved from the public domain and managed by USFS. These lands are not open to the operation of the Mining Law of 1872. Rather, the Secretary of the Interior?s (Secretary) authority, delegated to BLM, for mineral disposition on the acquired lands is in section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099?1100, and 16 U.S.C. 520, which governs mineral disposition on Weeks Act lands. The Secretary?s authority, delegated to BLM, for mineral disposition on reserved National Forest System lands in Minnesota is found in 16 U.S.C. 508b. For acquired lands, these authorities provide that ?mineral development on such lands shall be authorized by the Secretary only when he is advised by the Secretary of Agriculture that such development will not interfere with the primary purposes for which the land was acquired and only in accordance with such conditions as may be speci?ed by the Secretary of Agriculture in order to protect such purposes.? Section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099-1100. For public domain lands, the authorities provide that ?the development and utilization of such mineral deposits shall not be permitted by the Secretary of the Interior except with the consent of the Secretary of Agriculture.? 16 U.S.C. 508b. Since submission of the application for renewal of these Preference Right Leases, BLM has consulted with the DOI Of?ce of the Solicitor and the Department of Agriculture, U.S. Forest Service, about this application. In processing the application, BLM identified the need for a legal opinion to determine whether TMM has a non-discretionary right to renew the two preference right leases. The DOI Of?ce of the Solicitor (Solicitor) examined the issue. On March 8, 2016, the Solicitor issued Memorandum Opinion 37036 (M-Opinion) (Enclosure 1) determining that the lessee does not have a non?discretionary right to a third 10-year renewal and, therefore, that BLM has discretion to decide whether to grant or deny the application. The M-Opinion also noted that, even if the original 1966 lease terms apply, the renewal provision gives BLM discretion regarding whether to renew the leases and requires renewal as a matter of right only if the lessee has already begun production, which is not the case here. Therefore, BLM has discretion to grant or deny these leases and, in accordance with the relevant statutes identi?ed above and BLM regulations at 43 C.F.R. 3503.13, 3503.20, BLM must have written consent from the surface management agency to issue any permits or leases. U.S. Forest Service Consent Decision On June 3, 2016, BLM issued a letter to USF requesting a written decision on whether the Agency consents or does not consent to renewal of the leases (Enclosure 2). The USFS in turn issued a media release on June 13, 2016, announcing a 30?day period for public input. The USF held two listening sessions: one in Duluth, Minnesota, on July 12, 2016, and a second session in Ely, Minnesota, on July 19, 2016. On December 14. 2016. the US. Forest Service issued a letter stating it did not consent to the renewal of MN ES 0l352 and MNES 01353 (Enclosure 3). In its decision, USFS determined that these leases were inconsistent with the Agency?s af?nnative duty to protect and maintain the values in the BWCA Wilderness, embodied by the directive in the 2004 Superior National Forest Plan to manage the BWCA Wilderness in such a manner that ?perpetuates and protects its unique natural ecosystems, provides an enduring wilderness resource for future generations, and provides opportunities for a primitive and uncon?ned recreation experience.? in considering this renewal application, the Agency identi?ed grave concerns that the development of the copper sulfide-ore mining in the Rainy River Watershed, in particular the MNES 01352 and 01353 mineral leases, risks seriously impairing the ecosystem health of the wilderness area, and with it, poses unacceptable risks to the wildlife, recreational uses, tribal hunting, ?shing, and usufructuary rights, and tourism industry that depend on the pristine nature of the BWCA Wilderness. Conclusion As stated above, in accordance with section 402 of Reorganization Plan No. 3 of 1946. 60 Stat. 1097, 1099?1100, 16 U.S.C. 520, 16 U.S.C. 508b, and BLM regulations in 43 C.F.R. Subpart 3503, BLM must have written consent from the surface management agency before it may issue the leases on both public domain and acquired lands. In this instance, because USFS did not consent, BLM cannot grant your application for renewal of leases MNFS 01352 and MN 01353 and hereby rejects the lease renewal application. Final Agency Action It is my decision to reject your application to renew Twin Metals Leases MNES 01352 and MNES 01353 based on decision on December 14, 2016, not to consent. The lease expires upon receipt of this notice. 43 CPR. 3514.25. We are providing you 30 days to remove equipment ?'om the lease and remediate existing boreholes. If more time is needed, please contact the BLM Northeastern States District Manager to arrange for additional time for equipment removal and remediation. State Director Eastern States Office, BLM Attachment March 8, 2016 Lease Rejection Opinion Letter - Solicitor Hilary Tompkins Enclosure 1 United States Department of the Interior OFFICE or THE Soucrron 1849 STREET MW. DC 20240 M37036 MAR 5 it 2016 Memorandum To: Director, Bureau of Land Management From: Solicitor Subject: Twin Metals Minnesota Application to Renew Preference Right Leases (MNES- 01352 and WES-01353) The Bureau of Land Management (BLM) has asked whether it has the discretion to grant or deny Twin Metals Minnesota?s pending application for renewal ol'two hardrock preference right leases in northern I conclude that Twin Metals Minnesota does not have a non- discretionary right to renewal, but rather the BLM has discretion to grant or deny the pending renewal application. Background On October 21, 2012, Twin Metals Minnesota (TMM) submitted an application to renew two preference right leases WINES-01352 and WINES-01353) for lands that are located near the southern boundary of the Boundary Waters Canoe Area Wilderness in northern Minnesota.2 The two leases at issue are located on acquired Weeks Act lands, as well as National Forest System lands reserved from the public domain and managed by the United States Forest Service. The Secretary?s authority, delegated to the BLM, for mineral disposition on the acquired lands is in section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099-1 100, and 16 U.S.C. 520, which governs mineral disposition on Weeks Act lands. The Secretary?s authority, delegated to the BLM, for mineral disposition on reserved National Forest System lands in Minnesota is in 16 U.S.C. 508b. The BLM originally awarded the leases on June 1, 1966, for a primary term of twenty years, with the possibility of three ten-year renewals.3 On May 14, 1986, the lessee timely applied for a renewal .4 After receiving legal advice from the Of?ce of the Solicitor that the lease terms allowed for a renewal, the BLM granted a renewal of the leases on July 1, 1989, for a period of This memorandum does not address issues related to National Environmental Poiicy Act compiiance or any other legal issues surrounding these leases. 2 The Chippewa in Minnesota have hunting, ?shing, and other usu?'uctuary rights in the northeast portion of the state of Minnesota under the 1354 Treaty of LaPointe. Treaty with the Chippewa, t0 Stat. 1109 (1854). See t966 teases 5. 4 The regulations at 43 CPR. 3522.14 (i985) state that renewal applications ?must be ?led in the appropriate land of?ce within 9t) days prior to the expiration oftlu: lease term." The lessee filed an application for extension of the term of the leases on May 1986?30 days before the end of the primary twenty~year ten'n on June 14, I936, which was ?within 90 days" ofthe lease expiration. Consequently, the renewal application was timely ?led. Enclosure 1 ten years.? TMM timely applied for a second renewal on March 15, 1999. The BLM renewed the leases on January 1, 2004.?5 The 2004 leases state that they are for a period often years, ?with preferential right in the lessee to renew for successive periods of 10 years under such tenns and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.? On October 21, 2012, TM timely applied to renew the leases once more" TMM has been conducting exploration activities on the leaseholds based on the 2004 leases while the BLM considers 2012 renewal application. Under the original 1966 lease terms, as discussed more fully below, the lessee was required to commence production within the twenty-year primary term to qualify for three renewals of right. The leases provided that if there was no production at the end of the primary term, the leases would and unless the Secretary granted a lease renewal to extend the time to commence production.? Although there has been no production, the operator held the leases under production waivers for ?ve years and then through payment of minimum royalties in lieu of production payments for the rest of the time, consistent with the provisions of the 1966 leases that were incorporated by reference in the 2004 leases. Those provisions stated that, beginning after the tenth year of the primary term, the lessee is required to mine a quantity of minerals such that the royalties would be equal to $5 per annum per acre for the primary term and $10 per armum per acre during each renewal or, in lieu of that production, pay royalties equal to the minimum royalty. See 1966 leases 2(0) (incorporated into section 14 of the 2004 leases). Section 2(a) of the 1966 leases allowed the lessor to waive, reduce, or suspend the minimum royalty payment for reasonable periods of time in the interest of conservation or when such action does not adversely a?'ect the interest ofthe United States inaccordance with 43 C.F.R. 3222.62. Id. According to the records, the BLM relied on section 2(c) of the 1966 leases to grant individual waivers of production and minimum royalties for each of the ?rst ?ve lease years after the tenth year of the leases, beginning on June 1, 1976, and ending May 31, 1981, while the State of Minnesota was conducting environmental studies on the proposed mining operations, The three-year time period benaeen the date on which the lessee ?led for the ?rst ten?year lease renewal and the date on which the lease renewal was approved appears to have been due to BLM's consideration of the lessee?s minimum royalty waiver request, coordination efforts between the United State Forest Service and the BLM regarding the Forest Service approval for the renewals, and the consideration regarding the terms of the lease renetval. The lessce's application for a second renewal on March 15, I999 was 109 days before the end of the ?rst lease renewal on July 1, 1999. The regulations in force in 1999 state that application for lease renewal shall he ?led at least 90 days prior to the expiration ofthe lease tom" 43 C.F.R. 3528.! (1998). Consequently, the 1999 renewal application was timely ?led. The time period between the lessee's ?ling of the second renewal application in March 1999 and the BLM's approval of the lease renewal in January 20M appears to have been due to coordination e?'orts between the United States Forest Service and the BLM, as well a the internal review recess. The 2012 renewal application was submitted 438 days before the end of the second renewal on January I, 2014. The timing requirements for ?ling a renewal application in the crorent regulations are the same as those in the regulations that were in force in 1999. In! 351127005). Consequently. the 2012 application was timely tiled. Section 5 oflhe 1955 leases contains de?nite conditions for allowing such an extension, in the interest or or upon a satisfactory showing by the lessee that the lease cannot be successlirlly operated at a pro?t or for other reasons. Enclosure 1 which prevented Alloys International, Inc. predecessor in interest at the time of BLM's waiver decision), from developing the leases.9 The BLM records show that ?led another production and minimum royalty waiver request on June 26, 1985, for the period of July 1, 1981, to June 30, 1986. In response, the BLM issued a decision on January 28, 1987, ?nding that Minnesota had completed its environmental studies in 1979 and that INCO had not ?led any mining applications or royalty waiver applications since 1981. The decision stated that "there is no evidence that International is diligently working towards the development of these leases.? Based on the conclusion that INCO had not met the obligations of the leases, the agency denied the production and royalty waiver request. The decision also noti?ed the lessee that all delinquent payments were due before the BLM cotdd process the ?rst lease renewals at that time.?I Although the records show that INCO failed to timely pay the annual rentals and minimum royalties in lieu of production for the lease years from June 1, 1981, to May 31, 1985 (a four?year period), once received notice ?'om the BLM about the delinquency, INCO paid the fees for all four years. Consequently, the royalty payment records of the Of?ce of Natural Resources Rwanue (ONRR) show that TMM and its predecessors paid the minimum royalties in lieu of production for each of the delinquent years?1981 to 1985. The ONRR records also show that TMM paid the minimum royalty in lieu of production payments from 1936 to the present. In preparing to respond to the 1985 royalty waiver request, the BLM sought legal advice from the Solicitor?s Of?ce, which led to a 1986 legal memorandum regarding the use of one of the three renewals identi?ed in section 5 of the 1966 leases to extend the time to commence production. This 1986 Associate Solicitor?s Op'mion is discussed below in this memorandum.? As to the rental payments, the regulations in effect before 1986 provided that the ?rental paid for any year shall be credited against any royalties for that year.? 43 CPR. (1985). Beginning in 1999, the regulations have provided that the Minerals Management Service (now ONRR) ?will credit your lease rental for any year against the ?rst production royalties or minimum royalties . . . as the royalties accrue under the lease during that year.? Id. 3504.16(e) (2014). The ONRR records show that has paid the rentals and those payments have been recouped for payment of a portion of the minimum royalty payments. Warn Three provisions in the 2004 leases pertinent to whether TMM has a non-discretionary right to renewal: . Part I. Lease Rights Granted: This Lease Renewal entered into by and between the United States of America, through the Bureau of Land Management, hereinafter called lessor, and American Copper a 9 These annual waivers, beginning in June I976 and ending in May 1981, served to waive the production and minimum royalty requirements of the leases for that time period. The noti?cation tenors that BLM sent to the lessee for each of these waivers state that a waiver of production and minimum royalty requirements is granted and do not gate that the lease term is being extended for the period of the suspension. As noted above. the lessee applied for its ?rst lease renewal in May I986. Under the 1966 lease terms, the twenty~year primary term was due to expire in June I986. See tot-o p.12. Enclosure 1 Nickel Company, 922 19? Street, Golden, Colorado, 80401, hereina?er called lessee, is effective Jan-1 2004, for a period of 10 years, Sodium, Suiphur, Hat-drool: with preferential right in the lessee to renew for successive periods of 10 years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless othensise provided by law at the expiration of any period. Part 1, Section 2: Lessor, in consideration of any bonuses, rents, and royalties to be paid, and the conditions and covenants to be observed as herein set forth, hereby grants and leases to lessee the exclusive right and privilege to explore for, drill for, mine, extract, remove, bene?ciate, concentrate, or otherwise process and dispose of the copper deposits nickel 36 associated minerals hereinafter referred to as ?leased deposits,? in, upon, or under the following described lands: . . . . Part II, Section 14. Special Stipulations: The terms and conditions of the production royalties remains as stated in the attached original lease agreement [referring to the 1966 lease]. The minimum annual production and minimum royalty is 10.00 per acre or a fraction thereof as stated in the attached original lease agreement [referring to the 1966 lease]. Because the provisions of the 2004 leases govern for the reasons set forth below, the renewal provisions of the 1966 leases are not applicable. Nevertheless, to provide a comprehensive analysis, the renewal provisions of the 1966 leases are discussed in the analysis that follows. The three relevant provisions in the 1966 leases are: Introductory clause: This lease entered into . . . between the United States of America, as Lessor, through the Bureau of Land Management, and predecessor], as Lessee, pursuant . to the authority set out in, and subject to, Section 402 of the President?s Reorganimtion Plan No. 3 of 1946, 60 Stat. 1099, and the Act ofJune 30, 1950, 64 Stat. 311, and to all regulations of the Secretary of the Interior now in force when not inconsistent with any of the provisions herein. Section W. In consideration of the rents and royalties to be paid and conditions and coVenants to he observed as herein set forth the Lessor grants to the Lessee, subject to all privileges and uses heretofore duly authorized and prior valid claims, the exclusive right to mine, remove, and dispose of all the copper and/or nickel minerals and associated minerals . . . in, upon, or under [the described lands] . . . together with the right to construct and maintain thereon such structures and other facilities as may be necessary or convenient for the mining, preparation, and removal of said minerals, for a period of twenty (20) years with a right in the Lessee to renew the same for successive Enclosure 1 periods often (10) years each in accordance with rogulation 43 C.F.R. 3221.43) and the provisions of this lease. Section 5: Mallow. The Lessor shall have the right to reasonably readjust and for royalties payable hereunder at the end of the primary term of this lease and thereafter at the end of each successive renewal thereof unless otherwise provided by the law at the time of the expiration of any such period, and to readjust other terms and conditions of the lease, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover; provided, however, that the Lessee shall have the right to three successive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day. The Secretary of the Interior may gent extensions of time for commencement of production in the interest of conservation or upon a satisfactory showing by the Lessee that the lease cannot be successfully operated at a pro?t or for other reasons, and the Lessee shall be entitled to renewal as herein provided without readjustment except of royalties payable hereunder if at the end of the primary or renewal period such an extension shall be in effect, but the Lessee shall not be entitled to subsequent such renewals unless it shalt have begun production within the extended time. Ifthe Lessee shall be entitled to renewal without readjustment except of royalties payable hereunder, the Secretary of the Interior may in his discretion increase the royalty rate prescribed in subsectionfb) of Section 2 up to, but not exceeding 5% during the ?rst ten-year renewal period, (ii) 6% during the second ten-year renewal period, and 7% during the third ten?year renewal period. The extent of readjustmont of royalty, if any to be made under this section shall be determined prior to the commencement of the renewal period. . Auslxais The renewal rights of are governed by the applicable provisions of leases MNES 01352 and MNES 01353. At this time, the 2004 renewal leases are in effect, and they use the standard renewal language that has been in place since the 19803. In particular, the 2004 lease renewal terms grant the ?preferential right in the lessee to renew for successive periods often years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.? The Department has consistently interpreted this provision as not entitling the lessee to an automatic right of renewal: ?This preferential right of renewal does not entitle the lessee to renewal of the lease but ?gives the renewal lease applicant the legal right to be preferred against other parties, should the Secretary, in the exercise of his discretion, decide to continue leasing.? Gen. Chem. (Sada Ash) Partners, 176 IBLA l, 3 (2008) (emphasis in original) (quoting Sodium Lease Renewals, M- 36943, 89 Interior Dec. 173, 178 (1982) (1982 Solicitor?s Opinion)). The Interior Board of Land Appeals (IBLA) noted further that the ?Secretary may exercise his discretionary authority in renewing a lease in the same manner as in issuing an initial lease.? Id. Enclosure 1 In reaching this conclusion, I have care?tlly considered contention that the terms of the 1966 leases govern and require the BLM to renew the leases for a third ten-year term. As discussed below, I have concluded that the terms of the 2004 leases govern and that, in any event, the renewal provisions of the 1966 leases give the BLM discretion regarding whether to renew-the leases. The 2004 leases are each complete, integrated docmnents that contain all necessary lease terms and are duly signed by the lessee and lesser. The degree to which the original 1966 leases continue in effect are speci?cally described in the 2004 leases, with two special stipulations that incorporate by reference only two provisions from the 1966 leases. 2004 leases 14. The ?rst stipulation states that the ?terms and conditions of the production royalties remains as stated in the attached original lease agreement.? The second states that the ?minimum annual production and minimum royalty is $10.00 per acre or ?'action thereof as stated in the attached original lease agreement." Neither of these imported provisions includes the lease renewal provisions of the 1966 leases. Consequently, since at least the time that the BLM and the lessee signed the 2004 lease renewals, the renewal provisions of the 1966 leases have no longer applied and the only renewal terms are those described in the 2004 leases, as quoted in the previous paragraph Based on that well understood and unambiguous renewal language, the BLM has the same discretionary authority in considering whether to renew the 2004 leases as it had in issuing the initial 1966 leases. In a recent memorandum to me from TMM's legal counsel,'2 TMM asks the BLM to ignore the plain renewal terms of the 2004 leases and instead apply the renewal provisions of the 1966 leases. TMM relies on extrinsic evidence, placing heavy reliance on the circumstances leading up to the earlier 1989 renewal, which TMM asserts provide evidence that the BLM intended to simply renew the leascs under the exact same terms of the 1966 leases. TMM further asserts that the 2004 renewal, because it was executed using the same forms, must also have intended to renew the 1966 leases without any change in terms. As explained below in the discussion of the 1966 lease terms, the 1989 and 2004 renewals differ from each other because the discretion was limited in 1989 but not in 2004. In particular, the 1989 renewal served as a one-time extension of time for conunencement of production, as authorized under section 5 of the 1966 leases. But section 5 also states that if an extension is granted, the renewal must be on unaltered tenns (other than royalty). Accordingly, under section 5 of the 1966 leases, the 1989 renewal was effectively a ten-year extension of the 1966 lease terms, and the use of standard renewal forms in 1989 could have no effect other than to extend the leases for ten years to allow for commencement of production. But because no production continench during that extension, TMM was not entitled to any subsequent production extensions or renewals under the 1966 lease terms, so the BLM had discretion in 2004 over both whether to renew and the terms of any such renewal. The executed renewal in 2004 therefore has operative effect, and the plain language of the 2004 leases actually executed by the parties must be given effect. There is nothing in the duly executed 2004 leases that states that the 1966 terms somehow govern over the terms expressly set out in the 2004 leases. ?2 Memorandum from 1. Daniel Colton, Partner, Dorsey Whitney LLP, received under a cover letter dated January 26, 2016, to me ?'om Kevin L. Baker, Director, Legal Affairs, Twin Metals Minnesota, LLC. Enclosure 1 reliance on extrinsic evidence to attempt to negate the 2004 lease terms does not comply with the law of contracts. In the absence of ambiguity in the relevant lease provision, it is improper to rely on extrinsic evidence. See Coast Fed. Bank. FSB v. United States, 323 F.3d 1035, 1040 (Fed. Cir. 2006) (en banc) (?If the provisions are clear and unambiguous, they must be given their plain and ordinary meaning, and we may not resort to extrinsic evidence to interpret them.? (internal quotation marks and citation omitted?; see also Shell Oil Co. v. United States, 751 F.3d 1282, 1295 (Fed. Cir. 2014) (improper for government to rely on extrinsic evidence when contract provision is unambiguous); fireman v. Bureau of Land Mgmt. (on recon), 155 IBLA 266, 267 (2001) (?If the contract language is clear and unambiguous, the terms of the agreement are given plain meaning and the intent of the parties and the interpretation of the agreement will be determined from the four comers of the document alone." (internal citations omitted)). Under this objective law of contracts, the subjective intent of the parties is not relevant unless there is fraud, duress, or mutual mistake, none of which is alleged by TMM. See Armenian Assembly of Am, Inc. v. quesjian, 758 F.3d 265, 278 (D.C. Cir. 2014) ?objective? law of contracts . . . generally means that ?the written language embodying the terms of an agreement will govern the rights and liabilities of the parties, [regardless] of the intent of the parties at the time they entered into the contract, unless the written language is not susceptible of a clear and de?nite undertaking, or unless there is fraud, duress, or mutual mistake.? (alteration in original) (citations omitted)). In this case, there is nothing ambiguous with the renewal provision contained in the 2004 leases: there is no con?icting renewal provision referenced elsewhere in the 2004 [cases and the provision has a longstanding and well established meaning. While TMM has asserted that the ?preferential right? to renew is ambiguous because it is susceptible of more than one meaning, that argument is without merit.? TMM misinterprets the 1932 Solicitor?s Opinion, which held that the preference right to renew ?gives the renewal lease applicant the legal right to be preferred against other parties should the Secretary, in the proper exercise of his discretion, decide to continue leasing." 1982 Solicitor's Opinion, 89 Interior Dec. at 178. In reaching this conclusion, the Solicitor included a discussion of the meaning of ?preference right leases.? That discussion focused on the rights gained in the initial leasing decision, and distinguished between ?entitlement? leases, which are leases to which an applicant is by statute entitled to receive if it meets statutory criteria, and true ?preference right leases," which are issued only if the Secretary decides to lease. See id. Based on this discussion, asserts it is ambiguous whether its leases are entitlement leases or preference right leases. Even if this distinction altered renewal ri ts, which is an issue that does not need to be addressed for purposes of this memorandum, there is no ambiguity in this case. Neither of the statutory authorities under which the leases are issued?section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099-1 100, and 16 U.S.C. 508b?creates an entitlement to a lease or otherwise mandates the issuance of leases. To the contrary, both authorities expressly condition leasing on surface owner consent (in this instance the discretion of the Forest Service) and thus are discretionary. In short, there is no ambiguity, and the renewal provisions in the 2004 leases provide the BLM with discretion to decide whether to renew the leases. '3 A lease is not ambiguous merely because the parties disagree on the correct interpretation. fireman, 155 IBLA at 267 (citing Pollock v. Fed. Deposit Ins. Corp., 17 F.3d 798, 803 (5th Cir. 1994); Max?ower Recreational Funds Newpark Res. Inc, 917 F.2d I239, [247 (Will Cit. Enclosure 1 Finally, even if the 1966 lease renewal terms were in effect, they do not prohibit the BLM ?'orn exercising its discretion to decide whether to renew the leases. Section 1(a) of the 1966 leases granted to the lessee ?the exclusive right to mine, remove, and dispose of all the copper andlor nickel minerals and associated minerals . . . It also provided that renewal of the leases beyond the primary term is subject to 43 C.F.R. 3221.4(t) (1966) and the provisions of the lease. Section 3221.4?) provides that the lessee ?will be granted a right of renewal for successive periods, not exceeding 10 years each, under such reasonable terms and conditions as the Secretary of the Interior may prescribe, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover.? Based on this regulation, the BLM included a conditional renewal provision in section 5 of the 1966 leases. Section 5 of the 1966 leases describes both the conditions with which the lessee must comply to establish a right to renew the lease and the limitations on revisions to the lease terms when the lessee does have a right to renewal: Renewal Ion-ms. The Lessor shall have the right to reasonably readjust and ?x royalties payable hereunder at the end of the primary term of this lease and thereafter at the end of each successive renewal thereof unless otherwise provided by the law at the time of the expiration of any such period, and to readjust other terms and conditions of the lease, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction moreover; provided, however, that the Lessee shall have the right to three succsive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustmant of any of the other terms and conditions of this lease unis at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day. Th cc of nt 'or texten of pmduction in the interest of cogervgg? '9 or upon a sag?sfactog chanex nshall e' utth shal en? ubse ue ch to als all 'thi exte e. [fine Lessee shall be entitled to renewal without readjustment except of royalties payable hereunder, the Secretary of the Interior may in his discretion increase the royalty rate prescribed in subsection of Section 2 up to, but not exceeding 5% during the?rst ten-year renewal period, (it) 6% during the second ten-year renewal period and 7% during the third ten?year renewal period. The extent of readjustment of royalty, if any to be made under this section shall be determined prior to the commencement of the renewal period. 1966 [cases 5 (emphases added). As explained more fully below, since at least 1986, the Solicitor's Of?ce has interpreted section 5 to mean that, even if the Secretary can and does, as a matter of discretion, renew the lease to extend the time to commence production, there is no right Enclosure 1 to a further renewal when production? has not begun at the end of the ?rst renewal?extension period. The opening segment of the ?rst sentence of section 5 describes the BLM's right to readjust the royalties and other terms and conditions at the renewal stage. This provision means that, as a general rule, if renewing the lease, the BLM is allowed to readjust not only the lease royalties but also other terms and conditions at the renewal stage, including stipulations to protect the surface. The second segment of the ?rst sentence following the send-colon (highlighted in bold above) is a proviso that allows for three successive ten-year renewals, but conditions the lessee?s right to those renewals on the lessee beginning production before the end of the primary term of the lease. The key conditioning language is at the end of the ?rst sentence, as highlighted below: provided, however, that the Lessee shall have the right to three successive ten-year renewals of this lease with any readjustment in royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of the lease unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day.? This highlighted clause, which begins with ?unless,? quali?es the very right to renew and not merely, as the company has asserted, the phrase describing the level of discretion the BLM has to readjust the other terms and conditions of the leases upon renewal. In other words, the proper meaning of the proviso is clear when the last clause is placed next to the provision it actually quali?es: ?[Tlhe Lessee shall have the right to three successive ten?year renewals of this lease . . . unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day.? This conclusion is evident by the construction of the proviso. The two readjustment limitations are tied together and modify the ?right to three successive ten?year renewals" language. The use of the conjunctive ?and? between the two readjustment phrases (?with any readjustment in royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of the lease") ties them together as a single modi?er to the right-to-renew language. Accordingly, the production requirement set out as the last clause of the proviso cannot merely quality the readjustment phrases, as contended by TMM, but must apply to the overall right of renewal. In this way the proviso makes any non-discretionary renewal contingent on the lessee meeting the production requirement ?rst, and then the conditions of that renewal regarding royalties and lease terms are speci?ed in the readjustment phrases. This conclusion is further reinforced by the second sentence of section 5 {the portion of section 5 underlined above). That sentence has three clauses. The ?rst clause provides that the BLM has None of the Department?s solid minerals leasing regulations?including those in force at the time of the was Solicitcr's Opinion. those promulgated immediately thereafter, and those currently in force?expressly de?ne the term ?production.? However, the rights granted in section I of the I966 leases are described as mining, removing, and disposing of the copper andlor nickel minerals and associated minerals in, upon. or under the leased lands. These activities may be viewed to reasonably describe production. Enclosure 1 the discretion to grant the lessee an extension beyond the primary term to begin production, if doing so would be in the interest of conservation or the lessee cannot operate the lease at a pro?t or for other reasons. The second clause states that, if an extension is granted, the lessee is entitled to a renewal in which the only revision allowed is to the royalties provision. These two clauses allow the lessee to use the ?rst renewal as an extension time period to begin production. The third and ?nal clause of the sentence, however, limits this right to a renewal if there is no production by the end of the extension: ?but the Lessee shall not be entitled to subsequent such renewals unless it shall have begun productionwithin the extended time.? This ?nal clause reinforces the preceding sentence?s condition precedent that there must be production before the lace has a ?righ to subsequent renewals. The second sentence therefore again makes production a precondition for any right to renew and disallows the lessee ?'om obtaining a ?right? to a renewal if no production has occurred during the primary term or an extension that the Secretary may grant for commencement of production. The third sentence of section 5 (the portion of section 5 in italics above) describes the degree to which the BLM may readjust the royalty if the lessee is entitled to a ?limited adjustment" lease renewal under the first sentence, the Lessee is ?entitled to renewal without readjustment except of royalties payable hereunder . . . But without production, there would be no such entitlement. Taken as a whole, the language of section 5 does not give the lessee a non-discretionary right to three successive renewals. Rather, production is the condition precedent for the lessee to obtain any lease renewals of right. There is no right of renewal if there has been no production before the end of the primary term or at the end of any renewal that the BLM grants to extend the time for the lessee to commence production. The fact that the lease terms expressly state that subsequent renewals of right are not available if no production occurs during any extension the BLM may grant for commencement of production reiterates the linkage between renewals of right and production. It would be incongruent to link only the bene?t of unchanged lease terms to production, while leaving the lease renewal and royalty readjustment terms unaffected by a lack of production. Such arbitrary line drawing would create little incentive for the lessee to develop the minerals, which is the entire purpose for these mineral leases. in contrast, when production is a condition precedent for lease renewals, the lease renewal provision effectively serves as a minimal due diligence provision for the lessee. ?5 TMM asserts a different interpretation though. TMM reads the proviso of the ?rst sentence of section 5 to grant the lessee a non-discretionary right of renewal, with such right of renewal limited only to royalty readjustment and with no readjustment of any other lease terms. also reads the production requirement in the provision??muses at the end of the primary term of We note that section 14 of the [966 leases does not change this conclusion. Section 14 sets forth the royalty rates that would apply in the second ten years ofthe primary lease term and in the ?rst, second, and third ten-year renewal periods, if the lessee were to sink a shalt for underground exploration or development or otherwise begin ccnunereial development within ?ve years of obtaining the rights and authorimtions for W11, operation and maintenance of the leased premises. According to TMM, in 1967, its predecessor in interest, INCO, sunk an I too- foot shalt for exploration and development on lease MNES 01352. TMM asserts that section l4 connacniaily entitles it to these royalty rates during each oftlu'ee renewal periods. However, nothing in section 14 provides for a non-discretionary right of renewal. Rather, section 14 merely describes the royalty rate that would apply during the ?rst three ten-year renewals. It does not grant those renewals and does not state that sinking an exploration or development shaft entitles the lessee to those renewals. 10 Enclosure 1 this lease the Lessee shall not have begun modify only the readjustment limitation language, not the right to renewal language. Under interpretation of the provision, if the lessee begins production within the primary term, the BLM may make only limited royalty adjustments, as provided in the leases, and no adjustments to any other lease terms. If, on the other hand, the lessee fails to begin production within the primary term, according to TMM, the lack of production negates only the readjustment limitations in the provision, and the BLM would be able to impose greater royalty readjustments and readjust other terms and conditions of the leases upon renewal. In other words, under the company?s reading, a right to three successive ten-year renewals begins immediately following the primary terms regardless of whether production has occurred, and section 5 only affects the parameters for the readjustment of the lease terms in those non-discretionary three renewals. In addition to being unsupported by the terms of the proviso as described above, TMM's interpretation would allow it to hold the leases without any need to produce minerals in paying quantities for at least ?fty years, and longer in this instance given the time to process the lease renewals. This interpretation not only con?icts with the plain wording of the 1966 lease terms but also is contrary to the very intent of the applicable statutory framework under which the Secretary may authorize mineral development with an expectation of revenues, not speculative land holdings. See Reorganization Plan No. 3 of 1946 402, 60 Stat. 1097, 1099-1 100; 16 USS. 520. Interpreting the leases to allow for three non-discretionary renewals covering a thirty-year time span without the occurrence of the very underlying activity for which the leases are issued in the ?rst place would defeat the purpose of entering into the lease. Such an interpretation would allow for the speculative holding of mineral rights, which is contrary to Congress?s intent to encourage productive mineral development while also providing a fair return to the American taxpayer. Our interpretation that section 5 requires the lessee to begin production to obtain the bene?t of any non-discretionary right of renewal is not only mandated by the lease terms, but is consistent with the regulation regarding renewal applications cited in the lease. Section 1(a) of the 1966 leases requires the renewnls to be in accordance with 43 C.F.R. 3221.4(t) (1966), which in turn requires that renewal applications ?must be ?led in a manner similar to that prescribed for extension of a prospecting permit in Under 43 C.F.R. a prospector must show that he or she has ?diligently performed prospecting activities? to support an application for an extension of a prospecting permit.l6 Allowing for the difference between a prospecting permit application and a lease renewal application, 3221.3(a) requires that the lease renewal application include a showing of diligence in performing the lease activities (rather than the prospecting activities), which are reasonably viewed, consistent with the rights granted in section 1 of the lease terms, as mining, removing, and disposing of the copper andlor nickel minerals and associated minerals?Le, production. Consequently, by stating that any renewals must be ?in accordance with 43 C.F.R. the lease terms again identi?ed production as the baseline for obtaining a renewal of right. Based on the lease terms as a whole, and because there has been no production during the primary term or the succeeding extensions through lease renewals that the BLM has granted, TMM has not satis?ed the condition precedent Under 43 can. 5 322 (1966). in addition in making a show ofdiligence, the applicant must ?le an application in triplicate within ninety days before the expiration date of the lease term and must pay a ?ling fee. 11 Enclosure 1 for obtaining a renewal of right and, therefore, the BLM has discretion to make a decision regarding whether to renew the leases even if the 1966 renewal terms were in effect. In addition, the Solicitor-?3 Office has already concluded that the BLM is not required to renew the 1966 leases as a matter of right if there has been no production. In 1986, the Associate Solicitor for the Division of Energy and Resources sent a memorandum to the Deputy State Director for the BLM Eastern States Of?ce responding to three questions lion: the Deputy State Director." The ?rst?question was whether it was possible to grant lease renewals (for the same leases that are at issue here) when the leases had never been in production. In response, the Associate Solicitor examined the terms of the lease to determine whether or not lack of production precludes extending the lease term. The Associate Solicitor then relied on the second sentence of section 5 (the portion of section 5 mm above) to conclude that, while the leases may be extended for a period not exceeding ten years even though production has not occurred, ifproduction does not occur during the period of extension, ?no ?niher extensions will be allowed in accordance with the terms of the lease." Consistent with this legal advice and the provisions of section 5 of the 1966 leases, the BLM granted a ton-year extension by renewing these two leases in 1989. As noted above, the BLM also renewed the leases for a second ten-year period in 2004. Because no production had occurred by that time, the decision to renew the leases in 2004 was discretionary. The decision to renew the leases in 2004 does not impede the BLM ?'om again exercising discretion regarding the lessee?s application for a third renewal of the leases, particularly where this of?ce has previously concluded that the agency need not allow additional pro-production renewals.? It should be noted that the lessee?s payment of minimum royalties in lieu of production does not alter the foregoing analysis.? The payment of minimum royalties is certainly one incentive to produce that was imposed by the 1966 leases, but that incentive worked in tandem with the one created by the leases' production precondition for mandatory renewals. The second incentive See Memorandum ?'om Associate Solicitor, Energy and Resources, signed by Kenneth G. Lee. Assistant Solicitor, Branch of Eastem Resources, to Deputy State Director, Mineral Resources, Eastern States Of?ce, Bureau of Land Management, "Application for Minimum Royalty Waiver Submitted by Alloys International, Incorporated for Leases ES 01352 and ES 01353" (Apr. 2, 1986) (Attached). TMM has made no showing in its pending renewal application under 43 C.F.R. 3221.44?) (1966) that would entitle it to a third and ?nal renewal under section 5 of the 1966 leases. TMM has never begun production. 'l?MM's predecessor, INCO, sunk a development shaft and conducted bulk sampling, but neither of those actions quali?es as beginning production. Without any showing of diligence in mining. removing, or disposing of the copper, nickel, and associated minerals, and without beginning production, TMM is not entitled to any ?uther non-discretionary ten-year renewals. TMM has also asserted that the Department of the Interior is prohibited by 3D U.S.C. l84(h)(2), as well as the Department?s regulations at 43 35 MAO (20l5), from ?cancelling? TMM's interest in the leases at issue as TMM is a bona ?de purchaser. But the cancellation regulations have no applicability where. as here, the decisionis whether to renew a lease. Were BLM to exercise its discretion to deny the lease renewal application, it would not be cancelling the leases, as contemplated by 30 11.312. l84(h)(2) and 43 C.F.R. 3514.40. but rather would be allowing leases that have been in existence for ?fty years without production to terminate by their own terms. The original leases do not mention minimum royalties as a way to ful?ll the production requirement. And section 2(b) ol'TMM's 2004 leases merely provides that the request of the lessee, made prior to initiation of the lease year, the authorized of?cer may allow in writing the payment ofa $3.00 per acre or fraction thereof minimum royalty in lieu cf production for any particular lease year.? 12 Enclosure 1 expired when no production occurred by the end of the extension period granted by the 1989 renewal. While the 2004 renewal leases retain the minimum royalties payment incentive, that fact has no impact on the renewal provision of the 2004 leases. Ofconrse, for the leases to continue in e??eet during the renewal period, the lessee was required to continue to meet its obligation to pay royalties in lieu of production. However, that payment was and is not equivalent to production and does not somehow entitle the lessee to obtain a lease renewal of right; instead, it merely keeps the leases from terminating during the extension time period the BLM has granted through a lease renewal. The fact that the payment of royalties in lieu of production cannot be the basis for establishing the right to renew, and cannot be a defaero means of extending a lease in perpetuity, is also clear from IBLA case law. In General Chemical (Soda Ash) Partners, the IBLA held that minimum royalties in lieu of production have ?nothing to do with whether the Secretary, in looking at production from the mine of which the lease is a part at the end of the current lease term, will renew the lease for an additional term.? 176 IBLA at 9. The Board ?nther held, ?Moreover, ?[t]he Secretary has the authority to encourage production and development of federally leased sodium resources both through minimum development and production requirements and minimum royalties imposed on each lease.? 1d. (emphasis in original) (quoting 1982 Solicitor?s Opinion, 89 Interior Dec. at 185). The leases here use precisely both mechanisms to encourage production, albeit not successfully in this instance. 99. nclusigg For the foregoing reasons, the lessee has not established a non-discretionary right to a third ten- year renewal. Under the governing 2004 lease terms, the BLM has the same discretion regarding whether to renew the lease for a third time as it had in determining whether to grant the initial lease. While the 2004 lease terms give the lessee a preference over other potential lessees to lease the lands in question, they do not entitle the lessee to non-discretionary renewal of the CI Attachment 13 Attachment January 19, 2017 BLM Withdrawal Notice - Karen E. Mouritsen - Signatory Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices THENCE South 00°06′00″ West along said west line, a distance of 2502.98 feet to the point of beginning; THENCE South 89°07′50″ East, a distance of 805.67 feet; THENCE South 15°34′27″ West, a distance of 1473.72 feet to the point of intersection with the east and west center line of the southwest 1⁄4 of said Section 1; THENCE North 88°24′21″ West, along said east and west center line, a distance of 415.55 feet to the point of intersection with the aforementioned west line of the east 1210.00 feet of the west 1⁄2 of Section 1; THENCE North 00°06′00″ East along said west line, a distance of 1420.32 feet to the point of beginning. Containing 59.80 acres of land. Parcel No. 2 Sec. 1, lots 1 and 2, S1⁄2NE1⁄4, NE1⁄4NW1⁄4SE1⁄4, S1⁄2NW1⁄4SE1⁄4, N1⁄2SW1⁄4SE1⁄4, SW1⁄4SW1⁄4SE1⁄4, and N1⁄2SE1⁄4SW1⁄4SE1⁄4. Containing 224.56 acres of land. Parcel No. 3 Sec. 12, E1⁄2SE1⁄4. Containing 80.00 acres of land. The areas described for Parcels Nos. 1 through 3 aggregate 364.36 acres. Section 209(b) of the FLPMA authorizes the conveyance of the federally owned mineral interests in land to the surface owner when the surface interest is not federally owned, upon payment of administrative costs. The objective is to allow consolidation of the surface and mineral interests when either one of the following conditions exist: (1) There are no known mineral values in the land; or (2) Where continued Federal ownership of the mineral interests interferes with or precludes appropriate non-mineral development and such development is a more beneficial use of the land than mineral development. The applicant has deposited, a sum of funding sufficient to cover administrative costs, but not limited to, the cost for the mineral potential report. Subject to valid existing rights, on January 19, 2017 the federally owned mineral interests in the land described above are hereby segregated from all forms of appropriation under the public lands laws, including the mining laws, while the application is being processed to determine if either one of the two specified conditions exists and, if so, to otherwise comply with the procedural requirements of 43 CFR part 2720. The segregative effect shall terminate upon: (1) Issuance of a patent or other document of conveyance as to such mineral interests; (2) Final rejection of the application; or (3) January 22, 2019, whichever occurs first. Please submit all comments in writing to Benedict Parsons at the address listed above. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made available to the public at any time. While you can ask in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Authority: 43 CFR 2720.1–1. Leon Thomas, Phoenix District Manager. [FR Doc. 2017–01203 Filed 1–18–17; 8:45 am] BILLING CODE 4310–32–P DEPARTMENT OF THE INTERIOR Bureau of Land Management [MNES–058247] Notice of Application for Withdrawal and Notification of Public Meeting; Minnesota Bureau of Land Management, Interior. ACTION: Notice. AGENCY: The United States Forest Service (USFS) has filed an application with the Bureau of Land Management (BLM) requesting that the Secretary of the Interior withdraw, for a 20-year term, approximately 234,328 acres of National Forest System lands within the Rainy River Watershed on the Superior National Forest from disposition under the United States mineral and geothermal leasing laws, subject to valid existing rights. Publication of this notice temporarily segregates the lands for up to 2 years from the United States mineral and geothermal leasing laws while the withdrawal application is being processed. DATES: Comments regarding this withdrawal proposal must be received by April 19, 2017. The BLM and the USFS will hold a public meeting in connection with the proposed withdrawal on March 16, 2017, from 5 p.m. to 7:30 p.m. Central Time (CT) at the Duluth Entertainment and Convention Center, 350 Harbor Drive, Duluth, MN 55802. During this 90-day comment period, the BLM and USFS will hold additional meetings in other areas of the State, notices of which will be provided in local newspapers or on agency Web sites. The USFS’ 90-day scoping period associated with preparing an environmental impact statement (EIS) was announced on January 13, 2017 in the Federal SUMMARY: 6639 Register. The EIS will analyze the impacts of the proposed withdrawal and an amendment to the Superior National Forest Land and Resource Management Plan. Additional opportunities for public comment will be provided during the preparation of that EIS. ADDRESSES: Comments regarding this withdrawal proposal should be sent to the Deputy State Director of Geospatial Services, Bureau of Land Management, Eastern States Office, 20 M Street SE., Suite 950, Washington, DC 20003; or by facsimile at 202–912–7710. Comments sent by email will not be accepted. The March 16, 2017, BLM and USFS public meeting location is the Duluth Entertainment and Convention Center, 350 Harbor Drive, Duluth, MN 55802. FOR FURTHER INFORMATION CONTACT: Dominica VanKoten, BLM Eastern States Office, 202–912–7756 during regular business hours, 8 a.m. to 4:30 p.m. Monday through Friday, except holidays. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 1–800–877–8339 to contact the above individual. The Service is available 24 hours a day, 7 days a week, to leave a message or question. You will receive a reply during normal business hours. SUPPLEMENTARY INFORMATION: The applicant is the USFS. The application requests the Secretary of the Interior to withdraw National Forest System lands in the Superior National Forest from disposition under the United States mineral and geothermal leasing laws for a period of 20 years to protect and preserve the natural resources and waters located within the Rainy River Watershed that flow into the Boundary Waters Canoe Area Wilderness (BWCAW) and the Boundary Waters Canoe Area Wilderness Mining Protection Area (MPA) in northeastern Minnesota. The lands will remain open to other forms of use and disposition as may be allowed by law on National Forest System lands, including the disposition of mineral materials. All the National Forest System Lands identified in the townships below and any lands acquired by the Federal government within the exterior boundaries described below are included in the withdrawal application. This area excludes the BWCAW and the Boundary Waters Canoe Area Wilderness MPA, as depicted on the map entitled Appendix B: Superior National Forest, dated December 5, 2016. This map is available from the BLM Eastern States Office at the address listed above, and from the USFS Superior National Forest office, 8901 6640 Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices Grand Ave. Pl, Duluth, Minnesota, 55808. National Forest System Lands Superior National Forest 4th Principal Meridian, Minnesota Tps. 61 and 62 N., Rs. 5 W. Tps. 60 to 62 N., Rs. 6 W. Tps. 59 and 61 N., Rs. 7 W. Tps. 59 to 61 N., Rs. 8 W. Tps. 58 to 61 N., Rs. 9 W. Tps. 57 to 62 N., Rs. 10 W. Tps. 57 to 63 N., Rs. 11 W. Tp. 59 N., R. 12 W. Tps. 61 to 63 N., Rs. 12 W. Tps. 61 to 63 N., Rs. 13 W. Tp. 63 N., R. 15 W. Tp. 63 N., R. 16 W. Tps. 65 to 67 N., Rs. 16 W. Tp. 64 N., R. 17 W. The areas described contain approximately 234,328 acres of National Forest System lands in Cook, Lake, and Saint Louis Counties, Minnesota, located adjacent to the BWCAW and the MPA. Non-Federal lands within the area proposed for withdrawal total approximately 190,321 acres in Cook, Lake and Saint Louis Counties. As nonFederal lands, these parcels would not be affected by the temporary segregation or proposed withdrawal unless they are subsequently acquired by the Federal Government. The temporary segregation and proposed withdrawal are subject to valid existing rights, which would be unaffected by these actions. As stated in the application, the purpose of the requested withdrawal is to protect and preserve the natural resources and waters within the Rainy River Watershed that flow into the BWCAW and the MPA from the effects of mining and mineral exploration. Congress designated the BWCAW and established the MPA to protect and preserve the ecological richness of the lakes, waterways, and forested wilderness along the Canadian border. The protection of the Rainy River Watershed would extend the preservation of the BWCAW and MPA as well as Voyageurs National Park and Canada’s Quetico Provincial Park, which are all interconnected through the unique hydrology of this region. The application further states that the use of a right-of-way, interagency agreement, or cooperative agreement would not adequately constrain mineral and geothermal leasing to provide adequate protection throughout this pristine natural area. According to the application, no alternative sites are feasible because the lands subject to the withdrawal application are the lands for which protection is sought from the impacts of exploration and development under the United States mineral and geothermal leasing laws. No water will be needed to fulfill the purpose of the requested withdrawal. The USFS will serve as the lead agency for the EIS analyzing the impacts of the proposed withdrawal. The USFS will designate the BLM as a cooperating agency. The BLM will independently evaluate and review the draft and final EISs and any other documents needed for the Secretary of the Interior to make a decision on the proposed withdrawal. Records related to the application may be examined by contacting the individual listed in the FOR FURTHER INFORMATION CONTACT section above. For a period until April 19, 2017, all persons who wish to submit comments, suggestions, or objections in connection with the withdrawal application may present their views in writing to the BLM Deputy State Director of Geospatial Services at the BLM Eastern States Office address noted in the ADDRESSES section above. Comments, including the names and street addresses of respondents, will be available for public review at that address during regular business hours. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Notice is hereby given that a public meeting in connection with the application for withdrawal will be held at Duluth Entertainment and Convention Center, 350 Harbor Drive, Duluth, Minnesota 55802 on March 16, 2017, from 5 p.m. to 7:30 p.m. CT. The USFS will publish a notice of the time and place in a local newspaper at least 30 days before the scheduled date of the meeting. During this 90-day comment period, the BLM and USFS will hold additional meetings in other areas of the State, notices of which will be provided in local newspapers or on agency Web sites. For a period until January 21, 2017, subject to valid existing rights, the National Forest System lands described in this notice will be temporarily segregated from the United States mineral and geothermal leasing laws, unless the application is denied or canceled or the withdrawal is approved prior to that date. All other activities currently consistent with the Superior National Forest Land and Resource Management Plan could continue, including public recreation, mineral materials disposition and other activities compatible with preservation of the character of the area, subject to USFS discretionary approval, during the segregation period. The application will be processed in accordance with the regulations set forth in 43 CFR 2300. Karen E. Mouritsen, State Director, Eastern States Office. [FR Doc. 2017–01202 Filed 1–18–17; 8:45 am] BILLING CODE 3411–15–P DEPARTMENT OF THE INTERIOR Bureau of Land Management [LLNM004000 L91450000.EJ000 16X.LVDIG16ZGK00] Notice of Application for a Recordable Disclaimer of Interest: Dimmit County, Texas Bureau of Land Management, Interior. ACTION: Notice. AGENCY: The Bureau of Land Management (BLM) received an application for a Recordable Disclaimer of Interest (Disclaimer of Interest) from Gringita, Ltd. pursuant to the Federal Land Policy and Management Act of 1976 (FLPMA), as amended, and the regulations in 43 CFR subpart 1864, for certain mineral estate in Dimmit County, Texas. This notice is intended to inform the public of the pending application, give notice of BLM’s intention to grant the requested Disclaimer of Interest, and provide a public comment period for the proposed Disclaimer of Interest. DATES: Comments on this action should be received by April 19, 2017. ADDRESSES: Written comments must be sent to the Deputy State Director, Lands and Resources, BLM, New Mexico State Office, P.O. Box 27115, Santa Fe, NM 87502–0115. FOR FURTHER INFORMATION CONTACT: John Ledbetter, Realty Specialist, BLM Oklahoma Field Office, (405) 579–7172. Additional information pertaining to this application can be reviewed in case file TXNM114510 located in the Oklahoma Field Office, 201 Stephenson Parkway, Room 1200, Norman, Oklahoma 73072–2037. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service (FRS) at 1–800–877–8339 to contact the above individual during normal business hours. The Service is available 24 hours a day, 7 days a week, to leave a message or question with the SUMMARY: Attachment Department of Interior Departmental Manual 209 DM 7.1 B. Department of the Interior Departmental Manual Effective Date: 6/28/01 Series: Delegation Part 209: Secretarial Officers Chapter 7: Assistant Secretary - Land and Minerals Management Originating Office: Office of the Assistant Secretary - Land and Minerals Management 209 DM 7 7.1 Delegation. Subject to the limitations in 200 DM 1 and 209 DM 7.1E, the Assistant Secretary - Land and Minerals Management is authorized to exercise all of the authority of the Secretary including, but not limited to: A. the authority to issue amendments of and additions to the material in the Code of Federal Regulations. B. the authority delegated to the Secretary by Section 204(a) of Public Law 94-579 relating to the withdrawal or reservation of certain lands by the issuance of public land orders. C. the administration of the oath of office or any oath required by law in connection with employment. D. the authority to approve, approve with conditions, or disapprove initial State regulatory programs under Public Law 95-87. E. the authority to sign Mineral Entry Final Certificates and mineral patents under the Mining Law of 1872. The Assistant Secretary may redelegate this authority to the Director, Bureau of Land Management. No other redelegation of this authority by the Assistant Secretary is authorized. 7.2 Authority to Redelegate. Except where redelegation is prohibited by statute, Executive order, or limitations established by other competent authority, the Assistant Secretary - Land and Minerals Management may redelegate general administrative authority and those program authorities specifically related to the functions and responsibilities assigned to the Assistant Secretary - Land and Minerals Management in 109 DM 7. All redelegations of authority made by the Assistant Secretary - Land and Minerals Management will be in the form of a Departmental Manual release issued in strict compliance with the provisions of 200 DM 3. No other form of redelegation is authorized. 7.3 Deputy Assistant Secretary. A. In the absence of, and under conditions specified by the Assistant Secretary - Land and Minerals Management, a Deputy Assistant Secretary - Land and Minerals Management may exercise the authority delegated in 209 DM 7.1, excluding 209 DM 7.1B. B. A Deputy Assistant Secretary may not redelegate the authority conferred by this paragraph 209 DM 7.3. 6/28/01 #3364 Replaces 12/16/96 #3109 Attachment Judicial Review Decision - Yount V. Salazar Case 3:11-cv-08171-DGC Document 87 Filed 01/08/13 Page 1 of 47 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Gregory Yount, 9 10 11 Plaintiff, v. Ken Salazar, et al., 12 13 Defendants. National Mining Association, 14 15 16 v. Ken Salazar, et al., Defendants Northwest Mining Association, 19 20 21 v. Ken Salazar, et al., Defendants. Quaterra Alaska Incorporated, et al., 24 25 26 27 28 No. CV12-8042 PCT DGC Plaintiff 22 23 No. CV12-8038 PCT DGC Plaintiff 17 18 No. CV11-8171-PCT DGC (Lead case) Plaintiff v. Ken Salazar, et al., Defendants. No. CV12-8075 PCT DGC Case 3:11-cv-08171-DGC Document 87 Filed 01/08/13 Page 2 of 47 1 On November 1, 2011, Plaintiff Gregory Yount, a self-employed prospector and 2 miner, filed a pro se complaint seeking declaratory and injunctive relief in response to 3 Defendants’ actions withdrawing more than one million acres of federal land in Northern 4 Arizona from mining location and entry activities. Doc. 1, amended by Doc. 27. Other 5 Plaintiffs in the above-captioned actions – the National Mining Association (“NMA”) 6 and the Nuclear Energy Institute (“NEI”); the Northwest Mining Association 7 (“NWMA”); Quaterra Alaska, Inc. and Quaterra Resources, Inc. (collectively 8 “Quaterra”); and the Arizona Utah Local Economic Coalition (“the Coalition”), on behalf 9 of the Board of Supervisors of Mohave Country, Arizona (“Mohave County”), also filed 10 complaints challenging the withdrawal. On August 20, 2012, the Court consolidated the 11 cases and permitted Vane Minerals, LLC (“Vane Minerals”) to intervene as a plaintiff. 12 Doc. 56. 13 Defendants Kenneth L. Salazar, Secretary of the Department of the Interior; the 14 Department of the Interior (“DOI”); the Bureau of Land Management (“BLM”); the 15 Forest Service; and the Department of Agriculture (collectively, “Defendants”) have filed 16 motions to dismiss each of these actions. The Court held oral argument on October 26, 17 2012. For the reasons set forth below, the Court will grant the motions in part and deny 18 them in part. 19 I. Relevant Statutory and Regulatory Scheme. 20 Pursuant to the General Mining Law of 1872, 30 U.S.C. § 22, “all valuable 21 mineral deposits in lands belonging to the United States . . . shall be free and open to 22 exploration and purchase[.]” Vacant public land is “open to prospecting, and upon 23 discovery of mineral, to location and purchase.” 43 C.F.R. § 3811.1. To locate a mining 24 claim, a person establishes the boundaries of the land claimed and records a notice or 25 certificate of location. 43 C.F.R. § 3832.1. The claim is not valid until a discovery is 26 made within the boundaries of the claim. 43 C.F.R. § 3832.11. “If the validity of the 27 claim is contested, the claimant must prove that he has made a ‘discovery’ of a valuable 28 mineral deposit thereon.” McCall v. Andrus, 628 F.2d 1185, 1188 (9th Cir. 1980), -2- Case 3:11-cv-08171-DGC Document 87 Filed 01/08/13 Page 3 of 47 1 abrogated on other grounds by Miranda v. Anchondo, 684 F.3d 844, 846 (9th Cir. 2012). 2 There is a “distinction between the exploration work which must necessarily be 3 done before a discovery, and the discovery itself.” Converse v. Udall, 399 F.2d 616, 621 4 (9th Cir. 1968). Proof of discovery is judged by the prudent person test. “Where 5 minerals have been found, and the evidence is of such a character that a person of 6 ordinary prudence would be justified in the further expenditure of his labor and means, 7 with a reasonable prospect of success, in developing a valuable mine, the requirements of 8 the statute have been met.” Chisman v. Miller, 197 U.S. 313, 322 (1905). The mineral 9 must be physically exposed to constitute a valid discovery. 10 Wilderness Society v. Dombeck, 168 F.3d 367, 375 (9th Cir. 1999). 11 “The Secretary of the Interior is charged with seeing that valid claims are 12 recognized, invalid ones eliminated, and the rights of the public preserved.” United 13 States v. Coleman, 390 U.S. 599, 600 n.1 (1968) (internal quotation, ellipses, and 14 brackets omitted). Under § 204(c) of the Federal Land Policy and Management Act 15 (“FLPMA”), the Secretary may withdraw federal land “from settlement, sale, location, or 16 entry, under some or all of the general land laws, for the purpose of limiting activities 17 under those laws in order to maintain other public values.” 43 U.S.C. § 1702(j). For 18 withdrawals of more than 5,000 acres, the Secretary must notify both houses of Congress 19 and provide them with a comprehensive report of the withdrawal. Id. at § 1714(c)(1)-(2). 20 The statute states that Congress may terminate the withdrawal by adopting a concurrent 21 resolution within 90 days. Id. at § 1714(c)(1). Withdrawals by the Secretary are limited 22 to twenty years. Id. 23 Land withdrawals under the FLPMA are subject to valid existing rights, 43 U.S.C. 24 § 1701, Note (h), but the BLM or another federal land management agency must conduct 25 a mineral examination before allowing the development of noticed claims. See, e.g., 43 26 C.F.R. § 3809.100(a) (BLM regulations). 27 determine whether the claimant had a valid claim before withdrawal and whether the 28 claim remains valid. Id. Because the right to prospect for minerals ceases on the date of -3- The purpose of this examination is to Case 3:11-cv-08171-DGC Document 87 Filed 01/08/13 Page 4 of 47 1 withdrawal, a discovery must have existed – meaning that minerals must have been 2 exposed – by the date of withdrawal. Lara v. Sec’y of Interior, 820 F.2d 1535, 1542 (9th 3 Cir. 1987). 4 II. Background. 5 On July 21, 2009, Secretary Salazar published notice of his intent “to withdraw 6 approximately 633,547 acres of public lands and 360,002 acres of National Forest System 7 lands for up to 20 years from location and entry under the Mining Law of 1872.” Notice 8 of Proposed Withdrawal, 74 Fed. Reg. 35,887, (July 21, 2009) (the “2009 Notice”). The 9 2009 Notice had the effect of withdrawing the land from location and entry for up to two 10 years to allow time for analysis, including environmental analysis under the National 11 Environmental Protection Act (“NEPA”). Id. 12 On August 26, 2009, the BLM, an agency within DOI, published notice of its 13 intent to prepare an Environmental Impact Statement (“EIS”) under NEPA addressing the 14 proposed withdrawal. 15 withdrawal as explained in the notice was “to protect the Grand Canyon watershed from 16 adverse effects of locatable mineral exploration and mining, except for those effects 17 stemming from valid existing rights.” Id. at 43,152-53. 74 Fed. Reg. 43,152 (Aug. 26, 2009). The purpose of the 18 On February 18, 2011, after soliciting public comments, the BLM issued a notice 19 of availability of a Draft EIS. 76 Fed. Reg. 9,594 (Feb. 18, 2011). The Draft EIS 20 considered four alternatives in detail: a “No Action” alternative; the withdrawal of 21 approximately 1,010,776 acres for 20 years; the withdrawal of approximately 652,986 22 acres for 20 years; and the withdrawal of 300,681 acres for 20 years. Id. at 9,595. After 23 an additional, extended opportunity for public comment, the BLM published a notice of 24 availability of the Final EIS on October 27, 2011. 76 Fed. Reg. 66,747 (Oct. 27, 2011). 25 The Secretary issued a Record of Decision (“ROD”) on January 9, 2012, choosing to 26 “withdraw from location and entry under the Mining Law, subject to valid existing rights, 27 approximately 1,006,545 acres of federal land in Northern Arizona for a 20-year period.” 28 See No. 3:12-cv-08042, Doc. 27-1 at 3. -4- Case 3:11-cv-08171-DGC Document 87 Filed 01/08/13 Page 44 of 47 1 prospector, such exploration through drilling is a key to his recreational enjoyment of the 2 land. Id. at 20-21. 3 The Court is not persuaded that NEPA’s concern with aesthetic and recreational 4 enjoyment of the natural environment extends to protecting the specific interests in 5 continued uranium mining and exploratory drilling Yount asserts. Nothing in the ROD 6 prevents Yount from perceiving the beauty of the Kaibab forest, including its natural and 7 man-made works, or continuing to hike and observe the geology and surface of the land. 8 See Doc. 33, ex. 1 at 7 (The withdrawal “does not affect disposition, use, or management 9 of the lands other than under the Mining Law, including access to and across the lands.”). 10 Although Yount asserts that he had looked forward to enjoying the beauty of the Kaibab 11 Forest while drilling on his claims and developing mining operations (Doc. 44 at 29, 12 ¶ 16), the withdrawal has only restricted Yount’s drilling and mining operations. It has 13 not otherwise prohibited him from enjoying and recreating in the Kaibab forest. 14 Moreover, the mineral development activities that Yount contends add to his aesthetic 15 enjoyment of the land are activities the Mining Law has recognized as being for the 16 purpose of economic gain and not for other purposes. United States v. Coleman, 390 17 U.S. 599, 602 (1968). Yount points to no authority showing that such interests are within 18 the zone of interests NEPA protects. The Court concludes that Yount has failed to show 19 that he has prudential standing to assert a NEPA claim. 20 F. 21 The Coalition alleges that Mohave County “has a mandate to retain environmental 22 quality and to capitalize on its wealth of natural, built and human resources.” Doc. 30, 23 ¶ 24. This includes “the ‘growth of communities that maintain the health and integrity of 24 its valuable environmental features’; the protection of ‘wetlands, washes, aquifer 25 recharge areas, areas of unique flora and fauna, and areas with scenic, historic, cultural 26 and recreational value’; and avoiding industrial development that has the ‘undesired 27 effect of increasing air pollution.’” Id. (quoting Mohave County General Plan, p. 23). 28 The Coalition. NEPA requires agencies to take into account the comments and views of local - 44 - Case 3:11-cv-08171-DGC Document 87 Filed 01/08/13 Page 45 of 47 1 governments that are authorized to develop environmental standards. 42 U.S.C. 2 § 4332(2)(C). Mohave County is authorized under state law to implement environmental 3 standards and to develop a comprehensive plan to conserve natural resources and 4 promote the “health, safety, convenience and general welfare of the public.” Doc. 72-2 at 5 5-6, ¶¶ 7-9. 6 decision interferes with its ability to carry out identified environmental objectives of its 7 state-authorized plan. These are interests that the procedural requirements of NEPA were 8 designed to protect. See, e.g., City of Davis, 521 F.2d at 672 (municipality entrusted 9 under state law with enforcing environmental standards and developing a general plan 10 had “municipal interests [that] fall within the scope of NEPA’s protections.”); Douglas 11 County, 48 F.3d 1495 (County that was authorized by state law to develop environmental 12 standards and had statutory right to comment on proposed federal action had “concrete, 13 plausible interests, within NEPA’s zone of concern for the environment” underlying its 14 asserted procedural interests.). As discussed above, Mohave County has alleged that the withdrawal 15 Defendants argue that the Coalition is precluded from bringing NEPA claims 16 because it did not raise these issues during the NEPA process. Doc. 62 at 24. To 17 challenge agency action under NEPA, plaintiffs are required “to first raise their concerns 18 with the agency to allow the agency to give the issue meaningful consideration.” Am. 19 Indep. Mines, 733 F.Supp.2d. at 1267 (internal quotation marks and citations omitted). 20 The Coalition cites to the declaration of Buster Johnson, Chairman of the Mohave County 21 Board of Supervisors, stating that the BLM did not allow the local governments to submit 22 supplemental economic data about how the withdrawal would affect their communities, 23 the BLM disregarded Mohave County’s comprehensive plan, and the Secretary ignored 24 notices and invitations from Coalition members demanding coordination with them and 25 reconciliation of inconsistencies between the withdrawal and their local plans and 26 policies. Docs. 72 at 34; 72-2 at 9-10, Decl. of Buster Johnson, ¶¶ 21-23. These 27 allegations are sufficient at the pleading stage to show that the Coalition raised issues 28 within the zone of interests of NEPA during the NEPA process. The Coalition has shown - 45 - Case 3:11-cv-08171-DGC Document 87 Filed 01/08/13 Page 46 of 47 1 that it satisfies the zone of interests test for purposes of NEPA prudential standing. 2 VI. Standing to Assert Constitutional Claim. 3 Plaintiffs NMA, NEI, and NWMA claim that the withdrawal is unlawful because 4 § 204(c)(1) of the FLPMA, which allows Congress to block any administrative 5 withdrawal of lands over 5,000 acres, is unconstitutional. Doc. *56, ¶¶ 97-107; Doc. *1, 6 ¶¶ 127-145. Plaintiffs assert that this provision constitutes an impermissible legislative 7 veto because it allows Congress to act upon a concurrent resolution without presentment 8 to the president. See, e.g., Doc. *56, ¶ 99. They further assert that § 204(c)(1) is not 9 severable from § 204(c), which governs the Secretary’s ability to withdraw public lands, 10 because Congress would not have granted the Secretary authority to withdraw more than 11 5,000 acres without reserving for itself the authority to intervene. Id., ¶¶ 102-106. Thus, 12 they allege, the Secretary’s withdrawal decision, encompassing over one million acres of 13 public land, was made pursuant to an unconstitutional provision and should be set aside. 14 Id., ¶ 107. 15 Defendants argue that Plaintiffs do not have standing to make this constitutional 16 argument because the legislative veto at issue was not exercised in this case, Plaintiffs 17 cannot claim to have been harmed by it, and its exercise in any case would have 18 terminated rather than effectuated the withdrawal. Doc. *39 at 17. Defendants also 19 argue that the FLPMA’s severability clause would allow the court to sever the legislative 20 veto from the rest of § 204(c) without disturbing the Secretary’s actions under the 21 remainder of that provision. Id. at 18. 22 Plaintiffs have standing to assert their constitutional claim. They do not claim to 23 have been harmed by a legislative veto. They claim to have been harmed by the 24 withdrawal of land under an unconstitutional law. If the withdrawal provision of the 25 FLPMA is found unconstitutional because it contains an impermissible legislative veto, 26 the withdrawal will have been ineffective and Plaintiffs’ claimed harms will be redressed. 27 Whether the legislative veto provision is severable, as Defendants argue, is a question to 28 be resolved on the merits and not at the pleading stage. - 46 - Case 3:11-cv-08171-DGC Document 87 Filed 01/08/13 Page 47 of 47 1 VII. Vane’s Voluntary Dismissal. 2 On December 26, 2012, Vane Minerals filed a notice of dismissal stating that it 3 had voluntarily dismissed its complaint, pursuant to Federal Rule of Civil Procedure 4 41(a)(1)(A)(1), in order to pursue a damages claim against the United States of America 5 in the United States Court of Federal Claims based on the same operative facts. Doc. 86. 6 Accordingly, Vane’s complaint in intervention will be dismissed without prejudice. 7 IT IS ORDERED: 8 1. Defendants’ motions to dismiss Plaintiffs Gregory Yount (Doc. 33), 9 National Mining Association and Nuclear Energy Institute (Docs. 39 and 72, No. 3:12- 10 cv-08038), Northwest Mining Association (Doc. 27, No. 3:12-cv-08042), Quaterra 11 Alaska, Inc. and Quaterra Resources, Inc. (Doc. 62), and Vane Minerals (Doc. 68) are 12 denied with respect to Plaintiffs’ non-NEPA claims, and granted with respect to 13 Plaintiffs Northwest Mining Association’s, Quaterra’s, Vane’s, and Yount’s NEPA 14 claims. 15 2. Defendants’ motion to dismiss the Arizona Utah Local Economic Coalition 16 on behalf of named member the Board of Supervisors, Mohave County (Doc. 62) is 17 denied. 18 3. Vane Mineral’s complaint (Doc. 86) is dismissed without prejudice. 19 4. The Court will address further scheduling issues in a separate order. 20 Dated this 8th day of January, 2013. 21 22 23 24 25 26 27 28 - 47 - Attachment MAPS - Minnesota Northeast Region Trust Lands - Mineral and Mining Lands Northeast Region School Trust Lands r-jsz' v/A? i .993." a Legend. Legend i-ia rdrock Mineral status Proposed Hydrogeologi-c Monitoring Well sites Bun Prospecting Permit (Gummy, Status} NFs Lands Kawismwl Ranger District Data acquired ran-m a lamina of sources u'idl?linng by Twin Mauls Minnesota, LLI: a pm; lmed Pei-nit NFS Dirnunhii: Superior National accuracy, precision. and iahbi?y. Fcalurca ransom by these aala may rial lepran USFS Pm? El Rename: LLC. Issued Pam-n - awcilw awmie geographic humus. usrs swim Human Omandhu Mums Erica'npmenl Resources Non-appmm PermitApp win; mum in. F3 hm?. 11. 2015 Dacia-nor mopunm? Pll'k Man-gamut" Ca. Nari-uper App Thia Forast Sal-Inca makes no wnn'amy. TIMI MM Sim U3. Mull! alpruasudnr inpiian regardng lha :iain cla-phyad ?Hem Drill Tm Mam mt, mm pm." ?mm Pmcipai Mnniiani. Laka and Laura mum on this map. and mam: me right in mun-2015 Dali Hem Shin upd-mie. moan. ur replace lnislnlonnmn mm - hour-Hum. ELM Mineral Lnaae Mineral Siam us. Fares! some - Eastern Regan Du Human-u Ri?d Smariur Malaria: Fares! I I MNES 1352 . R?mnw? U.S. Curigiasmna] 8 Sadat-46,7513 ?"23135} References 2 3 THE SECRETARY OF THE INTERIOR 2017 Memorandum To: Acting Director, Bur ement From: Socratary Subject: Improving m?eau of Land Management?s Planning and National Environmental Policy Act Processes On March 27, 2017, President Donald J. signed Hi. Resolution 44, which immediately nulli?ed the regulations known as Planning 2.0. I have heard many concerns about this rule and about the Bureau of Land Management?s (BLM) planning and environmental analysis processes. These concerns must be addressed. Land use planning and environmental analysis are essential to help promote and improve informed decisiomnaking and to involve our state, local government, and tribal partners, as well the public in that process for our public lands. However, important projects and decisions are sometimes excessively delayed and agency land and resource management actions languish in a quagmire of plans, studies, and regulatory reviews. Often these additional steps are not a. crucial part of a successful planning effort, informing the public, or communicating the impacts and tradeoffs involved in a decision. The BLM manages almost 13 percent of the surface area in the United States and roughly one?third of its mineral resources. There is little doubt that BLM has a big job in managing our public lands for a wide variety of activities. These activities contribute to the economic health and prosperity of states and local communities by creating jobs through mt?tiple use. Yet each year, BLM spends $48 million for the planning process and completes more than 5,000 documents to comply with the National Environmental Policy Act (NEPA). Some of those funds and sta? time would be better applied toward completing work on the ground and creating economic opportunities. The feedback I have received from many of our State and local partners and the public is that the system is broken, unnecessarily and burdensome, and does not produce the result demanded by the American people. The result demanded is to have an effective, ef?cient, and transparent process that 1) takes less time, 2) costs less money, and 3) is more responsive to local needs. For these reasons, I am directing BLM to go back to the drawing board to de?ne actionable items that will make a measurable impact on improving the Federal planning process. Fostering a Good Neighbor Peta? and Restoring the @p 1.2? Use Mission?e BLM I hereby direct BLM, in accordance with its multiple-use mission, to immediately begin a focused effort to identify and implement results~oriented improvements to its land use planning and NEPA processes. As part of this effort, BLM will identify where redundancies and inef?cient processes exist and should be eliminated, while ensuring that we ful?ll our legal and resource stowardship responsibilities. These concepts are not mutually exclusive and should guide BLM as it undertakes this effort. The BLM will take a hard look at all aspects of the planning process, including challenges with NEPA, and shall incorporate the views and ideas of our state and local partners in examining and implementing solutions that meet the following criteria: 1. Finding better ways to incorporate and partner with state planning e?orts; 2. Reducing duplicative and disproportionate analyses; 3. Considering more user-friendly representation of the planning process so stakeholders can easily determine status; 4. Fostering greater transparency in the NEPA process, including proper accounting of time?ames, delays, and ?nancial cost of NEPA analyses; Seeking Opportunities to avoid delays caused by appeals and litigation; 6. Building trust with our neighbors through better integration of the needs of state and local governments, tribal partners, and other stakeholders; and 7. Developing and implementing e?orts to ?right size? environmental documents instead of defaulting to preparing an Environmental Impact Statement in circumstances when such a document is not absolutely needed. As ELM evaluates all potential solutions, it shall also include in its analysis how a new rulemaking will meet the aforementioned criteria. In conducting this analySis, BLM shall make every effort to restore order, focus, and ef?ciency to the Federal land planning process. These efforts will align with the President?s and my priorities and values: Making America Safe though Energy Independence; Making America Great Through Shared Conservation Stewardship; Making America Safe Restoring our Sovereignty; Getting America Back to Work; and Serving the American Family. Please deliver a report to me by no later than 6 months from today that describes your progress and how it will bene?t future planning decisions and activities. The report should also provide recommendations for any regulatory or legislative actions necessary to meet the above goals. April 27, 2017 r. NCLUCB Northern Counties Land Use Coordinating in." Dear Seeretary Zinke, Director Nedd, and Solicitor Keable: Attached is a report by Stillwater Technical Solutions (STS) entitled "Notification of Procedure! and Statutory De?ciencies; Request for Cancellation of Withdrawn! Application and Immediate Termination oferd Segregation" and a March 201? Department of Interior (D01) Memo requiring improvement in land planning processes with local governments. The STS report identi?es a substantial procedural flaw with respect to oversight ofa withdrawal applications under the Federal Land Policy Management Act and D01 Policy - namely that land withdrawals of greater than 5,000 acres, by statute, must be conducted under the authority of the Secretary of Interior or Assistant Secretary, Minerals Management. Perhaps more importantly, there is no record BLM advised US Forest Service (USPS) of its duty to perform the FLPMA?required, consistency review of county land use plans and policies in the three counties proposed for the segregation/withdrawal, and no NCLUCB county received requests for information. As a result, the pro-application consultation record lacks information that could only be obtained through consultation with local governments, such as intermingled federal, state and private Surface and mineral holdings or potential con?icts with Minnesota school-trust mineral inholdings - both which are known to occur. As a recult of the attached documents, we are requesting the Secretary of Interior to cancel the land application and immediately terminate the segregation of 234,328 acres of lands set aside as part of the application process, pending resubmittal of an adequate withdrawal application. For our part, NCLUCB is going to continue reviewing the USPS Application for consistency with member land use plans and policies. Following this review, we will provide our analysis and recommendations to the Secretary of Agriculture as to whether we believe USFS should withdraw the land use, mineral-withdrawal application from consideration by BLM. Sincerely, f. f? Rich Sve NCLUCB Chairman "Planning Locally 'l"oclay for Future Generations" Member 'ountics' .J?titltin ("minty (ml; County Knochiching County Lake 'uunty Lake of the \l-"ootls Pennington {'ounly Roseau ("on nly SI. liouis (runny Northern Land Ust? Coordinating I- Board Dear Honorable Secretary Zinke: Member ('uuntics The Northern Counties Land Use Coordinating Board (NCLUCB) of Minnesota is submitting the enclosed report entitled Notification of Procedural and Statutory De?ciencies; Request for Cancellation of Withdrawal Application and Immediate Termination of Land Segregation as part of the Bureau of Land Management?s (BLM) (.WL Cum?. land withdrawal comment process. NCLUCB speci?cally is requesting that the Secretary of Interior to cancel the December 14, 2016 application for land withdrawal by Kathleen Atkinson, Regional Forester of the United States Department of Agriculture, Forest Service, and to terminate the segregation of 234,328 acres of lands set aside in three NCLUCB Lake (mum member counties. Count} Knochiching ('ounty The justification and rationale for this request is found in the attached document. Luke til the ()0th Federal law governing withdrawals of public lands contains speci?c, preconsultation and consistency?review responsibilities that agencies must ful?ll with local governments, prior to initiation of the withdrawal process. None of our members have Pennington ('uunty received meaningful contact from the agencies during the current action. The Federal Land Policy and Management Act (FLPMA) and Department of Interior mum} Policies are clear that authority to oversee land withdrawal processes must reside with the Secretary of Interior, oversights that have not been met and continue as transition occurs into the Trump administration. 81. Imm The attached comments document numerous procedural, teclmical and regulatory issues surrounding the proposed land withdrawal and process, and support our request for the current Secretary of the Interior to terminate the current withdrawal process and determine what further actions, if any, need to be taken. With this transmittal we are requesting to meet with the Secretary or an appropriate, signatory-level Department of Interior Deputy to review the details of our findings. Regards?) a Chairman The Northern Counties Land Use Coordinating Board "Planning.- Locally Today for Future Carnations" Nullmu Counties l. and list? Coordinating April 17, 2017 Honorable Ryan Zinke Secretary, Department of Interior 1849 Street NW, Mail Stop 7328 Washington, DC 20240 Katherine MacGregor Deputy Assistant Secretary for Land and Minerals Management 1849 Street NW Washington, DC 20240 Michael D. Nedd Acting Director, Bureau of Land Management 1849 Street NW, Room 5665 Washington, DC 20240 Edward T. Keable Deputy Solicitor, Department of Interior 1849 Street NW, Mail Stop 6456 Karen E. Mouritsen Bureau of Land Management State Director, Eastern States Of?ce 20 Street SE Suite 950 Washington, DC 20003 Kathleen Atkinson Regional Forester, Eastern Region 626 East Wisconsin Avenue Milwaukee, WI 53202 Deputy State Director of Geospatial Services Bureau of Land Management Eastern States Of?ce 20 Street, Suite 950 Washington, DC 20003 Re: Notice of Application for Withdrawal and Noti?cation of Public Meeting; Minnesota MNES 058247 Via: Federal Express, fax and electronic copy Report Transmittal: Noti?cation ofProcedural and Statuton Deficiencies: Request/or Cancellation of Withdrawal Application and Immediate Termination ofLanrl Segregation. \lt'en (chimes (imlx (Hunt, lxt?mciu-t line-g (hum; Lakct Mimi. .il~ a" duds l?rinan sjlul? nunl?x Roscau mint}. 5? lli ,tl\ 'n my BEFORE THE DEPARTMENT OF INTERIOR Bureau of Land Management NOTICE OF APPLICATION FOR WITHDRAWAL AND NOTIFICATION OF PUBLIC MEETING: MINNESOTA NMES-OS 8247 Federal Register Vol. 82, No. 12 Thursday, January 19, 2017 pg. 6639 Notification of Procedural and Statutory Deficiencies; Request for Cancellation of Withdrawal Application and Immediate Termination of Land Segregation By: Northern Counties Land Use Coordination Board, Minnesota: Aitkin County Cook County Koochiching County Lake County Lake of the Woods Pennington County Roseau County St. Louis County l?ecluncal Solutions ?Complex Problems Solved Well? Principal Authors: .R. Carlson Norm Macleod EXECUTIVE SUMMARY Federal statutes for withdrawal of public lands contain specific requirements governing delegation, procedures for preapplication consultation with local governments, and minimum technical and information standards. Stillwater Technical Solutions (STS) conducted a statutory, procedural and regulatory analysis of a mineral land withdrawal application proposed prepared by US Forest Service and currently under review by the Bureau of Land Management for a region in northeast Minnesota. Our research concludes the withdrawal application to be procedurally flawed, devoid of documentation required from the preapplication consultation process, and lacking information that could only be obtained though statutorily required, consistency review consultation with local governments. Particularly noteworthy are neglect for intermingled federal, state and private surface and mineral holdings within the proposed withdrawal boundary; disenfranchisement of local governments through noncontact; potential future conflicts with Minnesota school-trust mineral inholdings known to occur throughout the withdrawal area, and a significant departure from the standards of the Data Quality Act. This report also presents similar, massive land withdrawals in Arizona that failed judicial review, and we document flaws in the Federal Register notification and comment process, most notably that BLM is refusing to accept electronic comments. Because the administrative record is so glaringly deficient, lacking in procedural oversight and devoid of minimum standards, the USFS withdrawal application cannot be considered as procedurally legitimate or technically feasible. For this reason, STS recommends the current Secretary of Interior cancel the application and immediately terminate the segregation of 234,328 acres of lands set aside as part of the application process, pending review and resubmittal of an adequate withdrawal application. I 1 The Northern Counties Land Use Coordinating Board - 2 3 4 5 6 7 The Northern Counties Land Use Coordinating Board (NCLUCB) of Minnesota is a collaboration of eight (8) Minnesota county governments created to review, assist and actively participate in land use planning activities and policy making. Established in 1983 under the joint powers act, our members have local jurisdictional authority over 30% of Minnesota’s land area, 41% of forest lands, 43% of regulated surface water, 46% of state wetlands, 5% of the population, and 4% of the aggregate, net tax capacity. 8 Issue Summary; Action Requested With this submittal, NCLUCB is requesting an immediate review, intervention, and specific action from the Secretary of Interior (Secretary) of a federal land withdrawal application process currently being undertaken by the Bureau of Land Management (BLM) in the northern Minnesota region. In support of this request, we are requesting the Secretary to review BLM’s compliance with the statutory withdrawal provisions of the Federal Land Policy Act in 43 USC §1714(a), the withdrawal implementing regulations in 43 CFR §2310.1(a)(1) and 43 CFR §2310.1-1, and the delegation requirements found in Department of Interior’s own Departmental Manual Part 209, Chapter 7. We specifically request the Secretary to investigate a flawed land withdrawal application submitted on December 14, 2016 to BLM by Kathleen Atkinson, Regional Forester of the United States Department of Agriculture, Forest Service (USFS), to cancel that application for cause, and to immediately terminate the segregation of 234,328 acres of lands set aside as part of the application process1 (Attachment A). Our research concludes the USDA withdrawal application to be procedurally flawed, devoid of documentation required from the preapplication consultation process,2 and lacking information that could only be obtained though statutorily required, consistency review consultation with local governments. For its part, the application itself was hurried,3 is devoid of references, and lacks fundamental data and scientific standards mandated for proposed federal actions under the Data Quality Act.4 Similarly, the application is deficient of basic information required to understand how human systems, customs, cultures, local economies, and governmental prerogatives will be protected in the event the withdrawal process should proceed. If approved in its flawed state, the massive segregation of intermingled federal, state and private surface and mineral holdings within the proposed boundaries will result in regional economic distress, ongoing disenfranchisement of local governments, and future conflicts with Minnesota school-trust mineral inholdings known to occur throughout the area of the proposed withdrawal. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 1 Application for Withdrawal, Superior National Forest. Cook, Lake and Saint Louis Counties, Minnesota. Kathleen Atkinson, Regional Forester. December 14, 2016. 2 43 CFR § 2310.1(a)(1); 43 CFR 2310.1-1 Procedures: General. 3 One immediate example of poor-quality review is the ending date for the temporary land sequestration, published in the Federal Register, (Page 6640) is January 21, 2017. The application and process contain similar such errors. 4 Section 515(a) 3504(d)(1); 3516.4; 66 Federal Register 34489. September 28, 2001. 1 39 Background - 40 41 42 43 44 45 On December 14, 2016 USFS issued its non-consent for renewal of long-standing mineral leases for a currently operating regional mining concern 5 (Attachment B). That same day, the Regional Forester of USFS filed an application for withdrawal of a 234,328 acre parcel in the Rainy River Watershed adjacent to the existing Boundary Water Canoe Area Wilderness (BWCAW) lands with the Bureau of Land Management (BLM). On December 15, 2016 the BLM State Director of Eastern States, Karen E. Mouritsen, issued her decision6 to deny mineral leases of an ongoing mining concern based upon a March 8, 2016 opinion by a Solicitor of the Department of Interior (Attachments C and D). The public record indicates the mineral-lease renewal applications were submitted to BLM on October 22, 2012, and that BLM had not acted upon the applications for a duration of about 1,500 days when BLM State Director Mouritsen issued her December 2016 decision to deny the leases. On January 19, 2017 BLM published its notification of intent to pursue the withdrawal in the Federal Register, with Karen E. Mouritsen acting in her role as BLMs State Director for the Eastern States Office (Attachment E). 46 47 48 49 50 51 52 53 54 55 56 Issues, Points and Authorities I. Review, processing and oversight of the withdrawal application process by State Director Mouritsen is contrary to the statutory mandates in the policy statement of the Federal Land Policy and Management Act and the Department of Interior, Departmental Manual Part 209, Chapter 7: 57 58 59 60 61 62 U.S.C. 1714(a) “On and after the effective date of this Act the Secretary is authorized to make, modify, extend, or revoke withdrawals but only in accordance with the provisions and limitations of this section. The Secretary may delegate this withdrawal authority only to individuals in the Office of the Secretary who have been appointed by the President, by and with the advice and consent of the Senate.” 63 64 65 66 67 68 69 70 71 72 73 74 75 a. The Policy of the United States is unambiguous that withdrawal authorities must reside with the Secretary of Interior or Assistant Secretary, Minerals Management and both must have been appointed by the President of the United States (POTUS) and confirmed by the US Senate. 76 77 78 79 80 81 b. The Department of Interior Departmental Manual at 209 DM 7.1 B. delegates the Secretary’s withdrawal or reservation authority only to the Assistant Secretary – Lands and Minerals Management. At 209 DM 7.2, further delegation of authority to the Assistant Secretary’s subordinates is prohibited because redelegation is prohibited by 43 USC §1714(a) (Attachment F). 5 6 Correspondence. Tomas L. Tidwell of USDA to Neil Kornze, BLM. File Code 2670. December 14, 2016. Correspondence. United States Department of Interior, Bureau of Land Management, Eastern States Office. Decision; Lease Renewal Application Rejected. Karen E. Mouritsen, State Director Eastern States BLM Office. December 15, 2016. 2 82 83 84 85 c. Because the Federal Register is the official publication of major 86 87 88 89 90 d. The Congressional record and other public documents do not indicate that State Director Mouritsen, nor any other official meeting the Congressional intent of 43 USC §1714(a) and subordinate regulations 43 CFR §2300.0-5(b), have traceable and legitimate decisional authority to oversee the USFS application withdrawal process. 91 92 93 94 95 96 97 98 e. Because the administrative record is deficient with respect to direct oversight from the Secretary of Interior, Assistant Secretary Minerals Management, or other individuals appointed by the president with consent of the US Senate, the USFS withdrawal application cannot be documented as procedurally legitimate. As a result, review of the USFS withdrawal application cannot proceed until the current Secretary of Interior administers or appropriately delegates the process. 99 100 101 102 103 104 105 106 107 108 agency actions of the United States Government, notifications of land withdrawals must originate from the appropriate level of signatory authority. II. USFS and BLM have failed to fulfill pre-application consultation steps and responsibilities to local governments required in 43 CFR §2310.1(a)(1) and 43 CFR §2310.1-1: a. Neither BLM nor USFS have fulfilled the early notification, land-use plan consistency review, and land use plan “keep apprised” mandates in 43 USC §1712(c)(9), or the preapplication consultation requirements in 43 CFR §2310.1(a)(1) and 43 CFR § 2310.1-1. Neither NCLUCB nor its individual members have received any requests, written correspondence, comments or questions concerning land use plans, policies or local programs. 109 110 111 112 b. The public record and consultation with NCLUCB members indicates no meaningful contact whatsoever has occurred between BLM, USFS, and NCLUCB member governments - before or during the withdrawal application process. 113 114 115 116 117 118 119 120 121 c. Meaningful participation by affected NCLUCB counties at the preapplication consultation stage is essential to determine the type and scope of investigations, studies, analyses, public meetings, and negotiations necessary for thorough and future evaluation of the USFS withdrawal proposal. Leaving affected county governments out of the early planning stage results in failure to accurately understand the scope, interrelationship and interactions between the natural and human environments - which in turn leads to skewed decisions and diminution of local prerogatives. 122 123 124 125 126 d. During judicial review of a remarkably similar land withdrawal in the Arizona strip by former Secretary of Interior Salazar, the U.S. District Court for Arizona vacated the withdrawal because the BLM disregarded economic data, refused a consistency review with local governments, and ignored local interests (Attachment G). 127 3 III. The application by USFS demonstrates a remarkable lack of confidence, predetermining that commonly-available environmental controls and existing statutory and regulatory frameworks are inadequate to protect the natural environment, leaving withdrawal of working public lands from their primary use as the only satisfactory environmental remedy: 128 129 130 131 132 133 134 135 136 137 138 139 a. The withdrawal application is replete with undocumented future claims and unsubstantiated potential impacts that environmental damage could result from mineral exploration and development, concluding that "any failure of mitigation measures, containment facilities, or remediation efforts" could render USFS unable to protect designated public lands. 140 141 142 143 b. The withdrawal application is wholly deficient in scientific references, data, studies, and other Data Quality Act required information necessary to objectively conclude if segregation of working lands for further study may even be advisable. IV. In its application, USFS errantly prioritizes environmental values 144 145 146 147 148 and sequestration above the FLPMA doctrines of multiple use,7 sustained yield,8 and the hierarchy of principal or major uses9 - all of which prioritize balanced, beneficial and working use of public lands as a priority over withdrawal: a. Recognizing the intermingled, pre-existing status of water rights, 149 150 151 152 153 154 155 156 easements, grazing allotments, mining claims, timber operations, and various private inholdings, the 94th Congress, in promulgating FLPMA, established a hierarchal system that provides for the diverse land use interests around a central philosophy of productivity10 - not sequestration. To that end, the FLPMA doctrine of principal use11 establishes a first-among-multiple-use hierarchy for land use planning within region a proposed for land withdrawals: 1. 2. 3. 4. 5. Domestic livestock grazing; Fish and wildlife development and utilization; Mineral exploration and production; Rights-of-way; Outdoor recreation; and, 6. Timber production. 157 158 159 160 161 162 163 164 b. It is the Policy of the United States that public lands be managed first for balanced productivity, not segregation. 165 166 167 168 c. The application ignores that the adjacent Boundary Water Canoe Area Wilderness lands were previously designated for environmental purposes and the remaining lands were left for productive pursuits, such as timber production, minerals, range, and other productive pursuits. 169 7 43 USC 1702(c) 43 USC 1702(h) 9 43 USC 1702(l) 10 43 USC §1702 (c) 11 43 USC §1702 (l) 8 4 V. The proposed withdrawal would have negligible effect at curtailing mining, as approximately 190,321 acres of pre-existing surface and subsurface state and private lands would remain within the 234,328 acres proposed for withdrawal: 170 171 172 173 174 175 176 177 178 a. Development of state-owned mineral resources contributes substantially to fund the Minnesota public school system, and the proposed withdrawal poses both a threat to current and future state revenues and state sovereignty. Withdrawal will also produce unintended legal conflicts and other negative consequences. 179 180 181 182 b. Continuation of prior existing rights and access, as required by FLPMA and promised in the USFS Federal Register notification, will result in reduced lease and royalty revenues for the Federal purse, and additional management costs for BLM and USFS. 183 184 185 186 187 188 189 c. Because President Trump has issued an executive order12 and OMB has issued a directive13 to reorganize the Federal government, eliminate unnecessary federal agencies and programs, and reduce the size of Federal government, adding costs of a high level land withdrawal program that removes the opportunity for access to a statutorily preferred use and revenues to the federal government is unlikely to be well received. Other Issues VI. In its Notice of Application for Withdrawal and Notification of Public Meeting, the BLM inexplicably prohibited submission of comments by email: 190 191 192 193 194 195 a. Submission of public comment by electronic means is standard practice across the federal government for agencies at all levels. 196 197 198 199 b. There is potential for unnecessarily confusing the public when one agency (BLM) involved in a multi-agency process refuses to accept comments via email when a counterpart agency (USFS) welcomes comment via email. 200 201 202 c. When an agency refuses to accept comment via email, it causes more administrative time to prepare and provide multiple hard copies of comments for public review. VII.The comments submitted during this comment period are being made available for review at the BLM’s Eastern States Office, located in Washington, DC. No opportunity for public review of the comments is being made available for review within the Minnesota counties that would be affected by the proposed withdrawal: 203 204 205 206 207 a. The ability to readily obtain and review documents pertinent to a proposed action, especially in electronic medium, is essential to effective public participation in the process for a proposed federal 208 209 210 12 Executive Order 13781. Comprehensive Plan for Reorganizing the Executive Branch. President Donald Trump March 13, 2017. 13 Memorandum for Heads of Departments and Executive Agencies: Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian Workforce. Mick Mulvaney, Executive Office of the President Director of Office of Management and Budget. April 12, 2017. 5 211 212 213 214 215 216 217 218 219 220 221 222 223 224 agency action. Public comment documents located thousands of miles from the location of the proposed action cannot be deemed to be “readily accessible” to the public. b. Any public process that effectively denies access to the documents that are used in formulating the Secretary’s decision-making process, in an age where electronic access to information is nearly universal, is improper and indefensible. c. Through the use of online comment submission systems, such as those available at www.regulations.gov, members of the public are accustomed to ease-of-use electronic tools for public participation in government processes. In the absence of those tools, many people simply opt not to participate. This potentially denies the agencies access to crucial information that would otherwise substantially inform the Secretary’s decision-making in major proposed actions. 6 Attachment A December 14, 2016 USFS Application for Withdrawal APPLICATION FOR WITHDRAWAL Superior National Forest Cook, Lake, and Saint Louis Counties, Minnesota Items required by 43 C.F.R. 2310.1-2(c): 1. APPLICANT Regional Forester USDA Forest Service 626 East Wisconsin Ave Milwaukee, WI 53202 2. STATEMENT OF DELEGATION The general delegations of authority from the Secretary of Agriculture to the Chief of the Forest Service is set forth at 7 C.F.R. § 2.60. More specifically 7 C.F.R. § 2.60(a)(2) delegates authority to the Chief of the Forest Service to protect, manage, and administer the National Forest System. The Chief of the Forest Service has delegated the authority to request withdrawals to the Regional Foresters (FSM 2761.04). 3. OTHER AGENCY CONSENT The subject landsare National Forest System lands under the administration of the U.S. Department of Agriculture, Forest Service, which hereby consents to the requested withdrawal and segregation of those lands. 4. TYPE OF WITHDRAWAL ACTION This is a request for a new withdrawal. The Forest Service requests these lands be withdrawn from disposition under laws relating to mineral and geothermal leasing laws, subject to valid existing rights - including the Mineral Leasing Act of 1920 (30 U.S.C. 181 et seq. as amended), the Mineral Leasing Act for Acquired Lands of 1947 (30 U.S.C. 351 et seq. as amended), Section 402 of the President‘s Reorganization Plan No. 3 of 1946, 16 U.S.C. 520, and 16 U.S.C. 508b. All of the landswould remain subject to the laws providing for the disposal of mineral materials as defined by 36 C.F.R. Part 228, Subpart C. The Forest Service recognizes that any segregation or future withdrawal of these lands and interests in the landswill be subject to valid existing rights on Federal land. The segregation and withdrawal would also be inapplicable to private lands owned in fee, private mineral estates, and private fractional minerals interests. Withdrawal Application Page 1 5. LANDS INVOLVED IN WITHDRAWAL The Federal lands whose withdrawalis requested fall within a portion of the Rainy River watershed,outside the Boundary Waters Canoe Area Wilderness (BWCAW) and the Boundary Waters Canoe Area Wilderness Mining Protection Area (MPA), as indicated on the attached map (Appendix B). More specifically, the Forest Service requests the withdrawal of all landsidentified in Appendix A that include fully federally owned minerals that aresituated within the exterior boundaries of the area depicted on the attached map (Appendix B). The Forest Service also requests that the withdrawal be made applicable to all fee title lands subsequently acquired by the Federal Government that are situated within the exterior boundaries of the area depicted on the attached map (Appendix B). The Federal lands that are requested for withdrawal are within the Rainy River watershed and drain into the BWCAW. The application of the mineral leasing laws to the remaining Federal lands within portions of the Rainy River watershed, i.e., the BWCAW and the MPA,are already curtailed by virtue of Sec. 11(a) of Pub. L. 95-495, 92 Stat. 1649, 1655 (1978). The National Forest System lands for which withdrawal is requested in aggregate total approximately234,328 acres within the Superior National Forest. There are two categories of these National Forest System landswhich includefully Federally-owned mineral interests - lands reserved from the public domain owned by the United States in fee simple, andacquired lands owned by the United States in fee simple. 6. OTHER WITHDRAWALS The area containing the Federal lands whose withdrawal is requested by means of this application does not overlap any other withdrawal. no However, pursuant to Sec. 11(a) of Pub. L. 95-495, 92 Stat. 1649, 1655 (1978) ― permit, lease, or other authorization may be issued by any agency or authority of the United States for [the] exploration for, or mining of, minerals owned by the United States within the Boundary Waters Canoe Area Wilderness and Boundary Waters Canoe Area Mining Protection Area.‖ These areas are adjacent to the lands that this application requests be withdrawn from the disposition under laws relating to mineral and geothermal leasing. 7. PURPOSE OF WITHDRAWAL As previously noted, the 234,328 acres of Federal land for which the Forest Service requests withdrawal are located within the Vermillion and Rainy Headwaters subwatersheds of the Rainy River watershed in the Superior National Forest and areadjacent to the BWCAW and MPA. There is known interest in the development of hardrock minerals that have been found—and others that are thought to exist—in sulfide-bearing rock within this portion of the Rainy River watershed. Any development of these mineral Withdrawal Application Page 2 resources could ultimately result in the creation of permanently stored waste materials and other conditions upstream of the BWCAW and the MPA with the potential to generate and release water with elevated levels of acidity, metals, and other potential contaminants. Additionally, any failure of mitigation measures, containment facilities, or remediation efforts at mine sites and their related facilities located upstream of the BWCAW and the MPA could lead to irreversible impacts upon natural resources and therefore, render the Forest Service unable to meet the purposes for the designation of the BWCAW and the MPA specified by Sec. 2 of Pub. L. 95-495, 92 Stat. 1649 (1978). These concerns are exacerbated by the fact that perpetual maintenance of waste storage facilities along with the perpetual treatment of water discharge emanating from the waste storage facilities and the mines themselves would likely be required to ameliorate these adverse effects,yetit is not at all certain that such maintenance and treatment can be assured over possibly infinite timeframes. Thus, the purpose of this withdrawal request is to protect National Forest System lands (and waters) located in the Rainy River Watershed, the BWCAW, and the MPA from the adverse environmental impacts arising from exploration and development of fully Federally-owned minerals conducted pursuant to the mineral leasing laws. This will result in more efficient and effective Forest Service administration of such NFS lands (and waters) in accord with applicable Federal law. 8. EXTENT OF WITHDRAWAL AND SEGREGATION The Forest Service requests that the Federal lands within the area identified on the attached map (Appendix B) be withdrawn from disposition under laws relating to mineral and geothermal leasing – including the Mineral Leasing Act of 1920 (30 U.S.C. 181 et seq. as amended), the Mineral Leasing Act for Acquired Lands of 1947 (30 U.S.C. 351 et seq. as amended), Section 402 of the President‘s Reorganization Plan No. 3 of 1946, 16 U.S.C. 520, and 16 U.S.C. 508b - for the maximum period of 20 years authorized by 43 U.S.C. § 1714(c)(1), subject to valid existing rights. The Forest Service also requests that the notice of this withdrawal application published in the Federal Register pursuant to 43 C.F.R. § 2310.3–1(b)(1) provide that the National Forest System lands within the area identified on the attached map (Appendix B) are segregated from the operation of the mineral leasing laws for the maximum period of two years authorized by 43 U.S.C. § 1714(b)(1), subject to valid existing rights. The Forest Service intends that the National Forest System lands within the area identified on the attached map (Appendix B)remain subject to the laws providing for the disposal of mineral materials set forth by 36 C.F.R. Part 228, Subpart C throughout the duration of the segregation and any subsequent withdrawal. 9. ALLOWABLE TEMPORARY USES Statutorily authorized multiple uses of National Forest System lands, i.e., outdoor recreation, range, timber, watershed, and wildlife and fish purposes, along with the Withdrawal Application Page 3 disposal of mineral materials, maybe authorized by Forest Service officers during the requested 2-year segregation period. However, those uses would only be authorized if they would comply with applicable Forest Service regulations, the applicable land use plan, and they would not cause adverse environmental impacts to National Forest System lands (and waters) located in the Rainy River Watershed, the BWCAW, and the MPA comparable to those that could arise from exploration and development of Federallyowned minerals conducted pursuant to the mineral leasing laws. 10. ANALYSIS OF ALTERNATIVES Per 43 C.F.R. § 2310.1-2(b)(10), a withdrawal application should contain ― [a]n analysis and explanation of why neither a right-of-way under section 507 of the Act (43 U.S.C. 1767), nor a cooperative agreement under sections 302(b) (43 U.S.C. 1732(b)) and 307(b) (43 U.S.C. 1737(b)) of the act would adequately provide for the proposed use.‖ However, none of these statutory provisions are relevant to a withdrawal application submitted by the Forest Service for the withdrawal of National Forest System lands. Insofar as 43 U.S.C. §§ 1732(b) and 1737(b), portions of the Federal Land Policy and Management Act of 1976 [FLPMA] , are concerned, those provisions are not applicable because they grant the Secretary of the Interior (43 U.S.C. § 1702(g)) authority to manage the public lands. And for purposes of FLPMA, ― [t]he term ‗public lands‘ means any land and interest in land owned by the United States within the several States and administered by the Secretary of the Interior through the Bureau of Land Management….‖ In contrast, all national forest lands, including the Superior National Forest, are administered by the United States Department of Agriculture, Forest Service as part of the National Forest System (16 U.S.C. § 1609(a)). Indeed, 43 U.S.C. § 1702(k), a portion of the definitional section of FLPMA, explicitly distinguishes ― public lands‖ from ― lands within National Forests.‖ With regard to 43 U.S.C. § 1767(a), another portion of FLPMA, it permits ― the Secretary concerned‖ to utilize the authority granted by other provisions in the subchapter to provide another department or one of that department‘s agencies a right-of-way across land administered by the Secretary concerned. The shorthand formulation ― the Secretary concerned‖ in 43 U.S.C. § 1767(a) clearly refers to both the Secretary of the Interior and the Secretary of Agriculture as evidenced by a prior provision in the same subchapter: 43 U.S.C. § 1761(a). Per 43 U.S.C. § 1761(a), rights-of-way may be issued by ― [t]he Secretary [i.e., the Secretary of the Interior (43 U.S.C. § 1702(g))], with respect to the public lands … as defined in section 1702(e) of this title … and, [by] the Secretary of Agriculture, with respect to lands within the National Forest System….‖ Accordingly, 43 U.S.C. § 1767(a) merely authorizes the Secretary of Agriculture to issue rights-of-way across National Forest System lands to other departments and their agencies. That authority has no bearing with respect to the Forest Service‘s reason for requesting this withdrawal—to protect National Forest System lands (and waters) located in the Rainy River Watershed, the BWCAW, and the MPA from the adverse environmental impacts that would arise from exploration and development of Federally-managed hardrock minerals conducted pursuant to the mineral leasing laws. Withdrawal Application Page 4 FLPMA section 507, 43 U.S.C. § 1767(b), cannot achieve the Forest Service‘s purpose to protect the specified National Forest System lands because it merely prohibits the Secretary of the Interior from terminating or limiting a right-of-way for the benefit of any department or agency of the United States without that entity‘s consent. 11. WITHDRAWAL DURATION The Forest Service requests withdrawal of the Federal lands within the area indicated on the attached map(Appendix B) for the maximum period of 20 years authorized by 43 U.S.C. § 1714(c)(1). A withdrawal for themaximum duration of 20 yearsis warranted because the potential adverse effects from the exploration and development of the fully Federally-managed hardrock minerals in the Rainy River watershed. These potential impactsare a direct result of the location of the minerals with the sulfide-bearing rock present in that area. Thus, the need to protect the National Forest System lands (and waters) located in the Rainy River Watershed, the BWCAW, and the MPA from the adverse environmental impacts arising from exploration and development of Federally-managed hardrock minerals—the purpose of this withdrawal request—remains constant. 12. ALTERNATIVE SITES No additional valuable deposits of Federal hardrock minerals outside the Rainy River watershed have been found or presently are known. Therefore there are no other sites where equivalent hardrock mineral exploration or development could be authorized by the Department of the Interior. 13. WATER REQUIREMENTS No water rights will be needed to fulfill the purpose of this withdrawal request. The unique and irreplaceable resource this withdrawal seeks to protect is the 1.1 million acre Boundary Water Canoe Area Wilderness (BWCAW) located in the northern third of the Superior National Forest in Minnesota, extending nearly 200 miles along the international boundary with Canada. The BWCAW includes nearly 2,000 pristine lakes ranging in size from 10 acres to 10,000 acres, and nearly 1,200 miles of canoe routes. It is the only large-scale protected sub-boreal forest in the lower 48 United States. These healthy forests with extremely high water quality also provide a host of watershed benefits, such a purifying water, sustaining surface water and ground water flow, maintain fish habitats, and stabilizing streambanks. Withdrawal Application Page 5 14. LOCATION OF RECORDS Records related to this application for an extension of the withdrawal may be examined at: Superior National Forest Supervisor‘s Office 8901 Grand Ave Pl Duluth, MN 55808 Withdrawal Application Page 6 SUPPLEMENTAL INFORMATION Appendix A: Legal Description of Superior National Forest Mineral Fee Simple Lands for Withdrawal Application Appendix B: Map of Superior National Forest Withdrawal Application Area Withdrawal Application Page 7 Attachment December 14, 2016 USFS Non-Consent Letter Enclosure 3 United States Forest Washington: Of?ce ZDI Htli Street. SW Department of Service Washington, DC 20250 Agriculture File Code: 2670 Date: DEC 1 It 2015 Neil Kornze Director Bureau of Land Management 1849 C. Street NW. Rm. 5665 Washington. DC 20240 Dear Director Komze: On June 3, 20! 6. the Bureau of Land Management (BLM) requested the Forest Service (PS) provide a decision on whether it consents to renewal of two leases currently held by ?l?win Metals Minnesota (TMM) for lands within the Superior National Forest (SNF) in northern Minnesota. These two Preference Right leases. MN 352 and MNES-O 353. lie directly adjacent to and within three miles of the Boundary Waters Canoe Area Wilderness (BWCAW). respectively. The has considered the environmental conditions, nature and uses of the BWC AW by the public and tribes. economic benefits of mineral development and wilderness recreation, potential environmental consequences of mineral development on the leases. public opinion. rarity of copper-nickel sulfide ore mining in this region. and current laws and policy to inform the agency?s decision. Based on this analysis. 1 find unacceptable the inherent potential risk that development of a regionally-untested copper-nickel sul?de ore mine within the same watershed as the might cause serious and irreplaceable harm to this unique, iconic. and irreplaceable wildemess area. Therefore. the FS does not consent to renewal of Preference Right leases MN 352 and MNES-OIBSS. A summary of the basis for my decision follows. The BWCAW Is an Irreplaceable Resource The million acre the BWCAW is located in the northern third of the SNF in Minnesota. extending nearly 200 miles along the international boundary with Canada. It is the only large- scale protected sub-boreal forest in the lower 48 United States. The SNF holds 20 percent ol'thc National Forest System's fresh water supply. These healthy forests with extremely high water quality also provide a host of watershed benefits, such as purifying water, sustaining surface water and ground water ?ow, maintaining fish habitats. controlling erosion. and stabilizing streambanks. In addition to the existing high quality of the waters. the dramatic hydrogeology and interconnectedness of BW forests. lakes. streams. and wetlands make the region unique and susceptible to degradation. The BWCAW includes nearly 2,000 pristine lakes ranging in size from 10 acres to 10.000 acres. and more than 1,200 miles ofcanoe routes. With Voyageurs National Park and Quetico Provincial Park, BW AW is part of an international network of conserved land and wilderness. Quetico Provincial Park, located in Ontario, Canada. Caring for the Land and Serving People mm or. ?meant-m Enclosure 3 Neil Kornze lies within the same Rainy River watershed as the BWCAW. Quetico Provincial Park is an iconic wilderness class park, world renowned as a destination for backcountry eanocing with over 2,000 lakes and over one million acres of remote water-(based wilderness. Together, Quetico and BWCAW ?Form a core wilderness area of over tqu million acres. - Located northwest of the BWCAW, Voyageurs NatiOnal Park 1has established by Congress in 1971 to preserve and interpret fur trade history and the importance of canoe travel routes in northern Minnesota. The park is at the southern edge of the boreal forest, and lies within the same Rainy River watershed as the lt teatures spectacular canoeing and boating routes along with hiking trails exploring portage routes used by American Indians, early for traders, and gold miners; Approximately 240.000 people visit Voyageurs National Park every year. Just sooth of the BWCAW the Laurentian Divide separates three river systems: one allowing north to Hudson Bay; the Laurentian system ?owing eastward towards the Atlantic through the Great Lakes} and the Mississippi system, flowing south to the Gull?of Mexico. 'l?MM?s two leases subject to F5 decision are located in the Rainy River Watershed, which drains into the BWCAW, Quetico Provincial Park. and Voyageurs National Park. There are four HUC (liydrologic Unit Code) -1 t) sub-watersheds in the area of the leases and potential project site?? Birch Lake. Stony River. Isabella River and Kawishiwi River. Surface water flows north and west from Birch Lake and the Kawishiwi River watershed tlnough Kawishiwi River and several lakes into BWCAW. Water from the Stony River and the lsahella River watersheds ?ows into the Birch Lake watershed. The Natural Environment The SNF provides abundant and diverse habitat for thousands ol?breeding, wintering, and migratory species of terrestrial and aquatic wildlife, including over 100 species of migratory breeding birds in a zone with North America?s greatest diversity of songbirds and lt?orest- dependent The SNF also has one ofthe largest populations of gray wolves outside of Alaska. common icons. and moose. It has popular game Specie-s such as wall-eye, trout, deer. ruffed grouse, fisher, and beaver; and numerous rare species such as great gray ow], black- baeked woodpecker. tom?s-head ladyslippcr and other orchids, and lake sturgeon. The SNF also has a great diversity and abundance of species common to the boreal forest bionic. including three?toed woodpecker, horea] owl, boreal Chickadeea lynx, moose, and grizzled skipper butterle All these species provide a wide array of crucial ecological. social and economic bene?ts and uses From big game hunting and ?shing to wildlife watching and research. The BWCAW is also home to three threatened or endangered species: Canada lynx. northern long-cared bat. and gray wolf. Over the decades the BWCAW has been protected, it has provided reliugia for species under stress or with declining populations! such as moose. in the face of? climate change, the may be critical to the continued existence of these species within Minnesota. - Cultural Resources and Treaty Rights Associated with the BWCAW The BWCAW region has been home to Native Americans for millennia. The Minnesota Chippewa Tribe and three associated Bands the Grand Portage Band. the Fond du Lac Band, Enclosure 3 L2.) Neil Kornze and the Bois Forte Band retain hunting. ?shing. and other usuli'uctuary rights throughout the entire northeast portion of the State of Minnesota under the 1854 reaty ot?LaPointe. In the Coded Territory all Bands have a legal interest in protecting natural resources, and the FS shares in federal trust responsibility to maintain treaty resources. Man}! resident Ojihwc, who ceded lands that became the BWCAW. continue to visit ancestral sites and traditional gathering and ?shing locations within the wilderness. 'I?rihcs rely on natural resources like ?sh. wildlife and wild plants such as wild rice for subsistence and to support them spiritually, culturally. medicinally, and economically. The northern border of the BWCAW is situated along a winding. 120-mile canoe route known locally as the Border Route, or Voyageurs l~lighwa3n This historic canoe route. bordered on the north by Ontario?s Quetico Provincial Park, on the east by Grand Portage National Monument, and on the west by Voyageurs National Park, was utilized extensively by pre~contact Native Americans. European rm traders. and tribal groups such as the Dakota. Cree. and Ojibwe. There are approximately 1,500 cultural resource sites identified on National Forest System S) lands within the BWCAW. Many more cultural resources are believed to exist within the wilderness; as 0172015 only about 3 percent ol? the landscape has been intensively surveyed. Cultural resource sites include historic Ojibwa village sites. French and British period for trade sites dating from l730~1830, Woodland period village sites {1000-500 years old) situated on. wild rice lakes- Native American pictograph panel sites, Archaic period (8,000~3,000 years old) sites with copper tools. and large Paleoindian quarry sites such as those recently discovered on Knife Lake where Native Americans shaped stone tools up to 10,000 years ago. Wilderness Designation The irreplaceable natural qualities of the were recognized nearly a century ago in 1926 when the Department of Agriculture ?rst set aside the area to preserve its primitive character. The Wilderness Act ot?1964 of?cially designated land inside today?s BWCAW as part of the National Wilderness Preservation System. The Boundary Waters Canoe Area Wilderness Act of 1978 expanded the wilderness area to 13090000 acres. The 1978 Act also established a separate Boundary Waters Canoe Area Mining Protection Area. (MFA) to protect existing natural values and high standards of environmental quality from the adverse impacts associated with mineral development. Sec. 9, Pub. L. 95-495., 92 Stat. 1649, 1655 (1978). Congress provided very clear direction regarding the purposes ol?thc 13W CAW and MFA: provide For the protection and management of the ?sh and wildlife of the wilderness so as to enhance public enjoyment and appreciation ol?the unique biotic resources of the region, (2) protect and enhance the natural values and environmental totalityr of the lakes; streams. shorelines and associated forest areas of the wilderness. (3) maintain high water quality in such areas, (4) minimize to the maximum extent possible. the environmental impacts associated with mineral development affecting such areas. . .. Sec. 2. Pub. L. 95-495, 92. Stat. .1649 (1978'). Enclosure 3 Neii Kornze 4 The BWCAW Act bans authorization of federal mineral development within the B-WCAW and MFA. However. the BWCAW Act does not govern federal mineral development on other NFS lands. Instead, the authorities governing federal mineral development on SNP lands outside the and MPA are 16 .S.C. 508b and Section 402, of Reorganization Pian No. 3 ot?1946, 60 Stat. 1097, 1099?1 100. A decision withholding FS consent to the lease renewals is fatty consistent with this statutory ti'anieworlt. World Renowned Research laboratory Because ot?its unique quality and character, the BWCAW is a living laboratory supporting dozens of research projects each year. Scientists of all diseiptincs rely on scarce areas like the BWCAW to support scienti?c inquiry and serve as control areas in the study of water quality, climate change effects, and naturai ecological processes. The BWCAW is internationally known as a laboratory for ground?breaking research on forest fires, landscape patterns, biodiversity, wildlife, soils, nutrient cycles. other ecosystem processes, lakes, climate change, and recreational use .ot?wilderness. This body ofwork is widely cited by scientists around the world. As an exampie, Miron work on forest ?res in published during the 1970s- 19905, has been cited in more than 1,700 published studies. More recent BW?CAW-t?elated studies by Frelich and Reich have already been cited in 1,300 studies in 70 peer-reviewed science journals published in 20 countries on 4 continents. New results ticm BWCAW research are regularly presented at prestigious international meetings on scienti?c study. Recreation Values of the BWCAW The BWCAW is one of the most visited areas in the entire National Wilderness Preservation System, and the Systems oniy large lake-land wiiderness. It provides-an experience unique within the continental United States. The thousands of lakes and hundreds of miles of streams comprise about 190,000 acres (20 percent) of the surface area and provide for long distance travel by watercraft. The opportunity to pursue and experience expansive solitude, challenge and personal immersion in nature are integral to the BWCAW experience. Winter BWCAW visitors enjoy opportunities for skiing, dog-sledding, camping and ice ?shing. Fishing is one ot?thc most popular BWCAW activities throughout the year due to the range of species found in its waters, including smallmouth bass, northern pike, walleye, and lake trout. Social and Economic Environment leases are. located near Ely, in St. Louis and Lake Counties. The population of St. Louis County is concentrated in and around the City of Duluth, approximately 100 miles south of the lease area. The iron Range communities of Ely, Hibbing, and Virginia are smaller secondary population centers. The 20! Census shows area population has declined by heart): 10 percent since 1980, while Minnesota's population as a whole has increased by more than 30 percent. At least some of this population decline may be attributable to a loss oliiron industry jobs. he Fond du Lac, Grand Portage. and Bois Forte reservations are exceptions to the regional trend - populations there have increased since l990. The median income of area communities is signi?cantly lower than that of the State as a whole. It is also the case that the median income of the area?s accendary population centers is generally Enclosure 3 Neil Kornze lower than that of St. Louis County as a whole. In some of these communities, such as ly and lower. the median household income is more than half ot?thc state median. 111 many individual communities, poverty rates are as high as or higher than statewide (with the exceptions of the secondary population centers of Hoyt Lakes, Soudan, and Tower). Mining employment in St- Louis County declined from more than 12.000 jobs in 1980 to approximately 3,000 jobs in 2009. However, since mining employment can vary greatly "from one year to the next. this decline does not represent a steady reduction. employment is volatile and ?uctuates due to changes in the market price ot?commodities being extracted. During the same time period, set-vicenrelatcd employment (which includes the North American industry Classi?cation System. categories for professional services, management, health care, education, arts/entertainment, and accommodation/loud) in the study area has increased substantially, mirroring broader state and. national trends. Tourism is rooted in the region?s unique recreation. opportunities such as the and is broadly dependent on hunting, ?sh-inn. boating- sightseeing. and wilderness experiences provided by the region?s high-quality natural environment. Industries associated with tourism (arts, entertainment, recreation. accommodation. and food services) account for nearly 13 percent of all employment in St. Louis County- The landscape and recreational opportunities attracts retirees and new residents. Fishing in Minnesota lakes and rivers generates $2.8 billion in direct annual expenditures and contributes more than $640 million a year in tax revenues to the treasuries of the 'state and federal governments. The BWCAW itself has provided millions of visitors with a unique water? based recreation experience and provided an economic driver to local and the state of? Minnesota. Leases 352 and are surrounded by 29 resorts. outfitters, campgrounds and hundreds of homes and cabins. Similarly. Voyageurs National Park and Quetico Provincial Park both support vibrant tourism industries In 2015, 150,000 people visited the BWCAW. Economic benefits generated from recreation in the BWCAW average approximately $44.5 million annually. Continued economic returns rely on sustaining natural resource quality and wilderness character. The Role with Respect to I-lardroek Mineral Leases two leases include a mixture of NF lands reserved from the public domain and acquired NFS lands, with the vast majority being reserved lands. to U-S.C. 5% 508b applies to reserved NFS lands and provides in pertinent part: "the Secretary of the interior is authorized to permit the prospecting for and the development and utilization of [hard rock] mineral resources: provided. that the development and utilization of such mineral deposits shall not be permitted by the Secretary of the Interior except with the consent of the Secretary of Agriculture.? Section 40?. of Reorganization Plan No. 3 of?1946, 60 Stat. l0?97. 1099. applies to acquired NFS lands and provides in pertinent part: Enclosure 3 Neil Korn'ze 7 6 "The '?mctions or" the Secretary of Agriculture and the Department of Agriculture with respect to the uses of mineral dcpoSits in certain lands pursuant to 16 [1.3.0 520 are hereby transferred to the Secretary ot? the interior and shall he performed by him or by such of?cers and agencies ot?thc Department of the interior as he may designate: Provided, That mineral development on [lands acquired pursuant to the Weeks Act] shall be authorized by the Secretary of the Interior only when he is ad vised by the Secretary of Agriculture that such development will not interfere with the primary purposes for which the land was acquired and only in accordance with such conditions as may be speci?ed by the Secretary of Agriculture in order to protect such purposes." In pertinent part. 16 U.S.C. 52G provides: The Secretary ol?Agriculture is authorized, under general regulations to be prescribed by him, to permit the prospecting, developman and utilization of the mineral resources of the lands acquired under the Act ofMar-ch ?rst, nineteen hundred and eleven, known as the Weeks law, upon such terms and for speci?ed periods or otherwise, as he may deem to be liar the best interests of the United States. . .. Under the Weeks Act, 16 5159 the Secretary ongriculturc is authorized to purchase lands for the purposes of ?the regulation ofthe flow of navigable streams or the production of timber." The Department of the interior adopted regulations providing for disposal of mineral resources pursuant to 16 U.S.C. 50813 and Section 402 of Reorganization Plan No. 3 011946. 61} State 1097? 1099, by means of a leasing system governed by 43 part 3500. 43 CPR. (3) The Department ot?the interior?s reputations provide that issuance of leases for hard rock minerals, including deposits of copper, nickel and associated minerals, on lands administered by another scrfacc managing agency is ?[s]ubject to the consent ot?the surface managing agency,? 4.3 CFR. 3503.13(a} which in the case ot?NF lands is the United States Department of Agriculture, Forest Service. 16 1609(a). Speci?cally, 43 CPR. 3503.13fa) relates to lands acquired under the Weeks Act while 43 OER. 3503.13tc) relates to the reserved lands. On March 8, 2016, Department of interior Solicitor Hilary Tompkins issued. memorandum 37036 (M~Opinion) in response to a ELM request asking ?whether it has the discretion to grant or deny Twin Metals Minnesota?s pending application for renewal of two hardrock preference right leases in northern innesota.? The M-Opinion advises the BLM determining that, "Neither ofthe statutory authorities under which and are issued-"section 402 of Reorganization Plan No. 3 of 1946? 60 Stat. 11197, 1099-1 100, and 161.130 508b? creates an entitlement to a lease or otherwise mandates the issuance of leases? and ?No the contrary, both authorities expressly condition leasing on surface owner consent (in this instance the Forest Service) and thus are discretionary." on lune 3, 2016, the BLM advised the Forest Service: ?{iln light of the legal determination that the government has discretion in granting or denying the TMM lease renewal application, in accordance with 43 CFR 3503.20, 16 U.S.C. 508b, Section 402 ot?Reorganization Plan No. 3 of 1946, 6G Stat, 1139?, 1099; and 16 USC 520i the Enclosure 3 Neil Kornzc i? BLM requests that the USDA Forest Service provider in Writing. a decision on whether it consents or does not consent to the renewal of the leases." lrrespectivc ot?the M-Opinion, the consent to any hardroclt lease renewal is mandated by 16 .S.C. 5031) and Section 402 of Reorganization Plan No. 3 ol?1946, 60 Stat. 1097? 1099- Pursuant to 16 U.S.C. 5, 508b, the Secretary oi?Agriculture's right to consent to "the development and utilization of [hardrock] mineral resources" is coextensive with the Secretary ofthe authority to permit ?the development and utilization of [hardrock] mineral resources.? The fact that the Secretary of the Interior has implemented the authority to U.S.C- 50813 confers to permit ?the development and utilization ol?fhardrock] mineral resources? by means ol?a regulatory scheme containing a number ol?decisiou points simply means that the Secretary of Agriculture?s statutory consent authority with respect to hat-drool; mineral development and utilization authority expressed in terms identical to the Department of Interior's authority similarly extends to the same. universe ofdccision points providing those decisions have the potentialsto affect NFS surface resources, Whereas pursuant to Section 402 of Reorganization Plan No. 3 of l946, 60 Stat. 1097, i099, the Secretary of the Interior?s authority per '16 USE. 520 "to permit the develOpment oi" the [hardrock] mineral resources of the lands acquired under the Weeks lawn is contingent upon the Secretary of Agriculture's determination that "such development will not interfere with the primary purposes for which the land was It is well established that mineral "development" is authorized by a leasea whether it is one issued in the ?rst instance or a subsequent renewal. Indeed, the Mw0pinion explicitly recognizes that "the entire purpose" ol?a mineral lease is "for the lessee to develop the minerals. . . Another M-Opinion ?nds that since the 1970s hardroci: prospecting permits for NFS lands, which are the precursor for the issuance ofhardrock mineral leases including MNES-OI352 and WES-01353, have unil?onnly included the condition that ?no mineral development ol" any type is authorized hereby." Nil?36993, Options Regarding Applications for Hardrock Mineral Prospecting Perm-its on Acquired lands Near a Unit ofthc National Park System (1998 3515279? (April 16, 19-98)). Antlers-art Coalition/or rhe environment. -124 131A 211, 217 (1992) ("mineral development may only be authorized upon issuance ot?a [hardrock] lease}: John A. Nefertiti}! (forum (form Youth Association. 80 115?th 14, 26 (1984) (concurring Opinion) (development under a hardroek lease "is a logically foreseen result ot?suce-essl?ul prospecting"). So again, the fact that the Secretary of the interior has implemented the authority Section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099, confers to permit the development ofhardrock mineral resources on lands acquired pursuant to the Weeks Act by means of a regulatory scheme containing a number of decision points simply means that the Secretary of Agriculture?s consent authority with respect to hardrock mineral development authority expressed in tenns identical to lnterior?s authority similarly extends to the same universe ot?decision points providing those decisions have the potential to alleet NFS surface resources. Ofcourse, under Section 402 of Reorganization Plan No. 3 of ?9465 60 Stat. 1097? 1099, the Secretary of Agriculture cannot block mineral development absent a tindin that ?such development will interfere with the primary purposes for which the land was Herc? since the small percentage of acquired lands subject to two leases were purchased in accordance with the Weeks Act, those primary purposes were "the regulation of the flow of navigable streams or the production oftimber.? As discussed below, 'l?Ml'vl hopes to construct Enclosure 3 Neil Kornze 3 and operate an underground mine on its two leases not a strip mine. At this juncture the FS consequently cannot definitively say that the mineral development which TMM hopes to conduct on its leases will interfere with those purposes. Uncertainty about this question is of little import, however, since the lands subject to leases are an admixture of lands reserved train the public domain and acquired lands with the reserved lands being in excess of90% ol?the acreage included in both leases. Further, there is no reason to believe that mineral development exclusively could be confined to the acquired lands. The FS's conclusion that the agency should exercise the absolute discretion that 16 .S.C. .508b confers upon it to withhold consent to the renewal ofTMM?s leases insofar as the reserved lands are concerned accordingly has preclusive effect with respect to the lands acquired pursuant to the Weeks Act- The Role of Forest Plans The PS develops land and resource management plans to provide a homework that protects renewable surface resources. This framework balances both economic and environmental considerations to provide for multiple uses and sustained yield renewable surface resources. he 2004 SNF Plan at states: "Exploration and development of mineral and mineral. material resources is allowed on land. except for federally owned minerals in designated wilderness and the Mining Protection Area.? The Plan also provides that the FS will tonnage the BWCAW in a manner that perpetuates and protects its unique natural ecosystems. provides an enduring wilderness resource for linen: generations, and provides opportunities For a primitive and uncoofincd recreation experience. Although forest plans provide a framework, they do "not authorize projects or activities or commit the Forest Service to take action" (36 ERR. Instead lot-est plans provide broad management guidance and ensure all program elements and legal requirements are considered prior to critical project level decisions, such as a decision to authorize timber harvesting, grazing, or mining operations. As the Supreme Court has determined, forest plans: . .do not command anyone to do anything or to refrain from doing anything; the}! do not grant. withhold. or modify any tormal legal license. power. or authority; the}! do not subject anyone to any civil or criminal liability; they create no legal rights or obligations. Thus. for example, the Plan does not give anyone a legal right to cut trees; nor does it abolish anyone's legal authorin to object to trees being cut. Ohio Fare-soyAss r. Sierra Club. 523 US. 726. 733 (1998)." Following Forest Plan approrah proposals are evaluated" on a case-by-case basis. Proposals inconsistent with Plan direction may not be authorized (16 U.S.C. ?1604(i)). However; a proposal mi reveal the need to amend plan direction that would otherwise stand as an impediment to a proposal. Yet a proposal?s consistency with applicable Plan standards and guidelines is not an assurance that the proposal will be authorized. The PS retains discretionary judgment conceming overall multiple use. sustain-ed yield management lands. Further, denial of'a proposal consistent with applicable Plan standards and guidelines does not require alteration of the applicable direction. Enclosure 3 Neil Kornze 9 The SNF Plan does not prohibit mineral development within the management area where leases are located. But the FS is not bound to approve application for renewal of its leases either. Neither the statute nor regulations governing forest plans mandate the approval of proposals consistent with a Fet?est plan. Moreover, as discussed above. pursuant to the express terms of 16 and Section 402?. of Reorganization Plan No. 3 of 19463 60 Stat. 1097. . 1099, the FS retains discretion to withhold consent to ?l?llels lease renewals given the leases' purpose is mineral development, as recognized by the hit-Opinion. Speci?cally, the FS denial of consent to TMM's lease renewals is warranted for the reasons set out in the lVI-Opinion and also because the bar in both 16 U.S-C. 50% and Section 402 of Reorganization Plan No. 3 of l946, 60 Stat. 1097, 1099. against mineral development absent the consent ot?the Secretary of Agriculture applies with equal force to the initial issuance of the lease and any renewal ofthat lease. Accordingly. the FS may consider any potential negative environmental impacts that might ?ow from mineral development on those leases and their effect on future national forest conditions. National Environmental Policy Act (NEPA) Applicability NEPA ensures lcderal agencies take into account signi?cant environmental matters in their decision making. and that they disclose to the public that the agency has considered environmental concerns. An environmental impact statement (HIS) must be prepared when an agency proposes to undertake a major federal action that may signi?cantly ai?thct the quality of the human environment. in summary. NEPA tasks agencies to assess changes in the physical environment caused by the action it proposes to authorize. Council on Environmental Quality regulations implementing NEPA are clear that a pt?oposai ?exists at that stage in the oi?an action when an agency subject to the Ant 1 has a goal'and is actively preparing to make a decision on one or more alternative means of accomplishing that goal and the effects can be meaningfully evaluated.? 40 .F .R. 1508.23. This provision is reinforced by instruction that major federal actions ?includes actions with effects. 40 C.F.R. 1598.18. FS NEPA regulations establish a four part test for determining when NEPAL obligations arise. including whether Forest Service has a goal and is activer preparing to make a decision on one or more alternative means of accomplishing that goal and the eft?ects can he meaningfully evaluated. . . 36 ERR. Thus, when the FS declines to authorize a private application, the more contemplation of that application does not constitute a federal proposal and the FS is not required to conduct an environmental analysis under NEPA. As it .is my determination not to consent to issuance of lease renewals based on the application before the agency at this time. preparation of an environmental analysis is not required. As further explained below, no signi?cant environmental effects will occur as a result of the agency's :no?consent dctennination. This outcome is entirely in keeping with and its implementing regulations. Situations like this pose the unusual question of whether NEPA requires consideration of environmental effects of federal actions that foreclose development or use of natural resources. NEPA does not require- a federal agency to consider effects arising liom an action it has declined to allow third parties to undertake when that does not represent change in the physical environment caused by the federal Enclosure 3 Ncii Kor?rtze 0 action itself. in other words, only federal actions with signi?cant environmental effects trigger detailed statement requirement. Actions which do nothing to alter the natural physical environment and maintain the environmental status quo are not subject to NEPA. The FS routinely presereens non-mineral. Special use authorization appiications and agency regulations direct that nonconforming uses do not need to receive further evaluation and processing. See 36 CPR. 251.5402) (2). The F8 does not have regulations governing consideration oi'discretionary mineral leasing applications. but agency practice is consistent. As recently as 201-4. Regional Forester Atkinson rejected a request for consent to a prospecting permit on the Hiawatha National Forest without preparing a NEPA document. Diverting scarce budgetary resources to prepare NEPA documents for proposals that will not move forward trivializes NEPA and diminishes its utility in providing useful environmental analysis for actions that the agency accepts and actively evaluates for approval. In these circumstances, the Court of Appeals" Eighth Circuit holding that at PS decision to refrain from using herbicides as a method of vegetation control is not a ?proposal or action to which NEPA can apply? pertains. Pesticide Infra-oratirm and fitted. ?re. it Esp}: 29 F.3d 4423;, 443 (3th Cir. W94). NFS Land Management Perspectives Hallela century has passed since ?l'MM?s leases were issued in 1966. The original leases were issued prior to statutes such as the National Historic Preservation Act of 1966. National Environmental Policy Act oi?1969, Clean Water Act of 1972. Endangered Species Act of I973, Nation-oi Forest Management Act of 1976. and Boundary Waters Canoe Area Wilderness Act of 1978. Without these laws in place the environmental consequences of potential ?commercial development [of the nickel and copper deposit] by a large-scale mining operation? originally envisioned by BLM in 1956 on what are now leases received markedly less consideration in comparison with current requirements. Given changes in policy and information availability, it is not unreasonable to anticipate a higher level of interest and concern regarding these consequences than when leases were originally issued. as demonstrated in the examples to follow. in 1991 the Minnesota Department ol?Na-tural Resources recognized the value of the for its scenic beauty and solitude by establishing a State Mineral Management Corridor. in light of surface water ?ow and recreational uses. no surface disturbance or state ieases may he offered in the Corridor. The State Mineral Management Corridor overlaps with federal lease MNES- 1353. The federal relationship with Native American tribes has also evolved signi?cantly over the 50 years since the TMM leases were issued. The F3 has a legal obligation to acknowledge rights of Tribes and tribal members. including off~resctvation rights to hunt. can gather and continue cultural and spiritual practices. Such recognition did not occur until the late 19705 when Indians began to assert their rights to oftlreservation resources in federal court. including those rights to fish and gather wild rice. (195g: Lac Comte Oret'?es Bond afloat) Superior Chippeu-rr Indians v. State ofll?u 653 F. Supp. i420 (WD. Wis. '1 987) Lac Courts {)reifes? Bond of?ine Enclosure 3 Neil Romeo 1 Superior C?hippeu-?rt tedious a. Store oft-Visa. 668 F. Supp. 1233 (WD. is. 198?) (LCD WI). No documentation suggests that consultation occurred or treaty rights were considered in the 1966 decision to grant the two leases. Finally, since the last renewal ot?TMM?s leases in 20-04. we have gained experience with copper sul?de ore mining in different parts of the country. it is clear that these types of mines pose substantial risk of failure and environmental mitigation and remediation technologies are limited. and often ineffective. as discussed later in this letter. Awareness of the effects of mining, speci?cally those from copper-nickel mining. has increased since 2004. While economic values are important to area communities and the nation, preserving Wilderness Areas and their associated qualities also have natimtal and local support and precedent. Evaluation of the Present Lease Application In light of the 'M-Opinion?s legal conclusion that TMM does not have the right to automatic renewal of its leases and 353. on March 8. 2016 the BLM noti?ed TMM that the agency would review the company?s lease react-val application using the same criteria that are employed in deciding whether to grant initial ha.rdrock mineral leases. The letter also speci?ed that as part of its consideration ol?TMM's lease renewal application. the BLM would ask the FS whether it consents to the leases renewal. In response to the June 3, 2016 letter making that request of the the agency hogan considering whether to consent to the renewal of leases based upon the agency?s recognition that it has full discretion to consent or withhold consent to the renewal of two leases. As noted above. CEQ and t3 NtiiPA regulations make clear that an application must be accepted by the agency as a proposal be?tre NEPA obligations are triggered. At this time, the will not consent to lease renewal based on the submitted application and therefore does not have a goal that it is actively pursuing to authorize such activities. For this reason, no NEPA analysis is required. Acid Mine Drainage Bedrock geochemistry in northeastern Minnesota plays a large role in the low buffering capacity of the lakes and streams in the region. Both the Minnesota Pollution Control Agency and the Environmental Protection Agency (EPA) have identi?ed the surface waters of northeastern Minnesota as sensitive to changes in pH, acid deposition. and acid runoff. Unlike surface waters hounded by carbonate bedrock? or relatively thick carbonate rich glacial till where neutralization of acid runoff occurs through dissolution ot'limestone and cxsolution ot?carbon dioxide from water, the waters of northeastern Minnesota are largely underlain by igneous and metamorphic bedrock with thin overlying soils and surficial deposits with little acid neutralization capacity. A risk el?tnining development is acid mine drainage (AMD). AMD generally occurs when sul?de minerals present in one bodies and rock overburden are exposed to air and water. 'lhe exposure to air (oxidation) and water (hydrolysis) creates sulfuric acid, which subsequently increases water pit and leeches harmful metals such as copper, zinc, lead, cadmium, iron and nickel. FS data indicates between 20,000 and 50,000 mines currently generate acid on lands managed by the agency. Negative impacts from these mines affect 8.000 to l6,000 km of Enclosure 3 Neil Kornze streams. While AMD can originate naturally from the ore body itsell: its likelihood is dramatically increased by the generation ol?an}: mining product (stockpiles. overburden. and tailings) exposed to air and water. and can continue for decades- llardrock mines in sulfide bearing mineralization are known worldwide for producing AMI) that requires continuous management and perpetual water treatment. Production is prevalent in all mining operation elements: construction, waste nick, tailings, and mine structures such as pits and underground workings. Acid drainage is one ol? the most significant potential environmental impacts at hardka mine sites. Water from a mine site could potentially enter sir-suns and lakes through wastewater treatment plant discharges. runoff and leakage, concentrate spills. pipeline spills. truck accidents, spillway releases, tailings dam failures, tit-tater collection and treatment operation failures, and post-closure failures. All carry some risk to the environment. The magnitude and setting ofa failure would drive the signi?cance of the environmental risk and its potential impact. The AMD increases lake and stream acidity, with potential risks to aquatic life including sport ?sheries, A decline in water quality and aquatic species would have a negative ell?eet on recreational visitors to the BWCAW. For example, the USGS estimated that in 2010 approximately 31100 miles of streams degraded by acid mine drainage led to approximately $67 million in lost sport fishing revenue each year. Mining accidents are inherently unpredictable and can result from geotechnical failures or human error. Other circumstances that can at?leact the likelihood of mining failures or discharges include changing metals markets, financial crises. political events, and climate change. in addition. climatic trends affecting the frequency and magnitude of" storm events and seasonal temperatures could lead to unpredicted environmental changes in vegetative composition. water quality and quantity. and wildlife habitat making the environment more susceptible to damage resulting from mining operations. There is a direct ?ow of water from the lands subject to [crises to the BWCAW. Speci?cally. the leases are located within the South Kawishiwi River Watershed and the Birch Lake Watershed which both are catchments of the Rain}r River Watershed. Water ?ows from the lands embraced by the northern lease into the South Kawisliiwl River which in turn ?ows into Birch Lake. Water from the lands embraced by the southern lease also flows into Birch Lake and Birch Lake empties into the main Kawishiwi River and then into the leases overlay the Duluth Complex known for nickel-copper?platinum group elemcnt ore deposits. Due to the inherent sulfide chemistry of this ore type. mining facilities and byproducts can produce signi?cant amounts of acid. Consistent with the footprint and infrastructure of similar mines. as well as publically available preliminary from TMM about this speci?c site. potential project area could include underground minets) producing mainly copper and nickel. plus smaller amounts of other metals. project would require a concentrator thcility (potentially 1-2 miles west ofthc a tailing storage ,theility (potentially 13- miles southwest ot?concentrator). and connecting utility corridors. The utility corridors would include roads. rail lines, power transmission lines, natural gas pipelines, tailing - Enclosure 3 Neil Kornze and concentrate pipelines. and water pipelines. Pro-Feasibility Study also reveals that its project would involve four delineated ore bodies Maturi, Maturi Southwest, Birch and Spruce Road ail of which are nerd: and east ofthe I..aurentian Divide and thus in the watershed draining towards BWCAW. mining operations are expected to dispose of some waste rock and tailings underground. Other waste rock and tailings mould be disposed of using surface facilities. All of the waste rock and tailings derived from the sul?de ore bodies on the leases wouid have a high likelihood of oxidizing and becoming sources of AMI). Technical Report on Pro-?Feasibility Study shows that subsurface mining operations would occur north of the Divide and present contamination risks. That is also true ofTM M?s ore processing concentrator facilities. But Technical Report on Pie-Feasibility Study shows that ?i?MM's disposal facilities potentially'wouid be south of Laurentian Divide in the Superior Watershed. which drains away from the BWCAW. There are limitations in understanding the Full contours of the mineral operations that ultimately might occur on ?I?Mhrt?s leases, including the location of important features such as its tailings disposal facilities. The professibilit}? study is an economic feasibility anaiysis, not 'thth?s final proposal to mine the hardrock mineral deposits. But pursuant to the terms ot?hoth 16 .SC. 50% and Section 402 of Reorganization Plan No. 3 of 1946. 60 Stat. 1097. 1099?1 100. the consent is required for hardrock mineral development and the purpose of any lease. whether it is one issued in the ?rst instance or a subsequent renewal, is mineral development. indeed, the M- Opinion explicitly recognizes that "the entire purpose" ot?a mineral lease is "for the lessee to develop the minerals. Another ltd-Opinion reports that since the 19705 hardrock proSpecting permits for NF lands, which are the precursor for the issuance of Preference Right hardrock mineral teases inciuding and have been issued subject to the condition that "no mineral development ofany type is authorized hereby." ltd-36993, Options Regarding Applications For Hardroclt Mineral Permits on Acquired Lands Near A Unit National Park System (1998 WL 3515279? (April 16, 1998)). See atrojohuA. Nefertiti (Tamra Costa Youth Association. 80 IBLA 14. 26 U984) {concurring opinion) (development under a preference right lease ?is a, logicain foreseen reatilt ot'successful prospecting?). Another factor relevant to assessing the likelihood develops a mine on the lands subject to the two leases it seeks to renew is that the waters in the Rainy River watershed ?ow largely through bedrock fractures with limited carbonate rock surface area. Therefore the watershed has low capacity to buffer AMI). In sum, given the hydrology and hydrogeology of this area. the likelihood of these ore bodies being. exposed to water is very high, and given these particular ore bodies? composition. resulting drainage from the mine workings and mining wastes are likely to be highly acidic. Lessons from Similar Copper Sul?de Mines Contamination from mining operations can also occur instantaneously via catastrophic failure of the type that occurred in 2014 at the Mount. Pulley Mine in British Columbia, Canada and at . other copper mines. A review of quality impacts from 14 operating US. copper sul?de Enclosure 3 Neil Kornzc i4 mines toned: 180% ofthe mines experienced pipeline spills or accidental releases; 13 of 14 minesi water collection and treatment systems failed to control contaminated mine seepage resulting in signi?cant water quality impacts: tailings spills occurred at 9 operations; and a partial failure oftailing impoundments occurred at 4 mines. The inherent risks of mining hardrock mineral deposits on the lands leased to TMM set a high bar for potential mineral development within this watershed due to potentially severe consequences for the BWCA resulting from such failures. Because of the hydrology and hydrogeology of this particular area, should contamination occur, it could cover a. very broad region. Recent reviews of similar mining proposals in Minnesota and Alaska highlight inherent risks of metal mining to natural resources, and provide examples of risks associated with long term effectiveness of planned containment strategies. In Minnesota, the Final Environmental impact Statement for nearby Mining Project and Land Exchange recognizes that no matter the depth of analysis and planned containment strategies there remain uncertainties associated with mine development. operation and long?term water and waste rock treatment. Similarly, the EPA, in a l?roposal Determination Pursuant to Section 4040:} of the Clean Water Act for the Pebble Mine in Alaska, warns that, ?There is also real uncertainty as to whether severe accidents or failures, such as a complete wastewater treatment plant failure or a tailings darn failure, could be adequater presented over a management horizon or even in perpetuity, particularly in such a geographically remote area subject to climate extremes. if such events were to occur, they would have prolhuud ecological rami?cations.? While the rami?cations of these risks are possibly greater in the case of the Pebbic Mine, due to its location, the BWCAW shares many similarities in terms ol'hydrogeology, extreme weather and remoteness. Unique Attributes of Copper Sulfide Ore Mining, in the BWCAW Region Many operating copper mines in the United States are situated in the arid southwest or other drier areas ot?the Nation. Northern Minnesota has an established history of tacouitc mining - indeed, the region to the west ol'the lease sites is known as the ?Iron Range.? However, taconite is an domineering, oxide ore, Mining ol? the copper-nickel sulfide ore found on leases is untested in Northern Minnesota. This lack of experience with copper?nickel sulfide ore mines in environments with the complex hydrogeology of northern Minnesota complicates assessment of the consequences ofmining operations on 'l'MM?s leases, which could occur if those leases are renewed. Another variable in assessing the consecutences of these operations is climate change. In Minnesota, mean annual temperatures are expected to continue rising and precipitation is expected to increase, along with the size and magnitude of weather events. An increase in precipitation and water supply in association with signi?cant events could exacerbate the likelihood of AMD and water resource contamination. The projected changes in climate and associated impacts and vulnerabilities would have important implications for economically important timber species, forest dependent wildlife and plants, recreation, and long-range planning. The combined impacts of contaminants from mineral development and climate change could impact the ecosystem resilience of the BWCAW and the Superior National Forest outside of the wilderness. Enclosure 3 Neil Kornzc l5 The NerthMet Mining Project and [.and Exchange, the first copper-nickel mine proposed in Minnesota. has Similar concerns regarding AMD, climate change. and water qualitylhese concerns were addressed in linal EIS through engineering. permitting. and monitoring requirements. Signi?cantly, the NorthMet project is located in an area either previously disturbed andfor surrounded by brown-field taconite open pit mines and waste piles in the Laurentian Watershed. which drains away from the CAW . In contrast. leases are in close proximity to the and within its high quality watershed resource of outstanding value. The inherent and legislated wilderness values and untrammeled qualities of the BWCAW contrast with the extensively disturbed surroundings of NorthMet?s location. Additionally, if there is any potential for NorthMet?s copper-niche! mining project to sill-Eel the BWCAW and MFA. this potential would be far less than that associated with any copper?nickel mining operations TMM might ultimately conduct. if ultimately conducts mining operations on lands subject to its two leases and they result in AMI), metal. leaching. and water contamination, very few of the available containment and remediation strategies would be compatible with maintaining the quality and character. Available containment and remediation strategies such as sediment basins. water diversions, or construction and operation of water treatment plants have the potential to deleteriously affect the BWCAW. Ot?particular concern. given the location ofTMM?s leases. is the effectiveness of available methods to counteract AMD in the ease ol?seepage, spills, or facility failures. Water is the basic transport medium for contaminants. Consequently. all measures aimed at controlling AMI) generation and migration involve controlling water flow. To reduce the generation and release ot?Aile. the in?ltration of meteoric water (rain and snow) can be retarded through the use of sealing layers and the installation of under-drains, respectively. Diversion of contaminated water most conunonly requires installation of or sedimentation ponds. But even with the use of these measures successful long?term isolation of intercepted contaminated groundwater is. at best, very difficult to achieve. Moreover, even if available remediation techniques to handle contaminated water. such as ?ushing. containment and evaporation, discharge through wetlands, neutralization and precipitation, desalination. water treatment plant construction and operation, utilization of ditches or sedimentation ponds, and installation of cut-off walls. trenches or wells, are reflective, very few. if any. of them are compatible with maintaining the quality and character of BWCAW and MPA, as required by the Boundary Water Canoe Area Wilderness Act. Given the leases? proximity to the boundary (adjacent to in one case and less than 3 miles distant in the other) and the direct transport route of surface water from Birch Lake and the Kawishiwi River, it. is reasonable to expect direct effects of any mining operations on those leases to the BWCAW and MFA. I Potential impacts to Water. Fish. and Wildlife As noted above. the potential for environmental harm is inherent to copper-nickel and other sulfide-bearing ore mining operations. This potential exists during all phases of mine development, mineral extraction and processing. and long?term mine closure and remediation. Expected environmental harm could encompass damage to both surface and groundwater resources, including changes in water quantity. duality, and ?ow direction. contamination with acid and leached metals resulting from AMD and railings disposal facility thitures. and more. It Enclosure 3 Neil Kornze l6 is also well established that this emironmental damage can adverser lish populations and aquatic ecosystems directly and by indirect effects on food supplies and habitat. Recognizing this potential harm. the second edition Rainyiake of the Woods State of the. Basin Report (20l 4} recommends scienti?cally examining the effect of new mining proposals on water quality in the Rainy River Watershed. leaseholds lie within the Rainy River?s Birch Lake SubJ?V'atershed (HUC 10) \tv'hich the SNF has identi?ed as a priorin watershed per the Watershed Condition Framework. The Framework is a comprehensive approach for: I) evaluating the condition. of watersheds, 2) strategically implementing integrated restoration, and 3} tracking and monitoring outcome based program accomplishments. According to the Watershed Restoration Action Plan for Birch Lake the watershed is currently function-ting at risk. based on Fair ratings for aquatic biotic condition. water quality condition. aquatic habitat condition. soil condition, and tire cf?l?eetsf?re regime condition. The Action Plan recognizes that further development in the watershed has the potential to move the watershed from its suboptimal level of functioning at risk to the worst level of impaired functioning. As noted pres-riously, the BWCAW and SNF are home to dozens of sensitive species. Three species, the Canada Lynx. gray wolf and northern long?cared bat. are listed as threatened. Crucially, the BWCAW and SNF are considered critical habitat for the threatened Canada Lynx. which requires spruce-?r boreal forest with dense understory. Canada I .3an cover large areas, traveling extensively throughout the year. numniru:r that development and habitat fragmentation can affect the viability populations. The threatened northern longmcarcd bat lives in both Lake and St. Louis County. where leases are located. The northern long-cared bat Spends "its winter hibernating in caves. in summer it roasts in both live and dead trees, as well as caves. Northern long?seared hat populations are under signi?cant stress from White-nose which has caused drastic declines in bat populations across the country. increased impacts to their habitat could exacerbate population decline. The gray wolf population in the western Great Lakes. including the WCAW, was realistcd as threatened in 2014 by the Fish and Wildlife Service. Gray wolves also cover large areas to hunt. so wolf populations can be impacted by development and habitat liagmentation. Other animals bene?t from wolves living in Minnesota as carcasses wolves leave behind feed many other animals. Northern Minnesota is one ofthe [cw places in the continental US. where visitors can see moose. However. the state?s iconic moose population continues to decline decreasing by approximately 60 percent in the last decade, according to Minnesota?s State Department of Natural Resources. Given this population decline. the US. Fish and Wildlife Service initiated a status review for the .3. population of northwestern moose those in Michigan and Minnesota). The status review was initiated as a result ofa positive 90-day finding on a petition to list moose under the Endangered Species Act. FWS determined information in the petition provided substantial scienti?c or commercial information indicating that species listing may be warranted. Enclosure 3' Neil Kornze 17' Moose often gather around ponds. lake shores. bogs and streams where they feed on aquatic vegetation. 'i?hcy are under stress from climatic change, likely due to a greatly increased number of ticks brought about by warmer summers. Therefore they are ever more dependent on the extensive. high quality habitat available in the 13W CAW . Additional development, such as mining activit}r and associated road building. in the vicinity ol? the BWCAW could lead to habitat fragmentation that may further stress the moose population. While contamination ot'B WCAW waters by acid and leached metals could lead to habitat degradation that would also add to the moose population?s stress. The potential impacts of mining activities also could af?t?ect other species dependent upon forested areas through habit-at ii'agntentation. increased dispersal of invasive plant and animal species, and alterations to wildlife migration and residence patterns. Social and Economic Considerations The State ot?Minnesota has primary responsibilin under the Clean Water Act of 19?? to protect the water quality of the BWCAW and identifies the wilderness area as an ?outstanding resource value water? under Minnesota Rules (Minn. R. 70530180). That section also provides that ?[11]o person may cause or allow a new or expanded discharge ol?any sewage, industrial waste, or other waste to waters within the Boundary 1ilr?aters Canoe Area Wildemess.? On March 6. 2016. Minnesota Governor Mark Dayton sent, and publicly released. a letter to TMM stating that he had directed the State?s Department ot'Natural Resources ?not to authorize or enter into any new state access or lease agreements tier mining operations on those state lands? near the BWCAW. The stated he has grave concerns about. the use of state surface lands for mining near the ?lMly concern is for the inherent risks associated with any mining operation in close proximity to the BWCAW and about the State ot?Minnes-ota?s actively promoting advancement ot?such operations by permitting access to state lands." "As you know the is a crown jewel in Minnesota and a national treasure. It is the most visited wilderness in the eastern US, and a magni?cently unique assemblage of forest and waterbodies, an extra-ordinary legacy ot?wildemess adventure, and the home to iconic species like moose and I have an obligation to ensure it is not diminished in any way. Its uniqueness and fragility require that we exercise special care when we evaluate signi?cant land use changes in the area} and i am unwilling to take risks with that Minnesota environmental room." As a partner in managing and conserving natural resources within the State of Minnesota, the PS takes Governor Barton's statements seriously. The F8 shares many of the Governor?s These shared concerns also support the decision to withhold consent to renewal of leases 01352 and The F5 was aware ot?negatirc public sentiment regarding other mineral related projects on nearby SNF lands and many peoples concern about the possible renewal of leases WINES-01352 and 3'53. Consequently, on June 13, 2016 the FS announced it would provide a 30-day public input period commencing lane 20. 2016 and including a listening session on July 13. Enclosure 3 Neil Kornac . 18 201 6 to better understand public vice-*3 about renewal ol'TMM?s two leases. A second listening session on July t9. 2016 was subsequently announced. individuals and organizations expressed passionate views both in support of and opposition to renewing the leases during the input period and listening sessions. In addition. TMM submitted comments for the record during the public input period. Overall the FS received over 30,000 separate communications is response to the listening sessions. In total. this input provided FS decision makers the fullest possible understanding of 1 public views and concerns regarding the preposed lease renewals. Local sentiment is similarly mixed regarding the desirability of TMM developing a mine on the lands subject to its two leases. Northeastern Minnesota has a long history of mining, and much of the local economy along the Iron Range remains dependent on iron mining. Ely. Virginia; and other local communities, have a long-standing social identity associated with mining. During the two listening sessions, elected of?cials. union rt?tpresentatitit-3s= and miners expressed their concerns regarding the future of these communities, mining~associated tax levenues that support schools and local services. and high-payingjobs for future generations. These mining proponents often cited the potential economic bene?ts ot?miniug. should TMM develop a mine on its leases. They also stated that young people and families are leaving the area due to a depressed local economy. Mining proponents also referred to the need for strategic metals for American industry and national defense. including their use in sustainable technologies such as wind turbines and hybrid cars. Those who oppose TMME development ofa mine on the lands subject to its two leases emphasize the copper-nickel mining industry?s history of causing serious environmental hat-mo the potential mine?s proximity to the BWCAW. the interconnected hydrology of the leased lands and the BWCA W. and the probable negative impacts to water quality, quantity and aquatic ecosystems from. any mine TMM establish-es. These mining opponents often stated that mining has created a boom~bust economy that only now has stabilized with the creation of? sustainable recreation-based jobs reliant on an unspoiled environment. They also raised concerns about the probable negative impacts any TMM mine would have on the quality ot?individuals? future recreational experiences in the maintenance oi?thc wilderness character. and preservation ot?thc BWCAW for future generations. In its Technical Report on l?re~Feasibility Study, TMM estimates the company?s initial capital investment for mine construction will be billion while over the projected 30-year life ot'the mine its total capital investment will be $5.41 billion- TMM also estimates the potential economic contributions ol?mining the copper-nickel depOSits underlying its two leases could include the need for close to 12 million labor hours during the estimated three-year mine construction period and approximately 350 full-time jobs when the mine becomes operational. Based on accepted multipliers ol?direct and indirect economic contribution, il?MM?s mining operations predicated upon its two leases might generate approximath 13004.900 additional indirect jobs in the region's economy. Conversely. across the country. counties with designated wilderness areas are associated with - rapid population growth, greater employment, and enhanced personal income growth, relative to Enclosure 3 Neil Kornze l9 counties lacking wilderness areas- This attributable to the increasing mobility of service jobs, and many entrepreneurs? preference to locate their businesses in areas ol?l?ering a high quality of life. Speci?cally. up to l50,000 visitors visit the BWCAW annually. Economic benefits generated by EWCr-?tW-related recreation have been estimated at approximately $44.5 million annually. The wilderness recreation-based tourism and any derivative economic return is dependent upon preserving the BW natural quality and wildemess character. i th passage ot? the Boundary Waters Canoe Area Wilderness Act in 1978. the business model of industries and communities associated with the BWCAW shifted- Timber production was halted. Many resorts located within the wilderness were bought out by the federal government and others received ?nancial assistance to shift to a wilderness based business model. Gateway communities such as Elya Toftc and Grand Marais have also shifted to wilderness based economies? While the transition has been long and often dif?cult these communities are new highly dependent on revenue generated by the for economic sustainability. Potential unlbres-een impacts to natural resources and "water quality within the BWCAW would liker result in substantial economic impacts to established local businesses and communities now dependent upon a wilderness based business model. On April 5. 2015. Congresswoman Brett}r McColltun (D-MN) introduced the National Park and Wilderness Waters Protection Act (HR. 1796}. The Act would withdraw all federal lands in the Rainy River Watershed from the mining laws the mineral leasing laws. and the laws governing the disposal of mineral ittaterials. subject to valid existing rights. The Act also would additional restrictions on the issuance ol?any lease or permit for mineral related activities. In a February 2, 2016., letter to the Secretaries ol?Agricultui-e and the interior and the Director of CEQ. Congresswoman McCollum urged them ?to inunediately take action to protect two of America?s natural treasures - the BWCAW and Voyageurs National Park.? Specifically, Congresswoman McCollum requested the denial of TM "s requested lease renewals and administrative withdrawal of the Rainy River watershed- Former Vice President and fonner Minnesota Senator~~Waltcr Mondale also has advocated that the Department of the Interior deny the renewal ol?TMM?s leases and withdraw all federal minerals in the watershed. On April l. 2016. he wrote that ?Arizona has its Grand Canyon, Wyoming its Yellowstone, Califomia. its Yosemite. These wonder-s come to mind unbidden as images of a place when those states are named. The Boundary Waters is such an image Minnesota.? Vice President Mondale goes on to say: ?Vice President Hubert Humphrey and were deeply committed to protection ofthc Boundary Waters and its precious waters, Although we were mindful of the need the jobs. we knew that it was important to protect the magni?cence of the Boundaryr Waters. The Twin Metals mining proposal lacks this balance. That means that today I join Minnesota?s Gov. Mark Dayton and urge the Federal land management agencies to continue the work of nearly 100 years and to ensure that the Boundary Waters wilderness remains the place it is today." Then in a .luly l, 7016 letter characterizing the as pristine and irreplaceable wilderness, Vice President Mondale warned that the kind of heavy?metal mining that TMM proposes: Enclosure 3 Neil Kornze Ell ?is in a destructive class all its own. Enormous amounts of unusable waste rock containing sul?des are left behind on the surface. A byproduct of this kind of mining is sulfuric acid, which often ?nds its way into nearby waterways. Similar mines around the country have already poisoned lakes and thousands of miles of streams. The consequence of acid mine drainage polluting the pristine Boundary Waters would be catastrophic. it is a risk we simply can?t take." Conclusion The PS understands the important economic and national security benefits provided by mineral extraction and supports mining as a legitimate activity on NF lands. However, mining is not appropriate on all places within the NFS or on every acre lands. When evaluating whether to consent to issuance of an initial lease or the lease?s renewaL the FS may consider the unique ecological and cultural attributes ofall NFS lands that might be adversely allected by mineral development on the leasehold along with the social and economic consequences that could flow from both a decision to consent and to withhold consent. The PS also has an af?rmative responsibility to protect and maintain the character and quality of the BWCAW and MPA for present and future generations. Sec. 2, Pub. L. 95-495, 92 Stat. 1-649 Thus the agency may weigh the possible benefits ot'TMM"s potential mineral development against the possible harm ?l'MM's potential mineral development might do to the uniquely - valuable landscape. TMM's potential mineral development on its two 'leaseholds might contribute markedly to employment and economic growth in St. Louis County, Lake County, and nearby areas. Copper- nickcl mining conducted by TMM also 1would furnish metals important to US, industries and modern technology. Deposits ot?copper are relatively abundant in the United States and many operating copper mines in the United States are situated in arid or drier areas oi'the Nation where their potential for environmental harm maybe reduced. The United States Geological Survey reported that as ol?2015 there was only one operating nickel mine in the United States but nonetheless nickel was in oversupply and three other US. mining projects that would supply nickel were in developman The BWCAW contributes to the cultural and economic sustainability ol?communities within the State ofMinnesota, the Nation and beyond and to the ecological sustainability ot?uniqne landscapes and rare species dependent upon those landscapes that are valued withi the State of Minnesota, the Nation and beyond. The BWCAW is irreplaceable, but likely irreparable in the event of its signi?cant degradation. Based on information provided by to date its Technical Pro-Feasibility Report), existing science, and examination of similar proposals, there is no reason to doubt that the mining operations TMM hopes to eventually conduct could result in .AMD and concomitant metal leaching both during and after mineral development given the sought after copper-?nickel ore is sul:tidic. This fact is very significant given 'l?MM's two leases are adjacent or proximate to the BWCAW and within the same watershed as the wilderness. it might be possible for TMM to develop a mine which employs mitigation and containment strategies that reduce the mines potential to cause AMD and leached metals that could harm the wilderness. However, at the very least it is equally possible that available water treatment technologies would be unable to prevent the spread of any AMD and leached metals in the watershed. Further, there appears to be even Enclosure 3 Neil Kornze 2 less likelihood that any-contamination ol? the BWCAW resulting from mining operations could later be remediated, especially not in a manner compatible with the BWCAW's wilderness character. Moreover, any degree of contamination of the BWCAW by AMD and leached metals has the potential to seriously degrade the wilderness area?s character and quality. Thus. even if the probability that mining operations might generate and release of AMD and leached metals was very low. which the FS does not believe to be the case, the environmental harm to the BWC AW that could result from any contamination ol?thc area with AMD and leached metals might be extreme. Failing to prevent such damage also is contrary to Congress? determination that it is necessary to "protect the special qualities of the as a natural forest-lakcland wildcmess ecosystem of major esthetie. cultural. scienti?c, recreational and educational value to the Nation." Sec. 1. Pub. L. 95-495. 92 Stat. I649 (l978). Balancing what are primarily economic bene?ts of the mining operations that TMM hopes to conduct in connection with the renewal of its two leaxs against even a remote possibility of damaging the unique ecosystem that Minnesota elected otlieials have tittingly called irreplaceable and a national treasure?makes it clear that it is incumbent upon the PS to withhold consent to the renewal ol?TMM?s leases MNES-01352 and This decision withholding consent to the renewal of leases is subject to discretionary review by the Under Secretary for Natural Resources and Environment pursuant to 36 2 I but not appeal pursuant to 36 (ERR. part 2 4 (36 (ERR. No additional inl'onnation may be considered by the Under Secretary for Natural Resources and Environment in connection with the discretionary review of this decision (36 C.F.R. 214.l9(b) Sincerely. ?aim THOMAS Chief Attachment C December 15, 2016 Decision to Not Renew Mineral Leases Karen E. Mouritsen State Director, Eastern States BLM Office mum mm as mm: mini u; DEPARTMENT OF 941(le lulu? a! United States Department of the Interior BUREAU OF LAND MANAGEMENT Eastern States Office 20 Street, SE Suite 950 Washington, DC 20003 In Reply Refer To: 3500(930) MNES 01352, MNES 01353 CERTIFIED MAIL RETURN RECEIPT REQUESTED 7015 0640 0002 5642 3908 DECISION Mr. Ian Duckworth, Chief Operating Of?cer Leasing of Hardrock Minerals Twin Metals Minnesota Serial Number MNES 01352 380 St. Peter Street, Suite 705 Serial Number MNES 01353 St. Paul, MN 55102 Lease Renewal Application Rejected On December 14, 2016, the United States Forest Service (US. Forest Service or USFS) submitted a letter to the Bureau of Land Management (BLM) stating it did not consent to renewal of Preference Right Leases MNES 01352 and MNES 01353. As a result, with the approval of the Deputy Secretary, I hereby reject the application for renewal of these leases. The reasons for my decision to reject the lease renewals are set forth below. Background The Department of the Interior (DOI) Bureau of Land Management (BLM) Eastern States Office completed its review of the application for renewal of Preference Right Leases MNES 01352 and MNES 013 53, located within the Superior National Forest in Northern Minnesota, submitted by Twin Metals Minnesota (TMM), a subsidiary of ranconia Minerals (US) LLC, on October 21, 2012. The application for renewal was submittedtimely as the leases were scheduled to expire on January 1, 2014. The USF is the surface management agency for the lands where these two leases are located, and BLM has jurisdiction over the mineral rights. The predecessor in interest obtained the two original preference right leases that were issued in 1966 for a primary term of 20 years. The BLM issued two renewals, with US. Forest Service concurrence, in 1989 and 2004. Those leases allowed for the mining of copper, nickel, and associated minerals, but to date, TMM has not begun mineral production on either of the leases. The leases are located on the South Kawishiwi River on Superior NF lands south of the Boundary Waters Canoe Area (BWCA) Wilderness on acquired Weeks Act lands, as well as National Forest System lands reserved from the public domain and managed by USFS. These lands are not open to the operation of the Mining Law of 1872. Rather, the Secretary of the Interior?s (Secretary) authority, delegated to BLM, for mineral disposition on the acquired lands is in section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099?1100, and 16 U.S.C. 520, which governs mineral disposition on Weeks Act lands. The Secretary?s authority, delegated to BLM, for mineral disposition on reserved National Forest System lands in Minnesota is found in 16 U.S.C. 508b. For acquired lands, these authorities provide that ?mineral development on such lands shall be authorized by the Secretary only when he is advised by the Secretary of Agriculture that such development will not interfere with the primary purposes for which the land was acquired and only in accordance with such conditions as may be speci?ed by the Secretary of Agriculture in order to protect such purposes.? Section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099-1100. For public domain lands, the authorities provide that ?the development and utilization of such mineral deposits shall not be permitted by the Secretary of the Interior except with the consent of the Secretary of Agriculture.? 16 U.S.C. 508b. Since submission of the application for renewal of these Preference Right Leases, BLM has consulted with the DOI Of?ce of the Solicitor and the Department of Agriculture, U.S. Forest Service, about this application. In processing the application, BLM identified the need for a legal opinion to determine whether TMM has a non-discretionary right to renew the two preference right leases. The DOI Of?ce of the Solicitor (Solicitor) examined the issue. On March 8, 2016, the Solicitor issued Memorandum Opinion 37036 (M-Opinion) (Enclosure 1) determining that the lessee does not have a non?discretionary right to a third 10-year renewal and, therefore, that BLM has discretion to decide whether to grant or deny the application. The M-Opinion also noted that, even if the original 1966 lease terms apply, the renewal provision gives BLM discretion regarding whether to renew the leases and requires renewal as a matter of right only if the lessee has already begun production, which is not the case here. Therefore, BLM has discretion to grant or deny these leases and, in accordance with the relevant statutes identi?ed above and BLM regulations at 43 C.F.R. 3503.13, 3503.20, BLM must have written consent from the surface management agency to issue any permits or leases. U.S. Forest Service Consent Decision On June 3, 2016, BLM issued a letter to USF requesting a written decision on whether the Agency consents or does not consent to renewal of the leases (Enclosure 2). The USFS in turn issued a media release on June 13, 2016, announcing a 30?day period for public input. The USF held two listening sessions: one in Duluth, Minnesota, on July 12, 2016, and a second session in Ely, Minnesota, on July 19, 2016. On December 14. 2016. the US. Forest Service issued a letter stating it did not consent to the renewal of MN ES 0l352 and MNES 01353 (Enclosure 3). In its decision, USFS determined that these leases were inconsistent with the Agency?s af?nnative duty to protect and maintain the values in the BWCA Wilderness, embodied by the directive in the 2004 Superior National Forest Plan to manage the BWCA Wilderness in such a manner that ?perpetuates and protects its unique natural ecosystems, provides an enduring wilderness resource for future generations, and provides opportunities for a primitive and uncon?ned recreation experience.? in considering this renewal application, the Agency identi?ed grave concerns that the development of the copper sulfide-ore mining in the Rainy River Watershed, in particular the MNES 01352 and 01353 mineral leases, risks seriously impairing the ecosystem health of the wilderness area, and with it, poses unacceptable risks to the wildlife, recreational uses, tribal hunting, ?shing, and usufructuary rights, and tourism industry that depend on the pristine nature of the BWCA Wilderness. Conclusion As stated above, in accordance with section 402 of Reorganization Plan No. 3 of 1946. 60 Stat. 1097, 1099?1100, 16 U.S.C. 520, 16 U.S.C. 508b, and BLM regulations in 43 C.F.R. Subpart 3503, BLM must have written consent from the surface management agency before it may issue the leases on both public domain and acquired lands. In this instance, because USFS did not consent, BLM cannot grant your application for renewal of leases MNFS 01352 and MN 01353 and hereby rejects the lease renewal application. Final Agency Action It is my decision to reject your application to renew Twin Metals Leases MNES 01352 and MNES 01353 based on decision on December 14, 2016, not to consent. The lease expires upon receipt of this notice. 43 CPR. 3514.25. We are providing you 30 days to remove equipment ?'om the lease and remediate existing boreholes. If more time is needed, please contact the BLM Northeastern States District Manager to arrange for additional time for equipment removal and remediation. State Director Eastern States Office, BLM Attachment March 8, 2016 Lease Rejection Opinion Letter - Solicitor Hilary Tompkins Enclosure 1 United States Department of the Interior OFFICE or THE Soucrron 1849 STREET MW. DC 20240 M37036 MAR 5 it 2016 Memorandum To: Director, Bureau of Land Management From: Solicitor Subject: Twin Metals Minnesota Application to Renew Preference Right Leases (MNES- 01352 and WES-01353) The Bureau of Land Management (BLM) has asked whether it has the discretion to grant or deny Twin Metals Minnesota?s pending application for renewal ol'two hardrock preference right leases in northern I conclude that Twin Metals Minnesota does not have a non- discretionary right to renewal, but rather the BLM has discretion to grant or deny the pending renewal application. Background On October 21, 2012, Twin Metals Minnesota (TMM) submitted an application to renew two preference right leases WINES-01352 and WINES-01353) for lands that are located near the southern boundary of the Boundary Waters Canoe Area Wilderness in northern Minnesota.2 The two leases at issue are located on acquired Weeks Act lands, as well as National Forest System lands reserved from the public domain and managed by the United States Forest Service. The Secretary?s authority, delegated to the BLM, for mineral disposition on the acquired lands is in section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099-1 100, and 16 U.S.C. 520, which governs mineral disposition on Weeks Act lands. The Secretary?s authority, delegated to the BLM, for mineral disposition on reserved National Forest System lands in Minnesota is in 16 U.S.C. 508b. The BLM originally awarded the leases on June 1, 1966, for a primary term of twenty years, with the possibility of three ten-year renewals.3 On May 14, 1986, the lessee timely applied for a renewal .4 After receiving legal advice from the Of?ce of the Solicitor that the lease terms allowed for a renewal, the BLM granted a renewal of the leases on July 1, 1989, for a period of This memorandum does not address issues related to National Environmental Poiicy Act compiiance or any other legal issues surrounding these leases. 2 The Chippewa in Minnesota have hunting, ?shing, and other usu?'uctuary rights in the northeast portion of the state of Minnesota under the 1354 Treaty of LaPointe. Treaty with the Chippewa, t0 Stat. 1109 (1854). See t966 teases 5. 4 The regulations at 43 CPR. 3522.14 (i985) state that renewal applications ?must be ?led in the appropriate land of?ce within 9t) days prior to the expiration oftlu: lease term." The lessee filed an application for extension of the term of the leases on May 1986?30 days before the end of the primary twenty~year ten'n on June 14, I936, which was ?within 90 days" ofthe lease expiration. Consequently, the renewal application was timely ?led. Enclosure 1 ten years.? TMM timely applied for a second renewal on March 15, 1999. The BLM renewed the leases on January 1, 2004.?5 The 2004 leases state that they are for a period often years, ?with preferential right in the lessee to renew for successive periods of 10 years under such tenns and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.? On October 21, 2012, TM timely applied to renew the leases once more" TMM has been conducting exploration activities on the leaseholds based on the 2004 leases while the BLM considers 2012 renewal application. Under the original 1966 lease terms, as discussed more fully below, the lessee was required to commence production within the twenty-year primary term to qualify for three renewals of right. The leases provided that if there was no production at the end of the primary term, the leases would and unless the Secretary granted a lease renewal to extend the time to commence production.? Although there has been no production, the operator held the leases under production waivers for ?ve years and then through payment of minimum royalties in lieu of production payments for the rest of the time, consistent with the provisions of the 1966 leases that were incorporated by reference in the 2004 leases. Those provisions stated that, beginning after the tenth year of the primary term, the lessee is required to mine a quantity of minerals such that the royalties would be equal to $5 per annum per acre for the primary term and $10 per armum per acre during each renewal or, in lieu of that production, pay royalties equal to the minimum royalty. See 1966 leases 2(0) (incorporated into section 14 of the 2004 leases). Section 2(a) of the 1966 leases allowed the lessor to waive, reduce, or suspend the minimum royalty payment for reasonable periods of time in the interest of conservation or when such action does not adversely a?'ect the interest ofthe United States inaccordance with 43 C.F.R. 3222.62. Id. According to the records, the BLM relied on section 2(c) of the 1966 leases to grant individual waivers of production and minimum royalties for each of the ?rst ?ve lease years after the tenth year of the leases, beginning on June 1, 1976, and ending May 31, 1981, while the State of Minnesota was conducting environmental studies on the proposed mining operations, The three-year time period benaeen the date on which the lessee ?led for the ?rst ten?year lease renewal and the date on which the lease renewal was approved appears to have been due to BLM's consideration of the lessee?s minimum royalty waiver request, coordination efforts between the United State Forest Service and the BLM regarding the Forest Service approval for the renewals, and the consideration regarding the terms of the lease renetval. The lessce's application for a second renewal on March 15, I999 was 109 days before the end of the ?rst lease renewal on July 1, 1999. The regulations in force in 1999 state that application for lease renewal shall he ?led at least 90 days prior to the expiration ofthe lease tom" 43 C.F.R. 3528.! (1998). Consequently, the 1999 renewal application was timely ?led. The time period between the lessee's ?ling of the second renewal application in March 1999 and the BLM's approval of the lease renewal in January 20M appears to have been due to coordination e?'orts between the United States Forest Service and the BLM, as well a the internal review recess. The 2012 renewal application was submitted 438 days before the end of the second renewal on January I, 2014. The timing requirements for ?ling a renewal application in the crorent regulations are the same as those in the regulations that were in force in 1999. In! 351127005). Consequently. the 2012 application was timely tiled. Section 5 oflhe 1955 leases contains de?nite conditions for allowing such an extension, in the interest or or upon a satisfactory showing by the lessee that the lease cannot be successlirlly operated at a pro?t or for other reasons. Enclosure 1 which prevented Alloys International, Inc. predecessor in interest at the time of BLM's waiver decision), from developing the leases.9 The BLM records show that ?led another production and minimum royalty waiver request on June 26, 1985, for the period of July 1, 1981, to June 30, 1986. In response, the BLM issued a decision on January 28, 1987, ?nding that Minnesota had completed its environmental studies in 1979 and that INCO had not ?led any mining applications or royalty waiver applications since 1981. The decision stated that "there is no evidence that International is diligently working towards the development of these leases.? Based on the conclusion that INCO had not met the obligations of the leases, the agency denied the production and royalty waiver request. The decision also noti?ed the lessee that all delinquent payments were due before the BLM cotdd process the ?rst lease renewals at that time.?I Although the records show that INCO failed to timely pay the annual rentals and minimum royalties in lieu of production for the lease years from June 1, 1981, to May 31, 1985 (a four?year period), once received notice ?'om the BLM about the delinquency, INCO paid the fees for all four years. Consequently, the royalty payment records of the Of?ce of Natural Resources Rwanue (ONRR) show that TMM and its predecessors paid the minimum royalties in lieu of production for each of the delinquent years?1981 to 1985. The ONRR records also show that TMM paid the minimum royalty in lieu of production payments from 1936 to the present. In preparing to respond to the 1985 royalty waiver request, the BLM sought legal advice from the Solicitor?s Of?ce, which led to a 1986 legal memorandum regarding the use of one of the three renewals identi?ed in section 5 of the 1966 leases to extend the time to commence production. This 1986 Associate Solicitor?s Op'mion is discussed below in this memorandum.? As to the rental payments, the regulations in effect before 1986 provided that the ?rental paid for any year shall be credited against any royalties for that year.? 43 CPR. (1985). Beginning in 1999, the regulations have provided that the Minerals Management Service (now ONRR) ?will credit your lease rental for any year against the ?rst production royalties or minimum royalties . . . as the royalties accrue under the lease during that year.? Id. 3504.16(e) (2014). The ONRR records show that has paid the rentals and those payments have been recouped for payment of a portion of the minimum royalty payments. Warn Three provisions in the 2004 leases pertinent to whether TMM has a non-discretionary right to renewal: . Part I. Lease Rights Granted: This Lease Renewal entered into by and between the United States of America, through the Bureau of Land Management, hereinafter called lessor, and American Copper a 9 These annual waivers, beginning in June I976 and ending in May 1981, served to waive the production and minimum royalty requirements of the leases for that time period. The noti?cation tenors that BLM sent to the lessee for each of these waivers state that a waiver of production and minimum royalty requirements is granted and do not gate that the lease term is being extended for the period of the suspension. As noted above. the lessee applied for its ?rst lease renewal in May I986. Under the 1966 lease terms, the twenty~year primary term was due to expire in June I986. See tot-o p.12. Enclosure 1 Nickel Company, 922 19? Street, Golden, Colorado, 80401, hereina?er called lessee, is effective Jan-1 2004, for a period of 10 years, Sodium, Suiphur, Hat-drool: with preferential right in the lessee to renew for successive periods of 10 years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless othensise provided by law at the expiration of any period. Part 1, Section 2: Lessor, in consideration of any bonuses, rents, and royalties to be paid, and the conditions and covenants to be observed as herein set forth, hereby grants and leases to lessee the exclusive right and privilege to explore for, drill for, mine, extract, remove, bene?ciate, concentrate, or otherwise process and dispose of the copper deposits nickel 36 associated minerals hereinafter referred to as ?leased deposits,? in, upon, or under the following described lands: . . . . Part II, Section 14. Special Stipulations: The terms and conditions of the production royalties remains as stated in the attached original lease agreement [referring to the 1966 lease]. The minimum annual production and minimum royalty is 10.00 per acre or a fraction thereof as stated in the attached original lease agreement [referring to the 1966 lease]. Because the provisions of the 2004 leases govern for the reasons set forth below, the renewal provisions of the 1966 leases are not applicable. Nevertheless, to provide a comprehensive analysis, the renewal provisions of the 1966 leases are discussed in the analysis that follows. The three relevant provisions in the 1966 leases are: Introductory clause: This lease entered into . . . between the United States of America, as Lessor, through the Bureau of Land Management, and predecessor], as Lessee, pursuant . to the authority set out in, and subject to, Section 402 of the President?s Reorganimtion Plan No. 3 of 1946, 60 Stat. 1099, and the Act ofJune 30, 1950, 64 Stat. 311, and to all regulations of the Secretary of the Interior now in force when not inconsistent with any of the provisions herein. Section W. In consideration of the rents and royalties to be paid and conditions and coVenants to he observed as herein set forth the Lessor grants to the Lessee, subject to all privileges and uses heretofore duly authorized and prior valid claims, the exclusive right to mine, remove, and dispose of all the copper and/or nickel minerals and associated minerals . . . in, upon, or under [the described lands] . . . together with the right to construct and maintain thereon such structures and other facilities as may be necessary or convenient for the mining, preparation, and removal of said minerals, for a period of twenty (20) years with a right in the Lessee to renew the same for successive Enclosure 1 periods often (10) years each in accordance with rogulation 43 C.F.R. 3221.43) and the provisions of this lease. Section 5: Mallow. The Lessor shall have the right to reasonably readjust and for royalties payable hereunder at the end of the primary term of this lease and thereafter at the end of each successive renewal thereof unless otherwise provided by the law at the time of the expiration of any such period, and to readjust other terms and conditions of the lease, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover; provided, however, that the Lessee shall have the right to three successive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day. The Secretary of the Interior may gent extensions of time for commencement of production in the interest of conservation or upon a satisfactory showing by the Lessee that the lease cannot be successfully operated at a pro?t or for other reasons, and the Lessee shall be entitled to renewal as herein provided without readjustment except of royalties payable hereunder if at the end of the primary or renewal period such an extension shall be in effect, but the Lessee shall not be entitled to subsequent such renewals unless it shalt have begun production within the extended time. Ifthe Lessee shall be entitled to renewal without readjustment except of royalties payable hereunder, the Secretary of the Interior may in his discretion increase the royalty rate prescribed in subsectionfb) of Section 2 up to, but not exceeding 5% during the ?rst ten-year renewal period, (ii) 6% during the second ten-year renewal period, and 7% during the third ten?year renewal period. The extent of readjustmont of royalty, if any to be made under this section shall be determined prior to the commencement of the renewal period. . Auslxais The renewal rights of are governed by the applicable provisions of leases MNES 01352 and MNES 01353. At this time, the 2004 renewal leases are in effect, and they use the standard renewal language that has been in place since the 19803. In particular, the 2004 lease renewal terms grant the ?preferential right in the lessee to renew for successive periods often years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.? The Department has consistently interpreted this provision as not entitling the lessee to an automatic right of renewal: ?This preferential right of renewal does not entitle the lessee to renewal of the lease but ?gives the renewal lease applicant the legal right to be preferred against other parties, should the Secretary, in the exercise of his discretion, decide to continue leasing.? Gen. Chem. (Sada Ash) Partners, 176 IBLA l, 3 (2008) (emphasis in original) (quoting Sodium Lease Renewals, M- 36943, 89 Interior Dec. 173, 178 (1982) (1982 Solicitor?s Opinion)). The Interior Board of Land Appeals (IBLA) noted further that the ?Secretary may exercise his discretionary authority in renewing a lease in the same manner as in issuing an initial lease.? Id. Enclosure 1 In reaching this conclusion, I have care?tlly considered contention that the terms of the 1966 leases govern and require the BLM to renew the leases for a third ten-year term. As discussed below, I have concluded that the terms of the 2004 leases govern and that, in any event, the renewal provisions of the 1966 leases give the BLM discretion regarding whether to renew-the leases. The 2004 leases are each complete, integrated docmnents that contain all necessary lease terms and are duly signed by the lessee and lesser. The degree to which the original 1966 leases continue in effect are speci?cally described in the 2004 leases, with two special stipulations that incorporate by reference only two provisions from the 1966 leases. 2004 leases 14. The ?rst stipulation states that the ?terms and conditions of the production royalties remains as stated in the attached original lease agreement.? The second states that the ?minimum annual production and minimum royalty is $10.00 per acre or ?'action thereof as stated in the attached original lease agreement." Neither of these imported provisions includes the lease renewal provisions of the 1966 leases. Consequently, since at least the time that the BLM and the lessee signed the 2004 lease renewals, the renewal provisions of the 1966 leases have no longer applied and the only renewal terms are those described in the 2004 leases, as quoted in the previous paragraph Based on that well understood and unambiguous renewal language, the BLM has the same discretionary authority in considering whether to renew the 2004 leases as it had in issuing the initial 1966 leases. In a recent memorandum to me from TMM's legal counsel,'2 TMM asks the BLM to ignore the plain renewal terms of the 2004 leases and instead apply the renewal provisions of the 1966 leases. TMM relies on extrinsic evidence, placing heavy reliance on the circumstances leading up to the earlier 1989 renewal, which TMM asserts provide evidence that the BLM intended to simply renew the leascs under the exact same terms of the 1966 leases. TMM further asserts that the 2004 renewal, because it was executed using the same forms, must also have intended to renew the 1966 leases without any change in terms. As explained below in the discussion of the 1966 lease terms, the 1989 and 2004 renewals differ from each other because the discretion was limited in 1989 but not in 2004. In particular, the 1989 renewal served as a one-time extension of time for conunencement of production, as authorized under section 5 of the 1966 leases. But section 5 also states that if an extension is granted, the renewal must be on unaltered tenns (other than royalty). Accordingly, under section 5 of the 1966 leases, the 1989 renewal was effectively a ten-year extension of the 1966 lease terms, and the use of standard renewal forms in 1989 could have no effect other than to extend the leases for ten years to allow for commencement of production. But because no production continench during that extension, TMM was not entitled to any subsequent production extensions or renewals under the 1966 lease terms, so the BLM had discretion in 2004 over both whether to renew and the terms of any such renewal. The executed renewal in 2004 therefore has operative effect, and the plain language of the 2004 leases actually executed by the parties must be given effect. There is nothing in the duly executed 2004 leases that states that the 1966 terms somehow govern over the terms expressly set out in the 2004 leases. ?2 Memorandum from 1. Daniel Colton, Partner, Dorsey Whitney LLP, received under a cover letter dated January 26, 2016, to me ?'om Kevin L. Baker, Director, Legal Affairs, Twin Metals Minnesota, LLC. Enclosure 1 reliance on extrinsic evidence to attempt to negate the 2004 lease terms does not comply with the law of contracts. In the absence of ambiguity in the relevant lease provision, it is improper to rely on extrinsic evidence. See Coast Fed. Bank. FSB v. United States, 323 F.3d 1035, 1040 (Fed. Cir. 2006) (en banc) (?If the provisions are clear and unambiguous, they must be given their plain and ordinary meaning, and we may not resort to extrinsic evidence to interpret them.? (internal quotation marks and citation omitted?; see also Shell Oil Co. v. United States, 751 F.3d 1282, 1295 (Fed. Cir. 2014) (improper for government to rely on extrinsic evidence when contract provision is unambiguous); fireman v. Bureau of Land Mgmt. (on recon), 155 IBLA 266, 267 (2001) (?If the contract language is clear and unambiguous, the terms of the agreement are given plain meaning and the intent of the parties and the interpretation of the agreement will be determined from the four comers of the document alone." (internal citations omitted)). Under this objective law of contracts, the subjective intent of the parties is not relevant unless there is fraud, duress, or mutual mistake, none of which is alleged by TMM. See Armenian Assembly of Am, Inc. v. quesjian, 758 F.3d 265, 278 (D.C. Cir. 2014) ?objective? law of contracts . . . generally means that ?the written language embodying the terms of an agreement will govern the rights and liabilities of the parties, [regardless] of the intent of the parties at the time they entered into the contract, unless the written language is not susceptible of a clear and de?nite undertaking, or unless there is fraud, duress, or mutual mistake.? (alteration in original) (citations omitted)). In this case, there is nothing ambiguous with the renewal provision contained in the 2004 leases: there is no con?icting renewal provision referenced elsewhere in the 2004 [cases and the provision has a longstanding and well established meaning. While TMM has asserted that the ?preferential right? to renew is ambiguous because it is susceptible of more than one meaning, that argument is without merit.? TMM misinterprets the 1932 Solicitor?s Opinion, which held that the preference right to renew ?gives the renewal lease applicant the legal right to be preferred against other parties should the Secretary, in the proper exercise of his discretion, decide to continue leasing." 1982 Solicitor's Opinion, 89 Interior Dec. at 178. In reaching this conclusion, the Solicitor included a discussion of the meaning of ?preference right leases.? That discussion focused on the rights gained in the initial leasing decision, and distinguished between ?entitlement? leases, which are leases to which an applicant is by statute entitled to receive if it meets statutory criteria, and true ?preference right leases," which are issued only if the Secretary decides to lease. See id. Based on this discussion, asserts it is ambiguous whether its leases are entitlement leases or preference right leases. Even if this distinction altered renewal ri ts, which is an issue that does not need to be addressed for purposes of this memorandum, there is no ambiguity in this case. Neither of the statutory authorities under which the leases are issued?section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099-1 100, and 16 U.S.C. 508b?creates an entitlement to a lease or otherwise mandates the issuance of leases. To the contrary, both authorities expressly condition leasing on surface owner consent (in this instance the discretion of the Forest Service) and thus are discretionary. In short, there is no ambiguity, and the renewal provisions in the 2004 leases provide the BLM with discretion to decide whether to renew the leases. '3 A lease is not ambiguous merely because the parties disagree on the correct interpretation. fireman, 155 IBLA at 267 (citing Pollock v. Fed. Deposit Ins. Corp., 17 F.3d 798, 803 (5th Cir. 1994); Max?ower Recreational Funds Newpark Res. Inc, 917 F.2d I239, [247 (Will Cit. Enclosure 1 Finally, even if the 1966 lease renewal terms were in effect, they do not prohibit the BLM ?'orn exercising its discretion to decide whether to renew the leases. Section 1(a) of the 1966 leases granted to the lessee ?the exclusive right to mine, remove, and dispose of all the copper andlor nickel minerals and associated minerals . . . It also provided that renewal of the leases beyond the primary term is subject to 43 C.F.R. 3221.4(t) (1966) and the provisions of the lease. Section 3221.4?) provides that the lessee ?will be granted a right of renewal for successive periods, not exceeding 10 years each, under such reasonable terms and conditions as the Secretary of the Interior may prescribe, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover.? Based on this regulation, the BLM included a conditional renewal provision in section 5 of the 1966 leases. Section 5 of the 1966 leases describes both the conditions with which the lessee must comply to establish a right to renew the lease and the limitations on revisions to the lease terms when the lessee does have a right to renewal: Renewal Ion-ms. The Lessor shall have the right to reasonably readjust and ?x royalties payable hereunder at the end of the primary term of this lease and thereafter at the end of each successive renewal thereof unless otherwise provided by the law at the time of the expiration of any such period, and to readjust other terms and conditions of the lease, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction moreover; provided, however, that the Lessee shall have the right to three succsive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustmant of any of the other terms and conditions of this lease unis at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day. Th cc of nt 'or texten of pmduction in the interest of cogervgg? '9 or upon a sag?sfactog chanex nshall e' utth shal en? ubse ue ch to als all 'thi exte e. [fine Lessee shall be entitled to renewal without readjustment except of royalties payable hereunder, the Secretary of the Interior may in his discretion increase the royalty rate prescribed in subsection of Section 2 up to, but not exceeding 5% during the?rst ten-year renewal period, (it) 6% during the second ten-year renewal period and 7% during the third ten?year renewal period. The extent of readjustment of royalty, if any to be made under this section shall be determined prior to the commencement of the renewal period. 1966 [cases 5 (emphases added). As explained more fully below, since at least 1986, the Solicitor's Of?ce has interpreted section 5 to mean that, even if the Secretary can and does, as a matter of discretion, renew the lease to extend the time to commence production, there is no right Enclosure 1 to a further renewal when production? has not begun at the end of the ?rst renewal?extension period. The opening segment of the ?rst sentence of section 5 describes the BLM's right to readjust the royalties and other terms and conditions at the renewal stage. This provision means that, as a general rule, if renewing the lease, the BLM is allowed to readjust not only the lease royalties but also other terms and conditions at the renewal stage, including stipulations to protect the surface. The second segment of the ?rst sentence following the send-colon (highlighted in bold above) is a proviso that allows for three successive ten-year renewals, but conditions the lessee?s right to those renewals on the lessee beginning production before the end of the primary term of the lease. The key conditioning language is at the end of the ?rst sentence, as highlighted below: provided, however, that the Lessee shall have the right to three successive ten-year renewals of this lease with any readjustment in royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of the lease unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day.? This highlighted clause, which begins with ?unless,? quali?es the very right to renew and not merely, as the company has asserted, the phrase describing the level of discretion the BLM has to readjust the other terms and conditions of the leases upon renewal. In other words, the proper meaning of the proviso is clear when the last clause is placed next to the provision it actually quali?es: ?[Tlhe Lessee shall have the right to three successive ten?year renewals of this lease . . . unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day.? This conclusion is evident by the construction of the proviso. The two readjustment limitations are tied together and modify the ?right to three successive ten?year renewals" language. The use of the conjunctive ?and? between the two readjustment phrases (?with any readjustment in royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of the lease") ties them together as a single modi?er to the right-to-renew language. Accordingly, the production requirement set out as the last clause of the proviso cannot merely quality the readjustment phrases, as contended by TMM, but must apply to the overall right of renewal. In this way the proviso makes any non-discretionary renewal contingent on the lessee meeting the production requirement ?rst, and then the conditions of that renewal regarding royalties and lease terms are speci?ed in the readjustment phrases. This conclusion is further reinforced by the second sentence of section 5 {the portion of section 5 underlined above). That sentence has three clauses. The ?rst clause provides that the BLM has None of the Department?s solid minerals leasing regulations?including those in force at the time of the was Solicitcr's Opinion. those promulgated immediately thereafter, and those currently in force?expressly de?ne the term ?production.? However, the rights granted in section I of the I966 leases are described as mining, removing, and disposing of the copper andlor nickel minerals and associated minerals in, upon. or under the leased lands. These activities may be viewed to reasonably describe production. Enclosure 1 the discretion to grant the lessee an extension beyond the primary term to begin production, if doing so would be in the interest of conservation or the lessee cannot operate the lease at a pro?t or for other reasons. The second clause states that, if an extension is granted, the lessee is entitled to a renewal in which the only revision allowed is to the royalties provision. These two clauses allow the lessee to use the ?rst renewal as an extension time period to begin production. The third and ?nal clause of the sentence, however, limits this right to a renewal if there is no production by the end of the extension: ?but the Lessee shall not be entitled to subsequent such renewals unless it shall have begun productionwithin the extended time.? This ?nal clause reinforces the preceding sentence?s condition precedent that there must be production before the lace has a ?righ to subsequent renewals. The second sentence therefore again makes production a precondition for any right to renew and disallows the lessee ?'om obtaining a ?right? to a renewal if no production has occurred during the primary term or an extension that the Secretary may grant for commencement of production. The third sentence of section 5 (the portion of section 5 in italics above) describes the degree to which the BLM may readjust the royalty if the lessee is entitled to a ?limited adjustment" lease renewal under the first sentence, the Lessee is ?entitled to renewal without readjustment except of royalties payable hereunder . . . But without production, there would be no such entitlement. Taken as a whole, the language of section 5 does not give the lessee a non-discretionary right to three successive renewals. Rather, production is the condition precedent for the lessee to obtain any lease renewals of right. There is no right of renewal if there has been no production before the end of the primary term or at the end of any renewal that the BLM grants to extend the time for the lessee to commence production. The fact that the lease terms expressly state that subsequent renewals of right are not available if no production occurs during any extension the BLM may grant for commencement of production reiterates the linkage between renewals of right and production. It would be incongruent to link only the bene?t of unchanged lease terms to production, while leaving the lease renewal and royalty readjustment terms unaffected by a lack of production. Such arbitrary line drawing would create little incentive for the lessee to develop the minerals, which is the entire purpose for these mineral leases. in contrast, when production is a condition precedent for lease renewals, the lease renewal provision effectively serves as a minimal due diligence provision for the lessee. ?5 TMM asserts a different interpretation though. TMM reads the proviso of the ?rst sentence of section 5 to grant the lessee a non-discretionary right of renewal, with such right of renewal limited only to royalty readjustment and with no readjustment of any other lease terms. also reads the production requirement in the provision??muses at the end of the primary term of We note that section 14 of the [966 leases does not change this conclusion. Section 14 sets forth the royalty rates that would apply in the second ten years ofthe primary lease term and in the ?rst, second, and third ten-year renewal periods, if the lessee were to sink a shalt for underground exploration or development or otherwise begin ccnunereial development within ?ve years of obtaining the rights and authorimtions for W11, operation and maintenance of the leased premises. According to TMM, in 1967, its predecessor in interest, INCO, sunk an I too- foot shalt for exploration and development on lease MNES 01352. TMM asserts that section l4 connacniaily entitles it to these royalty rates during each oftlu'ee renewal periods. However, nothing in section 14 provides for a non-discretionary right of renewal. Rather, section 14 merely describes the royalty rate that would apply during the ?rst three ten-year renewals. It does not grant those renewals and does not state that sinking an exploration or development shaft entitles the lessee to those renewals. 10 Enclosure 1 this lease the Lessee shall not have begun modify only the readjustment limitation language, not the right to renewal language. Under interpretation of the provision, if the lessee begins production within the primary term, the BLM may make only limited royalty adjustments, as provided in the leases, and no adjustments to any other lease terms. If, on the other hand, the lessee fails to begin production within the primary term, according to TMM, the lack of production negates only the readjustment limitations in the provision, and the BLM would be able to impose greater royalty readjustments and readjust other terms and conditions of the leases upon renewal. In other words, under the company?s reading, a right to three successive ten-year renewals begins immediately following the primary terms regardless of whether production has occurred, and section 5 only affects the parameters for the readjustment of the lease terms in those non-discretionary three renewals. In addition to being unsupported by the terms of the proviso as described above, TMM's interpretation would allow it to hold the leases without any need to produce minerals in paying quantities for at least ?fty years, and longer in this instance given the time to process the lease renewals. This interpretation not only con?icts with the plain wording of the 1966 lease terms but also is contrary to the very intent of the applicable statutory framework under which the Secretary may authorize mineral development with an expectation of revenues, not speculative land holdings. See Reorganization Plan No. 3 of 1946 402, 60 Stat. 1097, 1099-1 100; 16 USS. 520. Interpreting the leases to allow for three non-discretionary renewals covering a thirty-year time span without the occurrence of the very underlying activity for which the leases are issued in the ?rst place would defeat the purpose of entering into the lease. Such an interpretation would allow for the speculative holding of mineral rights, which is contrary to Congress?s intent to encourage productive mineral development while also providing a fair return to the American taxpayer. Our interpretation that section 5 requires the lessee to begin production to obtain the bene?t of any non-discretionary right of renewal is not only mandated by the lease terms, but is consistent with the regulation regarding renewal applications cited in the lease. Section 1(a) of the 1966 leases requires the renewnls to be in accordance with 43 C.F.R. 3221.4(t) (1966), which in turn requires that renewal applications ?must be ?led in a manner similar to that prescribed for extension of a prospecting permit in Under 43 C.F.R. a prospector must show that he or she has ?diligently performed prospecting activities? to support an application for an extension of a prospecting permit.l6 Allowing for the difference between a prospecting permit application and a lease renewal application, 3221.3(a) requires that the lease renewal application include a showing of diligence in performing the lease activities (rather than the prospecting activities), which are reasonably viewed, consistent with the rights granted in section 1 of the lease terms, as mining, removing, and disposing of the copper andlor nickel minerals and associated minerals?Le, production. Consequently, by stating that any renewals must be ?in accordance with 43 C.F.R. the lease terms again identi?ed production as the baseline for obtaining a renewal of right. Based on the lease terms as a whole, and because there has been no production during the primary term or the succeeding extensions through lease renewals that the BLM has granted, TMM has not satis?ed the condition precedent Under 43 can. 5 322 (1966). in addition in making a show ofdiligence, the applicant must ?le an application in triplicate within ninety days before the expiration date of the lease term and must pay a ?ling fee. 11 Enclosure 1 for obtaining a renewal of right and, therefore, the BLM has discretion to make a decision regarding whether to renew the leases even if the 1966 renewal terms were in effect. In addition, the Solicitor-?3 Office has already concluded that the BLM is not required to renew the 1966 leases as a matter of right if there has been no production. In 1986, the Associate Solicitor for the Division of Energy and Resources sent a memorandum to the Deputy State Director for the BLM Eastern States Of?ce responding to three questions lion: the Deputy State Director." The ?rst?question was whether it was possible to grant lease renewals (for the same leases that are at issue here) when the leases had never been in production. In response, the Associate Solicitor examined the terms of the lease to determine whether or not lack of production precludes extending the lease term. The Associate Solicitor then relied on the second sentence of section 5 (the portion of section 5 mm above) to conclude that, while the leases may be extended for a period not exceeding ten years even though production has not occurred, ifproduction does not occur during the period of extension, ?no ?niher extensions will be allowed in accordance with the terms of the lease." Consistent with this legal advice and the provisions of section 5 of the 1966 leases, the BLM granted a ton-year extension by renewing these two leases in 1989. As noted above, the BLM also renewed the leases for a second ten-year period in 2004. Because no production had occurred by that time, the decision to renew the leases in 2004 was discretionary. The decision to renew the leases in 2004 does not impede the BLM ?'om again exercising discretion regarding the lessee?s application for a third renewal of the leases, particularly where this of?ce has previously concluded that the agency need not allow additional pro-production renewals.? It should be noted that the lessee?s payment of minimum royalties in lieu of production does not alter the foregoing analysis.? The payment of minimum royalties is certainly one incentive to produce that was imposed by the 1966 leases, but that incentive worked in tandem with the one created by the leases' production precondition for mandatory renewals. The second incentive See Memorandum ?'om Associate Solicitor, Energy and Resources, signed by Kenneth G. Lee. Assistant Solicitor, Branch of Eastem Resources, to Deputy State Director, Mineral Resources, Eastern States Of?ce, Bureau of Land Management, "Application for Minimum Royalty Waiver Submitted by Alloys International, Incorporated for Leases ES 01352 and ES 01353" (Apr. 2, 1986) (Attached). TMM has made no showing in its pending renewal application under 43 C.F.R. 3221.44?) (1966) that would entitle it to a third and ?nal renewal under section 5 of the 1966 leases. TMM has never begun production. 'l?MM's predecessor, INCO, sunk a development shaft and conducted bulk sampling, but neither of those actions quali?es as beginning production. Without any showing of diligence in mining. removing, or disposing of the copper, nickel, and associated minerals, and without beginning production, TMM is not entitled to any ?uther non-discretionary ten-year renewals. TMM has also asserted that the Department of the Interior is prohibited by 3D U.S.C. l84(h)(2), as well as the Department?s regulations at 43 35 MAO (20l5), from ?cancelling? TMM's interest in the leases at issue as TMM is a bona ?de purchaser. But the cancellation regulations have no applicability where. as here, the decisionis whether to renew a lease. Were BLM to exercise its discretion to deny the lease renewal application, it would not be cancelling the leases, as contemplated by 30 11.312. l84(h)(2) and 43 C.F.R. 3514.40. but rather would be allowing leases that have been in existence for ?fty years without production to terminate by their own terms. The original leases do not mention minimum royalties as a way to ful?ll the production requirement. And section 2(b) ol'TMM's 2004 leases merely provides that the request of the lessee, made prior to initiation of the lease year, the authorized of?cer may allow in writing the payment ofa $3.00 per acre or fraction thereof minimum royalty in lieu cf production for any particular lease year.? 12 Enclosure 1 expired when no production occurred by the end of the extension period granted by the 1989 renewal. While the 2004 renewal leases retain the minimum royalties payment incentive, that fact has no impact on the renewal provision of the 2004 leases. Ofconrse, for the leases to continue in e??eet during the renewal period, the lessee was required to continue to meet its obligation to pay royalties in lieu of production. However, that payment was and is not equivalent to production and does not somehow entitle the lessee to obtain a lease renewal of right; instead, it merely keeps the leases from terminating during the extension time period the BLM has granted through a lease renewal. The fact that the payment of royalties in lieu of production cannot be the basis for establishing the right to renew, and cannot be a defaero means of extending a lease in perpetuity, is also clear from IBLA case law. In General Chemical (Soda Ash) Partners, the IBLA held that minimum royalties in lieu of production have ?nothing to do with whether the Secretary, in looking at production from the mine of which the lease is a part at the end of the current lease term, will renew the lease for an additional term.? 176 IBLA at 9. The Board ?nther held, ?Moreover, ?[t]he Secretary has the authority to encourage production and development of federally leased sodium resources both through minimum development and production requirements and minimum royalties imposed on each lease.? 1d. (emphasis in original) (quoting 1982 Solicitor?s Opinion, 89 Interior Dec. at 185). The leases here use precisely both mechanisms to encourage production, albeit not successfully in this instance. 99. nclusigg For the foregoing reasons, the lessee has not established a non-discretionary right to a third ten- year renewal. Under the governing 2004 lease terms, the BLM has the same discretion regarding whether to renew the lease for a third time as it had in determining whether to grant the initial lease. While the 2004 lease terms give the lessee a preference over other potential lessees to lease the lands in question, they do not entitle the lessee to non-discretionary renewal of the CI Attachment 13 Attachment January 19, 2017 BLM Withdrawal Notice - Karen E. Mouritsen - Signatory Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices THENCE South 00°06′00″ West along said west line, a distance of 2502.98 feet to the point of beginning; THENCE South 89°07′50″ East, a distance of 805.67 feet; THENCE South 15°34′27″ West, a distance of 1473.72 feet to the point of intersection with the east and west center line of the southwest 1⁄4 of said Section 1; THENCE North 88°24′21″ West, along said east and west center line, a distance of 415.55 feet to the point of intersection with the aforementioned west line of the east 1210.00 feet of the west 1⁄2 of Section 1; THENCE North 00°06′00″ East along said west line, a distance of 1420.32 feet to the point of beginning. Containing 59.80 acres of land. Parcel No. 2 Sec. 1, lots 1 and 2, S1⁄2NE1⁄4, NE1⁄4NW1⁄4SE1⁄4, S1⁄2NW1⁄4SE1⁄4, N1⁄2SW1⁄4SE1⁄4, SW1⁄4SW1⁄4SE1⁄4, and N1⁄2SE1⁄4SW1⁄4SE1⁄4. Containing 224.56 acres of land. Parcel No. 3 Sec. 12, E1⁄2SE1⁄4. Containing 80.00 acres of land. The areas described for Parcels Nos. 1 through 3 aggregate 364.36 acres. Section 209(b) of the FLPMA authorizes the conveyance of the federally owned mineral interests in land to the surface owner when the surface interest is not federally owned, upon payment of administrative costs. The objective is to allow consolidation of the surface and mineral interests when either one of the following conditions exist: (1) There are no known mineral values in the land; or (2) Where continued Federal ownership of the mineral interests interferes with or precludes appropriate non-mineral development and such development is a more beneficial use of the land than mineral development. The applicant has deposited, a sum of funding sufficient to cover administrative costs, but not limited to, the cost for the mineral potential report. Subject to valid existing rights, on January 19, 2017 the federally owned mineral interests in the land described above are hereby segregated from all forms of appropriation under the public lands laws, including the mining laws, while the application is being processed to determine if either one of the two specified conditions exists and, if so, to otherwise comply with the procedural requirements of 43 CFR part 2720. The segregative effect shall terminate upon: (1) Issuance of a patent or other document of conveyance as to such mineral interests; (2) Final rejection of the application; or (3) January 22, 2019, whichever occurs first. Please submit all comments in writing to Benedict Parsons at the address listed above. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made available to the public at any time. While you can ask in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Authority: 43 CFR 2720.1–1. Leon Thomas, Phoenix District Manager. [FR Doc. 2017–01203 Filed 1–18–17; 8:45 am] BILLING CODE 4310–32–P DEPARTMENT OF THE INTERIOR Bureau of Land Management [MNES–058247] Notice of Application for Withdrawal and Notification of Public Meeting; Minnesota Bureau of Land Management, Interior. ACTION: Notice. AGENCY: The United States Forest Service (USFS) has filed an application with the Bureau of Land Management (BLM) requesting that the Secretary of the Interior withdraw, for a 20-year term, approximately 234,328 acres of National Forest System lands within the Rainy River Watershed on the Superior National Forest from disposition under the United States mineral and geothermal leasing laws, subject to valid existing rights. Publication of this notice temporarily segregates the lands for up to 2 years from the United States mineral and geothermal leasing laws while the withdrawal application is being processed. DATES: Comments regarding this withdrawal proposal must be received by April 19, 2017. The BLM and the USFS will hold a public meeting in connection with the proposed withdrawal on March 16, 2017, from 5 p.m. to 7:30 p.m. Central Time (CT) at the Duluth Entertainment and Convention Center, 350 Harbor Drive, Duluth, MN 55802. During this 90-day comment period, the BLM and USFS will hold additional meetings in other areas of the State, notices of which will be provided in local newspapers or on agency Web sites. The USFS’ 90-day scoping period associated with preparing an environmental impact statement (EIS) was announced on January 13, 2017 in the Federal SUMMARY: 6639 Register. The EIS will analyze the impacts of the proposed withdrawal and an amendment to the Superior National Forest Land and Resource Management Plan. Additional opportunities for public comment will be provided during the preparation of that EIS. ADDRESSES: Comments regarding this withdrawal proposal should be sent to the Deputy State Director of Geospatial Services, Bureau of Land Management, Eastern States Office, 20 M Street SE., Suite 950, Washington, DC 20003; or by facsimile at 202–912–7710. Comments sent by email will not be accepted. The March 16, 2017, BLM and USFS public meeting location is the Duluth Entertainment and Convention Center, 350 Harbor Drive, Duluth, MN 55802. FOR FURTHER INFORMATION CONTACT: Dominica VanKoten, BLM Eastern States Office, 202–912–7756 during regular business hours, 8 a.m. to 4:30 p.m. Monday through Friday, except holidays. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 1–800–877–8339 to contact the above individual. The Service is available 24 hours a day, 7 days a week, to leave a message or question. You will receive a reply during normal business hours. SUPPLEMENTARY INFORMATION: The applicant is the USFS. The application requests the Secretary of the Interior to withdraw National Forest System lands in the Superior National Forest from disposition under the United States mineral and geothermal leasing laws for a period of 20 years to protect and preserve the natural resources and waters located within the Rainy River Watershed that flow into the Boundary Waters Canoe Area Wilderness (BWCAW) and the Boundary Waters Canoe Area Wilderness Mining Protection Area (MPA) in northeastern Minnesota. The lands will remain open to other forms of use and disposition as may be allowed by law on National Forest System lands, including the disposition of mineral materials. All the National Forest System Lands identified in the townships below and any lands acquired by the Federal government within the exterior boundaries described below are included in the withdrawal application. This area excludes the BWCAW and the Boundary Waters Canoe Area Wilderness MPA, as depicted on the map entitled Appendix B: Superior National Forest, dated December 5, 2016. This map is available from the BLM Eastern States Office at the address listed above, and from the USFS Superior National Forest office, 8901 6640 Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices Grand Ave. Pl, Duluth, Minnesota, 55808. National Forest System Lands Superior National Forest 4th Principal Meridian, Minnesota Tps. 61 and 62 N., Rs. 5 W. Tps. 60 to 62 N., Rs. 6 W. Tps. 59 and 61 N., Rs. 7 W. Tps. 59 to 61 N., Rs. 8 W. Tps. 58 to 61 N., Rs. 9 W. Tps. 57 to 62 N., Rs. 10 W. Tps. 57 to 63 N., Rs. 11 W. Tp. 59 N., R. 12 W. Tps. 61 to 63 N., Rs. 12 W. Tps. 61 to 63 N., Rs. 13 W. Tp. 63 N., R. 15 W. Tp. 63 N., R. 16 W. Tps. 65 to 67 N., Rs. 16 W. Tp. 64 N., R. 17 W. The areas described contain approximately 234,328 acres of National Forest System lands in Cook, Lake, and Saint Louis Counties, Minnesota, located adjacent to the BWCAW and the MPA. Non-Federal lands within the area proposed for withdrawal total approximately 190,321 acres in Cook, Lake and Saint Louis Counties. As nonFederal lands, these parcels would not be affected by the temporary segregation or proposed withdrawal unless they are subsequently acquired by the Federal Government. The temporary segregation and proposed withdrawal are subject to valid existing rights, which would be unaffected by these actions. As stated in the application, the purpose of the requested withdrawal is to protect and preserve the natural resources and waters within the Rainy River Watershed that flow into the BWCAW and the MPA from the effects of mining and mineral exploration. Congress designated the BWCAW and established the MPA to protect and preserve the ecological richness of the lakes, waterways, and forested wilderness along the Canadian border. The protection of the Rainy River Watershed would extend the preservation of the BWCAW and MPA as well as Voyageurs National Park and Canada’s Quetico Provincial Park, which are all interconnected through the unique hydrology of this region. The application further states that the use of a right-of-way, interagency agreement, or cooperative agreement would not adequately constrain mineral and geothermal leasing to provide adequate protection throughout this pristine natural area. According to the application, no alternative sites are feasible because the lands subject to the withdrawal application are the lands for which protection is sought from the impacts of exploration and development under the United States mineral and geothermal leasing laws. No water will be needed to fulfill the purpose of the requested withdrawal. The USFS will serve as the lead agency for the EIS analyzing the impacts of the proposed withdrawal. The USFS will designate the BLM as a cooperating agency. The BLM will independently evaluate and review the draft and final EISs and any other documents needed for the Secretary of the Interior to make a decision on the proposed withdrawal. Records related to the application may be examined by contacting the individual listed in the FOR FURTHER INFORMATION CONTACT section above. For a period until April 19, 2017, all persons who wish to submit comments, suggestions, or objections in connection with the withdrawal application may present their views in writing to the BLM Deputy State Director of Geospatial Services at the BLM Eastern States Office address noted in the ADDRESSES section above. Comments, including the names and street addresses of respondents, will be available for public review at that address during regular business hours. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Notice is hereby given that a public meeting in connection with the application for withdrawal will be held at Duluth Entertainment and Convention Center, 350 Harbor Drive, Duluth, Minnesota 55802 on March 16, 2017, from 5 p.m. to 7:30 p.m. CT. The USFS will publish a notice of the time and place in a local newspaper at least 30 days before the scheduled date of the meeting. During this 90-day comment period, the BLM and USFS will hold additional meetings in other areas of the State, notices of which will be provided in local newspapers or on agency Web sites. For a period until January 21, 2017, subject to valid existing rights, the National Forest System lands described in this notice will be temporarily segregated from the United States mineral and geothermal leasing laws, unless the application is denied or canceled or the withdrawal is approved prior to that date. All other activities currently consistent with the Superior National Forest Land and Resource Management Plan could continue, including public recreation, mineral materials disposition and other activities compatible with preservation of the character of the area, subject to USFS discretionary approval, during the segregation period. The application will be processed in accordance with the regulations set forth in 43 CFR 2300. Karen E. Mouritsen, State Director, Eastern States Office. [FR Doc. 2017–01202 Filed 1–18–17; 8:45 am] BILLING CODE 3411–15–P DEPARTMENT OF THE INTERIOR Bureau of Land Management [LLNM004000 L91450000.EJ000 16X.LVDIG16ZGK00] Notice of Application for a Recordable Disclaimer of Interest: Dimmit County, Texas Bureau of Land Management, Interior. ACTION: Notice. AGENCY: The Bureau of Land Management (BLM) received an application for a Recordable Disclaimer of Interest (Disclaimer of Interest) from Gringita, Ltd. pursuant to the Federal Land Policy and Management Act of 1976 (FLPMA), as amended, and the regulations in 43 CFR subpart 1864, for certain mineral estate in Dimmit County, Texas. This notice is intended to inform the public of the pending application, give notice of BLM’s intention to grant the requested Disclaimer of Interest, and provide a public comment period for the proposed Disclaimer of Interest. DATES: Comments on this action should be received by April 19, 2017. ADDRESSES: Written comments must be sent to the Deputy State Director, Lands and Resources, BLM, New Mexico State Office, P.O. Box 27115, Santa Fe, NM 87502–0115. FOR FURTHER INFORMATION CONTACT: John Ledbetter, Realty Specialist, BLM Oklahoma Field Office, (405) 579–7172. Additional information pertaining to this application can be reviewed in case file TXNM114510 located in the Oklahoma Field Office, 201 Stephenson Parkway, Room 1200, Norman, Oklahoma 73072–2037. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service (FRS) at 1–800–877–8339 to contact the above individual during normal business hours. The Service is available 24 hours a day, 7 days a week, to leave a message or question with the SUMMARY: Attachment Department of Interior Departmental Manual 209 DM 7.1 B. Department of the Interior Departmental Manual Effective Date: 6/28/01 Series: Delegation Part 209: Secretarial Officers Chapter 7: Assistant Secretary - Land and Minerals Management Originating Office: Office of the Assistant Secretary - Land and Minerals Management 209 DM 7 7.1 Delegation. Subject to the limitations in 200 DM 1 and 209 DM 7.1E, the Assistant Secretary - Land and Minerals Management is authorized to exercise all of the authority of the Secretary including, but not limited to: A. the authority to issue amendments of and additions to the material in the Code of Federal Regulations. B. the authority delegated to the Secretary by Section 204(a) of Public Law 94-579 relating to the withdrawal or reservation of certain lands by the issuance of public land orders. C. the administration of the oath of office or any oath required by law in connection with employment. D. the authority to approve, approve with conditions, or disapprove initial State regulatory programs under Public Law 95-87. E. the authority to sign Mineral Entry Final Certificates and mineral patents under the Mining Law of 1872. The Assistant Secretary may redelegate this authority to the Director, Bureau of Land Management. No other redelegation of this authority by the Assistant Secretary is authorized. 7.2 Authority to Redelegate. Except where redelegation is prohibited by statute, Executive order, or limitations established by other competent authority, the Assistant Secretary - Land and Minerals Management may redelegate general administrative authority and those program authorities specifically related to the functions and responsibilities assigned to the Assistant Secretary - Land and Minerals Management in 109 DM 7. All redelegations of authority made by the Assistant Secretary - Land and Minerals Management will be in the form of a Departmental Manual release issued in strict compliance with the provisions of 200 DM 3. No other form of redelegation is authorized. 7.3 Deputy Assistant Secretary. A. In the absence of, and under conditions specified by the Assistant Secretary - Land and Minerals Management, a Deputy Assistant Secretary - Land and Minerals Management may exercise the authority delegated in 209 DM 7.1, excluding 209 DM 7.1B. B. A Deputy Assistant Secretary may not redelegate the authority conferred by this paragraph 209 DM 7.3. 6/28/01 #3364 Replaces 12/16/96 #3109 Attachment Judicial Review Decision - Yount V. Salazar Case 3:11-cv-08171-DGC Document 87 Filed 01/08/13 Page 1 of 47 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Gregory Yount, 9 10 11 Plaintiff, v. Ken Salazar, et al., 12 13 Defendants. National Mining Association, 14 15 16 v. Ken Salazar, et al., Defendants Northwest Mining Association, 19 20 21 v. Ken Salazar, et al., Defendants. Quaterra Alaska Incorporated, et al., 24 25 26 27 28 No. CV12-8042 PCT DGC Plaintiff 22 23 No. CV12-8038 PCT DGC Plaintiff 17 18 No. CV11-8171-PCT DGC (Lead case) Plaintiff v. Ken Salazar, et al., Defendants. No. CV12-8075 PCT DGC Case 3:11-cv-08171-DGC Document 87 Filed 01/08/13 Page 2 of 47 1 On November 1, 2011, Plaintiff Gregory Yount, a self-employed prospector and 2 miner, filed a pro se complaint seeking declaratory and injunctive relief in response to 3 Defendants’ actions withdrawing more than one million acres of federal land in Northern 4 Arizona from mining location and entry activities. Doc. 1, amended by Doc. 27. Other 5 Plaintiffs in the above-captioned actions – the National Mining Association (“NMA”) 6 and the Nuclear Energy Institute (“NEI”); the Northwest Mining Association 7 (“NWMA”); Quaterra Alaska, Inc. and Quaterra Resources, Inc. (collectively 8 “Quaterra”); and the Arizona Utah Local Economic Coalition (“the Coalition”), on behalf 9 of the Board of Supervisors of Mohave Country, Arizona (“Mohave County”), also filed 10 complaints challenging the withdrawal. On August 20, 2012, the Court consolidated the 11 cases and permitted Vane Minerals, LLC (“Vane Minerals”) to intervene as a plaintiff. 12 Doc. 56. 13 Defendants Kenneth L. Salazar, Secretary of the Department of the Interior; the 14 Department of the Interior (“DOI”); the Bureau of Land Management (“BLM”); the 15 Forest Service; and the Department of Agriculture (collectively, “Defendants”) have filed 16 motions to dismiss each of these actions. The Court held oral argument on October 26, 17 2012. For the reasons set forth below, the Court will grant the motions in part and deny 18 them in part. 19 I. Relevant Statutory and Regulatory Scheme. 20 Pursuant to the General Mining Law of 1872, 30 U.S.C. § 22, “all valuable 21 mineral deposits in lands belonging to the United States . . . shall be free and open to 22 exploration and purchase[.]” Vacant public land is “open to prospecting, and upon 23 discovery of mineral, to location and purchase.” 43 C.F.R. § 3811.1. To locate a mining 24 claim, a person establishes the boundaries of the land claimed and records a notice or 25 certificate of location. 43 C.F.R. § 3832.1. The claim is not valid until a discovery is 26 made within the boundaries of the claim. 43 C.F.R. § 3832.11. “If the validity of the 27 claim is contested, the claimant must prove that he has made a ‘discovery’ of a valuable 28 mineral deposit thereon.” McCall v. Andrus, 628 F.2d 1185, 1188 (9th Cir. 1980), -2- Case 3:11-cv-08171-DGC Document 87 Filed 01/08/13 Page 3 of 47 1 abrogated on other grounds by Miranda v. Anchondo, 684 F.3d 844, 846 (9th Cir. 2012). 2 There is a “distinction between the exploration work which must necessarily be 3 done before a discovery, and the discovery itself.” Converse v. Udall, 399 F.2d 616, 621 4 (9th Cir. 1968). Proof of discovery is judged by the prudent person test. “Where 5 minerals have been found, and the evidence is of such a character that a person of 6 ordinary prudence would be justified in the further expenditure of his labor and means, 7 with a reasonable prospect of success, in developing a valuable mine, the requirements of 8 the statute have been met.” Chisman v. Miller, 197 U.S. 313, 322 (1905). The mineral 9 must be physically exposed to constitute a valid discovery. 10 Wilderness Society v. Dombeck, 168 F.3d 367, 375 (9th Cir. 1999). 11 “The Secretary of the Interior is charged with seeing that valid claims are 12 recognized, invalid ones eliminated, and the rights of the public preserved.” United 13 States v. Coleman, 390 U.S. 599, 600 n.1 (1968) (internal quotation, ellipses, and 14 brackets omitted). Under § 204(c) of the Federal Land Policy and Management Act 15 (“FLPMA”), the Secretary may withdraw federal land “from settlement, sale, location, or 16 entry, under some or all of the general land laws, for the purpose of limiting activities 17 under those laws in order to maintain other public values.” 43 U.S.C. § 1702(j). For 18 withdrawals of more than 5,000 acres, the Secretary must notify both houses of Congress 19 and provide them with a comprehensive report of the withdrawal. Id. at § 1714(c)(1)-(2). 20 The statute states that Congress may terminate the withdrawal by adopting a concurrent 21 resolution within 90 days. Id. at § 1714(c)(1). Withdrawals by the Secretary are limited 22 to twenty years. Id. 23 Land withdrawals under the FLPMA are subject to valid existing rights, 43 U.S.C. 24 § 1701, Note (h), but the BLM or another federal land management agency must conduct 25 a mineral examination before allowing the development of noticed claims. See, e.g., 43 26 C.F.R. § 3809.100(a) (BLM regulations). 27 determine whether the claimant had a valid claim before withdrawal and whether the 28 claim remains valid. Id. Because the right to prospect for minerals ceases on the date of -3- The purpose of this examination is to Case 3:11-cv-08171-DGC Document 87 Filed 01/08/13 Page 4 of 47 1 withdrawal, a discovery must have existed – meaning that minerals must have been 2 exposed – by the date of withdrawal. Lara v. Sec’y of Interior, 820 F.2d 1535, 1542 (9th 3 Cir. 1987). 4 II. Background. 5 On July 21, 2009, Secretary Salazar published notice of his intent “to withdraw 6 approximately 633,547 acres of public lands and 360,002 acres of National Forest System 7 lands for up to 20 years from location and entry under the Mining Law of 1872.” Notice 8 of Proposed Withdrawal, 74 Fed. Reg. 35,887, (July 21, 2009) (the “2009 Notice”). The 9 2009 Notice had the effect of withdrawing the land from location and entry for up to two 10 years to allow time for analysis, including environmental analysis under the National 11 Environmental Protection Act (“NEPA”). Id. 12 On August 26, 2009, the BLM, an agency within DOI, published notice of its 13 intent to prepare an Environmental Impact Statement (“EIS”) under NEPA addressing the 14 proposed withdrawal. 15 withdrawal as explained in the notice was “to protect the Grand Canyon watershed from 16 adverse effects of locatable mineral exploration and mining, except for those effects 17 stemming from valid existing rights.” Id. at 43,152-53. 74 Fed. Reg. 43,152 (Aug. 26, 2009). The purpose of the 18 On February 18, 2011, after soliciting public comments, the BLM issued a notice 19 of availability of a Draft EIS. 76 Fed. Reg. 9,594 (Feb. 18, 2011). The Draft EIS 20 considered four alternatives in detail: a “No Action” alternative; the withdrawal of 21 approximately 1,010,776 acres for 20 years; the withdrawal of approximately 652,986 22 acres for 20 years; and the withdrawal of 300,681 acres for 20 years. Id. at 9,595. After 23 an additional, extended opportunity for public comment, the BLM published a notice of 24 availability of the Final EIS on October 27, 2011. 76 Fed. Reg. 66,747 (Oct. 27, 2011). 25 The Secretary issued a Record of Decision (“ROD”) on January 9, 2012, choosing to 26 “withdraw from location and entry under the Mining Law, subject to valid existing rights, 27 approximately 1,006,545 acres of federal land in Northern Arizona for a 20-year period.” 28 See No. 3:12-cv-08042, Doc. 27-1 at 3. -4- Case 3:11-cv-08171-DGC Document 87 Filed 01/08/13 Page 44 of 47 1 prospector, such exploration through drilling is a key to his recreational enjoyment of the 2 land. Id. at 20-21. 3 The Court is not persuaded that NEPA’s concern with aesthetic and recreational 4 enjoyment of the natural environment extends to protecting the specific interests in 5 continued uranium mining and exploratory drilling Yount asserts. Nothing in the ROD 6 prevents Yount from perceiving the beauty of the Kaibab forest, including its natural and 7 man-made works, or continuing to hike and observe the geology and surface of the land. 8 See Doc. 33, ex. 1 at 7 (The withdrawal “does not affect disposition, use, or management 9 of the lands other than under the Mining Law, including access to and across the lands.”). 10 Although Yount asserts that he had looked forward to enjoying the beauty of the Kaibab 11 Forest while drilling on his claims and developing mining operations (Doc. 44 at 29, 12 ¶ 16), the withdrawal has only restricted Yount’s drilling and mining operations. It has 13 not otherwise prohibited him from enjoying and recreating in the Kaibab forest. 14 Moreover, the mineral development activities that Yount contends add to his aesthetic 15 enjoyment of the land are activities the Mining Law has recognized as being for the 16 purpose of economic gain and not for other purposes. United States v. Coleman, 390 17 U.S. 599, 602 (1968). Yount points to no authority showing that such interests are within 18 the zone of interests NEPA protects. The Court concludes that Yount has failed to show 19 that he has prudential standing to assert a NEPA claim. 20 F. 21 The Coalition alleges that Mohave County “has a mandate to retain environmental 22 quality and to capitalize on its wealth of natural, built and human resources.” Doc. 30, 23 ¶ 24. This includes “the ‘growth of communities that maintain the health and integrity of 24 its valuable environmental features’; the protection of ‘wetlands, washes, aquifer 25 recharge areas, areas of unique flora and fauna, and areas with scenic, historic, cultural 26 and recreational value’; and avoiding industrial development that has the ‘undesired 27 effect of increasing air pollution.’” Id. (quoting Mohave County General Plan, p. 23). 28 The Coalition. NEPA requires agencies to take into account the comments and views of local - 44 - Case 3:11-cv-08171-DGC Document 87 Filed 01/08/13 Page 45 of 47 1 governments that are authorized to develop environmental standards. 42 U.S.C. 2 § 4332(2)(C). Mohave County is authorized under state law to implement environmental 3 standards and to develop a comprehensive plan to conserve natural resources and 4 promote the “health, safety, convenience and general welfare of the public.” Doc. 72-2 at 5 5-6, ¶¶ 7-9. 6 decision interferes with its ability to carry out identified environmental objectives of its 7 state-authorized plan. These are interests that the procedural requirements of NEPA were 8 designed to protect. See, e.g., City of Davis, 521 F.2d at 672 (municipality entrusted 9 under state law with enforcing environmental standards and developing a general plan 10 had “municipal interests [that] fall within the scope of NEPA’s protections.”); Douglas 11 County, 48 F.3d 1495 (County that was authorized by state law to develop environmental 12 standards and had statutory right to comment on proposed federal action had “concrete, 13 plausible interests, within NEPA’s zone of concern for the environment” underlying its 14 asserted procedural interests.). As discussed above, Mohave County has alleged that the withdrawal 15 Defendants argue that the Coalition is precluded from bringing NEPA claims 16 because it did not raise these issues during the NEPA process. Doc. 62 at 24. To 17 challenge agency action under NEPA, plaintiffs are required “to first raise their concerns 18 with the agency to allow the agency to give the issue meaningful consideration.” Am. 19 Indep. Mines, 733 F.Supp.2d. at 1267 (internal quotation marks and citations omitted). 20 The Coalition cites to the declaration of Buster Johnson, Chairman of the Mohave County 21 Board of Supervisors, stating that the BLM did not allow the local governments to submit 22 supplemental economic data about how the withdrawal would affect their communities, 23 the BLM disregarded Mohave County’s comprehensive plan, and the Secretary ignored 24 notices and invitations from Coalition members demanding coordination with them and 25 reconciliation of inconsistencies between the withdrawal and their local plans and 26 policies. Docs. 72 at 34; 72-2 at 9-10, Decl. of Buster Johnson, ¶¶ 21-23. These 27 allegations are sufficient at the pleading stage to show that the Coalition raised issues 28 within the zone of interests of NEPA during the NEPA process. The Coalition has shown - 45 - Case 3:11-cv-08171-DGC Document 87 Filed 01/08/13 Page 46 of 47 1 that it satisfies the zone of interests test for purposes of NEPA prudential standing. 2 VI. Standing to Assert Constitutional Claim. 3 Plaintiffs NMA, NEI, and NWMA claim that the withdrawal is unlawful because 4 § 204(c)(1) of the FLPMA, which allows Congress to block any administrative 5 withdrawal of lands over 5,000 acres, is unconstitutional. Doc. *56, ¶¶ 97-107; Doc. *1, 6 ¶¶ 127-145. Plaintiffs assert that this provision constitutes an impermissible legislative 7 veto because it allows Congress to act upon a concurrent resolution without presentment 8 to the president. See, e.g., Doc. *56, ¶ 99. They further assert that § 204(c)(1) is not 9 severable from § 204(c), which governs the Secretary’s ability to withdraw public lands, 10 because Congress would not have granted the Secretary authority to withdraw more than 11 5,000 acres without reserving for itself the authority to intervene. Id., ¶¶ 102-106. Thus, 12 they allege, the Secretary’s withdrawal decision, encompassing over one million acres of 13 public land, was made pursuant to an unconstitutional provision and should be set aside. 14 Id., ¶ 107. 15 Defendants argue that Plaintiffs do not have standing to make this constitutional 16 argument because the legislative veto at issue was not exercised in this case, Plaintiffs 17 cannot claim to have been harmed by it, and its exercise in any case would have 18 terminated rather than effectuated the withdrawal. Doc. *39 at 17. Defendants also 19 argue that the FLPMA’s severability clause would allow the court to sever the legislative 20 veto from the rest of § 204(c) without disturbing the Secretary’s actions under the 21 remainder of that provision. Id. at 18. 22 Plaintiffs have standing to assert their constitutional claim. They do not claim to 23 have been harmed by a legislative veto. They claim to have been harmed by the 24 withdrawal of land under an unconstitutional law. If the withdrawal provision of the 25 FLPMA is found unconstitutional because it contains an impermissible legislative veto, 26 the withdrawal will have been ineffective and Plaintiffs’ claimed harms will be redressed. 27 Whether the legislative veto provision is severable, as Defendants argue, is a question to 28 be resolved on the merits and not at the pleading stage. - 46 - Case 3:11-cv-08171-DGC Document 87 Filed 01/08/13 Page 47 of 47 1 VII. Vane’s Voluntary Dismissal. 2 On December 26, 2012, Vane Minerals filed a notice of dismissal stating that it 3 had voluntarily dismissed its complaint, pursuant to Federal Rule of Civil Procedure 4 41(a)(1)(A)(1), in order to pursue a damages claim against the United States of America 5 in the United States Court of Federal Claims based on the same operative facts. Doc. 86. 6 Accordingly, Vane’s complaint in intervention will be dismissed without prejudice. 7 IT IS ORDERED: 8 1. Defendants’ motions to dismiss Plaintiffs Gregory Yount (Doc. 33), 9 National Mining Association and Nuclear Energy Institute (Docs. 39 and 72, No. 3:12- 10 cv-08038), Northwest Mining Association (Doc. 27, No. 3:12-cv-08042), Quaterra 11 Alaska, Inc. and Quaterra Resources, Inc. (Doc. 62), and Vane Minerals (Doc. 68) are 12 denied with respect to Plaintiffs’ non-NEPA claims, and granted with respect to 13 Plaintiffs Northwest Mining Association’s, Quaterra’s, Vane’s, and Yount’s NEPA 14 claims. 15 2. Defendants’ motion to dismiss the Arizona Utah Local Economic Coalition 16 on behalf of named member the Board of Supervisors, Mohave County (Doc. 62) is 17 denied. 18 3. Vane Mineral’s complaint (Doc. 86) is dismissed without prejudice. 19 4. The Court will address further scheduling issues in a separate order. 20 Dated this 8th day of January, 2013. 21 22 23 24 25 26 27 28 - 47 - Attachment MAPS - Minnesota Northeast Region Trust Lands - Mineral and Mining Lands Northeast Region School Trust Lands r-jsz' v/A? i .993." a Legend. Legend i-ia rdrock Mineral status Proposed Hydrogeologi-c Monitoring Well sites Bun Prospecting Permit (Gummy, Status} NFs Lands Kawismwl Ranger District Data acquired ran-m a lamina of sources u'idl?linng by Twin Mauls Minnesota, LLI: a pm; lmed Pei-nit NFS Dirnunhii: Superior National accuracy, precision. and iahbi?y. Fcalurca ransom by these aala may rial lepran USFS Pm? El Rename: LLC. Issued Pam-n - awcilw awmie geographic humus. usrs swim Human Omandhu Mums Erica'npmenl Resources Non-appmm PermitApp win; mum in. F3 hm?. 11. 2015 Dacia-nor mopunm? Pll'k Man-gamut" Ca. Nari-uper App Thia Forast Sal-Inca makes no wnn'amy. TIMI MM Sim U3. Mull! alpruasudnr inpiian regardng lha :iain cla-phyad ?Hem Drill Tm Mam mt, mm pm." ?mm Pmcipai Mnniiani. Laka and Laura mum on this map. and mam: me right in mun-2015 Dali Hem Shin upd-mie. moan. ur replace lnislnlonnmn mm - hour-Hum. ELM Mineral Lnaae Mineral Siam us. Fares! some - Eastern Regan Du Human-u Ri?d Smariur Malaria: Fares! I I MNES 1352 . R?mnw? U.S. Curigiasmna] 8 Sadat-46,7513 ?"23135} References 2 3 THE SECRETARY OF THE INTERIOR 2017 Memorandum To: Acting Director, Bur ement From: Socratary Subject: Improving m?eau of Land Management?s Planning and National Environmental Policy Act Processes On March 27, 2017, President Donald J. signed Hi. Resolution 44, which immediately nulli?ed the regulations known as Planning 2.0. I have heard many concerns about this rule and about the Bureau of Land Management?s (BLM) planning and environmental analysis processes. These concerns must be addressed. Land use planning and environmental analysis are essential to help promote and improve informed decisiomnaking and to involve our state, local government, and tribal partners, as well the public in that process for our public lands. However, important projects and decisions are sometimes excessively delayed and agency land and resource management actions languish in a quagmire of plans, studies, and regulatory reviews. Often these additional steps are not a. crucial part of a successful planning effort, informing the public, or communicating the impacts and tradeoffs involved in a decision. The BLM manages almost 13 percent of the surface area in the United States and roughly one?third of its mineral resources. There is little doubt that BLM has a big job in managing our public lands for a wide variety of activities. These activities contribute to the economic health and prosperity of states and local communities by creating jobs through mt?tiple use. Yet each year, BLM spends $48 million for the planning process and completes more than 5,000 documents to comply with the National Environmental Policy Act (NEPA). Some of those funds and sta? time would be better applied toward completing work on the ground and creating economic opportunities. The feedback I have received from many of our State and local partners and the public is that the system is broken, unnecessarily and burdensome, and does not produce the result demanded by the American people. The result demanded is to have an effective, ef?cient, and transparent process that 1) takes less time, 2) costs less money, and 3) is more responsive to local needs. For these reasons, I am directing BLM to go back to the drawing board to de?ne actionable items that will make a measurable impact on improving the Federal planning process. Fostering a Good Neighbor Peta? and Restoring the @p 1.2? Use Mission?e BLM I hereby direct BLM, in accordance with its multiple-use mission, to immediately begin a focused effort to identify and implement results~oriented improvements to its land use planning and NEPA processes. As part of this effort, BLM will identify where redundancies and inef?cient processes exist and should be eliminated, while ensuring that we ful?ll our legal and resource stowardship responsibilities. These concepts are not mutually exclusive and should guide BLM as it undertakes this effort. The BLM will take a hard look at all aspects of the planning process, including challenges with NEPA, and shall incorporate the views and ideas of our state and local partners in examining and implementing solutions that meet the following criteria: 1. Finding better ways to incorporate and partner with state planning e?orts; 2. Reducing duplicative and disproportionate analyses; 3. Considering more user-friendly representation of the planning process so stakeholders can easily determine status; 4. Fostering greater transparency in the NEPA process, including proper accounting of time?ames, delays, and ?nancial cost of NEPA analyses; Seeking Opportunities to avoid delays caused by appeals and litigation; 6. Building trust with our neighbors through better integration of the needs of state and local governments, tribal partners, and other stakeholders; and 7. Developing and implementing e?orts to ?right size? environmental documents instead of defaulting to preparing an Environmental Impact Statement in circumstances when such a document is not absolutely needed. As ELM evaluates all potential solutions, it shall also include in its analysis how a new rulemaking will meet the aforementioned criteria. In conducting this analySis, BLM shall make every effort to restore order, focus, and ef?ciency to the Federal land planning process. These efforts will align with the President?s and my priorities and values: Making America Safe though Energy Independence; Making America Great Through Shared Conservation Stewardship; Making America Safe Restoring our Sovereignty; Getting America Back to Work; and Serving the American Family. Please deliver a report to me by no later than 6 months from today that describes your progress and how it will bene?t future planning decisions and activities. The report should also provide recommendations for any regulatory or legislative actions necessary to meet the above goals. Attomey-Client Privilege/Attorney Work Product BRIEFING MEMORANDUM DATE: April 21. 2017 FROM: Karen Hawbecker Associate Soliciton Mineral Resources SUBJECT: ranconia AIinera/s v. United States, No. 16-3042 (D. Minn.) Involving the Denied Renewal of Federal Hardrock Mineral Leases MNES 1352 and 1353 Attoniey-Client Pi?iVileged/Attomey Work Product MEMORANDUM FOR THE SECRETARY DATE: April XX. 2017 FROM: Office of the Solicitor, Divisions of Mineral and Land Resources SUBJECT: Options for Reversal of Rejection of Twin Metals Mnmesota?s Lease Renewal Application and Solicitor?s M-Opinion 37036 lication. environlnental non-govelmnental organizations GOs would likel challenge that modi?cations to the inion might be a to Hate given information Twin Metals has recentl ON Updated 0405] 7 - Signi?cant Litigation Deadlines Formatted: Font: Not Bold Formatted: Formatted: Formatted: Formatted: Formatted: Formatted: Formatted: Formatted: Formatted: Formatted: Font: Bold, Italic Font: Italic Font: Italic Font: Bold, Italic Font: Italic Font: Bold, Italic Font: Italic Font: Bold, Italic Font: Italic Font: Bold, Italic Formatted: Formatted Formatted: Formatted: Formatted: Formatted: Formatted: Font: Bold, Italic, Font color. 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Black Font colon Black Formatted: Font: Bold, Font color: Black Formatted: Font colon Black Formatted: Font: Bold, Italic Formatted: Font: Bold Formatted: Font: Bold Formatted: Font: Bold, Italic Formatted: Font: Bold, Italic. Highlight Formatted: Font: Bold, Highlight Formatted: Font: Bold, Highlight Formatted: Font: Bold, Highlight Formatted: Highlight Formatted 2 Font colon Custom Color(RG I Formatted 2 Font: Bold, Font colon Custom Color(RG Formatted Formatted Highlight 2 Font colon Custom Color(RG 2 Font: Bold, Italic. Font color. Black. Formatted: Font: Bold, Font colon Black. Highlight Formatted: Formatted: Font: Bold, Font color. Black. Highlight Font: Bold, Font color. Black. Highlight Formatted Formatted: Formatted: Font colon Black. Highlight Font: Bold Font: Bold, Italic. Highlight Formatted: Formatted: Formatted: Font: Bold, Highlight Font: Bold, Highlight Font: Bold, Highlight Formatted: Formatted Highlight 2 Font colon Custom Color(RG I Formatted 2 Font: Bold, Font colon Custom Color(RG Formatted 2 Font colon Custom Color(RG Attomey-Client Privilege/Attorney Work Product BRIEFING MEMORANDUM DATE: April 26. 2017 FROM: Karen Hawbecker Associate Soliciton Mineral Resources Department of the Interior. Of?ce of the Solicitor SUBJECT: D01 and USDA Denied Renewal of Twin Metals? Federal Hardrock Mineral Leases MNES 1352 and 1353 and related litigation rmtconia A?nera/s v. United States. No. 16-3042 (D. Minn.) Wednesday, April 26, 2017 I. OSMRE Farrell-Cooper briefing A. Marfork and Usibelli attorneys fees negotiations B. II. BLM A. Twin Metals D. Earthworks B. HF rule Kane County E. F. III. BLM Response to S.O. 3349, Sections 5(c)(i), (ii), and (v) BSEE A. Bennu suspension requests D. Taylor FOIA stay B. Jorjani contractor enforcement meeting D. IV. Alaska Suspensions BOEM A. B. C. NRDC Gulf seismic Five Year Program FWS Gulf of Mexico bi-op D. E. F. Air Quality rule Hilcorps-PHMSA-BOEM attorney call Draft memos for your review: Enforcement of bonding orders Automatic severance policy Attomey-Client Privilege/Attorney Work Product BRIEFING MEMORANDUM DATE: April 21. 2017 FROM: Karen Hawbecker Associate Soliciton Mineral Resources SUBJECT: ranconia AIinera/s v. United States, No. 16-3042 (D. Minn.) Involving the Denied Renewal of Federal Hardrock Mineral Leases MNES 1352 and 1353 Attoniey-Client Pi?iVileged/Attomey Work Product MEMORANDUM FOR THE SECRETARY DATE: April XX. 2017 FROM: Office of the Solicitor, Divisions of Mineral and Land Resources SUBJECT: Options for Reversal of Rejection of Twin Metals Mnmesota?s Lease Renewal Application and Solicitor?s M-Opinion 37036 Friday, April 14, 2017 I. II. OSMRE A. BLM 1. Marfork and Usibelli 2. Defender of Wildlife cases A. WEA V&F rule case C. Twin Metals B. D. E. F. G. H. III. Attorney’s fees negotiations I. BSEE WEA quarterly lease sale case Coal working group report Coal Moratorium Cases (Kane County and Citizens for Clean Energy) HF rule update Juliana Earthworks BLM Meeting with WEA and others on measurement rules - May 4 A. Island Operating recommendation (and IBLA filings citing district court decision) B. ASRC suspension request D. Draft memo for your review: Royalty relief and decommissioning C. Taylor E. III. BOEM A. Joint RUE Rule Five Year Program B. Presidential authority to revoke withdrawal D. Opinion on ESA terms and conditions C. E. F. G. Federal Register publication of NTLs Fisheries Survival Fund Gulf G & G Draft memo for your review: Enforcement memo WEEKLY REPORT TO THE SOLICITOR DEPARTMENT OF THE INTERIOR April 12, 2017 Of?ce of the Solicitor Week Ahead Schedule of Meetin 5 Con ressional Hearin and Travel Week Ahead Announcements and Actions SIGNIFICANT LITIGATION DEADLINES FOR NEXT TWO WEEKS SEPARATELY REPORTED NEW CASES: Updated 0405] 7 - Signi?cant Litigation Deadlines Formatted: Font: Italic Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font colon Black. Not Highlight Formatted: Font: Bold, Italic. Font color. 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Enforcement memo A. Island Operating recommendation C. Alaska and Gulf suspensions B. D. E. Taylor Secretarial order to review burdensome actions Draft memo for your review: 1. Royalty relief and decommissioning Wednesday, March 29, 2017 I. II. OSMRE A. B. BLM Farrell Cooper and Senator Inhofe A. WEA V&F rule case C. Leonardite briefing B. D. E. F. G. III. SPR debris--status of the four actions BOEM A. WEA quarterly lease sale case Twin Metals briefing level Coal working group report/Executive Order ASLM briefing on Onshore Orders and V&F rule Earthworks Presidential authority to revoke withdrawal B. Eni exploration plan D. Bonding C. E. F. Automatic severance of operating rights Renewable energy & OCSLA purposes Draft memos for your review: IV. BSEE 1. Enforcement memo A. Taylor C. Alaska SOO request B. D. E. Pacific well stim litigation BAST briefing Draft memo for your review: 1. 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Appendix B: Superior National Forest References CANADA Data acquiredMavm ofsoumeso'dmemg - SNF Fee Simple Public Domain Lands accuracy, precision, and reliability. Features SNF Fee Simple Acquired Lands ??twr?fgu?m?wm? Application Boundary December 5, 2016 Superior National Forest 4th Principal Meridian, Cook, Lake, St. Louis, BWCAW Lands WithdraWn from mineral entry Itasca and Koochiching Counties, State of Minnesota Disclaimer Mining Protection Area - Lands withdrawn from mineral entry The USDA Forest Service makes no wananty, ontano' canada expressed or implied regarding the data dispiaved Minnesota Boundary on this map, and reserves the right to correct, . update, or replace this infomration without Natlonal ForeSt Boundary noti?cation Voyageur National Park Boundary US. Forest Service - Region 9 Minnesota Superior National Forest Wisconsin 'k '"neapd's St. Paul 0 105 210 420 a: Miles VVITHDRAWAL OPTIONS Attomey-Client Privilege/Attorney Work Product BRIEFING MEMORANDUM FOR THE SOL TRANSITION TEAM DATE: March 22. 2017 FROM: Karen Hawbecker Associate Soliciton Mineral Resources SUBJECT: ranconia AIinera/s v. United States, No. 16-3042 (D. Minn.) Involving the Denied Renewal of Federal Hardrock Mineral Leases MNES 1352 and 1353 Updated 0315] 7 - Signi?cant Litigation Deadlines Formatted: Font: Bold, Italic. Font color. Custom Formatted: Font: Italic Formatted: Font: Italic Formatted: Font: Bold, Italic Formatted: Font: Bold Formatted: Font: Bold, Italic Formatted: Font: Italic Formatted: Font: Bold, Italic Formatted: Font: Bold, Italic, Font color. Black. Highlight - Formatted: Font: Bold, Font color. Black. Highlight Formatted: Font: Bold, Italic. Font color. Black. Highlight Formatted: Font: Bold, Font color. Black. Highlight Formatted: Font color. 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Custom Color(RG Formatted: Font color: Custom Color(RG - Formatted: Font: Bold, Font color: Custom Formatted: Font colon Custom Color(RG Thursday, March 23, 2017 I. OSMRE a. SPR debris 1. Federal register issues 2. Possible stay of all four actions b. Inaction on granted petitions for rulemaking c. Marfork/Usibelli d. Briefings: 1. Johnson Families–yesterday 2. Post SPR ESA compliance–Friday at 2 pm 3. AML/UMWA–Friday, 3/21, at 3 pm II. BLM a. Waste Prevention Rule Litigation b. WEA Quarterly Lease Sale c. Leonardite briefing paper d. Mineral material sales for Federal Aid Highway projects e. Twin Metals briefing – need to schedule f. Pit River (PNW lead) recommendation to appeal (appeal deadline March 31) III. BOEM/BSEE a. BOEM 1. ESA consultation Gulf of Mexico 2. Compensatory mitigation 3. Bond demands on prior lessees 1 4. Automatic severance of operating rights 5. Draft memos for your review: a. Third party guarantees limited to decommissioning b. Enforcement memo b. BSEE 1. Island Operating 2. Taylor 3. Pacific well stim litigation 4. Alaska SOO request 5. Conn Bond for Chevron Decommissioning 6. Draft memo for your review: Royalty relief and decommissioning 2 03011 7 - Significant Litigation Deadlines Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold - Commented Matter stayed un il 4/10/17. Commented m? Formatted: Font: Not Bold Formatted: Font color: Custom Color(RG Formatted: Font: Bold Formatted: Font: Bold, Italic Formatted: Font: Bold Formatted: Font: Bold, Font color: Custom Highlight Formatted: Font colon Custom Color(RG Highlight Formatted: Font: Bold, Font color: Custom Highlight Formatted: Font colon Custom Color(RG Highlight Formatted: Font: (Default) Cambria, 11 pt, Font colon Custom Highlight Formatted: Font colon Custom Color(RG Highlight Formatted: Font: 11 pt. Font color: Custom Highlight \l Formatted: Font: (Default) Cambria, 11 pt. 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Font color: Custom Formatted: Font: Bold, Font color: Custom Formatted: Font: Bold, Font color: Custom Formatted: Font colon Custom Color(RG Formatted: Font: Bold, Font colon Custom Formatted: Font colon Custom Color(RG Formatted: Font: Bold, Font colon Custom Formatted: Font colon Custom Color(RG Formatted: Font: Bold, Font colon Custom Formatted: Font colon Custom Color(RG Date: March 3. 2017 To: Jack Haugiud Acting Principal Deputy Solicitor From: Karen Hawbecker Associate Solicitor Division of Mineral Resources Re: DMR Friday Updates to Weekly Report Below is a list of new or updated items that did not appear in the weekly report that may require the attention of the front of?ce during the week of March 6-10 or thereafter: Signi?cant Decisions: 0 Nothing to report. Litigation: Legislation: 0 Nothing to report. Correspondence/Agency Actions: Rulemakings: 0 Nothing to report this week. 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Not Highlight Font colon Black. Not Highlight Font: Bold, Font color: Black. Not Highlight Formatted: Formatted: Font colon Black. Not Highlight Formatted: Font: Bold, Font color: Black. Not Highlight Formatted: Font color. Black. Not Highlight "a Formatted: Font: Bold, Italic Formatted: Font: Bold l\ Formatted: Formatted: Formatted: Formatted: Font: Bold Font: Bold Font: Bold Font: Bold, Italic Formatted: Font: Bold Formatted: Font: Bold Formatted: Font: Bold Wednesday, March 1, 2017 I. OSMRE a. Penn. Fed. settlement b. UMWAF draft report and OSM response c. SPR debris 1. ESA recommendation memo 2. Response to intervention motion 3. Murray FOIA suit d. Briefings: 1. TDN process – Thursday at 2 pm 2. AML 3. UMWAF/IG investigation 4. Usibelli/Marfork 5. Johnson Families II. BLM a. Twin Metals b. Coal Moratorium/PEIS c. Juliana v. U.S. update d. Waste Prevention Rule Litigation e. HF rule litigation ASLM briefing – Thursday at 4 pm III. BOEM/BSEE a. BOEM 1. Upcoming ASLM briefings March 6, 1:30 p.m. North Carolina renewable sale 2. Atlantic seismic 3. Gulf NEPA for sales 1 4. Gulf NEPA for plans 5. Air Quality Studies 6. Louisiana 8(g) case 7. Five Year Program EIS 8. Correspondence with Save Our Sound 9. Draft memos for your review: a. Third party guarantees limited to Decommissioning b. Enforcement memo b. BSEE 1. Taylor 2. Pacific well stim litigation 3. Island Operating briefings 4. Maintenance and Monitoring orders 5. Draft memos for your review: a. Authority to decommission b. Royalty Relief and Decommissioning 2 Date: Febiuaiy 24. 2017 To: Jack Haugiud Acting Principal Deputy Solicitor From: Karen Hawbecker Associate Solicitor Division of Mineral Resources Re: DMR Friday Updates to Weekly Report Below is a list of new or updated items that did not appear in the weekly report that may require the attention of the front of?ce during the week of Febiuaiy 27-March 3 or thereafter: Signi?cant Decisions: 0 Nothing to report. Litigation: 2 I I I I I Legislation: 0 Nothing to report. Correspondence/Agency Actions: Rulemakings: 0 Nothing to report this week. Meetings: cc: T0111 Bovard/Dennis Daugherty/Richard McNeer WEEKLY REPORT TO THE SECRETARY DEPARTNIENT OF THE INTERIOR February 23, 2017 Of?ce of the Solicitor Week Ahead Schedule of MeetingsI Hearings: and Travel Week Ahead Announcements and Actions SIGNIFICANT LITIGATION DEADLINES FOR NEXT THREE WEEKS SEPARATELY REPORTED NEW CASES: SIGNIFICANT DECISIONS: Nothing to 1?ep011. OTHER LITIGATION NIATTERS: ranconia Minerals v. United States (D. Minn.) Challenge to Twin Metals M-Opinion, Non-consent Determination, and Lease Renewal Denials Twin Metals ?led an amended complaint with the 001111 011 anualy 3. Plaintiffs have agreed to a 60-day extension of the deadline for the goverinnent to ?le a response. The current deadline to respond is May 5. 2017. NON-LITIGATION MATTERS: Assistant Secretary for Fish and Wildlife and Parks Week Ahead Schedule of Meetings, Hearings, and Travel No meetings, hearings, or travel scheduled for Maureen Foster or Virginia Johnson. FWS Acting Director Jim Kurth has no travel planned through March 3. Until February 24, NPS Acting Director Michael Reynolds will visit Organ Pipe Cactus National Monument and Coronado National Monument in Arizona and meet with NPS staff and regional partners to better understand park operations and border management issues. Week Ahead Announcements and Actions On February 23, the NPS will host an opening event for the Selma Interpretive Center, a part of the Selma to Montgomery National Historic Trail. The Selma Interpretive Center has been expanded to include two additional floors and new exhibits. Congresswoman Terri Sewell (DAL-7) and Alabama State Representative Darrio Melton are expected to attend. FWS has advised that on February 23, FWS will post its recently completed status review of the polar bear. After a thorough review of new and updated scientific information on the polar bear’s biology and threats, FWS concluded that it continues to meet the definition of a threatened species under the ESA. A news bulletin will be posted to regional website, otherwise no outreach planned. (Note: We are trying to confirm that the date is still good; we are awaiting word from FWS.) On February 24, fifth grade students from the District of Columbia Watkins Elementary School will take turns reciting a portion of Dr. King’s “I Have a Dream” speech at the Lincoln Memorial. This annual program is associated with Dr. Martin Luther King, Jr.’s birthday. On February 24, the Charles Young Buffalo Soldiers National Monument will host an annual Black History Month event at Kiser Elementary School in Dayton, Ohio. Former NFL player Darryl Haley is a featured participant, as are members of the ROTC program at Central State University that is named after Colonel Young. Congresswoman Joyce Beatty (D-3-OH) will attend and a representative from Congressman Turner's (R-10-OH) office will attend. U.S. Fish and Wildlife Service Week Ahead Schedule of Meetings, Hearings, and Travel On March 2, FWS Pacific Region leadership will take part in the Oregon Zoo Education Center Grand Opening ceremonies. The Service is a working partner in this innovative state-of-the-art facility and has an interpretive specialist on staff working with the zoo to communicate our shared conservation messages. Media and dignitaries will be in attendance. Week Ahead Announcements and Actions Marine Mammal Protection Act Actions On February 23, FWS will post its recently completed status review of the polar bear. After a thorough review of new and updated scientific information on the polar bear’s biology and threats, FWS concluded that it continues to meet the definition of a threatened species under the ESA. A news bulletin will be posted to regional website, otherwise no outreach planned. In March, FWS will send to the Federal Register draft population assessment reports for the Southern Beaufort Sea and Chukchi-Bering seas populations of polar bear in Alaska, and open a 90-day public comment period. Outreach is planned. National Park Service Week Ahead Schedule of Meetings, Hearings, and Travel On February 25, Acting Director Michael Reynolds will attend the Association for the Study of African American Life and History (ASALH) Luncheon in Washington, D.C., including a Memorandum of Understanding (MOU) signing ceremony with ASALH President Dr. Evelyn Higginbotham. The NPS has a long-standing relationship with ASALH, and the MOU is part of on-going effort to consolidate multiple joint agreements with the organization. Founded by African American historian Carter G. Woodson, the ASALH organization works to promote, research, preserve, and disseminate information about Black life, history and culture. Congressman James E. Clyburn (D-SC) will attend the luncheon and make remarks. Week Ahead Announcements and Actions On February 23, Golden Gate National Recreation Area will open the new Presidio Visitor Center in partnership with the Presidio Trust and Golden Gate National Parks Conservancy. House Minority Leader Nancy Pelosi has tentatively accepted an invitation from the Presidio Trust to speak at the ribbon-cutting that morning. On February 23, Galápagos and Joshua Tree National Parks will enter into a sister park agreement. In addition to similar resource issues related to tortoises and desert ecosystems, the two parks are dealing with capacity issues, the effects of climate change, and the effects of ecotourism on park resources and visitor enjoyment. Local and national conservation groups will be on hand for the ceremony as well as staff from Representatives Cook and Ruiz's offices. On February 24, Nez Perce National Historical Park anticipates announcing a Finding of No Significant Impact for the Environmental Assessment: Improve Visitor Services at Bear Paw Battlefield (EA). The EA considers alternatives for replacement of existing structures to provide work space for staff, and rehabilitation of culturally sensitive areas. On February 26, Denali National Park marks its 100th anniversary. Events will be held throughout the year, and statewide media coverage is anticipated. The Alaska Congressional Delegation and media are being kept apprised of events and opportunities for participation. On February 26, there will be a special preview of the Carter G. Woodson Home National Historic Site to celebrate the completion of phase one of restoration. Dignitaries expected to attend include Delegate Norton, Washington D.C. Mayor Bowser, Superintendent Tara Morrison, former NPS Director Robert Stanton, the President of the Association for the Study of African American Life and History (ASALH), and the Grand Basileus of the Omega Psi Phi Fraternity. The event includes a media tour, tours of the home, and a ceremony and reception. Public tours (on weekends) are expected to begin after Memorial Day. During the week of February 27, several NPS law enforcement rangers and U.S. Park Police officers are scheduled to testify in the trial of several Cliven Bundy supporters related to the April 2014 round up of Mr. Bundy's trespassing cattle on Bureau of Land Management and NPS Land near Bunkerville, Nevada. The U.S. Attorney's Office is the lead for the case with assistance from the Department of the Interior’s Solicitor's Office. The NPS anticipates media coverage of the trial. During the week of February 27, Rock Creek Park anticipates announcing the closure of the Carter Barron Amphitheatre for 2017 due to structural concerns. A recent structural assessment identified major structural and safety concerns. Notification for District of Columbia Delegate Eleanor Holmes Norton and interested local council members is underway. Several options for repair are being investigated, as well as alternative locations for performances, including Fort Dupont Park’s Summer Theatre. The NPS anticipates some local media interest. On February 27, the criminal trial for Gil Gaxiola is slated to begin. Gaxiola is charged with attempted murder of an NPS employee at Ciricahua National Monument on August 28, 2013, as well as, armed robbery, aggravated assault, kidnapping and theft as a means of transportation. The assaulted employee was found unconscious in a restroom. Gaxiola was arrested several months later by U.S. Border Patrol agents in Douglas, Arizona. Due to the complexities of the case, the trial been delayed several times. Cochise County is the lead prosecuting agency. On or about February 27, the NPS will announce a Prospectus for concession operations opportunity at Carlsbad Caverns National Park. The current concession operation is located in the Visitor Center and underground in the Cavern, which includes food services and a gift shop. The gift shop offers clothing, a variety of small gifts, and Native American jewelry and pottery. The concession contract will be awarded for a 10-year period starting January 1, 2018. On February 28, the NPS will participate in the annual meeting of the Garden Club of America (GCA). The GCA and the NPS recently signed an MOU to work together on conservation and education programs. Discussions at the meeting will include background on the history of cooperation between GCA and the NPS, the value of volunteer efforts such as GCA’s Partners for Plants program, and projects that illustrate progress on addressing invasive species or assist with habitat restoration. On February 28, the Superintendent of the Mississippi National River and Recreation Area and U.S. Corps of Engineers staff will meet with 11 people from China’s Hunan Water Transportation Construction & Investment Group Corporation who have been brought to the USA by the America-China Cultural and Educational Foundation (ACCEF) for a Hunan State sanctioned visit. The purpose of the trip is to learn more about the U.S. navigation system on the Mississippi River. There is a potential for media coverage. On February 28, Stones River National Battlefield Superintendent Brenda Waters will visit the offices of Sen. Lamar Alexander (R-TN), Sen. Bob Corker (R-TN), and Rep. Scott DeJarlais (RTN-4) to provide them with an update on issues at the park as a courtesy visit. She will be accompanied by staff from the NPS Office of Legislative and Congressional Affairs. On February 28, Rock Creek Park will host a tour for a Special American Business Internship Training (SABIT) group at the request of the Department of Commerce. The NPS will provide an orientation to the rehabilitation project on Beach Drive for a delegation of international road construction executives from Russia, the Ukraine and several other countries. Assistant Secretary - Indian Affairs and the Bureaus of Indian Affairs and Indian Education Week Ahead Schedule of Meetings, Hearings, and Travel Nothing to report. Week Ahead Announcements and Actions Indian Affairs has made selections for the 2017 Indian Affairs Student Leadership Summer Institute. Launched in summer 2016, the 10 week paid internship placed 17 Native undergraduate and graduate students in leadership offices across Indian Affairs. The program’s mission is to engage and support the next generation of Native leaders in the federal government through an introduction to the government-to-government relationship between tribal nations and the United States. Indian Affairs received more than 60 applications for summer 2017. Hiring of the interns is currently on hold during the hiring freeze. On February 22, Victoria Tauli-Corpuz, Special Rapporteur (SR) on the Rights of Indigenous Peoples, will meet with DOI officials as part of the SR mandate to promote indigenous rights. DOI Office of International Affairs is the lead for organizing the meeting and is working with Dept. of State. The meeting will include representatives from the AS-IA Office, Office of the Solicitor, Office of the Special Trustee, Bureau of Land Management, Bureau of Reclamation, the Secretary’s Indian Water Rights Office, the National Park Service, and the US Geological Survey. The SR will then be meeting at the offices of EPA, ACHP, HHS, USACE on Feb. 22 and 23 in DC, will then travel to AZ, NM, and ND to meet with tribes, local officials, and federal field staff until her trip concludes on March 3. On February 23, 2017, the Interior Department will hold the first of seven tribal consultation sessions on its advanced notice of proposed rulemaking (ANPRM) to solicit oral and written comments on whether to propose an administrative rule that would comprehensively update 25 CFR Part 140 (Licensed Indian Traders), 8:30 a.m. – 12:00 p.m. PST, Anacortes, WA at Swinomish Casino & Lodge, per the Federal Register notices dated 12/9/16 and 2/8/17. On February 28, the second consultation will be held in Miami, Florida. Office of the Special Trustee for American Indians (OST) Week Ahead Schedule of Meetings, Hearings, and Travel Acting Special Trustee, Deb DuMontier will be in Albuquerque, NM February 21-24, 2017, meeting with IBC leadership, the Deputy Special Trustee Governance Committee and OST senior leadership to prioritize initiatives at OST Headquarters-West. Week Ahead Announcements - Presidential and Department/Agency Priorities OST continues to work with both Gila River and San Carlos Tribes regarding their respective withdrawal requests pursuant to the American Indian Trust Fund Management Reform Act of 1994. Assistant Secretary for Land and Minerals Management Week Ahead Schedule of Meetings, Hearings, and Travel Acting ASLM Rich Cardinale will be in Washington, DC attending regularly scheduled meetings. ASLM Special Assistant Kate MacGregor will be in Washington, DC attending regularly scheduled meetings. BLM Acting Director Kristin Bail will be in Washington, DC attending regularly scheduled meetings. BLM Acting Deputy Director Jerry Perez will travel to Sacramento, CA on February 24 and will remain at BLM’s CA State Office in Sacramento through February 28. He will travel to the BLM’s National Operations Center on March 1 to participate in an all-hands meeting and to meet with NOC leadership; he will return to DC on March 3. OSMRE Acting Director Glenda Owens will be in Washington, DC attending regularly scheduled meetings. BSEE Acting Director Margaret Schneider will be in Washington, DC attending regularly scheduled meetings. BOEM Acting Director Walter Cruickshank will be in Washington, DC attending regularly scheduled meetings. Week Ahead Announcements and Actions On February 22 - 25, the Mineral Resources Report of the Sagebrush Focal Areas in ID, MT, NV, OR, UT, and WY will be available. BLM received 600 copies of the report from the USGS, and plans to distribute the report at eight public meetings in February. Remaining meetings include Lakewood, OR (2/22), Elko, NV (2/23), and Boise, ID (2/24). This topic is controversial. On February 22 - March 9, BLM-AK will hold Central Yukon Resource Management Plan/Environmental Impact Statement (RMP/EIS) public meetings in Anchorage (Feb. 22); Fairbanks (Feb. 27); Venetie (Feb. 28); Coldfoot and Wiseman (March 2); and Nenana (March 9). The RMP/EIS will provide future direction for approximately 13 million acres of BLMmanaged land in central and northern AK, including the Dalton Highway Corridor and central Yukon River watershed. On February 23, majority staff from the House Appropriations Interior Subcommittee Majority Staff will meet with Amy Lueders, BLM-NM State Director, to tour the Rio Grande del Norte National Monument. On February 23, the BLM-CO White River Field Office will meet with representatives of the Ute Indian Tribe of the Uintah and Ouray Reservation in Vernal to discuss the Tribe’s proposal to purchase 2,452 acres of BLM-administered land near Dinosaur, CO to build a casino. A resource management plan (RMP) amendment would be needed before the land could be sold. On February 23, BLM-OR/WA will present at the Applegate Partnership and Watershed Council in Jacksonville, OR. The presentation will address upcoming agency projects, including the Pickett West Timber Sale proposal and forest resiliency. Medford District Manager Elizabeth Berghard will present for BLM. On February 23, BOEM plans to meet with the Danish Energy Agency to discuss and plan initiatives for 2017 in several key areas of BOEM’s renewable energy program. In 2016, BOEM executed a Memorandum of Understanding with the Danish Government that provides a mechanism for bilateral information and research initiatives to inform BOEM’s renewable energy program, including programmatic streamlining efforts. On or before February 24, BOEM and DoD will hold a kickoff meeting for an interagency working group that was chartered following high-level meetings held on February 2 and 9, pertaining to Geological and Geophysical (G&G) activities in the Eastern Gulf of Mexico (EGoM). The purpose of the working group is to formalize procedures governing coordination for G&G permitting activities east of the military mission line in the EGoM. On February 25, the Northern Nevada Correctional Center (NNCC) will offer fifteen to twenty wild horses for competitive-bid adoption. These horses were gathered from ranges on BLMadministered public lands in NV and CA and have been saddle-trained by inmate trainers in the NNCC program. In October 2016, the program held a similar competitive-bid adoption with successful bidders paying a total of $38,950 for fifteen horses. On February 25 – March 1, the National Association of Counties (NACo) Annual Legislative Conference will be held in Washington, DC. Cynthia Moses-Nedd, Acting Division Chief, BLM Intergovernmental and External Affairs, will attend the meeting. On February 25 - March 6, Brian St. George, BLM Colorado DSD for Resources and Fire, will travel to Kenya to participate in a Department of the Interior- International Technical Assistance Program project to combat wildlife trafficking. Discussion topics will include governance and peace, security and illegal wildlife trade, rangelands, marine and forest management, wildlife, and enterprise development. Beginning the week of February 26, the BLM-ID Challis Field Office plans to capture up to 150 wild horses through bait trapping and remove up to 50 within the Challis Herd Management Area (HMA) to reach the Appropriate Management Level (AML) of 185 - 253. The current population estimate is 285. The gather is expected to be completed by mid-April. On February 27, the annual America Outdoors Association (AOA) meeting will be held in Washington, D.C. AOA representatives will visit land management agencies during this meeting. AOA represents over 550 companies that provide a wide range of outdoor recreation services. Any Tenney, Chief of the BLM’s Division of Recreation & Visitor Services will represent the BLM. On February 27, the BLM-WY Casper Field Office Manager Tim Wilson, and Stephanie Connolly, the High Plains District Manager, will briefing local staff of the WY Congressional delegation. Topics will include the Bates Hole Travel and Transportation Management Plan, the oil and gas permitting workload, and a recent trespass by the Bummer Ranch onto BLMadministered public lands. On February 28, an Indefinite Delivery and Indefinite Quantity (IDIQ) contract to inventory and monitor lands with wilderness characteristics will be developed for review and posting by the BLM National Operations Center. Each inventory is a snapshot of the existing character of the landscape at a particular time. The BLM will continue to update the inventories as inventoried conditions on the ground change over time in response to both human activities and natural environmental changes. By February 28, the BLM-UT Price Field Office will release for public review an Environmental Assessment that analyzes a recreation management plan for the Joe’s Valley Bouldering Area. The Joe’s Valley Extensive Resource Management Area (ERMA) encompasses 24,930 acres located in north-central Emery County, Utah. Over one million people live within driving distance of Joe’s Valley, and the area receives many visitors. On February 28, BOEM plans to publish the Proposed Notice of Sale for the Cook Inlet Lease Sale 244. The lease sale is tentatively scheduled for June 21, 2017. By February 28, BLM-AK anticipates publishing a Notice of Intent (NOI) to prepare an Environmental Impact Statement (EIS) for the Ambler Mining District Industrial Access Road. The Alaska Industrial Development and Export Authority submitted an application for a proposed right-of-way to allow the construction of a 211-mile-long, all-season industrial access road. The proposed road would cross approximately 24 miles of BLM-managed lands and 26 miles of the Gates of the Arctic National Preserve. The portion of the road that would traverse the Preserve was authorized statutorily under the Alaska National Interest Lands Conservation Act. In late February, provided the BLM receives Departmental approval to proceed, BLM-UT anticipates issuing a Record of Decision (ROD) on an Environmental Assessment (EA) of mixed trail use in the Recapture Canyon area, located east of Blanding and San Juan County. The ROD would lift an 1871-acre closure order in Recapture Canyon that was issued in 2007, and designate certain trails for all-terrain vehicle (ATV) use, while protecting important riparian and cultural areas. This area became the focus of national media attention in May 2014 when a group staged an unauthorized ATV ride to protest the closure of Recapture Canyon to AVTs. In late February, BSEE anticipates receiving a report from the National Academy of Public Administration detailing its assessment of BSEE’s organization, strategic direction, policy and process development, infrastructure, systems, and technology. Acting ASLM Rich Cardinale and Special Kate MacGregor joined BSEE Acting Director Margaret Schneider at a briefing by Joe Mitchell, NAPA’s Director of Academy Programs, and Pam Haze, NAPA Senior Advisor, regarding the substance of the report and NAPA’s recommendation. NAPA anticipates transmitting the final report to BSEE on March 15, 2017. In late February, BLM-NV plans to issue the final Dixie Meadows Geothermal Project EA and Finding of No Significant Impact (FONSI). The project area consists of approximately 22,021 acres of public land. The project proponent (Ormat) seeks approval to drill several types of wells (temperature gradient wells, test observation wells, and production wells) at up to 20 specific locations located approximately 75 miles northeast of the Fallon, NV. In late February, BSEE will submit required renewals for Information Collection Notices for publication in the Federal Register to renew approval for Federal information collection related to Applications for Permit to Drill (APD), Applications for Permit to Modify (APM), platform and structure information submittals, and pipeline access information submittals. In late February or early March, BOEM plans to publish a Notice of Intent (NOI) to prepare a Draft Supplemental EIS for the Cape Wind Energy Project. The U.S. Court of Appeals vacated the 2009 Final EIS due to a deficiency in the determination that the sea floor could support wind turbine structures. BOEM is preparing a Draft Supplemental EIS that reanalyzes this issue. BOEM plans to follow publication of the NOI with a Notice of Availability of the Draft Supplemental EIS on March 14. BOEM agreed to publish the Final Supplemental EIS by August 2017. In February, the BLM-UT Moab Field Office will release for public review an EA for the Needles and Anticline Overlook (Canyon Rims) Road Improvement Project to improve public access and safety. The area is near the Bears Ears National Monument. On March 1, BOEM tentatively plans to sign a Memorandum of Agreement (MOA) with the Army Corps of Engineers (USACE) authorizing the use of Outer Continental Shelf (OCS) sand for the Mississippi Coastal Improvements Program Comprehensive Barrier Island Restoration Project (MsCIP) in the Gulf of Mexico. BOEM was a cooperating agency during the preparation of the 2009 Programmatic EIS and the 2016 Supplemental EIS. BOEM independently reviewed the SEIS and found that it adequately evaluates the environmental effects of the proposed action. On March 2, Kristin Bail, Acting BLM Director, will meet with Rep. Chris Stewart (R-UT) regarding the proposed Utah Water Development Project. On March 2 - 4, the Rocky Mountain Elk Foundation National Convention will be held in Nashville, TN. The agenda includes a Conservation Partners Meeting, with a sage-grouse panel discussion planned for March 2. BLM, Forest Service, Natural Resources Conservation Service, and state agency partners will participate. Karen Kelleher, BLM’s Acting Deputy Assistant Director for Resources and Planning, will represent the BLM. On March 2 - 5, the Mint 400 Off-Highway Vehicle (OHV) race will take place on a 100-mile existing race course located outside of Las Vegas NV. The race course is located within approximately 140,000 acres of BLM-managed lands. On March 3, BOEM plans to publish the Proposed Notice of Sale and Notice of Availability of the Final EIS for Gulf of Mexico (GOM) Lease Sale 249. The lease sale is scheduled to take place on August 16, 2017, and will be the first sale under the 2017 - 2022 OCS Oil and Gas Program. On March 3, BOEM plans to publish a Federal Register Notice announcing the availability of three revised Supplemental Official Block Diagrams along with the two associated revised Official Protraction Diagrams that reflect the lateral boundaries through state waters that divide the Commonwealth of Virginia from North Carolina and Maryland. On March 3, BOEM plans to publish the Notice of Availability of the Final GOM Multi-Sale EIS for 2017 - 2022 Lease Sales. The Final EIS analyzes 10 region-wide lease sales scheduled in the GOM. On March 3, BSEE will host its Second Annual Youth Technology Challenge in Houston, TX. BSEE will also hold inaugural youth events in California and Louisiana following the Houston event. The California event will take place at Bakersfield College in Bakersfield, CA on April 5 and the New Orleans event will occur in mid-April at Louisiana State University in Baton Rouge, LA. Assistant Secretary Policy, Management and Budget Week Ahead Schedule of Meetings, Hearings, and Travel ● Who: REO Portland, Bureau of Reclamation, U.S. Geological Survey, State Department, Environmental Protection Agency (EPA), National Marine Fisheries Service (NOAA Fisheries), Bonneville Power Administration (BPA), U.S. Army Corps of Engineers (USACE), Columbia Basin Tribes, Public Utility Districts (PUDs), State Natural Resource Agencies, and British Columbia Representatives ● What: Columbia River Treaty Collaborative Modeling Workgroup (CMW) meeting ● When: February 27, 2017 ● Where: Portland, OR ● Press: Closed ● Topic: Hydro system modeling support capabilities and scenarios for the Columbia River Treaty negotiations. Hosted by the State Department. ● Who: REO Portland, Bureau of Reclamation, U.S. Geological Survey, Fish and Wildlife Service, Bureau of Indian Affairs, Forest Service, Environmental Protection Agency (EPA), National Marine Fisheries Service (NOAA Fisheries), State Department ● What: Columbia River Treaty briefing ● When: February 27, 2017 ● Where: Portland, OR ● Press: Closed ● Topic: State Department to provide update on the Columbia River Treaty. ● Who: REO Portland, Fish and Wildlife Service, Bureau of Indian Affairs, Environmental Protection Agency (EPA), State Department, Columbia Basin Tribes’ elected leaders/representatives ● What: State Department’s meeting with Columbia Basin Tribes’ elected leaders/representatives ● When: February 28, 2017 ● Where: Portland, OR ● Press: Closed ● Topic: Columbia Basin Tribes’ interests and expectations of the Columbia River Treaty negotiation process. ● ● ● ● ● ● Who: Deputy Assistant Secretary Public Safety, Resource Protection, & Emergency Services (PRE) Harry Humbert and Office of Wildland Fire (OWF) Director Bryan Rice What: Wildland Fire Leadership Council (WFLC) When: March 2, 2017 Where: Main Interior Building (MIB), Interior Operations Center in Washington, D.C. Press: Closed Topic: The purpose of the meeting is to collectively discuss: key engagement points with new administration and federal WFLC Members; approaches to common set of expectations around the strategic activities; an understanding of the 2016 fire season and the upcoming 2017 forecast from predictive services as well as regional activities contributing towards collaboration across the country. Week Ahead Announcements and Actions Dakota Access Pipeline and Keystone Pipelines. Office of Law Enforcement and Security (OLES) continues to work closely with Bureau of Indian Affairs (BIA) and other stakeholders to prepare for anticipated demonstrations on federal lands, as a result of Administration’s recent decision regarding the Dakota Access Pipeline (DAPL) and Keystone Pipelines. Demonstrators remain encamped at Standing Rock in North Dakota and additional participants are expected. OLES special agents are being dispatched to Bismarck ND as DAPL begins to proceed with the final portion of the pipeline. Regional Biosecurity Plan Briefing. The Office of Policy Analysis (PPA) is coordinating with the Office of Congressional and Legislative Affairs (OCL) and bureaus to prepare for an upcoming briefing on March 10 convened by Senator Mazie Hirono’s staff. The focus will be on implementation of the Regional Biosecurity Plan for Hawaii and Micronesia and efforts to address priority invasive species such as the brown tree snake and coconut rhinoceros beetle. Internal Control and Audit Follow-up. The Department has an annual goal of closing 85% of corrective actions scheduled for closure in the current FY to address issues raised in OIG and GAO engagements. As of February 7, 2017, the Department has closed 19 percent of open audit recommendations scheduled for closure in FY 2017. Year 2017 Small Business Accomplishments to Date: As of February 15, 2017, the Department has awarded 52.46% of its contract award dollars to small businesses. The Department-wide small business goal, which was negotiated with the Small Business Administration, is 53.5%. The Department awarded 23.74% of its contract award dollars to small disadvantaged businesses and 15.04% of its contract award dollars to women-owned small businesses, exceeding the statutory goal of 5% for each. The Department awarded 2.70% of its contract award dollars to historically underutilized business zone small businesses and 3.20% of its contract award dollars to service-disabled veteran-owned small businesses. The statutory goal is 3% for each of these categories. New Government Accountability Office (GAO) Audits Long Island Sound Restoration Efforts (Job Code 101350) In response to a request by the Chair and Ranking Member of the House Committee on Transportation and Infrastructure, GAO will review the following key issues: (1) roles of Federal, state, and other groups in restoring the Long Island Sound, (2) Federal funds spent to date, and (3) progress in restoring the Long Island Sound and work remaining. The entrance conference with the Fish and Wildlife Service and the U.S. Geological Survey staff is scheduled for March 16, 2017. Implementation of the Federal Risk and Authorization Management Process (Job Code 101221) In response to requests made by the House Committee on Oversight and Government Reform and Senate Committee on Homeland Security and Governmental Affairs, GAO will review the: (1) FedRAMP process and the extent to which agencies use FedRAMP for obtaining cloud services; (2) whether FedRAMP’s authorization process is effective in providing controls necessary for securing selected agencies’ data in cloud environments; and (3) benefits and challenges for FedRAMP stakeholders. This work is government-wide and includes the 24 agencies covered by the Chief Financial Officers Act, as well as the Office of Management and Budget (OMB). The entrance conference with the OCIO staff is scheduled for February 28, 2017. Tribal Consultation Practices (Job Code 101433) In response to its authority under 31 U.S.C. § 717 after receiving a request from Ranking Member Raúl M. Grijalva of the House Committee on Natural Resources, former Ranking Member Raul Ruiz of the House Subcommittee on Indian, Insular and Alaska Native Affairs, and 23 other individual House members, GAO will review: (1) Federal agencies’ compliance with government-to-government consultation and coordination responsibilities under Executive Order 13175; (2) tribal consultation practices used by Federal agencies during permitting and development processes; (3) definition and consistent application of “meaningful tribal consultations” by Federal agencies; and (4) opportunities for tribal input into contiguous, offreservation developments that may result in pollution or other impacts on tribal land; and appeal options, if any, available to tribes. The entrance conference with the Bureau of Indian Affairs (BIA) staff has not been scheduled. Recent Draft GAO Reports (Per GAO, distribution is highly restricted.) On February 9, 2017, GAO issued a proposed draft submission of a second new item on GAO's 2017 Duplication Report - Federal Grant Awards based on GAO-17-113, which includes a Departmental recommendation to develop guidance requiring all competitive grant programs to clarify, in the public notice of funding opportunity, all review criteria. The response is due to GAO February 24, 2017. Recent Final GAO Reports Government Purchase Cards: Little Evidence of Potential Fraud Found in Small Purchases, but Documentation Issues Exist (GAO-17-276, Job Code 192455) In response to the Chair and Ranking Member of the House Oversight and Government Reform Subcommittee on Government Operations, GAO reviewed actions taken by OMB and the General Services Administration (GSA) to enhance purchase card program controls. GAO recommends that GSA reemphasize OMB guidance to obtain and retain complete documentation and issued a recommendation that DOI require cardholders to document purchase request and preapproval for card (self-generated) purchases. The response is due to GAO April 14, 2017. High-Risk Series: Progress on Many High-Risk Areas, While Substantial Efforts Needed on Others (GAO-17-317). Every two years at the start of each new Congress, GAO updates and issues the “High Risk List” focusing attention on government activities vulnerable to waste, fraud, abuse, and mismanagement or in need of broad-based transformation. The 2017 update added three new programs namely, 2020 Census, the Government’s environmental liabilities, and Federal efforts on Indian Tribal programs and removed terrorism related information sharing. According to the Comptroller General, the ineffective management of programs serving Indian tribes, the federal government’s soaring liabilities associated with environmental cleanups, and the rising cost of the decennial census resulted in the addition of these programs to the High Risk List. GAO notes that while Interior has taken some steps to strengthen how it manages federal oil and gas resources, it has not met the criteria for removal from the High-Risk List and therefore the management of Federal oil and gas resources high-risk area is being expanded to include a segment on Interior's restructuring of offshore oil and gas oversight. 60-Day Letter: DOI Response to GAO Report, Government Purchase Cards: Little Evidence of Potential Fraud Found in Small Purchases, but Documentation Issues Exist (Report No. GAO-17-276). GAO issued the final report on Government Purchase Cards on February 14. The report was prepared in response to a request by the Chair and Ranking Member of the House Oversight and Government Reform Subcommittee on Government Operations. GAO examined the actions GSA and OMB have taken since 2008 to enhance program controls over micropurchases; and sampled purchase card data from agencies across the government to evaluate processes for micro-purchase approvals. GAO issued one recommendation to the Department. The Department’s 60-day letter addressing the recommendation is due to GAO and the congressional requesters by April 14, 2017. 60-Day Letter: DOI Response to GAO Report, Grants Management: Selected Agencies Should Clarify Merit Based Award Criteria and Provide Guidance for Reviewing Potentially Duplicative Awards (Report No. GAO-17-113). The report was prepared in response to requests from Chairman Johnson and Ranking Member Carper of the Committee on Homeland Security and Governmental Affairs; Chairman Lankford, Subcommittee on Regulatory Affairs and Federal Management, Committee on Homeland Security and Governmental Affairs; and Senator Kirsten Gillibrand. GAO reviewed the extent to which agencies followed certain practices for evaluating competitive awards; whether agencies had processes to identify duplicative grant funding; and progress the government-wide Council on Financial Assistance Reform (COFAR) has made in developing an implementation schedule for achieving its priorities. The report contains two recommendations for the U.S. Fish and Wildlife Service and the National Park Service. The Department’s 60-day letter addressing the recommendations is due to GAO and the congressional requesters by March 12, 2017. Assistant Secretary for Water and Science Week Ahead Schedule of Meetings, Hearings, and Travel Kerry Rae - From February 22 - March 3, Acting Principal Deputy Assistant Secretary Kerry Rae will be in Washington, DC, and participating in routine internal briefings. In addition, numerous stakeholder meetings are scheduled as a result of national-level association meetings bringing irrigation districts and cities to Washington DC the week of Feb 27. Scott Cameron - From February 22 - March 3, Special Assistant to the Secretary Scott Cameron will be in Washington, DC, and participating in routine internal briefings. In addition, numerous stakeholder meetings are scheduled as a result of national-level association meetings bringing irrigation districts and cities to Washington DC the week of Feb 27. On March 1, Scott Cameron will participate in the National Invasive Species Awareness Week federal agency fair and reception held in conjunction with the Congressional Invasive Species Caucus. The event in the Rayburn building will feature exhibits by several DOI bureaus. On March 1, Water & Science will join the Acting Deputy Secretary and other DOI officials in a meeting with stakeholders of the Navajo Generating Station. On March 2, Scott Cameron will be the breakfast speaker at the annual meeting of the Association of California Water Agencies. Week Ahead Announcements and Actions Ongoing hazard response: Bogoslof volcano, in the Aleutian Island chain, remains at a heightened state of unrest and in an unpredictable condition. Explosive eruptions producing high-elevation ash clouds occurred on February 19-20, and may recur at any time. The volcano does not have direct ground-based monitoring instrumentation, but USGS scientists are using remote sensing technologies to provide data informing NOAA ash advisories for air traffic safety. On February 22, Reclamation will announce the award of a Design/Build contract on the Pojoaque Basin Regional Water System. The contract for the project, which is part of the Aamodt Indian Water Rights Settlement, will be for $91.9 million. Reclamation will issue a news release on the contract award. [UPDATED] On February 22, Reclamation is tentatively planning to launch the Estimating Reservoir Water Storage Capacity prize challenge that seeks new methods to indirectly and cost effectively estimate storage capacity and/or sedimentation volume of reservoirs managed by Reclamation and the U.S. Army Corps of Engineers. The best solution that meets the technical requirements for this prize competition will receive $50,000. [UPDATED] On February 23, W&S will meet with representatives from the Building Industry Association and The Mission Continues, a non-partisan NGO that works with veterans adjusting to life at home to find purpose through community impact. These two entities wish to work with Interior and the Urban Waters Federal Partnership to clean up, make safe, and restore one of the National Park Service's urban parks in Washington DC. On February 27, an informal briefing for Senate staffers is planned by the State Department (with DOI attendance) on the status of the Minute 32x U.S.-Mexico Negotiations on Colorado River Cooperative Process negotiations. Since 2015 the U.S. and Mexico have been working to negotiate an agreement (known as “Minute 32x”) on Colorado River cooperation, addressing operational agreements, water conservation investments and environmental efforts under the framework of the 1944 U.S./Mexico Treaty governing the allocation of Colorado River water. Current cooperative efforts are addressed under an agreement known as “Minute 319” – which expires on Dec. 31, 2017. On or about February 27, Reclamation’s Mid-Pacific Region will make an initial announcement of how much water will be made available under the terms of contracts to water users in the Central Valley Project. This initial announcement is generally updated on a monthly basis until about June. The amount of water to be made available is expressed as a percentage of the full contract amount. [UPDATED] On March 2, new USGS research will be published analyzing livestock grazing records from Wyoming to investigate broad-scale responses of greater sage-grouse populations to livestock management. Scientists used 11 years of annual population counts of greater sage-grouse coupled with grazing records from BLM allotments across Wyoming. Researchers discovered that grazing can have both positive and negative effects on greater sage-grouse population trends, depending on the level of grazing and when it occurred during the growing season. The paper will be published in Ecological Applications and a news release is planned. 30-60 DAY LOOK-AHEAD Office of the Solicitor Significant Litigation Deadlines reported separately in 100-day report. Assistant Secretary for Fish and Wildlife and Parks On March 4 and 5, Selma to Montgomery National Historical Trail staff will participate in annual commemorations for Bloody Sunday – the 1965 march led by Rep. John Lewis when protesters were attacked by law enforcement. Events are scheduled at the NPS Selma Interpretive Center and Brown Chapel AME Church in Selma, and at the Dexter Avenue Baptist Church in Montgomery. Previous events included marches across the Edmund Pettus Bridge. Approximately 50-75 members of Congress have been invited by local organizers to attend. On March 6, FWS’ Supervisor of the Oregon Fish and Wildlife Office will provide an update to attendees at the Oregon Cattlemen’s Association Spring Quarterly Meeting in Salem, Oregon. This forum provides an opportunity to reinforce our message that FWS is dedicated to continued collaborative conservation. This is potentially controversial; the meeting is open press. On March 7, the NPS and the Boy Scouts of America will participate in an event in President’s Park (the White House) at the Boy Scout Memorial celebrating the renewal of the two organizations’ partnership. Acting Director Michael Reynolds and Chief Scout Executive Michael Surbaugh will give remarks. Invitations will also be extended to the incoming Secretary and members of Congress. On or around March 7, FWS will release preliminary conservation planning targets for the monarch butterfly. The targets are separate from the ongoing species status assessment for the monarch, which will inform FWS’s determination on whether to propose the monarch for listing under the ESA. The targets are acreages for habitat needed to reverse the downward trend in monarch numbers for eastern and western populations. The preliminary estimate for suitable new or restored habitat needed to reverse the decline of monarchs is a range of 18-39 million acres in the eastern population. FWS plans to formally release these targets at the North American Wildlife and Natural Resources Conference on March 7. Outreach is planned. On March 10, the NPS and partners will hold the grand opening of the Harriet Tubman Underground Railroad Visitor Center in Church Creek, Maryland. The event will be public and open to media. The Maryland Congressional Delegation, leaders in the African American community, DOI leadership, and partners will be invited. On March 18, the NPS will host a community dedication ceremony with local partners for the recently designated Reconstruction Era National Monument in Beaufort, South Carolina. Informal invitations have been extended to Congressman Clyburn and NPS leadership. An invitation to the Secretary of the Interior is forthcoming. This event is still in the planning stage and official notification is expected soon. In March, FWS and the State of Nebraska will announce that it is the 30th state with confirmed presence of white-nose syndrome, a fungal disease that has been devastating hibernating bats. This information is close hold. FWS will coordinate a joint news release. Outreach is planned. In March, the NPS anticipates publishing the annual report on the Federal Historic Preservation Tax Incentives Program (HTC). The HTC provides a 20 percent federal tax credit to property owners who undertake a substantial rehabilitation of income-producing historic buildings, while maintaining historic character. The report includes summary information about the program and projects reviewed (e.g., total number of projects broken down by state and rehabilitation cost, by new use, and by project size), as well as photos and short descriptions of some representative projects. This year a total of 1,039 certified projects were completed - the highest in recent program history – and an estimated 108,528 jobs were created as a result. In March, the FWS will publish a notice of intent that the bureau will prepare an Environmental Impact Statement in conjunction with a proposed rule to revise the existing nonessential experimental population designation of red wolves in North Carolina. This notice announces FWS’ intention to revise the designation under section 10(j) of the ESA and the initiation of a public scoping process to identify issues and concerns, potential impacts, and possible alternatives to the proposed action. This will be controversial; the FWS communications office will coordinate outreach with the Secretary’s office. In March, the FWS will post its recently completed status review of the polar bear. After a thorough review of new and updated scientific information on the polar bear’s biology and threats, the FWS concluded that it continues to meet the definition of a threatened species under the ESA. A news bulletin will be posted to regional website, otherwise no outreach planned. In mid-March, FWS will announce $1.1 billion in revenues generated by the Pittman-Robertson Wildlife Restoration and Dingell-Johnson Sport Fish Restoration acts to states, territories and District of Columbia. The funding, which supports critical state wildlife conservation and recreation projects throughout the nation, is generated by excise taxes on firearms, ammunition, fishing equipment and motorboat fuels paid by the hunting, shooting, boating and angling industries. Department-level outreach planned. In March, the FWS will publish a final determination on a proposed rule that published January 8, 2016, to reclassify the West Indian manatee from endangered to threatened under the Endangered Species Act. A notice of intent to sue was filed by the Pacific Legal Foundation January 9 for failure to finalize the proposal to reclassify the manatee from endangered to threatened. This is controversial because the manatee is a large, docile sea mammal that engenders passionate advocacy in the Southeast. There were a record number of boat strikes in 2016, and some conservation groups do not want to see the species’ protections diminished. On April 15, the NPS will hold a community dedication ceremony with local partners for the recently established Birmingham Civil Rights National Monument. Informal invitations have been extended to NPS leadership and an invitation to the Secretary of the Interior is forthcoming. This event is still in the planning stage and official notification is expected soon. U.S. Fish And Wildlife Service Hot Topics White-Nose Syndrome In March, FWS and the State of Nebraska will announce that it is the 30th state with confirmed presence of white-nose syndrome, a fungal disease that has been devastating hibernating bats. This information is close hold. FWS will coordinate a joint news release. Outreach is planned. Monarch Butterfly Conservation On or around March 7, FWS will release preliminary conservation planning targets for the monarch butterfly. The targets are separate from the ongoing species status assessment for the monarch, which will inform FWS’s determination on whether to propose the monarch for listing under the ESA. The targets are acreages for habitat needed to reverse the downward trend in monarch numbers for eastern and western populations. The preliminary estimate for suitable new or restored habitat needed to reverse the decline of monarchs is a range of 18-39 million acres in the eastern population. FWS plans to formally release these targets at the North American Wildlife and Natural Resources Conference on March 7. Outreach is planned. Funding to States In mid-March, FWS will announce $1.1 billion in revenues generated by the Pittman-Robertson Wildlife Restoration and Dingell-Johnson Sport Fish Restoration acts to states, territories and District of Columbia. The funding, which supports critical state wildlife conservation and recreation projects throughout the nation, is generated by excise taxes on firearms, ammunition, fishing equipment and motorboat fuels paid by the hunting, shooting, boating and angling industries. Department-level outreach planned. Endangered Species Act Recovery Actions In mid-March, FWS will publish a Notice of Availability for the second revised draft recovery plan for the giant garter snake. Outreach is planned. In mid-March, FWS will publish a notice of intent that the bureau will prepare an Environmental Impact Statement in conjunction with a proposed rule to revise the existing nonessential experimental population designation of red wolves in North Carolina. The proposed rule, and the preferred action in the EIS, would revise the existing experimental population rule to apply only to the Dare County Bombing Range and Alligator River National Wildlife Refuge, where stable packs exist on federal lands. FWS expects to make a final decision on the proposed action, which will change the scope of and goals for the experimental population, by December 2017. The notice announces FWS’s intention to revise the designation under section 10(j) of the ESA and the initiation of a public scoping process to identify issues and concerns, potential impacts, and possible alternatives to the proposed action. Outreach planned upon Reading Room publication. This will be controversial. Endangered Species Act Listing Actions In mid-March, FWS will send to the Federal Register 90-day petition findings for five species: desert tortoise (Mojave population), sturgeon chub, sicklefin chub, Florida black bear and tricolored bat. The tricolored bat is found in 35 states, Canada, Mexico and Guatemala, is being threatened by white nose syndrome and loss of habitat. As such, it will likely garner public attention. The not substantial finding for the bear may also garner media attention, since it was petitioned by two dozen state and national conservation groups, largely upset about a regulated hunting season for the bear. Outreach is planned upon Reading Room publication. In March, FWS will send to the Federal Register a final rule to delist two Australian parrot species (scarlet-chested parakeet and the turquoise parrot) due to recovery. Both parrots are native to Australia. No outreach is planned. No later than March 8, FWS will send to the Federal Register a final determination on a proposed rule that published January 8, 2016, to reclassify the West Indian manatee from endangered to threatened under the Endangered Species Act. A notice of intent to sue was filed by the Pacific Legal Foundation January 9 for failure to finalize the reclassification proposal. To avoid litigation, the rule needs to be delivered to the Federal Register by March 8. Controversial because the manatee is a large, docile sea mammal that engenders passionate advocacy in the Southeast; there were a record number of boat strikes in 2016, and some conservation groups do not want to see the species’ protections diminished. Outreach is planned. No later than March 31, FWS will send to the Federal Register a revised 90-day finding on a petition to delist the Bone Cave harvestman (a cave invertebrate) found in Texas. In June 2015, FWS published a not-substantial 90-day finding on the petition, but a disc of supplemental information was overlooked and not considered in that finding. This revised finding results from a voluntary court-ordered remand and settlement agreement; the court-ordered date is March 31. This issue has received media attention in recent months; outreach is planned. In mid- to late- March, FWS will send to the Federal Register a 12-month finding on the status of two freshwater mussel species, yellow lance, and Atlantic pigtoe. The species are located in North Carolina and Virginia. Outreach is planned. No later than April 1, FWS will send to the Federal Register 12-month findings on petitions to list the Beaver Pond marstonia a freshwater snail found in Georgia, and the San Felipe gambusia, a Texas fish. FWS will also make a 12-month finding on a petition to delist the southwestern willow flycatcher from the list of threatened and endangered wildlife, based on the bird’s taxonomic status. This issue involves ranchers and private landowners, grazing and riparian issues, and will likely generate local media coverage and stakeholder interest. FWS is required by settlement agreement to submit the finding for the Beaver Pond marstonia to the Federal Register by April 1. Outreach is planned. No later than April 7, FWS will publish a final listing determination on the Headwater chub and roundtail chub, both native to Arizona and New Mexico. Target to the Federal Register is March 23. FWS has a court-ordered settlement agreement to publish the final determination by April 7. Outreach is planned. In early April, FWS will send to the Federal Register a final rule to delist the Hualapai Mexican vole, located in Arizona, due to the fact that the original classification is no longer appropriate. Outreach is planned. In early April, FWS will send to the Federal Register a proposal to delist the Deseret milkvetch, found in Utah, due to recovery. Outreach is planned. In mid-April, FWS will send to the Federal Register a proposal to list the island marble butterfly as endangered. Outreach is planned. In mid-April, FWS will send to the Federal Register a notice amending the current listing of the southern Selkirk Mountains population of woodland caribou to include the entire Southern Mountain Caribou population as a Distinct Population Segment (DPS). The revised DPS includes the currently listed southern Selkirk Mountains population of woodland caribou, which is a transboundary species between British Columbia, Canada, and northern Idaho and northeastern Washington. The revised DPS would remain listed as endangered under the ESA. Outreach is planned. Endangered Species Act Critical Habitat Actions In mid-March, FWS will announce a proposal to designate critical habitat for approximately 36 stream miles of occupied habitat and 3,100 acres of unoccupied habitat in Montana for the meltwater lednian stonefly and approximately 1.5 stream miles of occupied habitat and 204 acres of unoccupied habitat for the western glacier stonefly. FWS will also reopen the public comment period for the proposed listing of western glacier stonefly and meltwater lednian stonefly as threatened species. Outreach is planned upon Reading Room publication. In late March, FWS will send to the Federal Register a notice reopening the comment period on a proposed critical habitat designation for the black pine snake. FWS will also hold two public information meetings during the open comment period. Outreach is planned. In late March, FWS will send to the Federal Register a proposal to designate critical habitat for the Florida bristle fern in Florida. The proposed designation includes approximately 10,937 acres. Outreach is planned. In early April, as a result of new information available, FWS will send to the Federal Register a revision of the 2014 revised proposed critical habitat rule, and will request new information regarding population status, trends or threats, and on additional areas that meet FWS criteria for critical habitat. Outreach is planned. In mid-April, FWS will send to the Federal Register a proposal to designate 463 river miles of critical habitat for the Texas hornshell (a freshwater mussel) in New Mexico and Texas. Outreach is planned. In mid-April, FWS will send to the Federal Register a proposal to designate 12.28 acres as critical habitat for the Sonoyta mud turtle in Arizona. Outreach is planned. National Wildlife Refuge Actions The Bear River watershed has received above-normal snowpack (172 percent) and weather conditions have accelerated spring runoff during the last two weeks. Most of the surrounding areas are saturated with water. As a result, Bear River Migratory Bird Refuge near Brigham City, Utah, has coordinated with Box Elder County to close West Forest Street two miles west of I-15 due to unsafe travel conditions. There currently is no access to the Refuge or the Auto Tour Loop. Recent rains coupled with early snow melt have resulted in record flows in the Bear River, which have been over 9,000 cubic feet per second instead of the typical flow of 2,100 cfs at this time of the year. The refuge will remain closed to the public until flooding conditions subside and roads can be traveled on safely. In mid-March, FWS will announce the Banking on Nature report that demonstrates America’s national wildlife refuges are economic powerhouses for local communities across the country. This report highlights two of the many local economic benefits of refuges: the impact of recreational visits (e.g., ecotourism) and the economic payback from National Wildlife Refuge System spending within neighboring communities. The peer-reviewed report, which examined national wildlife refuges in 2015, found every $1 million spent by the Refuge System created about 13 jobs in the United States. Spending by the 48.5 million visitors generated nearly $2.7 billion in consumer spending. This supported 39,149 full-time and seasonal jobs, providing more than $885 million in income to people living in local communities. Outreach is planned. In March, FWS anticipates making a draft Environmental Assessment (EA) for the Valle de Oro NWR in Albuquerque, New Mexico, available for public comment. Currently FWS is consulting with vested partners to develop the draft EA. As the urban refuge is in close proximity to the Kirtland Air Force Base (KAFB) flight path, KAFB has concerns about potential bird strikes on aircraft. Of primary concern are proposed habitat restoration plans for seasonal wetlands. KAFB believes restored habitat may attract more large birds (geese, cranes and ducks) and increase collision risks. FWS is meeting with KAFB and intends to continue coordinating with the Federal Aviation Administration and KAFB throughout this process to minimize these concerns. Of interest to Senator Heinrich (D-NM) and Representative Michelle Lujan-Grisham (D-NM-1) and potentially to Senator Udall (D-NM) Through March 6, FWS will be conducting ground and aerial operations to eradicate feral swine at Havasu NWR, in Arizona and California (near Needles). During this time, FWS will temporarily close portions of the refuge. No portions of the Colorado River are expected to be closed. Swine are known to damage natural resources and property, impact agricultural lands, and pose a human health risk due to diseases they may carry. The eradication plan and environmental assessment were developed as part of a national priority to eliminate or reduce the risks and damages inflicted by feral swine to agriculture, natural resources, property and human health. Media and Congressional interest is high. On-site media opportunities will be arranged when possible, if deemed safe and do not interfere with operations. In late March or early April, FWS will publish a notice in the Federal Register announcing the Record of Decision for the final Comprehensive Conservation Plan (CCP) and Environmental Impact Statement for the Silvio O. Conte National Fish and Wildlife Refuge in Vermont. The approved CCP will guide long-term management decisions for the refuge. Local outreach is planned. In late March or early April, FWS will publish a Notice of Availability in the Federal Register to announce the release of Massasoit NWR (part of the Eastern Massachusetts Complex) draft Comprehensive Conservation Plan and Environmental Assessment for public comment. When finalized, the CCP will guide long-term management decisions for the refuge. Local outreach is planned. Migratory Bird Management Actions Cormorant control for 2017: In May 2016, the U.S. District Court for the District of Columbia vacated two depredation orders for double-crested cormorants until FWS prepares an adequate Environmental Assessment (EA), pursuant to the National Environmental Policy Act. FWS has in the past granted permits to aquaculture facilities for lethal control of cormorants found to be consuming large numbers of fish. FWS is unable to issue permits for the lethal take of cormorants until the EA process is complete. It is uncertain when the EA will be completed. When cormorants migrate to the Midwest and Northeast this spring, there may be no legal way for cormorants to be lethally controlled. A communications strategy to inform states, partners and members of Congress is being drafted. Lethal control of cormorants is controversial. Great Lakes Indian Commission waterfowl hunting regulations: The Great Lakes Indian Fish and Wildlife Commission represents 11 tribes in Minnesota, Wisconsin, and Michigan in the administration of hunting, fishing and gathering rights under several Treaties. Annually the commission submits a request for special migratory bird hunting rights. These rights have been adjudicated in several court opinions. FWS has been working with the commission for many years on a suite of hunting requests. This year’s proposal is expected to be released through the Federal Register in the next 30-60 days. FWS is holding informational call with the Wisconsin, Minnesota and Michigan DNR to inform them of its proposed support of these hunting regulations. A final decision will not be made until after public comments are reviewed and would not take effect until the fall 2017 hunting season. This issue is expected to be controversial due to the proposal including several new techniques for tribal members to take waterfowl. National Park Service On or about March 1, Wrangell-St. Elias will release an Environmental Assessment (EA) for the proposed Snag Creek/Kuskulana Land Exchange. A private land owner within the park boundaries proposes a land exchange for the purposes of expanding an airstrip for non-public use; it is not expected to be controversial. On March 2, the Wrangell-St. Elias National Park Subsistence Resource Commission will meet in Mentasta Lake Village, Alaska. The commission is authorized under Section 808 of the Alaska Lands Act and advises the NPS and the Secretary on subsistence program requirements. The meetings do not typically yield media coverage or congressional delegation interest. On March 6, Golden Gate National Recreation Area will begin a repair project of the Crissy Field Promenade, one of the most highly-trafficked trails in the State of California. The $5 million project will close sections of the waterfront trail in phases over six months. On or about March 8, the NPS anticipates issuing a Finding of No Significant Impact for the Crystal Cave Redevelopment and Rehabilitation Plan at Sequoia and Kings Canyon National Parks in California. The project has widespread support and is a partnership effort with the Sequoia Parks Conservancy, which oversees the cave interpretation and public tours. The project includes updated interpretive media and a redesigned tour introduction area in one of the most popular areas of the park. On March 8, 2017, First State National Historical Park will hold a public meeting in New Castle, Delaware, regarding the Sheriff's House Rehabilitation Environmental Assessment/Assessment of Effect (EA/AoE). The EA/AoE proposes solutions to resolve accessibility issues for the structure and determines appropriate uses, including use by the NPS and partners as a proposed visitor contact station and office space. On March 9, the National Parks Conservation Association (NPCA) will host a public event at Stonewall National Monument in New York City to informally celebrate the new national monument. The NPCA has invited partners that were integral in the establishment of the monument and the NPS will provide an update on the progress of the development the site. On March 9, Visit Philadelphia will hold a media lunch in Philadelphia that will cover the opening of the Museum of the American Revolution and other topics related to Philadelphia’s Historic District. Both Independence National Historical Park and Valley Forge National Historical Park will attend and speak. On March 10, the First Amendment permit for David’s Tent on the National Mall will expire. David’s Tent is a religious organization that has held permits for a prayer vigil in park at various locations since September 2015. The current vigil location at Constitution Gardens (north of the WWII Memorial) will no longer be available due to an upcoming construction project. No other hardscape locations are currently available within the park, and use of any grass locations would require the vigil to move every 10 days due to the park’s turf management guidelines. Due to the inconvenience, David’s Tent is seeking permits from other organizations, including the city and the Architect of the Capitol. The park has received congressional inquiries on this permit in the past. On March 15, North Cascades NPS Complex anticipates starting a pilot reservation program for backcountry camping permits for a percentage of the campsites in some of the most popular areas of the park complex. The permit reservation system, which was proposed in the 2012 Ross Lake General Management Plan, is in response to increased visitation and visitor comments and requests for a reservation system. A cost recovery application fee of $20 will be charged for the permit reservation application. Public engagement on the reservation system was conducted as part of the GMP planning process. In March, the NPS will announce the final 2016 visitation numbers. For the third consecutive year, visitation to the National Park System reached record numbers. A total of 330,971,689 recreation visits occurred across parks in 2016, a 7.7 percent (23.7 million) increase from 2015. In March, the NPS anticipates signing two Tribal Historic Preservation Office Memoranda of Agreement with the Wichita and Affiliated Tribes (Oklahoma), and the Oklahoma and the Burns-Paiute Tribe (Oregon). These agreements do not automatically confer federal funds, but give Tribes standing to take on certain responsibilities pursuant to 54 USC 302702 (commonly known as Section 101 of the National Historic Preservation Act). The NPS has the responsibility under 54 USC to administer the Tribal Historic Preservation Program and certify Tribal Historic Preservation Offices. In March, the NPS anticipates awarding $623,038 in Battlefield Land Acquisition Grants funded through the Land and Water Conservation Fund (LWCF) to government sponsors in partnership with nonprofits for battlefield protection through fee simple and easement purchase, pending NPS review and approval of a proposed grant apportionment package. Grants will be used to protect 145 acres of Civil War battlefields in Virginia, West Virginia and Maryland. The NPS works with private landowners, battlefield friends groups, interested community groups, nonprofit organizations, academic institutions, local, state, and tribal governments and Federal agencies for preservation projects and local acquisition of Revolutionary War, War of 1812, and Civil War battlefield land. Grants are awarded several times throughout the year. In March, the NPS and U.S. Forest Service Learning Review Board will release the Strawberry Fire Fatality and Safety Review Report. The Strawberry Fire was started by lightning strike and burned 4,700+ acres in Great Basin National Park in August of 2016. The Fatality and Safety Review Report is scheduled for review on February 15 by the Board. By mid-March, Rocky Mountain National Park anticipates acquiring a 42.28 acre tract of land known as “Cascade Cottages.” The property is being sold by The Trust for Public Land (TPL), which acquired the land from the previous landowners in 2016. Prior to TPL's acquisition, this property was a family-run vacation cottage business for several decades. Rocky Mountain Conservancy and The Trust for Public Land worked together to raise the funds to purchase the property and hold it until NPS funding became available. This property is the largest remaining commercial inholding in the park. During the week of March 19, and in April, five Kentucky superintendents will participate in meet-and-greets with all of their consulting Tribal Nations. The five superintendents represent Mammoth Cave National Park, Abraham Lincoln Birthplace National Historical Park, Fort Donelson National Battlefield, Big South Fork National River and Recreation Area, Obed Wild and Scenic River, Cumberland Gap National Historical Park, and the Manhattan Site at Oak Ridge. The First Nations they are meeting with are: Absentee-Shawnee Tribe of Indians of Oklahoma, The Chickasaw Nation, Eastern Shawnee Tribe, United Keetoowah Band of Cherokee Indians in Oklahoma, Cherokee Nation, Shawnee Tribe, and the Eastern Band of the Cherokee Nation. These are not formal consultation meetings about specific projects. On or about March 30, Klondike Gold Rush National Historical Park (Seattle, WA location) will commemorate the 75th anniversary of the forced evacuation of 276 Japanese Americans from Bainbridge Island, Washington under Executive Order 9066. The park will commemorate the day through social media and participation in events at the Bainbridge Island Japanese American Exclusion Memorial, which is administered as part of the NPS in conjunction with Minidoka National Historic Site. Regional media attention and attendance by local, state, and federal elected officials is expected. On March 31, the Virgin Islands will celebrate the 100th anniversary of the sale and transfer of the islands from Denmark to the United States for $25 million in gold. On March 31, 1917, the sale and transfer took place at the site now designated as Christiansted National Historic Site. The NPS anticipates invitations for the Secretary and NPS leadership from the Governor of the Virgin Islands, the Honorable Kenneth E. Mapp through the Virgin Islands Centennial Commission, In March, the NPS will begin a 30-day internal review period on a draft Policy Memorandum to develop and communicate guidance on conducting body-worn camera programs. The goal is to enhance transparency in police-community contacts, to provide evidence, and to document the actions of officers while performing their duties. In late March, the Record of Decision on the Platte River Mouth Restoration and Access Plan/Environmental Assessment will be released by Sleeping Bear Dunes National Lakeshore. The Plan/EA evaluates the environmental impacts of three alternatives addressing the dredging and/or restoration of the riverbanks. In late March, the NPS will release a peer-reviewed report on projections of sea level rise and storm surge for 118 and 79 coastal parks (respectively). The results are intended to inform park planning, and adaptation and mitigation strategies for lands managed by the NPS. In recent years, the NPS has provided data to parks on a case-by-case basis for localized planning, but this report is a summary of the full analysis that is now complete. In late March, the NPS expects to release the Grand Canyon National Park Bison Draft Environmental Assessment (EA) for public comment. The draft EA considers options - including capture/removal, localized fencing of sensitive resources, and sharpshooting by skilled volunteers in conjunction with Arizona Game and Fish Department (AGFD) - for reduction in the size of the bison herd on the North Rim of the park causing damage to sensitive natural and cultural resources. The AGFD, Bureau of Land Management, U.S. Forest Service, and the InterTribal Bison Council are cooperating agencies on this effort. On April 4 or April 11, Glen Canyon National Recreation Area, in conjunction with the Bureau of Reclamation (BOR), will hold a reopening ceremony for the Carl Hayden Interagency Visitor Center at Glen Canyon Dam. Invitations will be forthcoming for the Secretary of the Interior, as well as NPS and the BOR agency leadership. On and about April 15, the NPS will issue a Solicitation of Request for Proposals to modernize the primary elevator system at Carlsbad Caverns National Park. The modernization will replace the motors and controllers, hoistway equipment, elevator cars, guide rails and steel hoist cables. In addition, an emergency rescue apparatus, which includes an auxiliary motor, auxiliary battery backup and a single car rescue system, will be installed to improve elevator safety operations. The contract is expected to be awarded in May 2017 and be completed in May 2018. On April 15, the NPS will hold a community dedication ceremony with local partners for the recently established Birmingham Civil Rights National Monument. Informal invitations have been extended to NPS leadership and an invitation to the Secretary of the Interior is forthcoming. This event is still in the planning stage and official notification is expected soon. On April 19 - 21, San Francisco Maritime National Historical Park will host the Council of American Maritime Museums (CAMM) annual conference. CAMM is an organization of 88 institutions across the United States working toward the preservation and interpretation of North America’s maritime heritage. On or about April 22, Glacier National Park, along with its sister peace park Waterton Lakes National Park (Canada), will announce its provisional designation as the world's first transboundary dark sky park. The dark sky designation overlays the entire International Peace Park (est.1932), and there is interest from the Canadian government to participate in the announcement. This year also marks Canada’s national 150th anniversary. The park is coordinating with Waterton Lakes National Park for event planning. Invitations will be extended to DOI and NPS leadership. On May 13, the NPS will hold a community dedication ceremony with local partners for the recently established Freedom Riders National Monument in Anniston, Alabama. Informal invitations have been extended to the NPS leadership, and an invitation to the Secretary of the Interior is forthcoming. This event is still in the planning stage and official notification is expected soon. Assistant Secretary - Indian Affairs and the Bureaus of Indian Affairs and Indian Education On March 21-23, the Tribal Interior Budget Council (TIBC) will meet at the Washington Plaza Hotel, Washington, DC. TIBC provides a forum and process for tribes and federal officials to work together in developing annual budget requests for Indian programs in the Department of the Interior. On March 21-24, the Midwest Alliance of Sovereign Tribes (MAST) Impact Week Meeting will be held in Washington, DC. On Wednesday, March 29, and Thursday, March 30, 2017, the Self-Governance Advisory Committee March quarterly meeting will take place at the Embassy Suites Convention Center in Washington, DC. The Bureau of Indian Affair’s National Tiwahe Coordinator (NTC) will be hosting a series of conference calls with all Tiwahe tribes to discuss the upcoming Tiwahe conference. The conference is set to take place in Tucson, Arizona at the Pascua Yaqui Reservation, one of the Tiwahe Initiative sites, on April 18 - 20. The NTC will confirm agenda items and will extend invitations to federal partners from the Indian Health Service (IHS), Temporary Aid to Needy Families (TANF), and Substance Abuse and Mental Health Administration (SAMHSA). The NTC will also coordinate with partners from New Zealand’s Te Whanau O Waipareira Trust to confirm John Tamihere, Chief Executive Officer for the Te Whanau O Waipareira Trust, as keynote speaker for the conference. The Division of Energy and Mineral Development (DEMD) has received 13 projects for Phase 1 of the 2017 Youth Energy Challenge and has started the judging process. Students from the Navajo Nation, Cherokee Nation, Mescalero Apache, Nez Perce Tribe, Sisseton-Wahpeton Oyate, Quinault, Yakama, and Comanche Tribes are participating, as well as one Native Hawaiian student. Projects include geothermal energy, wind energy, a hydrogen powered Sterling Generator, microbial fuel cell energy generation, and solar energy for water and home heating. Teams who make it to Phase 2 will receive up to $2,000 to build and implement their design solutions. Phase 2 began on February 20. BIE Leasing and Fundraising (25 CFR 48): This final rule would implement authority for the Director of BIE to enter into agreements with third parties to lease the land or facilities of a Bureau-operated school in exchange for funding that benefits the school. The comment period on this proposed rule ended August 22; the Office of Regulatory Affairs and Collaborative Action (RACA) is continuing to work with Solicitors Office (SOL) and BIE on the necessary Privacy Act documentation in preparation for publication of the final rule. Appraisals and Valuations Regulation (CFR part TBD): This rule establishes minimum qualifications for appraisers of Indian trust property, as required by the Indian Trust Asset Reform Act of 2016 (ITARA). The comment period on the proposed rule ended on November 21, 2016. RACA is in the process of preparing a draft of the final rule to incorporate workgroup discussions. Indian Electric Power Utilities (25 CFR 175): This proposed rule would not make any substantive changes to the regulations, but would revise the regulations to be in plain language. The regulations affect only a limited number of Tribes because there are only three BIA electric power utilities: Colorado River (serving the Colorado River Indian Tribes Reservation), Mission Valley Power (serving the Salish & Kootenai Tribes, Flathead Indian Reservation), and San Carlos Irrigation Project (serving Gila River Indian Community). The proposed rule is awaiting AS-IA signature. Indian Trader Regulations (25 CFR 140): This rule would comprehensively update Part 140 to modernize the implementation of the Indian Trader statutes consistent with the Federal policies of Tribal self-determination and self-governance. The advance notice of proposed rulemaking to solicit comments on potential regulatory revisions and announcing consultation for February and March 2017 was published on Friday, December 9. A notice with details on the venues for Tribal consultations was published in the Federal Register February 8. Tribal consultations are being held throughout the country from February 23 through March 16. School Facilities Design Handbook Updates (25 CFR 36): The IA Office of Facilities Property and Safety Management (OFPSM) will be conducting four consultation sessions to obtain comments on the revision of the “School Facilities Design Handbook,” dated March 30, 2007, which has been incorporated by reference into 25 CFR 36. This proposed rule would update the incorporation by reference and allow for the 120-day comment period. The handbook updates are highly technical as they merely bring design standards to current industry standards. A proposed rule to incorporate the new Handbook version by reference is in surname. The Federal Register document also announces four Tribal consultation on the Handbook updates to be held across the country. Revisions to Leasing of Osage Lands for Oil & Gas Mining (25 CFR 226): BIA published a final rule in 2015 that it voluntarily withdrew pending completion of a Regulatory Impact Analysis as a result of litigation. BIA is currently undertaking a Regulatory Impact Analysis at this time in anticipation of proposing revisions to this regulation. A Tribal consultation was held October 27 in Oklahoma regarding whether to revise the regulations; BIA and SOL are developing an initial draft of the regulations for distribution to the Osage Nation as soon as possible. Potential Revisions to Probate Regulations (25 CFR 15, 25 CFR 40): BIA and SOL identified some discrete revisions to probate regulations that may help streamline processes. Consultation on these revisions were completed in August. The comment period ended on January 4, 2017. OHA will be getting input from judges at its March probate conference and then a workgroup consisting of representatives from OHA, BIA, and SOL will convene to prepare a discussion draft of the proposed rule. BIE Negotiated Rulemaking on Accountability (25 CFR 30): The Every Student Succeeds Act (ESSA) requires BIE to use a negotiated rulemaking process to develop regulations for implementation no later than the 2017-2018 academic year and to define the standards, assessments, and accountability system consistent with Section 1111 of the Elementary and Secondary Education Act (ESEA) for the schools funded by BIE on a national, regional, or tribal basis. A Federal Register notice to establish the committee is in surname. All proposed members have been vetted for the committee. Update to O&M Formula for School Facilities: The current allocation formula for O&M funding was implemented in 1990 and relies upon very granular, up-to-date and accurate inventory for each site, but many sites have not had resources to update their data. This update would instead rely on accepted industry standard benchmarks to allocate O&M funds across all sites and buildings based on actual functional use and program needs. The IA Office of Facilities Property and Safety Management (OFPSM) will be conducting four consultation sessions to obtain comments on the new O&M Formula in conjunction with consultations on the School Facilities Design Handbook revisions. A Federal Register notice announcing the consultation is in surname. Office of the Special Trustee for American Indian (OST) March 6: Navajo Nation tour of the American Indian Records Repository March 6-8: Executive Management Group Meeting, (DST-TS, Doug Lords) March 7-9: Indian Energy and Minerals Steering Committee Meeting, Denver, CO (DST-FO, Jim James) March 21: BIA Regional Directors Meeting, Washington, D.C. March 27: Native Youth Empowerment Symposium, Isleta Pueblo, New Mexico March 28-29: National Indian Land Conference, Santa Ana Pueblo, New Mexico April 25-26: Land Buy Back Program Listening Session and Partners Meeting, Tulalip, Washington (DST-FO, Jim James) Assistant Secretary for Land and Minerals Management On March 4-11, the North American Wildlife and Natural Resources Conference will be held in Spokane, Washington. This year’s BLM partners meeting will be held on March 7. Nikki Moore/BLM Deputy Division Chief NLCS and Sally Butts/Deputy Division Chief NLCS will attend and present an update on BLM and NLCS. By March 5, BSEE must file its response to a draft management report it received from the GAO on February 3 entitled, Oil and Gas Management – Stronger Leadership Commitment Needed at Interior to Improve Offshore Oversight and Internal Management. ASLM is currently reviewing BSEE’s draft response to the report. On March 6, OSMRE’s Western Region plans to forward a Mining Plan Decision Document to OSMRE Headquarters for Canyon Fuel Company’s Skyline Mine, Flat Canyon Lease Modification. Skyline is an underground longwall mining complex located in Carbon County, UT. Canyon Fuels employs 320 people, producing 3 to 4.5 million tons of coal per year at the Skyline Mine. On March 6 - 7, the BOEM - National Academies of Sciences Committee on Offshore Science and Assessment (COSA) will hold its next meeting. Topics will include the National Studies Program Strategic Framework review, and science topics on air quality and the use of a Determination of NEPA Adequacy for monitoring and assessment of the environment. COSA provides independent, scientifically credible and objective information on issues relevant to BOEM’s environmental studies and assessment activities. On March 7 - 9, BOEM plans to host a three-day “Best Management Practices Workshop for Atlantic Offshore Wind Facilities.” The workshop will discuss best management practices for preventing, reducing, and monitoring impacts to marine protected species from the development of offshore wind on the Atlantic OCS. On March 9, BLM-CO will hold an on-line oil and gas lease sale, offering 16,449.68 acres in the Archuleta, Dolores, Montezuma, and San Miguel counties (SW Colorado). On March 10, BOEM plans to publish the Notice of Availability of the Draft Supplemental Environmental for GOM Lease Sales 250 - 251. The Draft Supplemental EIS will analyze two region-wide lease sales scheduled for 2018 in the GOM. On March 13-16, the American Petroleum Institute (API) will hold its semi-annual meeting of industry members in Dallas, TX. API is a leader in the development of petroleum and petrochemical equipment and operating standards, covering topics that range from drill bits to environmental protection. Rich Estabrook, a BLM Petroleum Engineer for BLM-CA’s Ukiah Field Office, will represent BLM. On March 14, BLM-NV will hold an on-line oil and gas lease sale. BLM-NV will offer 67 parcels totaling almost 116,000 acres in the Elko District. On March 14 - 16, BLM-CA’s Central Coast Field Office (CCFO) will host public meetings to gather comments on the Draft Resource Management Plan Amendment and Draft Environmental Impact Statement for oil and gas leasing and development for lands managed by the CCFO. Meetings will be held in Hollister, Coalinga, and Salinas, CA. In mid-March, the BLM-UT Price Field Office plans initiate a second comment period regarding the EA for the Deer Creek Coal Mine in Emery County, UT. Total disturbance is estimated to be fewer than seven acres on U.S. Forest Service lands and five acres on BLM managed public lands. On March 16, BLM’s Eastern States Office (ESO) will hold a public meeting in Duluth, MN regarding the BLM’s application to withdraw ecologically significant lands within the Superior National Forest in northern Minnesota from new mining claims by segregating the lands for two years. On March 16, BOEM will hold a commercial wind lease sale offshore NC. Nine companies have qualified to participate in the auction. The lease sale area is located 24 nautical miles (nm) offshore Kitty Hawk, NC and extends 25.7 nm in a southeasterly direction. BOEM announced the publication of the Final Sale Notice on January 17; a mock auction will be held on March 14. On or before March 17, Congress may respond to a proposed donation of private land to a BLM wilderness area in NM. On January 17, then-ASLM Janice M. Schneider signed letters notifying Senate and House leadership that DOI intends to accept a gift of approximately 3,590 acres from The Wilderness Land Trust and add those acres to the adjacent Sabinoso Wilderness, consistent with Section 6 of the Wilderness Act. On March 17, the BLM-OR/ WA Coos Bay District Woodward 11 Commercial Thin Timber Sale will be held. The BLM to offer 170 acres, yielding 3.3 million board feet, for thinning treatment. On March 18, Rep. Steve Pearce (R-NM) and New Mexico Deputy Commissioner of Public Lands Laura Riley will conduct a field visit with BLM-NM State Director Amy Lueders and BLM Las Cruces District Manager Bill Childress to discuss issues of concern to Rep. Pearce. On March 20-21, the North Slope Science Initiative (NSSI) Science Technical Advisory Panel will meet in Fairbanks, AK to discuss recommendations for the NSSI Oversight Group. The NSSI works to provide resource managers with the data and analyses needed to help evaluate simultaneous goals and objectives related to each agency’s mission on AK’s North Slope. Agency partners include the U.S. Fish and Wildlife Service, National Park Service, U.S. Geological Survey, BOEM, BSEE, United States Coast Guard, National Oceanic and Atmospheric Administration Fisheries Service, Department of Energy, AK Department of Natural Resources, AK Department of Fish and Game, Arctic Slope Regional Corporation, North Slope Borough, Arctic Research Commission, and the National Weather Service. The NSSI facilitates information sharing among agencies, non-governmental organizations, industry, academia, international programs and members of the public to increase communication and reduce redundancy among science program. On March 21, OSMRE’s Western Region (WR) plans to publish a Notice of Availability in local newspapers for the Bridger Mine (WY) Mining Plan Modification Draft EA. OSMRE will receive comment on the EA for 30 days. On March 21, OSMRE’s WR plans to publish a notice of availability in local newspapers for the Dry Fork Mine (WY) Mining Plan Modification Draft EA. OSMRE will receive comment on the EA for 30 days. On March 21 - 23, BSEE Acting Director Margaret Schneider will deliver remarks at the BSEE National Inspector’s Meeting to be held in Lafayette, LA. On March 22, BOEM will hold Lease Sale 247 for the Central Planning Area (CPA) in the Gulf of Mexico (GOM) in New Orleans, LA via livestream. CPA Lease Sale 247 will make 9,118 blocks in the GOM available for leasing consisting of approximately 48.53 million acres. On March 23, the public comment period will end for the scoping period for a natural gas development proposal located approximately 12 miles north of Paonia, CO. Gunnison Energy, LLC’s North Fork Mancos Master Development Plan proposal is adjacent to the BLM Bull Mountain Master Development Plan and includes drilling up to 35 horizontal wells from four new well pads and one existing well pad over the next three years. On March 23, BLM-ESO and BLM-UT will hold an on-line oil and gas lease sale. BLM-ESO will offer 21 parcels totaling 1186 acres in Monroe County, in the Marietta Unit of the Athens Ranger District in Wayne National Forest (OH), and BLM-UT will offer four parcels totaling 4174 acres in San Juan County On March 24, the BLM’s rule requiring online filing permits for oil and gas drilling will become effective. The rule, which updates Onshore Order 1, was initially scheduled to become effective on February 9. It was delayed 60 days per the January 20 Executive Order instructing Federal agencies to temporarily postpone any regulation that had published in the Federal Register, but had not taken effect. On March 25 - 26, the Arizona Outdoor Expo will be held in Phoenix. Staff from BLM-AZ’s Phoenix District Office will host a booth with Firewise information, an Off-Highway Vehicle trailer and other recreation information. District staff will likely participate in the Expo's Youth Day activities, with specific details yet to be planned. On March 29 - April 1, the Project Archaeology National Meeting/Society for American Archaeology Annual Meeting will take place in Vancouver, B.C. Project Archaeology focuses on teaching scientific and historical inquiry, cultural understanding, and the importance of protecting America’s cultural resources. The Society for American Archaeology is dedicated to the research, interpretation, and protection of the archaeological heritage of the Americas. Various BLM Archaeologists are tentatively scheduled to attend. BLM Archaeologist Jeanne Moe will chair a research symposium on archaeology education. In March, the BLM plans to issue the Boardman to Hemingway Record of Decision (ROD). The Biological Opinion (BO), which is being drafted by the National Marine Fisheries Service, is a necessary precursor to the ROD. The BO is targeted for completion on February 28. Oregon Plan amendments are being handled concurrently and that decision will be issued simultaneously with the ROD for the Environmental Impact Statement (EIS) and Approval to issue a grant. In early April, OSMRE’s WR plans to publish a Notice of Availability in local newspapers for the Cordero Rojo Mine (WY) Mining Plan Modification Draft EA, initiating a 30-day public comment period. Assistant Secretary Policy, Management and Budget DOI National Preparedness Report. In March of 2017, the DOI National Preparedness Report (NPR) will be shared with the President. The Office of Emergency Management (OEM) coordinated a department-wide review of the draft NPR on January 28 with the expectation of receiving the final draft for review in late February from the National Security Council Disaster Resilience Group. ONRR Civil Penalties. The Office of Enforcement (OE) anticipates issuing a civil penalty of about $5,472 to Dudley & Associates (Dudley) the week of February 19, 2017. OE investigated Dudley’s failure to submit production reports (Forms ONRR-4054) and found 12 violations on multiple Federal leases for production months of September, 2011 through August, 2012. This civil penalty resulted from a referral to OE from ONRR’s Production Reporting and Verification group. ONRR issued a NONC to Dudley detailing the outstanding reports and provided a 30-day cure period to correct the violations. Dudley failed to comply during the cure period. However, as Dudley is a small company with no prior violations, OE computed the civil penalty assessment using the standard rates of $2 per day, per violation for the first 40 days and $4 per day, per violation thereafter. The Office of Enforcement (OE) anticipates issuing a civil penalty of about $4,680 to Salt Creek Oil, LLC (Salt Creek) the week of March 6, 2017. OE investigated Salt Creek’s failure to submit sales of royalty and remittance reports and found three violations on one Federal lease for the months of September 2012, January 2014, and February 2015. This civil penalty resulted from an OE collateral case. ONRR issued a NONC to Salt Creek detailing the outstanding reports and provided a 30-day cure period to correct the violations. Salt Creek failed to comply during the cure period. Since Salt Creek is a very small company without a prior violation of the same type, OE computed the civil penalty assessment using the standard rates of $3 per day, per violation for the first 40 days and $5 per day, per violation thereafter. Extractive Industries Transparency Initiative (EITI) 36th Board Meeting, March 7-9, 2017. The Office of Natural Resources Revenue (ONRR) Deputy Director and the US Extractive Industries Transparency Initiative (USEITI) Secretariat will travel to attend the EITI Board Meeting in Bogota, Columbia. Report-outs of the Board Finance, Validation, and Governance and Oversight Committees are of particular interest to all implementing countries for this meeting. USEITI also expects feedback on the USEITI 2017 Work Plan, the Beneficial Ownership Roadmap, and the USEITI Request to Extend Partial Adapted Implementation for USEITI Subnational Revenues. The FY 2016 DOI Solid Waste Report is due to the Council on Environmental Quality (CEQ) on March 31, 2017. This report includes data on amounts of non-hazardous waste disposal and recycling to establish an annual waste diversion rate. Bureau and office FY 2016 Solid Waste and Chemicals Management Reports were due to OEPC on Friday, February 17, 2017. Solid waste data had previously been reported to the Office of Management and Budget and CEQ in the annual Strategic Sustainability Performance Plan but CEQ requested this as a separate report this year. Deepwater Horizon Oil Spill Settlement. On April 4, 2017, per the terms of the 2016 Deepwater Horizon Consent Decree, BP is scheduled to make the first of 15 annual payments to the DOI Natural Resource Damage Assessment and Restoration (NRDAR) Fund. This $489,655,172 payment will be allocated among seven sub-accounts - Open Ocean, Region-wide, and one for each affected State (AL, FL, LA, MS, and TX). These and all future settlement funds will be disbursed as directed by the co-trustees in accordance with publicly-reviewed restoration plans. DOI Economics Conference, April 5-7, 2017. The conference, organized by the Office of Policy Analysis (PPA), is an opportunity for the Interior economics community to convene on current issues of interest, collaborate across bureaus, identify key economics research challenges that are important to DOI’s programs and activities, and build community. This meeting is not open to the press. Assistant Secretary for Water and Science On March 8, USGS will release an updated status assessment for Florida manatee populations. The Scientific Investigations Report describes how this subspecies of the West Indian manatee is faring and the probability for population declines over the next 100 years. In January 2016 the FWS published a proposed rule to reclassify West Indian manatees from endangered to threatened under the Endangered Species Act. A final rule is due to be issued in March 2017. This report provides critical supporting information for the FWS determination for manatees. FWS has been briefed on the report’s findings. A news release is planned. In early March, USGS will announce a new report on critical minerals for the United States. This publication presents resource and geologic information for 23 mineral commodities currently viewed as important to the national economy and national security of the United States, many of which are sourced entirely outside of the United States. The report provides information on mineral environmental issues, as well an in-depth look at each commodity's use, distribution of deposit types, and current status of production, resources, and reserves. The individual commodity chapters serve as an update to the 1973 commodity chapters of USGS Professional Paper 820, United States Mineral Resources. A news release is planned. On March 21-22, a meeting of the National Geospatial Advisory Committee federal advisory committee is planned at Main Interior. This meeting will be followed by a March 23 meeting of the Federal Geographic Data Committee Steering Committee, also at Main Interior. In March or April, USGS will announce a new national-scale assessment of the distribution, occurrence, and character of brackish groundwater resources. Brackish groundwater can serve as a potential resource to help water-stressed regions stretch their limited freshwater supplies. The last national-scale map of brackish groundwater was completed in the 1960s. A news release is planned. In April, USGS will announce a new Scientific Investigation Report which explores drought frequency and intensity in the U.S. over the past half century. Responding to concerns that climate change will lead to deeper or longer droughts, and perceptions of worsening droughts in the western U.S., scientists compared streamgage data from 1951-1982 with data from the same gages in 1983-2014. Changes in drought frequency, duration or severity were identified in 4 of 9 ecoregions. Parts of the Southeastern U.S., Texas and California had more frequent droughts from the 1980s onward, while the Central Plains and the Northeast had less frequent droughts. A news release is planned. In the first two weeks of April, Reclamation and the National Park Service will have a reopening ceremony at Glen Canyon Dam Carl Hayden Visitor Center to highlight all new museum exhibits in the visitor center, which were completed late last fall. Reclamation is preparing an event invitation for the Department. TBD: In the coming weeks, Reclamation anticipates releasing a press release announcing the signing of the Record of Decision for the Long-Term Plan to Protect Adult Salmon in the Lower Klamath River Project located in Humboldt County, California. The selected alternative (Alternative 1) includes supplemental flows from Lewiston Dam to prevent a disease outbreak in the lower Klamath River in years when the flow is projected to be less than 2,800 cubic feet per second. The project will establish a 13-year direction through 2030. TBD: In the coming weeks, Reclamation and Sites Project Authority anticipate releasing a press release recognizing Sites Project Authority as the new partner for the North-of-the-Delta Offstream Storage (NODOS) Investigation. The press release will also announce Sites Project Authority’s Notice of Preparation and upcoming scoping meetings to be conducted in February. Reclamation issued a 2013 Progress Report, but will not issue a new Notice of Intent, and will be present at the scoping meetings to inform the public of Reclamation’s role in the NODOS Investigation. Media interest is anticipated. [THIS WAS IN LAST WEEK’S REPORT] In the coming weeks, a USGS-authored paper will be released about the potential release of mercury into the environment from thawing permafrost. The embargoed paper will be published in the journal Nature, and a news release is planned. Nature may also issue a news release. In the coming weeks, USGS will announce a new Scientific Investigation Report that presents monitoring data collected by 74 organizations at almost 1,400 sites to provide a nationwide look at changes in the quality of our rivers and streams in the 40 years since passage of the Clean Water Act. For the first time, these data can be viewed and analyzed side-by-side, giving users a comprehensive, nationwide view of changes in water quality based on 51 water-quality constituents and 38 aquatic-life metrics and spanning four decades. A news release with possible Secretary rollout is being planned. Assistant Secretary for Insular Affairs Wednesday, March 8 through Tuesday, March 14, 2017 AS-IN Nikolao Pula will travel to Saipan, Northern Mariana Islands for the dedication of the $25 million Puerto Rico dump closure and replacement park, financed with OIA funds; and for meetings with Governor Ralph Torres as follow-up to the Covenant Section 902 Consultations. Tuesday, April 3 - 7, 2017 AS-IN Nikolao Pula will travel to San Francisco (tentative venue) for four semi-annual meetings with representatives of the Federated States of Micronesia and the Republic of the Marshall Islands: ● Joint Economic Management Committee (JEMCO), which analyzes and considers the spending of Compact of Free Association funds in the Federated States of Micronesia 1½ days. ● Joint Economic Management and Financial Accountability Committee (JEMFAC), which analyzes and considers the spending of Compact of Free Association funds in the Marshall Islands – 1½ days. ● Trust Fund Committee, which makes investment decisions for the Trust Fund for the People of the Federated States of Micronesia. The Trust Fund has an approximate valuation of $410 million. ● Trust Fund Committee, which makes investment decisions for the Trust Fund for the People of the Marshall Islands. The Trust Fund has an approximate valuation of $260 million. 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Font color: Custom Highlight Superior National Forest Denial of Lease Renewals and Proposed Land ?'ithdrawal Commented Formatted: Font: Not Bold Formatted: Font: Not Bold Commented Commented Supen?or National Forest Denial of Lease Renewals and Proposed Land ?'ithdrawal Commented Formatted: Font: 11 pt, Not Bold Commented Commented I Formatted: Font: 11 pt, Not Bold Commented A - - - Commented CASE 0:16-cv-03042-SRN-LIB Document 71 Filed 02/21/17 Page 1 of 14 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Franconia Minerals (US) LLC, et al., Case No. 16-cv-3042 (SRN/LIB) Plaintiffs, MEMORANDUM OPINION AND ORDER v. United States of America, et al., Defendants. Daniel S. Volchok, Paul R.Q. Wolfson, Wilmer Cutler Pickering Hale and Dorr LLP, 1875 Pennsylvania Avenue Northwest, Washington, District of Columbia 20006, Michael J.P. Hazel, Wilmer Cutler Pickering Hale and Dorr LLP, 1225 Seventeenth Street, Suite 2600, Denver, Colorado 80202, Mark R. Kaster, and Steven J. Wells, Dorsey & Whitney LLP, 50 South Sixth Street, Suite 1500, Minneapolis, Minnesota, 55402, for Plaintiffs. Clare Boronow, Marissa Piropato, Sean C. Duffy, U.S. Department of Justice– Environment and Natural Resources Division, 601 D Street Northwest, Washington, District of Columbia 20004, Stuart C. Gillespie, U.S. Department of Justice– Environmental and Natural Resources Division, 999 Eighteenth Street South Terrace, Suite 370, Denver, Colorado 80202, and David W. Fuller, United States Attorney’s Office, 300 South Fourth Street, Suite 600, Minneapolis, Minnesota 55415, for Defendants. James A. Tucker, Joseph R. Palmore, Joseph A. Ward, Morrison & Foerster LLP, 2000 Pennsylvania Avenue Northwest, Suite 6000, Washington, District of Columbia 20006, Amy S. Conners, Thomas B. Heffelfinger, Best & Flanagan LLP, 60 South Sixth Street, Suite 2700, Minneapolis, Minnesota 55402, and Stephen J. Snyder, Snyder & Brandt, P.A., 120 South Sixth Street, Suite 2550, Minneapolis, Minnesota 55402, for Movant Northeastern Minnesotans for Wilderness. SUSAN RICHARD NELSON, United States District Judge I. INTRODUCTION This matter is before the Court on the motion of Movant Northeastern Minnesotans 1 CASE 0:16-cv-03042-SRN-LIB Document 71 Filed 02/21/17 Page 2 of 14 for Wilderness (“NMW”) to intervene as a defendant. (See Mot. to Intervene [Doc. No. 25].) NMW contends that it is entitled to intervene as a matter of right pursuant to Federal Rule of Civil Procedure 24(a)(2). Alternatively, it asks the Court to permit it to intervene under Rule 24(b)(1)(B), which governs permissive intervention. Because the Court concludes that intervention is warranted pursuant to Rule 24(b)(1)(B), NMW’s motion is granted. II. BACKGROUND A. The Parties Plaintiff Twin Metals Minnesota LLC (“Twin Metals”) is a privately owned mining company headquartered in Minnesota that focuses on developing and operating mining projects in northeastern Minnesota. (See Pls.’ Mot. to File Suppl. and Am. Compl. [Doc. No. 56], Ex. A (“Suppl. Compl.”) at ¶ 14.) Franconia Minerals (US) LLC (“Franconia”), a wholly-owned subsidiary of Twin Metals, engages in the discovery and development of base metals and platinum-group metals in the United States. (Id. at ¶ 14.) Franconia is “the owner by assignment of any and all rights, titles, and interests” in the two federal hardrock mineral leases that form the basis of this action. (Id.) Movant NMW is a non-profit corporation based in Ely, Minnesota. (Heffelfinger Decl. [Doc. No. 28], Ex. A (“Rom Decl.”) at ¶ 2.) It was formed in 1996 and today has approximately 5,300 members and 93,000 additional supporters. (Id. at ¶¶ 2, 6.) NMW describes its mission as “to protect and preserve wilderness and wild places in Minnesota’s Arrowhead region, to advocate for the protection of the Boundary Waters [Canoe Area Wilderness] and Voyageurs National Park and the enhancement of their wilderness aspect, 2 CASE 0:16-cv-03042-SRN-LIB Document 71 Filed 02/21/17 Page 3 of 14 and to foster education about the value of wilderness and wild places.” (Movant’s Mem. in Supp. of Mot. to Intervene [Doc. No. 27] (“Movant’s Mem.”) at 3 (citing Heffelfinger Decl., Ex. B (“Piragis Decl.”) at ¶ 2).) “NMW’s members rely on, appreciate, and benefit from the natural resources in the Superior National Forest, especially the waters, lands, plant communities and wildlife in the Boundary Waters and Voyageurs National Park, and have had a long-standing interest in lynx, moose, wolf, and forest conservation, both in the Boundary Waters and across the Superior National Forest.” (Id.) Defendants include the United States, the Department of the Interior, the Department of Agriculture, the Secretary of the Interior, the Solicitor of the Department of the Interior, the Secretary of Agriculture, the Forest Service, the Chief of the Forest Service, and the Bureau of Land Management (“BLM”). All individual defendants are sued in their official capacities. (Suppl. Compl. at ¶¶ 18, 19, 22, 24.) Defendants have filed no briefing on this matter and do not oppose intervention. (See Hr’g Tr. [Doc. No. 68] at 23:24-24:1.) B. The Complaint The present action stems from BLM’s decision to reject Plaintiffs’ application to renew two mining leases on land located in the Superior National Forest. (See Suppl. Compl. at ¶¶ 1, 2, 11.) Plaintiffs’ predecessor-in-interest first acquired the leases in 1966, after lengthy negotiation with BLM. (See id. at ¶¶ 58-63.) The initial lease term was for twenty years, with an option to renew for ten year intervals thereafter. (See id. at ¶ 65.) Of central importance to the case, Plaintiffs contend that the option to renew was invested in the lessee and was essentially non-discretionary on the part of BLM. (See id. at ¶¶ 4, 67, 72.) Pursuant to the renewal option, Plaintiffs’ predecessors-in-interest successfully 3 CASE 0:16-cv-03042-SRN-LIB Document 71 Filed 02/21/17 Page 4 of 14 renewed the lease in 1989 and in 2004. (See id. at ¶¶ 70, 78, 82.) In 2012, however, when Franconia applied for a third lease renewal, things did not go as smoothly. According to Plaintiffs, various environmental organizations—presumably including NMW—“put intense pressure on officials at the Department of the Interior, BLM, and the Forest Service to deny the renewal application, arguing that BLM had the authority to do so.” (Id. at ¶ 88.) Whether as a result of that pressure or for another reason, BLM asked defendant Hilary Tompkins, the Solicitor of the Department of the Interior, for an opinion as to whether it had the discretion to deny Franconia’s application for renewal. (Id. at ¶ 89.) On March 8, 2016, Tompkins issued her opinion—which is binding on BLM—concluding that Franconia did not have a non-discretionary right to renewal, and that BLM could grant or deny the application at its discretion. (Id. at ¶ 90.) Based on the Solicitor’s opinion, BLM announced its intention to consider Franconia’s application as if it were an application for an initial lease. This process included asking the Forest Service whether it consented to renewal of the lease, and an environmental analysis pursuant to the National Environmental Policy Act (“NEPA”). (Id. at ¶ 93.) On December 14, 2016, the Forest Service issued its decision declining to consent to renewal of the leases. (Id. at ¶ 101.) Based in part on that decision, as well as the Solicitor’s opinion, BLM rejected Franconia’s application to renew its leases the following day. (Id. at ¶¶ 104-106.) In light of the above alleged facts, Plaintiffs’ Complaint raises four counts against various Defendants. Count I, brought pursuant to the Quiet Title Act, 28 U.S.C. § 2409a, contends that Plaintiffs have a renewable leasehold interest in the mineral estates covered by 4 CASE 0:16-cv-03042-SRN-LIB Document 71 Filed 02/21/17 Page 5 of 14 the two at-issue leases. (Id. at ¶ 110.) Plaintiffs contend that BLM’s lease denial, along with the Solicitor’s opinion, have created an actual and concrete controversy between the parties regarding their respective interests in the estate, and, accordingly, Plaintiffs seek an adjudication of that dispute and a declaration of their leasehold interest. (Id. at ¶ 114.) Counts II through IV allege variously that the Solicitor’s opinion, the Forest Service’s denial of consent to renewal of the leases, and the BLM’s decision to deny renewal, are arbitrary, capricious, or not in accordance with law, in violation of the Administrative Procedure Act (“APA”). (Id. at ¶¶ 115-131.) Plaintiffs accordingly request that the opinion—and the denials based upon it—be set aside. (Id.) C. NMW’s Motion to Intervene NMW filed the present motion to intervene on November 21, 2016—slightly over two months after Plaintiffs commenced suit. (See generally Compl. [Doc. No. 1]; Mot. to Intervene.) In its motion papers and supporting declarations, NMW stresses the danger posed by mining and other activities—such as those proposed and undertaken by Plaintiffs—to its members’ use and enjoyment of their property and the Boundary Waters, as well as to their livelihoods. (See Movant’s Mem. in Supp. of Mot. to Intervene at 5-13.) In particular, NMW notes that the “low buffering capacity of water and soil and the interconnection of lakes and streams make the Boundary Waters and Voyageurs National Park watershed particularly vulnerable to the impacts of sulfide-ore copper mining.” (Id. at 6.) It alleges that sulfide-ore mining will cause acid mine runoff to leach into the watershed, causing permanent pollution that will likewise permanently damage the ecosystem. (Id. at 6-11.) In addition to these longer-term harms, NMW contends that its members are already 5 CASE 0:16-cv-03042-SRN-LIB Document 71 Filed 02/21/17 Page 6 of 14 suffering concrete harm from Plaintiffs’ actions. In particular, they cite to noise and other pollution resulting from ongoing exploratory drilling, and a drop in property values resulting from fears about possible mining activity. (See id. at 9-10; Hr’g Tr. at 15:14-16:25.) Because NMW argues that it has a cognizable interest in the subject matter of the litigation, will suffer clear and concrete harm if Plaintiffs’ claims are granted, and because its interests are not adequately represented by the Defendants, it seeks to intervene—either as of right or pursuant to the Court’s permission. (See Movant’s Mem. in Supp. of Mot. to Intervene at 14-22.) III. DISCUSSION A. Standard of Review Rule 24 of the Federal Rules of Civil Procedure sets forth two bases upon which intervention may be sought. Under Rule 24(a), the court must permit a movant to intervene if (1) the movant is given an unconditional right to intervene by federal statute; or (2) the movant “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” In addition to these statutorily imposed hurdles, the Eighth Circuit requires that prospective Rule 24(a) intervenors demonstrate the existence of an Article III case or controversy. See Mausolf v. Babbitt, 85 F.3d 1295, 1300-01 (8th Cir. 1996). So long as it is timely brought, a properly grounded motion to intervene— meeting all constitutional and statutory constraints—must be granted. See United States v. Union Elec. Co., 64 F.3d 1152, 1160 (8th Cir. 1995); Kansas Pub. Emps. Ret. Sys. v. 6 CASE 0:16-cv-03042-SRN-LIB Document 71 Filed 02/21/17 Page 7 of 14 Reimer & Koger Assocs., Inc., 60 F.3d 1304, 1306 (8th Cir. 1995). In contrast to the rigid and non-discretionary nature of intervention under Rule 24(a), Rule 24(b) intervention is marked by broad flexibility. As relevant here, the Rule provides that a timely motion to intervene may be granted by the court where the movant “has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). As the Eighth Circuit has recognized, “[t]he decision to grant or deny a motion for permissive intervention is wholly discretionary.” S.D. ex rel. Barnett v. U.S. Dep’t of Interior, 317 F.3d 783, 787 (8th Cir. 2003). Indeed, “[r]eversal of a decision denying permissive intervention is extremely rare, bordering on nonexistent.” 1 Id. Despite the wide latitude granted to district courts in considering a motion for permissive intervention, certain well-established criteria must be met before such a motion will be granted. Among the main considerations are (1) whether the motion to intervene is timely; (2) whether the movant’s claim shares a question of law or fact in common with the main action; and (3) whether intervention will unduly delay or prejudice adjudication of the original parties’ rights. See North Dakota v. Heydinger, No. 11-cv-3232 (SRN/SER), 2013 WL 593898, at *4 (D. Minn. Feb. 15, 2013). In addition, although “only a minor variable in the Rule 24(b) decision calculus,” the adequacy of protection afforded to the prospective intervenors by the existing defendants is a factor. S.D. ex rel. Barnett, 317 F.3d at 787. Finally, although the Eighth Circuit has not 1 The Court’s research suggests the same holds true for a decision granting permissive intervention. 7 CASE 0:16-cv-03042-SRN-LIB Document 71 Filed 02/21/17 Page 8 of 14 explicitly required that parties intervening under Rule 24(b)(1)(B) establish Article III standing, most district courts in this circuit to have considered the matter have done so. See North Dakota v. Heydinger, 288 F.R.D. 423, 427 (D. Minn. 2012) (collecting cases); but cf. In re Baycol Prods. Litig., 214 F.R.D. 542, 544 (D. Minn. 2003) (declining to require Article III standing as prerequisite to Rule 24(b) intervention). B. Permissive Intervention Because NMW moves to intervene both as a matter of right and with the Court’s permission, this Court may grant the motion on either or both bases. See, e.g., City of Chicago v. FEMA, 660 F.3d 980, 986 (7th Cir. 2011); Hartong v. Blue Valley Fed. Sav. & Loan Ass’n, 767 F. Supp. 1017, 1022 (W.D. Mo. 1990). For the reasons that follow, the Court finds permissive intervention to be appropriate here. 1. Article III Standing To establish Article III standing, NMW must show (1) injury, (2) causation, and (3) redressability. Nat’l Parks Conservation Ass’n v. U.S. E.P.A., 759 F.3d 969, 974 (8th Cir. 2014). To do so, it must first “clearly allege facts showing an injury in fact, which is an injury to a legally protected interest that is concrete, particularized, and either actual or imminent.” United States v. Metro. St. Louis Sewer Dist., 569 F.3d 829, 834 (8th Cir. 2009) (quotation and citation omitted). Next, it must demonstrate a causal connection between the injury and the conduct complained of, such that its injury is “fairly traceable to the defendant’s conduct.” See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); Metro. St. Louis Sewer Dist., 569 F.3d at 834. Finally, NMW must establish that a favorable decision will likely redress the injury. Nat’l Parks Conservation Ass’n, 759 8 CASE 0:16-cv-03042-SRN-LIB Document 71 Filed 02/21/17 Page 9 of 14 F.3d at 975. Turning first to the matter of injury in fact, the Court concludes that NMW has amply demonstrated an actual, concrete, and particularized harm. At the most immediate level, it has submitted the declarations of several members who own property adjacent to or near the land covered by the at-issue leases. (See Heffelfinger Decl. (attaching declarations).) Many of these individuals have testified to the substantial pollution— whether actual or in the form of noise—that they have been subjected to by Plaintiffs’ exploratory drilling activities. (See id., Ex. Z (“Koschak Decl.”) (describing the sound of exploratory drilling as similar to “putting your Kitchen-Aid mixer on the counter, plug[ing] it in, throw[ing] rocks into the steel pot, and leav[ing] it running with the blades grinding the rocks and hitting the sides of the pot 24 hours a day, seven days a week, for months on end”). The mental, physical and emotional stress caused by such activities— not to mention impaired property value—is a clear, concrete, actual injury. See Sierra Club v. U.S. Army Corps of Engineers, 645 F.3d 978, 987-88 (8th Cir. 2011); Coal. for Env’t v. Volpe, 504 F.2d 156, 167 (8th Cir. 1974). Thus, this prong of the analysis is met. Having established the existence of an injury in fact, the other two elements of the standing inquiry need not delay the Court long. “To satisfy causation, [NMW] must show that its ‘alleged injury is fairly traceable to the defendant’s conduct.’” Nat’l Parks Conservation Ass’n, 759 F.3d at 975 (quoting ACLU of Minn. v. Tarek ibn Ziyad Acad., 643 F.3d 1088, 1092 (8th Cir. 2011)). This requirement may be met even where the defendants and the intervenor seek the same outcome, so long as the defendants would be compelled to cause the alleged injury to the intervenor if the plaintiffs prevail. Tarek ibn 9 CASE 0:16-cv-03042-SRN-LIB Document 71 Filed 02/21/17 Page 10 of 14 Ziyad Acad., at 1093. In the present matter, a victory by Plaintiffs in this litigation would necessarily force the Defendants to renew the mining leases, restarting the exploratory drilling that is the immediate source of harm to NMW’s members. Finally, NMW’s injury is subject to redress. If it, as a defendant, prevails in upholding the denial of Plaintiffs’ lease renewal application, it will be freed from the selfsame activity that is the source of injury. That is plainly sufficient to demonstrate redressability, and thus NMW has adequately demonstrated standing in this matter. Cf. Mausolf, 85 F.3d at 1301-02 (holding that standing existed where prospective intervenors sought to prevent plaintiffs from succeeding in vacating new, more restrictive national park use-restrictions). 2. Rule 24(b)(1)(B) Factors The Court now turns to the criteria underscoring permissive intervention. Because timeliness is undisputed, the first inquiry is whether NMW has raised a question of law or fact common to the questions presented by the existing action. See Nat’l Parks Conservation Ass’n, 759 F.3d 975; Curry v. Regents of Univ. of Minn., 167 F.3d 420, 423 (8th Cir. 1999). Here, NMW seeks to uphold, under the APA, the same actions that Plaintiffs seek to overturn. (See generally Movant’s Mem. in Supp. of Mot. to Dismiss [Doc. No. 31].) “Thus, applicant[’s] claims and the main action obviously share many common questions of law and perhaps of fact.” Minn. Pub. Interest Research Grp. v. Selective Serv. Sys., 557 F. Supp. 923, 924 (D. Minn. 1983). While Plaintiffs make much of the fact that NMW’s reasons for doing so are inherently different than those of Defendants, the Court’s inquiry is to the movant’s arguments, not its purpose in making 10 CASE 0:16-cv-03042-SRN-LIB Document 71 Filed 02/21/17 Page 11 of 14 them. Cf. Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1110-11 (9th Cir. 2002) (holding that while lack of interest in the subject of litigation precluded intervention under Rule 24(a), permissive intervention was warranted where movant presented defenses that were “directly responsive” to the plaintiff’s claims). The Court thus concludes that NMW has adequately demonstrated the existence of common questions of law or fact. The next question is whether intervention will unduly delay or prejudice adjudication of the original parties’ rights. The Eighth Circuit has indicated that this factor is the “principal consideration in ruling on a Rule 24(b) motion . . . .” S.D. ex rel. Barnett, 317 F.3d at 787 (citations omitted). Plaintiffs argue that allowing NMW to participate in this litigation would “interject collateral issues” and “inevitably mean more motions, more discovery disputes, and more scheduling difficulties.” (Pls.’ Mem. in Opp. to Mot. to Intervene [Doc. No. 51] at 24.) The Court finds these contentions unconvincing. This case is in its earliest stages—discovery has not commenced, no Rule 26(f) conference has been held, and Plaintiffs have yet to file any memoranda responsive to the various motions to dismiss currently pending. Accordingly, any concerns related to rework or repetition are minimal. Likewise, although Plaintiffs are in some sense correct that adding a new defendant will naturally increase the burden on the original litigants in terms of new filings and new seats “at the table,” that alone is insufficient to warrant denial of the motion to intervene—the addition must be “unduly” burdensome, not just burdensome. The Court sees nothing to suggest that adding NMW would cause 11 CASE 0:16-cv-03042-SRN-LIB Document 71 Filed 02/21/17 Page 12 of 14 such significant difficulties to the parties or obstruct the flow of litigation. 2 Furthermore, although Plaintiffs contend that NMW’s entry into this litigation would inject collateral issues that would distract from the claims in dispute, the Court is hard pressed to see what those issues might be. NMW’s motion to dismiss, for instance, raises essentially identical defenses to those raised in Defendants’ own motion. (Compare Movant’s Mem. in Supp. of Mot. to Dismiss with Defs.’ Mem. in Supp. of Mot. to Dismiss [Doc. No. 47].) While NMW may well raise arguments based on broader or narrower concerns and different familiarity with the subject matter of the litigation, that in and of itself is not a bad thing—the Court expects to profit from a diversity of viewpoints as they illuminate the ultimate questions posed by the parties. See, e.g., King v. Christie, 981 F. Supp. 2d 296, 310 (D.N.J.) (noting advantage of “alternative viewpoint” in “resolving plaintiffs’ claims fully and fairly”); Pickup v. Brown, No. 2:12-cv-02497-KJM-EFB, 2012 WL 6024387, at *4 (E.D. Cal. Dec. 4, 2012) (same). Thus, the Court finds that there is no real likelihood that allowing NMW to intervene would cause undue delay or prejudice to any of the original parties. Finally, although only a “minor variable” in the equation, S.D. ex rel. Barnett, 317 F.3d at 787, the Court does not find that Defendants so clearly represent NMW’s interests so as to outweigh other factors weighing in favor of allowing intervention. It is true, of course, that where one party to a lawsuit is an arm or agency of the government, and the case concerns a matter of sovereign interest, the government is presumed to represent the 2 On this point, the Court finds it worthy of note that Defendants do not oppose NMW’s intervention in this matter—suggesting that at least one of the original parties is not overly concerned with delay or prejudice. (See Hr’g Tr. at 23:24-24:1.) 12 CASE 0:16-cv-03042-SRN-LIB Document 71 Filed 02/21/17 Page 13 of 14 interests of all its citizens. See N.D. ex rel. Stenehjem v. United States, 787 F.3d 918, 921 (8th Cir. 2015). This parens patriae presumption may be rebutted, however, through a strong showing of inadequate representation. Mausolf, 85 F.3d at 1303. Thus, in Mausolf, the Eighth Circuit concluded that the government failed to adequately represent the interests of conservation groups where the government had in the past “waived and failed to enforce regulations,” and where the enactment of current regulations (the subject of the suit) was probably prompted by the conservation groups’ agitation. Id. Given that, in the present matter, Defendants have only recently changed their opinion regarding their authority to deny lease renewals—likely at the behest of NMW and other environmental groups—and that a real possibility exists that administrative priorities may shift with the onset of the new administration, the Court finds it a close question whether NMW has rebutted the parens patriae presumption. At the very least, however, this lesser factor does not clearly outweigh those more persuasive considerations that align with NMW here. IV. CONCLUSION On the balance of factors, therefore, the Court concludes that NMW has adequately demonstrated that permissive intervention is warranted here. It need not, therefore, consider whether intervention would also be appropriate as a matter of right under Rule 24(a)(2). THEREFORE, IT IS HEREBY ORDERED THAT: 1. Movant’s Motion to Intervene as a Defendant [Doc. No. 25] is 13 CASE 0:16-cv-03042-SRN-LIB Document 71 Filed 02/21/17 Page 14 of 14 GRANTED. Dated: February 21, 2017 s/Susan Richard Nelson SUSAN RICHARD NELSON United States District Judge 14 CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 1 of 34 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA FRANCONIA MINERALS (US) LLC; and TWIN METALS MINNESOTA LLC, Plaintiffs, v. Civil Action No. 16-3042 SRN/LIB UNITED STATES OF AMERICA; U.S. DEPARTMENT OF THE INTERIOR; KEVIN HAUGRUD, Acting Secretary, U.S. Department of the Interior; ED KEABLE, Acting Solicitor, U.S. Department of the Interior; BUREAU OF LAND MANAGEMENT; U.S. DEPARTMENT OF AGRICULTURE; MICHAEL YOUNG, Acting Deputy Secretary, U.S. Department of Agriculture; U.S. FOREST SERVICE; and THOMAS L. TIDWELL, Chief, U.S. Forest Service, SUPPLEMENTAL AND AMENDED COMPLAINT Defendants, and NORTHEASTERN MINNESOTANS FOR WILDERNESS, Defendant-Intervenor.1 1 Since plaintiffs moved to file their supplemental and amended complaint, three of the public-officer defendants have resigned. Pursuant to Federal Rule of Civil Procedure 25(d), plaintiffs have substituted those officers’ successors in the caption. Plaintiffs have also made conforming changes to paragraphs 10, 18, 19, 22, 89, 99, and the titles to Counts II, III, and IV. Finally, pursuant to the Court’s order granting the motion of Northeastern Minnesotans for Wilderness (“NMW”) to intervene, plaintiffs have added NMW to the caption. CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 2 of 34 Plaintiffs Franconia Minerals (US) LLC (“Franconia”) and Twin Metals Minnesota LLC (“Twin Metals”), for their complaint against defendants—the United States, the U.S. Department of the Interior, Kevin Haugrud, Ed Keable, the Bureau of Land Management (“BLM”), the U.S. Department of Agriculture, Michael Young, the U.S. Forest Service, and Thomas L. Tidwell—allege as follows: INTRODUCTION AND NATURE OF THE ACTION 1. This is an action under the Quiet Title Act and the Administrative Procedure Act challenging the federal government’s unlawful evisceration of plaintiffs’ established property rights in minerals in the Superior National Forest in northeastern Minnesota. 2. Plaintiffs are two Minnesota mining companies. They possess valid existing mineral rights under federal law, based on the discovery of valuable minerals on federal lands. These rights are memorialized in two leases for hardrock minerals (copper, nickel, and platinum-group metals) that were executed with the United States in 1966: MNES-01352 and MNES-01353 (“the Leases”). 3. The Leases grant the lessee the “exclusive right to mine, remove, and dispose” of all the copper, nickel, and associated minerals for a period of 20 years, with a “right in the Lessee to renew the same for successive periods” of 10 years. Ex. 1 (1966 Leases) § 1(a). 4. This right to successive renewals, which was grounded in the applicable government regulations and embodied in long-standing mineral policy, was included in the Leases because it was consistent with the type and nature of mineral tenure granted for valuable hardrock minerals that are discovered in unknown exploration areas. The renewal right, like the Leases themselves, represented a reward for the discovery made by the lessee and the risk undertaken to make that discovery, i.e., a reward for the challenges associated with hardrock -2- CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 3 of 34 mineral development generally and challenges unique to such development in northeastern Minnesota specifically. 5. Hardrock mineral development is inherently risky, time-consuming, and expensive, requiring a substantial and long-term commitment of resources by the lessee in order for such minerals to be produced. Given this, no lessee would have undertaken the necessary investment in mineral exploration and development on the lands at issue without a successive right to renew. Doing so would mean the government could unilaterally deny renewal of the Leases and thereby deprive the lessee of a reasonable opportunity to recoup that investment. Absent a nondiscretionary right to renew, in other words, the Leases would have little if any value. 6. Over the past five decades—in reliance on their rights under governing federal law and the Leases, and on continued assurances provided by federal government officials—plaintiffs (and their parent companies) have invested approximately $400 million to explore for and then develop the vital hardrock minerals—metals of great strategic importance to the U.S. economy and national defense. 7. As a result of their investment, plaintiffs have identified and defined in the subject lands one of the largest untapped copper and nickel resources in the world, conservatively estimated at more than $40 billion of in-ground mineral value. Plaintiffs also possess adjacent state and private mineral leases, as well as additional valid existing federal mineral rights, that together total another $90 billion of in-ground mineral value. Given the interconnected nature of the mineral deposits on these various lands, denying plaintiffs’ right to renew the Leases also impairs these other mineral rights. 8. The federal government, meanwhile, has assumed no financial risk for the work undertaken by plaintiffs (and their predecessors in interest) to discover -3- CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 4 of 34 and develop these minerals. It has, however, reaped significant benefits. These include substantial rents and royalties paid by the lessees under the Leases. See Ex. 1 § 2. The benefits also include awareness and understanding of previously unknown mineral deposits on public lands. 9. Plaintiffs’ predecessors in interest exercised their right to renew in 1989 and again in 2004; in each instance, BLM granted a 10-year renewal of the Leases—without giving any indication that it believed it had discretion to deny renewal. See Ex. 2 (1989 Renewal Forms); Ex. 3 (2004 Renewal Forms). 10. When plaintiffs sought a third renewal, however—following the same process used for the two previous ones—the government changed the rules: Amid increased political pressure and intense opposition from environmental groups, then-Solicitor of the Interior Hilary Tompkins issued a binding opinion concluding that BLM has discretion to deny renewal of the Leases outright. See Ex. 4 (“Solicitor’s Opinion” or “Opinion”). 11. BLM relied on the Solicitor’s Opinion to request the Forest Service’s consent to lease renewal. When the Forest Service denied that consent, BLM rejected plaintiffs’ renewal application and terminated the Leases. 12. The Solicitor’s Opinion, the Forest Service’s denial of consent, and the BLM’s denial of renewal of the Leases are each arbitrary, capricious, and contrary to law and to the unambiguous terms of the Leases, and the harm they inflict on plaintiffs is drastic and far-reaching. They indefensibly change the nature of the mineral tenure granted to plaintiffs, undermining their rights and creating a dispute over the parties’ interests in the mineral estate. They also represent an unjustifiable reversal of the government’s prior recognition of plaintiffs’ rights— rights on which plaintiffs and their predecessors reasonably relied for decades as they invested hundreds of millions of dollars to explore and develop the underlying minerals. Finally, they thwart plaintiffs’ ability to develop the mineral estate— -4- CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 5 of 34 denying plaintiffs any return on their massive investment, jeopardizing the jobs for generations that would come with the future mining project, and prejudicing plaintiffs’ mineral rights on federal, state, and private lands contiguous to the Leases. 13. Plaintiffs therefore bring this suit to quiet title to their renewable leasehold interest in the subject mineral estate (that is, the hardrock minerals in the specified lands) and to obtain a declaration that the Solicitor’s Opinion, the Forest Service’s withholding of consent to renewal, and the BLM’s denial of renewal of the Leases are arbitrary, capricious, and contrary to law. PARTIES 14. Plaintiff Twin Metals is a privately owned limited liability mining company, headquartered in Minnesota, that focuses on developing and operating a mining project to produce the valuable minerals underlying the lands covered by the Leases and other minerals. 15. Plaintiff Franconia is a limited liability mining company, headquartered in Minnesota, that engages in the discovery and development of base metals and platinum-group metals in the United States. Franconia is a wholly owned subsidiary of Twin Metals. Franconia is the owner by assignment of any and all rights, titles, and interests in the Leases. 16. Defendant United States owns the real property covered by the Leases. 17. Defendant U.S. Department of the Interior is responsible for the management of certain federal lands and natural resources, including the mineral resources covered by the Leases. 18. Defendant Kevin Haugrud is the Acting Secretary of the Interior and is sued in his official capacity. The Secretary has the authority to permit prospecting, development, and use of mineral resources in the subject lands. -5- CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 6 of 34 19. Defendant Ed Keable is the Acting Solicitor of the Department of the Interior and is sued in his official capacity. The Solicitor is the chief legal officer of the Department of the Interior, see Department of the Interior, Department Manual, Part 209, § 3.1 (1992), and is authorized to “issue final legal interpretations, in the form of M-Opinions … on all matters within the jurisdiction of the Department,” id. § 3.2(A)(11). Such opinions are “binding … on all other Departmental offices and officials and … may be overruled or modified only by the Solicitor, Deputy Secretary, or the Secretary.” Id. On March 8, 2016, Keable’s predecessor (Tompkins) issued the Solicitor’s Opinion at issue in this case. 20. Defendant BLM is an administrative agency within the U.S. Department of the Interior. It has been delegated authority by the Secretary of the Interior to administer the prospecting for and development and utilization of minerals on certain federal lands and, in particular, is responsible for approving applications for the grant and renewal of mineral-related leases on federally owned land. 21. Defendant U.S. Department of Agriculture is responsible for the management of certain federal lands and natural resources, including the federal surface lands described in the Leases. (Most but not all of the surface land covered by the Leases is federally owned.) 22. Defendant Michael Young is the Acting Deputy Secretary of Agriculture and is sued in his official capacity. Young, currently the highest ranking official at the U.S. Department of Agriculture, is authorized by statute to perform the functions and duties of the Secretary of Agriculture temporarily in an acting capacity. The Secretary has authority over the management of certain federal lands and natural resources, including the federal surface lands described in the Leases. -6- CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 7 of 34 23. Defendant U.S. Forest Service is an administrative agency within the U.S. Department of Agriculture. It manages national forests and grasslands, including the Superior National Forest, under a multiple-use and sustained-yield mandate. It is the surface owner of the federal lands described in the Leases. 24. Defendant Thomas L. Tidwell is the Chief of the Forest Service and is sued in his official capacity. On December 14, 2016, Tidwell issued a decision on behalf of the Forest Service refusing consent to renewal of the Leases. JURISDICTION AND VENUE 25. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331, 1346(f), and 1361. 26. Venue is proper in this Court under 28 U.S.C. §§ 1391 and 1402(d) because the property that is the subject of this action is located in Minnesota. 27. Plaintiffs’ Quiet Title Act claim is timely under 28 U.S.C. § 2409a because it is brought within 12 years of the date that plaintiffs knew or should have known that the United States disputes Franconia’s right, title, or interest in the lands at issue. 28. Plaintiffs’ Administrative Procedure Act claims are timely under 28 U.S.C. § 2401(a) because they are brought within six years of defendants’ actions repudiating plaintiffs’ successive non-discretionary right to renewal of the Leases. LEGAL BACKGROUND 29. This case involves a mineral estate in lands within the Superior National Forest in northeastern Minnesota. The lands encompassed by the Leases include public-domain land as well as land acquired by the United States under the Weeks Act, 36 Stat. 961 (1911) (codified at 16 U.S.C. §§ 515 et seq.). A. General Mining Law 30. The process of prospecting for and developing federal mineral deposits—especially hardrock mineral deposits—is risky, time-consuming, and -7- CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 8 of 34 expensive. It requires long-term planning and investment and presents a high likelihood of failure. 31. Recognizing these inherent difficulties, as well as the national interest in hardrock-mineral development, Congress created incentives for private exploration of unknown geologic deposits, by rewarding the discovery of valuable mineral deposits. 32. In particular, in 1872 Congress enacted the General Mining Law, which provides the foundation for the private acquisition of hardrock minerals on public-domain lands. See 17 Stat. 91 (1872) (codified at 30 U.S.C. §§ 22 et seq.). The purposes of this law included encouraging development of U.S. resources and facilitating the transfer of public minerals to private parties. Hence, declaring that “all valuable mineral deposits in lands belonging to the United States … [are] free and open to exploration and purchase,” id., the General Mining Law encourages citizens to “enter and explore the public domain, and search for minerals,” Andrus v. Shell Oil Co., 446 U.S. 657, 658 (1980). 33. Under the law, “‘[d]iscovery’ of a mineral deposit … gives an individual the right of exclusive possession of the land for mining purposes” and the right “to extract and sell minerals” lying beneath the surface. United States v. Locke, 471 U.S. 84, 86 (1985). Additionally, “[f]or a nominal sum, and after certain statutory conditions are fulfilled, an individual may patent the claim, thereby purchasing from the Federal Government the land and minerals and obtaining ultimate title to them.” Id. B. Mineral Leasing Act Of 1920 And Mineral Leasing Act For Acquired Lands Of 1947 34. Nearly half a century after passage of the General Mining Law, Congress enacted comprehensive mineral leasing legislation to encourage “private mining and marketing while preserving federal ownership of the mineral lands.” -8- CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 9 of 34 Natural Resources Def. Council v. Berklund, 609 F.2d 553, 555 (D.C. Cir. 1979) (per curiam). 35. In that legislation—the Mineral Leasing Act of 1920, Pub. L. No. 66- 146, 41 Stat. 437 (codified at 30 U.S.C. §§ 181 et seq.)—Congress withdrew certain non-hardrock minerals (“oil shale and several other minerals”) from the open-access regime of the General Mining Law, providing “that thereafter [they] would be subject to disposition only through leases.” Andrus, 446 U.S. at 659. 36. Because the Mineral Leasing Act authorized leasing of identified non- hardrock minerals only on public-domain lands, Congress subsequently enacted the Mineral Leasing Act for Acquired Lands, authorizing leasing of the same minerals on acquired lands. See Pub. L. No. 80-382, 61 Stat. 913 (1947) (codified at 30 U.S.C. §§ 351 et seq.). 37. Consistent with the long-standing mineral policies embodied in the General Mining Law, these later statutes continued to recognize the critical importance of mineral development to the United States, and the corresponding need to reward prospectors for undertaking the risk of exploring for unknown mineral deposits. 38. In particular, Congress—using “unequivocal and clear” statutory language—established that a prospecting permittee who makes a valuable discovery “‘shall be entitled to a lease’” for the minerals. Berklund, 609 F.2d at 557 (quoting 30 U.S.C. § 201(b) (1970)). That pellucid language deprived the Secretary of the Interior of discretion to deny a lease once a valuable discovery occurs. Id. Put simply: “[T]he applicant who satisfies the condition is entitled to a lease.” Id. (emphasis added). 39. The Department of the Interior, through decades of uniform practice, agreed. As the D.C. Circuit explained in 1979, “[t]he Department … , through the 58 years of administration of these provisions, has consistently interpreted -9- CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 10 of 34 § 201(b) … as denying [the Secretary] discretion to reject a preference right lease once a permit has issued and coal in commercial quantities has been found.” Berklund, 609 F.2d at 555 n.5. The term “preference right lease,” as the D.C. Circuit explained in the same case, has “been construed by [the Department of the Interior] consistently for nearly 60 years to mean an automatic entitlement of a prospecting permittee who establishes the presence of commercial quantities of coal in the area covered by the permit.” Id. at 557-558 (emphasis added). C. Mineral Development In Minnesota 40. The acquisition of federal hardrock minerals by private parties in the Superior National Forest is not governed by the General Mining Law or the other statutes discussed above. It is instead regulated under three laws enacted in the early and mid-1900s, as well as the Secretary’s implementing regulations. Those governing statutes and regulations, however, preserve the defining feature of the laws discussed above, namely rewarding prospectors for the discovery of a valuable mineral deposit by granting a property interest in the mineral estate. 1. 41. Public-Domain Lands One year after enacting the General Mining Law, Congress excepted from it all mineral lands in Minnesota (and Michigan and Wisconsin). See 17 Stat. 465 (1873) (codified at 30 U.S.C. § 48); S. Rep. No. 81-1778, at 1 (1950). 42. In 1950, however, Congress authorized hardrock mineral exploration and development on public-domain land in the Superior National Forest. Specifically, it authorized the Secretary of the Interior, with the consent of the Secretary of Agriculture, to “permit the prospecting for and the development and utilization of … mineral resources” in the Forest, to the extent not already statutorily authorized. Pub. L. No. 81-594, 64 Stat. 311 (1950) (codified at 16 U.S.C. § 508b). - 10 - CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 11 of 34 43. According to the accompanying Senate report, the 1950 Act was intended not just to “permit” such mining, but to encourage it as a “highly desirable” activity. S. Rep. No. 81-1778, at 2. That policy continues to be reflected in the current Superior National Forest Land and Resource Management Plan (“Forest Plan”), which expressly designates “[e]xploration and development of mineral and mineral material resources” as a “desired condition” in the Forest. The Forest Plan and the activities it authorizes—including mineral development—were the result of a Forest-wide environmental analysis conducted pursuant to the National Environmental Policy Act (“NEPA”). 44. Congress enacted the 1950 Act against the backdrop of the executive branch’s failure to honor and protect mining companies’ legitimate reliance interests, resulting in severe economic consequences for those companies. See S. Rep. No. 81-1778, at 2; H.R. Rep. No. 81-795, at 2 (1949). Indeed, according to the Senate report it was Congress’s dissatisfaction with “investment losses resulting from cancellation of mining permits in the Minnesota forests” that spurred passage of the law. S. Rep. No. 81-1778, at 2. In particular, the accompanying House report stated, companies that “have made investments for the mining and removal of mineral substances from the described lands should be given the privilege of renewing or retaining their permits or leases.” H.R. Rep. No. 81-792, at 2. 2. 45. Acquired Lands As noted, this case involves not only federal public-domain land but also land acquired by the federal government under the Weeks Act, which authorized the Secretary of Agriculture (and now the Secretary of the Interior) to identify and purchase certain lands “as in his judgment may be necessary to the regulation of the flow of navigable streams or for the production of timber.” 15 U.S.C. § 515. - 11 - CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 12 of 34 46. Congress authorized hardrock mining on such land by a statute enacted in 1917 and amended in 1946. See Pub. Law No. 64-390, 39 Stat. 1150 (1917) (codified at 16 U.S.C. § 520), amended by Reorganization Plan No. 3 § 402, 60 Stat. 1099 (1946). 47. As amended, this statute authorizes the Secretary of the Interior “to permit the prospecting, development, and utilization of mineral resources of the land acquired under … the Weeks law,” 39 Stat. 1150, provided that the Secretary “is advised by the Secretary of Agriculture that such development will not interfere with the primary purposes for which the land was acquired and only in accordance with such conditions as may be specified by the Secretary of Agriculture in order to protect such purposes,” 60 Stat. 1099. 3. 48. The Boundary Waters Canoe Area Wilderness In 1964, Congress enacted the Wilderness Act, “establish[ing] a National Wilderness Preservation System to be composed of federally owned areas designated by Congress as ‘wilderness areas.’” Pub. L. No. 88-577 § 2(a), 78 Stat. 890 (1964). The Wilderness Act represented a compromise between preservation and mining interests: While Congress imposed restrictions on mineral development in wilderness areas, it (1) authorized continued prospecting for minerals if such activity was “carried on in a manner compatible with the preservation of the wilderness environment”; (2) protected pre-existing mineral rights; and (3) established a 20-year grace period for the exploration of minerals and the conveyance of mineral tenure upon the occurrence of a valuable discovery. Id. § 4(d)(2), (3), 78 Stat. at 894-895. 49. The Boundary Waters Canoe Area became part of the National Wilderness Preservation System established by the Wilderness Act. Pub. L. No. 88577 § 4(d)(5), 78 Stat. at 895. - 12 - CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 13 of 34 50. In 1978, twelve years after the Leases were executed, Congress reaffirmed its support for mining in the Superior National Forest when it passed the Boundary Waters Canoe Area Wilderness Act. See Pub. L. No. 95-495, 92 Stat. 1649 (1978). Superseding the 1964 designation of the Boundary Waters Canoe Area, this act designated the 1.1-million-acre Boundary Waters Canoe Area Wilderness, an area located along the northern border of the 3.7-million-acre Forest. See id. The product of intense public debate, that designation reflected a compromise that balanced preservation interests with the need for access to important mineral resources—and respect for vested mineral rights—in the Forest. 51. Although Congress prohibited mineral development in the wilderness, it expressly permitted mining in 2.4 million acres of the Superior National Forest— including the subject lands here. See Pub. L. No. 95-495 § 11(b)(1), 92 Stat. at 16551656. To ensure that mineral development would not harm the wilderness, Congress established as a buffer zone a 220,000-acre “Mining Protection Area” bordering the wilderness. See id. §§ 9-10, 92 Stat. at 1655. The Leases are on land located outside the buffer zone.2 52. The following map depicts the Boundary Waters Canoe Area Wilderness, the Mining Protection Area, and the Superior National Forest boundary. 2 Subsequent to the execution of the Leases, Minnesota created a Mineral Management Corridor bordering the wilderness area (depicted in blue on the above map). State law prohibits surface mining—but not underground mining— within the Corridor. A portion of the surface of MNES 1353 is located within the Corridor. - 13 - CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 14 of 34 4. 53. Relevant Regulations The Secretary of the Interior, under the authority of both the 1950 Act and the 1917 Act as amended in 1946, promulgated regulations governing hardrockmineral development in public-domain and acquired lands in the Superior National Forest. See generally 43 C.F.R. Pt. 3220 (1966); id. §§ 3325.0-3 to 3325.3 (1966). 54. In accordance with the long-standing mineral law and policy discussed above, these regulations created incentives for exploration, including rewards for discovery. In particular, the regulations established that the discovery of a valuable mineral deposit entitled a prospector to a renewable leasehold interest in the mineral estate. 43 C.F.R. § 3221.4(a), (f) (1966). Although both the method by which prospectors acquired an interest in the minerals and the type of mineral tenure that was granted (a leasehold) differed from what was provided under the General Mining Law (a patent), the central feature of both was the same: an entitlement right to the mineral estate upon the discovery of a valuable mineral - 14 - CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 15 of 34 deposit. The purpose behind this right is to give prospectors an incentive to incur the expense and risk required to identify the valuable deposit, and to reward them for doing so by providing an opportunity to benefit from any discovery. 55. More specifically, the Secretary’s regulations required a prospector to submit an application for a prospecting permit to the Secretary of the Interior. See 43 C.F.R. § 3221.2 (1966). If a permit was granted, the permittee had the “exclusive right to prospect on and explore the described lands to determine the existence of, or workability of, the mineral deposits therein.” Id. § 3221.2(a) (1966). 56. The regulations further provided that if the holder of a prospecting permit discovered a valuable mineral deposit, the permittee was entitled to a “[r]eward for discovery.” 43 C.F.R. § 3221.4 (1966). In particular, the permittee was entitled to a lease for the mineral deposit, with a non-discretionary right of renewal: Upon discovery of any valuable deposit of minerals the permittee shall be entitled to a preference right lease for the mineral in any or all of the lands in the permit[.] The lease will be issued for a period not exceeding 20 years …. The lessee will be granted a right of renewal for successive periods, not exceeding 10 years each, under such reasonable terms and conditions as the Secretary of the Interior may prescribe[.] Id. § 3221.4(a), (f) (emphasis added). 57. In granting this non-discretionary right of renewal, the Secretary of the Interior retained the ability, in consultation with the surface-management agency (in this case, the Forest Service), to make reasonable adjustments to the terms and conditions of the lease, “including the revision of or imposition of stipulations for the protection of the surface of the land.” 43 C.F.R. § 3221.4 (1966). This provision gave the government the flexibility, through periodic modification of the lease terms, to address concerns about surface impacts arising after lease - 15 - CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 16 of 34 issuance, while also providing the lessee with certainty regarding its mineral rights. Nothing in the applicable statutes or regulations authorized either the Secretary of the Interior or the Forest Service to deny renewal of leases outright. FACTS A. Franconia’s Predecessors In Interest Received Prospecting Permits And Made Valuable Mineral Discoveries 58. Shortly after Congress enacted the 1950 Act, Franconia’s predecessor in interest, the International Nickel Company, Inc. (“INCO”), applied for prospecting permits to explore for hardrock minerals in the Superior National Forest. 59. The Secretary of the Interior, through his designee BLM, granted INCO’s applications, after obtaining the consent of the Forest Service, on behalf of the Secretary of Agriculture, as the Act of 1950 required. 60. INCO made significant investments to explore for mineral deposits in the subject lands. As a result of those investments and exploration efforts, INCO discovered valuable deposits of copper, nickel, and other strategic minerals. Under the governing regulations discussed above, that discovery entitled INCO to an exclusive, renewable leasehold interest in the mineral estate. B. 1966 Leases 61. In 1956, INCO sought to memorialize its mineral rights, applying for a lease from the United States that would grant it the exclusive right to dispose of the copper, nickel, and associated minerals in the subject lands. INCO’s application gave rise to a decade of what BLM later labeled “intensive negotiations” over the lease terms and conditions. Ex. 5 (BLM Memo re Recommendation for Lease Renewals) at 1 (Oct. 14, 1988). 62. In particular, INCO rejected the inclusion in the Leases of any minimum production requirement, in light of the expected time and difficulty - 16 - CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 17 of 34 involved in developing the minerals. In lieu of a production requirement, the parties inserted several production incentives into the Leases. 63. On June 14, 1966, INCO and the United States memorialized their agreement, executing leases MNES-01352 and MNES-01353. See generally Ex. 1. 64. The Leases, which are attached to and incorporated by reference into this complaint, contain a legal description of the lands that they cover. Ex. 1 § 1(a) (MNES-01352); Ex. 1 § 1(a) (MNES-01353).3 The following map (which is an enlargement of the center of the previous map) shows the location of the Leases. 3 With the exception of the described lands, leases MNES-01352 and MNES-01353 are identical. - 17 - CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 18 of 34 65. Consistent with the governing regulations, the first section of the Leases recites not only the lessee’s exclusive right to mine on the subject lands, but also the non-discretionary right to renew the Leases. Specifically, section 1, entitled “Rights of Lessee,” provides that the lessee has: the exclusive right to mine, remove, and dispose of all the copper and/or nickel minerals and associated minerals and, with the exception of oil, gas, oil shale, coal, phosphate, potassium, sodium, or sulphur, any other minerals in, upon, or under the described lands … for a period of twenty (20) years with a right in the Lessee to renew the same for successive periods of ten (10) years each in accordance with regulation 43 CFR § 3221.4(f) and the provisions of this lease. - 18 - CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 19 of 34 66. Section 2 of the Leases then sets forth comprehensive terms, ranging from rental rates and royalties to the payment of taxes and non-discrimination provisions. Consistent with the parties’ negotiations, section 2(c) creates incentives for production, requiring INCO to pay minimum royalties that were significantly higher than normal. These high royalties ensured—as BLM later confirmed—that INCO retained a financial incentive for development. See Ex. 5 at 1 (“Th[e] high minimum royalty payment … is intended to serve as the ‘production incentive’ or ‘diligent development’ provision in the leases[.]”). Pursuant to this provision, INCO and its successors have paid significant royalties and rent to the government over the past 50 years. 67. Section 5 of the Leases, entitled “Renewal Terms,” authorizes BLM to “reasonably readjust” lease terms during “each successive renewal,” except as otherwise provided. As BLM later confirmed, however, neither section 5 nor any other provision of the Leases establishes “a production requirement.” Ex. 5 at 1. 68. Section 5 instead creates a second production incentive, providing that if the lessee begins producing within the initial 20-year term of the Leases, then BLM’s ability to readjust terms and conditions during the first three renewals would be limited. Specifically, if the lessee began production during the initial 20year term, then upon renewal of the Leases BLM could only adjust the royalty provisions by specified amounts, and could not adjust other terms and conditions at all. See Ex. 1 § 5. By contrast, if the lessee did not begin production before the initial term ended, then BLM would have the ability to make reasonable adjustments not only to royalty rates but also to other terms and conditions, such as stipulations for the protection of the surface land. Id. 69. Section 14 of the Leases contains a third production incentive: It further limits BLM’s ability, upon certain actions by the lessee, to readjust royalties during both the second half of the primary lease term and the first, second, and - 19 - CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 20 of 34 third 10-year renewal periods. In particular, this section provides that if the lessee “sunk a shaft for underground exploration or development or … otherwise commenced commercial development of the premises leased under [either] lease … within five years,” then the royalty rates in sections 2 and 5 of the Leases would be reduced as specified. Ex. 1 § 14. One year after the Leases were executed, INCO sunk an 1100-foot shaft, at a cost of at least $1 million, for exploration and development on lease MNES-01352. C. 1989 Renewal 70. In 1986, INCO timely applied for a 10-year renewal of the Leases. Three years later, BLM used standard-form documents to renew the Leases— stating that the renewal was “under the existing terms and conditions of the original leases.” Ex. 6 (BLM Decision) at 1 (Apr. 25, 1989). 71. The Leases were attached in full to the standard forms, with certain provisions of the Leases cited. See Ex. 2 § 14 (referring to the “attached original lease agreement”). 72. As part of the lease-renewal process, BLM asked the Forest Service to review the terms and conditions of the Leases to ensure they were adequate to protect the resources of the United States. Neither agency suggested that the Forest Service could withhold consent entirely; its authority was limited to suggesting terms and conditions to provide such protection. The Forest Service acknowledged this limited authority in responding to BLM’s request: the Forest Supervisor stated that the Forest Service was “not deciding if the leases should be issued but instead [was] deciding if new restrictions need to be added before extending them.” Ex. 10 at 2 (Forest Service Finding of Categorical Exclusion (Feb. 9, 1987)). No restrictions were deemed necessary, however, because the Forest Service found that the Leases’ existing terms and conditions “are adequate to prevent or mitigate unacceptable impacts and that no additional conditions need to - 20 - CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 21 of 34 be added prior to their renewal.” Id. at 2. The Forest Service thus issued a “Finding of Categorical Exclusion,” consenting to renewal because the “activities authorized by these leases can be conducted in conformance with the management direction found in the Forest Plan.” Id. at 1; see also Ex. 11 at 1 (Forest Service Consent Letter (June 19, 1987) (consenting to renewal because the “existing lease terms and conditions are adequate”)). 73. At no point during the 1989 renewal process did plaintiffs or their predecessors concede that Forest Service consent was required in order for BLM to renew the Leases. 74. Underscoring that the renewal continued all of the terms and conditions of the Leases, BLM, during the process leading up to renewal, withdrew an earlier decision that would have altered those terms and conditions, including by imposing a production requirement and reducing the minimum royalty payment. See Ex. 7 (BLM Letter) at 1 (July 9, 1986); Ex. 8 (BLM Vacatur Decision) (Nov. 7, 1988). 75. In withdrawing its earlier decision, BLM explained that the “lease forms submitted for signature [would have] alter[ed] the terms and conditions of the original leases.” Ex. 8 at 1. In place of those forms, BLM sent short standard lease forms, together with full copies of the Leases, explicitly stating that the renewal was “under the existing terms and conditions of the original leases.” Ex. 6 at 1. 76. The forms were executed, and the Leases thereby renewed, on July 1, 1989. Ex. 2. D. 2004 Renewal 77. In 1988, American Copper and Nickel Company purchased the Leases from INCO. The United States approved the sale effective January 1, 1991. 78. In 1999, American Copper timely applied for a second 10-year renewal of the Leases. - 21 - CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 22 of 34 79. Just as it had in 1989, BLM asked the Forest Service to review the Leases’ terms and conditions to ensure they were adequate to protect U.S. resources. Again, neither agency suggested that the Forest Service possessed any broader authority to withhold consent. 80. On July 18, 2003, the Forest Service informed BLM that it “has no objection to the renewal,” because the Leases’ “terms, conditions and stipulations have been reviewed, and it has been determined that they are sufficient to protect the resources of the United States.” Ex. 12 at 1 (Letter from Randy Moore, Regional Forester, to Director, BLM Eastern States Office (July 18, 2003)). In consenting, the Forest Service noted that any future operations under the Leases would require “the approval of an operating plan by the authorized officer” and “will be subject to an analysis under the National Environmental Policy Act.” Id. 81. As in 1989, neither plaintiffs nor their predecessors conceded during the 2004 renewal process that Forest Service consent was required in order for BLM to renew the Leases. 82. BLM renewed the Leases in January 2004, using the identical forms the parties had executed in 1989 (and again attaching the Leases in full). See generally Ex. 3. 83. Unlike in 1989—when BLM engaged in lengthy internal deliberations regarding the terms and conditions of lease renewal—there was no significant discussion in 2004 about renewal terms, either within the government or between the parties. This is consistent with the parties having a shared understanding that BLM did not have discretion to deny the renewal, and that the Forest Service did not have discretion to deny consent to the renewal. E. 2012 Renewal Application 84. In March 2004, Beaver Bay Joint Venture purchased the Leases from American Copper. The United States approved the sale effective April 1, 2005. - 22 - CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 23 of 34 85. In July 2010, Beaver Bay Joint Venture converted to a corporation, called Beaver Bay, Inc., which became the owner of the Leases. The United States approved the assignment effective February 1, 2013. 86. In October 2012, Beaver Bay and its joint venture partner, Franconia, applied for a third 10-year renewal of the Leases. See Ex. 9 (2012 Renewal Application). 87. In August 2013, Beaver Bay assigned the Leases to Franconia in its capacity as the operator of the joint venture between the two companies. The United States approved the assignment effective April 1, 2014. 88. The possibility of a future project to mine pursuant to the Leases— which would be operated by Twin Metals, Franconia’s parent company—attracted the attention of certain environmental organizations opposed to mining in northeastern Minnesota. Those organizations put intense pressure on officials at the Department of the Interior, BLM, and the Forest Service to deny the renewal application, arguing that BLM had the authority to do so. 89. Under this pressure from those environmental organizations, BLM asked then-Solicitor Hilary Tompkins for an opinion “whether it has the discretion to grant or deny Twin Metals Minnesota’s pending application for renewal.” Ex. 4 at 1.4 F. Solicitor’s Opinion 90. On March 8, 2016, Tompkins issued her Opinion concluding that “Twin Metals Minnesota does not have a non-discretionary right to renewal, but rather the BLM has discretion to grant or deny the pending renewal application.” Ex. 4 at 1. 4 The Solicitor’s Opinion refers to Twin Metals rather than Franconia, the actual lease owner. - 23 - CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 24 of 34 91. The Solicitor’s Opinion constitutes the final legal determination of the Department of the Interior and is binding on BLM (and all other departmental offices). Department of the Interior, Department Manual, Part 209, § 3.1 (1992). 92. The Opinion is fatally flawed on both the facts and the law, and it has caused plaintiffs, and will continue to cause them, immediate harm. It rejected Franconia’s renewable leasehold interest in the mineral estate and disregarded the valuable discovery made by Franconia’s predecessor in interest. It also vitiated plaintiffs’ investments in the mining project to date—approximately $400 million in acquisition, exploration, technical development, and other activities—and inhibited them from engaging in any long-term planning, investment, development, and operational decisions. G. The Forest Service’s Consent Decision 93. On March 8, 2016—the same day that Tompkins issued her Opinion— BLM sent Twin Metals a letter stating that the Opinion was “binding on … BLM,” and that BLM therefore “will consider [the application for renewal] using the same criteria it would apply in deciding whether to grant the initial leases.” BLM Letter 1. BLM further stated that it intended to ask the Forest Service “whether it consents to renewing the leases,” and that the agencies “will undertake NEPA analysis.” Id. 94. On June 3, 2016, BLM sent a letter to the Forest Service requesting that it “provide, in writing, a decision on whether it consents or does not consent to renewal of the leases.” Letter from Karen Mouritsen, BLM Eastern States Director, to Kathleen Atkinson, Regional Forester. 95. Ten days later, the Forest Service issued a press release announcing a “30-day period for public input” on the lease renewals, during which it planned to hold a “listening session.” Forest Service Press Release. The release stated that the Forest Service was “considering withholding consent for lease renewal” based on - 24 - CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 25 of 34 certain purported environmental “concerns,” id.—notwithstanding the fact that no site-specific mining project has been proposed. 96. In response, Twin Metals asked the Forest Service for the opportunity to address the public at the so-called listening session, explaining that its rights are directly affected by the government’s actions, and thus that it is differently situated than any other stakeholder or member of the public. Twin Metals Ltr. 1 (July 6, 2016). 97. The Forest Service held two “listening sessions”: one in Duluth, Minnesota, on July 13, 2016, and a second six days later in Ely, Minnesota. Before the first listening session, the Forest Service held a press conference at which it again expressed concern about the location of the Leases and the environmental risks of mining in general. Twin Metals was not given a meaningful opportunity to respond to the Forest Service’s concerns or to address the public at either session. Two days after the second listening session, the Forest Service denied Twin Metals’ request, stating without elaboration that while it “underst[oo]d” the request, it would “not be appropriate for [Twin Metals] to address the audiences.” Forest Service Ltr. (July 21, 2016). 98. On July 20, 2016, Twin Metals submitted a letter to the Forest Service detailing its objections to the public-input process and contesting the agency’s asserted plenary authority to withhold consent or to consider factors other than the terms and conditions of the Leases. See Ex. 13 (Twin Metals Comment Letter). 99. By this point, Twin Metals had already sent letters to Sally Jewell, then the Secretary of the Interior, and Tompkins explaining the flaws in the Solicitor’s Opinion and requesting that it be withdrawn. As of the filing of this amended complaint, the Opinion has not been withdrawn. - 25 - CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 26 of 34 100. The Forest Service did not provide Twin Metals with an opportunity to review or respond to the comments submitted during the public-input process, or to address with the Forest Service any concerns raised in those comments. 101. On December 14, 2016, the Forest Service declined to consent to renewal of the Leases. Letter from Thomas L. Tidwell, Chief, U.S. Forest Service, to Neil Kornze, Director, BLM. 102. In its decision withholding consent, the Forest Service did not discuss the terms and conditions of the Leases, nor did it identify any aspect of the Leases that it found concerning. The Forest Service also did not identify any problems (including environmental concerns) with plaintiffs’ past or current activity pursuant to the Leases, nor did it address any of the arguments in Twin Metals’ comment letter. Instead, the Forest Service claimed “absolute discretion” to withhold consent, and premised its denial on the Leases’ location near the Boundary Waters and the “inherent potential risk” of mining in general. See Tidwell Ltr. at 1, 8. The Forest Service did not acknowledge or explain its departure from its consent to lease renewal in 1989 and 2004, when of course the Leases’ location was identical. 103. The Forest Service did not engage in an environmental review under NEPA in making its decision. H. BLM’s Denial Of Lease Renewal 104. On December 15, 2016, BLM rejected plaintiffs’ application to renew the Leases. Letter from Karen Mouritsen, Eastern States Director, BLM, to Ian Duckworth, Chief Operating Officer, Twin Metals Minnesota. 105. The denial relied on the Solicitor’s Opinion’s conclusion that BLM has discretion to deny the renewal application. BLM in turn took the view that it “must have written consent from the surface management agency” to renew the Leases. Mouritsen Ltr. at 3. According to BLM, because the Forest Service refused to consent, BLM was required to reject the lease renewal application. Id. - 26 - CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 27 of 34 106. Under the heading “Final Agency Action,” BLM’s denial letter states that “this decision constitutes the final decision of the Department of the Interior and … is not subject to appeal under departmental regulations.” Mouritsen Ltr. at 4. COUNT I: QUIET TITLE ACT (AS TO DEFENDANT UNITED STATES) 107. The allegations in paragraphs 1 through 106 above are realleged as if fully set forth herein. 108. The Quiet Title Act provides that the United States is subject to suit to quiet title to real property in which the United States claims an interest. 28 U.S.C. § 2409a. 109. The United States claims fee simple ownership of the property that is the subject of leases MNES-01352 and MNES-01353. 110. By operation of federal law, Franconia has the successive right to a renewable lease in the mineral estate of the relevant lands as a result of its predecessor in interest’s discovery on those lands of a valuable mineral deposit. Specifically, Franconia is “entitled to a preference right lease for the mineral in any or all of the lands in [its predecessor in interest’s prospecting] permit[s]” and “a right of renewal [of the Leases] for successive periods, not exceeding 10 years each, under such reasonable terms and conditions as the Secretary of the Interior may prescribe.” 43 C.F.R. § 3221.4(a), (f) (1966). 111. Franconia also has a renewable leasehold interest in the relevant mineral estate as the assignee and holder of the Leases. That leasehold interest gives Franconia “the exclusive right to mine, remove, and dispose of all the copper and/or nickel minerals and associated minerals and, with the exception of oil, gas, oil shale, coal, phosphate, potassium, sodium, or sulphur, any other minerals in, upon, or under” the lands described in those Leases, “together with the right to - 27 - CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 28 of 34 construct and maintain thereon such structures and other facilities as may be necessary or convenient for the mining, preparation, and removal of said minerals.” Ex. 1 § 1(a). 112. Franconia and its predecessors in interest have held the Leases continually for 50 years and have timely filed all applications for renewal. The first two applications were granted on the same terms and conditions as in the original Leases. Accordingly, Franconia has a right to renew those Leases, as well as a continued exclusive right to mine, remove, and dispose of the specified minerals in the land described by the Leases. 113. The United States disputes Franconia’s renewable leasehold interest in the relevant mineral estate. BLM rejected plaintiffs’ renewal application, in reliance on the conclusion of the Solicitor’s Opinion that BLM had discretion to deny renewal. BLM’s lease denial, and the Solicitor’s interpretation of the applicable regulations and construction of the Leases on which BLM’s decision rested, have created an actual and concrete controversy between Franconia and the United States about their relative interests in the mineral estate. 114. Accordingly, Franconia is entitled under 28 U.S.C. § 2409a to an adjudication of that dispute and a declaration of its leasehold interest in the mineral estate covered by the Leases. COUNT II: ADMINISTRATIVE PROCEDURE ACT (AS TO DEFENDANTS UNITED STATES, DEPARTMENT OF THE INTERIOR, HAUGRUD, KEABLE, AND BUREAU OF LAND MANAGEMENT) (Violation of 5 U.S.C. § 706(2)(A) because federal law entitles plaintiffs to a non-discretionary right of renewal) 115. The allegations in paragraphs 1 through 114 above are realleged as if fully set forth herein. 116. The Administrative Procedure Act provides that a “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency - 28 - CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 29 of 34 action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. BLM’s denial of lease renewal expressly and correctly stated that it constitutes final agency action of the Department of the Interior. 117. The lease denial has had and will have a direct and immediate effect on plaintiffs’ businesses, halting authorized and ongoing geotechnical work and preventing plaintiffs from making further investments or engaging in future mineral development at the lease sites. It will also harm plaintiffs by denying them any return on their enormous investment, foreclosing the opportunity to develop the tens of billions of dollars worth of strategic minerals underlying the subject lands. And it will prejudice plaintiffs’ mineral rights on federal, state, and private lands contiguous to the Leases (which are illustrated on the following map). - 29 - CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 30 of 34 118. BLM’s lease denial—and the Solicitor’s Opinion that provided its legal justification—are contrary to law because they deny plaintiffs the renewable Leases to which they are entitled under federal law. Among other things, the Solicitor’s Opinion disregards the renewal right in section 1, alters the language of section 5, and misconstrues the contractual and regulatory term “preference right lease.” Accordingly, BLM’s lease denial and the Opinion should be set aside under 5 U.S.C. § 706(2)(A). COUNT III: ADMINISTRATIVE PROCEDURE ACT (AS TO DEFENDANTS UNITED STATES, DEPARTMENT OF THE INTERIOR, HAUGRUD, KEABLE, AND BUREAU OF LAND MANAGEMENT) (Violation of 5 U.S.C. § 706(2)(A) because the Leases entitle plaintiffs to a non-discretionary right of renewal) 119. The allegations in paragraphs 1 through 118 above are realleged as if fully set forth herein. 120. BLM’s denial of renewal of the Leases, and the Solicitor’s Opinion on which that denial rests, are arbitrary, capricious, or otherwise not in accordance with law because they give an erroneous construction to the negotiated terms of the Leases and the subsequent renewals by declaring that BLM has discretion to deny Franconia’s pending application for renewal, and then exercising that supposed discretion to cancel the Leases. 121. The Leases unambiguously vest plaintiffs with a non-discretionary right to renew—which reflects the right to which plaintiffs are entitled under federal law by virtue of their predecessor’s discovery of a valuable mineral deposit. 122. To the extent the Leases are ambiguous, BLM’s decision and the Solicitor’s Opinion are arbitrary, capricious, or otherwise not in accordance with law because BLM and the Solicitor failed to consider evidence that confirms that the parties intended the Leases to establish a non-discretionary right to renewal. - 30 - CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 31 of 34 123. BLM’s denial and the Solicitor’s Opinion are also arbitrary, capricious, or otherwise not in accordance with law because they constitute an unexplained change in the position of the Department of the Interior. Plaintiffs relied on defendants’ prior interpretation of the Leases—which affirmed plaintiffs’ nondiscretionary right to renew—and incurred significant costs based on that reliance. 124. Because the Solicitor’s Opinion interprets the Leases and renewals in a manner that is arbitrary, capricious, or otherwise contrary to law, and because BLM’s denial rests on the Opinion’s erroneous conclusions, both should be set aside under 5 U.S.C. § 706(2)(A). COUNT IV: ADMINISTRATIVE PROCEDURE ACT (AS TO DEFENDANTS UNITED STATES, DEPARTMENT OF AGRICULTURE, YOUNG, FOREST SERVICE, AND TIDWELL) (Violation of 5 U.S.C. § 706(2) because the Forest Service’s denial of consent was arbitrary, capricious, in excess of statutory authority, or otherwise contrary to law) 125. The allegations in paragraphs 1 through 124 above are realleged as if fully set forth herein. 126. The Forest Service’s denial of consent constitutes final agency action under 5 U.S.C. § 704 because it represents the final and binding position of the U.S. Department of Agriculture. The decision was signed by defendant Tidwell, Chief of the Forest Service, and there is thus no right to administrative appeal. See 36 C.F.R. § 214.7(a)(2). The denial of consent alters plaintiffs’ legal rights, because it led directly to BLM’s denial of plaintiffs’ lease renewal application. 127. The Forest Service’s denial is in excess of statutory authority because Congress has not vested the Forest Service with the “absolute discretion” it claimed to deprive plaintiffs of their long-established mineral rights. And for good reason: If the Forest Service had unbounded discretion to prevent lease renewal, it would undermine the entire regulatory process for acquiring mineral rights, which - 31 - CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 32 of 34 depends on rewarding prospectors who make a valuable mineral discovery with a mineral lease. 128. The Forest Service’s denial is arbitrary, capricious, or otherwise not in accordance with law because its decision was based on irrelevant and impermissible factors. The Forest Service does not have authority to consider, at the leaserenewal stage, potential environmental impacts from a mining project that has not even been proposed and that would be subject to a separate approval process that includes environmental review. The lack of an actual proposed mine plan also means the Forest Service has no adequate scientific and factual basis on which to draw conclusions about the potential environmental impacts of such a project. 129. The Forest Service’s denial is contrary to the legal framework governing hardrock mineral development in the Superior National Forest. Applicable statutes and regulations contemplate mining in the Forest, and the governing Forest Plan adopted by the Forest Service in 2004—following environmental analysis under NEPA—designates mineral development as a “desired condition” on the lease lands. If the Forest Service wants to prohibit mining outside the wilderness boundary and the Mining Protection Area that Congress has protected, it must, at a minimum, amend the Forest Plan. But the Forest Service has no authority to “maintain buffer strips of undeveloped wildland to provide an informal extension of wilderness.” Forest Manual, § 2320.3.5. By denying consent based on the Leases’ proximity to the Boundary Waters, the Forest Service has acted contrary to congressional intent and circumvented the required regulatory process to effect a fundamental policy shift in its management of the Superior National Forest. 130. The Forest Service’s denial is also arbitrary, capricious, or otherwise not in accordance with law because it constitutes an unexplained change in the agency’s position. On two prior occasions the Forest Service consented to lease - 32 - CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 33 of 34 renewal, in each case confining its review to the terms and conditions of the Leases and concluding that they were sufficient to protect the surface resources. Plaintiffs relied on the Forest Service’s prior actions—which reflected the limited nature of the agency’s consent authority—and incurred significant costs based on that reliance. 131. Because the Forest Service’s denial of consent to lease renewal is arbitrary, capricious, in excess of statutory authority, or otherwise contrary to law, it should be set aside under 5 U.S.C. § 706(2)(A). PRAYER FOR RELIEF Plaintiffs respectfully request that this Court enter judgment in their favor and award the following relief: A. A declaration that (1) Franconia has a leasehold interest in the mineral estate on the land described by the Leases, with a nondiscretionary right to renew such Leases, (2) the Forest Service acted improperly in denying consent to renewal of the Leases, and (3) BLM is required to grant Franconia’s renewal application and any subsequent applications for renewal of the Leases that Franconia or its assignees properly files, subject only to reasonable adjustments to the terms and conditions of those Leases, as permitted by section 5 of those Leases; B. An order (1) holding unlawful and setting aside BLM’s denial of the Leases and the Solicitor’s Opinion on which it was based, (2) vacating the Forest Service’s denial of consent, and (3) directing BLM to grant Franconia’s application for renewal of the Leases, with only reasonable adjustments to the terms and conditions of the Leases as permitted by section 5 of those Leases; C. Plaintiffs’ costs and expenses incurred in this litigation to the extent permitted by law; and - 33 - CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 34 of 34 D. Any other relief, legal or equitable, that this Court deems just and proper. Dated: February 21, 2017 /s/ Paul R.Q. Wolfson PAUL R.Q. WOLFSON (pro hac vice) DANIEL S. VOLCHOK (pro hac vice) WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Ave. N.W. Washington, DC 20006 Tel.: (202) 663-6000 Fax: (202) 663-6363 MICHAEL J. P. HAZEL (pro hac vice) WILMER CUTLER PICKERING HALE AND DORR LLP 1225 17th St., Suite 2600 Denver, CO 80202 Tel.: (720) 274-3135 Fax: (720) 274-3133 STEVEN J. WELLS (Atty. #163508) I. DANIEL COLTON (Atty. #223116) MARK R. KASTER (Atty. #159517) DORSEY & WHITNEY LLP 50 South Sixth St., Suite 1500 Minneapolis, MN 55402 Tel.: (612) 340-2600 Fax: (612) 340-2868 - 34 - WEEKLY REPORT TO THE SECRETARY DEPARTMENT OF THE INTERIOR February 23, 2017 Of?ce of the Solicitor Week Ahead Schedule of Meetings, Congressional Hearings, and Travel IRS-Mexico Negotiations on Colorado River Cooperative Process An infounal brie?ng of Senate staffers by State Department (with DOI attendance) 011 the status of the Minute 32X negotiations is cun'ently plaimed for the afternoon of Febmal 27. Since 2015 the United States and Mexico have been working to neootiate an agreement Navajo Generating Station (NGS) At the request of the Acting Deputy Secretaiy, Reclamation is setting up meeting at Main Interior on March 1 with key stakeholder groups. including the Navajo Nation, the Hopi Tribes Peabody Energy. and the Salt River Pro'ect, to discuss otential tions to extend eration of NGS be 011d December 22, 2019. Week Ahead Announcements and Actions SIGNIFICANT LITIGATION DEADLINES FOR NEXT THREE WEEKS SEPARATELY REPORTED NEW CASES: SIGNIFICANT DECISIONS: Nothing to report. OTHER LITIGATION NIATTERS: 30-60 Dav Look-Ahead Signi?cant Litigation Deadlines repo?ed separately in IOO-day report. Date: Febiualy 17. 2017 To: Jack Haugiud Acting Principal Deputy Solicitor From: Karen Hawbecker Associate Solicitor Division of Mineral Resources Re: DMR Friday Updates to Weekly Report Below is a list of new or updated items that did not appear in the weekly report that may require the attention of the front of?ce during the week of Febiuaiy 20-24 or thereafter: Signi?cant Decisions: Litigation: -3- Legislation: Correspondence/Agency Actions: Rulemakings: Meetings: cc: T0111 Bovard/Dennis Daugherty/Richard McNeer VVITHDRAWAL OPTIONS A. INFORMATION/BRIEFING MEMORANDUM DATE: FROM: SUBJECT: February 8, 2017 Karen Mouritsen, State Director, BLM Eastern States Application for Withdrawal, Superior National Forest, Minnesota The purpose of this memorandum is to provide background information about an application dated and submitted on December 14, 2016, by the U.S. Forest Service, proposing a withdrawal from mineral leasing laws on approximately 234,328 acres of Federal mineral estate within the Superior National Forest, northern Minnesota. Authority to approve or deny applications for withdrawals is delegated to the Secretary of the Interior (unless superseded by Congress), including lands managed by the Forest Service (Sec. 204 FLPMA). QUICK FACTS • Number of acres proposed for withdrawal: 234,328 • Initial segregation: Two years. • Subsequent withdrawal: 20 years, if approved. • Number of different mineral interests/permits within the proposed withdrawal area: 46, not including the two leases that have been canceled and are under litigation. • Number of potential jobs generated: Unknown. This would be addressed in a future analysis. • Number of other projects that are impacted: Unknown. There are 46 pending actions or permit applications. It is not known how many could result in mining projects. • Estimated value of the minerals in the withdrawal area: Data provided by one company suggested a mineral deposit with a potential value of $48.9 billion in minerals on land it has been studying. The withdrawal area is larger. • Types of mineral deposits: Copper, nickel, palladium, platinum, gold, and silver. Deposits contain “strategic minerals” because of technological applications, but not rare earth minerals. • Deadline for the decision: The pending decision is on whether to allow the Office of the Federal Register to publish a correction notice regarding the duration of the segregation. While the error has caused confusion for the public, there is no deadline. BACKGROUND The Superior National Forest lands subject to the segregation and withdrawal application include part of the Duluth Complex, a geologic complex that contains ore rich in copper, nickel, palladium, platinum, gold, and silver. It also overlaps the Rainy River Watershed, which includes the nearby Boundary Waters Canoe Area Wilderness (BWCAW), the only large lakeland wilderness in the National Wilderness Preservation System. Part of the withdrawal area is in St. Louis County, Minnesota, where mining employment has declined from more than 12,000 jobs in 1980 to approximately 3,000 jobs in 2009, primarily due to the reduction in workforce at taconite (a low-grade iron ore) mines. Employment levels are highly dependent on the fluctuating market price of the iron ore being extracted. The median income of the local communities is significantly lower than that of the state as a whole. During the same period, service-sector employment has risen. The unique water-based recreation opportunities that the BWCAW provides attract many visitors and provide an economic driver to local communities supporting hospitality and other services dependent on fishing, boating, sightseeing, and wilderness experiences, according to information supplied by the U.S. Forest Service. In 2015, 150,000 people visited the BWCAW. Tourism has generated an average of $44.5 million annually in local economic activity, according to the Forest Service. Timeline • December 14, 2016: The Forest Service submitted to the BLM an application for withdrawal from mineral leasing for approximately 234,328 acres of Federal mineral estate within the Superior National Forest for a period of 20 years. • January 13, 2017: The Forest Service published a Federal Register Notice of Intent to prepare an environmental impact statement related to the proposed withdrawal. • January 19, 2017: The BLM published in the Federal Register a Notice of Application for Withdrawal and Notification of Public Meeting, which included allowable land uses during the segregation period. As published, the BLM’s Federal Register notice contains an error in the end date for the two-year segregation period. It states that “the end date for the segregation is specified as January 21, 2017 [a two-day segregation period]. The BLM’s intention and consistent with the regulations at 43 CFR §2310.2(a), was to institute a two-year segregation (ending January 21, 2019), as noted in the BLM’s original submission to the Office of the Federal Register: Resources Industry interest in developing the minerals in the proposed withdrawal area is high. Twin Metals Minnesota, LLC (TMM) holds the majority of Federal hardrock prospecting permits within the Superior National Forest. The BLM completed a mineral report (October 2014) based on a review of data from 550 core holes and other geophysical information that TMM gathered, which verifies the presence of a valuable deposit. The report indicates an estimated ore value of $48.9 billion and a 44% internal rate of return, based on estimated capital expenditures, production, production cost, taxes and royalties. TMM did not submit a proposed mine plan of operation before the terms of the two Federal leases at issue ended, as noted below. Even if the lease terms had not ended, an environmental impact statement would be required before the BLM could render a decision on a proposed mine plan. Through conversations with BLM Eastern States leadership, TMM had indicated that it would require a few more years of work before a mining plan could have been submitted. Attachment 2 discusses 48 current mineral actions, including applications, in the area. The withdrawal application follows a Forest Service letter dated December 14, 2016, withholding consent to renew two Federal mineral leases (MNES 01352 and MNES 01353) due to potential impacts to resources within the Rainy River Watershed. The proposed withdrawal area encompasses the area of the lease parcels. As a result of the Forest Service’s denial of consent, the BLM denied the lease renewal application on December 15, 2016. The proposed mineral withdrawal would be subject to valid existing rights. The application specifically requests withdrawal from the following mineral leasing laws: • Mineral Leasing Act of 1920, as amended and supplemented (30 U.S.C. l8l et seq.); 2 0 Mineral Leasing Act for Acquired Lands of 1947, as amended (30 U.S.C. 351-359); 0 Section 402 of the President's Reorganization Plan No. 3 of 1946; and 60 Stat. 1097, 1099-1100, and the statutes it lists. and 16 U.S.C. 508b. Unlike public lands in the West, the General Mining Act of 1872, as amended, does not apply to public and acquired lands within the Superior National Forest. The Forest Service?s application identi?ed the pmpose of the proposed withdrawal as follows: .. to protect National Forest System lands (and waters) located in the Rainy River Watershed, the BWC AW, and the MPA [Mining Protection Area] ??om the adverse environmental impacts. including potential irreparable harm. arising from exploration and development of Federally-owned minerals conducted pursuant to the mineral leasing laws. In addition, this withdrawal will protect Voyageurs National Parks and anada?s Quetico Provincial Park, both of which are intemationally known as places to enjoy backcormtiy canoeing and remote water-based wildemess.? The process for reviewing and rendering a decision on withdrawal applications is outlined in 43 FR ?2310. The following is a list of major milestones for processing withdrawal applications: 0 Publish notice in the Federal Register of the withdrawal application, including: A two-year segregation notice while the application is being considered (43 FR ?2310.2). Solicit written public cormnents on the proposed withdrawal for a period of at least 90 days (43 CFR 0 Provide notice and hold one or more public meetings for proposed withdrawals involving 5.000 or more acres (43 CFR 0 Conduct studies. analyses, and prepare repons (43 CFR As the applicant. the Forest Sen/ice would be the lead for the NEPA document, with the BLM sewing as a cooperator. Prepare the case?le and submit to the BLM Director for review and decision. 0 Finalize the case?le with the BLM Director?s decision for submission to the Secretaiy of the Interior. 0 The Secretary of the Interior issues a Public Land Order or notice of denial, to be published in the Federal Register (43 FR For withdrawals involving 5,000 or more acres, the Secretary shall advise Congress of the withdrawal action. DISCUSSION ATTACHMENTS 1. Map: Superior NF Proposed Withdrawal 2. Current and Pending Mineral Actions Superior National Forest (SNF) Vicin' Ma Legend Shee? 0? Appendix B: Superior National Forest References CANADA Data acquiredMavm ofsoumeso'dmemg - SNF Fee Simple Public Domain Lands accuracy, precision, and reliability. Features SNF Fee Simple Acquired Lands ??twr?fgu?m?wm? Application Boundary December 5, 2016 Superior National Forest 4th Principal Meridian, Cook, Lake, St. Louis, BWCAW Lands WithdraWn from mineral entry Itasca and Koochiching Counties, State of Minnesota Disclaimer Mining Protection Area - Lands withdrawn from mineral entry The USDA Forest Service makes no wananty, ontano' canada expressed or implied regarding the data dispiaved Minnesota Boundary on this map, and reserves the right to correct, . update, or replace this infomration without Natlonal ForeSt Boundary noti?cation Voyageur National Park Boundary US. Forest Service - Region 9 Minnesota Superior National Forest Wisconsin 'k '"neapd's St. Paul 0 105 210 420 a: Miles Pending Mineral Actions in the Superior National Forest February 2, 2017 Twin Metals Minnesota (TMM) is part of Antofagasta PLC, a Chilean conglomerate that includes mining holdings. Beaver Bay, Inc.; Franconia Minerals Corporation, and Lehmann Exploration are additional companies in the project area that are now wholly owned subsidiaries of TMM, which manages and controls all assets. TMM was formed to explore, and if feasible, to plan and execute an underground mine for the extraction of the mineral resources. For investment pmposes, TMIM developed a conceptual mine plan no engineering information) to extract copper, nickel, and platinum-group minerals. A competing, independent company, Encampment Minerals Inc., has ongoing exploration activities in the area. An additional company, Park Creek Management, has proposed activities planned for Northern Minnesota. Shown below is a summary of the different types of active and proposed federal permits, leases, and extension requests from TMM its holdings, and other companies that are currently in force or pending with the BLM in the proposed withdrawal area. PENDING ACTIONS COUNT COMMENT Renewal request ?led timely; denied 1966 Lease Renewal 2 Forest Servrce consent; BLM canceled the leases on approxrmately 4,865 acres on 12/ 1 5/2016; litigation pending Preference Right Lease Application 4 Three from and 1 from Encampment . . . . Pending with BLM for applications ?led New Pmspeamg Perm? Apphcatms 24 between 4/25/2008 and 9/19/2016 Pemts With Pendmg 18 Extension Requests ?led timely Extensron Requests TOTAL PENDING APPLICATIONS 48 Attorney-Client Privileged/Attorney Work Product INFORMATION MEMORANDUM FOR THE ACTING SOLICITOR DATE: February 2017 FROM: SUBJECT: Superior National Forest Segregation and Withdrawal Process and Options Superior National Forest (SNF) Vicin' Ma Legend Shee? 0? Appendix B: Superior National Forest References CANADA Data acquiredMavm ofsoumeso'dmemg - SNF Fee Simple Public Domain Lands accuracy, precision, and reliability. Features SNF Fee Simple Acquired Lands ??twr?fgu?m?wm? Application Boundary December 5, 2016 Superior National Forest 4th Principal Meridian, Cook, Lake, St. Louis, BWCAW Lands WithdraWn from mineral entry Itasca and Koochiching Counties, State of Minnesota Disclaimer Mining Protection Area - Lands withdrawn from mineral entry The USDA Forest Service makes no wananty, ontano' canada expressed or implied regarding the data dispiaved Minnesota Boundary on this map, and reserves the right to correct, . update, or replace this infomration without Natlonal ForeSt Boundary noti?cation Voyageur National Park Boundary US. Forest Service - Region 9 Minnesota Superior National Forest Wisconsin 'k '"neapd's St. Paul 0 105 210 420 a: Miles Attorney-Client Privileged/Attorney Work Product INFORMATION MEMORANDUM FOR THE ACTING SOLICITOR DATE: February 2017 FROM: SUBJECT: Superior National Forest Segregation and Withdrawal Process and Options Superior National Forest (SNF) Vicin' Ma Legend Shee? 0? Appendix B: Superior National Forest References CANADA Data acquiredMavm ofsoumeso'dmemg - SNF Fee Simple Public Domain Lands accuracy, precision, and reliability. Features SNF Fee Simple Acquired Lands ??twr?fgu?m?wm? Application Boundary December 5, 2016 Superior National Forest 4th Principal Meridian, Cook, Lake, St. Louis, BWCAW Lands WithdraWn from mineral entry Itasca and Koochiching Counties, State of Minnesota Disclaimer Mining Protection Area - Lands withdrawn from mineral entry The USDA Forest Service makes no wananty, ontano' canada expressed or implied regarding the data dispiaved Minnesota Boundary on this map, and reserves the right to correct, . update, or replace this infomration without Natlonal ForeSt Boundary noti?cation Voyageur National Park Boundary US. Forest Service - Region 9 Minnesota Superior National Forest Wisconsin 'k '"neapd's St. Paul 0 105 210 420 a: Miles VVITHDRAWAL OPTIONS and allow the SF to )1?0ceed with an amendment to the $11 )el?ior National Forest February 15, 2017 Acting Secretary of the Interior Jack Haugrud U.S. Department of the Interior 1849 C Street, NW Washington, DC 20240 Dear Acting Secretary Haugrud, On Jan. 11, 2017, members of the Minnesota Legislature sent a misleading letter to the U.S. Secretaries of Agriculture and Interior inaccurately characterizing key issues relating to proposed sulfide-ore copper mining near the Boundary Waters Canoe Area Wilderness (Boundary Waters or Wilderness). The letter reflects fundamental misunderstanding of the role of federal agencies in managing taxpayer-owned public lands, ignores legal obligations to protect a federallydesignated Wilderness area, and disregards the significant economy currently sustained by the Boundary Waters and the rest of the Superior National Forest. Specifically, the letter creates a false impression of the recent decision by federal land managers to study carefully whether sulfide-ore mining should occur in proximity to the Boundary Waters. Its misguided authors severely distort several factors involved in the decision – including complex economic factors, existing independent scientific evidence, current public opinion, and the well-reasoned and long-established process for environmental review that led nonpartisan federal employees to initiate the study. When so many people rely on a healthy Boundary Waters for jobs, recreation, and more, Minnesotans deserve accurate and complete information about a complex, often unfamiliar process involving public lands owned by all Americans. Instead, the callous letter sent from some Minnesota Legislators offers only divisive, false, and misguided rhetoric. In this letter, Sportsmen for the Boundary Waters will provide factual context and refute the letter’s many inaccuracies. 1 Twin Metals’ Leases Claim: Two federal leases owned by Twin Metals should automatically be renewed • Facts: The two federal leases, issued in 1966, required that commercial production begin by 1986. Fifty years later, there is still no commercial production. In the meantime, scientific knowledge of environmental impacts of sulfide-ore copper mining has increased materially. Based on the science, such leases would not be issued today near the Boundary Waters under modern laws (and thus the leases were not renewed – based on the clear legal authority of federal land management agencies). Claim: “Politically-driven” decision reflects an anti-mining agenda • Facts: The decision announced in December to deny Twin Metals’ leases and initiate a thorough study about future mining near the Boundary Waters has nothing to do with the merits of mining. Instead, it has everything to do with the risks posed by mining to a precious (and federally-protected) natural resource that holds enormous ecological and economic value. • Even the strongest advocates of resource extraction acknowledge that there are some places where it simply does not make sense (the U.S. Environmental Protection Agency has identified hardrock mining – which includes sulfide-ore mining – as the most toxic industry in America). Sulfide-ore copper mining is best developed in dry regions, where the risk of toxic runoff, and the damage done from major disasters, which are common in the mining industry, are minimized. Locating such a mine just upstream of the Boundary Waters – America’s most popular Wilderness, featuring some of the purest water in the world – elevates the risk to unacceptable levels. • Minnesotans recognize that benefits that derive from mining come with associated costs, both environmental and economic. The environmental and economic costs of sulfide-ore mining next to the Boundary Waters are too great. The non-partisan career employees of the U.S. Forest Service (Forest Service) and U.S. Bureau of Land Management (BLM) made their determination based on this entire context, which the letter from Minnesota Legislators ignores completely. Claim: The decisions are “unprecedented,” “irrational” and “based on unfounded fears of hypothetical and generalized environmental impacts of mining in the region” • Facts: Many agencies and academic institutions have produced extensive scientific studies in the proposed Twin Metals copper mining district documenting the vulnerability of the Boundary Waters to sulfide-ore copper mining. The Forest Service issued a strong, wellreasoned record of decision to support its conclusion that the Boundary Waters was at risk and needed protection. The Forest Service also released a detailed and comprehensive FAQ (“frequently asked questions” with answers) for its decision, and the agency also collected significant input from the public as it deliberated. 2 • The decision to initiate further study of the appropriateness of sulfide-ore mining near the Boundary Waters was made by career employees of the Forest Service and BLM as part of both agencies’ routine responsibilities for responsible stewardship of taxpayer-owned public lands. The environmental review and analysis is an established, routine process under the Federal Land Policy Management Act (FLPMA) and the National Environmental Policy Act (NEPA). It is mandated by federal law governing federal minerals. • This process has been in place for 40 years, used by Republican and Democratic Administrations to determine which sensitive lands should be off-limits to mining. It provides an open, transparent, comprehensive, science-based procedure that will give all citizens the opportunity to provide information in the vitally important public discussion about how sulfide-ore copper mining would impact the Boundary Waters and, farther downstream, Voyageurs National Park. Local Investment Claim: Twin Metals’ $400 million investment to date would be wasted if the project does not move forward • Facts: Investments in this project dried up years ago. In January 2015, after financial analysis showed that the Twin Metals project was not commercially viable, the Chilean mining giant Antofagasta bought Duluth Metals, owner of Twin Metals, for pennies on the dollar. Duluth Metals shareholders lost millions of dollars in the Antofagasta takeover – including a loss of more than $500,000 by the State of Minnesota (DEED and IRRRB). If ever developed, this project would likely involve a highly automated operation – meaning few employees – that cuts corners on environmental protection. • Meanwhile, 17,000 people in Northeast Minnesota currently hold jobs in outdoor recreation, tourism, and hospitality supported in large part by the Boundary Waters – jobs that would be put at serious risk by sulfide-ore mining in such close proximity to this spectacular Wilderness. Local Economy Claim: The decision will cause “devastating and irreversible damage to the citizens, communities and economy of the region” • Facts: Fifty years after federal leases were issued, the Twin Metals project remains uneconomical and highly speculative. The decision to deny new federal leases is not an attack on mining, nor on Northeastern Minnesota jobs; rather, it’s a recognition of the special benefits our communities and our local economy gain from a healthy Boundary Waters. • Although we need more sustainable jobs in every corner of our state, Northeastern Minnesota is not a particularly economically distressed region (unemployment in St. Louis County and Lake County both fall well under the national average, in part because of jobs supported by the Boundary Waters that cannot be replaced if the area becomes polluted). 3 • The decision to study whether future sulfide-ore mining should take place within the Boundary Waters watershed will not impact any existing mine, nor any currently proposed mine other than Twin Metals. It will not impact the PolyMet project nor will it have any impact on the taconite industry. Claim: The denial of Twin Metals’ leases will have “sweeping negative impacts” on the economy of Northeastern Minnesota and hurt employment prospects • Facts: The letter’s authors seem to be living decades in the past. Communities like Ely and Tower-Soudan, where mining has not taken place for 50 years or more, have transitioned to a new economic model based on outstanding recreational resources like the Boundary Waters that attract hundreds of thousands of visitors every year, foster a high quality of life for residents, and generate sustainable jobs. • In fact, the Boundary Waters is America’s most popular wilderness area and Voyageurs National Park is Minnesota’s only National Park. Together they draw 500,000 people from around the world every year – driving $850 million in annual consumer spending and helping support 17,000 jobs in Northeastern Minnesota. (These jobs are not susceptible to the boomand-bust volatility of the mining industry, nor the whims of a multinational conglomerate with few ties to Minnesota.) • The well-reasoned decisions by the Forest Service and the BLM will protect jobs created by the growing, sustainable economy of Minnesota’s Arrowhead region. A massive industrial mine on the Wilderness edge would put this entire economy at serious risk. Claim: “Independent economic analysis from the University of Minnesota-Duluth estimates more than 12,000 construction jobs and 5,000 long-term mining jobs would be created if the projects currently under various stages of development in this region came to fruition” • Facts: Economists who reviewed this UMD study found the study to be of “low quality” and warned that the study cannot be relied on for any proposition. Moreover, the UMD study attributed ninety percent of the projected job growth in mining to taconite mining; only ten percent was attributed to copper mining. Recent downturns in the taconite industry, now recovered to pre-downturn levels, shows this projection of taconite job growth to be utterly inaccurate and false. • In addition, the UMD study reviewed only limited short-term economic benefits and did not examine the overall economic assessment of mining impacts. Apart from a brief note in Appendix B that “a detailed cost-benefit analysis is beyond the scope of this report,” the UMD study does nothing to place the modeled (short-term) economic impacts in the context of significant, long- and short-term negative environmental, economic, and fiscal impacts of sulfide-ore copper mining. 4 • Moreover, with 17,000 jobs already supported in large part by the Boundary Waters, putting them at great risk by betting on the uncertain future of sulfide-ore mining simply doesn’t compute. Claim: Trading priceless American lands and resources to a giant South American mining conglomerate will foster a stronger economy for Minnesota communities • Facts: The Legislators who signed this letter seem more interested in supporting a foreign corporation with uncertain hopes to build a mine than fostering the already thriving local outdoor economy supported by a healthy Boundary Waters. • Twin Metals Minnesota’s parent company, Antofagasta, is a massive Chilean mining conglomerate with a history of environmental problems at its sulfide-ore mines in other parts of the world. The company has few ties to Minnesota and little stake in our communities. Revenue from mining would flow out of Minnesota – and any future jobs created would be subject to the volatile ups and downs of the mining industry (as well as the whims of a foreign corporation) and would disappear entirely after the ore is depleted. • Meanwhile, copper is abundant. A 2014 U.S. Geological Survey global assessment of copper deposits identified copper resources of many billions of tons. Copper is a commodity destined for world markets, especially China. While we all use technologies that rely on metals like copper and nickel, the edge of our iconic Boundary Waters is simply not the place to mine for these resources. Education Funding Claim: “[S]trategic minerals located within the Duluth Complex stand to potentially generate nearly $3 billion in royalty revenues for the state’s Permanent School Trust Fund – resources that would support the education of nearly 900,000 K-12 students statewide” • Facts: The environmental analysis relating to an increase the buffer zone around the Boundary Waters only affects National Forest lands next to the Boundary Waters. It does not affect state lands and the state’s Permanent School Trust Fund. In any event, revenue from state school trust lands generates approximately $29 per student per year out of $11,000 per student per year. Public Opinion Claim: “Two-thirds of citizens in the region oppose the withdrawal of federal minerals from future development, and more than 80 percent support environmentally-responsible mining in the region” • Facts: The polling results referenced in the letter included just five out of 87 counties in Minnesota and is a classic push poll (funded by the mining industry) seeking a predetermined result. The leading question is “do you support environmentally responsible mining” and fails to explain that Twin Metals proposes to mine next to the Boundary Waters. 5 • In contrast, multi-year polling shows a consistent level of support for protecting the Boundary Waters. In 2016, polling showed 78% of Minnesotans support the two-year mining pause and thorough study announced in December – including majorities of Republicans, Independents and Democrats. Overall, 67% of Minnesotans oppose sulfide mining near the Boundary Waters, including 61% in the 8th Congressional District; 65% of Minnesotans support permanent protection of Boundary Waters watershed. Claim: Previous similar mining withdrawal proposals have been strongly opposed by U.S. Senators Amy Klobuchar and Al Franken • Facts: The letter appears to reference positions taken by the Senators on a U.S. House bill to permanently withdraw National Forest lands near the Boundary Waters. This bears no relevance to the current two-year environmental analysis commenced by the U.S. Departments of Agriculture and Interior; we recommend interested parties contact the Senators’ offices directly for clarification. Additional Background – Federal Decision-Making Process The last time Twin Metals was granted two federal mineral leases was in 2004. Since 2004, the body of knowledge relating to sulfide-ore copper mining in the watershed of the Boundary Waters has expanded materially. Many agencies, academic institutions, and local groups are engaged in extensive scientific studies in the proposed Twin Metals copper mining district that have documented the vulnerability of the Boundary Waters to sulfide-ore copper mining. In addition, the PolyMet EIS showed that a sulfide-ore copper mine would result in long-term water pollution (at least 500 years) that would have to be captured and treated for centuries. This new scientific information supported a careful re-evaluation of sulfide-ore mining next to the Boundary Waters. The Forest Service examined applications for mineral leases in the Boundary Waters watershed in consideration of this solid body of scientific evidence, the value of the Boundary Waters, and the laws protecting the Boundary Waters. It concluded that sulfide-ore copper mining was a grave threat to the Boundary Waters and water pollution in the Wilderness would be impossible to mitigate. The well-reasoned decision by the Forest Service is articulated in the December 14, 2016 letter by Forest Service Chief Tom Tidwell to the Director of the BLM, and the December 15, 2016 letter by the BLM to Twin Metals. The two federal land management agencies have now commenced a rigorous environmental review of the threat of sulfide-ore copper mining to the Boundary Waters and the consideration of withdrawal from sulfide-ore mining of National Forest lands around the Wilderness. The Boundary Waters is a national treasure, of immeasurable value to people in Minnesota and across the United States. Decisions that affect the Wilderness must be taken with the utmost care. 6 The process that the Forest Service and the BLM have commenced presents an opportunity to do just that. Sincerely, Becky Rom National Chair, Sportsmen for the Boundary Waters Cc: Karen Mouritsen, State Director, Eastern States Office, BLM Tom Tidwell, Chief, U.S. Forest Service Kathleen Atkinson, Regional Forester, Region 9 Connie Cummins, Superior National Forest Supervisor 7 Wednesday, February 15, 2017 I. OSMRE a. SPR debris b. Marfork c. Usibelli d. Request for Marfork/Usibelli transition briefing e. Request for AML/coal mining retirement funds transition briefing II. BLM a. Red Devil Mine ASLM briefing Friday 3 pm b. BLM V&F rule AR meeting c. WEA Quarterly Lease Sale case d. Wyoming HF case—request for briefing before oral argument e. ASLM air quality meeting Wednesday 4 pm f. Los Padres Forest Watch settlement recommendation/Bakersfield RMP (transition briefing to be scheduled early next week) g. Juliana v. U.S. update (request for briefing paper from Downey/James) h. Twin Metals (request for transition briefing on big picture overview) i. Alton Coal j. Coal Moratorium/PEIS Bullet Outline (request for transition briefing) 1 III. BOEM/BSEE a. BOEM 1. Upcoming ASLM briefings Taylor Feb. 16 11 a.m. Gulf seismic—Feb. 21 11 a.m. Contractor INCs—Feb. 22 1 p.m. Five year program—Feb. 22 4 p.m. 2. Congressional Review Act and NTLs 3. Atlantic and Gulf seismic 4. Gulf NEPA for plans 5. Cape Wind SEIS 6. New York litigation 7. Enforcement memo 8. Self-Insurance redeterminations 9. Five-year program 10. RUE bonds 11. Jurisdiction over transmission line b. BSEE 1. Taylor briefing 2. Pacific well stim litigation 3. ROW operators 4. Bennu suspension 5. Authority to decommission 2 Date: Febiuaiy 10. 2017 To: Jack Haugiud Acting Principal Deputy Solicitor From: Karen Hawbecker Associate Solicitor Division of Mineral Resources Re: DMR Friday Updates to Weekly Report Below is a list of new or updated items that did not appear in the weekly report that may require the attention of the front of?ce dining the week of Febiuaiy 13-Febiua1y 17 or thereafter: Signi?cant Decisions: 0 Nothing not previously reported. Litigation: 0 Francom'a .Minerals v. I 'nited States (D. Minn.) (Challenge to Twin Metals M-Opinion. Non-consent Determination. and Lease Renewal Denials). Twin Metals ?led an amended complaint with the court 011 January 3. The current deadline to res 011d is March 6. 2017. SOL has asked ENRD to (Briana Collier. 202-208?4853. Josh Hanson. 202?208-3463) Legislation: Correspondence/Agency Actions: Rulemakings: Meetings: cc: T0111 Boval?d/Dennis Daugherty/Richard McNeer Attomey-Client Privilege/Attorney Work Product BRIEFING MEMORANDUM FOR THE SOL TRANSITION TEAM DATE: Februaly 2017 FROM: Karen Hawbecker Associate Soliciton Mineral Resources SUBJECT: ranconia AIinera/s v. United States, No. 16-3042 (D. Minn.) Involving the Denied Renewal of Federal Hardrock Mineral Leases MNES 1352 and 1353 Plaintiffs ?led suit 011 Se tember 12, 2016, challenging the M-0 inion as dis uting their mineral INFORMATION/BRIEFING MEMORANDUM FOR THE ASSISTANT SECRETARY – LAND AND MINERALS MANAGEMENT DATE: FROM: SUBJECT: February 2, 2017 Kristin Bail, Acting Director – Bureau of Land Management Application for Withdrawal, Superior National Forest, Minnesota The purpose of this memorandum is to provide background information about an application dated and submitted on December 14, 2016, by the U.S. Forest Service, proposing a withdrawal from mineral leasing laws on approximately 234,328 acres of Federal mineral estate within the Superior National Forest, northern Minnesota. Authority to approve or deny applications for withdrawals is delegated to the Secretary of the Interior (unless superseded by Congress), including lands managed by the Forest Service (Sec. 204 FLPMA). QUICK FACTS • Number of acres proposed for withdrawal: 234,328 • Initial segregation: Two years. • Subsequent withdrawal: 20 years, if approved. • Number of different mineral interests/permits within the proposed withdrawal area: 46, not including the two leases that have been canceled and are under litigation. • Number of potential jobs generated: Unknown. This would be addressed in a future analysis. • Number of other projects that are impacted: Unknown. There are 46 pending actions or permit applications. It is not known how many could result in mining projects. • Estimated value of the minerals in the withdrawal area: Data provided by one company suggested a mineral deposit with a potential value of $48.9 billion in minerals on land it has been studying. The withdrawal area is larger. • Types of mineral deposits: Copper, nickel, palladium, platinum, gold, and silver. Deposits contain “critical minerals” because of technological applications, but not rare earth minerals. • Deadline for the decision: The pending decision is on whether to allow the Office of the Federal Register to publish a correction notice regarding the duration of the segregation. While the error has caused confusion for the public, there is no deadline. BACKGROUND The Superior National Forest lands subject to the segregation and withdrawal application include part of the Duluth Complex, a geologic complex that contains ore rich in copper, nickel, palladium, platinum, gold, and silver. It also overlaps the Rainy River Watershed, which includes the nearby Boundary Waters Canoe Area Wilderness (BWCAW), the only large lakeland wilderness in the National Wilderness Preservation System. Part of the withdrawal area is in St. Louis County, Minnesota, where mining employment has declined from more than 12,000 jobs in 1980 to approximately 3,000 jobs in 2009, primarily due to the reduction in workforce at taconite (a low-grade iron ore) mines. Employment levels are highly dependent on the fluctuating market price of the iron ore being extracted. The median income of the local communities is significantly lower than that of the state as a whole. During the same period, service-sector employment has risen. The unique water-based recreation opportunities that the BWCAW provides attract many visitors and provide an economic driver to local communities supporting hospitality and other services dependent on fishing, boating, sightseeing, and wilderness experiences, according to information supplied by the U.S. Forest Service. In 2015, 150,000 people visited the BWCAW. Tourism has generated an average of $44.5 million annually in local economic activity, according to the Forest Service. Timeline • December 14, 2016: The Forest Service submitted to the BLM an application for withdrawal from mineral leasing for approximately 234,328 acres of Federal mineral estate within the Superior National Forest for a period of 20 years. • January 13, 2017: The Forest Service published a Federal Register Notice of Intent to prepare an environmental impact statement related to the proposed withdrawal. • January 19, 2017: The BLM published in the Federal Register a Notice of Application for Withdrawal and Notification of Public Meeting, which included allowable land uses during the segregation period. As published, the BLM’s Federal Register notice contains an error in the end date for the two-year segregation period. It states that “the end date for the segregation is specified as January 21, 2017 [a two-day segregation period]. The BLM’s intention and consistent with the regulations at 43 CFR §2310.2(a), was to institute a two-year segregation (ending January 21, 2019), as noted in the BLM’s original submission to the Office of the Federal Register: Resources Industry interest in developing the minerals in the proposed withdrawal area is high. Twin Metals Minnesota, LLC (TMM) holds the majority of Federal hardrock prospecting permits within the Superior National Forest. The BLM completed a mineral report (October 2014) based on a review of data from 550 core holes and other geophysical information that TMM gathered, which verifies the presence of a valuable deposit. The report indicates an estimated ore value of $48.9 billion and a 44% internal rate of return, based on estimated capital expenditures, production, production cost, taxes and royalties. TMM did not submit a proposed mine plan of operation before the terms of the two Federal leases at issue ended, as noted below. Even if the lease terms had not ended, an environmental impact statement would be required before the BLM could render a decision on a proposed mine plan. Through conversations with BLM Eastern States leadership, TMM had indicated that it would require a few more years of work before a mining plan could have been submitted. Attachment 2 discusses 48 current mineral actions, including applications, in the area. The withdrawal application follows a Forest Service letter dated December 14, 2016, withholding consent to renew two Federal mineral leases (MNES 01352 and MNES 01353) due to potential impacts to resources within the Rainy River Watershed. The proposed withdrawal area encompasses the area of the lease parcels. As a result of the Forest Service’s denial of consent, the BLM denied the lease renewal application on December 15, 2016. The proposed mineral withdrawal would be subject to valid existing rights. The application specifically requests withdrawal from the following mineral leasing laws: 2 Mineral Leasing Act of 1920. as amended and supplemented (30 U.S.C . 181 et seq.): Mineral Leasing Act for Acquired Lands of 1947. as amended (30 U.S.C. 351-359); Section 402 of the President's Reorganization Plan No. 3 of 1946; and 60 Stat. 1097, 1099-1100. and the statutes it lists. and 16 U.S.C. 508b. Unlike public lands in the West. the General Mining Act of 1872. as amended. does not apply to public and acquired lands within the Superior National Forest. The Forest Service?s application identi?ed the purpose of the proposed withdrawal as follows: .. to protect National Forest System lands (and waters) located in the Rainy River Watershed. the BWCAW. and the MPA [Mining Protection Area] ??om the adverse environmental impacts. including potential irreparable harm. arising from exploration and development of Federally-owned minerals conducted pursuant to the mineral leasing laws. In addition. this withdrawal will protect Voyagem?s National Parks and Canada's Quetico Provincial Park. both of which are internationally known as places to enjoy canoeing and remote water-based wilderness.? The process for reviewing and rendering a decision 011 withdrawal applications is outlined in 43 FR ?2310. The following is a list of major milestones for processing withdrawal applications: 0 Publish notice in the Federal Register of the withdrawal application, including: A two-year segregation notice while the application is being considered (43 FR ?2310.2). Solicit written public cormnents on the proposed withdrawal for a period of at least 90 days (43 CFR 0 Provide notice and hold one or more public meetings for proposed withdrawals involving 5.000 or more acres (43 FR 0 Conduct studies. analyses, and prepare reports (43 CFR As the applicant. the Forest Service would be the lead for the NEPA document. with the BLM serving as a cooperator. 0 Prepare the case?le and submit to the BLM Director for review and decision. 0 Finalize the case?le with the BLM Director?s decision for submission to the Secretary of the Interior. 0 The Secretary of the Interior issues a Public Land Order or notice of denialr to be published in the Federal Register (43 For withdrawals involving 5.000 or more acres. the Secretary shall advise Congress of the withdrawal action. DISCUSSION Current/Pending Mineral Actions in the Superior National Forest -- February 2, 2017 Twin Metals Minnesota (TMM) is part of Antofagasta PLC, a Chilean conglomerate that includes mining holdings. Beaver Bay, Inc.; Franconia Minerals Corporation, and Lehmann Exploration are additional companies in the project area that are now wholly owned subsidiaries of TMM, which manages and controls all assets. TMM was formed to explore, and if feasible, to plan and execute an underground mine for the extraction of the mineral resources. For investment pmposes, TMIM developed a conceptual mine plan no engineering information) to extract copper, nickel, and platinum-group minerals. A competing, independent company, Encampment Minerals Inc., has ongoing exploration activities in the area. An additional company, Park Creek Management, has proposed activities planned for Northern Minnesota. Shown below is a summary of the different types of active and proposed federal permits, leases, and extension requests from TMJVI, its holdings, and other companies that are currently in force or pending with the BLM in the proposed withdrawal area. ACTIONS COUNT COMMENT Renewal request ?led timely; denied 1966 Lease Renewal 2 Forest Servrce consent; BLM canceled the leases on approxrmately 4,865 acres on 12/ 1 5/2016; litigation pending Preference Right Lease Application 4 Three from and 1 from Encampment . . . . Pending with BLM for applications ?led New Pmspeamg Perm? Apphcatms 24 between 4/25/2008 and 9/19/2016 Pemts With Pendmg 18 Extension Requests ?led timely Extensron Requests TOTAL PENDING APPLICATIONS 48 Superior National Forest (SNF) Vicin' Ma Legend Shee? 0? Appendix B: Superior National Forest References CANADA Data acquiredMavm ofsoumeso'dmemg - SNF Fee Simple Public Domain Lands accuracy, precision, and reliability. Features SNF Fee Simple Acquired Lands ??twr?fgu?m?wm? Application Boundary December 5, 2016 Superior National Forest 4th Principal Meridian, Cook, Lake, St. Louis, BWCAW Lands WithdraWn from mineral entry Itasca and Koochiching Counties, State of Minnesota Disclaimer Mining Protection Area - Lands withdrawn from mineral entry The USDA Forest Service makes no wananty, ontano' canada expressed or implied regarding the data dispiaved Minnesota Boundary on this map, and reserves the right to correct, . update, or replace this infomration without Natlonal ForeSt Boundary noti?cation Voyageur National Park Boundary US. Forest Service - Region 9 Minnesota Superior National Forest Wisconsin 'k '"neapd's St. Paul 0 105 210 420 a: Miles MEMORANDUM Jim Cason, Acting Deputy Secretary Jack Haugrud, Acting Secretary To: From: Rich Cardinale Acting Assistant Secretary – Land and Minerals Management Kate MacGregor, Special Assistant Re: Briefing Materials for Meeting on February 3, 2017 Date: February 2, 2017 ****************************************************************************** In preparation for tomorrow’s 1:00 meeting, attached please find briefing materials on the following subjects that we would like to discuss with you: 1. 2. 3. 4. BOEM - Upcoming (June 21, 2017) Cook Inlet Lease Sale; BOEM - Upcoming (August 16, 2017) Gulf of Mexico Lease Sale; BOEM – Brief discussion regarding anticipated budget shortfall re offsetting collections; BLM – Two pending coal leases under BLM review that may fall within the Secretarial Order 3338 (January 15, 2016) exception; 5. BLM – Boundary Waters (a/k/a Twin Metals) withdrawal; and 6. BLM – Keystone XL status and collaboration efforts with USFWS. Given the topics to be covered, I have asked BOEM Acting Director Walter Cruickshank to attend as well as BLM Acting Deputy Director, Jerry Perez and Assistant Director for Energy, Minerals and Realty Management, Mike Nedd. I have also invited Karen Hawbecker, Associate Solicitor, Division of Mineral Resources, and Laura Brown, Associate Solicitor, Division of Land and Water in the event legal questions arise. In addition to the matters listed above, we also have a sensitive BLM law enforcement matter to discuss with you. I recommend that it be handled at the very end of the meeting, with attendance limited to Kate, Kristin, Jerry, Jack and me. As a follow up matter, in accordance with your request on January 23, 2017, attached please also find: 1. A chart detailing onshore and offshore leasing statistics for the 10-year period from FY 2007 through FY 2016. 2. A list of Onshore and Offshore Regulations issues for the period 2011 – 2017. 3. A Memo from the Acting Director of OSMRE on the status of the bureau’s regulatory actions and suggestions for regulations that may be reviewed/streamlined in order to spur domestic coal development. Bureau of Ocean Energy Management US. Department of the Interior Cook Inlet Lease Sale 244 July 25, 2018 BRIEFING DOCUMENT FOR THE ASSISTANT SECRETARY - LAND AND MINERALS MANAGEMENT MAIN MESSAGE: BOEM is seeking approval of the Cook Inlet Sale 244 Proposed Notice of Sale (NOS). including decisions regarding the size. timing. economic tenns and conditions. stipulations, and information to lessees clauses that are applicable to the lease sale. SCHEDULE: The Cook Inlet Sale 244 is scheduled for J1me 21. 2017. BOEM wishes to publish in the Federal Register a Notice of Availability (N CA) for the Proposed NOS no later than February 28. 2017. The Govemor of Alaska will then have 60 days to 011 the size. timing. and location of the proposed sale pursuant to section 19 of the Outer Continental Shelf Lands Act. Assuming a decision is made to proceed with the sale. the Final NOS must publish in the Federal Register by May 22. 2017. 30 days prior to the sale date. BACKGROUND: Cook Inlet Sale 244 is the thirteenth and ?nal lease sale scheduled in the Department of the Interior?s approved Outer Continental Shelf Oil and Gas Leasing Program: 2012-2017 (Five Year Program). The proposed Cook Inlet Sale 244 will offer 224 imleased blocks encompassing approximately 442.500 hectares or 1.09 million acres. Proposed sale blocks are located from 3 to 21 nautical miles offshore the State of Alaska in water depths of approximately 10 to 80 meters. The sale area is located in the 1101the1n portion of the Cook Inlet Planning Area. close to existing infrastructiu'e needed to support exploration. development and production activities. BOEM published a Request for Interest on March 27, 2012. and issued its Area Identi?cation for the sale area on November 27. 2013. COOK INLET STATUS: There are no active Federal leases in the Cook Inlet Plaiming Area. The most recent lease sale in the Cook Inlet Planning Area. Lease Sale 191. was held in 2004 and received no bids. Two subsequently proposed lease sales in Cook Inlet (Sale 211 in 2009. and Sale 219 in 2011) were cancelled due to a lack of industly interest. Sale 149 in 1997 received bids on two tracts. These two leases expired in 2010 and no explorat01y drilling was conducted prior to their expiration. ENVIRONMENTAL REVIEW: The Cook Inlet Sale 244 Enviromnental Impact Statement (EIS) tiers from the 2012 to 2017 Five-Year Final Proga?aimnatic EIS published in July 2012. The NOA of the Sale 244 Draft EIS published in the Federal Register 011 July 22. 2016. (81 FR 47819). All relevant to the Draft EIS were considered and addressed in the Final EIS. The NOA for the Final EIS published in the Federal Register on December 23. 2016 (81 FR 94415). The NOA for the Record of Decision must publish with the Final NOS (May 22). RECOMMENDATION: Bureau of Ocean Energy Management US. Department of the Interior Gulf of Mexico Lease Sale 249 July 25. 2018 BRIEFING DOCUMENT FOR THE ASSISTANT SECRETARY - LAND AND MINERALS MANAGEMENT MAIN MESSAGE: BOEM is seeking approval of the Gulf of Mexico Sale 249 Proposed Notice of Sale (NOS). including decisions regarding the size, timing. economic terms and conditions, stipulations. and information to lessees clauses that are applicable to the lease sale. SCHEDULE: The Gulf of Mexico Sale 249 is scheduled for August 16, 2017. BOEM wishes to publish in the Federal Register a Notice of Availability (N OA) for the Proposed NOS no later than March 3, 2017. The Governors of Texas, Louisiana, Alabanra. Mississippi, and Florida will then have 60 days to cormnent on the size, timing. and location of the proposed sale pru?suant to section 19 of the Outer Continental Shelf Lands Act. Assuming a decision is made to proceed with the sale, the Final NOS nrust publish in the Federal Register by July 17, 2017, 30 days prior to the sale date. BACKGROUND: Gulf of Mexico Sale 249 is the ?rst lease sale scheduled in the Department of the Interior?s approved Outer Continental Shelf Oil and Gas Leasing Program: 2017-2022 (Five Year Program), which comes into effect on July 1, 2017. The proposed Gulf of Mexico Sale 249 will offer 13.725 rmleased blocks encompassing approximately 73.3 million acres. This is the ?st region-wide sale and consists of blocks located in the Western Planning Area. Central Planning Area, and Eastern Planning Area. The available blocks are located no closer than 3 and no ?u?ther than 234 nautical miles offshore, in water depths of approximately 3 to more than 3,400 meters. GULF OF MEXICO STATUS: As of January 1, 2017, there are 3.184 active leases encompassing 16.9 million acres, mostly in the Central Planning Area. Currently, 879 leases in the Gulf of Mexico are producing. ENVIRONMENTAL REVIEW: The Gulf of Mexico Environmental Impact Statenrent (EIS) tiers from the 2017 to 2022 Five-Year Final Programmatic EIS. The NOA of the 0C5 Oil and Gas Lease Sales: 2017-2022 Gulf of [Mexico Lease Sales 249, 250, 25], 252, 253, 254, 256, 25 7, 259, and 261 Draft Environmental Impact Statement for 249 published in the Federal Register on April 22, 2016 (81 FR 23747). All cormnents relevant to the Draft EIS are considered and addressed in the Final EIS. The NOA for the Final EIS is expected to publish in the Federal Register on March 3, 2017, concrurently with the NOA for the Proposed NOS. The NOA for the Record of Decision must publish with the Final NOS (July 2017). RECOMMENDATION: INFORMATION/BRIEFING MEMORANDUM FOR THE ASSISTANT SECRETARY – LAND AND MINERALS MANAGEMENT DATE: FROM: SUBJECT: February 2, 2017 Kristin Bail, Acting Director – Bureau of Land Management Application for Withdrawal, Superior National Forest, Minnesota The purpose of this memorandum is to provide background information about an application dated and submitted on December 14, 2016, by the U.S. Forest Service, proposing a withdrawal from mineral leasing laws on approximately 234,328 acres of Federal mineral estate within the Superior National Forest, northern Minnesota. Authority to approve or deny applications for withdrawals is delegated to the Secretary of the Interior (unless superseded by Congress), including lands managed by the Forest Service (Sec. 204 FLPMA). QUICK FACTS • Number of acres proposed for withdrawal: 234,328 • Initial segregation: Two years. • Subsequent withdrawal: 20 years, if approved. • Number of different mineral interests/permits within the proposed withdrawal area: 46, not including the two leases that have been canceled and are under litigation. • Number of potential jobs generated: Unknown. This would be addressed in a future analysis. • Number of other projects that are impacted: Unknown. There are 46 pending actions or permit applications. It is not known how many could result in mining projects. • Estimated value of the minerals in the withdrawal area: Data provided by one company suggested a mineral deposit with a potential value of $48.9 billion in minerals on land it has been studying. The withdrawal area is larger. • Types of mineral deposits: Copper, nickel, palladium, platinum, gold, and silver. Deposits contain “critical minerals” because of technological applications, but not rare earth minerals. • Deadline for the decision: The pending decision is on whether to allow the Office of the Federal Register to publish a correction notice regarding the duration of the segregation. While the error has caused confusion for the public, there is no deadline. BACKGROUND The Superior National Forest lands subject to the segregation and withdrawal application include part of the Duluth Complex, a geologic complex that contains ore rich in copper, nickel, palladium, platinum, gold, and silver. It also overlaps the Rainy River Watershed, which includes the nearby Boundary Waters Canoe Area Wilderness (BWCAW), the only large lakeland wilderness in the National Wilderness Preservation System. Part of the withdrawal area is in St. Louis County, Minnesota, where mining employment has declined from more than 12,000 jobs in 1980 to approximately 3,000 jobs in 2009, primarily due to the reduction in workforce at taconite (a low-grade iron ore) mines. Employment levels are highly dependent on the fluctuating market price of the iron ore being extracted. The median income of the local communities is significantly lower than that of the state as a whole. During the same period, service-sector employment has risen. The unique water-based recreation opportunities that the BWCAW provides attract many visitors and provide an economic driver to local communities supporting hospitality and other services dependent on fishing, boating, sightseeing, and wilderness experiences, according to information supplied by the U.S. Forest Service. In 2015, 150,000 people visited the BWCAW. Tourism has generated an average of $44.5 million annually in local economic activity, according to the Forest Service. Timeline • December 14, 2016: The Forest Service submitted to the BLM an application for withdrawal from mineral leasing for approximately 234,328 acres of Federal mineral estate within the Superior National Forest for a period of 20 years. • January 13, 2017: The Forest Service published a Federal Register Notice of Intent to prepare an environmental impact statement related to the proposed withdrawal. • January 19, 2017: The BLM published in the Federal Register a Notice of Application for Withdrawal and Notification of Public Meeting, which included allowable land uses during the segregation period. As published, the BLM’s Federal Register notice contains an error in the end date for the two-year segregation period. It states that “the end date for the segregation is specified as January 21, 2017 [a two-day segregation period]. The BLM’s intention and consistent with the regulations at 43 CFR §2310.2(a), was to institute a two-year segregation (ending January 21, 2019), as noted in the BLM’s original submission to the Office of the Federal Register: Resources Industry interest in developing the minerals in the proposed withdrawal area is high. Twin Metals Minnesota, LLC (TMM) holds the majority of Federal hardrock prospecting permits within the Superior National Forest. The BLM completed a mineral report (October 2014) based on a review of data from 550 core holes and other geophysical information that TMM gathered, which verifies the presence of a valuable deposit. The report indicates an estimated ore value of $48.9 billion and a 44% internal rate of return, based on estimated capital expenditures, production, production cost, taxes and royalties. TMM did not submit a proposed mine plan of operation before the terms of the two Federal leases at issue ended, as noted below. Even if the lease terms had not ended, an environmental impact statement would be required before the BLM could render a decision on a proposed mine plan. Through conversations with BLM Eastern States leadership, TMM had indicated that it would require a few more years of work before a mining plan could have been submitted. Attachment 2 discusses 48 current mineral actions, including applications, in the area. The withdrawal application follows a Forest Service letter dated December 14, 2016, withholding consent to renew two Federal mineral leases (MNES 01352 and MNES 01353) due to potential impacts to resources within the Rainy River Watershed. The proposed withdrawal area encompasses the area of the lease parcels. As a result of the Forest Service’s denial of consent, the BLM denied the lease renewal application on December 15, 2016. The proposed mineral withdrawal would be subject to valid existing rights. The application specifically requests withdrawal from the following mineral leasing laws: 2 Mineral Leasing Act of 1920. as amended and supplemented (30 U.S.C . 181 et seq.): Mineral Leasing Act for Acquired Lands of 1947. as amended (30 U.S.C. 351-359); Section 402 of the President's Reorganization Plan No. 3 of 1946; and 60 Stat. 1097. 1099-1100. and the statutes it lists. and 16 U.S.C. 508b. Unlike public lands in the West. the General Mining Act of 1872. as amended. does not apply to public and acquired lands within the Superior National Forest. The Forest Service?s application identi?ed the purpose of the proposed withdrawal as follows: .. to protect National Forest System lands (and waters) located in the Rainy River Watershed. the BWCAW. and the MPA [Mining Protection Area] hour the adverse environmental impacts. including potential irreparable harm. arising from exploration and development of Federally-owned minerals conducted pursuant to the mineral leasing laws. In addition. this withdrawal will protect Voyagelu's National Parks and Canada's Quetico Provincial Park. both of which are internationally known as places to enjoy canoeing and remote water-based wilderness.? The process for reviewing and rendering a decision 011 withdrawal applications is outlined in 43 FR ?2310. The following is a list of major milestones for processing withdrawal applications: 0 Publish notice in the Federal Register of the withdrawal application, including: A two-year segregation notice while the application is being considered (43 FR ?2310.2). Solicit written public cormnents on the proposed withdrawal for a period of at least 90 days (43 CFR 0 Provide notice and hold one or more public meetings for proposed withdrawals involving 5.000 or more acres (43 FR 0 Conduct studies. analyses, and prepare reports (43 CFR As the applicant. the Forest Service would be the lead for the NEPA document. with the BLM serving as a cooperator. 0 Prepare the case?le and submit to the BLM Director for review and decision. 0 Finalize the case?le with the BLM Director?s decision for submission to the Secretary of the Interior. 0 The Secretary of the Interior issues a Public Land Order or notice of denialr to be published in the Federal Register (43 For withdrawals involving 5.000 or more acres. the Secretary shall advise Congress of the withdrawal action. NEXT STEPS ATTACHMENTS 1. Map: Superior NF Proposed Withdrawal 2. Current and Pending Mineral Actions INFORMATION/BRIEFING MEMORANDUM FOR THE ASSISTANT SECRETARY – LAND AND MINERALS MANAGEMENT DATE: February 2, 2017 FROM: Kristin Bail, Acting Director – Bureau of Land Management SUBJECT: Concurrence Request for Coal Lease-by-Application Exclusion per Secretarial Order 3338 This information briefing provides background information and next steps associated with the review and concurrence of the Peabody Caballo Mining, LLC (PCM) request for the Bureau of Land Management (BLM) to grant an exception for the modification of Federal coal lease WYW-83395. BACKGROUND On January 15, 2016, the Secretary of the Interior issued Secretarial Order 3338 (SO), directing “the BLM to prepare a discretionary Programmatic Environmental Impact Statement (PEIS) that analyzes the potential leasing and management reforms to the current Federal coal program.” During the preparation of the PEIS, the Secretary directed the BLM to place a pause on the issuance of coal leases subject to limited, enumerated exemptions and exclusions. An Interim Processing Policy for SO 3338 was issued to the BLM State Offices on March 4, 2016, which remains in effect until a BLM Instruction Memorandum is completed. The Policy requires concurrence by the BLM Assistant Director (AD) for Energy, Minerals and Realty Management with a BLM state office recommendation that a lease-by-application (LBA) or a lease-modification application (LMA) received prior to January 15, 2016, meets the emergency leasing criteria established in the regulations at 43 CFR 3425.1-4 used for SO 3338 (see Attachment 1). If the Authorized Officer (AO) determines that a LBA or LMA received before January 15, 2016, meets the criteria defined at 43 CFR 3425.1-4 then processing of the LBA or LMA may continue only after the AD has concurred. Specifically, the Interim Processing Policy states that, “If [a]n LMA is greater than 160 acres and the AO determines … that the LMA meets the criteria defined at 43 CFR 3425.1-4 then [p]rocessing of the LMA will continue as a noncompetitive LMA through to modification issuance.” It is important to note that mine operators are not required to reapply for a lease or lease modification under 43 CFR 3425.1-4 if their original application was applied for under the standard LBA or LMA regulations at 43 CFR 3420 or 3430, respectively. Thus, lease modifications that are non-competitive leasing actions can continue to be processed as non-competitive actions with the emergency criteria from 43 CFR 3425.1-4 used only to determine if the action may continue to be processed under the SO. DISCUSSION NEXT STEPS ATTACHMENTS 1. W-83395 Lease Modi?cation Emergency Leasing Criteria Review 2. Previously Approved Concurrence Requests Attachment 1: WYW-83395 Lease Modification Emergency Leasing Criteria Review § 3425.1-4 Emergency Leasing Criteria used for SO 3338 WYW-83395 Exceptions (a) An emergency lease sale may be held in response to an application under this subpart if the applicant shows: (1) That the coal reserves applied for shall be mined as part of a mining operation that is producing coal on the date of the application, and either: (i) The Federal coal is needed within 3 years (A) to maintain an existing mining operation at its current average annual level of production on the date of application or (B) to supply coal for contracts signed prior to July 19, 1979, as substantiated by a complete copy of the supply or delivery contract, or both; or (ii) If the coal deposits are not leased, they would be bypassed in the reasonably foreseeable future, and if leased, some portion of the tract applied for would be used within 3 years; and The Interim Processing Policy provides that if a LMA is received before January 15, 2016, it may continue to be processed as a non-competitive LMA through to modification issuance if it meets the emergency leasing criteria defined at 43 CFR 3425.1-4. The WYW-83395 LMA was received before January 15, 2016, on August 12, 2013. The LMA is to modify Federal coal lease WYW-83395, which was issued on January 28, 1983, in exchange for WYW-5035, which was issued on December 1, 1967. The exchange was required by Public Law 95-554. Federal coal lease WYW-83395 was issued consistent with the Federal Coal Leasing Amendments Act (FCLAA), and was included in the Rawhide Mine Logical Mining Unit (LMU) on February 19, 1986 (WYW133398). The Rawhide Mine LMU is in compliance with the producing and continued operation requirements of FCLAA. (A) PCM has provided a production schedule that indicates the coal from the LMA area could begin as soon as 2017 (but will likely begin in 2018) and continue through 2028. Work on the National Environment Policy Act analysis has begun with an anticipated completion in second half of 2017. However, the BLM does not have sufficient information to find that PCM needs the coal within 3 years to maintain the existing mining operations at the current average annual level of production. (B) PMC has not asserted that there are any coal sale contracts that date before July 19, 1979. This lease modification area is 290.79 acres, has an estimated 26.62 million tons of minable reserves, and lies between US Highway 14/16 on the west, an existing federal lease on the north (WYW-5036), an existing federal lease on the east (WYW-83395), and an existing federal lease on the south (WYW-83395). The area was not previously leased due to presence of a sand channel in the area that has displaced some of the coal. However, with further developmental drilling the location of the sand channel has been refined and these additional coal reserves were located. If the LMA tract is not mined within the established sequence, backfilling will begin. At this point PCM would not be able to mine back into this modification tract, causing the coal to be economically unrecoverable and ultimately resulting in bypassed coal. The LMA tract is too small to justify a new, standalone operation, and the small reserve size and its location make it unattractive to others and therefore, non-competitive. (2) That the need for the coal deposits shall have resulted from circumstances that were either beyond the control of the applicant or could not have been reasonably foreseen and planned for in time to allow for consideration of leasing the tract under the provisions of §3420.3 of this title. (b) The extent of any lease issued under this section shall not exceed 8 years of recoverable reserves at the rate of production under which the applicant qualified in paragraph (a)(1) of this section. If the applicant qualifies under both paragraphs (a)(1)(A) and (B) of this section, the higher rate applies. (c) The authorized officer shall provide the Governor of the affected State(s) a notice of an emergency lease application when it is filed with the Bureau of Land Management. If the LMA is completed, the coal will be used within 3 years. As previously stated, PCM has provided a production schedule that indicates the coal from the LMA area could begin as soon as 2017 (but will likely to begin in 2018) and continue through 2028. This lease modification application was filed in 2013, and the applicant continues to diligently pursue this lease modification since that time. As the issuance of the SO and the resulting pause were beyond the applicants’ control, this criteria is deemed satisfied for the processing of all LBAs and LMAs under the terms of the SO and during the pendency of the programmatic environmental impact statement. See Interim Processing Policy, pg. 2. The BLM’s analysis of the LMA indicates that it contains approximately 26.62 million tons of minable coal. The Rawhide Mine produced 15.10 million tons during calendar year 2015. If all mine production were to be mined from this area, the reserve would be exhausted in approximately 2 years. Therefore, the coal reserves within the LMA do not exceed 8 years of reserves at the current production rate. Note that only a small part of the annual production requirement for each year is within the lease modification area, thereby extending the mining of this area to 2028. The regulations at 43 CFR 3432 do not require a unique notification to the Governor for a lease modification. Attachment 2: Previously Approved Concurrence Requests The following table is a summary of the requests for exclusion from SO 3338 that have received concurrence from the AD for Energy, Minerals and Realty Management: Completed Requests for Concurrence with S.O. 3338 Exclusions LMA or LBA NDM-102083: 160 ac Tons (tn) NDM-102083: 2,430,000 tn NDM-105513: 1,040 ac 955 ac NDM-105513: 22,700,000 tn 4,658,000 tn Falkirk Mining Company, Falkirk Mine; LBA for NDM 107039; DTS BLM0007980 320 ac 2,868,000 tn Concurrence completed 11-28-16 Spring Creek Coal Company, Spring Creek Coal Mine; LMA for MTM-094378; DTS BLM0008399 150 ac 7,900,000 tn Concurrence completed 11-28-16 Black Butte Coal Company, Black Butte Mine; LMA for WYW-6266; DTS BLM0008557 450 ac 7,800,000 tn Concurrence completed 12-2-16 BNI, Center Mine; LBA for NDM-102083 and NDM-105513; DTS BLM0007534 GCC Energy, King II Mine; LMA for COC-62920; DTS BLM0007572 Acres (ac) Notes Concurrence completed 7-12-16 Concurrence completed 7-12-16 INFORMATION/ BRIEFING MEMORANDUM FOR THE ACTING ASSISTANT SECRETARY DATE: FROM: SUBJECT: July 25, 2018 Edwin Roberson, Utah State Director Alton Coal Development Lease by Application and Emergency Lease BACKGROUND Alton Coal Development, LLC (Alton) filed a Lease by Application (LBA) (UTU-081895) on November 12, 2004, encompassing approximately 2,747 acres that was later amended to 3,581.27 acres. The Draft Environmental Impact Statement (EIS) for the Alton LBA was published in November 2011. Based on public comments and those of the Environmental Protection Agency (EPA), a Supplemental Draft EIS was prepared and published in June 2015. Although the NEPA analysis was near completion, a Record of Decision (ROD) for the Alton LBA had not been signed when Secretarial Order 3338 was issued, therefore the LBA tract does not qualify to go forward to leasing under the coal leasing pause. In May 2016, Alton requested an exception to the Secretarial Order 3338 coal leasing pause based on the emergency lease criteria. The proposal divided the existing LBA tract into two separate tracts. On August 17, 2017, Acting State Director Jenna Whitlock notified Alton that the proposal did not qualify for exclusion from the leasing pause based on the tonnage and timing of the proposed tract (per 43CFR 3425.1-4) and lack of compliance with the requirement that the need for the lease resulted from circumstances that were either beyond the control of the applicant or could not have been reasonably foreseen and planned for (43 CFR § 3425.1-4(a)(2)). Alton subsequently submitted supplemental information to modify its May 2016 submission which reduces the area of the LBA and adjusts the tonnage and timing of the proposed mining operations. The information has been reviewed by Utah State Office engineering staff in consultation with WO-320 and is now found to be in technical compliance with the Emergency Leasing regulations at 43CFR 3425.1-4. The Emergency Lease process would be under cost recovery and only proceed to completion after the NEPA analysis (Supplemental EIS) is completed for the original LBA UTU-81895, which also encompasses the Emergency Lease area. However, a question remains as to if an LBA submitted over 12 years ago and actively being processed for over seven years—including publication of two EIS documents and nearing completion of a Final EIS-- violates the requirements found in 43 CFR § 3425.1-4(a)(2) and if the interpretation of the regulation would be defensible in an appeal or litigation. The Alton LBA has generated a significant amount of comments including National Park Service concerns regarding night sky viewing, air quality, and noise. The mine and LBA also intersect the southernmost extent of Greater Sage-Grouse habitat in Utah. Extensive mitigation efforts are already underway and additional mitigation requirements would be required if the emergency lease or the entire LBA were to be approved. The LBA Final EIS is presently on hold for public release pending the decision to proceed with the emergency leasing process. DISCUSSION NEXT STEPS INFORMATION/BRIEFING MEMORANDUM FOR THE ASSISTANT SECRETARY – LAND AND MINERALS MANAGEMENT DATE: FROM: SUBJECT: February 2, 2017 Kristin Bail, Acting Director – Bureau of Land Management Application for Withdrawal, Superior National Forest, Minnesota The purpose of this memorandum is to provide background information about an application dated and submitted on December 14, 2016, by the U.S. Forest Service, proposing a withdrawal from mineral leasing laws on approximately 234,328 acres of Federal mineral estate within the Superior National Forest, northern Minnesota. Authority to approve or deny applications for withdrawals is delegated to the Secretary of the Interior (unless superseded by Congress), including lands managed by the Forest Service (Sec. 204 FLPMA). QUICK FACTS • Number of acres proposed for withdrawal: 234,328 • Initial segregation: Two years. • Subsequent withdrawal: 20 years, if approved. • Number of different mineral interests/permits within the proposed withdrawal area: 46, not including the two leases that have been canceled and are under litigation. • Number of potential jobs generated: Unknown. This would be addressed in a future analysis. • Number of other projects that are impacted: Unknown. There are 46 pending actions or permit applications. It is not known how many could result in mining projects. • Estimated value of the minerals in the withdrawal area: Data provided by one company suggested a mineral deposit with a potential value of $48.9 billion in minerals on land it has been studying. The withdrawal area is larger. • Types of mineral deposits: Copper, nickel, palladium, platinum, gold, and silver. Deposits contain “critical minerals” because of technological applications, but not rare earth minerals. • Deadline for the decision: The pending decision is on whether to allow the Office of the Federal Register to publish a correction notice regarding the duration of the segregation. While the error has caused confusion for the public, there is no deadline. BACKGROUND The Superior National Forest lands subject to the segregation and withdrawal application include part of the Duluth Complex, a geologic complex that contains ore rich in copper, nickel, palladium, platinum, gold, and silver. It also overlaps the Rainy River Watershed, which includes the nearby Boundary Waters Canoe Area Wilderness (BWCAW), the only large lakeland wilderness in the National Wilderness Preservation System. Part of the withdrawal area is in St. Louis County, Minnesota, where mining employment has declined from more than 12,000 jobs in 1980 to approximately 3,000 jobs in 2009, primarily due to the reduction in workforce at taconite (a low-grade iron ore) mines. Employment levels are highly dependent on the fluctuating market price of the iron ore being extracted. The median income of the local communities is significantly lower than that of the state as a whole. During the same period, service-sector employment has risen. The unique water-based recreation opportunities that the BWCAW provides attract many visitors and provide an economic driver to local communities supporting hospitality and other services dependent on fishing, boating, sightseeing, and wilderness experiences, according to information supplied by the U.S. Forest Service. In 2015, 150,000 people visited the BWCAW. Tourism has generated an average of $44.5 million annually in local economic activity, according to the Forest Service. Timeline • December 14, 2016: The Forest Service submitted to the BLM an application for withdrawal from mineral leasing for approximately 234,328 acres of Federal mineral estate within the Superior National Forest for a period of 20 years. • January 13, 2017: The Forest Service published a Federal Register Notice of Intent to prepare an environmental impact statement related to the proposed withdrawal. • January 19, 2017: The BLM published in the Federal Register a Notice of Application for Withdrawal and Notification of Public Meeting, which included allowable land uses during the segregation period. As published, the BLM’s Federal Register notice contains an error in the end date for the two-year segregation period. It states that “the end date for the segregation is specified as January 21, 2017 [a two-day segregation period]. The BLM’s intention and consistent with the regulations at 43 CFR §2310.2(a), was to institute a two-year segregation (ending January 21, 2019), as noted in the BLM’s original submission to the Office of the Federal Register: Resources Industry interest in developing the minerals in the proposed withdrawal area is high. Twin Metals Minnesota, LLC (TMM) holds the majority of Federal hardrock prospecting permits within the Superior National Forest. The BLM completed a mineral report (October 2014) based on a review of data from 550 core holes and other geophysical information that TMM gathered, which verifies the presence of a valuable deposit. The report indicates an estimated ore value of $48.9 billion and a 44% internal rate of return, based on estimated capital expenditures, production, production cost, taxes and royalties. TMM did not submit a proposed mine plan of operation before the terms of the two Federal leases at issue ended, as noted below. Even if the lease terms had not ended, an environmental impact statement would be required before the BLM could render a decision on a proposed mine plan. Through conversations with BLM Eastern States leadership, TMM had indicated that it would require a few more years of work before a mining plan could have been submitted. Attachment 2 discusses 48 current mineral actions, including applications, in the area. The withdrawal application follows a Forest Service letter dated December 14, 2016, withholding consent to renew two Federal mineral leases (MNES 01352 and MNES 01353) due to potential impacts to resources within the Rainy River Watershed. The proposed withdrawal area encompasses the area of the lease parcels. As a result of the Forest Service’s denial of consent, the BLM denied the lease renewal application on December 15, 2016. The proposed mineral withdrawal would be subject to valid existing rights. The application specifically requests withdrawal from the following mineral leasing laws: 2 Mineral Leasing Act of 1920. as amended and supplemented (30 U.S.C . 181 et seq.): Mineral Leasing Act for Acquired Lands of 1947. as amended (30 U.S.C. 351-359); Section 402 of the President's Reorganization Plan No. 3 of 1946; and 60 Stat. 1097, 1099-1100. and the statutes it lists. and 16 U.S.C. 508b. Unlike public lands in the West. the General Mining Act of 1872. as amended. does not apply to public and acquired lands within the Superior National Forest. The Forest Service?s application identi?ed the purpose of the proposed withdrawal as follows: .. to protect National Forest System lands (and waters) located in the Rainy River Watershed. the BWCAW. and the MPA [Mining Protection Area] ??om the adverse environmental impacts. including potential irreparable harm. arising from exploration and development of Federally-owned minerals conducted pursuant to the mineral leasing laws. In addition. this withdrawal will protect Voyagem?s National Parks and Canada's Quetico Provincial Park. both of which are internationally known as places to enjoy canoeing and remote water-based wilderness.? The process for reviewing and rendering a decision 011 withdrawal applications is outlined in 43 FR ?2310. The following is a list of major milestones for processing withdrawal applications: 0 Publish notice in the Federal Register of the withdrawal application, including: A two-year segregation notice while the application is being considered (43 FR ?2310.2). Solicit written public cormnents on the proposed withdrawal for a period of at least 90 days (43 CFR 0 Provide notice and hold one or more public meetings for proposed withdrawals involving 5.000 or more acres (43 FR 0 Conduct studies. analyses, and prepare reports (43 CFR As the applicant. the Forest Service would be the lead for the NEPA document. with the BLM serving as a cooperator. 0 Prepare the case?le and submit to the BLM Director for review and decision. 0 Finalize the case?le with the BLM Director?s decision for submission to the Secretary of the Interior. 0 The Secretary of the Interior issues a Public Land Order or notice of denialr to be published in the Federal Register (43 For withdrawals involving 5.000 or more acres. the Secretary shall advise Congress of the withdrawal action. DISCUSSION NEXT STEPS ATTACHMENTS 1. Map: Superior NF Proposed Withdrawal 2. Current and Pending Mineral Actions Superior National Forest (SNF) Vicin' Ma Legend Shee? 0? Appendix B: Superior National Forest References CANADA Data acquiredMavm ofsoumeso'dmemg - SNF Fee Simple Public Domain Lands accuracy, precision, and reliability. Features SNF Fee Simple Acquired Lands ??twr?fgu?m?wm? Application Boundary December 5, 2016 Superior National Forest 4th Principal Meridian, Cook, Lake, St. Louis, BWCAW Lands WithdraWn from mineral entry Itasca and Koochiching Counties, State of Minnesota Disclaimer Mining Protection Area - Lands withdrawn from mineral entry The USDA Forest Service makes no wananty, ontano' canada expressed or implied regarding the data dispiaved Minnesota Boundary on this map, and reserves the right to correct, . update, or replace this infomration without Natlonal ForeSt Boundary noti?cation Voyageur National Park Boundary US. Forest Service - Region 9 Minnesota Superior National Forest Wisconsin 'k '"neapd's St. Paul 0 105 210 420 a: Miles Current/Pending Mineral Actions in the Superior National Forest -- February 2, 2017 Twin Metals Minnesota (TMM) is part of Antofagasta PLC, a Chilean conglomerate that includes mining holdings. Beaver Bay, Inc.; Franconia Minerals Corporation, and Lehmann Exploration are additional companies in the project area that are now wholly owned subsidiaries of TMM, which manages and controls all assets. TMM was formed to explore, and if feasible, to plan and execute an underground mine for the extraction of the mineral resources. For investment pmposes, TMIM developed a conceptual mine plan no engineering information) to extract copper, nickel, and platinum-group minerals. A competing, independent company, Encampment Minerals Inc., has ongoing exploration activities in the area. An additional company, Park Creek Management, has proposed activities planned for Northern Minnesota. Shown below is a summary of the different types of active and proposed federal permits, leases, and extension requests from TMJVI, its holdings, and other companies that are currently in force or pending with the BLM in the proposed withdrawal area. ACTIONS COUNT COMMENT Renewal request ?led timely; denied 1966 Lease Renewal 2 Forest Servrce consent; BLM canceled the leases on approxrmately 4,865 acres on 12/ 1 5/2016; litigation pending Preference Right Lease Application 4 Three from and 1 from Encampment . . . . Pending with BLM for applications ?led New Pmspeamg Perm? Apphcatms 24 between 4/25/2008 and 9/19/2016 Pemts With Pendmg 18 Extension Requests ?led timely Extensron Requests TOTAL PENDING APPLICATIONS 48 INFORMATION/BRIEFING MEMORANDUM FOR THE ASSISTANT SECRETARY – LAND AND MINERALS MANAGEMENT DATE: February 2, 2017 FROM: Kristin Bail, Acting Director – Bureau of Land Management SUBJECT: Keystone XL Pipeline Project (b) (5) 1 Onshore Leasing At a Glance Selected Onshore Oil and Gas Leasing Statistics – FY2007 – FY2016 FY2007 FY2008 FY2009 FY2010 FY2011 FY2012 FY2013 FY2014 FY2015 FY2016 % Δ 10yrs Acres Offered for Lease 4,939,469 3,878,102 3,803,635 3,239,086 1,158,808 4,674,517 5,746,874 5,683,736 4,017,062 1,979,532 60% ↓ New Acres Leased 4,634,736 2,615,259 1,913,602 1,353,663 2,016,176 1,752,060 1,172,808 1,197,852 810,068 577,317 88% ↓ # New Leases Issued 3,499 2,416 2,072 1,308 2,188 1,729 1,468 1,157 852 520 85% ↓ Acres Held Under Lease 44,479,478 47,242,495 45,364,991 41,186,158 38,463,552 37,792,212 36,092,482 34,592,450 32,193,369 27,207,018 39% ↓ APDs Approved by Year 7,124 6,617 4,487 4,090 4,244 4,256 3,770 3,769 3,508 2,184 69% ↓ Total # of Wells Started (SPUD) 5,343 5,044 3,267 3,166 3,260 3,022 2,413 2,544 1,621 847 84% ↓ Bonus Bids Received 206,657,732 395,593,240 161,775,578 195,647,787 240,929,622 259,881,011 224,415,509 201,372,216 142,286,667 196,023,738 50% ↓ Rentals Received 63,179,593 63,278,602 56,657,740 48,800,064 45,002,896 43,578,280 41,036,833 36,684,822 30,886,105 21,465,394 66% ↓ FY2014 FY2015 FY2016 The APD tabulations are Federal only and do not include the Tribal APDs from BLM field offices such as North Dakota, Farmington, Vernal and Tulsa. For all years, data is Federal-only; does not include Indian leases. In 2010, the BLM began annual lease sales in the National Petroleum Reserve-Alaska. Selected Offshore Oil and Gas Leasing Statistics – FY2007 – FY2016 FY2007 Number of Lease Sales Acres Offered for Lease New Acres Leased # New Leases Issued APDs Approved by Yr Total (New Wells) FY2008 FY2009 FY2010 FY2011 FY2012 FY2013 % Δ 10yrs 2 4 2 1 1 1 3 3 2 3 N/A 26,634,432 106,757,249 52,988,297 36,957,957 0 60,314,171 80,768,541 61,718,950 63,208,552 68,686,471 61% ↑ 2,031,139 11,726,574 2,668,409 2,369,101 0 3,371,851 2,602,954 2,090,265 1,069,991 771,238 62% ↓ 364 2,121 483 446 0 623 477 400 194 140 62% ↓ 341 (656 Total) 302 (613) 181 (376) 128 (318) 96 (238) 171 (371) 140 (382) 136 (338) 97 (218) 83 (168) 76% ↓ Total # of Wells SPUD Total (Shallow Water) Bonus Bids Received 647 586 379 290 224 352 381 348 227 164 75% ↓ 332,118,261 9,796,080,028 818,514,844 949,265,959 0 2,042,189,336 1,472,128,172 960,761,565 561,455,268 174,452,630 52% ↓ Rentals Received (FY) 200,996,775 237,021,883 233,146,675 245,645,027 223,243,632 228,022,724 257,679,016 237,476,088 225,507,450 158,027,699 22% ↓ % Δ 10yrs = 2016 compared to 2007 Attachment 2 – Onshore Oil and Gas Leasing Statistics for the last 10 years Table 1 - Summary of the BLM “All Statistics” Report from FY2008 to FY 2016, as of January 31, 2017 Total Number of Leases in Effect Total Number of Acres Leased FY 2008 FY 2009 FY 2010 FY 2011 FY 2012 FY 2013 FY 2014 FY 2015 FY 2016 55,085 53,431 50,544 49,174 48,699 47,427 46,183 44,213 40,143 47,242,495 45,364,991 41,186,158 38,463,552 37,792,212 36,092,482 34,592,450 32,193,369 27,207,018 Total Number of New Leases Issued During the Year Total Number of Acres Leased During the Year Total Number of Producing Leases on Federal Lands Total Number of Producing Acres on Federal Lands 2,416 2,072 1,308 2,188 1,729 1,468 1,157 852 520 2,615,259 1,913,602 1,353,663 2,016,176 1,752,060 1,172,808 1,197,852 810,068 577,317 23,293 22,599 22,676 22,682 23,306 23,507 23,657 23,770 23,926 14,543,425 12,842,209 12,205,416 12,316,233 12,512,974 12,617,743 12,690,806 12,760,700 12,771,829 1 Total Number of APDs approved by Year on Federal Lands 6,617 4,487 4,090 4,244 4,256 3,770 3,769 3,508 1 Total Number Of Wells Started (Spud) During the Year on Federal Lands 5,044 3,267 3,166 3,260 3,022 2,413 2,544 1,621 847 1 Total Number of Producible and Service Holes on Federal Lands 86,642 85,330 89,637 90,452 92,583 93,598 94,778 94,484 94,096 1 Total Number of Producible and Service Completions on Federal Lands 92,673 91,237 95,979 96,606 99,015 99,975 101,145 100,665 97,513 2,184 Note: For all years, data is Federal-only; does not include Indian leases. 1 Totals for some states will be less than in expanded reports that include both Federal and Indian data. The Application for Permit to Drill (APD) tabulations are Federal only and do not include the Tribal APDs from BLM field offices such as North Dakota, Farmington, Vernal and Tulsa. Table 2 - Summary of the lease sale data, including bonus bid revenue, as of October 26, 2016 Oil and Gas Lease Sale Data FY 2008 - 2016 Fiscal Year Parcels Offered Acres Offered Parcels Receiving Bids Acres Receiving Bids % Parcels % Acres Receiving Receiving Bids Bids High Bid per parcel Total $ Bonus Bids 2008 3,389 3,878,102 2,688 2,710,721 79.32% 69.90% $25,252,000 $395,593,240 2009 3,127 3,803,635 1,874 1,819,234 59.93% 47.83% $6,916,500 $161,775,578 2010 1,636 3,239,086 1,003 739,954 61.31% 22.84% $19,841,105 $195,647,787 2011 1,140 1,158,808 1,253 880,895 87.01% 76.02% $10,678,800 $240,929,622 2012 2,064 4,674,517 1,583 1,415,809 76.70% 30.29% $18,571,200 $259,881,011 2013 2,215 5,746,874 1,444 1,082,007 65.19% 18.83% $16,324,800 $224,415,509 2014 1,679 5,683,736 956 919,378 56.94% 16.18% $13,440,000 $201,372,216 2015 1,286 4,017,062 690 624,976 53.38% 15.28% $19,392,000 $142,286,667 2016 730 1,979,532 431 410,868 59.04% 20.76% $76,680,000 $196,023,738 17,266 32,201,819 11,491 10,192,975 66.55% 31.65% $25,252,000 $1,821,901,629 Total Table 3 - Protests received on parcels for lease sales from FY2008 to FY2016. Fiscal Year Number of Parcels Number of Parcels Number of Percent of parcels Posted on Original Offered Day of Sale Protested Parcels protested from Sale Notice? from Original Sale original sale notice Notice 2008 3,682 3,389 1,108 30% 2009 3,455 3,127 1,475 43% 2010 1,887 1,636 665 41% 2011 1,521 1,440 516 34% 2012 2,247 2,064 371 17% 2013 2,343 2,215 431 18% 2014* 1,752 1,679 321 18% 2015* 1,356 1,272 630 46% 2016* 1,029 730 579 56% *lncludes tracts located within the NPR-Alaska. NPR-A does not provide an avenue for protests. ?The original sale notices are often amended to remove parcels due to protests or other reasons. Offshore Oil and Gas Regulations and NTLs for 2011 - 2017 Bureau of Safety and Environmental Enforcement Rules Pending: AA31: Adjustments to Cost Recovery Fees relating to the Regulations of Oil, Gas, and Sulfur Activities on the OCS (81 FR 81033) (Proposed 11/17/2016) AA22: Helideck and Aviation Fuel Safety for Fixed Offshore Facilities (79 FR 57008) (Proposed 9/24/2014) AA29: Privacy Act Regulations; Exemptions for the Investigations Case Management System (81 FR 67267) (Proposed 9/30/2016) Published Final Rules: AA13: Update of Incorporated Cranes Standard (80 FR 34113) (Proposed 6/15/2015) AA30: Civil Penalties Inflation Adjustment (81 FR 80994) (Final Rule 11/17/2016) AA32: OCS Decommissioning Costs for Pipelines (81 FR 80587) (Final 11/16/2016) AA10: Oil and Gas Production Safety Systems (81 FR 61834) (Final on 9/7/2016) 1082-AA00: Requirements for Exploratory Drilling on the Arctic OCS (81 FR 46478) (BSEEBOEM) (Final 7/15/2016) AA15: Technical Corrections (81 FR 36145) (Final 06/06/2016) AA11: Blowout Preventer Systems and Well Control (81 FR 25888) (Final 4/29/2016) AA24: Decommissioning Costs (80 FR 75806) (Final 12/4/2015) AA12: Adjustment of Service Fees (78 FR 60208) (Final 10/01/2013) AA04: Revisions to Safety and Environmental Management Systems (78 FR 20423) (Final 4/5/2013) AA02: Increased Safety Measures for Energy Development on the OCS (77 FR 50856) (Final 8/22/2012) AA01: Production Measurement Documents Incorporated by Reference (77 FR 18916) (3/29/2012) AD79: Reorganization of Bureaus of Safety and Environmental Enforcement and the Bureau of Ocean Energy Management (BSEE-BOEM) (76 FR 64432) (Direct Final 10/18/2011) BSEE Notice to Lessees: NTL 2011-N08: Temporary Helideck Closures (10/12/2011) (Expired) NTL 2011-N09: Guidance on the Development, Implementation and Maintenance of a Safety and Environmental Management Systems (SEMS) Program for Outer Continental Shelf (OCS) Oil, Gas and Sulfur Operations (10/21/2011) NTL 2011-N10: Suspensions of Production (11/15/2011) NTL 2011-N11: Subsea Pumping for Production Operations (11/21/2011) NTL 2011-G01: Revisions to the List of OCS Lease Blocks Requiring Archaeological Resource Surveys and Reports (12/29/2011) (Joint) NTL 2012-G01: Marine Trash and Debris Awareness and Elimination (1/1/2012) (Superseded) NTL 2012-G01-Joint: Vessel Strike Avoidance and Injured/Dead Protected Species Reporting (1/1/2012) NTL 2012-G02 Joint: Implementation of Seismic Survey Mitigation Measures and Protected Species Observer Program (1/1/2012) (Superseded) NTL 2012-N01: Calculating Maximum Anticipated Surface Pressure and Expected Surface Pressure for the Completion Case and Estimated Shut-in Tubing Pressure Prior to Production (2/14/2012) NTL 2012-N02: Inspection Fees for Fiscal Year 2012 (2/17/2012) (Expired) NTL 2012-N04: Flaring and Venting Requests (7/15/2012) NTL 2012-N03: Flare/Vent Meter Installations (7/15/2012) NTL 2012-N05: Monitoring Bypassed Safety Devices (7/20/2012) (Superseded) NTL 2012-N06: Guidance to Owners and Operators of Offshore Facilities Seaward of the Coast Line Concerning Regional Oil Spill Response Plans (8/10/2012) NTL 2012-G02: Damage Caused by Hurricane Isaac (9/1/2012) NTL 2012-JOINT-N01: Outage of Fee for Services due to Fiscal Year-end Closeout (9/14/2012) (Expired) NTL 2012-N07: Oil Discharge Written Follow-up Reports (11/16/2012) NTL 2013-N01: Reimbursement for Providing Meals, Quarters, and Transportation to BSEE Representatives (3/8/2013) NTL 2013-G01: Global Positioning System (GPS) for Mobile Offshore Drilling Units From: "Brown, Laura" Sent: Fri Jun 30 2017 09:43:47 GMT-0600 (MDT) Kevin Haugrud Lois Wye Gregory Russell To: "Moody, Aaron" Subject: DLR Week Ahead for the Week of July 3 Attachments: 2017 June 30 FlNAL.docx EHope everyone has a great weekend and Fourth of July!?- Laura Brown, Associate Solicitor Division of Land Resources Of?ce of the Solicitor US Department of the Interior 1849 St., NW Washington, DC 20240 Phone: 202 208-6545 Cell: 202 359-2712 Fax: 202 219-1792 Laura.Brown@sol.doi.gov Excellence - Integrity - Service This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying or use of the e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. Thank you. "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Fri Jun 30 2017 10:25:11 GMT-0600 (MDT) To: "Brown, Laura" Lois Wye Gregory Russell CC: "Moody, Aaron" Subject: Re: DLR Week Ahead for the Week of July 3 Thanks Laura. You too. And great graphics - very impressive. On Fri, Jun 30, 2017 at 11:43 AM, Brown, Laura wrote: .Hope everyone has a great weekend and Fourth of July!- Laura Brown, Associate Solicitor Division of Land Resources Of?ce of the Solicitor US. Department of the Interior 1849 St., NW Washington, DC 20240 Phone: 202 208-6545 Cell: 202 359-2712 Fax: 202 219-1792 Laura.Brown@sol.doi.gov Excellence - Integrity - Service This e-mail (including attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying or use of the e-mail or its contents is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. Thank you. Label: "SOL-2018-87/89" Created by:jack.haugrud@sol.doi.gov Total Messages in label:506 (200 conversations) Created: 03-16-2018 at 13:22 PM Conversation Contents Twin Metals M-Opinion Attachments: /24. Twin Metals M-Opinion/1.1 2017.12.06 Twin Metals -- Draft Final Clean.docx /24. Twin Metals M-Opinion/5.1 2017.12.07 Twin Metals -- Draft Final Clean + bwc (OGC).docx /24. Twin Metals M-Opinion/6.1 2017.12.07 Twin Metals -- Draft Final Clean + bwc (OGC).docx /24. Twin Metals M-Opinion/12.1 2017.12.08 Twin Metals -- Draft Final Clean.docx /24. Twin Metals M-Opinion/12.2 2017.12.08 Twin Metals -- Draft Final Redline with OGC response.docx /24. Twin Metals M-Opinion/16.1 2017.12.08 Twin Metals -- Draft Final Clean.docx /24. Twin Metals M-Opinion/17.1 2017.12.08 Twin Metals -- Draft Final Clean.docx /24. Twin Metals M-Opinion/18.1 2017.12.08 Twin Metals -- Draft Final Clean.docx "Haugrud, Kevin" From: Sent: To: CC: Subject: Attachments: "Haugrud, Kevin" Thu Dec 07 2017 09:48:10 GMT-0700 (MST) Daniel Jorjani Karen Hawbecker , Gary Lawkowski , Briana Collier , Richard McNeer , Mariagrazia Caminiti Twin Metals M-Opinion 2017.12.06 Twin Metals -- Draft Final Clean.docx Dan: Attached is the proposed final M-Opinion that would reverse and withdraw M-37036. Jack Daniel Jorjani From: Sent: To: CC: Subject: Daniel Jorjani Thu Dec 07 2017 10:05:15 GMT-0700 (MST) "Haugrud, Kevin" Karen Hawbecker , Gary Lawkowski , Briana Collier , Richard McNeer , Mariagrazia Caminiti Re: Twin Metals M-Opinion Thank you. Sent from my iPhone On Dec 7, 2017, at 11:48 AM, Haugrud, Kevin wrote: Dan: Attached is the proposed ?nal M-Opinion that would reverse and withdraw M- 37036. Jack <2017.12.06 Twin Metals -- Draft Final Clean.docx> "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Thu Dec 07 2017 11:20:37 GMT-0700 (MST) To: Daniel Jorjani Karen Hawbecker Gary Lawkowski Briana Collier CC: Richard McNeer Mariagrazia Caminiti Subject: Re: Twin Metals M-Opinion Dan: We iust dot comments from USDA that we're reviewino. On Thu, Dec 7, 2017 at 12:05 PM, Daniel Jorjani wrote: Thank you. Sent from my iPhone On Dec 7, 2017, at 11:48 AM, Haugrud, Kevin wrote: Dan: Attached is the proposed ?nal M-Opinion that would reverse and withdraw M-37036. Jack <2017.12.06 Twin Metals Draft Final Clean.docx> Daniel Jorjani From: Daniel Jorjani Sent: Thu Dec 07 2017 12:22:15 GMT-0700 (MST) To: "Haugrud, Kevin" Karen Hawbecker Gary Lawkowski Briana Collier CC: Richard McNeer Mariagrazia Caminiti Subject: Re: Twin Metals M-Opinion Daniel H. Jorjani U.S. Department of the Interior Acting Solicitor Principal Deputy Solicitor Main Interior Building, Suite 6356 '202-219-3861 (Voice) 0 (Cell) daniel.'or'ani so .doi. ov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. Sent from my iPhone On Dec 7, 2017, at 1:20 PM, Haugrud, Kevin wrote: Dan: We iust got comments from USDA that we're reviewing. On Thu, Dec 7, 2017 at 12:05 PM, Daniel Jorjani wrote: Thank you. Sent from my iPhone On Dec 7, 2017, at 11:48 AM, Haugrud, Kevin wrote: Dan: Attached is the proposed ?nal M-Opinion that would reverse and withdraw M-37036. Jack <2017.12.06 Twin Metals -- Draft Final Clean.docx> "Collier, Briana" From: "Collier, Briana" Sent: Thu Dec 07 2017 17:12:46 GMT-0700 (MST) "Haugrud, Kevin" Karen Hawbecker To: Richard McNeer Subject: Re: Twin Metals M?Opinion Attachments: 2017.12.07 Twin Metals -- Draft Final Clean (OGC).docx All, Attached is the latest version of the M-Opinion ("2017.12.06 Twin Metals Draft Final Clean.docx") that Jack sent to Dan this morning, plus edits to accommodate some of USDA OGC's comments. now entitled "2017.12.07 Twin Metals Draft Final Clean I thought Please let me know if I can help with the ?nal push on this. Thankyou, Bnana Briana Collier Attorney-Adviser. Division of Mineral Resources U.S. Department of the Interior. Office of the Solicitor 505 Marquette Ave.. NW Ste.1800 Albuquerque. NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged. con?dential. or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient. you are hereby noti?ed that any dissemination. distribution. copying. or use of this email or its contents is strictly prohibited. If you received this email in error. please notify the sender immediately and destroy all copies. On Thu, Dec 7, 2017 at 12:22 PM, Daniel Jorjani wrote: 9 0 Daniel H. Jorjani U.S. Department of the my Interior Acting Solicitor Principal Deputy Solicitor Main Interior Building, Suite 6356 (Voice) 0 202-706-9018 (Cell) sol.doi. ov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. Sent from my iPhone On Dec 7, 2017, at 1:20 PM, Haugrud, Kevin wrote: Dan: We iust dot comments from USDA that we're reviewino On Thu, Dec 7, 2017 at 12:05 PM, Daniel Jorjani wrote: Dan: Attached is the proposed ?nal M-Opinion that would reverse and withdraw M-37036. Jack <2017.12.06 Twin Metals -- Draft Final Clean.docx> "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Thu Dec 07 2017 17:24:01 GMT-0700 (MST) To: Gary Lawkowski Subject: Fwd: Twin Metals M-Opinion Attachments: 2017.12.07 Twin Metals -- Draft Final Clean (OGC).docx On Thu, Dec 7,2017 at 7:12 PM, Collier, Briana wrote: All, Attached is the latest version of the M-Opinion ("2017.12.06 Twin Metals -- Draft Final Clean.docx") that Jack sent to Dan this morning, plus edits to accommodate some of USDA OGC's comments, now entitled "2017.12.07 Twin Metals Draft Final Clean I thought Please let me know if I can help with the ?nal push on this. Thankyou, Bnana Briana Collier Attorney-Adviser. Division of Mineral Resources U.S. Department of the Interior. Of?ce of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged. con?dential. or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient. you are hereby noti?ed that any dissemination, distribution. copying. or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Thu, Dec 7, 2017 at 12:22 PM, Daniel Jorjani wrote: 0 Daniel H. Jorjani U.S. Department of the Interior Acting Solicitor Principal Deputy Solicitor Main Interior Building, Suite 6356 '202-219-3861 (Voice) 0 202-706-9018 (Cell) so .doi. ov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. 0 they?. Sent from my iPhone On Dec 7, 2017, at 1:20 PM, Haugrud, Kevin wrote: Dan: We iust got comments from USDA that we're reviewing. On Thu, Dec 7, 2017 at 12:05 PM, Daniel Jorjani wrote: Thank you. Sent from my iPhone On Dec 7, 2017, at 11:48 AM, Haugrud, Kevin wrote: Dan: Attached is the proposed ?nal M-Opinion that would reverse and withdraw M-37036. Jack <2017.12.06 Twin Metals -- Draft Final Clean.docx> "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Thu Dec 07 2017 17:24:46 GMT-0700 (MST) To: "Collier, Briana" Karen Hawbecker Richard CC: McNeer Gary Lawkowski Subject: Re: Twin Metals M-Opinion Thanks Briana. I'll take a look tonight. I also separately forwarded to Gary so he has it too. On Thu, Dec 7,2017 at 7:12 PM, Collier, Briana wrote: All, Attached is the latest version of the M-Opinion ("2017.12.06 Twin Metals -- Draft Final Cleandocx") that Jack sent to Dan this morning, plus edits to accommodate some of USDA OGC's comments, now entitled "2017.12.07 Twin Metals Draft Final Clean thouqht Please let me know if I can help with the ?nal push on this. Thankyou, B?ana Briana Collier Attorney-Adviser. Division of Mineral Resources US. Department of the Interior. Of?ce of the Solicitor 505 Marquette Ave.. NW Ste.1800 Albuquerque. NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, con?dential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient. you are hereby noti?ed that any dissemination, distribution. copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Thu, Dec 7, 2017 at 12:22 PM, Daniel Jorjani wrote: 0 Daniel H. Jorjani U.S. Department of the Interior Acting Solicitor Principal Deputy Solicitor Main Interior Building, Suite 6356 '202-219-3861 (Voice) 0 (Cell) daniel.'or'ani so .doi. ov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. Sent from my iPhone On Dec 7, 2017, at 1:20 PM, Haugrud, Kevin wrote: Dan: We iust dot comments from USDA that we're reviewino. On Thu, Dec 7, 2017 at 12:05 PM, Daniel Jorjani wrote: Thank you. Sent from my iPhone On Dec 7, 2017, at 11:48 AM, Haugrud, Kevin wrote: Dan: Attached is the proposed ?nal M-Opinion that would reverse and withdraw M-37036. Jack <2017.12.06 Twin Metals Draft Final Clean.docx> Karen Hawbecker From: Karen Hawbecker Sent: Fri Dec 08 2017 07:02:44 GMT-0700 (MST) To: "Haugrud, Kevin" "Collier, Briana" Richard McNeer CC: Gary Lawkowski Subject: Re: Twin Metals M-Opinion have reviewed the changes that Briana made in response to Pamela?s comments. I am okay with the changes, with the understanding that we?re waiting on Ag with regard to footnote 18. I will be leaving for a dental appointment shortly, but will check back as soon as return. Sent from my iPad On Dec 7, 2017, at 7:24 PM, Haugrud, Kevin wrote: Thanks Briana. I'll take a look tonight. I also separately forwarded to Gary so he has it too. On Thu, Dec 7, 2017 at 7:12 PM, Collier, Briana wrote: All, Attached is the latest version of the M-Opinion ("2017.12.06 Twin Metals -- Draft Final Cleandocx") that Jack sent to Dan this morning, plus edits to accommodate some of USDA OGC's comments, now entitled "2017.12.07 Twin Metals -- Draft Final Clean I thought Please let me know if I can help with the ?nal push on this. Thankyou, Bnana Briana Collier Attorney-Adviser. Division of Mineral Resources US. Department of the Interior. Office of the Solicitor 505 Marquette Ave.. NW Ste.1800 Albuquerque. NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged. confidential. or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient. you are hereby notified that any dissemination. distribution. copying. or use of this email or its contents is strictly prohibited. If you received this email in error. please notify the sender immediately and destroy all copies. On Thu, Dec 7, 2017 at 12:22 PM, Daniel Jorjani wrote: Daniel H. Jorjani U.S. Department of the Interior Acting Solicitor Principal Deputy Solicitor Main Interior Building, Suite 6356 '202-219-3861 (Voice) 0 202-706-9018 (Cell) so .doi. ov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. Sent from my iPhone On Dec 7, 2017, at 1:20 PM, Haugrud, Kevin wrote: Dan: We iust got comments from USDA that we're reviewing. On Thu, Dec 7, 2017 at 12:05 PM, Daniel Jorjani wrote: Thank you. Sent from my iPhone On Dec 7, 2017, at 11:48 AM, Haugrud, Kevin wrote: Dan: Attached is the proposed ?nal M-Opinion that would reverse and withdraw M-37036. Jack <2017.12.06 Twin Metals -- Draft Final Clean.docx> "Haugrud, Kevin" From: Sent To: CC: Subject: "Haugrud, Kevin" Fri Dec 08 2017 07:52:47 GMT-0700 (MST) Karen Hawbecker "Collier, Briana" Richard McNeer Gary Lawkowski Re: Twin Metals M-Opinion On Fri, Dec 8, 2017 at 9:02 AM, Karen Hawbecker wrote: I have reviewed the changes that Briana made in response to Pamela?s comments. I am okay with the changes, with the understanding that we?re waiting on Ag with regard to footnote 18. I will be leaving for a dental appointment shortly, but will check back as soon as return. Sent from my iPad On Dec 7,2017, at 7:24 PM, Haugrud, Kevin wrote: Thanks Briana. I'll take a look tonight. I also separately forwarded to Gary so he has it too. On Thu, Dec 7,2017 at 7:12 PM, Collier, Briana wrote: All, Attached is the latest version of the M-Opinion ("2017.12.06 Twin Metals -- Draft Final Cleandocx") that Jack sent to Dan this morning, plus edits to accommodate some of USDA OGC's comments, now entitled "2017.12.07 Twin Metals -- Draft Final Clean I thought Please let me know if I can help with the ?nal push on this. Thankyou, Bnana Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior. Of?ce of the Solicitor 505 Marquette Ave., NW Ste.1800 AlbuguergueI NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged. con?dential. or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error. please notify the sender immediately and destroy all copies. On Thu, Dec 7, 2017 at 12:22 PM, Daniel Jorjani wrote: Daniel H. Jorjani U.S. Department of the Interior Acting Solicitor Principal Deputy Solicitor Main Interior Building, Suite 6356 202-219-3861 (Voice) 0 202-706-9018 (Cell) sol.doi. ov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. Sent from my iPhone On Dec 7, 2017, at 1:20 PM, Haugrud, Kevin wrote: Dan: We iust dot comments from USDA that we're reviewind. On Thu, Dec 7, 2017 at 12:05 PM, Daniel Jorjani wrote: Thank you. Sent from my iPhone On Dec 7, 2017, at 11:48 AM, Haugrud, Kevin wrote: Dan: Attached is the proposed ?nal M-Opinion that would reverse and withdraw M-37036. Jack <2017.12.06 Twin Metals -- Draft Final Clean.docx> "Collier, Briana" From: "Collier, Briana" Sent: Fri Dec 08 2017 08:20:18 GMT-0700 (MST) To: "Haugrud, Kevin" Karen Hawbecker Richard CC: McNeer Gary Lawkowski Subject: Re: Twin Metals M-Opinion We have not yet heard back from OGC. This language is ?ne with me. I can send an email to run it by OGC now. Briana Collier Attorney-Adviser. Division of Mineral Resources US. Department of the Interior. Office of the Solicitor 505 Marquette Ave. NW Ste.1800 Albuquerque. NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged. con?dential. or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient. you are hereby noti?ed that any dissemination. distribution. copying. or use of this email or its contents is strictly prohibited. If you received this email in error. please notify the sender immediately and destroy all copies. On Fri. Dec 8, 2017 at 7:52 AM, Haugrud, Kevin wrote: On Fri, Dec 8, 2017 at 9:02 AM, Karen Hawbecker wrote: I have reviewed the changes that Briana made in response to Pamela?s comments. I am okay with the changes, with the understanding that we?re waiting on Ag with regard to footnote 18. I will be leaving for a dental appointment shortly, but will check back as soon as return. Sent from my iPad On Dec 7, 2017, at 7:24 PM, Haugrud, Kevin wrote: Thanks Briana. I'll take a look tonight. I also separately forwarded to Gary so he has it too. On Thu, Dec 7, 2017 at 7:12 PM, Collier, Briana wrote: All, Attached is the latest version of the M-Opinion ("2017.12.06 Twin Metals -- Draft Final Clean.docx") that Jack sent to Dan this morning, plus edits to accommodate some of USDA comments, now entitled "2017.12.07 Twin Metals -- Draft Final Clean thouoht Please let me know if I can help with the ?nal push on this. Thankyou, Bnana Briana Collier Attorney-Adviser. Division of Mineral Resources US. Department ofthe Interior. Of?ce of the Solicitor 505 Marquette Ave, NW Ste.1800 WW2 Phone: (202)208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged. con?dential. or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient. you are hereby noti?ed that any dissemination. distribution. copying. or use ofthis email or its contents is strictly prohibited. If you received this email in error. please notify the sender immediately and destroy all copies. On Thu, Dec 7, 2017 at 12:22 PM, Daniel Jorjani wrote: Daniel H. Jorjani U.S. Department of the Interior 7" Acting Solicitor Principal 3? Deputy Solicitor . . Main Interior Building, Suite 3 6356 '202-219-3861 (Voice) 0 202-706-9018 (Cell) This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. some Sent from my iPhone On Dec 7, 2017, at 1:20 PM, Haugrud, Kevin wrote: Dan: We iust dot comments from USDA that we're reviewing. On Thu, Dec 7, 2017 at 12:05 PM, Daniel Jorjani wrote: Thank you. Sent from my iPhone On Dec 7, 2017, at 11:48 AM, Haugrud, Kevin wrote: Dan: Attached is the proposed ?nal M-Opinion that would reverse and withdraw M-37036. Jack <2017.12.06 Twin Metals -- Draft Final Clean.docx> "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Fri Dec 08 2017 08:27:59 GMT-0700 (MST) To: "Collier, Briana" Karen Hawbecker Richard CC: McNeer Gary Lawkowski Subject: Re: Twin Metals M-Opinion On Fri, Dec 8, 2017 at 10:20 AM, Collier, Briana wrote: We have not yet heard back from OGC. This language is ?ne with me. I can send an email to run it by OGC now. Briana Collier Attorney-Adviser. Division of Mineral Resources US. Department of the Interior. Of?ce of the Solicitor 505 Marquette Ave.. NW Ste.1800 Albuquerque. NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use ofthe individual or entity to which it is addressed. It may contain information that is privileged. confidential. or othemise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient. you are hereby noti?ed that any dissemination. distribution. copying. or use of this email or its contents is strictly prohibited. If you received this email in error. please notify the sender immediately and destroy all copies. On Fri. Dec 8. 2017 at 7:52 AM. Hauqrud. Kevin wrote: On Fri, Dec 8, 2017 at 9:02 AM, Karen Hawbecker wrote: I have reviewed the changes that Briana made in response to Pamela?s comments. I am okay with the changes, with the understanding that we?re waiting on Ag with regard to footnote 18. I will be leaving for a dental appointment shortly, but will check back as soon as return. Sent from my iPad On Dec 7, 2017, at 7:24 PM, Haugrud, Kevin wrote: Thanks Briana. I'll take a look tonight. I also separately forwarded to Gary so he has it too. On Thu, Dec 7, 2017 at 7:12 PM, Collier, Briana wrote: All, Attached is the latest version of the M-Opinion ("2017.12.06 Twin Metals -- Draft Final Clean.docx") that Jack sent to Dan this morning, plus edits to accommodate some of USDA OGC's comments, now entitled "2017.12.07 Twin Metals -- Draft Final Clean thouaht Please let me know if I can help with the ?nal push on this. Thankyou, Bnana Briana Collier Attorney-Adviser. Division of Mineral Resources US. Department of the Interior. Of?ce of the Solicitor 505 Marquette Ave.. NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged. confidential. or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient. you are hereby noti?ed that any dissemination. distribution. copying. or use of this email or its contents is strictly prohibited. If you received this email in error. please notify the sender immediately and destroy all copies. On Thu, Dec 7, 2017 at 12:22 PM, Daniel Jorjani wrote: 0 Daniel H. Jorjani U.S. Department of the De Interior Acting Solicitor Principal Deputy Solicitor Main Interior Building, Suite 6356 202-219-3861 (Voice) 0 202M (Cell) daniel.'or'ani sol.doi. ov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. 5.5 S. Sent from my iPhone On Dec 7, 2017, at 1:20 PM, Haugrud, Kevin wrote: Dan: We iust qot comments from USDA that we're reviewing. On Thu, Dec 7, 2017 at 12:05 PM, Daniel Jorjani wrote: Thank you. Sent from my iPhone On Dec 7, 2017, at 11:48 AM, Haugrud, Kevin wrote: Dan: Attached is the proposed ?nal M-Opinion that would reverse and withdraw M-37036. Jack <2017.12.06 Twin Metals -- Draft Final Clean.docx> "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Fri Dec 08 2017 10:19:05 GMT-0700 (MST) To: Daniel Jorjani Mariagrazia Caminiti Karen Hawbecker Gary Lawkowski CC: Richard McNeer Briana Collier Subject: Twin Metals M-Opinion Attachments_ 2017.12.08 Twin Metals -- Draft Final Cleandocx 2017.12.08 Twin Metals -- Draft Final Redline with OGC responsedocx Dan: Attached is the proposed Twin Metals? M-Opinion. have also attached a redline version that shows the changes we made in resoonse to F8 comments. There are not manv revisions. Most are edits to ac CC arigrace, riana, aren, ary, IC ar "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Fri Dec 08 2017 10:39:48 GMT-0700 (MST) To: "Haugrud, Kevin" "Collier, Briana" Richard McNeer CC: Gary Lawkowski Subject: Re: Twin Metals M-Opinion I'm back from the dentist and I just want to let you know that I like the footnote 18 language you used and the change to the "United States'" right to impose new terms. On Fri, Dec 8, 2017 at 10:27 AM, Hauqrud, Kevin wrote: On Fri, Dec 8, 2017 at 10:20 AM, Collier, Briana wrote: We have not yet heard back from OGC. This language is ?ne with me. I can send an email to run it by OGC now. Briana Collier Attorney-Adviser. Division of Mineral Resources US. Department of the Interior. Office of the Solicitor 505 Marquette Ave. NW Ste.1800 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged. con?dential. or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient. you are hereby noti?ed that any dissemination. distribution. copying. or use of this email or its contents is strictly prohibited. If you received this email in error. please notify the sender immediately and destroy all copies. On Fri. Dec 8. 2017 at 7:52 AM, Haugrud, Kevin wrote: On Fri, Dec 8, 2017 at 9:02 AM, Karen Hawbecker wrote: I have reviewed the changes that Briana made in response to Pamela?s comments. I am okay with the changes, with the understanding that we?re waiting on Ag with regard to footnote 18. I will be leaving for a dental appointment shortly, but will check back as soon as I return. Sent from my iPad On Dec 7, 2017, at 7:24 PM, Haugrud, Kevin wrote: Thanks Briana. I'll take a look tonight. I also separately forwarded to Gary so he has it too. On Thu, Dec 7,2017 at 7:12 PM, Collier, Briana wrote: All, Attached is the latest version of the M-Opinion ("2017.12.06 Twin Metals Draft Final Cleandocx") that Jack sent to Dan this morning, plus edits to accommodate some of USDA OGC's comments, now entitled "2017.12.07 Twin Metals - Draft Final Clean I thought Please let me know if I can help with the ?nal push on this. Thankyou, Bnana Briana Collier Attorney-Adviser. Division of Mineral Resources U.S. Department of the Interior. Of?ce of the Solicitor 505 Marquette Ave. NW Ste.1800 Albuquerque. NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged. con?dential. or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient. you are hereby noti?ed that any dissemination. distribution. copying. or use of this email or its contents is strictly prohibited. If you received this email in error. please notify the sender immediately and destroy all copies. On Thu, Dec 7, 2017 at 12:22 PM, Daniel Jorjani wrote: 0 Daniel H. Jorjani U.S. Department of the Interior Acting Solicitor Principal Deputy Solicitor Main Interior Building, Suite 6356 '202-219-3861 (Voice) 0 202-706-9018 (Cell) daniel.'or'ani sol.doi. ov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. Sent from my iPhone On Dec 7, 2017, at 1:20 PM, Haugrud, Kevin wrote: Dan: We just got comments from USDA that we're reviewing. On Thu, Dec 7, 2017 at 12:05 PM, Daniel Jorjani wrote: Thank you. Sent from my iPhone On Dec 7, 2017, at 11:48 AM, Haugrud, Kevin wrote: Dan: Attached is the proposed ?nal M- Opinion that would reverse and withdraw M- 37036. Jack <2017.12.06 Twin Metals Draft Final Clean.docx> "Haugrud, Kevin" From: "Haugrud, Kevin" Sent: Fri Dec 08 2017 10:41 :21 GMT-0700 (MST) To: "Hawbecker, Karen" Subject: Re: Twin Metals M-Opinion Keep reading. It gets more aggravating. On Fri, Dec 8, 2017 at 12:39 PM, Hawbecker, Karen wrote: I'm back from the dentist and Ijust want to let you know that I like the footnote 18 language you used and the change to the "United States'" right to impose new terms. On Fri, Dec 8, 2017 at 10:27 AM, Haugrud, Kevin wrote: On Fri, Dec 8, 2017 at 10:20 AM, Collier, Briana wrote: We have not yet heard back from OGC. This language is ?ne with me. I can send an email to run it by OGC now. Briana Collier Attorney-Adviser. Division of Mineral Resources US. Department of the Interior. Of?ce of the Solicitor 505 Marquette Ave. NW Ste.1800 Albuquerque, NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged. con?dential. or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient. you are hereby noti?ed that any dissemination. distribution. copying. or use of this email or its contents is strictly prohibited. If you received this email in error. please notify the sender immediately and destroy all copies. On Fri, Dec 8, 2017 at 7:52 AM, Haugrud, Kevin wrote: On Fri, Dec 8, 2017 at 9:02 AM, Karen Hawbecker wrote: I have reviewed the changes that Briana made in response to Pamela?s comments. I am okay with the changes, with the understanding that we?re waiting on Ag with regard to footnote 18. I will be leaving for a dental appointment shortly, but will check back as soon as return. Sent from my iPad On Dec 7, 2017, at 7:24 PM, Haugrud, Kevin wrote: Thanks Briana. I'll take a look tonight. I also separately fonNarded to Gary so he has it too. On Thu, Dec 7, 2017 at 7:12 PM, Collier, Briana wrote: All, Attached is the latest version of the M-Opinion ("2017.12.06 Twin Metals -- Draft Final Clean.docx") that Jack sent to Dan this morning, plus edits to accommodate some of USDA OGC's comments, now entitled "2017.12.07 Twin Metals -- Draft Final Clean I thought Please let me know if I can help with the ?nal push on this. Thankyou, Bhana Briana Collier Attorney-Adviser. Division of Mineral Resources U.S. Department of the Interior. Office of the Solicitor 505 Marquette Ave, NW Ste.1800 Albuquerque. NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged. confidential. or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient. you are hereby notified that any dissemination. distribution. copying. or use of this email or its contents is strictly prohibited. If you received this email in error. please notify the sender immediately and destroy all copies. On Thu, Dec 7, 2017 at 12:22 PM, Daniel Jorjani wrote: 0 0 Daniel H. Jorjani U.S. Department of the Interior Acting Solicitor Principal Deputy Solicitor Main Interior Building, Suite 6356 '202-219-3861 (Voice) 0 202-706-9018 (Cell) daniel.'or'ani so .doi. ov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. Sent from my iPhone On Dec 7, 2017, at 1:20 PM, Haugrud, Kevin wrote: Dan: We just got comments from USDA that we're reviewing. On Thu, Dec 7, 2017 at 12:05 PM, Daniel Jorjani wrote: Thank you. Sent from my iPhone On Dec 7, 2017, at 11:48 AM, Haugrud, Kevin wrote: Dan: Attached is the proposed ?nal M- Opinion that would reverse and withdraw M- 37036. Jack <2017.12.06 Twin Metals -- Draft Final Clean.docx> "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Fri Dec 08 2017 10:42:01 GMT-0700 (MST) To: "Haugrud, Kevin" Subject: Re: Twin Metals M-Opinion Okay. Sorry to hear it. On Fri, Dec 8, 2017 at 12:41 PM, Haugrud, Kevin wrote: Keep reading. It gets more aggravating. On Fri, Dec 8, 2017 at 12:39 PM, Hawbecker, Karen wrote: I'm back from the dentist and I just want to let you know that I like the footnote 18 language you used and the change to the "United States'" right to impose new terms. On Fri, Dec 8, 2017 at 10:27 AM. Hauqrud, Kevin wrote: On Fri, Dec 8, 2017 at 10:20 AM, Collier, Briana wrote: We have not yet heard back from 060. This language is ?ne with me. I can send an email to run it by OGC now. Briana Collier Attorney-Adviser. Division of Mineral Resources US Department of the Interior. Of?ce ofthe Solicitor 505 Marquette Ave.. NW Ste.1800 Albuquerque. NM 87102 Phone: (202,) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged. con?dential. or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby noti?ed that any dissemination. distribution. copying, or use of this email or its contents is strictly prohibited. If you received this email in error. please notify the sender immediately and destroy all copies. On Fri, Dec 8, 2017 at 7:52 AM, Hauqrud, Kevin wrote: On Fri, Dec 8, 2017 at 9:02 AM, Karen Hawbecker wrote: I have reviewed the changes that Briana made in response to Pamela?s comments. I am okay with the changes, with the understanding that we?re waiting on Ag with regard to footnote 18. I will be leaving for a dental appointment shortly, but will check back as soon as I return. Sent from my iPad On Dec 7, 2017, at 7:24 PM, Haugrud, Kevin wrote: Thanks Briana. I'll take a look tonight. I also separately forwarded to Gary so he has it too. On Thu, Dec 7, 2017 at 7:12 PM, Collier, Briana wrote: All, Attached is the latest version of the M-Opinion ("2017.12.06 Twin Metals -- Draft Final Cleandocx") that Jack sent to Dan this morning, plus edits to accommodate some of USDA OGC's comments, now entitled "2017.12.07 Twin Metals - Draft Final Clean lthought Please let me know if I can help with the ?nal push on this. Thankyou, Bnana Briana Collier Attorney-Adviser. Division of Mineral Resources U.S. Department of the Interior. Of?ce of the Solicitor 505 Marquette Ave. NW Ste.1800 Albuquerque. NM 87102 Phone: (202) 208-4853 This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged. con?dential. or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient. you are hereby noti?ed that any dissemination. distribution. copying. or use of this email or its contents is strictly prohibited. If you received this email in error. please notify the sender immediately and destroy all copies. On Thu, Dec 7, 2017 at 12:22 PM, Daniel Jorjani wrote: 0 Daniel H. Jorjani U.S. Department of the Interior Acting Solicitor Principal Deputy Solicitor Main Interior Building, Suite 6356 '202-219-3861 (Voice) 0 202-706-9018 (Cell) daniel.'or'ani sol.doi. ov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. Sent from my iPhone On Dec 7, 2017, at 1:20 PM, Haugrud, Kevin wrote: Dan: We just got comments from USDA that we're reviewinq. On Thu, Dec 7, 2017 at 12:05 PM, Daniel Jorjani wrote: Thank you. Sent from my iPhone On Dec 7, 2017, at 11:48 AM, Haugrud, Kevin wrote: Dan: Attached is the proposed ?nal M- Opinion that would reverse and withdraw M-37036. Jack <2017.12.06 Twin Metals Draft Final Clean.docx> "Jorjani, Daniel" From: Sent: To: CC: Subject: Attachments: "Jorjani, Daniel" Wed Dec 20 2017 12:30:24 GMT-0700 (MST) Todd Wynn Kevin Haugrud , Todd Willens Fwd: Twin Metals M-Opinion 2017.12.08 Twin Metals -- Draft Final Clean.docx Todd Wynn - Per your request, attached. "Jorjani, Daniel" From: Sent: To: CC: Subject: Attachments: "Jorjani, Daniel" Wed Dec 20 2017 12:36:35 GMT-0700 (MST) "Newell, Russell" Kevin Haugrud , Gary Lawkowski Fwd: Twin Metals M-Opinion 2017.12.08 Twin Metals -- Draft Final Clean.docx fyi ---------- Forwarded message ---------From: Jorjani, Daniel Date: Wed, Dec 20, 2017 at 2:30 PM Subject: Fwd: Twin Metals M-Opinion To: Todd Wynn Cc: Kevin Haugrud , Todd Willens Todd Wynn - Per your request, attached. "Haugrud, Kevin" From: Sent: To: CC: Subject: Attachments: "Haugrud, Kevin" Wed Dec 20 2017 12:50:51 GMT-0700 (MST) Brian Steed , Michael Nedd , "Leverette, Mitchell" Karen Hawbecker Fwd: Twin Metals M-Opinion 2017.12.08 Twin Metals -- Draft Final Clean.docx Attorney Client Communication Attorney Work Product Predecisional DO NOT RELEASE Brian. Mike, Mitch - Attached is a draft M-Opinion that "Wynn, Todd" From: "Wynn, Todd" Sent: Thu Dec 21 2017 07:02:14 GMT-0700 (MST) To: "Jorjani, Daniel" cc: Kevin Haugrud Todd Willens Subject: Re: Twin Metals M?Opinion Thank What time will it be live and posted tomorrow? On Wed, Dec 20, 2017 at 2:30 PM, Jorjani, Daniel wrote: Todd - Per your request, attached. Todd M. Director of the Of?ce of Intergovernmental and External Affairs Of?ce of the Secretary US. Department of the Interior Desk: (202) 208-6649 Cell: NOTE: Every email I send or receive is subject to release under the Freedom of Information Act. "Jorjani, Daniel" From: "Jorjani, Daniel" Sent: Thu Dec 21 2017 07:04:05 GMT-0700 (MST) To: "Wynn, Todd" cc: Kevin Haugrud Todd Willens Subject: Re: Twin Metals M-Opinion Signed mid-afternoon Friday and posted late afternoon Friday. Daniel H. Jorjani Principal Deputy Solicitor U.S. Department of the Interior Main Interior Building, Suite 6356 ' 202-219-3861 (Voice) 202-706-9018 (Cell) daniel.jorjani@sol.doi.gov This electronic message contains informa ion generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. On Thu, Dec 21, 2017 at 9:02 AM, Wynn, Todd wrote: Thank you!!! What time will it be live and posted tomorrow? On Wed, Dec 20, 2017 at 2:30 PM, Jorjani, Daniel wrote: Todd Wynn - Per your request, attached. -Todd M. Wynn Director of the Office of Intergovernmental and External Affairs Office of the Secretary U.S. Department of the Interior Desk: (202) 208-6649 Cell: ((b) (6) NOTE: Every email I send or receive is subject to release under the Freedom of Information Act. "Wynn, Todd" From: Sent: To: CC: Subject: "Wynn, Todd" Thu Dec 21 2017 07:05:56 GMT-0700 (MST) "Jorjani, Daniel" Kevin Haugrud , Todd Willens Re: Twin Metals M-Opinion Thank you! Todd On Thu, Dec 21, 2017 at 9:04 AM, Jorjani, Daniel wrote: Signed mid-afternoon Friday and posted late afternoon Friday. Daniel H. Jorjani Principal Deputy Solicitor U.S. Department of the Interior Main Interior Building, Suite 6356 ' 202-219-3861 (Voice) 202-706-9018 (Cell) daniel.jorjani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete he email immediately. On Thu, Dec 21, 2017 at 9:02 AM, Wynn, Todd wrote: Thank you!!! What time will it be live and posted tomorrow? On Wed, Dec 20, 2017 at 2:30 PM, Jorjani, Daniel wrote: Todd Wynn - Per your request, attached. -Todd M. Wynn Director of the Office of Intergovernmental and External Affairs Office of the Secretary U.S. Department of the Interior Desk: (202) 208-6649 Cell: (b) (6) NOTE: Every email I send or receive is subject to release under the Freedom of Information Act. -Todd M. Wynn Director of the Office of Intergovernmental and External Affairs Office of the Secretary U.S. Department of the Interior Desk: (202) 208-6649 Cell: (b) (6) NOTE: Every email I send or receive is subject to release under the Freedom of Information Act.