62-CV-19-4626

Filed in District Court
State of Minnesota
1/17/2020 10:44 AM

STATE OF MINNESOTA

DISTRICT COURT

COUNTY OF RAMSEY

SECOND JUDICIAL DISTRICT
Case Type: Civil/Misc.

)
In the Matter of the Denial of Contested Case
)
Hearing Requests and Issuance of National
)
Pollutant Discharge Elimination System/State
)
Disposal System Permit No. MN0071013 for the )
Proposed NorthMet Project St. Louis County Hoyt )
Lakes and Babbitt Minnesota
)
)

Case No. 62-cv-19-4626
RESPONSE OF STAR TRIBUNE
MEDIA COMPANY LLC AND
MINNPOST TO POLY MET MINING,
INC.’S OBJECTION TO
VIDEO/AUDIO REQUEST

Pursuant to Rule 4 of the Minnesota General Rules of Practice, Star Tribune Media
Company LLC and MinnPost (collectively, the “Media”) submitted notices on January 6 and 9,
2020, respectively, of their plans to use visual and audio recording equipment in covering an
evidentiary hearing in the above-captioned case. Rule 4.02 makes clear that the Court may
authorize such visual and audio recording even if the parties do not consent.
On January 15, 2020, Poly Met Mining, Inc. (“PolyMet”) objected to these requests. Its
objection is based entirely on speculative, conclusory—even illogical—assertions that could be
made in every case. Those assertions fly in the face of the Supreme Court’s policy determination
that allowing visual and audio coverage of court proceedings advances the interests of
democracy and judicial administration and, if widely accepted, PolyMet’s assertions would
render Rule 4.02(c) a dead letter.
PolyMet has not identified a single, legitimate reason why it or this matter deserve
special treatment. Indeed, the only exceptional thing about the upcoming evidentiary hearing is
that it will address a matter of significant public interest and concern—alleged collusion between
state and federal agencies to suppress concerns over PolyMet’s water pollution permit. This is
the reason to allow enhanced coverage, not prohibit it. This Court should overrule PolyMet’s
objection.

 62-CV-19-4626

Filed in District Court
State of Minnesota
1/17/2020 10:44 AM

ARGUMENT
I.

Rule 4.02 Permits This Court to Allow Visual and Audio Recording of the
Evidentiary Hearing.
Under the Minnesota General Rules of Practice, this Court “may authorize, without the

consent of all parties, the visual or audio recording” of a civil proceeding. Minn. Gen. R. Prac.
4.02(c). The plain wording of Rule 4.02(c) thus gives this Court authority to allow visual or
audio recording of the evidentiary hearing for news reporting purposes, subject to the conditions
set forth in the Rule. PolyMet’s initial argument is to obliquely suggest that the evidentiary
hearing is not a “civil proceeding. See Obj. at 2 (“Even if the exception governing ‘civil
proceedings’ applies …”); id. at 3 (same). But saying that doesn’t make it so. This is a civil case
and the evidentiary hearing is a civil proceeding and, as a result, this Court “may authorize”
members of the public and the media to record the proceedings subject to the discrete conditions
set forth in the Rule.1
II.

PolyMet’s objection lacks any basis in law or fact and is contrary to the policies
underlying Rule 4.02(c).
PolyMet raises three arguments why the Court should deny the Media’s requests. First it

argues that media coverage “would likely adversely affect the behavior of the lawyers and
witnesses, thereby inhibiting the Court’s ability to expeditiously conduct the hearing and focus
on the limited issues remanded by the court of appeals.” Obj. at 3. Second, it argues that
“[a]llowing audio and visual recordings would also increase the chance that the proceedings of
the evidentiary hearing will be misconstrued by the media and in front of the court of appeals”
because “snippets of audio recordings can easily be cherry-picked and publicized without
context.” Id. Third, it argues that neither the public nor the Media “will be prejudiced by not

1

The Media note that witnesses Brad Moore and Christie Kearney have objected to being recorded and
acknowledge that they must abide by their wishes. See Minn. R. Gen. Prac. 4.02(c)(ii); Obj. at 3, n.4.

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 62-CV-19-4626

Filed in District Court
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having audio and visual recordings of the hearing” because there will be a written transcript of
the evidentiary hearing that is “accurate” and “non-biased.” Id. None of these arguments deserve
credence.
First, PolyMet provides no support for its speculative, conclusory assertion that the
presence of recording devices will affect the behavior of lawyers and witnesses, much less
adversely so or in a way that slows the administration of justice. Moreover, this concern
theoretically exists in every case, yet was not sufficient to dissuade the Supreme Court from
adopting Rule 4.02—rather the Court concluded that the benefits of visual and audio recording
outweigh its potential pitfalls. Further, other courts, in equally high-profile matters have allowed
cameras despite the possibility that it will affect the behavior of trial participants. See, e.g., Order
Regarding Audio/Video Coverage of Sentencing, State v. Noor, 27-CR-18-6859 (June 3, 2019)
(allowing visual and audio recording at sentencing of former police officer Mohamed Noor, who
was convicted of third-degree murder arising from an on-duty shooting), available at
http://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR-186859/OrderReAVCoverageofSentencing060319.pdf. PolyMet has not and cannot identify
anything unique about this case that might cause attorneys or witnesses to be especially affected
by the presence of recording equipment.
Second, PolyMet’s argument that visual and audio recordings will cause the proceedings
to be “misconstrued” and “cherry-picked” not only is speculative but also is so illogical that,
coming from PolyMet’s sophisticated counsel, strikes the Media as unconscionable. Reporters
are fast writers and good note takers. But obviously a complete, incontrovertible recording of the
proceedings is the best way to ensure accurate reports about them. As Star Tribune’s managing
editor put it in a news report about of PolyMet’s objection, “I am befuddled by the company’s

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 62-CV-19-4626

Filed in District Court
State of Minnesota
1/17/2020 10:44 AM

argument that recordings could lead to inaccurate coverage. Our experience is that recorded
coverage actually helps us more accurately convey the evidence and arguments being presented
and discussed in court.”2 PolyMet gives no explanation for how news coverage based on video
and audio recordings is more likely to be misconstrued than coverage based on the recollection
of reporters hurriedly scribbling and attempting to paraphrase witnesses’ statements and
counsels’ arguments.
As for “cherry-picking,” using this derogatory term suggests PolyMet and its counsel not
only disrespect the press but fundamentally misunderstand their role in helping the public
understand issues of public interest and concern. Obviously, the Media need to summarize the
days-long hearing for its readers and to focus on the most salient points. Not everything the
hearing participants say will make it into the Media’s final news reports, but that is true whether
the Media rely on their notes, a transcript, or a recording. As the Supreme Court recently
explained in approving a pilot program for electronic recording at criminal sentencings, “the
potential for prejudicial media coverage is not eliminated simply because electronic coverage is
excluded from the courtroom,” and “limiting electronic coverage . . . to the images captured and
the statements delivered outside the courtroom” is no way to “foster public confidence in the
sound and fair administration of justice.” See Order Promulgating Amendments to the Minn.
Gen. Rules of Practice, 2015 WL 6467107 (“Promulgating Order”), at *23 (Minn. 2015)
(emphasis added).
Third and finally, PolyMet’s conclusory argument that the Media will not be prejudiced
because—at some point (it does not say when)—a transcript of the proceedings will be made

2

Jennifer Bjorhus, PolyMet objects to cameras and recording at permit hearing, fearing ‘viral media
moments,’ Star Tribune (Jan. 16, 2020), http://www.startribune.com/polymet-objects-to-cameras-andrecording-at-permit-hearing-fearing-viral-media-moments/567022972/.

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 62-CV-19-4626

Filed in District Court
State of Minnesota
1/17/2020 10:44 AM

available defies law and logic. A picture, so the saying goes, is worth a thousand words, and a
transcript is no replacement for the tone of voice, body language, and facial expressions that only
in-person observation or recording equipment can fully capture. Surely PolyMet understands
this—after all, it is planning to call live witnesses, not rely on deposition transcripts. Further,
same-day transcripts of the proceedings likely will not be available the Media—at least not
without significant cost—and the suggestion that delayed transcripts are somehow equivalent to
contemporaneous recording ignores well-established law. See, e.g., Richmond Newspapers, Inc.
v. Virginia, 448 U.S. 555, 592 (1980) (Brennan, J., concurring) (“contemporaneous review in the
forum of public opinion is an effective restraint on the possible abuse of judicial power”);
Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 560-61 (1976) (recognizing that “[d]elays
imposed by governmental authority” are inconsistent with the press’ “traditional function of
bringing news to the public promptly”); Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24
F.3d 893, 897 (7th Cir. 1994) (access to court documents “should be immediate and
contemporaneous”); Republic of the Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 664
(3d Cir. 1991) (“the public interest encompasses the public’s ability to make a contemporaneous
review of the basis of an important decision of the district court”); Washington Post v. Robinson,
935 F.2d 282, 287 (D.C. Cir. 1991) (recognizing “the critical importance of contemporaneous
access . . . to the public’s role as overseer of the criminal justice process”); Valley Broad. Co. v.
United States Dist. Ct., 798 F.2d 1289, 1292 (9th Cir. 1986) (noting that because the media
“seeks to obtain the tapes for contemporaneous broadcast when presumably they will pack the
greatest punch, delay will prejudice its application in a way not correctable on appeal” (internal
marks omitted)); In re Cont’l Ill. Sec. Litig., 732 F.2d 1302, 1310 (7th Cir. 1984) (“[T]he
presumption of access [to court records] normally involves a right of contemporaneous access.”);

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 62-CV-19-4626

Filed in District Court
State of Minnesota
1/17/2020 10:44 AM

In re Application of Nat’l Broad. Co. (Myers), 635 F.2d 945, 952 (2d Cir. 1980) (“there is a
significant public interest in affording [opportunity to scrutinize evidence] contemporaneously . .
. when public attention is alerted to the ongoing trial”).
III.

The Court should not restrict the Media’s use of visual and audio recording beyond
the conditions set forth in Rule 4.02(c).
Finally, PolyMet urges the Court to only allow visual and audio recording during

“witness testimony, not during arguments of attorneys or during the Court’s administration of the
hearing or non-dispositive pre-hearing matters.” Obj. at 4. In support of this argument it cites
Rule 4.02(c)(v), which states that “during a jury trial, there shall be no visual or audio coverage
of hearings that take place outside the presence of the jury” and also that “[t]his provision does
not prohibit visual or audio coverage of appropriate pretrial hearings in civil proceedings, such as
hearings on dispositive motions.”
This argument turns Rule 4.02 on its head.
On its face, Rule 4.02 is more protective of witnesses than attorneys or judges: it allows
witnesses to opt out of being recorded (an option two of PolyMet’s witnesses have chosen to
exercise), but does not offer a similar choice to the attorneys or the judge. And for good reason,
as to judges in particular: “what transpires in the courtroom is public property” and the public is
entitled to know how publicly employed judges handle the administration of justice. Minneapolis
Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 202 (Minn. 1986) (quoting Craig v.
Harney, 331 U.S. 367, 374 (1947). In any event, under the interpretive canon expressio unius est
exclusio alterius, the Supreme Court’s decision to include a carve-out for witnesses but not for
attorneys and judges disposes of PolyMet’s argument. See State v. Caldwell, 803 N.W.2d 373,
383 (Minn. 2011) (applying an inference that any omissions in a statute are intentional).

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 62-CV-19-4626

Filed in District Court
State of Minnesota
1/17/2020 10:44 AM

Likewise, PolyMet’s reliance on Rule 4.02(c)(v) is misguided. That condition was
presumably adopted to protect the venire from learning about inadmissible evidence. However,
this is not a jury trial, as PolyMet acknowledges, and the Court is surely more than capable of
focusing on the official record and not what the Media reports. Indeed, even in a jury trial, in a
civil case, the Rule allows visual or audio coverage of pretrial hearings.
CONCLUSION
The public has an inherent interest in how controversies—even purely private disputes—
are resolved by taxpayer-funded courts. That interest is at its zenith where the controversy
involves broad public concerns that could have lasting effects on the local environment and
population, such as whether water pollution permits were mishandled in approving a mining
permit. In such matters, “[t]he crucial prophylactic aspects of the administration of justice cannot
function in the dark; no community catharsis can occur if justice is done in a corner [or] in any
covert manner.” Richmond Newspapers, 448 U.S. at 571 (internal quotation and citation
omitted); accord Schumacher, 392 N.W.2d at 204. The use of visual and audio recording
equipment in the courtroom, including during civil proceedings under Rule 4.02(c), serves a vital
democratic function by enhancing the transparency of judicial administration. PolyMet has failed
to advance any legitimate argument why the Media’s requests to use such equipment here should
be denied and the Court should therefore overrule its objection to those requests.

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 62-CV-19-4626

Date: January 17, 2020

BALLARD SPAHR LLP
s/ Leita Walker
Leita Walker (387095)
walkerl@ballardspahr.com
Christopher M. Proczko (392419)
proczkoc@ballardspahr.com
2000 IDS Center
80 South 8th Street
Minneapolis, MN 55402-2119
Telephone: 612.371.3211
Attorneys for Star Tribune Media Company
LLC and MinnPost

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Filed in District Court
State of Minnesota
1/17/2020 10:44 AM