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, Apr 23, 2018 at 12:55 PM, Merrill, Adam wrote: Briana and Ryan, The BLM has received QFRs from the Budget of?ce pertaining to the Superior National Forest withdrawal. See attached. Al Elser and I contacted Karen Hawbecker and she suggested that we reach out to you for your input. Because this is sensitive issue, we are interested in your thoughts on how to best answer these questions. Our responses are due tomorrow and are hoping to hear back from you, tomorrow morning. Adam Merrill Acting Deputy Chief Division of Solid Minerals (WC-320) Washington Of?ce (202) 912-7044 Forwarded message From: Muehl, Gregory Date: Mon, Apr 23, 2018 at 8:20 AM Subject: Fwd: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropriations DUE: April 24th To: Spisak Adam Merrill Alfred Elser 'Wells, Steven" , Michael Riches Justin Abernathy Lorenzo Trimble < trimb e blm. ov>, "McGinnis, Shelley" Jully McOuilliams <'mc uilliams blm. ov> All, We have received some QFRs on the Secretary's House Appropriations hearing; the are 5 related to minining/mineral withdrawal in the Superior National Forest and 1 on the Venting Flaring Rule (see McCoIlum Budget has requested these back by COB Tuesday (tomorrow); Tim Steve will need to see these before they are submitted. Thanks in advance! greg Forwarded message - From: Jackson, Tonya Date: Fri, Apr 20, 2018 at 4:46 PM Subject: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropriations DUE: April 24th To: "Bail, Kristin" gov>, Steve Tryon , "Bartholomew, Thomas" William Woody Cassie Sandberg Erick Kurkowski , Anzanette Randall Cc: Margaret Schneider gov Ann DeBlasi amdeblas blm. ov "Linda H. Smith" <1hsmith@.hlm.m> Lark Adams ?slamming? Molly Keating Good afternoon! WO-880 received the Secretary's Questions for the Record (QFRs) for the House Interior Appropriations hearing this afternoon. As in previous years, the Department has provided an extremely short turnaround window for bureaus to develop responses for review. In order to meet the Department's schedule, responses to the QFRs are due to by COB Tuesday, April 24th The QFRs are assigned to the directorates as follows: ?70-200 - Wild Horse and Burro, Greater Sage-Grouse, Native Plants/National Seed Strategy, Climate Change and Science, and Owyhee County - Law Enforcement - State Staf?ng Levels ?70-300 - Mineral Withdrawals Where the Committee requests updates to previously provided information, we have included the text of those cleared responses. Please use these as the basis for responding to the 2019 QFRs. Please let us know if we can assist you in any way. Respectfully, Tonya M. Jackson Bureau of Land Management Division of Budget (W 0?880) Of?ce: 202-912-7070 Mobile/Alternate Number: 202?779?0612 Fax: 202-912-7183 Email: Win39): disclosurebyap le law Ifyou are not the intended recipimt orthe employee or agnt responsible for of this e-mail tothe int recipient you arehereby noti?edthatanydisserninatio This email mdup??aattachments) lS intended for the addressee(s) only. It may contain information thatis con?dential, sensitievleaecl or othu'wise protected from Gregory Muehl Management Program Analyst Energy, Minerals Realty Management Directorate Bureau of land Management U. S. Department of the Interior Of?ce 202. 912. 7315 Mobile: 202.306.6113 "Winston, Beverly" From: 'Winston, Beveriy" Sent: Mon Apr 23 2018 13:47:10 GMT-0600 (MDT) To: "Merrill, Adam" Alfred Elser Ryan Sklar Karen Hawbecker "Collier, Briana" CC: Patrick Meagan Gins Kimberiy Finch Tonya Jackson Sub'ect' Re: URGENT: Questions for the Record - Secretary's hearing before House Interior I Appropriations DUE: April 24th Adam and Al, Please add the program perspective to answer those three questions and ship them to Kim Finch (cc'ing Meagan Gins). Thank you, Bev On Mon, Apr 23, 2018 at 3:27 PM, Collier, Briana wrote: Thanks Adam. Ryan and I both read the questions and just spoke to discuss what we think would be the best approach to answer them. We can draft answers to questions 68 and 69 regarding the consideration of economic and surface impacts. These answers will reference the currently on-going Forest Service NEPA review for the mineral withdrawal, as well as the future NEPA review the BLM would conduct before mining could occur in the area in question. However, questions 65, 66, and 67 are questions of pure policy. We would recommend that someone in BLM draft the answers to these questions. Perhaps Bev or someone else in 600 could draft these answers and you could have a policy person in BLM 100 review the answers? Also, do you know if these questions also went to the Department? Q67 in particular focuses on the Secretary's knowledge of and opinion on sul?de-ore mining. You may want to loop in someone from the Of?ce of the Secretary for this answer. Perhaps Bev (or another in 600) could work with her/his counterpart in OS Comms to answer Q67. I've copied Bev on this email. Ryan and are available to discuss if you would like to have a call on this. We are free until 4:30 ET, or between 5-6 ET. Let us know if you'd like to talk. Thanks very much. 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: (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. On Mon, Apr 23, 2018 at 12:55 PM, Merrill, Adam wrote: Briana and Ryan, The BLM has received QFRs from the Budget of?ce pertaining to the Superior National Forest withdrawal. See attached. Al Elser and I contacted Karen Hawbecker and she suggested that we reach out to you for your input. Because this is sensitive issue, we are interested in your thoughts on how to best answer these questions. Our responses are due tomorrow and are hoping to hear back from you, tomorrow morning. Adam Merrill Acting Deputy Chief Division of Solid Minerals (W0-320) Washington Of?ce (202) 912-7044 Forwarded message From: Muehl, Gregory Date: Mon, Apr 23, 2018 at 8:20 AM Subject: Fwd: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropriations DUE: April 24th To: Tim Spisak Adam Merrill Alfred Elser 'Wells, Steven" , Michael Riches , Justin Abernathy Lorenzo Trimble rtimble@blm. gov>, "McGinnis, Shelley" ,Jully McQuilliams All, We have received some QFRs on the Secretary?s House Appropriations hearing; the are 5 related to minining/mineral withdrawal in the Superior National Forest and 1 on the Venting Flaring Rule (see McCollum Budget has requested these back by COB Tuesday (tomorrow); Tim Steve will need to see these before they are submitted. Thanks in advance! greg Forwarded message From: Jackson, Tonya Date: Fri, Apr 20, 2018 at 4:46 PM Subject: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropriations DUE: April 24th To: "Bail, Kristin" Steve Tryon "Bartholomew, Thomas" , Timothy Spisak tspisak@blm. gov Steven Wells , Vl?lliam Woody , Erick Kurkowski , Anzanette Randall Delores Everett d<1everet@blm. gov Cc: Margaret Schneider gov>, Ann DeBlasi Lark Adams Molly Keating Good afternoon! W0-880 received the Secretary's Questions for the Record (QFRs) for the House Interior Appropriations hearing this afternoon. As in previous years, the Deparunent has provided an extremely short turnaround window for bureaus to develop responses for review. In order to meet the Department's schedule, responses to the QFRs are due to ?70-880 by COB Tuesday, April 24th. The QFRs are assigned to the directorates as follows: ?70-200 - Wild Horse and Burro, Greater Sage-Grouse, Native Plants/ National Seed Strategy, Climate Change and Science, and Owyhee County ?70-120 Law Enforcement ?70-700 State Staf?ng Levels ?70-300 Mineral Withdrawals Where the Committee requests updates to previously provided information, we have included the text of those cleared responses. Please use these as the basis for responding to the 2019 QFRs. Please let us know if we can assist you in any way. Respectfully, Tonya M. Jackson Bureau of Land Management Division of Budget (WC-880) Of?ce: 202-912-7070 Mobile/Alternate Number: 202-779-0612 Fax: 202-912-7183 Email: fortheaddrmeqs) only. It may contain information thatisdp rivileged, con?dmtial, mm protected from disclosurebyappli lelaw 'blefordp ofthise?mailtothein recipient,youare_hereby noti?edthatanydmeininau Gregory Muehl Management Program Analyst Energy, Minerals Realty Management Directorate (w0-3oo) Bureau of land Management US. Department of the Interior Of?ce: 202.912.7315 Mobile: 202.306.6113 Bev Winston Bureau of Land Management Communications 202-208-4602 bwinston@blm.gov "Wilkinson, Patrick" From: Sent To: CC: Subject: ?Wilkinson, Patrick" Tue Apr 24 2018 07:55:11 GMT-0600 (MDT) 'Winston, Beverly" "Merrill, Adam" Alfred Elser Ryan Sklar Karen Hawbecker "Collier, Briana" Meagan Gins Kimberly Finch Tonya Jackson Linda Smith Lark Adams "Ralston, Jill" Re: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropriations DUE: April 24th Any work on these should be directed back to the Budget Of?ce/880. 880 handles coordination/drafting/clearing of budget hearing QFRs from the Appropriations Committees. Patrick On Mon, Apr 23, 2018 at 3:47 PM, Winston, Beverly wrote: Adam and Al, Please add the program perspective to answer those three questions and ship them to Kim Finch (cc'ing Meagan Gins). Thank you, Bev On Mon, Apr 23, 2018 at 3:27 PM, Collier, Briana wrote: Thanks Adam. Ryan and I both read the questions and just spoke to discuss what we think would be the best approach to answer them. We can draft answers to questions 68 and 69 regarding the consideration of economic and surface impacts. These answers will reference the currently on-going Forest Service NEPA review for the mineral withdrawal, as well as the future NEPA review the BLM would conduct before mining could occur in the area in question. However, questions 65, 66, and 67 are questions of pure policy. We would recommend that someone in BLM draft the answers to these questions. Perhaps Bev or someone else in 600 could draft these answers and you could have a policy person in BLM 100 review the answers? Also, do you know if ?iese questions also went to the Department? Q67 in particular focuses on the Secretary's knowledge of and opinion on sul?de-ore mining. You may want to loop in someone from the Of?ce of the Secretary for this answer. Perhaps Bev (or another in 600) could work with her/his counterpart in OS Comms to answer 067. I've copied Bev on this email. Ryan and I are available to discuss if you would like to have a call on this. We are free until 4:30 ET, or between 5-6 ET. Let us know if you'd like to talk. Thanks very much. Briana Collier Attomey-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave. NW Ste_1800 A buguergue NM 87102 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 othenivise protected by applicable law. If you are not the intended recipient or the employee or agent respons ble 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 proh bited. If you received this email in error, please notify the sender immediately and destroy all copies. On Mon, Apr 23, 2018 at 12:55 PM, Merrill, Adam wrote: Briana and Ryan, The BLM has received QFRs from the Budget of?ce pertaining to the Superior National Forest withdrawal. See attached. Al Elser and I contacted Karen Hawbecker and she suggested that we reach out to you for your input. Because this is sensitive issue, we are interested in your thoughts on how to best answer these questions. Our responses are due tomorrow and are hoping to hear back from you, tomorrow morning. Adam Merrill Acting Deputy Chief Division of Solid Minerals (W0-320) Washington Of?ce (202) 912-7044 - Forwarded message From: Muehl, Gregory Date: Mon, Apr 23, 2018 at 8:20 AM Subject: Fwd: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropriations DUE: April 24th To: Tim Spisak t.sgisak@blm gov Adam Merrill , Alfred Elser aelser blm. ov>, "Wells, Steven" , Lorenzo Trimble "McGinnis, Shelley" Jully McQuilliams i All, We have received some QFRs on the Secretary's House Appropriations hearing; the are 5 related to minining/mineral withdrawal in the Superior National Forest and 1 on the Venting Flaring Rule (see McCollum Budget has requested these back by COB Tuesday (tomorrow); Tim Steve will need to see these before they are submitted. Thanks in advance! greg - Forwarded message From: Jackson, Tonya Date: Fri, Apr 20, 2018 at 4:46 PM Subject: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropriations DUE: April 24th To: "Bail, Kristin" k.bail@blm gov Steve Tryons st on blm. ov "Bartholomew, Thomas", Timothy Spisak tsgisak@blm. gov Steven Wells , Shelley McGinnis William Woody W2 Cassie Sandberg , Anzanette Randall Delores Everett Cc: Margaret Schneider Ann DeBlasi "Linda H. Smith" Lark Adams , Molly Keating Good afternoon! WO-880 received the Secretary's Questions for the Record (QFRs) for the House Interior Appropriations hearing this afternoon. As in previous years, the Department has provided an extremely short turnaround window for bureaus to develop responses for review. In order to meet the Department's schedule, responses to the QFRs are due to ?70-880 by COB Tuesday, April 24th. The QFRs are assigned to the directorates as follows: ??0-200 - Wild Horse and Burro, Greater Sage-Grouse, Native Plants/National Seed Strategy, Climate Change and Science, and Owyhee County ??0-120 - Law Enforcement ?70-700 - State Staf?ng Levels Mineral Withdrawals Where the Committee requests updates to previously provided information, we have included the text of those cleared responses. Please use these as the basis for responding to the 2019 QFRs. Please let us know if we can assist you in any way. Respectfully, Tonya M. Jackson Bureau of Land Management Division of Budget (W 0-880) Of?ce: 202?912-7070 Mobile/Alternate Number: 202-779-0612 Fax: 202-912-7183 Email: This email (including attachments)? is intended for the only. It may contain information that 15 ed, oon?datial, sensitiveI or otherwise protectedare from disclosure by applicable law. Ifyoudlsmo are not the intended recipientm or agnt rsponsible for of this e?mail to the intended recipient, noti?edthatanydisseminatio notifythe Gregory Muehl Management Program Analyst Energy, Minerals Realty Management Directorate O-3oo) Bureau of [and Management US. Department of the Interior Of?ce: 20 2 912. 7315 Mobile: 202 02.306.6113 Bev Winston Bureau of Land Management Communications 202-208-4602 bwinston@blm.gov Patrick Wilkinson US. Department of the Interior Bureau of Land Management Legislative Affairs Division (WO 620) Phone: (202) 912-7429 Fax: (202) 245-0050 "Merrill, Adam" From: "Merrill, Adam" Sent: Tue Apr 24 2018 07:59:04 GMT-0600 (MDT) To: 'Wilkinson, Patrick" 'Winston, Beveriy" Alfred Elser Ryan Sklar Karen Hawbecker CC: "Collier, Briana" Meagan Gins Kimberly Finch Tonya Jackson Linda Smith Lark Adams "Ralston, Jill" Sub' ct' Re: URGENT: Questions for the Record - Secretary's hearing before House Interior 1 Appropriations DUE: April 24th Will do. Adam Adam Merrill Acting Deputy Chief Division of Solid Minerals (WC-320) Washington Office (202) 912-7044 On Tue, Apr 24, 2018 at 9:55 AM, Vl?lkinson, Patrick wrote: Any work on these should be directed back to the Budget Of?ce/880. 880 handles coordina?on/drafting/clearing of budget hearing QFRs from the Appropriations Committees. Patrick On Mon, Apr 23, 2018 at 3:47 PM, Vl?nston, Beverly wrote: Adam and Al, Please add the program perspective to answer those three questions and ship them to Kim Finch (cc'ing Meagan Gins). Thank you, Bev On Mon, Apr 23, 2018 at 3:27 PM, Collier, Briana wrote: Thanks Adam. Ryan and I both read the questions and just spoke to discuss what we think would be the best approach to answer them. We can draft answers to questions 68 and 69 regarding the consideration of economic and surface impacts. These answers will reference the currently on-going Forest Service NEPA review for the mineral withdrawal, as well as the future NEPA review the BLM would conduct before mining could occur in the area in question. However, questions 65, 66, and 67 are questions of pure policy. We would recommend that someone in BLM draft the answers to these questions. Perhaps Bev or someone else in 600 could dra? these answers and you could have a policy person in BLM 100 review the answers? Also, do you know if these questions also went to the Department? Q67 in particular focuses on the Secretary's knowledge of and opinion on sut?de-ore mining. You may want to loop in someone from the Of?ce of the Secretary for this answer. Perhaps Bev (or another in 600) could work with her/his counterpart in OS Comms to answer 067. I've copied Bev on this email. Ryan and are available to discuss if you would like to have a call on this. We are free until 4:30 ET, or between 5-6 ET. Let us know if you'd like to talk. Thanks very much. Briana Collier Attomey-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: (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. On Mon, Apr 23, 2018 at 12:55 PM, Merrill, Adam wrote: Briana and Ryan, The BLM has received QFRs from the Budget of?ce pertaining to the Superior National Forest withdrawal. See attached. Al Elser and I contacted Karen Hawbecker and she suggested that we reach out to you for your input. Because this is sensitive issue, we are interested in your thoughts on how to best answer these questions. Our responses are due tomorrow and are hoping to hear back from you, tomorrow morning. Adam Merrill Acting Deputy Chief Division of Solid Minerals (WC-320) Washington Of?ce (202) 912-7044 Forwarded message From: Muehl, Gregory Date: Mon, Apr 23, 2018 at 8:20 AM Subject: Fwd: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropriations DUE: April 24th To: Tim Spisak Adam Merrill Alfred Elser , "Wells, Steven" , Michael Riches Justin Abernathy <'abemath blm. ov>, Lorenzo Trimble "McGinnis, Shelley" Jully McQuilliams All, We have received some QFRs on the Secretary's House Appropriations hearing; the are 5 related to minining/mineral withdrawal in the Superior National Forest and 1 on the Venting Flaring Rule (see McColIum Budget has requested these back by COB Tuesday (tomorrow); Tim Steve will need to see these before they are submitted. Thanks in advance! greg Forwarded message From: Jackson, Tonya Date: Fri, Apr 20, 2018 at 4:46 PM Subject: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropriations DUE: April 24th To: "Bail, Kristin" kbail@b m. gov>, Steve Tryon , "Bartholomew, Thomas" Timothy Spisak Steven Wells Gregory Muehl , Erick Kurkowski , Anzanette Randall Delores Everett Cc: Margaret Schneider Ann DeBlasi , "Linda H. Smith" Lark Adams Molly Keating Good afternoon! WO-BBO received the Secretary's Questions for the Record (QFRs) for the House Interior Appropriations hearing this afternoon. As in previous years, the Department has provided an extremely short turnaround window for bureaus to develop responses for review. In order to meet the Department's schedule, responses to the QFRs are due to ?70-880 by COB Tuesday, April 24th. The QFRs are assigned to the directorates as follows: ??0-200 - Wild Horse and Burro, Greater Sage-Grouse, Native Plants/ National Seed Strategy, Climate Change and Science, and Owyhee County WO-120 law Enforcement WO-7oo State Staf?ng Levels WO-3oo Mineral Withdrawals Where the Committee requests updates to previously provided information, we have included the text of those cleared responses. Please use these as the basis for responding to the 2019 QFRs. Please let us know ifwe can assist you in any way. Respectfully, Tonya M. Jackson Bureau of Land Management Division of Budget ONO-880) Of?ce: 202-912-7070 Mobile/Alternate Number: 202-779?0612 Fax: 202-912-7183 Email: protectedfromdischsureby cablelaw.1fyouare_notthe recipientorthe employeeoragentresponsr youarehereby Ifyouhavereoeivedthis alloopies. oryMuehl ement& Analyst Energy, Minerals Realty Management Directorate (WO-3oo) Bm-eau of land Management U. S. Department of the Interior O?oe: 202.912. 7315 Mobile: 202. 306. 6113 Bev WInston Bureau of Land Management Communications 202-208-4602 bwinston@blm.gov Patrick Wi kinson US. Department of the Interior Bureau of Land Management Legislative Affairs Division (W0 620) Phone: (202) 912-7429 Fax: (202) 245-0050 "Collier, Briana" From: "Collier, Briana" Sent: Tue Apr 24 2018 08:42:19 GMT-0600 (MDT) To: Karen Hawbecker CC: Ryan Sklar Subject: Fwd: Questions for the Record - Secretary?s hearing before House Interior Appropnatlons DUE: Apnl 24th Attachments: McCoIlum 065-69 Mineral Vlfithdrawal Superior National Forest SOL draft answers.docx Karen, FYI, these are the draft answers that Ryan and supplied to BLM for the Twin Metals QFRs. Adam Merrill said that he would send us the ?nished product for our information. I'll pass it along when get it. 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: (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. Forwarded message From: Collier, Briana Date: Tue, Apr 24, 2018 at 8:32 AM Subject: Re: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropriations DUE: April 24th To: "Merrill, Adam" Cc: "Sklar, 'Winston. Beve?y" Alfred Elser Thanks Adam. 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: (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. On Tue, Apr 24, 2018 at 8:25 AM, Merrill, Adam wrote: No problem. I'm sending the draft off to our budget office, momentarily. I suspect the wording may change between the draft and the ?nal. Adam Adam Merrill Acting Deputy Chief Division of Solid Minerals (WC-320) Washington Of?ce (202) 912-7044 On Tue, Apr 24, 2018 at 10:21 AM, Sklar, Ryan wrote: Adam, can we please see the ?nal responses when they are done? We don't need to see a draft. We're just interested in seeing the ?nal responses that go to Congress for our own awareness. Thanks, Ryan On Tue, Apr 24, 2018 at 9:52 AM, Merrill, Adam wrote: Ok, thanks for your work on this. We'll get this ?nished up. Thanks, Adam Adam Merrill Acting Deputy Chief Division of Solid Minerals (WO-320) Washington Of?ce (202) 912-7044 On Mon, Apr 23, 2018 at 8:33 PM, Sklar, Ryan wrote: Hi Adam and Bev, Here are SOL's proposed response to questions 68 and 69. As Briana indicated earlier, our response references the on-going Forest Service NEPA review for the proposed withdrawal, as well as the future NEPA review that the BLM would have to perform prior to authorizing mineral development in the SN F. Please let Briana and I know if you have any questions or see anything you'd ke to discuss. Thanks, Ryan On Mon, Apr 23, 2018 at 3:47 PM, Winston, Beverly wrote: Adam and Al, Please add the program perspective to answer those three questions and ship ?iem to Kim Finch (cc'ing Meagan Gins). Thank you, Bev On Mon, Apr 23, 2018 at 3:27 PM, Collier, Briana wrote: Thanks Adam. Ryan and I both read the questions and just spoke to discuss what we think would be the best approach to answer them. We can draft answers to questions 68 and 69 regarding the consideration of economic and surface impacts. These answers will reference the currently on-going Forest Service NEPA review for the mineral withdrawal, as well as the future NEPA review the BLM would conduct before mining could occur in the area in question. However, questions 65, 66, and 67 are questions of pure policy. We would recommend that someone in BLM draft the answers to these questions. Perhaps Bev or someone else in 600 could draft these answers and you could have a policy person in BLM 100 review the answers? Also, do you know if these questions also went to the Department? Q67 in particular focuses on the Secretary's knowledge of and opinion on sul?de-ore mining. You may want to loop in someone from the Of?ce of the Secretary for this answer. Perhaps Bev (or another in 600) could work with her/his counterpart in OS Comms to answer 067. I've copied Bev on this email. Ryan and are available to discuss if you would like to have a call on this. We are free until 4:30 ET, or between 5-6 ET. Let us know if you'd like to talk. Thanks very much. Briana Collier Attomey-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: (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, distr bution, 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, Apr 23, 2018 at 12:55 PM, Merrill, Adam wrote: Briana and Ryan, The BLM has received QFRs from the Budget of?ce pertaining to the Superior National Forest withdrawal. See attached. AI Elser and I contacted Karen Hawbecker and she suggested that we reach out to you for your input. Because this is sensitive issue, we are interested in your thoughts on how to best answer these questions. Our responses are due tomorrow and are hoping to hear back from you, tomorrow morning. Adam Merrill Acting Deputy Chief Division of Solid Minerals (WC-320) Washington Office (202) 912-7044 Forwarded message From: Muehl, Gregory Date: Mon, Apr 23, 2018 at 8:20 AM Subject: Fwd: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropriations DUE: April 24th To: Tim Spisak Adam Merrill Alfred Elser , 'Wells, Steven" s1wells blm. ov Michael Riches , Jully McQuilliams All, We have received some QFRs on the Secretary's House Appropriations hearing; the are 5 related to minining/mineral withdrawal in the Superior National Forest and 1 on the Venting Flaring Rule (see McCollum #1 Budget has requested these back by COB Tuesday (tomorrow); Tim Steve will need to see these before they are submitted. Thanks in advance! greg Forwarded message From: Jackson, Tonya Date: Fri, Apr 20, 2018 at 4:46 PM Subject: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropriations DUE: April 24th To: "Bail, Kristin" kbail@blm. gov Steve Tryon , Steven Wells , Gregory Muehl Shelley McGinnis William Woody , Erick Kurkowski Anzanette Randall Cc: Margaret Schneider gov Ann DeBlasi , "Linda H. Smith" Lark Adams Molly Keating Good afternoon! WO-BBO received the Secretary's Questions for the Record (QFRs) for the House Interior Appropriations hearing this afternoon. As in previous years, the Department has provided an extremely short turnaround window for bureaus to develop responses for review. In order to meet the Department's schedule, responses to the QFRs are due to ?70-880 by COB Tuesday, April 24th. The QFRs are assigned to the directorates as follows: ?70-200 - Wild Horse and Burro, Greater Sage-Grouse, Native Plants/ National Seed Strategy, Climate Change and Science, and Owyhee County ?70-120 Law Enforcement ?70-700 - State Staf?ng Levels ?70-300 - Mineral Withdrawals Where the Committee requests updates to previously provided information, we have included the text of those cleared responses. Please use these as the basis for responding to the 2019 QFRs. Please let us know if we can assist you in any way. Respectfully, Tonya M. Jackson Bureau of Land Management Division of Budget (W 0-880) Of?ce: 202-912-7070 Mobile/Alternate Number: 202-779-0612 Fax: 202-912-7183 Email: W393: Thisemail(indu' It t:?g?bntain information thatisprivileged, con?dntial, sensitive, otha'wisepiotected disclosurebyapplicablelaw. Ifyouarenottheint recipientortheemployeeoragut lefordeliveryofthise? mailtotheintenkd oritsoontuitsisstrictly prohibited immediatelyand thise?mailandallcopies. Gregory Muehl Management am Analyst Energy, Minerals 8: Realty Management Directorate (WC-300) Bureau of land Management U. S. Department of the Interior Of?ce: 202.912.7315 Mobile: 202.306.6113 Bev Winston Bureau of Land Management Communications 202-208-4602 bwinston@blm.gov Ryan Sklar Attomey-Advisor Of?ce of the Solicitor US. 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, con?dential, or othenrvise 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. Ryan Sklar Attomey-Advisor Of?ce of the Solicitor US. Department of the Interior 20220843039 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 othenrvise 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 stridly proh bited. If you receive this email in error, please notify the sender immediately and destroy all copies. "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Tue Apr 24 2018 09:56:35 GMT-0600 (MDT) To: "Collier, Briana" CC: Ryan Sklar Subject: Re: Questions for the Record - Secretary's hearing before House Interior Appropnatrons DUE: April 24th Thank you both. --Karen On Tue, Apr 24, 2018 at 10:42 AM, Collier, Briana wrote: Karen, FYI, these are the draft answers that Ryan and supplied to BLM for the Twin Metals QFRs. Adam Merrill said that he would send us the ?nished product for our information. I'll pass it along when I get it. 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: (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 othenNise 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 From. Collier, Briana Date: Tue, Apr 24, 2018 at 8:32 AM Subject: Re: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropriations DUE: April 24th To: "Merrill, Adam" Cc: "Sklar, Ryan" "Winston, Beverly" Alfred Elser Thanks Adam. 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: (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. On Tue, Apr 24, 2018 at 8:25 AM, Merrill, Adam wrote: No problem. I'm sending the draft off to our budget of?ce, momentarily. I suspect the wording may change between the draft and the ?nal. Adam Adam Merrill Acting Deputy Chief Division of Solid Minerals (WC-320) Washington Of?ce (202) 912-7044 On Tue, Apr 24, 2018 at 10:21 AM, Sklar, Ryan wrote: Adam, can we please see the ?nal responses when they are done? We don't need to see a draft. We're just interested in seeing the ?nal responses that go to Congress for our own awareness. Thanks, Ryan On Tue, Apr 24, 2018 at 9:52 AM, Merrill, Adam wrote: Ok, thanks for your work on this. We'll get this ?nished up. Thanks, Adam Adam Merrill Acting Deputy Chief Division of Solid Minerals (WC-320) Washington Of?ce (202) 912-7044 On Mon, Apr 23, 2018 at 8:33 PM, Sklar, Ryan wrote: Hi Adam and Bev, Here are SOL's proposed response to questions 68 and 69. As Briana indicated earlier, our response references the ongoing Forest Service NEPA review for the proposed withdrawal, as well as the future NEPA review that the BLM would have to perform prior to authorizing mineral development in the SNF. Please let Briana and I know if you have any questions or see anything you'd like to discuss. Thanks, Ryan On Mon, Apr 23, 2018 at 3:47 PM, Winston, Beveiiy wrote: Adam and Al, Please add the program perspective to answer those three questions and ship them to Kim Finch (cc'ing Meagan Gins). Thank you, Bev On Mon, Apr 23, 2018 at 3:27 PM, Collier, Briana wrote: Thanks Adam. Ryan and I both read the questions and just spoke to discuss what we think would be the best approach to answer them. We can draft answers to questions 68 and 69 regarding the consideration of economic and surface impacts. These answers will reference the currently on-going Forest Service NEPA review for the mineral withdrawal, as well as the future NEPA review the BLM would conduct before mining could occur in the area in question. However, questions 65, 66, and 67 are questions of pure policy. We would recommend that someone in BLM draft the answers to these questions. Perhaps Bev or someone else in 600 could draft these answers and you could have a policy person in BLM 100 review the answers? Also, do you know if these questions also went to the Department? 067 in particular focuses on the Secretary's knowledge of and opinion on sul?de-ore mining. You may want to loop in someone from the Of?ce of the Secretary for this answer. Perhaps Bev (or another in 600) could work with her/his counterpart in OS Comms to answer 067. I've copied Bev on this email. Ryan and are available to discuss if you would like to have a call on this. We are free until 4:30 ET, or between 5-6 ET. Let us know if you'd like to talk. Thanks very much. Briana Collier Attomey-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave. NW Albuquerque NM 87102 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 proh bited. If you received this email in error, please notify the sender immediately and destroy all copies. On Mon, Apr 23, 2018 at 12:55 PM, Merrill, Adam wrote: Briana and Ryan, The BLM has received QFRs from the Budget of?ce pertaining to the Superior National Forest withdrawal. See attached. Al Elser and I contacted Karen Hawbecker and she suggested that we reach out to you for your input. Because this is sensitive issue, we are interested in your thoughts on how to best answer these questions. Our responses are due tomorrow and are hoping to hear back from you, tomorrow morning. Adam Merrill Acting Deputy Chief Division of Solid Minerals (WC-320) Washington Of?ce (202) 912-7044 Forwarded message From: Muehl, Gregory Date: Mon, Apr 23, 2018 at 8:20 AM Subject: Fwd: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropriations DUE: April 24th T0: Tim Spisak Adam Merrill . Alfred Elser , 'Wells, Steven" , Michael Riches Justin Abernathy Lorenzo Trimble , "McGinnis, Shelley" Jully McQuilliams All, We have received some QFRs on the Secretary's House Appropriations hearing; the are 5 related to minining/mineral withdrawal in the Superior National Forest and 1 on the Venting Flaring Rule (see McCollum Budget has requested these back by COB Tuesday (tomorrow); Tim Steve will need to see these before they are submitted. Thanks in advance! greg Forwarded message From: Jackson, Tonya Date: Fri, Apr 20, 2018 at 4:46 PM Subject: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropria?ons DUE: April 24th To: "Bail, Kristin" Steve Tryon "Bartholomew, Thomas" Timothy Spisak Steven Wells Gregory Muehl Shelley McGinnis William Woody Cassie Sandberg Erick Kurkowski Anzanette Randall Delores Everett Cc: Margaret Schneider Ann DeBIasi "Linda H. Smith" Lark Adams Molly Keating Good afternoon! received the Secretary's Questions for the Record (QFRs) for the House Interior Appropriations hearing this afternoon. As in previous years, the Department has provided an extremely short turnaround window for bureaus to develop responses for review. In order to meet the Department's schedule, responses to the QFRs are due to ?70-880 by COB Tuesday, April 24th. The QFRs are assigned to the directorates as follows: ?70-200 - Wild Horse and Burro, Greater Sage-Grouse, Native Plants/ National Seed Strategy, Climate Change and Science, and Owyhee County ?70-120 - Law Enforcement ??0-700 - State Staf?ng Levels ??0-300 - Mineral Withdrawals Where the Committee requests updates to previously provided information, we have included the text of those cleared responses. Please use these as the basis for responding to the 2019 QFRs. Please let us know ifwe can assist you in any way. Respectfully, Tonya M. Jackson Bureau of Land Management Division of Budget (W 0?880) Of?ce: 202-912-7070 Mobile/Alternate Number: 202?779?0612 Fax: 202-912-7183 Email: tmjackson@blm.gov 'I?hisemail(' othawiseptrotected ,ornseofthise- oritsoont-tsisstrictly prohih'ted. thise?mailandalloopies. Gregory Muehl Management Program Analyst Energy, Minerals Realty Management Directorate (WC-300) Bureau of land Management U.S. Department of the Interior Of?ce: 202.912.7315 Mobile: 202.306.6113 Bev Winston Bureau of Land Management Communications 202-208-4602 bwinston@blm.gov Ryan Sklar Attorney-Advisor Of?ce of the Solicitor US. Department of the Interior 2022083039 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, distr bution, 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. Ryan Sklar Attorney-Advisor Of?ce of the Solicitor US. 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, 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 stric?y prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 karen.hawbecker sol.doi. ov "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Tue Apr 24 2018 10:01 :01 GMT-0600 (MDT) To: Daniel Jorjani Fwd: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropriations DUE: April 24th Attachments: McCollum Q65-69 Mineral Vlfithdrawal Superior National Forest SOL draft answers.docx Subject: Dan, FYI-Representative Betty McCollum of Minnesota submitted some Questions for the Record related to the Forest Service's withdrawal application for lands in northern Minnesota. I asked Briana Collier (DMR) and Ryan Sklar (DLR) to assist BLM in drafting responses to two of the questions. The attachment contains all of the questions, along with Briana's and Ryan's proposed draft responses to two of the questions. ?Karen Forwarded message From: Collier, Briana Date: Tue, Apr 24, 2018 at 10:42 AM Subject: Fwd: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropriations DUE: April 24th To: Karen Hawbecker Cc: Ryan Sklar Karen, FYI, these are the draft answers that Ryan and supplied to BLM for the Twin Metals QFRs. Adam Merrill said that he would send us the ?nished product for our information. I'll pass it along when I get it. 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: (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. Forwarded message From: Collier, Briana Date: Tue, Apr 24, 2018 at 8:32 AM Subject: Re: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropriations DUE: April 24th To: "Merrill, Adam" Cc: "Sklar, Ryan" 'Winston. Beverly" Alfred Elser Thanks Adam. 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: (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. On Tue, Apr 24, 2018 at 8:25 AM, Merrill, Adam wrote: No problem. I'm sending the draft off to our budget office, momentarily. I suspect the wording may change between the draft and the ?nal. Adam Adam Merrill Acting Deputy Chief Division of Solid Minerals (WC-320) Washington Of?ce (202) 912-7044 On Tue, Apr 24, 2018 at 10:21 AM, Sklar, Ryan wrote: Adam, can we please see the ?nal responses when they are done? We don't need to see a draft. We're just interested in seeing the ?nal responses that go to Congress for our own awareness. Thanks, Ryan On Tue, Apr 24, 2018 at 9:52 AM, Merrill, Adam wrote: Ok, thanks for your work on this. We'll get this ?nished up. Thanks, Adam Adam Merrill Acting Deputy Chief Division of Solid Minerals (WC-320) Washington Of?ce (202) 912-7044 On Mon, Apr 23, 2018 at 8:33 PM, Sklar, Ryan wrote: Hi Adam and Bev, Here are SOL's proposed response to questions 68 and 69. As Briana indicated eariier, our response references the on?going Forest Service NEPA review for the proposed withdrawal, as well as the future NEPA review that the BLM would have to perform prior to authorizing mineral development in the SN F. Please let Briana and I know if you have any questions or see anything you'd ke to discuss. Thanks, Ryan On Mon, Apr 23, 2018 at 3:47 PM, Winston, Beverly wrote: Adam and Al, Please add the program perspective to answer those three questions and ship them to Kim Finch (cc'ing Meagan Gins). Thank you, Bev On Mon, Apr 23, 2018 at 3:27 PM, Collier, Briana wrote: Thanks Adam. Ryan and I both read the questions and just spoke to discuss what we think would be the best approach to answer them. We can draft answers to questions 68 and 69 regarding the consideration of economic and surface impacts. These answers will reference the currently on-going Forest Service NEPA review for the mineral withdrawal, as well as the future NEPA review the BLM would conduct before mining could occur in the area in question. However, questions 65, 66, and 67 are questions of pure policy. We would recommend that someone in BLM draft the answers to these questions. Perhaps Bev or someone else in 600 could draft these answers and you could have a policy person in BLM 100 review the answers? Also, do you know if these questions also went to the Department? 067 in particular focuses on the Secretary's knowledge of and opinion on sul?de-ore mining. You may want to loop in someone from the Office of the Secretary for this answer. Perhaps Bev (or another in 600) could work with her/his counterpart in OS Comms to answer 067. I've copied Bev on this email. Ryan and are available to discuss if you would like to have a call on this. We are free until 4:30 ET, or between 5-6 ET. Let us know if you'd like to talk. Thanks very much. Briana Collier Attomey-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor Albuquerque NM 87102 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, distr bution, 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, Apr 23, 2018 at 12:55 PM, Merrill, Adam wrote: Briana and Ryan, The BLM has received QFRs from the Budget of?ce pertaining to the Superior National Forest withdrawal. See attached. Al Elser and I contacted Karen Hawbecker and she suggested that we reach out to you for your input. Because this is sensitive issue, we are interested in your thoughts on how to best answer these questions. Our responses are due tomorrow and are hoping to hear back from you, tomorrow morning. Adam Merrill Acting Deputy Chief Division of Solid Minerals (WC-320) Washington Office (202) 912-7044 Forwarded message From: Muehl, Gregory Date: Mon, Apr 23, 2018 at 8:20 AM Subject: Fwd: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropriations DUE: April 24th To: Tim Spisak t.spisak@blm gov Adam Merrill , 'Wells, Steven" Lorenzo Trimble "McGinnis Shelley" Jully McQuilliams <'mc uilliams blm. ov v> All, We have received some QFRs on the Secretary's House Appropriations hearing; the are 5 related to minining/mineral withdrawal in the Superior National Forest and 1 on the Venting Flaring Rule (see McCollum Budget has requested these back by COB Tuesday (tomorrow); Tim Steve will need to see these before they are submitted. Thanks in advance! greg Forwarded message From: Jackson, Tonya Date: Apr 20, 2018 at 4:46 PM Subject: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropriations DUE: April 24th To: "Bail, Kristin" kbail@blm. gov Steve Tryons st on blm. ov "Bartholomew, Thomas" , Steven Wells , Gregory Muehl Shelley McGinnis William Woody , Erick Kurkowski Anzanette Randall Delores Everett d1everet@blm. gov> Cc: Margaret Schneider Ann DeBlasi "Linda H. Smith" Good afternoon! W0-880 received the Secretary's Questions for the Record (QFRs) for the House Interior Appropriations hearing this afternoon. As in previous years, the Department has provided an extremely short turnaround window for bureaus to develop responses for review. In order to meet the Department's schedule, responses to the QFRs are due to ?70-880 by COB Tuesday, April 24th. The QFRs are assigned to the directorates as follows: ?70-200 - Wild Horse and Burro, Greater Sage-Grouse, Native Plants/National Seed Strategy, Climate Change and Science, and Owyhee County ?70-120 Law Enforcement ?70-700 - State Staf?ng Levels ?70-300 - Mineral Withdrawals Where the Committee requests updates to previously provided information, we have included the text of those cleared responses. Please use these as the basis for responding to the 2019 QFRs. Please let us know if we can assist you in any way. Respectfully, Tonya M. Jackson Bureau of Land Management Division of Budget (W 0-880) Of?ce: 202-912-7070 Mobile/Altemate Number: 202-779-0612 Fax: 202-912-7183 Email: tmjackson@blm.gov This email (indu' attachments) is intended for the addmseqs) only. It contain information that Is privileged, con?dntial, sensitive, otha'wiseprotected disclosurebyapplicablelaw. Ifyouarenottheint recipientortheanployeeor ?endblefordeliveryoflth'se- oritsoontentsisstrictty prohibited pleasenotifythe senderimmediatetyand ?iise?mailandalloopies. Gregory Muehl Managmt Program Analyst Energy, Minerals Realty Management Directorate (WC-300) Bureau of Land Managemen U. S. Department of the Interior 202.912.7315 Mobile: 202.306.6113 Bev Winston Bureau of Land Management Communications 202-208-4602 bwinston@blm.gov Ryan Sklar Attomey-Advisor Of?ce of the Solicitor US. 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, con?dential, or othenlvise 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. Ryan Sklar Attomey-Advisor Of?ce of the Solicitor US. Department of the Interior 202-20&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, 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 proh bited. It you receive this e-mail in error, please notify the sender immediately and destroy all copies. Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 "Jorjani, Daniel" From: "Jorjani, Daniel" Sent: Tue Apr 24 2018 10:03:22 GMT-0600 (MDT) To: "Hawbecker, Karen" Subject: Re: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropriations DUE: April 24th Well done. On Tue, Apr 24, 2018 at 12:01 PM, Hawbecker, Karen wrote: Dan, FYI-Representative Betty McCollum of Minnesota submitted some Questions for the Record related to the Forest Service's withdrawal application for lands in northern Minnesota. I asked Briana Collier (DMR) and Ryan Sklar (DLR) to assist BLM in drafting responses to two of the questions. The attachment contains all of the questions, along with Briana's and Ryan's proposed draft responses to two of the questions. -Karen Forwarded message From: Collier, Briana Date: Tue, Apr 24, 2018 at 10:42 AM Subject: Fwd: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropriations DUE: April 24th To: Karen Hawbecker Cc: Ryan Sklar Karen, FYI, these are the draft answers that Ryan and supplied to BLM for the Twin Metals QFRs. Adam Merrill said that he would send us the ?nished product for our information. I'll pass it along when get it. 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: (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. Forwarded message From: Collier, Briana Date: Tue, Apr 24, 2018 at 8:32 AM Subject: Re: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropriations DUE: April 24th To: "Merrill, Adam" Cc: "Sklar, Ryan" an.sk ar soldoi. ov>, "Winston, Beverly" Alfred Elser Thanks Adam. 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: (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. On Tue, Apr 24, 2018 at 8:25 AM, Merrill, Adam wrote: No problem. I'm sending the draft off to our budget of?ce, momentarily. I suspect the wording may change between the draft and the ?nal. Adam Adam Merrill Acting Deputy Chief Division of Solid Minerals (WC-320) Washington Of?ce (202) 912-7044 On Tue, Apr 24, 2018 at 10:21 AM, Sklar, Ryan wrote: Adam, can we please see the ?nal responses when they are done? We don't need to see a draft. We're just interested in seeing the ?nal responses that go to Congress for our own awareness. Thanks, Ryan On Tue, Apr 24, 2018 at 9:52 AM, Merrill, Adam wrote: Ok, thanks for your work on this. We'll get this ?nished up. Thanks, Adam Adam Merrill Acting Deputy Chief Division of Solid Minerals (WC-320) Washington Of?ce (202) 912-7044 On Mon, Apr 23, 2018 at 8:33 PM, Sklar, Ryan wrote: Hi Adam and Bev, Here are SOL's proposed response to questions 68 and 69. As Briana indicated earlier, our response references the on?going Forest Service NEPA review for the proposed withdrawal, as well as the future NEPA review that the BLM would have to perform prior to authorizing mineral development in the SNF. Please let Briana and I know if you have any questions or see anything you'd like to discuss. Thanks, Ryan On Mon, Apr 23, 2018 at 3:47 PM, Winston, Beveriy wrote: Adam and Al, Please add the program perspective to answer those three questions and ship them to Kim Finch (cc'ing Meagan Gins). Thank you, Bev On Mon, Apr 23, 2018 at 3:27 PM, Collier, Briana wrote: Thanks Adam. Ryan and I both read the questions and just spoke to discuss what we think would be the best approach to answer them. We can draft answers to questions 68 and 69 regarding the consideration of economic and surface impacts. These answers will reference the currently on-going Forest Service NEPA review for the mineral withdrawal, as well as the future NEPA review the BLM would conduct before mining could occur in the area in question. However, questions 65, 66, and 67 are questions of pure policy. We would recommend that someone in BLM draft the answers to these questions. Perhaps Bev or someone else in 600 could draft these answers and you could have a policy person in BLM 100 review the answers? Also, do you know if these questions also went to the Department? 067 in particular focuses on the Secretary's knowledge of and opinion on sul?de-ore mining. You may want to loop in someone from the Of?ce of the Secretary for this answer. Perhaps Bev (or another in 600) could work with her/his counterpart in OS Comms to answer 067. I've copied Bev on this email. Ryan and are available to discuss if you would like to have a call on this. We are free until 4:30 ET, or between 5-6 ET. Let us know if you'd like to talk. Thanks very much. Briana Collier Attomey-Adviser, Division of Mineral Resources US. Department of the Interior, Of?ce of the Solicitor 505 Marquette Ave. NW Albuquerque NM 87102 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 proh bited. If you received this email in error, please notify the sender immediately and destroy all copies. On Mon, Apr 23, 2018 at 12:55 PM, Merrill, Adam wrote: Briana and Ryan, The BLM has received QFRs from the Budget of?ce pertaining to the Superior National Forest withdrawal. See attached. Al Elser and I contacted Karen Hawbecker and she suggested that we reach out to you for your input. Because this is sensitive issue, we are interested in your thoughts on how to best answer these questions. Our responses are due tomorrow and are hoping to hear back from you, tomorrow morning. Adam Merrill Acting Deputy Chief Division of Solid Minerals (WC-320) Washington Of?ce (202) 912-7044 Forwarded message From: Muehl, Gregory Date: Mon, Apr 23, 2018 at 8:20 AM Subject: Fwd: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropriations DUE: April 24th T0: Tim Spisak Adam Merrill . Alfred Elser , 'Wells, Steven" , Michael Riches Justin Abernathy Lorenzo Trimble , "McGinnis, Shelley" Jully McQuilliams All, We have received some QFRs on the Secretary's House Appropriations hearing; the are 5 related to minining/mineral withdrawal in the Superior National Forest and 1 on the Venting Flaring Rule (see McCollum Budget has requested these back by COB Tuesday (tomorrow); Tim Steve will need to see these before they are submitted. Thanks in advance! greg Forwarded message From: Jackson, Tonya Date: Fri, Apr 20, 2018 at 4:46 PM Subject: URGENT: Questions for the Record - Secretary's hearing before House Interior Appropria?ons DUE: April 24th To: "Bail, Kristin" Steve Tryon "Bartholomew, Thomas" Timothy Spisak Steven Wells Gregory Muehl Shelley McGinnis William Woody Cassie Sandberg Erick Kurkowski Anzanette Randall Delores Everett Cc: Margaret Schneider Ann DeBIasi "Linda H. Smith" Lark Adams Molly Keating Good afternoon! received the Secretary's Questions for the Record (QFRs) for the House Interior Appropriations hearing this afternoon. As in previous years, the Department has provided an extremely short turnaround window for bureaus to develop responses for review. In order to meet the Department's schedule, responses to the QFRs are due to ?70-880 by COB Tuesday, April 24th. The QFRs are assigned to the directorates as follows: ?70-200 - Wild Horse and Burro, Greater Sage-Grouse, Native Plants/ National Seed Strategy, Climate Change and Science, and Owyhee County ?70-120 - Law Enforcement ??0-700 - State Staf?ng Levels ??0-300 - Mineral Withdrawals Where the Committee requests updates to previously provided information, we have included the text of those cleared responses. Please use these as the basis for responding to the 2019 QFRs. Please let us know ifwe can assist you in any way. Respectfully, Tonya M. Jackson Bureau of Land Management Division of Budget (W 0?880) Of?ce: 202-912-7070 Mobile/Alternate Number: 202?779?0612 Fax: 202-912-7183 Email: tmjackson@blm.gov 'I?hisemail(' othawiseptrotected ,ornseofthise- oritsoont-tsisstrictly prohih'ted. thise?mailandalloopies. Gregory Muehl Management Program Analyst Energy, Minerals Realty Management Directorate (WC-300) Bureau of land Management U.S. Department of the Interior Of?ce: 202.912.7315 Mobile: 202.306.6113 Bev Winston Bureau of Land Management Communications 202-208-4602 bwinston@blm.gov Ryan Sklar Attorney-Advisor Of?ce of the Solicitor US. Department of the Interior 2022083039 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, distr bution, 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. -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. -Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Office of the Solicitor U.S. Department of the Interior 1849 C Street N.W. MS 6348 Washington, D.C. 20240 Office: (202) 208-4507 karen.hawbecker@sol.doi.gov Conversation Contents Twin Metals Reinstatement Letter Attachments: [7 7. Twin Metals Reinstatement Letter/4.1 I77. Twin Metals Reinstatement Letter/8.1 2018.04.18 redline.docx I77. Twin Metals Reinstatement Letter/9.1 2018.04.18 redline.docx "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Tue Apr 17 2018 13:59:05 GMT-0600 (MDT) 0' Timothy Spisak Mitchell Leverette Elena Fink CC: Richard McNeer Briana Collier Subject: Twin Metals Reinstatement Letter I left a voicemail message for each of you earlier today about the Twin Metals reinstatement letter. We need to convert the concurrence signature bar on the reinstatement from ASLM to the Deputy Secretary. Could BLM Eastern States update that document and upload it in the DTS entry? (BLM 13702) As soon as that happens, I will surname and Dan will surname before it goes to the Deputy Secretary. Please call me if you have questions- -202-208-4507. Thank you. ?Karen Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 "Leverette, Mitchell" From: "Leverette, Mitchell" Sent: Tue Apr 17 2018 14:09:48 GMT-0600 (MDT) To: "Hawbecker, Karen" CC: Timothy Spisak Elena Fink Richard McNeer Briana Collier Subject: Re: Twin Metals Reinstatement Letter Okay. We will do that. Why the change? Mitch Mitchell Leverette Acting State Director Eastern States Bureau of Land Management 20 M. Street, SE Washington, DC 20003 202-912-7702 202-431-2262 On Tue, Apr 17, 2018 at 3:59 PM, Hawbecker, Karen wrote: I left a voicemail message for each of you earlier today about the Twin Metals reinstatement letter. We need to convert the concurrence signature bar on the reinstatement from ASLM to the Deputy Secretary. Could BLM Eastem States update that document and upload it in the DTS entry? (BLM 13702) As soon as that happens, I will surname and Dan will surname before it goes to the Deputy Secretary. Please call me if you have questions?2022084507. Thank you. ?Karen Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 Wax "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Tue Apr 17 2018 14:35:41 GMT-0600 (MDT) To: "Leverette, Mitchell" Timothy Spisak Elena Fink Richard McNeer Briana Collier Subject: Re: Twin Metals Reinstatement Letter CC: Let's chat. My voicemail message may have explained. On Tue, Apr 17, 2018 at 4:09 PM, Leverette, Mitchell wrote: Okay. We will do that. Why the change? Mitch Mitchell Leverette Acting State Director Eastern States Bureau of Land Management 20 M. Street SE 202-912-7702 202-431-2262 On Tue, Apr 17, 2018 at 3:59 PM, Hawbecker, Karen wrote: I left a voicemail message for each of you earlier today about the Twin Metals reinstatement letter. We need to convert the concurrence signature bar on the reinstatement from ASLM to the Deputy Secretary. Could BLM Eastern States update that document and upload it in the DTS entry? (BLM 13702) As soon as that happens, I will surname and Dan will surname before it goes to the Deputy Secretary. Please call me if you have questions?202-208?4507. Thank you. ?Karen Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202)208-4507 WNW Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 "Fink, Elena" From: "Fink, Elena" Sent: Tue Apr 17 2018 16:21:41 GMT-0600 (MDT) To: Sally Spencer Mitchell Leverette Timothy Spisak Richard McNeer CC: Briana Collier "Hawbecker, Karen" Barbara Eggers Subject: Re: Twin Metals Reinstatement Letter Attachments: Decision Letter.MNES.1 352.1 7Apr201 8.docx Hello Mitch, I uploaded the revised decision letter for concurrence by Deputy Secretary David Bernhardt into 13702. Would you please re- sign the decision letter? (I could not get the fonts to look consistent otherwise). Hello Sally, Would you please then scan the letter and upload into Hello Karen, Once surnames in DTS, it will then go the the SOL (DAD). Please let me know if you need anything else. All best, Elena Fink Deputy State Director, Natural Resources Bureau of Land Management, Eastern States 202-912-7730 desk; 202-689-4861 cell On Tue, Apr 17, 2018 at 2:59 PM, Hawbecker, Karen wrote: I left a voicemail message for each of you earlier today about the Twin Metals reinstatement letter. We need to convert the concurrence signature bar on the reinstatement from ASLM to the Deputy Secretary. Could BLM Eastern States update that document and upload it in the DTS entry? (BLM 13702) As soon as that happens, I will surname and Dan will sumame before it goes to the Deputy Secretary. Please call me if you have questions?202-208-4507. Thank you. ?Karen Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Tue Apr 17 2018 17:04:01 GMT-0600 (MDT) To: "Fink, Elena" Sally Spencer Mitchell Leverette Timothy CC: Spisak Richard McNeer Briana Collier Barbara Eggers Subject: Re: Twin Metals Reinstatement Letter Thank you, Elena! ?Karen On Tue, Apr 17, 2018 at 6:21 PM, Fink, Elena wrote: Hello Mitch, I uploaded the revised decision letter for concurrence by Deputy Secretary David Bernhardt into Would you please re-sign the decision letter? (I could not get the fonts to look consistent otherwise). Hello Sally, Would you please then scan the letter and upload into 13702? Hello Karen, Once ES-910 surnames in DTS, it will then go the the SOL (DAD). Please let me know if you need anything else. All best, Elena Fink Deputy State Director, Natural Resources Bureau of Land Management, Eastern States 202-912-7730 desk; 202-689-4861 cell On Tue, Apr 17, 2018 at 2:59 PM, Hawbecker, Karen wrote: I left a voicemail message for each of you earlier today about the Twin Metals reinstatement letter. We need to convert the concurrence signature bar on the reinstatement from ASLM to the Deputy Secretary. Could BLM Eastern States update that document and upload it in the DTS entry? (BLM 13702) As soon as that happens, I will surname and Dan will surname before it goes to the Deputy Secretary. Please call me if you have questions?202-208?4507. Thank you. ?Karen Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 karen.hawbecker sol.doi. ov Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 "Spencer, Sally" From: "Spencer, Sally" Sent: Wed Apr 18 2018 11:34:31 GMT-0600 (MDT) To: "Hawbecker, Karen" "Fink, Elena" Mitchell Leverette Timothy Spisak CC: Richard McNeer Briana Collier Barbara Eggers Subject: Re: Twin Metals Reinstatement Letter Hi Everyone, A signed copy of the revised decision letter has been uploaded into DTS and forwarded to SOL-DAD. Please let me know if you need anything else. Thanks, Sally Sally Spencer Resource Adviser Eastern States Bureau of Land Management 20 Street, SE, Suite 950 Washington, DC 20003 Desk: 202-912-7704 - Fax: 202-912-7710 Cell: 202-641-6106 On Tue, Apr 17, 2018 at 7:04 PM, Hawbecker, Karen wrote: Thank you, Elena! ?Karen On Tue, Apr 17, 2018 at 6:21 PM, Fink, Elena wrote: Hello Mitch, I uploaded the revised decision letter for concurrence by Deputy Secretary David Bernhardt into Would you please re-sign the decision letter? (I could not get the fonts to look consistent otherwise). Hello Sally, Would you please then scan the letter and upload into Hello Karen, Once ES-910 surnames in DTS, it will then go the the SOL (DAD). Please let me know if you need anything else. All best, Elena Fink Deputy State Director, Natural Resources Bureau of Land Management, Eastern States 202-912-7730 desk; 202?689?4861 cell On Tue, Apr 17, 2018 at 2:59 PM, Hawbecker, Karen wrote: I lett a voicemail message for each of you eartier today about the Twin Metals reinstatement letter. We need to convert the concurrence signature bar on the reinstatement from ASLM to the Deputy Secretary. Could BLM Eastern States update that document and upload it in the DTS entry? (BLM 13702) As soon as that happens, I will surname and Dan will surname before it goes to the Deputy Secretary. Please call me if you have questions?202?208-4507. Thank you. ?Karen Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 karen.hawbecker so .doi. ov Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 karen.hawbecker@sol.doi.aov "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Wed Apr 18 2018 13:02:08 GMT-0600 (MDT) To: "Spencer, Sally" CC: "Fink, Elena" Mitchell Leverette Timothy Spisak Richard McNeer Briana Collier Barbara Eggers Subject: Re: Twin Metals Reinstatement Letter Thank you, Sally. ?Karen On Wed, Apr 18, 2018 at 1:34 PM, Spencer, Sally wrote: Hi Everyone, A signed copy of the revised decision letter has been uploaded into DTS and forwarded to SOL-DAD. Please let me know if you need anything else. Thanks, Sally Sally Spencer Resource Adviser Eastern States Bureau of Land Management 20 Street, SE, Suite 950 Washington, DC 20003 Desk: 202-912-7704 Fax: 202?912?7710 Cell: 202-641?6106 On Tue, Apr 17, 2018 at 7:04 PM, Hawbecker, Karen wrote: Thank you, Elena! ??Karen On Tue, Apr 17, 2018 at 6:21 PM, Fink, Elena wrote: Hello Mitch, I uploaded the revised decision letter for concurrence by Deputy Secretary David Bernhardt into Would you please re-sign the decision letter? (I could not get the fonts to look consistent otherwise). Hello Sally, Would you please then scan the letter and upload into 13702? Hello Karen, Once ES-910 surnames in DTS, it will then go the the SOL (DAD). Please let me know if you need anything else. All best, Elena Fink Deputy State Director, Natural Resources Bureau of Land Management, Eastern States 202-912-7730 desk; 202-689-4861 cell On Tue, Apr 17, 2018 at 2:59 PM, Hawbecker, Karen wrote: I left a voicemail message for each of you earlier today about the Twin Metals reinstatement letter. We need to convert the concurrence signature bar on the reinstatement from ASLM to the Deputy Secretary. Could BLM Eastern States update that document and upload it in the DTS entry? (BLM 13702) As soon as that happens, I will surname and Dan will surname before it goes to the Deputy Secretary. Please call me if you have questions?202-208-4507. Thank you. ?Karen Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 karen.hawbecker sol.doi. ov "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Wed Apr 18 2018 14:30:25 GMT-0600 (MDT) To: Mitchell Leverette "Fink, Elena" Sally Spencer Timothy Spisak Richard McNeer CC: Briana Collier Barbara Eggers Subject: Re: Twin Metals Reinstatement Letter Attachments: 2018.04.18 redline.docx Mitch and Elena, After further discussion with the Associate Deputy Secretary, the reinstatement letter will be signed by the Assistant Secretary after all. However, since I didn't surname the letter when it came through the Solicitor?s Of?ce the ?rst time, I reviewed it today and have made a handful of additional edits to the letter. If you have no objections to my edits, as re?ected in redline in the attached version, I will upload a clean version of this on DTS and surname it and send it to Dan Jorjani for review. Once we have Dan's surname, I will then ask Exec Sec to replace the version of the letter that is in the Associate Deputy Secretary's ROD folder, so that he can sign the ROD concurrence memo before it goes to the Assistant Secretary for signature. Sorry about the last minute changes. ?Karen On Tue, Apr 17, 2018 at 6:21 PM, Fink, Elena wrote: Hello Mitch, I uploaded the revised decision letter for concurrence by Deputy Secretary David Bernhardt into Would you please re-sign the decision letter? (I could not get the fonts to look consistent otherwise). Hello Sally, Would you please then scan the letter and upload into 13702? Hello Karen, Once ES-910 surnames in DTS, it will then go the the SOL (DAD). Please let me know if you need anything else. All best, Elena Fink Deputy State Director, Natural Resources Bureau of Land Management, Eastern States 202-912-7730 desk; 202-689-4861 cell On Tue, Apr 17, 2018 at 2:59 PM, Hawbecker, Karen wrote: I left a voicemail message for each of you earlier today about the Twin Metals reinstatement letter. We need to convert the concurrence signature bar on the reinstatement from ASLM to the Deputy Secretary. Could BLM Eastern States update that document and upload it in the DTS entry? (BLM 13702) As soon as that happens, I will surname and Dan will surname before it goes to the Deputy Secretary. Please call me if you have questions?2022084507. Thank you. ?Karen Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Wed Apr 18 2018 15:39:01 GMT-0600 (MDT) To: Kathleen Benedetto Subject: Fwd: Twin Metals Reinstatement Letter Attachments: 2018.04.18 redline.docx FYI Forwarded message From: Hawbecker, Karen Date: Wed, Apr 18, 2018 at 4:30 PM Subject: Re: Twin Metals Reinstatement Letter To: Mitchell Leverette , "Fink, Elena" Cc: Sally Spencer Timothy Spisak Richard McNeer Briana Collier Barbara Eggers Mitch and Elena, After further discussion with the Associate Deputy Secretary, the reinstatement letter will be signed by the Assistant Secretary after all. However, since I didn't surname the letter when it came through the Solicitor's Of?ce the ?rst time, I reviewed it today and have made a handful of additional edits to the letter. If you have no objections to my edits, as re?ected in redline in the attached version, I will upload a clean version of this on DTS and surname it and send it to Dan Jorjani for review. Once we have Dan's surname, I will then ask Exec Sec to replace the version of the letter that is in the Associate Deputy Secretary's ROD folder, so that he can sign the ROD concurrence memo before it goes to the Assistant Secretary for signature. Sorry about the last minute changes. --Karen On Tue, Apr 17, 2018 at 6:21 PM, Fink, Elena wrote: Hello Mitch, I uploaded the revised decision letter for concurrence by Deputy Secretary David Bernhardt into Would you please re-sign the decision letter? (I could not get the fonts to look consistent otherwise). Hello Sally, Would you please then scan the letter and upload into 13702? Hello Karen, Once ES-910 surnames in DTS, it will then go the the SOL (DAD). Please let me know if you need anything else. All best, Elena Fink Deputy State Director, Natural Resources Bureau of Land Management, Eastern States 202-912-7730 desk; 202-689-4861 cell On Tue, Apr 17, 2018 at 2:59 PM, Hawbecker, Karen wrote: I left a voicemail message for each of you earlier today about the Twin Metals reinstatement letter. We need to convert the concurrence signature bar on the reinstatement from ASLM to the Deputy Secretary. Could BLM Eastern States update that document and upload it in the DTS entry? (BLM 13702) As soon as that happens, I will surname and Dan will surname before it goes to the Deputy Secretary. Please call me if you have questions?202-208?4507. Thank you. ?Karen Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 karen.hawbecker so .doi. ov Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 "Fink, Elena" From: "Fink, Elena" Sent: Thu Apr 19 2018 08:53:49 GMT-0600 (MDT) To: "Hawbecker, Karen" Mitchell Leverette Sally Spencer Timothy CC: Spisak Richard McNeer Briana Collier Barbara Eggers Subject: Re: Twin Metals Reinstatement Letter Hello Karen, I have uploaded your edits into (version 9) and a clean version (version 10). I made one minor edit. I replaced 'it' with 'they' on the following sentence: "After the issuance of the BLM requested the Forest Service's decision on whether they would consent to the renewal of the leases for a third time." (page 2, pp) Based on my conversation with Mitch, he will sign the rescission at the same time as Assistant Secretary Balash. Please let me know if you need anything else. Thank you. All best, Elena Fink Deputy State Director, Natural Resources Bureau of Land Management, Eastern States 202-912-7730 desk; 202-689-4861 cell On Wed, Apr 18, 2018 at 4:30 PM, Hawbecker, Karen wrote: Mitch and Elena, After further discussion with the Associate Deputy Secretary, the reinstatement letter will be signed by the Assistant Secretary after all. However, since I didn't surname the letter when it came through the Solicitors Of?ce the ?rst time, I reviewed it today and have made a handful of additional edits to the letter. If you have no objections to my edits, as re?ected in redline in the attached version, I will upload a clean version of this on DTS and surname it and send it to Dan Jorjani for review. Once we have Dan's surname, I will then ask Exec Sec to replace the version of the letter that is in the Associate Deputy Secretary's ROD folder, so that he can sign the ROD concurrence memo before it goes to the Assistant Secretary for signature. Sony about the last minute changes. ?Karen On Tue, Apr 17, 2018 at 6:21 PM, Fink, Elena wrote: Hello Mitch, I uploaded the revised decision letter for concurrence by Deputy Secretary David Bernhardt into Would you please re-sign the decision letter? (I could not get the fonts to look consistent otherwise). Hello Sally, Would you please then scan the letter and upload into Hello Karen, Once surnames in DTS, it will then go the the SOL (DAD). Please let me know if you need anything else. All best, Elena Fink Deputy State Director, Natural Resources Bureau of Land Management, Eastern States 202-912-7730 desk; 202-689-4861 cell On Tue, Apr 17, 2018 at 2:59 PM, Hawbecker, Karen wrote: I left a voicemail message for each of you ear1ier today about the Twin Metals reinstatement letter. We need to convert the concurrence signature bar on the reinstatement from ASLM to the Deputy Secretary. Could BLM Eastern States update that document and upload it in the DTS entry? (BLM 13702) As soon as that happens, I will surname and Dan will surname before it goes to the Deputy Secretary. Please call me if you have questions?202-208-4507. Thank you. ?Karen Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor U.S. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 Weiss?! Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208?4507 karen.hawbecker so .doi. ov "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Thu Apr 19 2018 09:01:29 GMT-0600 (MDT) To: "Fink, Elena" Mitchell Leverette Sally Spencer Timothy CC: Spisak Richard McNeer Briana Collier Barbara Eggers Subject: Re: Twin Metals Reinstatement Letter Thank you, Elena. I have just sumamed the version of the letter on DTS that you uploaded this morning and it is now with Dan JOIjani. As soon as he surnames, I will ask Exec Sec to replace the version of the letter that is in the folder for the Associate Deputy Secretary, so that he can complete his concurrence memo review. My understanding is that we will schedule a signing with Mitch and the Assistant Secretary on Tuesday, April 24. On Thu, Apr 19, 2018 at 10:53 AM, Fink, Elena wrote: Hello Karen, I have uploaded your edits into (version 9) and a clean version (version 10). I made one minor edit. I replaced 'it' with 'they' on the following sentence: "After the issuance of M-37036, the BLM requested the Forest Service?s decision on whether they would consent to the renewal of the leases for a third time." (page 2, pp) Based on my conversation with Mitch, he will sign the rescission at the same time as Assistant Secretary Balash. Please let me know if you need anything else. Thank you. All best, Elena Fink Deputy State Director, Natural Resources Bureau of Land Management, Eastern States 202-912-7730 desk; 202?689?4861 cell On Wed, Apr 18, 2018 at 4:30 PM, Hawbecker, Karen wrote: Mitch and Elena, After further discussion with the Associate Deputy Secretary, the reinstatement letter will be signed by the Assistant Secretary after all. However, since I didn't surname the letter when it came through the Solicitor's Of?ce the ?rst time, I reviewed it today and have made a handful of additional edits to the letter. If you have no objections to my edits, as re?ected in redline in the attached version, I will upload a clean version of this on DTS and surname it and send it to Dan Jorjani for review. Once we have Dan's surname, I will then ask Exec Sec to replace the version of the letter that is in the Associate Deputy Secretary's ROD folder, so that he can sign the ROD concurrence memo before it goes to the Assistant Secretary for signature. Sorry about the last minute changes. ?Karen On Tue, Apr 17, 2018 at 6:21 PM, Fink, Elena wrote: Hello Mitch, I uploaded the revised decision letter for concurrence by Deputy Secretary David Bernhardt into Would you please re-sign the decision letter? (I could not get the fonts to look consistent otherwise). Hello Sally, Would you please then scan the letter and upload into 13702? Hello Karen, Once ES-910 surnames in DTS, it will then go the the SOL (DAD). Please let me know if you need anything else. All best, Elena Fink Deputy State Director, Natural Resources Bureau of Land Management, Eastern States 202-912-7730 desk; 202-689-4861 cell On Tue, Apr 17, 2018 at 2:59 PM, Hawbecker, Karen wrote: I left a voicemail message for each of you earlier today about the Twin Metals reinstatement letter. We need to convert the concurrence signature bar on the reinstatement from ASLM to the Deputy Secretary. Could BLM Eastern States update that document and upload it in the DTS entry? (BLM 13702) As soon as that happens, I will surname and Dan will surname before it goes to the Deputy Secretary. Please call me if you have questions?2022084507. Thank you. ?Karen Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 karen.hawbecker sol.doi. ov Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202)208-4507 WNW Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US Department of the Interior 1849 Street NW. MS 6348 Washington, D.C. 20240 Of?ce: (202) 208-4507 "Fink, Elena" From: "Fink, Elena" Sent: Thu Apr 19 2018 15:26:56 GMT-0600 (MDT) To: "Hawbecker, Karen" Mitchell Leverette Sally Spencer Barbara Eggers Subject: Re: Twin Metals Reinstatement Letter Thank you, Karen. Also, I wanted to let you know that I will be out of the of?ce next week. Please contact Sally Spencer if you need any DTS follow-up. Thank you, Sally! All best, Elena Fink Deputy State Director, Natural Resources Bureau of Land Management, Eastern States 202 -912-7730 desk; 202?689?4861 cell On Thu, Apr 19, 2018 at 11:01 AM, Hawbecker, Karen wrote: Thank you, Elena. have just sumamed the version of the letter on DTS that you uploaded this morning and it is now with Dan Jorjani. As soon as he surnames, I will ask Exec Sec to replace the version of the letter that is in the folder for the Associate Deputy Secretary, so that he can complete his concurrence memo review. My understanding is that we will schedule a signing with Mitch and the Assistant Secretary on Tuesday, April 24. On Thu, Apr 19, 2018 at 10:53 AM, Fink, Elena wrote: Hello Karen, I have uploaded your edits into (version 9) and a clean version (version 10). I made one minor edit. I replaced 'it' with 'they' on the following sentence: ?After the issuance of the BLM requested the Forest Service's decision on whether they would consent to the renewal of the leases for a third time." (page 2, pp) Based on my conversation with Mitch, he will sign the rescission at the same time as Assistant Secretary Balash. Please let me know if you need anything else. Thank you. All best, Elena Fink Deputy State Director, Natural Resources Bureau of Land Management, Eastern States 202-912-7730 desk; 202-689-4861 cell On Wed, Apr 18, 2018 at 4:30 PM, Hawbecker, Karen wrote: Mitch and Elena, After further discussion with the Associate Deputy Secretary, the reinstatement letter will be signed by the Assistant Secretary after all. However, since I didn't surname the letter when it came through the Solicitor's Of?ce the ?rst time, I reviewed it today and have made a handful of additional edits to the letter. If you have no objections to my edits, as re?ected in redline in the attached version, I will upload a clean version of this on DTS and surname it and send it to Dan Jorjani for review. Once we have Dan's surname, I will then ask Exec Sec to replace the version of the letter that is in the Associate Deputy Secretary's ROD folder, so that he can sign the ROD concurrence memo before it goes to the Assistant Secretary for signature. Sorry about the last minute changes. --Karen On Tue, Apr 17, 2018 at 6:21 PM, Fink, Elena wrote: Hello Mitch, I uploaded the revised decision letter for concurrence by Deputy Secretary David Bernhardt into 13702. Would you please re?sign the decision letter? (I could not get the fonts to look consistent otherwise). Hello Sally, Would you please then scan the letter and upload into Hello Karen, Once ES-910 surnames in DTS, it will then go the the SOL (DAD). Please let me know if you need anything else. All best, Elena Fink Deputy State Director, Natural Resources Bureau of Land Management, Eastern States 202-912-7730 desk; 202?689?4861 cell On Tue, Apr 17, 2018 at 2:59 PM, Hawbecker, Karen wrote: I left a voicemail message for each of you earlier today about the Twin Metals reinstatement letter. We need to convert the concurrence signature bar on the reinstatement from ASLM to the Deputy Secretary. Could BLM Eastern States update that document and upload it in the DTS entry? (BLM 13702) As soon as that happens, I will surname and Dan will surname before it goes to the Deputy Secretary. Please call me if you have questions?2022084507. Thank you. ?Karen Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 karen.hawbecker sol.doi. ov Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202)208-4507 Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 karen.hawbecker sol.doi. ov "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Thu Apr 19 2018 16:17:23 GMT-0600 (MDT) To: "Fink, Elena" Mitchell Leverette Sally Spencer Barbara Eggers Subject: Re: Twin Metals Reinstatement Letter Okay. Thanks, Elena. --Karen On Thu, Apr 19, 2018 at 5:26 PM, Fink, Elena wrote: Thank you, Karen. Also, I wanted to let you know that I will be out of the office next week. Please contact Sally Spencer if you need any DTS follow-up. Thank you, Sally! best, Elena Fink Deputy State Director, Natural Resources Bureau of Land Management, Eastern States 202-912-7730 desk; 202?689?4861 cell On Thu, Apr 19, 2018 at 11:01 AM, Hawbecker, Karen wrote: Thank you, Elena. I have just sumamed the version of the letter on DTS that you uploaded this morning and it is now with Dan Jorjani. As soon as he surnames, I will ask Exec Sec to replace the version of the letter that is in the folder for the Associate Deputy Secretary, so that he can complete his concurrence memo review. My understanding is that we will schedule a signing with Mitch and the Assistant Secretary on Tuesday, April 24. On Thu, Apr 19, 2018 at 10:53 AM, Fink, Elena wrote: Hello Karen, I have uploaded your edits into (version 9) and a clean version (version 10). I made one minor edit. I replaced 'it' with 'they' on the following sentence: "After the issuance of M-37036, the BLM requested the Forest Service?s decision on whether they would consent to the renewal of the leases for a third time." (page 2, pp) Based on my conversation with Mitch, he will sign the rescission at the same time as Assistant Secretary Balash. Please let me know if you need anything else. Thank you. All best, Elena Fink Deputy State Director, Natural Resources Bureau of Land Management, Eastern States 202-912-7730 desk; 202-689-4861 cell On Wed, Apr 18, 2018 at 4:30 PM, Hawbecker, Karen wrote: Mitch and Elena, After further discussion with the Associate Deputy Secretary, the reinstatement letter will be signed by the Assistant Secretary after all. However, since I didn't surname the letter when it came through the Solicitor?s Of?ce the ?rst time, I reviewed it today and have made a handful of additional edits to the letter. If you have no objections to my edits, as re?ected in redline in the attached version, I will upload a clean version of this on DTS and surname it and send it to Dan Jorjani for review. Once we have Dan's surname, I will then ask Exec Sec to replace the version of the letter that is in the Associate Deputy Secretary's ROD folder, so that he can sign the ROD concurrence memo before it goes to the Assistant Secretary for signature. Sony about the last minute changes. ?Karen On Tue, Apr 17, 2018 at 6:21 PM, Fink, Elena wrote: Hello Mitch, I uploaded the revised decision letter for concurrence by Deputy Secretary David Bernhardt into Would you please re-sign the decision letter? (I could not get the fonts to look consistent otherwise). Hello Sally, Would you please then scan the letter and upload into 13702? Hello Karen, Once surnames in DTS, it will then go the the SOL (DAD). Please let me know if you need anything else. All best, Elena Fink Deputy State Director, Natural Resources Bureau of Land Management, Eastern States 202-912-7730 desk; 202-689-4861 cell On Tue, Apr 17, 2018 at 2:59 PM, Hawbecker, Karen wrote: I left a voicemail message for each of you earlier today about the Twin Metals reinstatement letter. We need to convert the concurrence Signature bar on the reinstatement from ASLM to the Deputy Secretary. Could BLM Eastem States update that document and upload it in the DTS entry? (BLM 13702) As soon as that happens, I will surname and Dan will surname before it goes to the Deputy Secretary. Please call me if you have questions?202-208-4507. Thank you. ?Karen Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 karen.hawbecker@sol.doi.oov Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Office: (202) 208-4507 karen.hawbecker sol.doi. ov Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202)208-4507 WNW Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Of?ce of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 karen.hawbecker sol.doi. ov Conversation Contents Fwd: lease reinstatement fyi Attachments: I78. Fwd: TMM lease reinstatement fyi/1.1 DRAFT If asked statement TMM reinstatement.docx I7 8. Fwd: TMM lease reinstatement fyil2.1 DRAFT If asked statement TMM reinstatement.docx Karen Hawbecker From: Karen Hawbecker Sent: Wed Apr 18 2018 17:48:34 GMT-0600 (MDT) To: briana.collier@sol.doi.gov Subject: Fwd: TMM lease reinstatement fyi Attachments: DRAFT If asked statement TMM reinstatement.docx Should we add a line that says ?The Assistant Secretary for Land and Minerals Management concurred in the decision"? Sent from my iPad Begin forwarded message: From: "Jorjani, Daniel" Date: April 18, 2018 at 6:36:50 PM EDT T0: Karen Hawbecker . Richard McNeer Subject: Fwd: TMM lease reinstatement -- fyi Forwarded message From: Newell, Russell Date: Wed, Apr 18, 2018 at 3:49 PM Subject: Fwd: TMM lease reinstatement fvi To: David Bemhardtm, Todd Willens , aniel Jorjani Cc: Laura Rigas FYSA - BLM's if-asked statement on Twin Metals. Russell Newell Deputy Director of Communications US. Department of the Interior (202) @lnten'or Forwarded message From: Winston, Beverly Date: Wed, Apr 18, 2018 at 12:38 PM Subject: TMM lease reinstatement -- fyi To: Heather Swift Faith Vander Voort Hello, Just ?agging this for you. It originated with SOL and has been cleared throughout BLM. We expect the action any day now. Comms is handled out of our Washington Of?ce. Bev DRAFT -- TMM If-Asked Statement April 13, 2018 (b) (5) -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 "McNeer, Richard" From: Sent: To: Subject: Attachments: "McNeer, Richard" Thu Apr 19 2018 07:51:17 GMT-0600 (MDT) "Hawbecker, Karen" Fwd: TMM lease reinstatement -- fyi DRAFT If asked statement TMM reinstatement.docx Karen: It is ok with me. Richard ---------- Forwarded message ---------From: Jorjani, Daniel Date: Wed, Apr 18, 2018 at 6:36 PM Subject: Fwd: TMM lease reinstatement -- fyi To: Karen Hawbecker , Richard McNeer OK? ---------- Forwarded message ---------From: Newell, Russell Date: Wed, Apr 18, 2018 at 3:49 PM Subject: Fwd: TMM lease reinstatement -- fyi To: David Bernhardt b(6) David Bernhardt >, Todd Willens , "Magallanes, Downey" , Daniel Jorjani Cc: Laura Rigas FYSA - BLM's if-asked statement on Twin Metals. Russell Newell Deputy Director of Communications US. Department of the Interior (202) 208-6232 @Interior Forwarded message From: Winston, Beverly Date: Wed, Apr 18, 2018 at 12:38 PM Subject: TMM lease reinstatement -- fyi To: Heather Swift Faith Vander Voort "Newell, Russell" Cc: Jeff Krauss Amber Cargile Hello, Just ?agging this for you. It originated with SOL and has been cleared throughout BLM. We expect the action any day now. Comms is handled out of our Washington Of?ce. Bev DRAFT -- TMM lf-Asked Statement April 13, 2018 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 "Collier, Briana" From: "Collier, Briana" Sent: Thu Apr 19 2018 08:14:12 GMT-0600 (MDT) To: Karen Hawbecker Subject: Re: TMM lease reinstatement -- fyi Hi Karen, This statement does contain the same language that we developed and sent to Bev. I think we could add your sentence on the ASLM's concurrence. It strikes me as a tad detailed for an if-asked statement, but on the other hand, I don't think it would hurt to include it. 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: (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. lfyou 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, Apr 18, 2018 at 5:48 PM, Karen Hawbecker wrote: Should we add a line that says ?The Assistant Secretary for Land and Minerals Management concurred in the decision"? Sent from my iPad Begin forwarded message: From: "Jorjani, Daniel" Date: April 18, 2018 at 6:36:50 PM EDT To: Karen Hawbecker Richard McNeer Subject: Fwd: TMM lease reinstatement -- fyi Forwarded message From: Newell, Russell Date: Wed, Apr 18, 2018 at 3:49 PM Subject: Fwd: TMM lease reinstatement - fvi To: David Bernhardt Todd Willens , aniel Jorjani Cc: Laura Rigas FYSA - BLM's if-asked statement on Twin Metals. Russell Newell Deputy Director of Communications US. Department of the Interior (202) 208-6232 @lnterior - Forwarded message - From: Winston, Beverly Date: Wed, Apr 18, 2018 at 12:38 PM Subject: TMM lease reinstatement -- fyi To: Heather Swift Faith Vander Voort Cc: Jeff Krauss Amber Cargile Hello, Just ?agging this for you. It originated with SOL and has been cleared throughout BLM. We expect the action any day now. Comms is handled out of our Washington Of?ce. Bev DRAFT TMM lf-Asked Statement April 13, 2018 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 "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Thu Apr 19 2018 08:54:06 GMT-0600 (MDT) To: "Collier, Briana" Subject: Re: TMM lease reinstatement -- fyi Okay. I'll leave that out. Thanks. ?Karen On Thu, Apr 19, 2018 at 10:14 AM, Collier, Briana wrote: Hi Karen, This statement does contain the same language that we developed and sent to Bev. I think we could add your sentence on the ASLM's concurrence. It strikes me as a tad detailed for an if-asked statement, but on the other hand, I don't think it would hurt to include it. 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: (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 othenivise 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, Apr 18, 2018 at 5:48 PM, Karen Hawbecker wrote: Should we add a line that says ?The Assistant Secretary for Land and Minerals Management concurred in the decision"? Sent from my iPad Begin forwarded message: From: "Jorjani, Daniel" Date: April 18, 2018 at 6:36:50 PM EDT To: Karen Hawbecker Richard McNeer Subject: Fwd: TMM lease reinstatement - fyi Forwarded message From: Newell, Russell Date: Wed, Apr 18, 2018 at 3:49 PM Subject: Fwd: TMM lease reinstatement -- fyi To: David Bernhardt Todd Willens Date: Wed, Apr 18, 2018 at 12:38 PM Subject: TMM lease reinstatement -- fyi To: Heather Swift Faith Vander Voort Hello, Just ?agging this for you. It originated with SOL and has been cleared throughout BLM. We expect the action any day now. Comms is handled out of our Washington Of?ce. Bev DRAFT -- TMM If-Asked Statement April 13, 2018 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 Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Office of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 karen.hawbecker@sol.doi.qov "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Thu Apr 19 2018 08:54:23 GMT-0600 (MDT) To: "McNeer, Richard" Subject: Re: TMM lease reinstatement -- fyi Thanks, Richard. On Thu, Apr 19, 2018 at 9:51 AM, McNeer, Richard wrote: Karen: It is ok with me. Richard Forwarded message From: Jorjani, Daniel Date: Wed, Apr 18, 2018 at 6:36 PM Subject: Fwd: TMM lease reinstatement -- fyi To: Karen Hawbecker Richard McNeer - Forwarded message From: Newell, Russell Date: Wed, Apr 18, 2018 at 3:49 PM Subject: Fwd: TMM lease reinstatement -- fvi To: David Bernhardt Todd Willens , anle Cc: Laura Rigas FYSA - BLM's if-asked statement on Twin Metals. Russell Newell Deputy Director of Communications US. Department of the Interior (202) 208-6232 @lnterior -- Forwarded message From: Winston, Beverly Date: Wed, Apr 18, 2018 at 12:38 PM Subject: TMM lease reinstatement -- fyi To: Heather Swift Faith Vander Voort "Newell, Russell" Isabel Benemelis Cc: Jeff Krauss Amber Cargile Hello, Just ?agging this for you. It originated with SOL and has been cleared throughout BLM. We expect the action any day now. Comms is handled out of our Washington Of?ce. Bev DRAFT - TMM If-Asked Statement April 13, 2018 (b) (5) -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 -Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Office of the Solicitor U.S. Department of the Interior 1849 C Street N.W. MS 6348 Washington, D.C. 20240 Office: (202) 208-4507 karen.hawbecker@sol.doi.gov "Hawbecker, Karen" From: Sent: To: CC: Subject: "Hawbecker, Karen" Thu Apr 19 2018 08:58:11 GMT-0600 (MDT) "Jorjani, Daniel" Richard McNeer Re: TMM lease reinstatement -- fyi Dan, This language looks good to us. I surnamed the draft reinstatement decision letter this morning and you will receive it shortly for review on DTS. BLM's current goal is to have the BLM Eastern States Director and the Assistant Secretary sign it on Tuesday, April 24. Thanks. --Karen On Wed, Apr 18, 2018 at 6:36 PM, Jorjani, Daniel wrote: OK? ---------- Forwarded message ---------From: Newell, Russell Date: Wed, Apr 18, 2018 at 3:49 PM Subject: Fwd: TMM lease reinstatement -- fyi To: David Bernhardt b(6) David Bernhardt >, Todd Willens , "Magallanes, Downey" , Daniel Jorjani Cc: Laura Rigas FYSA - BLM's if-asked statement on Twin Metals. Russell Newell Deputy Director of Communications U.S. Department of the Interior (202) 208-6232 @lnterior -- Forwarded message From: Winston, Beverly Date: Wed, Apr 18, 2018 at 12:38 PM Subject: TMM lease reinstatement -- fyi To: Heather Swift Cc: Jeff Krauss Amber Cargile Hello, Just ?agging this for you. It originated with SOL and has been cleared throughout BLM. We expect the action any day now. Comms is handled out of our Washington Of?ce. Bev DRAFT TMM lf-Asked Statement April 13, 2018 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 Karen Hawbecker Acting Deputy Solicitor Energy and Mineral Resources Office of the Solicitor US. Department of the Interior 1849 Street NW. MS 6348 Washington, DC. 20240 Of?ce: (202) 208-4507 karen.hawbecker@sol .doi.gov Conversation Contents Fwd: lease reinstatement fyi Attachments: I79. Fwd: TMM lease reinstatement fyi/1.1 DRAFT If asked statement TMM reinstatement.docx Karen Hawbecker From: Karen Hawbecker Sent: Wed Apr 18 2018 17:43:41 GMT-0600 (MDT) To: briana.collier@sol.doi.gov Subject: Fwd: TMM lease reinstatement fyi Attachments: DRAFT If asked statement TMM reinstatement.docx Briana, Is this the same language we developed? Thanks. ?Karen Sent from my iPad Begin forwarded message: From: "Jorjani, Daniel" Date: April 18, 2018 at 6:36:50 PM EDT T0: Karen Hawbecker Richard McNeer Subject: Fwd: TMM lease reinstatement -- fyi Forwarded message From: Newell, Russell Date: Wed, Apr 18, 2018 at 3:49 PM Subject: Fwd: TMM lease reinstatement - fvi To: David Bernhardt Todd Willens Cc: Laura Rigas FYSA - BLM's 'rf-asked statement on Twin Metals. Russell Newell Deputy Director of Communications US. Department of the Interior (202) @lnten?or Forwarded message From: Winston, Beverly Date: Wed, Apr 18, 2018 at 12:38 PM Subject: TMM lease reinstatement -- fyi To: Heather Swift Faith Vander Voort , "Newell, Russell" Isabel Benemelis Cc: Jeff Krauss Amber Cargile Hello, Just ?agging this for you. It originated with SOL and has been cleared throughout BLM. We expect the action any day now. Comms is handled out of our Washington Of?ce. Bev (b) (5) DRAFT -- TMM If-Asked Statement April 13, 2018 -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 Conversation Contents Fwd: TMM lease reinstatement fyi Attachments: I80. Fwd: TMM lease reinstatement fyi/1.1 DRAFT If asked statement TMM reinstatementdocx "Jorjani, Daniel" From: "Jorjani, Daniel" Sent: Wed Apr 18 2018 16:36:50 GMT-0600 (MDT) 0: Karen Hawbecker Richard McNeer Subject: Fwd: TMM lease reinstatement fyi Attachments: DRAFT If asked statement TMM reinstatementdocx Forwarded message From: Newell, Russell Date: Wed, Apr 18,2018 at 3:49 PM Subject: Fwd: TMM lease reinstatement -- fvi To: David Bernhardt Todd Willens , anIe orjani Cc: Laura Rigas FYSA - BLM's if-asked statement on Twin Metals. Russell Newell Deputy Director of Communications US. Department of the Interior (202) 208-6232 @lnterior Forwarded message From: Winston, Beverly Date: Wed, Apr 18,2018 at 12:38 PM Subject: TMM lease reinstatement -- fyi To: Heather Swift Faith Vander Voort "Newell, Russell" Isabel Benemelis Cc: Jeff Krauss Amber Cargile Hello, Just ?agging this for you. It originated with SOL and has been cleared throughout BLM. We expect the action any day now. Comms is handled out of our Washington Of?ce. Bev DRAFT -- TMM lf-Asked Statement Bev Winston Bureau of Land Management Communications 202-208-4602 Bev Winston Bureau of Land Management Communications 202-208-4602 Conversation Contents Revised TMNI reinstatement letter Attachments: I81. Revised TMM reinstatement letter/1.1 2018.04.18 redline.docx "Hawbecker, Karen" From: "Hawbecker, Karen" Sent: Wed Apr 18 2018 13:52:39 GMT-0600 (MDT) To: Briana Collier Subject: Revised TMM reinstatement letter Attachments: 2018.04.18 redline.docx Briana, Could you take a quick look at the edits I propose for the reinstatement letter? Thanks. --Karen "Collier, Briana" From: "Collier, Briana" Sent: Wed Apr 18 2018 13:54:34 GMT-0600 (MDT) To: "Hawbecker, Karen" Subject: Re: Revised TMM reinstatement letter Sure thing. Looking 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: (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. On Wed, Apr 18, 2018 at 1:52 PM, Hawbecker, Karen wrote: Briana, Could you take a quick look at the edits I propose for the reinstatement letter? Thanks. ?Karen Dnline Dnline anine RETURN IDF SERVICEIAFFIDAUTT ef Summens and Cernpleint Executed. JDSEPH SALASH sewed en 12 UNIFHEUIE BUREAU DF LAND MANAGEMENT sewed en MITCHELL LEUEREITE sewed en LLS. DEPARTMENT DF THE INTERIIDR sewed en Tr'f?fl?l?; RYAN EINRE sewed en {Whalem Erin} (Entered: 13 0313,2013 RETURN IDF SERVICEIAFFIDAUIT sf Summens and Cernplaint Executed en United States Atterney General. Date sf Sewice Upen United States Atterneyrr General DHDSIEDIB. [Whalem Erin} (Entered: RETURN OF SERUICEIAFFIDAUIT ef Summens and Cemplaint Executed as ten the United States Atterney. Date at 14 Sewice Upen United States Atterneyr en TISIEDIE. Answer due fer ALL FEDERAL DEFENDANTS by! DISIEDIB. [Whatem Erin] (Entered: Will-?21113) Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 1 of 23 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA THE WILDERNESS SOCIETY, 1615 M Street, NW, Washington, DC 20036; IZAAK WALTON LEAGUE OF AMERICA, 707 Conservation Lane, Gaithersburg, MD 20878; and CENTER FOR BIOLOGICAL DIVERSITY, P.O. Box 710, Tucson, AZ 85702-0710, Plaintiffs, v. RYAN ZINKE, in his official capacity as Secretary of the Interior, 1849 C Street NW, Washington, DC 20240; MITCHELL LEVERETTE, in his official capacity as Acting Eastern States Director for the Bureau of Land Management, 20 M Street SE Suite 950, Washington, DC 20003; JOSEPH BALASH, in his official capacity as Assistant Secretary for Land and Minerals Management for the U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240; BUREAU OF LAND MANAGEMENT, 1849 C Street NW, Rm. 5665, Washington, DC 20240; and U.S. DEPARTMENT OF THE INTERIOR, 1849 C Street NW, Washington, DC 20240; Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (5 U.S.C. §§ 701-706; 16 U.S.C. § 508b; 16 U.S.C. § 520; Sec. 402 of Reorganization Plan No. 3 of 1946; 43 U.S.C. § 1732) Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 2 of 23 SUMMARY 1. This action challenges an attempt by the Bureau of Land Management to rescind a final decision issued nearly one and a half years previously. The Bureau’s previous decision, dated December 15, 2016, denied an application from Twin Metals Minnesota to renew two hardrock mineral leases, MNES 01352 and MNES 01353 (“the Leases”), adjacent to the Boundary Waters Canoe Area Wilderness in the Superior National Forest. As a result, the Leases expired. However, on May 2, 2018, the Bureau purported to 1) rescind its December 2016 decision; 2) reinstate the version of the Leases that was in place at the time; and 3) reinstate Twin Metals’ renewal application (“the Rescind/Reinstate Decision”). This action challenges the Rescind/Reinstate Decision as being beyond the Bureau’s authority and arbitrary. 2. The Boundary Waters is the most visited wilderness in the United States, a 1,098,000-acre wilderness in the Superior National Forest in northeastern Minnesota treasured for its unique lakeland habitat. There is a direct hydrological connection between the Leases and the Boundary Waters. 3. Twin Metals intends to use the Leases to develop an underground copper-nickel sulfide ore mine. If built, such a mine would threaten the Boundary Waters with contamination and degradation. On December 14, 2016, the United States Forest Service informed the Bureau in a detailed and well-supported letter that the risk to the Boundary Waters from a copper-nickel sulfide ore mine is too great. The Forest Service, as the agency responsible for managing the surface of the leased land and the Boundary Waters, therefore denied its consent to the Leases. The Forest Service’s denial of consent was the basis for the Bureau’s December 15, 2016, denial of Twin Metals’ renewal application. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 1 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 3 of 23 4. There is no statutory, regulatory, or inherent authority for the Bureau’s rescission of its December 15, 2016, decision denying Twin Metals’ lease renewal application almost a year and a half after that decision became final. Furthermore, the Bureau’s May 2, 2018, decision is arbitrary and capricious because it is based on an unprecedented, erroneous interpretation of the Leases by the United States Department of the Interior, Office of the Solicitor (“the Solicitor”). For both of these reasons, the Bureau’s rescission of its previous decision is unlawful. JURISDICTION AND VENUE 5. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and may issue a declaratory judgment and further relief pursuant to 28 U.S.C. §§ 2201-2202. Judicial review is available under the Administrative Procedure Act, 5 U.S.C. §§ 701-706. 6. Venue is appropriate under 28 U.S.C. § 1391(e). PLAINTIFFS 7. Plaintiff The Wilderness Society, founded in 1935, is a national, non-profit membership organization devoted to protecting wilderness and inspiring Americans to care for wild places. It has led the effort to permanently protect 109 million acres of wilderness and ensure sound management of our shared national lands. The Wilderness Society has more than 1 million members and supporters, including over 2,600 members and 7,200 supporters in Minnesota, and has long worked to protect the Boundary Waters. A member of the Campaign to Save the Boundary Waters, The Wilderness Society has advocated for permanent protection of the Boundary Waters watershed from the threat of sulfide-ore copper mining, and has worked to inform the public about threats to the Boundary Waters, including with its 2017 report “Too Wild to Drill.” Members and staff of The Wilderness Society regularly visit the Boundary COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 2 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 4 of 23 Waters and surrounding Superior National Forest lands to paddle, hunt, fish, harvest wild rice, and enjoy the splendor of the areas’ pristine lakes, rivers, and forests. 8. Plaintiff Izaak Walton League of America (“the League”) is a non-profit membership organization devoted to conserving outdoor America for future generations. The League has more than 42,000 members and about 230 community-based chapters nationwide, including over 1,000 members in Minnesota. League members pledge “[t]o strive for the purity of water, the clarity of air, and the wise stewardship of the land and its resources; to know the beauty and understanding of nature and the value of wildlife, woodlands, and open space; to the preservation of this heritage and to man's sharing in it.” Beginning in about 2009, the League has worked to educate its members, the public, state and federal administrative agencies, and legislators about the potential impacts of copper-nickel mining in Minnesota by holding public forums, submitting comments and petitions, sponsoring and hosting informational events, litigating, meeting with agency decisionmakers, joining the Campaign to Save the Boundary Waters, and working with several other Minnesota organizations. In 2016, the League spoke against renewing the Leases at a Forest Service listening session and submitted petitions to the Forest Service asking that the Leases not be renewed. 9. Plaintiff Center for Biological Diversity (“the Center”) is a non-profit organization with over 63,000 members, with offices in Duluth and Minneapolis, Minnesota, as well as Arizona, California, Oregon, Washington, and a number of other states. The Center works to ensure the long-term health and viability of animal and plant species across the United States and elsewhere, and to protect the habitat these species need to survive. The Center believes that the health and vigor of human societies and the integrity and wildness of the natural environment are closely linked. The Center has advocated for northeastern Minnesota’s animal COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 3 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 5 of 23 and plant species in administrative processes and in court, including by commenting on miningrelated proposals, petitioning for Endangered Species Act protections for the Minnesota moose population, and joining litigation over proposed mining that would destroy habitat for Canada lynx and gray wolves in the Superior National Forest. The Center is a partner in the Campaign to Save the Boundary Waters. 10. Members of plaintiff groups, including John Ipsen and Jon Nelson, members of The Wilderness Society and Izaak Walton League, and Collette Adkins, a member of the Center for Biological Diversity, regularly use and enjoy—and intend to continue to use and enjoy, including this summer—the Boundary Waters, the leased land, and/or areas surrounding the leased land for various purposes, including recreation, wildlife viewing, education, research, photography, and/or esthetic and spiritual enjoyment. These and other members of plaintiff groups also enjoy or otherwise use migratory wildlife, fish, and birds from the Boundary Waters, the leased land, and/or areas surrounding the leased land. 11. The Bureau’s May 2, 2018, Rescind/Reinstate Decision directly and imminently injures plaintiff groups’ members’ interests. When the Bureau denied Twin Metals’ renewal application on December 15, 2016, the Bureau instructed the company to remediate existing boreholes and remove equipment from the Leases. Twin Metals has not fulfilled that obligation. Twin Metals’ and its predecessors’ past mineral activities on the Leases have left remnants of industrial activities on the site, including large pipes sticking up out of the ground and an unsightly bulk sample site, never fully remediated. Reinstating the Leases removes Twin Metals’ obligation to restore the leased public lands to a state suitable for other public uses. Reinstating the Leases also entitles Twin Metals to casual use of the leased lands, and to request permits for more extensive use of the leased lands under the purportedly valid mineral Leases. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 4 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 6 of 23 Since the Rescind/Reinstate Decision, Twin Metals has requested permission to drill additional wells on the leased land. Twin Metals has installed gates at entrances to public land on the Leases. These industrial activities and the ongoing failure to return the leased land to its previous condition interfere with plaintiffs’ members’ use and enjoyment of the leased land and surrounding lands by blocking access, and by causing noise, increased traffic, disturbance of wildlife, water quality reductions, and a landscape that is visibly degraded. These circumstances dissuade plaintiff groups’ members from visiting the leased land and surrounding lands, including the two nearby Boundary Waters entry points, and reduce the value of their experiences when they do visit. 12. The Rescind/Reinstate Decision interferes with plaintiffs’ members’ use and enjoyment of the leased land and surrounding lands by providing additional justification for Twin Metals’ mineral activity on state and federal public lands near the Leases. Twin Metals stated in a press release about the Rescind/Reinstate Decision that the Leases are “important components” of an underground mine project proposal. These industrial activities on state and federal public lands near the Leases interfere with plaintiffs’ members’ use and enjoyment of the leased land and surrounding lands by blocking access to public lands, and by causing noise, increased traffic, disturbance of wildlife, water quality reductions, and a landscape that is visibly degraded. 13. The Rescind/Reinstate Decision injures plaintiff groups’ members’ interests by making it likely that Twin Metals will develop a copper-nickel sulfide ore mine on the Leases. Following the Rescind/Reinstate Decision, Twin Metals stated that it is preparing a formal mine proposal to submit soon to state and federal agencies. A copper-nickel sulfide mine on the Leases would cause long-term harm to plaintiff groups’ members’ interests in the leased land and COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 5 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 7 of 23 surrounding lands, including the Boundary Waters and the two nearby Boundary Waters entry points, through increased noise, increased traffic, and visible degradation of the landscape on the Leased lands. It would damage plaintiff groups’ members’ esthetic, recreational, and other interests in the leased lands, the surrounding lands, and the Boundary Waters by causing ecological harm and creating an ongoing risk of additional ecological harm in those areas. Ecological harm would include degradation of water quality and its numerous indirect effects on fish, plants, and animals; loss of habitat due to occupation by mine facilities; disturbance of wildlife by noise and traffic; increased risk of the spread of invasive species; and degradation of air quality. Acid mine drainage is likely to occur, further decreasing water quality and multiplying harmful indirect effects to plants and animals. Collectively, these impacts would degrade the wilderness character of the Boundary Waters, including by fouling its pristine and interconnected waterways, disturbing its outstanding opportunities for solitude and primitive recreation, and diminishing its untrammeled, natural appearance. A mine would also deprive plaintiff groups’ members of access to the leased lands during the life of the mine, if not beyond. These harms are imminent and flow from the Rescind/Reinstate Decision. 14. The defendants’ unlawful actions adversely affect plaintiffs’ organizational interests in their members’ use and enjoyment of the Boundary Waters, the leased land, and areas surrounding the leased land. The Bureau’s May 2, 2018, Rescind/Reinstate Decision will directly injure these interests. 15. Each of the plaintiff groups monitors the integrity of the Boundary Waters ecosystem and activities in the Boundary Waters and the surrounding area that threaten the integrity of the Boundary Waters ecosystem. Each of the plaintiff groups monitors compliance with the law respecting the Boundary Waters and surrounding lands, educates its members and COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 6 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 8 of 23 the public concerning the management of these lands, and advocates policies and practices that protect the natural values and sustainable resources of these lands. It is impossible to achieve these organizational purposes fully without adequate information and public participation in the processes required by law for the management of these lands, and without appropriate administrative and legal repose in this context. The interests and organizational purposes of the plaintiffs will be directly and irreparably injured by defendants’ violations of law as described in this complaint. 16. Laws require the Bureau to consider wilderness, habitat, recreational, spiritual, non-extractive business, and other non-mining values on public lands when deciding whether to authorize mineral activity where the Leases are located. 16 U.S.C. § 508b; id. § 520; Sec. 402 of Reorganization Plan No. 3 of 1946; 43 C.F.R. § 3507.19(b); 43 U.S.C. § 1732(a). The Federal Land Policy and Management Act also requires the Secretary of the Interior, acting through the Bureau, “[i]n managing the public lands . . . [to] take any action necessary to prevent unnecessary or undue degradation of the lands.” 43 U.S.C. § 1732(b). Before authorizing mineral activity where the Leases are located, the Bureau is required by law to obtain the consent of the Forest Service, 16 U.S.C. § 508b, which has statutory duties to consider wilderness, habitat, recreational, spiritual, non-extractive business, and other non-mining values on National Forest System Lands in managing National Forest System Lands, see 16 U.S.C. § 1600(2), (3), and to preserve the wilderness character and values of the Boundary Waters, Pub. L. 95-495, 92 Stat. 1649 (1978), including by protecting the Boundary Waters from potentially harmful external activities. 16 U.S.C. § 1133(b). The laws described in this paragraph protect the interests of the plaintiff groups and their members in the Boundary Waters, the leased land, and the areas surrounding the leased land. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 7 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 9 of 23 DEFENDANTS 17. Defendant Ryan Zinke is sued in his official capacity as Secretary of the Interior. Secretary Zinke heads the United States Department of the Interior, the Cabinet-level agency responsible for the Rescind/Reinstate Decision. 18. Defendant Mitchell Leverette is sued in his official capacity as Acting Eastern States Director for the Bureau of Land Management. Mitchell Leverette was the first Bureau official to sign the Rescind/Reinstate Decision. 19. Defendant Joseph Balash is sued in his official capacity as Assistant Secretary for Land and Minerals Management for the United States Department of the Interior. Joseph Balash signed the Rescind/Reinstate Decision after Mitchell Leverette, concurring in that decision and making it final agency action. 20. Defendant Bureau of Land Management is an agency of the United States Department of the Interior authorized to allow mining on the land covered by the Leases on behalf of the Secretary of the Interior if it is in the best interests of the United States, and with the consent of the Secretary of Agriculture. 21. Defendant United States Department of the Interior is a Cabinet-level agency that manages the country’s natural and cultural resources. FACTS I. MINING ON THE LEASES WOULD POSE SERIOUS RISKS TO THE BOUNDARY WATERS CANOE AREA WILDERNESS. 22. The Boundary Waters is a 1,098,000-acre wilderness in the Superior National Forest in northeastern Minnesota. It is the most visited wilderness in the United States. The Boundary Waters contains over a thousand lakes, over 1,200 miles of canoe routes, and two thousand campsites. Visitors canoe the wilderness, as well as fish, hike, camp, ski, dog sled, COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 8 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 10 of 23 harvest wild rice and other edible wild plants, and hunt. Outfitters, guides, and other Minnesota businesses cater to visitors of the Boundary Waters, who generate about $44.5 million annually in economic benefits to the region. The Boundary Waters provides important habitat for loons, pike, trout, walleye, grouse, eagles, great gray owls, moose, deer, beavers, bears, wolves, bobcats, lynx, bats, waterfowl, over a hundred species of migratory breeding birds, and many other kinds of wildlife, including three species listed as threatened under the Endangered Species Act, 16 U.S.C. §§ 1531-1544. The United States Fish and Wildlife Service has designated the Boundary Waters and most of the Superior National Forest as critical habitat for the threatened Canada lynx. 23. For nearly a century, Congress and the Executive Branch have recognized that the Boundary Waters is a resource of national importance worthy of special consideration and protection. In 1909, President Theodore Roosevelt created the Superior National Forest from previously withdrawn public domain lands, including parts of the modern Boundary Waters. In 1926, United States Secretary of Agriculture W. M. Jardine set aside 640,000 acres of the Superior National Forest as roadless wilderness, writing “[t]he purpose of this program is to conserve the value of the Superior National Forest as a game and fish country . . . . Not less than one thousand square miles containing the best of the lakes and waterways will be kept as wilderness recreation areas." In 1938, the Forest Service established the Superior Roadless Primitive Area, whose boundaries were similar to the modern Boundary Waters and whose name was eventually changed to the Boundary Waters Canoe Area. In 1964, Congress passed the Wilderness Act “to secure for the American people of present and future generations the benefits of an enduring resource of wilderness,” making the Boundary Waters Canoe Area part of the new National Wilderness Preservation System. 16 U.S.C. § 1131(a). In 1978, Congress passed COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 9 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 11 of 23 the Boundary Waters Canoe Area Wilderness Act (“Boundary Waters Act”), which expanded and enhanced protections for the Boundary Waters and added a Mining Protection Area. Pub. L. No. 95-495, 92 Stat. 1649 (1978). Congress recognized “the special qualities of the area as a natural forest-lakeland wilderness ecosystem of major esthetic, cultural, scientific, recreational and educational value to the Nation,” and sought among other things to “minimize to the maximum extent possible, the environmental impacts associated with mineral development affecting” the Boundary Waters and Mining Protection Area. Id., §§ 1-2. 24. The Superior National Forest, including the Boundary Waters, is an outstanding fresh water resource. The Superior National Forest holds 20 percent of the fresh water in the entire National Forest System. These water-rich Minnesota forests purify water, sustain surface and ground water flow, maintain fish habitat, control erosion, and stabilize streambanks. 25. The Leases are adjacent to the Boundary Waters and are in the Rainy River watershed shared by the Boundary Waters. The Leases include approximately 4,864 acres of land in the Superior National Forest on either side of Minnesota Highway 1, southwest of Ely, Minnesota. Specifically, MNES 01353 lies immediately southwest of Boundary Waters entry points 32 and 33, which are at the South Kawishiwi River and Little Gabbro Lake, respectively. MNES 01352 is three miles to the southwest of those entry points, straddling the eastern end of Birch Lake, and extending along the south side of the South Kawishiwi River. Surface water in the leased area drains directly into the Boundary Waters and from there into Voyageurs National Park and the Quetico Provincial Park in Ontario, Canada. 26. Twin Metals intends to develop a copper-nickel sulfide ore mine on the Leases. A copper-nickel sulfide ore mine on the Leases would threaten the integrity of water resources in the Superior National Forest, including the Boundary Waters. The hydrogeology and high COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 10 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 12 of 23 degree of interconnectedness of water bodies in northeastern Minnesota makes the area especially susceptible to degradation of water quality. Surface waters of northeastern Minnesota are especially sensitive to changes in pH, acid deposition, and acid runoff. Unlike in some other regions, the bedrock, surficial deposits, and soils of northeastern Minnesota have little capacity to neutralize acids. 27. Mining in sulfide-bearing mineral deposits causes acid mine drainage. When sulfide in rock is exposed to air and water by mining, it produces a chemical reaction that creates sulfuric acid. Sulfuric acid then leaches heavy metals from the rock. When water collects the acid and metals and then drains or leaches from the mine site, the process is called acid mine drainage. All major elements of a mining operation can produce acid mine drainage. Hardrock mining in sulfide-bearing mineralizations is known worldwide for producing acid mine drainage that requires continuous management and perpetual treatment. With this continuous management and perpetual treatment come a perpetual risk of contamination due to treatment or containment failure, insolvency, political events, geological events, and weather events. Acid mine drainage can adversely affect fish populations and aquatic ecosystems by both direct effects on aquatic life and indirect effects on food supplies and habitat. 28. In the event that the Boundary Waters is contaminated by acid mine drainage from a copper-nickel sulfide ore mine on the Leases, it is unlikely that the damage could be successfully remediated. All or almost all of the methods available to remediate acid mine drainage would cause additional damage the Boundary Waters’ ecosystem, watershed, and wilderness values. 29. In the December 14, 2016, letter withholding its consent to renewal of the Leases, the Forest Service found that developing a copper-nickel sulfide ore mine on the Leases would COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 11 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 13 of 23 pose an unacceptable risk to the Boundary Waters of pollution from acid mine drainage. The Forest Service found that “any degree of contamination of the [Boundary Waters] by [acid mine drainage] and leached metals has the potential to seriously degrade the wilderness area’s character and quality” and that, if the Boundary Waters is contaminated, it is unlikely the pollution can be effectively remediated in a manner consistent with the Boundary Waters’ wilderness character. The Forest Service also found that developing a mine on the Leases could cause habitat fragmentation and degradation harmful to migratory wildlife species that use the Boundary Waters. II. THE BUREAU ISSUED THE LEASES FOR TWENTY YEARS, AND THEN GRANTED TWO TEN-YEAR RENEWALS. 30. The Bureau originally issued leases MNES 01352 and MNES 01353 to the International Nickel Company, Inc. on June 14, 1966, for a primary term of twenty years. The purpose of the Leases was to grant an exclusive right to mine for nickel, copper, and associated minerals on the leased land. After the Bureau granted the Leases to the International Nickel Company, the Leases were assigned to new entities three times. Twin Metals is now the successor in interest of the International Nickel Company with respect to the Leases. No lessee has developed a mine or begun any mineral production on the Leases. There is no record showing that the Forest Service consented to the Leases prior to June 14, 1966. 31. On May 14, 1986, the lessee applied to renew the Leases. On June 8, 1986, the Bureau requested that the Forest Service advise the Bureau whether the Forest Service had any objections to renewal of the Leases. On June 19, 1987, the Forest Service consented to renewal of the Leases for a ten-year period. The Bureau renewed the Leases for a ten-year period effective July 1, 1989. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 12 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 14 of 23 32. On March 25, 1999, the Bureau requested the Forest Service’s recommendation regarding a second request by the lessee to renew the Leases. On July 18, 2003, the Forest Service replied that it had no objection. The Bureau renewed the Leases for a second ten-year period on January 1, 2004. 33. III. On October 21, 2012, Twin Metals applied for a third renewal of the Leases. THE DEPARTMENT OF THE INTERIOR FOUND THAT THE 2004 LEASES PRESERVED THE BUREAU’S DISCRETION TO DENY RENEWAL, AND THE BUREAU DENIED RENEWAL. 34. At some time prior to March 8, 2016, the Bureau requested a Solicitor’s opinion on whether the Bureau had discretion to grant or deny Twin Metals’ October 21, 2012, application to renew the Leases. On March 8, 2016, Solicitor Hilary Tompkins issued Memorandum M-37036 (“Tompkins Opinion”), wherein the Solicitor, consistent with earlier advice, concluded that the Bureau had discretion to grant or deny the most recent renewal request. 35. The Tompkins Opinion relied primarily upon the conclusion that the Leases as renewed in 2004 are the operative contracts and are preference right leases, meaning there is no guarantee of renewal. The 2004 version of the Leases is titled “PREFERENCE RIGHT LEASE RENEWAL.” The Leases provided that they were issued “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.” The lessee signed this 2004 version of the Leases. 36. The Tompkins Opinion explained that the Department of the Interior’s consistent interpretation of a “preferential right” to renew, including as that term is used in the standard lease form on which the Bureau executed the 2004 renewals, is that it is not a guarantee of lease COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 13 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 15 of 23 renewal. Under such a preference right lease, the Bureau has the discretion to deny lease renewal, even if the lessee is meeting all of its lease obligations. A preference right lease for hardrock minerals simply and only gives the lessee a right to be preferred over others if the Bureau grants lease renewal. 37. The Tompkins Opinion rejected an argument Twin Metals had made that the operative terms and conditions were those contained in the 1966 version of the Leases, rather than the actual terms included in the 2004 Leases signed by the lessee. Twin Metals’ argument was based on extrinsic evidence about the circumstances surrounding the 1989 renewal of the Leases. Solicitor Tompkins determined that “rely[ing] on extrinsic evidence to attempt to negate the 2004 lease terms does not comply with the law of contracts,” explaining that, “[t]he 2004 leases are each complete, integrated documents that contain all necessary lease terms and are duly signed by the lessee and lessor.” 38. Although Solicitor Tompkins determined that it was not appropriate to rely on prior versions of the lease and the course of dealings, she concluded that the result would be the same even if they were considered. Solicitor Tompkins noted that section five of the 1966 Leases allows for a one-time, ten-year extension of the initial twenty-year deadline for commencement of the mineral production necessary for renewal on the same terms and conditions as the 1966 Leases. She concluded that the Bureau granted the 1989 renewal in conjunction with such an extension, which would have been consistent with the Solicitor’s advice at the time. 39. In Solicitor Tompkins’ analysis, the 2004 renewal was the first renewal not associated with an extension of the deadline for commencement of production. Thus, Solicitor Tompkins concluded that because the lessee had not commenced production, the Bureau had COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 14 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 16 of 23 discretion in 2004 to impose new terms and conditions, and did so, changing the renewal term, among others. 40. In light of Solicitor Tompkins’ conclusion that the Bureau had discretion to deny the lessee’s third application to renew the Leases, on June 3, 2016, the Bureau requested a decision from the Forest Service on whether it consented to a third renewal. The Forest Service solicited public input on the issue and held two listening sessions in Minnesota. On December 14, 2016, after months of deliberation, the Forest Service responded to the Bureau by withholding consent to the third renewal of the Leases. In its response, the Forest Service cited the irreplaceable nature of the Boundary Waters and the potentially extreme risks to the Boundary Waters that would be posed by a copper-nickel sulfide ore mine on the Leases. The Forest Service concluded that failing to prevent damage to the Boundary Waters that could be caused by mining on the Leases would be inconsistent with its obligations under the Boundary Waters Act. 41. On December 15, 2016, the Bureau rejected Twin Metals’ October 2012 application to renew the Leases, citing the Forest Service’s denial of consent. Pursuant to the Bureau’s own regulations, the Leases expired upon Twin Metals’ receipt of the Bureau’s decision rejecting the application. See 43 C.F.R. § 3514.25(a). The Bureau directed Twin Metals to remove equipment from the leased area and remediate existing boreholes. IV. THE DEPARTMENT OF THE INTERIOR REVERSED COURSE AND REINSTATED THE LEASES. 42. On December 22, 2017, more than a year after the Leases expired and more than five years after the last renewal application, Principal Deputy Solicitor Daniel Jorjani issued a new opinion about the Leases, Memorandum M-37049 (“Jorjani Opinion”). The Jorjani Opinion COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 15 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 17 of 23 withdraws and replaces the Tompkins Opinion, and, contrary to the Tompkins Opinion, concludes that the Bureau had no discretion to deny Twin Metals’ 2012 renewal request. 43. The Jorjani Opinion determined that it is necessary to look outside the plain language of the 2004 Leases to determine whether the Bureau had discretion to deny Twin Metals’ 2012 renewal application. Principal Deputy Solicitor Jorjani noted that the 2004 Leases contain no integration clause, and argued the 2004 Leases are ambiguous because it is unclear precisely which parts of the 1966 Leases are incorporated. In fact, the 2004 Leases specify which parts of the original Leases are incorporated. Section 14 of the 2004 Leases, titled “SPECIAL STIPULATIONS,” states: * The terms and conditions of the production royalties remains [sic] 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. In section 2 of the 2004 Leases, which contains standard “PRODUCTION ROYALTIES” and “MINIMUM ANNUAL PRODUCTION AND MINIMUM ROYALTY” terms, a corresponding “*” and “**” appear, referencing the special stipulations. The 2004 Leases do not state or otherwise signify that any renewal term from the 1966 Leases is incorporated, or that any term from the 1966 Leases is incorporated other than the production royalty and minimum annual production and minimum royalty terms. Several terms of the 2004 Leases revise, add to, or even expressly contradict—and thus replace—the 1966 Lease terms, including the preference right renewal terms. 44. Determining that he could ignore the language of the 2004 Leases, Principal Deputy Solicitor Jorjani concluded that evidence extrinsic to the 2004 Leases indicates the Bureau intended the 2004 Leases to be on the same terms and conditions as the 1966 Leases. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 16 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 18 of 23 Based on communications between the Bureau and the lessee and within the Bureau, Principal Deputy Solicitor Jorjani concluded that the Leases were renewed in 1989 on the same terms and conditions as the original Leases. Prior to the 1989 renewal, the Bureau initially offered leases on substantially different terms than the 1966 Leases. These leases were only preference right leases and had numerous different terms, including new royalty provisions. After exchanges with the lessee, the Bureau reverted to the original 1966 royalty provisions, but retained in the 1989 renewals the new preference right lease terms. On several occasions during these exchanges, Bureau staff had commented that renewal would be on the same terms and conditions as the 1966 Leases. Ultimately, in 1989, the Bureau transmitted a renewal copy with preference right renewal terms virtually identical to the 2004 Leases and the lessee signed the renewal. Based only on some statements by Bureau staff at the time and ignoring the plain language of the Leases as issued and signed in 1989, the Jorjani Opinion concluded the 1989 renewal was on exactly the same terms as the 1966 leases. 45. Because the 1989 and 2004 versions of the Leases are nearly identical, Principal Deputy Solicitor Jorjani concluded that the 2004 renewal of the Leases was also on the same terms and conditions as the 1966 Leases. Principal Deputy Solicitor Jorjani also interpreted the 1966 Leases as creating a right to unlimited successive 10-year renewals. Therefore, the Jorjani Opinion concluded that the Twin Metals had a right to renew in 2012, and that the Bureau did not have discretion to deny Twin Metals’ renewal application. 46. On May 2, 2018, more than 18 months after the Leases expired, the Bureau issued the Rescind/Reinstate Decision that is the subject of this complaint, purporting to rescind its December 15, 2016, decision denying Twin Metals’ 2012 application to renew the Leases. At the same time, the Bureau reinstated the Leases as written in 2004, as well as Twin Metals’ 2012 COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 17 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 19 of 23 application to renew the Leases. The Bureau adopted the conclusions in the Jorjani Opinion as the basis for the Rescind/Reinstate Decision. United States Department of the Interior Assistant Secretary Joseph Balash signed concurring in the Rescind/Reinstate decision, making it the Bureau’s final decision and rendering the decision ineligible for appeal to the Interior Board of Land Appeals. LEGAL BACKGROUND 47. Mineral leasing on more than ninety percent of the land that is the subject of the Leases is governed by 16 U.S.C. § 508b. This provision allows the Secretary of the Interior to permit mineral prospecting, development, and utilization on certain lands in the national forests in Minnesota that are withdrawn from the mining laws of the United States. Id. In doing so, the Secretary of the Interior must act in the best interests of the United States. Id. The Secretary of the Interior cannot permit mineral development or utilization on § 508b lands without the consent of the Secretary of Agriculture. Id. 48. In determining whether to consent to mineral development or utilization on § 508b lands, the Forest Service acting for the Secretary of Agriculture is bound by the Wilderness Act, Boundary Waters Act, and the National Forest Management Act (NFMA). The Wilderness Act makes the Forest Service responsible for preserving the wilderness character of the Boundary Waters, including by protecting the Boundary Waters from potentially harmful external activities. See 16 U.S.C. § 1133(b). The Boundary Waters Act directs the Forest Service to “minimize to the maximum extent possible, the environmental impacts associated with mineral development affecting” the Boundary Waters and Mining Protection Area. Pub. L. 95-495, §§ 1-2, 92 Stat. 1649 (1978). NFMA requires the Forest Service to consider wilderness, COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 18 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 20 of 23 habitat, recreational, spiritual, non-extractive business, and other non-mining values on National Forest System Lands when managing those lands. See 16 U.S.C. § 1600(2)-(3). 49. Mineral leasing on the remainder of the land that is the subject of the Leases is governed by 16 U.S.C. § 520. This provision allows the Secretary of Agriculture to permit mineral prospecting, development, and utilization on forest lands acquired under the Weeks Act. Id. In doing so, the Secretary of Agriculture must act in the best interests of the United States. Id. Section 402 of Reorganization Plan No. 3 of 1946 transfers the functions of the Secretary of Agriculture under § 520 to the Secretary of the Interior, but provides that the Secretary of the Interior may only authorize mineral activity when the Secretary of Agriculture determines that it will not interfere with the primary purposes for which the land was acquired. The Bureau, acting for the Secretary of the Interior, considers environmental impacts before granting a lease under Section 402 of Reorganization Plan No. 3 of 1946. 43 C.F.R. § 3507.19(b). 50. The Federal Land Policy and Management Act (FLPMA) requires the Bureau to “manage the public lands under principles of multiple use and sustained yield,” and to “take any action necessary to prevent unnecessary or undue degradation of the lands.” 43 U.S.C. § 1732. These principles require balancing the potential economic benefits of additional mining against the possible risks to environmental and cultural resources. 51. 16 U.S.C. § 508b, 16 U.S.C. § 520, Section 402 of Reorganization Plan No. 3 of 1946, and FLPMA (“the Leasing Statutes”) require the Bureau to consider environmental values on public lands on and around the Leases, including the Boundary Waters, in exercising its discretion with respect to the Leases. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 19 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 21 of 23 CAUSES OF ACTION COUNT I—ACTION WITHOUT LEGAL AUTHORITY 52. The Bureau’s December 15, 2016, decision was final. 53. The Leases expired when Twin Metals received the Bureau’s December 15, 2016, decision. 54. The Bureau had no statutory, regulatory, or inherent authority to rescind its December 15, 2016, decision and/or to resurrect and reinstate expired Leases. 55. The Bureau therefore acted without authority in issuing the Rescind/Reinstate Decision. Its action is of no effect and should be held unlawful and set aside under the Administrative Procedure Act, 5 U.S.C. § 706(2). COUNT II—ARBITRARY LEASE REINSTATEMENT 56. The 2004 Leases are fully integrated contracts, and there is no ambiguity in their renewal terms. They are preference right leases that preserve the Bureau’s authority to deny a subsequent renewal. 57. The Bureau’s denial of renewal in 2016 was authorized by the 2004 Leases, was required by the Forest Service’s refusal to consent, and resulted in the expiration of the Leases. 58. The Bureau’s Rescind/Reinstate Decision is based on an erroneous interpretation of the Leases, relying on an unjustified examination of extrinsic materials, and resulted in an arbitrary conclusion that the Bureau lacked authority to deny a third renewal of the Leases. 59. Even if it were necessary to resort to extrinsic evidence to interpret the 2004 Leases, the Jorjani Opinion’s analysis misinterpreted the 1966 Leases and is also contrary to the evidence relating to the 1989 renewal. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 20 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 22 of 23 60. As a result of the Bureau’s arbitrary conclusion that it lacked authority to deny a third renewal of the Leases, in issuing the Rescind/Reinstate Decision, the Bureau unlawfully abdicated duties imposed by the Leasing Statutes to protect the lands and waters of the Superior National Forest and the Boundary Waters, and to consider the value of multiple uses of those lands, which plaintiffs’ members use and enjoy. 61. The Bureau’s Rescind/Reinstate Decision is arbitrary and capricious and not in accordance with law under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), and violates the Leasing Statutes. PRAYER FOR RELIEF Therefore, plaintiffs respectfully request that the Court: 1. Declare that the defendants have acted without authority in issuing the Rescind/Reinstate Decision; 2. Declare that defendants have violated the Leasing Statutes by arbitrarily adopting an erroneous interpretation of the leases that would constrain the Bureau and the Forest Service from fulfilling their statutory obligations with respect to the leased land and surrounding public lands, including the Boundary Waters; 3. Vacate the Bureau’s Rescind/Reinstate Decision; 4. Enter any other appropriate injunctive relief to ensure that the defendants comply with the Leasing Statutes and the Administrative Procedure Act, and to prevent irreparable harm to the plaintiffs and to the environment until such compliance occurs; 5. Award plaintiffs the costs of this action, including reasonable attorneys’ fees, pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; and 6. Grant such other relief as the Court deems just and proper. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 21 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 23 of 23 Dated this 25th day of June, 2018. Respectfully submitted, s/ Eric P. Jorgensen Eric P. Jorgensen (DC Bar No. 88897) EARTHJUSTICE 325 Fourth Street Juneau, AK 99801 T: 907.586.2751 E: ejorgensen@earthjustice.org s/ Erin Whalen Erin Whalen (pro hac vice pending) EARTHJUSTICE 325 Fourth Street Juneau, AK 99801 T: 907.586.2751 E: ewhalen@rearthjustice.org s/ Janette K. Brimmer Janette K. Brimmer (pro hac vice pending) EARTHJUSTICE 705 Second Avenue, Suite 203 Seattle, WA 98104 T: 206.343.1029 E: jbrimmer@earthjustice.org Attorneys for Plaintiffs The Wilderness Society, Izaak Walton League of America, and Center for Biological Diversity. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 22 Dnline Dnline anine RETURN IDF SERVICEIAFFIDAUTT ef Summens and Cernpleint Executed. JDSEPH SALASH sewed en 12 UNIFHEUIE BUREAU DF LAND MANAGEMENT sewed en MITCHELL LEUEREITE sewed en LLS. DEPARTMENT DF THE INTERIIDR sewed en Tr'f?fl?l?; RYAN EINRE sewed en {Whalem Erin} (Entered: 13 0313,2013 RETURN IDF SERVICEIAFFIDAUIT sf Summens and Cernplaint Executed en United States Atterney General. Date sf Sewice Upen United States Atterneyrr General DHDSIEDIB. [Whalem Erin} (Entered: RETURN OF SERUICEIAFFIDAUIT ef Summens and Cemplaint Executed as ten the United States Atterney. Date at 14 Sewice Upen United States Atterneyr en TISIEDIE. Answer due fer ALL FEDERAL DEFENDANTS by! DISIEDIB. [Whatem Erin] (Entered: Will-?21113) Dnline Dnline anine RETURN IDF SERVICEIAFFIDAUTT ef Summens and Cernpleint Executed. JDSEPH SALASH sewed en 12 UNIFHEUIE BUREAU DF LAND MANAGEMENT sewed en MITCHELL LEUEREITE sewed en LLS. DEPARTMENT DF THE INTERIIDR sewed en Tr'f?fl?l?; RYAN EINRE sewed en {Whalem Erin} (Entered: 13 0313,2013 RETURN IDF SERVICEIAFFIDAUIT sf Summens and Cernplaint Executed en United States Atterney General. Date sf Sewice Upen United States Atterneyrr General DHDSIEDIB. [Whalem Erin} (Entered: RETURN OF SERUICEIAFFIDAUIT ef Summens and Cemplaint Executed as ten the United States Atterney. Date at 14 Sewice Upen United States Atterneyr en TISIEDIE. Answer due fer ALL FEDERAL DEFENDANTS by! DISIEDIB. [Whatem Erin] (Entered: Will-?21113) Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 1 of 23 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA THE WILDERNESS SOCIETY, 1615 M Street, NW, Washington, DC 20036; IZAAK WALTON LEAGUE OF AMERICA, 707 Conservation Lane, Gaithersburg, MD 20878; and CENTER FOR BIOLOGICAL DIVERSITY, P.O. Box 710, Tucson, AZ 85702-0710, Plaintiffs, v. RYAN ZINKE, in his official capacity as Secretary of the Interior, 1849 C Street NW, Washington, DC 20240; MITCHELL LEVERETTE, in his official capacity as Acting Eastern States Director for the Bureau of Land Management, 20 M Street SE Suite 950, Washington, DC 20003; JOSEPH BALASH, in his official capacity as Assistant Secretary for Land and Minerals Management for the U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240; BUREAU OF LAND MANAGEMENT, 1849 C Street NW, Rm. 5665, Washington, DC 20240; and U.S. DEPARTMENT OF THE INTERIOR, 1849 C Street NW, Washington, DC 20240; Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (5 U.S.C. §§ 701-706; 16 U.S.C. § 508b; 16 U.S.C. § 520; Sec. 402 of Reorganization Plan No. 3 of 1946; 43 U.S.C. § 1732) Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 2 of 23 SUMMARY 1. This action challenges an attempt by the Bureau of Land Management to rescind a final decision issued nearly one and a half years previously. The Bureau’s previous decision, dated December 15, 2016, denied an application from Twin Metals Minnesota to renew two hardrock mineral leases, MNES 01352 and MNES 01353 (“the Leases”), adjacent to the Boundary Waters Canoe Area Wilderness in the Superior National Forest. As a result, the Leases expired. However, on May 2, 2018, the Bureau purported to 1) rescind its December 2016 decision; 2) reinstate the version of the Leases that was in place at the time; and 3) reinstate Twin Metals’ renewal application (“the Rescind/Reinstate Decision”). This action challenges the Rescind/Reinstate Decision as being beyond the Bureau’s authority and arbitrary. 2. The Boundary Waters is the most visited wilderness in the United States, a 1,098,000-acre wilderness in the Superior National Forest in northeastern Minnesota treasured for its unique lakeland habitat. There is a direct hydrological connection between the Leases and the Boundary Waters. 3. Twin Metals intends to use the Leases to develop an underground copper-nickel sulfide ore mine. If built, such a mine would threaten the Boundary Waters with contamination and degradation. On December 14, 2016, the United States Forest Service informed the Bureau in a detailed and well-supported letter that the risk to the Boundary Waters from a copper-nickel sulfide ore mine is too great. The Forest Service, as the agency responsible for managing the surface of the leased land and the Boundary Waters, therefore denied its consent to the Leases. The Forest Service’s denial of consent was the basis for the Bureau’s December 15, 2016, denial of Twin Metals’ renewal application. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 1 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 3 of 23 4. There is no statutory, regulatory, or inherent authority for the Bureau’s rescission of its December 15, 2016, decision denying Twin Metals’ lease renewal application almost a year and a half after that decision became final. Furthermore, the Bureau’s May 2, 2018, decision is arbitrary and capricious because it is based on an unprecedented, erroneous interpretation of the Leases by the United States Department of the Interior, Office of the Solicitor (“the Solicitor”). For both of these reasons, the Bureau’s rescission of its previous decision is unlawful. JURISDICTION AND VENUE 5. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and may issue a declaratory judgment and further relief pursuant to 28 U.S.C. §§ 2201-2202. Judicial review is available under the Administrative Procedure Act, 5 U.S.C. §§ 701-706. 6. Venue is appropriate under 28 U.S.C. § 1391(e). PLAINTIFFS 7. Plaintiff The Wilderness Society, founded in 1935, is a national, non-profit membership organization devoted to protecting wilderness and inspiring Americans to care for wild places. It has led the effort to permanently protect 109 million acres of wilderness and ensure sound management of our shared national lands. The Wilderness Society has more than 1 million members and supporters, including over 2,600 members and 7,200 supporters in Minnesota, and has long worked to protect the Boundary Waters. A member of the Campaign to Save the Boundary Waters, The Wilderness Society has advocated for permanent protection of the Boundary Waters watershed from the threat of sulfide-ore copper mining, and has worked to inform the public about threats to the Boundary Waters, including with its 2017 report “Too Wild to Drill.” Members and staff of The Wilderness Society regularly visit the Boundary COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 2 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 4 of 23 Waters and surrounding Superior National Forest lands to paddle, hunt, fish, harvest wild rice, and enjoy the splendor of the areas’ pristine lakes, rivers, and forests. 8. Plaintiff Izaak Walton League of America (“the League”) is a non-profit membership organization devoted to conserving outdoor America for future generations. The League has more than 42,000 members and about 230 community-based chapters nationwide, including over 1,000 members in Minnesota. League members pledge “[t]o strive for the purity of water, the clarity of air, and the wise stewardship of the land and its resources; to know the beauty and understanding of nature and the value of wildlife, woodlands, and open space; to the preservation of this heritage and to man's sharing in it.” Beginning in about 2009, the League has worked to educate its members, the public, state and federal administrative agencies, and legislators about the potential impacts of copper-nickel mining in Minnesota by holding public forums, submitting comments and petitions, sponsoring and hosting informational events, litigating, meeting with agency decisionmakers, joining the Campaign to Save the Boundary Waters, and working with several other Minnesota organizations. In 2016, the League spoke against renewing the Leases at a Forest Service listening session and submitted petitions to the Forest Service asking that the Leases not be renewed. 9. Plaintiff Center for Biological Diversity (“the Center”) is a non-profit organization with over 63,000 members, with offices in Duluth and Minneapolis, Minnesota, as well as Arizona, California, Oregon, Washington, and a number of other states. The Center works to ensure the long-term health and viability of animal and plant species across the United States and elsewhere, and to protect the habitat these species need to survive. The Center believes that the health and vigor of human societies and the integrity and wildness of the natural environment are closely linked. The Center has advocated for northeastern Minnesota’s animal COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 3 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 5 of 23 and plant species in administrative processes and in court, including by commenting on miningrelated proposals, petitioning for Endangered Species Act protections for the Minnesota moose population, and joining litigation over proposed mining that would destroy habitat for Canada lynx and gray wolves in the Superior National Forest. The Center is a partner in the Campaign to Save the Boundary Waters. 10. Members of plaintiff groups, including John Ipsen and Jon Nelson, members of The Wilderness Society and Izaak Walton League, and Collette Adkins, a member of the Center for Biological Diversity, regularly use and enjoy—and intend to continue to use and enjoy, including this summer—the Boundary Waters, the leased land, and/or areas surrounding the leased land for various purposes, including recreation, wildlife viewing, education, research, photography, and/or esthetic and spiritual enjoyment. These and other members of plaintiff groups also enjoy or otherwise use migratory wildlife, fish, and birds from the Boundary Waters, the leased land, and/or areas surrounding the leased land. 11. The Bureau’s May 2, 2018, Rescind/Reinstate Decision directly and imminently injures plaintiff groups’ members’ interests. When the Bureau denied Twin Metals’ renewal application on December 15, 2016, the Bureau instructed the company to remediate existing boreholes and remove equipment from the Leases. Twin Metals has not fulfilled that obligation. Twin Metals’ and its predecessors’ past mineral activities on the Leases have left remnants of industrial activities on the site, including large pipes sticking up out of the ground and an unsightly bulk sample site, never fully remediated. Reinstating the Leases removes Twin Metals’ obligation to restore the leased public lands to a state suitable for other public uses. Reinstating the Leases also entitles Twin Metals to casual use of the leased lands, and to request permits for more extensive use of the leased lands under the purportedly valid mineral Leases. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 4 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 6 of 23 Since the Rescind/Reinstate Decision, Twin Metals has requested permission to drill additional wells on the leased land. Twin Metals has installed gates at entrances to public land on the Leases. These industrial activities and the ongoing failure to return the leased land to its previous condition interfere with plaintiffs’ members’ use and enjoyment of the leased land and surrounding lands by blocking access, and by causing noise, increased traffic, disturbance of wildlife, water quality reductions, and a landscape that is visibly degraded. These circumstances dissuade plaintiff groups’ members from visiting the leased land and surrounding lands, including the two nearby Boundary Waters entry points, and reduce the value of their experiences when they do visit. 12. The Rescind/Reinstate Decision interferes with plaintiffs’ members’ use and enjoyment of the leased land and surrounding lands by providing additional justification for Twin Metals’ mineral activity on state and federal public lands near the Leases. Twin Metals stated in a press release about the Rescind/Reinstate Decision that the Leases are “important components” of an underground mine project proposal. These industrial activities on state and federal public lands near the Leases interfere with plaintiffs’ members’ use and enjoyment of the leased land and surrounding lands by blocking access to public lands, and by causing noise, increased traffic, disturbance of wildlife, water quality reductions, and a landscape that is visibly degraded. 13. The Rescind/Reinstate Decision injures plaintiff groups’ members’ interests by making it likely that Twin Metals will develop a copper-nickel sulfide ore mine on the Leases. Following the Rescind/Reinstate Decision, Twin Metals stated that it is preparing a formal mine proposal to submit soon to state and federal agencies. A copper-nickel sulfide mine on the Leases would cause long-term harm to plaintiff groups’ members’ interests in the leased land and COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 5 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 7 of 23 surrounding lands, including the Boundary Waters and the two nearby Boundary Waters entry points, through increased noise, increased traffic, and visible degradation of the landscape on the Leased lands. It would damage plaintiff groups’ members’ esthetic, recreational, and other interests in the leased lands, the surrounding lands, and the Boundary Waters by causing ecological harm and creating an ongoing risk of additional ecological harm in those areas. Ecological harm would include degradation of water quality and its numerous indirect effects on fish, plants, and animals; loss of habitat due to occupation by mine facilities; disturbance of wildlife by noise and traffic; increased risk of the spread of invasive species; and degradation of air quality. Acid mine drainage is likely to occur, further decreasing water quality and multiplying harmful indirect effects to plants and animals. Collectively, these impacts would degrade the wilderness character of the Boundary Waters, including by fouling its pristine and interconnected waterways, disturbing its outstanding opportunities for solitude and primitive recreation, and diminishing its untrammeled, natural appearance. A mine would also deprive plaintiff groups’ members of access to the leased lands during the life of the mine, if not beyond. These harms are imminent and flow from the Rescind/Reinstate Decision. 14. The defendants’ unlawful actions adversely affect plaintiffs’ organizational interests in their members’ use and enjoyment of the Boundary Waters, the leased land, and areas surrounding the leased land. The Bureau’s May 2, 2018, Rescind/Reinstate Decision will directly injure these interests. 15. Each of the plaintiff groups monitors the integrity of the Boundary Waters ecosystem and activities in the Boundary Waters and the surrounding area that threaten the integrity of the Boundary Waters ecosystem. Each of the plaintiff groups monitors compliance with the law respecting the Boundary Waters and surrounding lands, educates its members and COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 6 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 8 of 23 the public concerning the management of these lands, and advocates policies and practices that protect the natural values and sustainable resources of these lands. It is impossible to achieve these organizational purposes fully without adequate information and public participation in the processes required by law for the management of these lands, and without appropriate administrative and legal repose in this context. The interests and organizational purposes of the plaintiffs will be directly and irreparably injured by defendants’ violations of law as described in this complaint. 16. Laws require the Bureau to consider wilderness, habitat, recreational, spiritual, non-extractive business, and other non-mining values on public lands when deciding whether to authorize mineral activity where the Leases are located. 16 U.S.C. § 508b; id. § 520; Sec. 402 of Reorganization Plan No. 3 of 1946; 43 C.F.R. § 3507.19(b); 43 U.S.C. § 1732(a). The Federal Land Policy and Management Act also requires the Secretary of the Interior, acting through the Bureau, “[i]n managing the public lands . . . [to] take any action necessary to prevent unnecessary or undue degradation of the lands.” 43 U.S.C. § 1732(b). Before authorizing mineral activity where the Leases are located, the Bureau is required by law to obtain the consent of the Forest Service, 16 U.S.C. § 508b, which has statutory duties to consider wilderness, habitat, recreational, spiritual, non-extractive business, and other non-mining values on National Forest System Lands in managing National Forest System Lands, see 16 U.S.C. § 1600(2), (3), and to preserve the wilderness character and values of the Boundary Waters, Pub. L. 95-495, 92 Stat. 1649 (1978), including by protecting the Boundary Waters from potentially harmful external activities. 16 U.S.C. § 1133(b). The laws described in this paragraph protect the interests of the plaintiff groups and their members in the Boundary Waters, the leased land, and the areas surrounding the leased land. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 7 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 9 of 23 DEFENDANTS 17. Defendant Ryan Zinke is sued in his official capacity as Secretary of the Interior. Secretary Zinke heads the United States Department of the Interior, the Cabinet-level agency responsible for the Rescind/Reinstate Decision. 18. Defendant Mitchell Leverette is sued in his official capacity as Acting Eastern States Director for the Bureau of Land Management. Mitchell Leverette was the first Bureau official to sign the Rescind/Reinstate Decision. 19. Defendant Joseph Balash is sued in his official capacity as Assistant Secretary for Land and Minerals Management for the United States Department of the Interior. Joseph Balash signed the Rescind/Reinstate Decision after Mitchell Leverette, concurring in that decision and making it final agency action. 20. Defendant Bureau of Land Management is an agency of the United States Department of the Interior authorized to allow mining on the land covered by the Leases on behalf of the Secretary of the Interior if it is in the best interests of the United States, and with the consent of the Secretary of Agriculture. 21. Defendant United States Department of the Interior is a Cabinet-level agency that manages the country’s natural and cultural resources. FACTS I. MINING ON THE LEASES WOULD POSE SERIOUS RISKS TO THE BOUNDARY WATERS CANOE AREA WILDERNESS. 22. The Boundary Waters is a 1,098,000-acre wilderness in the Superior National Forest in northeastern Minnesota. It is the most visited wilderness in the United States. The Boundary Waters contains over a thousand lakes, over 1,200 miles of canoe routes, and two thousand campsites. Visitors canoe the wilderness, as well as fish, hike, camp, ski, dog sled, COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 8 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 10 of 23 harvest wild rice and other edible wild plants, and hunt. Outfitters, guides, and other Minnesota businesses cater to visitors of the Boundary Waters, who generate about $44.5 million annually in economic benefits to the region. The Boundary Waters provides important habitat for loons, pike, trout, walleye, grouse, eagles, great gray owls, moose, deer, beavers, bears, wolves, bobcats, lynx, bats, waterfowl, over a hundred species of migratory breeding birds, and many other kinds of wildlife, including three species listed as threatened under the Endangered Species Act, 16 U.S.C. §§ 1531-1544. The United States Fish and Wildlife Service has designated the Boundary Waters and most of the Superior National Forest as critical habitat for the threatened Canada lynx. 23. For nearly a century, Congress and the Executive Branch have recognized that the Boundary Waters is a resource of national importance worthy of special consideration and protection. In 1909, President Theodore Roosevelt created the Superior National Forest from previously withdrawn public domain lands, including parts of the modern Boundary Waters. In 1926, United States Secretary of Agriculture W. M. Jardine set aside 640,000 acres of the Superior National Forest as roadless wilderness, writing “[t]he purpose of this program is to conserve the value of the Superior National Forest as a game and fish country . . . . Not less than one thousand square miles containing the best of the lakes and waterways will be kept as wilderness recreation areas." In 1938, the Forest Service established the Superior Roadless Primitive Area, whose boundaries were similar to the modern Boundary Waters and whose name was eventually changed to the Boundary Waters Canoe Area. In 1964, Congress passed the Wilderness Act “to secure for the American people of present and future generations the benefits of an enduring resource of wilderness,” making the Boundary Waters Canoe Area part of the new National Wilderness Preservation System. 16 U.S.C. § 1131(a). In 1978, Congress passed COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 9 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 11 of 23 the Boundary Waters Canoe Area Wilderness Act (“Boundary Waters Act”), which expanded and enhanced protections for the Boundary Waters and added a Mining Protection Area. Pub. L. No. 95-495, 92 Stat. 1649 (1978). Congress recognized “the special qualities of the area as a natural forest-lakeland wilderness ecosystem of major esthetic, cultural, scientific, recreational and educational value to the Nation,” and sought among other things to “minimize to the maximum extent possible, the environmental impacts associated with mineral development affecting” the Boundary Waters and Mining Protection Area. Id., §§ 1-2. 24. The Superior National Forest, including the Boundary Waters, is an outstanding fresh water resource. The Superior National Forest holds 20 percent of the fresh water in the entire National Forest System. These water-rich Minnesota forests purify water, sustain surface and ground water flow, maintain fish habitat, control erosion, and stabilize streambanks. 25. The Leases are adjacent to the Boundary Waters and are in the Rainy River watershed shared by the Boundary Waters. The Leases include approximately 4,864 acres of land in the Superior National Forest on either side of Minnesota Highway 1, southwest of Ely, Minnesota. Specifically, MNES 01353 lies immediately southwest of Boundary Waters entry points 32 and 33, which are at the South Kawishiwi River and Little Gabbro Lake, respectively. MNES 01352 is three miles to the southwest of those entry points, straddling the eastern end of Birch Lake, and extending along the south side of the South Kawishiwi River. Surface water in the leased area drains directly into the Boundary Waters and from there into Voyageurs National Park and the Quetico Provincial Park in Ontario, Canada. 26. Twin Metals intends to develop a copper-nickel sulfide ore mine on the Leases. A copper-nickel sulfide ore mine on the Leases would threaten the integrity of water resources in the Superior National Forest, including the Boundary Waters. The hydrogeology and high COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 10 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 12 of 23 degree of interconnectedness of water bodies in northeastern Minnesota makes the area especially susceptible to degradation of water quality. Surface waters of northeastern Minnesota are especially sensitive to changes in pH, acid deposition, and acid runoff. Unlike in some other regions, the bedrock, surficial deposits, and soils of northeastern Minnesota have little capacity to neutralize acids. 27. Mining in sulfide-bearing mineral deposits causes acid mine drainage. When sulfide in rock is exposed to air and water by mining, it produces a chemical reaction that creates sulfuric acid. Sulfuric acid then leaches heavy metals from the rock. When water collects the acid and metals and then drains or leaches from the mine site, the process is called acid mine drainage. All major elements of a mining operation can produce acid mine drainage. Hardrock mining in sulfide-bearing mineralizations is known worldwide for producing acid mine drainage that requires continuous management and perpetual treatment. With this continuous management and perpetual treatment come a perpetual risk of contamination due to treatment or containment failure, insolvency, political events, geological events, and weather events. Acid mine drainage can adversely affect fish populations and aquatic ecosystems by both direct effects on aquatic life and indirect effects on food supplies and habitat. 28. In the event that the Boundary Waters is contaminated by acid mine drainage from a copper-nickel sulfide ore mine on the Leases, it is unlikely that the damage could be successfully remediated. All or almost all of the methods available to remediate acid mine drainage would cause additional damage the Boundary Waters’ ecosystem, watershed, and wilderness values. 29. In the December 14, 2016, letter withholding its consent to renewal of the Leases, the Forest Service found that developing a copper-nickel sulfide ore mine on the Leases would COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 11 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 13 of 23 pose an unacceptable risk to the Boundary Waters of pollution from acid mine drainage. The Forest Service found that “any degree of contamination of the [Boundary Waters] by [acid mine drainage] and leached metals has the potential to seriously degrade the wilderness area’s character and quality” and that, if the Boundary Waters is contaminated, it is unlikely the pollution can be effectively remediated in a manner consistent with the Boundary Waters’ wilderness character. The Forest Service also found that developing a mine on the Leases could cause habitat fragmentation and degradation harmful to migratory wildlife species that use the Boundary Waters. II. THE BUREAU ISSUED THE LEASES FOR TWENTY YEARS, AND THEN GRANTED TWO TEN-YEAR RENEWALS. 30. The Bureau originally issued leases MNES 01352 and MNES 01353 to the International Nickel Company, Inc. on June 14, 1966, for a primary term of twenty years. The purpose of the Leases was to grant an exclusive right to mine for nickel, copper, and associated minerals on the leased land. After the Bureau granted the Leases to the International Nickel Company, the Leases were assigned to new entities three times. Twin Metals is now the successor in interest of the International Nickel Company with respect to the Leases. No lessee has developed a mine or begun any mineral production on the Leases. There is no record showing that the Forest Service consented to the Leases prior to June 14, 1966. 31. On May 14, 1986, the lessee applied to renew the Leases. On June 8, 1986, the Bureau requested that the Forest Service advise the Bureau whether the Forest Service had any objections to renewal of the Leases. On June 19, 1987, the Forest Service consented to renewal of the Leases for a ten-year period. The Bureau renewed the Leases for a ten-year period effective July 1, 1989. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 12 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 14 of 23 32. On March 25, 1999, the Bureau requested the Forest Service’s recommendation regarding a second request by the lessee to renew the Leases. On July 18, 2003, the Forest Service replied that it had no objection. The Bureau renewed the Leases for a second ten-year period on January 1, 2004. 33. III. On October 21, 2012, Twin Metals applied for a third renewal of the Leases. THE DEPARTMENT OF THE INTERIOR FOUND THAT THE 2004 LEASES PRESERVED THE BUREAU’S DISCRETION TO DENY RENEWAL, AND THE BUREAU DENIED RENEWAL. 34. At some time prior to March 8, 2016, the Bureau requested a Solicitor’s opinion on whether the Bureau had discretion to grant or deny Twin Metals’ October 21, 2012, application to renew the Leases. On March 8, 2016, Solicitor Hilary Tompkins issued Memorandum M-37036 (“Tompkins Opinion”), wherein the Solicitor, consistent with earlier advice, concluded that the Bureau had discretion to grant or deny the most recent renewal request. 35. The Tompkins Opinion relied primarily upon the conclusion that the Leases as renewed in 2004 are the operative contracts and are preference right leases, meaning there is no guarantee of renewal. The 2004 version of the Leases is titled “PREFERENCE RIGHT LEASE RENEWAL.” The Leases provided that they were issued “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.” The lessee signed this 2004 version of the Leases. 36. The Tompkins Opinion explained that the Department of the Interior’s consistent interpretation of a “preferential right” to renew, including as that term is used in the standard lease form on which the Bureau executed the 2004 renewals, is that it is not a guarantee of lease COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 13 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 15 of 23 renewal. Under such a preference right lease, the Bureau has the discretion to deny lease renewal, even if the lessee is meeting all of its lease obligations. A preference right lease for hardrock minerals simply and only gives the lessee a right to be preferred over others if the Bureau grants lease renewal. 37. The Tompkins Opinion rejected an argument Twin Metals had made that the operative terms and conditions were those contained in the 1966 version of the Leases, rather than the actual terms included in the 2004 Leases signed by the lessee. Twin Metals’ argument was based on extrinsic evidence about the circumstances surrounding the 1989 renewal of the Leases. Solicitor Tompkins determined that “rely[ing] on extrinsic evidence to attempt to negate the 2004 lease terms does not comply with the law of contracts,” explaining that, “[t]he 2004 leases are each complete, integrated documents that contain all necessary lease terms and are duly signed by the lessee and lessor.” 38. Although Solicitor Tompkins determined that it was not appropriate to rely on prior versions of the lease and the course of dealings, she concluded that the result would be the same even if they were considered. Solicitor Tompkins noted that section five of the 1966 Leases allows for a one-time, ten-year extension of the initial twenty-year deadline for commencement of the mineral production necessary for renewal on the same terms and conditions as the 1966 Leases. She concluded that the Bureau granted the 1989 renewal in conjunction with such an extension, which would have been consistent with the Solicitor’s advice at the time. 39. In Solicitor Tompkins’ analysis, the 2004 renewal was the first renewal not associated with an extension of the deadline for commencement of production. Thus, Solicitor Tompkins concluded that because the lessee had not commenced production, the Bureau had COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 14 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 16 of 23 discretion in 2004 to impose new terms and conditions, and did so, changing the renewal term, among others. 40. In light of Solicitor Tompkins’ conclusion that the Bureau had discretion to deny the lessee’s third application to renew the Leases, on June 3, 2016, the Bureau requested a decision from the Forest Service on whether it consented to a third renewal. The Forest Service solicited public input on the issue and held two listening sessions in Minnesota. On December 14, 2016, after months of deliberation, the Forest Service responded to the Bureau by withholding consent to the third renewal of the Leases. In its response, the Forest Service cited the irreplaceable nature of the Boundary Waters and the potentially extreme risks to the Boundary Waters that would be posed by a copper-nickel sulfide ore mine on the Leases. The Forest Service concluded that failing to prevent damage to the Boundary Waters that could be caused by mining on the Leases would be inconsistent with its obligations under the Boundary Waters Act. 41. On December 15, 2016, the Bureau rejected Twin Metals’ October 2012 application to renew the Leases, citing the Forest Service’s denial of consent. Pursuant to the Bureau’s own regulations, the Leases expired upon Twin Metals’ receipt of the Bureau’s decision rejecting the application. See 43 C.F.R. § 3514.25(a). The Bureau directed Twin Metals to remove equipment from the leased area and remediate existing boreholes. IV. THE DEPARTMENT OF THE INTERIOR REVERSED COURSE AND REINSTATED THE LEASES. 42. On December 22, 2017, more than a year after the Leases expired and more than five years after the last renewal application, Principal Deputy Solicitor Daniel Jorjani issued a new opinion about the Leases, Memorandum M-37049 (“Jorjani Opinion”). The Jorjani Opinion COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 15 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 17 of 23 withdraws and replaces the Tompkins Opinion, and, contrary to the Tompkins Opinion, concludes that the Bureau had no discretion to deny Twin Metals’ 2012 renewal request. 43. The Jorjani Opinion determined that it is necessary to look outside the plain language of the 2004 Leases to determine whether the Bureau had discretion to deny Twin Metals’ 2012 renewal application. Principal Deputy Solicitor Jorjani noted that the 2004 Leases contain no integration clause, and argued the 2004 Leases are ambiguous because it is unclear precisely which parts of the 1966 Leases are incorporated. In fact, the 2004 Leases specify which parts of the original Leases are incorporated. Section 14 of the 2004 Leases, titled “SPECIAL STIPULATIONS,” states: * The terms and conditions of the production royalties remains [sic] 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. In section 2 of the 2004 Leases, which contains standard “PRODUCTION ROYALTIES” and “MINIMUM ANNUAL PRODUCTION AND MINIMUM ROYALTY” terms, a corresponding “*” and “**” appear, referencing the special stipulations. The 2004 Leases do not state or otherwise signify that any renewal term from the 1966 Leases is incorporated, or that any term from the 1966 Leases is incorporated other than the production royalty and minimum annual production and minimum royalty terms. Several terms of the 2004 Leases revise, add to, or even expressly contradict—and thus replace—the 1966 Lease terms, including the preference right renewal terms. 44. Determining that he could ignore the language of the 2004 Leases, Principal Deputy Solicitor Jorjani concluded that evidence extrinsic to the 2004 Leases indicates the Bureau intended the 2004 Leases to be on the same terms and conditions as the 1966 Leases. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 16 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 18 of 23 Based on communications between the Bureau and the lessee and within the Bureau, Principal Deputy Solicitor Jorjani concluded that the Leases were renewed in 1989 on the same terms and conditions as the original Leases. Prior to the 1989 renewal, the Bureau initially offered leases on substantially different terms than the 1966 Leases. These leases were only preference right leases and had numerous different terms, including new royalty provisions. After exchanges with the lessee, the Bureau reverted to the original 1966 royalty provisions, but retained in the 1989 renewals the new preference right lease terms. On several occasions during these exchanges, Bureau staff had commented that renewal would be on the same terms and conditions as the 1966 Leases. Ultimately, in 1989, the Bureau transmitted a renewal copy with preference right renewal terms virtually identical to the 2004 Leases and the lessee signed the renewal. Based only on some statements by Bureau staff at the time and ignoring the plain language of the Leases as issued and signed in 1989, the Jorjani Opinion concluded the 1989 renewal was on exactly the same terms as the 1966 leases. 45. Because the 1989 and 2004 versions of the Leases are nearly identical, Principal Deputy Solicitor Jorjani concluded that the 2004 renewal of the Leases was also on the same terms and conditions as the 1966 Leases. Principal Deputy Solicitor Jorjani also interpreted the 1966 Leases as creating a right to unlimited successive 10-year renewals. Therefore, the Jorjani Opinion concluded that the Twin Metals had a right to renew in 2012, and that the Bureau did not have discretion to deny Twin Metals’ renewal application. 46. On May 2, 2018, more than 18 months after the Leases expired, the Bureau issued the Rescind/Reinstate Decision that is the subject of this complaint, purporting to rescind its December 15, 2016, decision denying Twin Metals’ 2012 application to renew the Leases. At the same time, the Bureau reinstated the Leases as written in 2004, as well as Twin Metals’ 2012 COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 17 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 19 of 23 application to renew the Leases. The Bureau adopted the conclusions in the Jorjani Opinion as the basis for the Rescind/Reinstate Decision. United States Department of the Interior Assistant Secretary Joseph Balash signed concurring in the Rescind/Reinstate decision, making it the Bureau’s final decision and rendering the decision ineligible for appeal to the Interior Board of Land Appeals. LEGAL BACKGROUND 47. Mineral leasing on more than ninety percent of the land that is the subject of the Leases is governed by 16 U.S.C. § 508b. This provision allows the Secretary of the Interior to permit mineral prospecting, development, and utilization on certain lands in the national forests in Minnesota that are withdrawn from the mining laws of the United States. Id. In doing so, the Secretary of the Interior must act in the best interests of the United States. Id. The Secretary of the Interior cannot permit mineral development or utilization on § 508b lands without the consent of the Secretary of Agriculture. Id. 48. In determining whether to consent to mineral development or utilization on § 508b lands, the Forest Service acting for the Secretary of Agriculture is bound by the Wilderness Act, Boundary Waters Act, and the National Forest Management Act (NFMA). The Wilderness Act makes the Forest Service responsible for preserving the wilderness character of the Boundary Waters, including by protecting the Boundary Waters from potentially harmful external activities. See 16 U.S.C. § 1133(b). The Boundary Waters Act directs the Forest Service to “minimize to the maximum extent possible, the environmental impacts associated with mineral development affecting” the Boundary Waters and Mining Protection Area. Pub. L. 95-495, §§ 1-2, 92 Stat. 1649 (1978). NFMA requires the Forest Service to consider wilderness, COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 18 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 20 of 23 habitat, recreational, spiritual, non-extractive business, and other non-mining values on National Forest System Lands when managing those lands. See 16 U.S.C. § 1600(2)-(3). 49. Mineral leasing on the remainder of the land that is the subject of the Leases is governed by 16 U.S.C. § 520. This provision allows the Secretary of Agriculture to permit mineral prospecting, development, and utilization on forest lands acquired under the Weeks Act. Id. In doing so, the Secretary of Agriculture must act in the best interests of the United States. Id. Section 402 of Reorganization Plan No. 3 of 1946 transfers the functions of the Secretary of Agriculture under § 520 to the Secretary of the Interior, but provides that the Secretary of the Interior may only authorize mineral activity when the Secretary of Agriculture determines that it will not interfere with the primary purposes for which the land was acquired. The Bureau, acting for the Secretary of the Interior, considers environmental impacts before granting a lease under Section 402 of Reorganization Plan No. 3 of 1946. 43 C.F.R. § 3507.19(b). 50. The Federal Land Policy and Management Act (FLPMA) requires the Bureau to “manage the public lands under principles of multiple use and sustained yield,” and to “take any action necessary to prevent unnecessary or undue degradation of the lands.” 43 U.S.C. § 1732. These principles require balancing the potential economic benefits of additional mining against the possible risks to environmental and cultural resources. 51. 16 U.S.C. § 508b, 16 U.S.C. § 520, Section 402 of Reorganization Plan No. 3 of 1946, and FLPMA (“the Leasing Statutes”) require the Bureau to consider environmental values on public lands on and around the Leases, including the Boundary Waters, in exercising its discretion with respect to the Leases. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 19 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 21 of 23 CAUSES OF ACTION COUNT I—ACTION WITHOUT LEGAL AUTHORITY 52. The Bureau’s December 15, 2016, decision was final. 53. The Leases expired when Twin Metals received the Bureau’s December 15, 2016, decision. 54. The Bureau had no statutory, regulatory, or inherent authority to rescind its December 15, 2016, decision and/or to resurrect and reinstate expired Leases. 55. The Bureau therefore acted without authority in issuing the Rescind/Reinstate Decision. Its action is of no effect and should be held unlawful and set aside under the Administrative Procedure Act, 5 U.S.C. § 706(2). COUNT II—ARBITRARY LEASE REINSTATEMENT 56. The 2004 Leases are fully integrated contracts, and there is no ambiguity in their renewal terms. They are preference right leases that preserve the Bureau’s authority to deny a subsequent renewal. 57. The Bureau’s denial of renewal in 2016 was authorized by the 2004 Leases, was required by the Forest Service’s refusal to consent, and resulted in the expiration of the Leases. 58. The Bureau’s Rescind/Reinstate Decision is based on an erroneous interpretation of the Leases, relying on an unjustified examination of extrinsic materials, and resulted in an arbitrary conclusion that the Bureau lacked authority to deny a third renewal of the Leases. 59. Even if it were necessary to resort to extrinsic evidence to interpret the 2004 Leases, the Jorjani Opinion’s analysis misinterpreted the 1966 Leases and is also contrary to the evidence relating to the 1989 renewal. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 20 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 22 of 23 60. As a result of the Bureau’s arbitrary conclusion that it lacked authority to deny a third renewal of the Leases, in issuing the Rescind/Reinstate Decision, the Bureau unlawfully abdicated duties imposed by the Leasing Statutes to protect the lands and waters of the Superior National Forest and the Boundary Waters, and to consider the value of multiple uses of those lands, which plaintiffs’ members use and enjoy. 61. The Bureau’s Rescind/Reinstate Decision is arbitrary and capricious and not in accordance with law under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), and violates the Leasing Statutes. PRAYER FOR RELIEF Therefore, plaintiffs respectfully request that the Court: 1. Declare that the defendants have acted without authority in issuing the Rescind/Reinstate Decision; 2. Declare that defendants have violated the Leasing Statutes by arbitrarily adopting an erroneous interpretation of the leases that would constrain the Bureau and the Forest Service from fulfilling their statutory obligations with respect to the leased land and surrounding public lands, including the Boundary Waters; 3. Vacate the Bureau’s Rescind/Reinstate Decision; 4. Enter any other appropriate injunctive relief to ensure that the defendants comply with the Leasing Statutes and the Administrative Procedure Act, and to prevent irreparable harm to the plaintiffs and to the environment until such compliance occurs; 5. Award plaintiffs the costs of this action, including reasonable attorneys’ fees, pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; and 6. Grant such other relief as the Court deems just and proper. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 21 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 23 of 23 Dated this 25th day of June, 2018. Respectfully submitted, s/ Eric P. Jorgensen Eric P. Jorgensen (DC Bar No. 88897) EARTHJUSTICE 325 Fourth Street Juneau, AK 99801 T: 907.586.2751 E: ejorgensen@earthjustice.org s/ Erin Whalen Erin Whalen (pro hac vice pending) EARTHJUSTICE 325 Fourth Street Juneau, AK 99801 T: 907.586.2751 E: ewhalen@rearthjustice.org s/ Janette K. Brimmer Janette K. Brimmer (pro hac vice pending) EARTHJUSTICE 705 Second Avenue, Suite 203 Seattle, WA 98104 T: 206.343.1029 E: jbrimmer@earthjustice.org Attorneys for Plaintiffs The Wilderness Society, Izaak Walton League of America, and Center for Biological Diversity. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 22 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 1 of 23 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA THE WILDERNESS SOCIETY, 1615 M Street, NW, Washington, DC 20036; IZAAK WALTON LEAGUE OF AMERICA, 707 Conservation Lane, Gaithersburg, MD 20878; and CENTER FOR BIOLOGICAL DIVERSITY, P.O. Box 710, Tucson, AZ 85702-0710, Plaintiffs, v. RYAN ZINKE, in his official capacity as Secretary of the Interior, 1849 C Street NW, Washington, DC 20240; MITCHELL LEVERETTE, in his official capacity as Acting Eastern States Director for the Bureau of Land Management, 20 M Street SE Suite 950, Washington, DC 20003; JOSEPH BALASH, in his official capacity as Assistant Secretary for Land and Minerals Management for the U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240; BUREAU OF LAND MANAGEMENT, 1849 C Street NW, Rm. 5665, Washington, DC 20240; and U.S. DEPARTMENT OF THE INTERIOR, 1849 C Street NW, Washington, DC 20240; Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (5 U.S.C. §§ 701-706; 16 U.S.C. § 508b; 16 U.S.C. § 520; Sec. 402 of Reorganization Plan No. 3 of 1946; 43 U.S.C. § 1732) Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 2 of 23 SUMMARY 1. This action challenges an attempt by the Bureau of Land Management to rescind a final decision issued nearly one and a half years previously. The Bureau’s previous decision, dated December 15, 2016, denied an application from Twin Metals Minnesota to renew two hardrock mineral leases, MNES 01352 and MNES 01353 (“the Leases”), adjacent to the Boundary Waters Canoe Area Wilderness in the Superior National Forest. As a result, the Leases expired. However, on May 2, 2018, the Bureau purported to 1) rescind its December 2016 decision; 2) reinstate the version of the Leases that was in place at the time; and 3) reinstate Twin Metals’ renewal application (“the Rescind/Reinstate Decision”). This action challenges the Rescind/Reinstate Decision as being beyond the Bureau’s authority and arbitrary. 2. The Boundary Waters is the most visited wilderness in the United States, a 1,098,000-acre wilderness in the Superior National Forest in northeastern Minnesota treasured for its unique lakeland habitat. There is a direct hydrological connection between the Leases and the Boundary Waters. 3. Twin Metals intends to use the Leases to develop an underground copper-nickel sulfide ore mine. If built, such a mine would threaten the Boundary Waters with contamination and degradation. On December 14, 2016, the United States Forest Service informed the Bureau in a detailed and well-supported letter that the risk to the Boundary Waters from a copper-nickel sulfide ore mine is too great. The Forest Service, as the agency responsible for managing the surface of the leased land and the Boundary Waters, therefore denied its consent to the Leases. The Forest Service’s denial of consent was the basis for the Bureau’s December 15, 2016, denial of Twin Metals’ renewal application. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 1 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 3 of 23 4. There is no statutory, regulatory, or inherent authority for the Bureau’s rescission of its December 15, 2016, decision denying Twin Metals’ lease renewal application almost a year and a half after that decision became final. Furthermore, the Bureau’s May 2, 2018, decision is arbitrary and capricious because it is based on an unprecedented, erroneous interpretation of the Leases by the United States Department of the Interior, Office of the Solicitor (“the Solicitor”). For both of these reasons, the Bureau’s rescission of its previous decision is unlawful. JURISDICTION AND VENUE 5. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and may issue a declaratory judgment and further relief pursuant to 28 U.S.C. §§ 2201-2202. Judicial review is available under the Administrative Procedure Act, 5 U.S.C. §§ 701-706. 6. Venue is appropriate under 28 U.S.C. § 1391(e). PLAINTIFFS 7. Plaintiff The Wilderness Society, founded in 1935, is a national, non-profit membership organization devoted to protecting wilderness and inspiring Americans to care for wild places. It has led the effort to permanently protect 109 million acres of wilderness and ensure sound management of our shared national lands. The Wilderness Society has more than 1 million members and supporters, including over 2,600 members and 7,200 supporters in Minnesota, and has long worked to protect the Boundary Waters. A member of the Campaign to Save the Boundary Waters, The Wilderness Society has advocated for permanent protection of the Boundary Waters watershed from the threat of sulfide-ore copper mining, and has worked to inform the public about threats to the Boundary Waters, including with its 2017 report “Too Wild to Drill.” Members and staff of The Wilderness Society regularly visit the Boundary COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 2 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 4 of 23 Waters and surrounding Superior National Forest lands to paddle, hunt, fish, harvest wild rice, and enjoy the splendor of the areas’ pristine lakes, rivers, and forests. 8. Plaintiff Izaak Walton League of America (“the League”) is a non-profit membership organization devoted to conserving outdoor America for future generations. The League has more than 42,000 members and about 230 community-based chapters nationwide, including over 1,000 members in Minnesota. League members pledge “[t]o strive for the purity of water, the clarity of air, and the wise stewardship of the land and its resources; to know the beauty and understanding of nature and the value of wildlife, woodlands, and open space; to the preservation of this heritage and to man's sharing in it.” Beginning in about 2009, the League has worked to educate its members, the public, state and federal administrative agencies, and legislators about the potential impacts of copper-nickel mining in Minnesota by holding public forums, submitting comments and petitions, sponsoring and hosting informational events, litigating, meeting with agency decisionmakers, joining the Campaign to Save the Boundary Waters, and working with several other Minnesota organizations. In 2016, the League spoke against renewing the Leases at a Forest Service listening session and submitted petitions to the Forest Service asking that the Leases not be renewed. 9. Plaintiff Center for Biological Diversity (“the Center”) is a non-profit organization with over 63,000 members, with offices in Duluth and Minneapolis, Minnesota, as well as Arizona, California, Oregon, Washington, and a number of other states. The Center works to ensure the long-term health and viability of animal and plant species across the United States and elsewhere, and to protect the habitat these species need to survive. The Center believes that the health and vigor of human societies and the integrity and wildness of the natural environment are closely linked. The Center has advocated for northeastern Minnesota’s animal COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 3 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 5 of 23 and plant species in administrative processes and in court, including by commenting on miningrelated proposals, petitioning for Endangered Species Act protections for the Minnesota moose population, and joining litigation over proposed mining that would destroy habitat for Canada lynx and gray wolves in the Superior National Forest. The Center is a partner in the Campaign to Save the Boundary Waters. 10. Members of plaintiff groups, including John Ipsen and Jon Nelson, members of The Wilderness Society and Izaak Walton League, and Collette Adkins, a member of the Center for Biological Diversity, regularly use and enjoy—and intend to continue to use and enjoy, including this summer—the Boundary Waters, the leased land, and/or areas surrounding the leased land for various purposes, including recreation, wildlife viewing, education, research, photography, and/or esthetic and spiritual enjoyment. These and other members of plaintiff groups also enjoy or otherwise use migratory wildlife, fish, and birds from the Boundary Waters, the leased land, and/or areas surrounding the leased land. 11. The Bureau’s May 2, 2018, Rescind/Reinstate Decision directly and imminently injures plaintiff groups’ members’ interests. When the Bureau denied Twin Metals’ renewal application on December 15, 2016, the Bureau instructed the company to remediate existing boreholes and remove equipment from the Leases. Twin Metals has not fulfilled that obligation. Twin Metals’ and its predecessors’ past mineral activities on the Leases have left remnants of industrial activities on the site, including large pipes sticking up out of the ground and an unsightly bulk sample site, never fully remediated. Reinstating the Leases removes Twin Metals’ obligation to restore the leased public lands to a state suitable for other public uses. Reinstating the Leases also entitles Twin Metals to casual use of the leased lands, and to request permits for more extensive use of the leased lands under the purportedly valid mineral Leases. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 4 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 6 of 23 Since the Rescind/Reinstate Decision, Twin Metals has requested permission to drill additional wells on the leased land. Twin Metals has installed gates at entrances to public land on the Leases. These industrial activities and the ongoing failure to return the leased land to its previous condition interfere with plaintiffs’ members’ use and enjoyment of the leased land and surrounding lands by blocking access, and by causing noise, increased traffic, disturbance of wildlife, water quality reductions, and a landscape that is visibly degraded. These circumstances dissuade plaintiff groups’ members from visiting the leased land and surrounding lands, including the two nearby Boundary Waters entry points, and reduce the value of their experiences when they do visit. 12. The Rescind/Reinstate Decision interferes with plaintiffs’ members’ use and enjoyment of the leased land and surrounding lands by providing additional justification for Twin Metals’ mineral activity on state and federal public lands near the Leases. Twin Metals stated in a press release about the Rescind/Reinstate Decision that the Leases are “important components” of an underground mine project proposal. These industrial activities on state and federal public lands near the Leases interfere with plaintiffs’ members’ use and enjoyment of the leased land and surrounding lands by blocking access to public lands, and by causing noise, increased traffic, disturbance of wildlife, water quality reductions, and a landscape that is visibly degraded. 13. The Rescind/Reinstate Decision injures plaintiff groups’ members’ interests by making it likely that Twin Metals will develop a copper-nickel sulfide ore mine on the Leases. Following the Rescind/Reinstate Decision, Twin Metals stated that it is preparing a formal mine proposal to submit soon to state and federal agencies. A copper-nickel sulfide mine on the Leases would cause long-term harm to plaintiff groups’ members’ interests in the leased land and COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 5 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 7 of 23 surrounding lands, including the Boundary Waters and the two nearby Boundary Waters entry points, through increased noise, increased traffic, and visible degradation of the landscape on the Leased lands. It would damage plaintiff groups’ members’ esthetic, recreational, and other interests in the leased lands, the surrounding lands, and the Boundary Waters by causing ecological harm and creating an ongoing risk of additional ecological harm in those areas. Ecological harm would include degradation of water quality and its numerous indirect effects on fish, plants, and animals; loss of habitat due to occupation by mine facilities; disturbance of wildlife by noise and traffic; increased risk of the spread of invasive species; and degradation of air quality. Acid mine drainage is likely to occur, further decreasing water quality and multiplying harmful indirect effects to plants and animals. Collectively, these impacts would degrade the wilderness character of the Boundary Waters, including by fouling its pristine and interconnected waterways, disturbing its outstanding opportunities for solitude and primitive recreation, and diminishing its untrammeled, natural appearance. A mine would also deprive plaintiff groups’ members of access to the leased lands during the life of the mine, if not beyond. These harms are imminent and flow from the Rescind/Reinstate Decision. 14. The defendants’ unlawful actions adversely affect plaintiffs’ organizational interests in their members’ use and enjoyment of the Boundary Waters, the leased land, and areas surrounding the leased land. The Bureau’s May 2, 2018, Rescind/Reinstate Decision will directly injure these interests. 15. Each of the plaintiff groups monitors the integrity of the Boundary Waters ecosystem and activities in the Boundary Waters and the surrounding area that threaten the integrity of the Boundary Waters ecosystem. Each of the plaintiff groups monitors compliance with the law respecting the Boundary Waters and surrounding lands, educates its members and COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 6 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 8 of 23 the public concerning the management of these lands, and advocates policies and practices that protect the natural values and sustainable resources of these lands. It is impossible to achieve these organizational purposes fully without adequate information and public participation in the processes required by law for the management of these lands, and without appropriate administrative and legal repose in this context. The interests and organizational purposes of the plaintiffs will be directly and irreparably injured by defendants’ violations of law as described in this complaint. 16. Laws require the Bureau to consider wilderness, habitat, recreational, spiritual, non-extractive business, and other non-mining values on public lands when deciding whether to authorize mineral activity where the Leases are located. 16 U.S.C. § 508b; id. § 520; Sec. 402 of Reorganization Plan No. 3 of 1946; 43 C.F.R. § 3507.19(b); 43 U.S.C. § 1732(a). The Federal Land Policy and Management Act also requires the Secretary of the Interior, acting through the Bureau, “[i]n managing the public lands . . . [to] take any action necessary to prevent unnecessary or undue degradation of the lands.” 43 U.S.C. § 1732(b). Before authorizing mineral activity where the Leases are located, the Bureau is required by law to obtain the consent of the Forest Service, 16 U.S.C. § 508b, which has statutory duties to consider wilderness, habitat, recreational, spiritual, non-extractive business, and other non-mining values on National Forest System Lands in managing National Forest System Lands, see 16 U.S.C. § 1600(2), (3), and to preserve the wilderness character and values of the Boundary Waters, Pub. L. 95-495, 92 Stat. 1649 (1978), including by protecting the Boundary Waters from potentially harmful external activities. 16 U.S.C. § 1133(b). The laws described in this paragraph protect the interests of the plaintiff groups and their members in the Boundary Waters, the leased land, and the areas surrounding the leased land. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 7 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 9 of 23 DEFENDANTS 17. Defendant Ryan Zinke is sued in his official capacity as Secretary of the Interior. Secretary Zinke heads the United States Department of the Interior, the Cabinet-level agency responsible for the Rescind/Reinstate Decision. 18. Defendant Mitchell Leverette is sued in his official capacity as Acting Eastern States Director for the Bureau of Land Management. Mitchell Leverette was the first Bureau official to sign the Rescind/Reinstate Decision. 19. Defendant Joseph Balash is sued in his official capacity as Assistant Secretary for Land and Minerals Management for the United States Department of the Interior. Joseph Balash signed the Rescind/Reinstate Decision after Mitchell Leverette, concurring in that decision and making it final agency action. 20. Defendant Bureau of Land Management is an agency of the United States Department of the Interior authorized to allow mining on the land covered by the Leases on behalf of the Secretary of the Interior if it is in the best interests of the United States, and with the consent of the Secretary of Agriculture. 21. Defendant United States Department of the Interior is a Cabinet-level agency that manages the country’s natural and cultural resources. FACTS I. MINING ON THE LEASES WOULD POSE SERIOUS RISKS TO THE BOUNDARY WATERS CANOE AREA WILDERNESS. 22. The Boundary Waters is a 1,098,000-acre wilderness in the Superior National Forest in northeastern Minnesota. It is the most visited wilderness in the United States. The Boundary Waters contains over a thousand lakes, over 1,200 miles of canoe routes, and two thousand campsites. Visitors canoe the wilderness, as well as fish, hike, camp, ski, dog sled, COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 8 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 10 of 23 harvest wild rice and other edible wild plants, and hunt. Outfitters, guides, and other Minnesota businesses cater to visitors of the Boundary Waters, who generate about $44.5 million annually in economic benefits to the region. The Boundary Waters provides important habitat for loons, pike, trout, walleye, grouse, eagles, great gray owls, moose, deer, beavers, bears, wolves, bobcats, lynx, bats, waterfowl, over a hundred species of migratory breeding birds, and many other kinds of wildlife, including three species listed as threatened under the Endangered Species Act, 16 U.S.C. §§ 1531-1544. The United States Fish and Wildlife Service has designated the Boundary Waters and most of the Superior National Forest as critical habitat for the threatened Canada lynx. 23. For nearly a century, Congress and the Executive Branch have recognized that the Boundary Waters is a resource of national importance worthy of special consideration and protection. In 1909, President Theodore Roosevelt created the Superior National Forest from previously withdrawn public domain lands, including parts of the modern Boundary Waters. In 1926, United States Secretary of Agriculture W. M. Jardine set aside 640,000 acres of the Superior National Forest as roadless wilderness, writing “[t]he purpose of this program is to conserve the value of the Superior National Forest as a game and fish country . . . . Not less than one thousand square miles containing the best of the lakes and waterways will be kept as wilderness recreation areas." In 1938, the Forest Service established the Superior Roadless Primitive Area, whose boundaries were similar to the modern Boundary Waters and whose name was eventually changed to the Boundary Waters Canoe Area. In 1964, Congress passed the Wilderness Act “to secure for the American people of present and future generations the benefits of an enduring resource of wilderness,” making the Boundary Waters Canoe Area part of the new National Wilderness Preservation System. 16 U.S.C. § 1131(a). In 1978, Congress passed COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 9 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 11 of 23 the Boundary Waters Canoe Area Wilderness Act (“Boundary Waters Act”), which expanded and enhanced protections for the Boundary Waters and added a Mining Protection Area. Pub. L. No. 95-495, 92 Stat. 1649 (1978). Congress recognized “the special qualities of the area as a natural forest-lakeland wilderness ecosystem of major esthetic, cultural, scientific, recreational and educational value to the Nation,” and sought among other things to “minimize to the maximum extent possible, the environmental impacts associated with mineral development affecting” the Boundary Waters and Mining Protection Area. Id., §§ 1-2. 24. The Superior National Forest, including the Boundary Waters, is an outstanding fresh water resource. The Superior National Forest holds 20 percent of the fresh water in the entire National Forest System. These water-rich Minnesota forests purify water, sustain surface and ground water flow, maintain fish habitat, control erosion, and stabilize streambanks. 25. The Leases are adjacent to the Boundary Waters and are in the Rainy River watershed shared by the Boundary Waters. The Leases include approximately 4,864 acres of land in the Superior National Forest on either side of Minnesota Highway 1, southwest of Ely, Minnesota. Specifically, MNES 01353 lies immediately southwest of Boundary Waters entry points 32 and 33, which are at the South Kawishiwi River and Little Gabbro Lake, respectively. MNES 01352 is three miles to the southwest of those entry points, straddling the eastern end of Birch Lake, and extending along the south side of the South Kawishiwi River. Surface water in the leased area drains directly into the Boundary Waters and from there into Voyageurs National Park and the Quetico Provincial Park in Ontario, Canada. 26. Twin Metals intends to develop a copper-nickel sulfide ore mine on the Leases. A copper-nickel sulfide ore mine on the Leases would threaten the integrity of water resources in the Superior National Forest, including the Boundary Waters. The hydrogeology and high COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 10 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 12 of 23 degree of interconnectedness of water bodies in northeastern Minnesota makes the area especially susceptible to degradation of water quality. Surface waters of northeastern Minnesota are especially sensitive to changes in pH, acid deposition, and acid runoff. Unlike in some other regions, the bedrock, surficial deposits, and soils of northeastern Minnesota have little capacity to neutralize acids. 27. Mining in sulfide-bearing mineral deposits causes acid mine drainage. When sulfide in rock is exposed to air and water by mining, it produces a chemical reaction that creates sulfuric acid. Sulfuric acid then leaches heavy metals from the rock. When water collects the acid and metals and then drains or leaches from the mine site, the process is called acid mine drainage. All major elements of a mining operation can produce acid mine drainage. Hardrock mining in sulfide-bearing mineralizations is known worldwide for producing acid mine drainage that requires continuous management and perpetual treatment. With this continuous management and perpetual treatment come a perpetual risk of contamination due to treatment or containment failure, insolvency, political events, geological events, and weather events. Acid mine drainage can adversely affect fish populations and aquatic ecosystems by both direct effects on aquatic life and indirect effects on food supplies and habitat. 28. In the event that the Boundary Waters is contaminated by acid mine drainage from a copper-nickel sulfide ore mine on the Leases, it is unlikely that the damage could be successfully remediated. All or almost all of the methods available to remediate acid mine drainage would cause additional damage the Boundary Waters’ ecosystem, watershed, and wilderness values. 29. In the December 14, 2016, letter withholding its consent to renewal of the Leases, the Forest Service found that developing a copper-nickel sulfide ore mine on the Leases would COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 11 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 13 of 23 pose an unacceptable risk to the Boundary Waters of pollution from acid mine drainage. The Forest Service found that “any degree of contamination of the [Boundary Waters] by [acid mine drainage] and leached metals has the potential to seriously degrade the wilderness area’s character and quality” and that, if the Boundary Waters is contaminated, it is unlikely the pollution can be effectively remediated in a manner consistent with the Boundary Waters’ wilderness character. The Forest Service also found that developing a mine on the Leases could cause habitat fragmentation and degradation harmful to migratory wildlife species that use the Boundary Waters. II. THE BUREAU ISSUED THE LEASES FOR TWENTY YEARS, AND THEN GRANTED TWO TEN-YEAR RENEWALS. 30. The Bureau originally issued leases MNES 01352 and MNES 01353 to the International Nickel Company, Inc. on June 14, 1966, for a primary term of twenty years. The purpose of the Leases was to grant an exclusive right to mine for nickel, copper, and associated minerals on the leased land. After the Bureau granted the Leases to the International Nickel Company, the Leases were assigned to new entities three times. Twin Metals is now the successor in interest of the International Nickel Company with respect to the Leases. No lessee has developed a mine or begun any mineral production on the Leases. There is no record showing that the Forest Service consented to the Leases prior to June 14, 1966. 31. On May 14, 1986, the lessee applied to renew the Leases. On June 8, 1986, the Bureau requested that the Forest Service advise the Bureau whether the Forest Service had any objections to renewal of the Leases. On June 19, 1987, the Forest Service consented to renewal of the Leases for a ten-year period. The Bureau renewed the Leases for a ten-year period effective July 1, 1989. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 12 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 14 of 23 32. On March 25, 1999, the Bureau requested the Forest Service’s recommendation regarding a second request by the lessee to renew the Leases. On July 18, 2003, the Forest Service replied that it had no objection. The Bureau renewed the Leases for a second ten-year period on January 1, 2004. 33. III. On October 21, 2012, Twin Metals applied for a third renewal of the Leases. THE DEPARTMENT OF THE INTERIOR FOUND THAT THE 2004 LEASES PRESERVED THE BUREAU’S DISCRETION TO DENY RENEWAL, AND THE BUREAU DENIED RENEWAL. 34. At some time prior to March 8, 2016, the Bureau requested a Solicitor’s opinion on whether the Bureau had discretion to grant or deny Twin Metals’ October 21, 2012, application to renew the Leases. On March 8, 2016, Solicitor Hilary Tompkins issued Memorandum M-37036 (“Tompkins Opinion”), wherein the Solicitor, consistent with earlier advice, concluded that the Bureau had discretion to grant or deny the most recent renewal request. 35. The Tompkins Opinion relied primarily upon the conclusion that the Leases as renewed in 2004 are the operative contracts and are preference right leases, meaning there is no guarantee of renewal. The 2004 version of the Leases is titled “PREFERENCE RIGHT LEASE RENEWAL.” The Leases provided that they were issued “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.” The lessee signed this 2004 version of the Leases. 36. The Tompkins Opinion explained that the Department of the Interior’s consistent interpretation of a “preferential right” to renew, including as that term is used in the standard lease form on which the Bureau executed the 2004 renewals, is that it is not a guarantee of lease COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 13 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 15 of 23 renewal. Under such a preference right lease, the Bureau has the discretion to deny lease renewal, even if the lessee is meeting all of its lease obligations. A preference right lease for hardrock minerals simply and only gives the lessee a right to be preferred over others if the Bureau grants lease renewal. 37. The Tompkins Opinion rejected an argument Twin Metals had made that the operative terms and conditions were those contained in the 1966 version of the Leases, rather than the actual terms included in the 2004 Leases signed by the lessee. Twin Metals’ argument was based on extrinsic evidence about the circumstances surrounding the 1989 renewal of the Leases. Solicitor Tompkins determined that “rely[ing] on extrinsic evidence to attempt to negate the 2004 lease terms does not comply with the law of contracts,” explaining that, “[t]he 2004 leases are each complete, integrated documents that contain all necessary lease terms and are duly signed by the lessee and lessor.” 38. Although Solicitor Tompkins determined that it was not appropriate to rely on prior versions of the lease and the course of dealings, she concluded that the result would be the same even if they were considered. Solicitor Tompkins noted that section five of the 1966 Leases allows for a one-time, ten-year extension of the initial twenty-year deadline for commencement of the mineral production necessary for renewal on the same terms and conditions as the 1966 Leases. She concluded that the Bureau granted the 1989 renewal in conjunction with such an extension, which would have been consistent with the Solicitor’s advice at the time. 39. In Solicitor Tompkins’ analysis, the 2004 renewal was the first renewal not associated with an extension of the deadline for commencement of production. Thus, Solicitor Tompkins concluded that because the lessee had not commenced production, the Bureau had COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 14 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 16 of 23 discretion in 2004 to impose new terms and conditions, and did so, changing the renewal term, among others. 40. In light of Solicitor Tompkins’ conclusion that the Bureau had discretion to deny the lessee’s third application to renew the Leases, on June 3, 2016, the Bureau requested a decision from the Forest Service on whether it consented to a third renewal. The Forest Service solicited public input on the issue and held two listening sessions in Minnesota. On December 14, 2016, after months of deliberation, the Forest Service responded to the Bureau by withholding consent to the third renewal of the Leases. In its response, the Forest Service cited the irreplaceable nature of the Boundary Waters and the potentially extreme risks to the Boundary Waters that would be posed by a copper-nickel sulfide ore mine on the Leases. The Forest Service concluded that failing to prevent damage to the Boundary Waters that could be caused by mining on the Leases would be inconsistent with its obligations under the Boundary Waters Act. 41. On December 15, 2016, the Bureau rejected Twin Metals’ October 2012 application to renew the Leases, citing the Forest Service’s denial of consent. Pursuant to the Bureau’s own regulations, the Leases expired upon Twin Metals’ receipt of the Bureau’s decision rejecting the application. See 43 C.F.R. § 3514.25(a). The Bureau directed Twin Metals to remove equipment from the leased area and remediate existing boreholes. IV. THE DEPARTMENT OF THE INTERIOR REVERSED COURSE AND REINSTATED THE LEASES. 42. On December 22, 2017, more than a year after the Leases expired and more than five years after the last renewal application, Principal Deputy Solicitor Daniel Jorjani issued a new opinion about the Leases, Memorandum M-37049 (“Jorjani Opinion”). The Jorjani Opinion COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 15 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 17 of 23 withdraws and replaces the Tompkins Opinion, and, contrary to the Tompkins Opinion, concludes that the Bureau had no discretion to deny Twin Metals’ 2012 renewal request. 43. The Jorjani Opinion determined that it is necessary to look outside the plain language of the 2004 Leases to determine whether the Bureau had discretion to deny Twin Metals’ 2012 renewal application. Principal Deputy Solicitor Jorjani noted that the 2004 Leases contain no integration clause, and argued the 2004 Leases are ambiguous because it is unclear precisely which parts of the 1966 Leases are incorporated. In fact, the 2004 Leases specify which parts of the original Leases are incorporated. Section 14 of the 2004 Leases, titled “SPECIAL STIPULATIONS,” states: * The terms and conditions of the production royalties remains [sic] 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. In section 2 of the 2004 Leases, which contains standard “PRODUCTION ROYALTIES” and “MINIMUM ANNUAL PRODUCTION AND MINIMUM ROYALTY” terms, a corresponding “*” and “**” appear, referencing the special stipulations. The 2004 Leases do not state or otherwise signify that any renewal term from the 1966 Leases is incorporated, or that any term from the 1966 Leases is incorporated other than the production royalty and minimum annual production and minimum royalty terms. Several terms of the 2004 Leases revise, add to, or even expressly contradict—and thus replace—the 1966 Lease terms, including the preference right renewal terms. 44. Determining that he could ignore the language of the 2004 Leases, Principal Deputy Solicitor Jorjani concluded that evidence extrinsic to the 2004 Leases indicates the Bureau intended the 2004 Leases to be on the same terms and conditions as the 1966 Leases. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 16 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 18 of 23 Based on communications between the Bureau and the lessee and within the Bureau, Principal Deputy Solicitor Jorjani concluded that the Leases were renewed in 1989 on the same terms and conditions as the original Leases. Prior to the 1989 renewal, the Bureau initially offered leases on substantially different terms than the 1966 Leases. These leases were only preference right leases and had numerous different terms, including new royalty provisions. After exchanges with the lessee, the Bureau reverted to the original 1966 royalty provisions, but retained in the 1989 renewals the new preference right lease terms. On several occasions during these exchanges, Bureau staff had commented that renewal would be on the same terms and conditions as the 1966 Leases. Ultimately, in 1989, the Bureau transmitted a renewal copy with preference right renewal terms virtually identical to the 2004 Leases and the lessee signed the renewal. Based only on some statements by Bureau staff at the time and ignoring the plain language of the Leases as issued and signed in 1989, the Jorjani Opinion concluded the 1989 renewal was on exactly the same terms as the 1966 leases. 45. Because the 1989 and 2004 versions of the Leases are nearly identical, Principal Deputy Solicitor Jorjani concluded that the 2004 renewal of the Leases was also on the same terms and conditions as the 1966 Leases. Principal Deputy Solicitor Jorjani also interpreted the 1966 Leases as creating a right to unlimited successive 10-year renewals. Therefore, the Jorjani Opinion concluded that the Twin Metals had a right to renew in 2012, and that the Bureau did not have discretion to deny Twin Metals’ renewal application. 46. On May 2, 2018, more than 18 months after the Leases expired, the Bureau issued the Rescind/Reinstate Decision that is the subject of this complaint, purporting to rescind its December 15, 2016, decision denying Twin Metals’ 2012 application to renew the Leases. At the same time, the Bureau reinstated the Leases as written in 2004, as well as Twin Metals’ 2012 COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 17 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 19 of 23 application to renew the Leases. The Bureau adopted the conclusions in the Jorjani Opinion as the basis for the Rescind/Reinstate Decision. United States Department of the Interior Assistant Secretary Joseph Balash signed concurring in the Rescind/Reinstate decision, making it the Bureau’s final decision and rendering the decision ineligible for appeal to the Interior Board of Land Appeals. LEGAL BACKGROUND 47. Mineral leasing on more than ninety percent of the land that is the subject of the Leases is governed by 16 U.S.C. § 508b. This provision allows the Secretary of the Interior to permit mineral prospecting, development, and utilization on certain lands in the national forests in Minnesota that are withdrawn from the mining laws of the United States. Id. In doing so, the Secretary of the Interior must act in the best interests of the United States. Id. The Secretary of the Interior cannot permit mineral development or utilization on § 508b lands without the consent of the Secretary of Agriculture. Id. 48. In determining whether to consent to mineral development or utilization on § 508b lands, the Forest Service acting for the Secretary of Agriculture is bound by the Wilderness Act, Boundary Waters Act, and the National Forest Management Act (NFMA). The Wilderness Act makes the Forest Service responsible for preserving the wilderness character of the Boundary Waters, including by protecting the Boundary Waters from potentially harmful external activities. See 16 U.S.C. § 1133(b). The Boundary Waters Act directs the Forest Service to “minimize to the maximum extent possible, the environmental impacts associated with mineral development affecting” the Boundary Waters and Mining Protection Area. Pub. L. 95-495, §§ 1-2, 92 Stat. 1649 (1978). NFMA requires the Forest Service to consider wilderness, COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 18 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 20 of 23 habitat, recreational, spiritual, non-extractive business, and other non-mining values on National Forest System Lands when managing those lands. See 16 U.S.C. § 1600(2)-(3). 49. Mineral leasing on the remainder of the land that is the subject of the Leases is governed by 16 U.S.C. § 520. This provision allows the Secretary of Agriculture to permit mineral prospecting, development, and utilization on forest lands acquired under the Weeks Act. Id. In doing so, the Secretary of Agriculture must act in the best interests of the United States. Id. Section 402 of Reorganization Plan No. 3 of 1946 transfers the functions of the Secretary of Agriculture under § 520 to the Secretary of the Interior, but provides that the Secretary of the Interior may only authorize mineral activity when the Secretary of Agriculture determines that it will not interfere with the primary purposes for which the land was acquired. The Bureau, acting for the Secretary of the Interior, considers environmental impacts before granting a lease under Section 402 of Reorganization Plan No. 3 of 1946. 43 C.F.R. § 3507.19(b). 50. The Federal Land Policy and Management Act (FLPMA) requires the Bureau to “manage the public lands under principles of multiple use and sustained yield,” and to “take any action necessary to prevent unnecessary or undue degradation of the lands.” 43 U.S.C. § 1732. These principles require balancing the potential economic benefits of additional mining against the possible risks to environmental and cultural resources. 51. 16 U.S.C. § 508b, 16 U.S.C. § 520, Section 402 of Reorganization Plan No. 3 of 1946, and FLPMA (“the Leasing Statutes”) require the Bureau to consider environmental values on public lands on and around the Leases, including the Boundary Waters, in exercising its discretion with respect to the Leases. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 19 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 21 of 23 CAUSES OF ACTION COUNT I—ACTION WITHOUT LEGAL AUTHORITY 52. The Bureau’s December 15, 2016, decision was final. 53. The Leases expired when Twin Metals received the Bureau’s December 15, 2016, decision. 54. The Bureau had no statutory, regulatory, or inherent authority to rescind its December 15, 2016, decision and/or to resurrect and reinstate expired Leases. 55. The Bureau therefore acted without authority in issuing the Rescind/Reinstate Decision. Its action is of no effect and should be held unlawful and set aside under the Administrative Procedure Act, 5 U.S.C. § 706(2). COUNT II—ARBITRARY LEASE REINSTATEMENT 56. The 2004 Leases are fully integrated contracts, and there is no ambiguity in their renewal terms. They are preference right leases that preserve the Bureau’s authority to deny a subsequent renewal. 57. The Bureau’s denial of renewal in 2016 was authorized by the 2004 Leases, was required by the Forest Service’s refusal to consent, and resulted in the expiration of the Leases. 58. The Bureau’s Rescind/Reinstate Decision is based on an erroneous interpretation of the Leases, relying on an unjustified examination of extrinsic materials, and resulted in an arbitrary conclusion that the Bureau lacked authority to deny a third renewal of the Leases. 59. Even if it were necessary to resort to extrinsic evidence to interpret the 2004 Leases, the Jorjani Opinion’s analysis misinterpreted the 1966 Leases and is also contrary to the evidence relating to the 1989 renewal. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 20 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 22 of 23 60. As a result of the Bureau’s arbitrary conclusion that it lacked authority to deny a third renewal of the Leases, in issuing the Rescind/Reinstate Decision, the Bureau unlawfully abdicated duties imposed by the Leasing Statutes to protect the lands and waters of the Superior National Forest and the Boundary Waters, and to consider the value of multiple uses of those lands, which plaintiffs’ members use and enjoy. 61. The Bureau’s Rescind/Reinstate Decision is arbitrary and capricious and not in accordance with law under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), and violates the Leasing Statutes. PRAYER FOR RELIEF Therefore, plaintiffs respectfully request that the Court: 1. Declare that the defendants have acted without authority in issuing the Rescind/Reinstate Decision; 2. Declare that defendants have violated the Leasing Statutes by arbitrarily adopting an erroneous interpretation of the leases that would constrain the Bureau and the Forest Service from fulfilling their statutory obligations with respect to the leased land and surrounding public lands, including the Boundary Waters; 3. Vacate the Bureau’s Rescind/Reinstate Decision; 4. Enter any other appropriate injunctive relief to ensure that the defendants comply with the Leasing Statutes and the Administrative Procedure Act, and to prevent irreparable harm to the plaintiffs and to the environment until such compliance occurs; 5. Award plaintiffs the costs of this action, including reasonable attorneys’ fees, pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; and 6. Grant such other relief as the Court deems just and proper. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 21 Case 1:18-cv-01496 Document 1 Filed 06/25/18 Page 23 of 23 Dated this 25th day of June, 2018. Respectfully submitted, s/ Eric P. Jorgensen Eric P. Jorgensen (DC Bar No. 88897) EARTHJUSTICE 325 Fourth Street Juneau, AK 99801 T: 907.586.2751 E: ejorgensen@earthjustice.org s/ Erin Whalen Erin Whalen (pro hac vice pending) EARTHJUSTICE 325 Fourth Street Juneau, AK 99801 T: 907.586.2751 E: ewhalen@rearthjustice.org s/ Janette K. Brimmer Janette K. Brimmer (pro hac vice pending) EARTHJUSTICE 705 Second Avenue, Suite 203 Seattle, WA 98104 T: 206.343.1029 E: jbrimmer@earthjustice.org Attorneys for Plaintiffs The Wilderness Society, Izaak Walton League of America, and Center for Biological Diversity. COMPLAINT The Wilderness Society et al. v. Zinke et al., Case No. 22 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA LEAGUE OF CONSERVATION VOTERS, et al., Plaintiffs, v. DONALD J. TRUMP, et al., Case No. 3:17-cv-00101-SLG Defendants. ORDER JOINT SUMMARY JUDGMENT BRIEFING SCHEDULE Before the Court is the parties’ Joint Proposed Summary Judgment Briefing Schedule (Docket 47). The Court hereby APPROVES the schedule as follows: • May 12, 2018: Federal Defendants file an answer. • June 8, 2018: Plaintiffs file a motion for summary judgment. • July 18, 2018: Federal Defendants file a response to Plaintiffs’ motion for summary judgment, including or deemed a cross-motion for summary judgment. • August 2, 2018: Intervenor-Defendants file responses to Plaintiffs’ motion for summary judgment, including or deemed cross-motions for summary judgment. • September 14, 2018: Plaintiffs file a reply in support of summary judgment. • October 5, 2018: Federal Defendants file a reply to Plaintiffs’ reply. • October 12, 2018: Intervenor-Defendants file replies to Plaintiffs’ reply. 1 DATED this 3rd day of April, 2018 at Anchorage, Alaska. /s/ Sharon L. Gleason UNITED STATES DISTRICT JUDGE 1 The Court considered each parties’ position on this issue and determines that additional replies may be helpful in this case. See Docket 47. Case 3:17-cv-00101-SLG Document 48 Filed 04/03/18 Page 1 of 1 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 1 of 26 JEFFREY H. WOOD United States Department of Justice Acting Assistant Attorney General Environment & Natural Resources Division TYLER M. ALEXANDER (CA Bar No. 313188) Natural Resources Section Trial Attorney PO Box 7611 Washington, DC 20044-7611 Tel: (202) 305-0238 Fax: (202) 305-0506 tyler.alexander@usdoj.gov Attorneys for Federal Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________________ ) ) ) ) ) ) Case No. 1:18-cv-01463-TNM UNITED STATES OF AMERICA, et al. ) ) Defendants, ) Hon. Trevor N. McFadden v. ) ) TWIN METALS MINNESOTA, et al. ) ) Defendant-Intervenors. ) _________________________________________ ) VOYAGEUR OUTWARD BOUND SCHOOL, et al. Plaintiffs, v. DEFENDANTS’ ANSWER TO COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 2 of 26 In accordance with Federal Rules of Civil Procedure 8 and 15, the U.S. Department of the Interior, U.S. Bureau of Land Management (“BLM”), Ryan Zinke, in his official capacity as Secretary of the Interior, and Brian Steed, in his official capacity as the Deputy Director of BLM, by its undersigned counsel, submit the following Answer and defenses to the claims and allegations in Plaintiffs’ Complaint for Declarative and Injunctive Relief (“Complaint”). The paragraph headings in this Answer correspond to the paragraph headings in Plaintiffs’ Complaint, and are included solely for the purpose of organizational convenience in matching the answers provided herein with the allegations made in the Complaint. The headings are not part of Defendants’ answer to the allegations. Defendants do not waive any defensive theory or agree to or admit that Plaintiffs’ headings are accurate, appropriate, or substantiated. When a textual sentence is followed by a citation or citations, the textual sentence and its accompanying citation are referred to as one sentence. INTRODUCTION 1. Paragraph 1 constitutes Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny any violation of law and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 2. Paragraph 2 constitutes Plaintiffs’ characterization of their case and conclusions of law, to which no response is required. To the extent a response is required, Defendants deny any violation of law and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 3. Defendants admit the allegations in the first sentence of Paragraph 3 that the BWCAW is a water-based wilderness protected by federal law. The remaining allegations in the first sentence of Paragraph 3 constitutes Plaintiffs’ characterization of their case to which no ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 1 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 3 of 26 response is required. To the extent a response is required, Defendants deny any violation of law and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. Defendants admit the allegations in the second sentence of Paragraph 3. In response to sentence three of Paragraph 3, Defendants admit that it is possible that certain types of sulfide-ore mining may cause negative environmental impacts, but aver that whether those risks would exist in relation to any proposed Twin Metals plan of operations cannot be evaluated unless and until Twin Metals submits a mining plan. Defendants deny the remaining allegations in Paragraph 3. 4. The allegations in the first sentence of Paragraph 4 purport to characterize and quote from the U.S. Forest Service’s December 14, 2016 correspondence to the Bureau of Land Management, which speaks for itself and is the best evidence of its contents. The remaining allegations in Paragraph 4 constitute Plaintiffs’ characterization of their case and conclusions of law to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 5. The allegations in Paragraph 5 constitute Plaintiffs’ characterization of their case and conclusions of law to which no response is required. To the extent a response is required, Defendants deny the allegations and deny any violation of law. The allegations also purport to characterize the Bureau of Land Management’s May 2, 2018, Decision, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of that decision. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 2 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 4 of 26 6. The allegations in Paragraph 6 state conclusions of law and constitute Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny the allegations and deny any violation of law. 7. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 7. 8. The allegations in sentences one, three, and four of Paragraph 8 state conclusions of law and constitute Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny the allegations and deny any violation of law. Defendants deny the remaining allegations in Paragraph 8. JURISDICTION AND VENUE 9. The allegations in Paragraph 9 consist of conclusions of law, which do not require a response. To the extent a response may be deemed required, the statutes cited speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of these statutes. 10. The allegations in Paragraph 10 consist of conclusions of law, which do not require a response. To the extent a response may be deemed required, the statutes cited speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of these statutes. 11. The allegations in Paragraph 11 consist of conclusions of law, which do not require a response. To the extent a response may be deemed required, the statutes cited speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of these statutes. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 3 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 5 of 26 PLAINTIFFS 12. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 12. 13. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 13. 14. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 14. 15. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 15. 16. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 16. 17. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 17. 18. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 18. 19. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 19. 20. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 20. 21. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 21. 22. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 22. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 4 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 6 of 26 23. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 23. 24. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 24. DEFENDANTS 25. Defendants admit the allegations in Paragraph 25. 26. Defendants admit the allegations in Paragraph 26, but aver that the Department of the Interior is not solely responsible for the management of federal mineral interests. 27. Defendants admit the allegations in Paragraph 27. 28. Defendants admit the allegations in Paragraph 28. 29. Defendants admit the allegations in Paragraph 29. 30. Defendants admit the allegations in Paragraph 30. 31. Defendants admit the allegations in Paragraph 31. 32. Defendants admit the allegations in Paragraph 32. Defendants aver that BLM does not presently have a director, but that Brian Steed is currently exercising the authority of the director. 33. Defendants admit the allegations in Paragraph 33. Defendants aver that BLM does not presently have a director, but that Brian Steed is currently exercising the authority of the director. BACKGROUND The Boundary Waters Canoe Area Wilderness and the Superior National Forest 34. The allegations in Paragraph 34 purport to characterize the Boundary Waters Canoe Area Wilderness, which is defined by statute through the Boundary Waters Canoe Area ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 5 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 7 of 26 Wilderness Act of 1978. Defendants deny any allegations contrary to the plain language, context, or meaning of that statute. 35. Defendants admit the allegations in the first and third sentences of Paragraph 35. The allegations in the second sentence of Paragraph 35 purport to characterize the Boundary Waters Canoe Area Wilderness, which is defined by statute through the Boundary Waters Canoe Area Wilderness Act of 1978. Defendants deny any allegations contrary to the plain language, context, or meaning of that statute. The allegation in the fourth sentence of Paragraph 35 constitutes Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny those allegations and deny any violation of law. 36. Defendants admit the allegations in Paragraph 36. 37. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in the first sentence of Paragraph 37. Defendants admit the remaining allegations in Paragraph 37. 38. Defendants admit the allegations in the first sentence of Paragraph 38. The allegations in the remaining sentences of Paragraph 38 purport to characterize wilderness statutes, including the Wilderness Act of 1964, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of those statutes. 39. The allegations in Paragraph 39 purport to characterize and quote from the Boundary Waters Canoe Area Wilderness Act of 1978, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the statute. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 6 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 8 of 26 40. The allegations in Paragraph 40 purport to characterize and quote from the Boundary Waters Canoe Area Wilderness Act of 1978, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the statute. 41. The allegations in Paragraph 41 constitute conclusions of law to which no response is required and purport to characterize the Boundary Waters Canoe Area Wilderness Act of 1978, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the statute. 42. The allegations in Paragraph 42 constitute conclusions of law to which no response is required and purport to characterize statutes and regulations, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the statutes or regulations. Issuance and Two Renewals of Leases MNES 01352 and 01353 43. Defendants admit the allegations in Paragraph 43. 44. The allegations in sentence one of Paragraph 44 purport to characterize and quote from the 1966 Leases, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of those documents. Defendants deny the allegations in sentence two of Paragraph 44. Defendants aver that the land leased under MNES 01353 is adjacent to the BWCAW and the land leased under MNES 01352 is located within three miles of the BWCAW. 45. The allegations in Paragraph 45 purport to characterize the Boundary Waters Canoe Area Wilderness, which is defined by statute through the Boundary Waters Canoe Area ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 7 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 9 of 26 Wilderness Act of 1978. Defendants deny any allegations contrary to the plain language, context, or meaning of that statute. 46. Defendants admit the allegations in the first sentence of Paragraph 46. Defendants admit the allegation in the second sentence of Paragraph 46 that the majority of the leased lands are public-domain lands. Defendants deny the remaining allegations in Paragraph 46. 47. The allegations in Paragraph 47 purport to characterize and quote from the 1966 Leases, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of those documents. 48. Defendants admit the allegations in Paragraph 48. 49. Defendants deny the allegation in the first sentence of Paragraph 49 that BLM sent correspondence to the Forest Service on June 8, 1986, but aver that BLM sent correspondence to the Forest Service on June 6, 1986. The remaining allegations in Paragraph 49 purport to characterize and quote from the documents exchanged in correspondence between the BLM and the Forest Service sent on June 6, 1986 and June 19, 1987, which speak for themselves and are the best evidence of their contents. 50. Defendants deny the allegation in the third sentence of Paragraph 50 that the Rolla office is a District Office, but aver that it is a sub-office of the Northeastern States District Office. The remaining allegations in Paragraph 50 purport to characterize the July 9, 1986 memorandum of the BLM Assistant District Manager for Energy and Minerals, Milwaukee and the February 1, 1988 memorandum of the BLM Assistant District Manager for Solid Minerals, Rolla to the BLM Eastern States State Director, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of those documents. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 8 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 10 of 26 51. The allegations in Paragraph 51 purport to characterize the September 12, 1988 BLM decision and the proposed leases, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of those documents. 52. The allegations in Paragraph 52 purport to characterize the October 14, 1988 memorandum of the BLM Assistant District Manager for Solid Minerals and the October 27, 1988 BLM Decision Vacatur, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of those documents. 53. The allegations in Paragraph 53 purport to characterize and quote from the BLM’s April 26, 1989 decision to renew the leases challenged in this action and the lease renewal forms the BLM and Inco Alloys International Inc. signed in May and June of 1989, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of those documents. 54. The allegations in Paragraph 54 purport to characterize and quote from the lease renewal forms the BLM and Inco Alloys International Inc. signed in May and June of 1989, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of those documents. 55. Defendants admit the allegations in Paragraph 55. 56. The allegations in Paragraph 56 purport to characterize and quote from a March 25, 1999 BLM letter to the Forest Service requesting its recommendation on renewal and the Forest Service’s July 18, 2003 response, documents which speak for themselves and are ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 9 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 11 of 26 the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of those documents. 57. The allegations in Paragraph 57 purport to characterize and quote from the 2004 lease renewal forms the BLM and American Copper and Nickel Inc. signed in November and December of 2003, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of those documents. 58. Defendants admit the allegations in the first sentence of Paragraph 58. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in sentence two of Paragraph 58, and on that basis deny. 59. In response to the allegations in Paragraph 59, Defendants admit that neither Twin Metals nor its predecessors-in-interest have commercially produced minerals, but aver that those entities have conducted mineral exploration activities. 60. The allegations in Paragraph 60 purport to characterize and quote correspondence between BLM and Hilary C. Tompkins, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of that correspondence. 61. The allegations in Paragraph 61 purport to characterize the March 8, 2016, Memorandum Opinion, M-37036, which speaks for itself and is the best evidence of its contents. 62. The allegations in Paragraph 62 purport to characterize the March 8, 2016, Memorandum Opinion, M-37036, which speaks for itself and is the best evidence of its contents. 63. The allegations in Paragraph 63 purport to characterize the March 8, 2016, Memorandum Opinion, M-37036, which speaks for itself and is the best evidence of its contents. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 10 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 12 of 26 64. The allegations in Paragraph 64 purport to characterize the March 8, 2016, Memorandum Opinion, M-37036, which speaks for itself and is the best evidence of its contents. 65. The allegations in Paragraph 65 purport to characterize the June 3, 2016, letter from the BLM Eastern States Director to the Forest Service Regional Forester, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the letter. 66. The allegations in Paragraph 66 purport to characterize the December 14, 2016, letter from the Forest Service Chief to the BLM Director, which speaks for itself and is the best evidence of its contents. 67. The allegations in Paragraph 67 purport to characterize and quote from the December 14, 2016, letter from the Forest Service Chief to the BLM Director, which speaks for itself and is the best evidence of its contents. 68. The allegations in Paragraph 68 purport to characterize and quote from the December 14, 2016, letter from the Forest Service Chief to the BLM Director, which speaks for itself and is the best evidence of its contents. 69. The allegations in Paragraph 69 purport to characterize and quote from the December 14, 2016, letter from the Forest Service Chief to the BLM Director, which speaks for itself and is the best evidence of its contents. 70. The allegations in Paragraph 70 purport to characterize and quote from the December 14, 2016, letter from the Forest Service Chief to the BLM Director, which speaks for itself and is the best evidence of its contents. 71. The allegations in the first sentence of Paragraph 71 purport to characterize the December 14, 2016, letter from the Forest Service Chief to the BLM Director, which speaks for ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 11 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 13 of 26 itself and is the best evidence of its contents. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in the second sentence of Paragraph 71. Additionally, to the extent the photograph included in the complaint is not found in the Administrative Record for the challenged decision, Defendants object to this Court considering that photograph on Administrative Procedure Act review. 72. The allegations in Paragraph 72 purport to characterize and quote from the December 14, 2016, letter from the Forest Service Chief to the BLM Director, which speaks for itself and is the best evidence of its contents. 73. The allegations in Paragraph 73 purport to characterize the December 14, 2016, letter from the Forest Service Chief to the BLM Director, which speaks for itself and is the best evidence of its contents. 74. The allegations in Paragraph 74 purport to characterize the December 15, 2016, decision from then-BLM Eastern States Director, Karen Mouritsen, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of that document. 75. The allegations in Paragraph 75 constitute Plaintiffs’ characterization of their case and conclusions of law to which no response is required. To the extent a response is required, Defendants deny those allegations and deny any violation of law. The allegations in Paragraph 75 also purport to characterize 43 C.F.R. § 3514.25, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of that regulation. 76. Defendants admit the allegations in Paragraph 76. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 12 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 14 of 26 The BLM Reinstates the Expired Leases 77. Defendants admit the allegations in Paragraph 77. 78. The allegations in Paragraph 78 purport to characterize the December 22, 2017, Memorandum Opinion, M-37049, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the M-Opinion. 79. The allegations in Paragraph 79 purport to characterize the December 22, 2017, Memorandum Opinion, M-37049, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the M-Opinion. 80. The allegations in Paragraph 80 purport to characterize and quote from the December 22, 2017, Memorandum Opinion, M-37049, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the M-Opinion. 81. The allegations in Paragraph 81 purport to characterize the December 22, 2017, Memorandum Opinion, M-37049, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the M-Opinion. 82. The allegations in sentence one of Paragraph 82 purport to characterize the December 22, 2017, Memorandum Opinion, M-37049, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the M-Opinion. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 13 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 15 of 26 83. The allegations in sentence one of Paragraph 83 purport to characterize the December 22, 2017, Memorandum Opinion, M-37049, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the M-Opinion. 84. The allegations in Paragraph 84 purport to characterize and quote from the December 22, 2017, Memorandum Opinion, M-37049, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the M-Opinion. 85. The allegations in Paragraph 85 purport to characterize and quote from the May 2, 2018, BLM decision rescinding the prior December 15, 2016 decision to reject the lease renewal application and reinstating the leases and the renewal application, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of that document. 86. Defendants deny any allegation in Paragraph 86 that withdrawal or modification of the Forest Service’s non-consent determination was required prior to reinstatement of the leases. Defendants admit the remaining allegations in Paragraph 86. Defendants’ Actions Harm Plaintiffs’ Interests by Threatening the Businesses and Use of the BWCAW and Superior National Forest 87. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 87. 88. The allegations in Paragraph 88 constitute conclusions of law and Plaintiffs’ characterization of their case, to which no response is required. To the extent a response is required, Defendants deny the allegations. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 14 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 16 of 26 89. Defendants admit the allegation in the first sentence of Paragraph 89 that Twin Metals requested an amendment to its 2013 Plan of Operations. The remaining allegations in Paragraph 89 purport to characterize the 2013 Plan of Operations, which speaks for itself and is the best evidence of its contents. 90. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 90. 91. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 91. 92. Defendants admit the allegation in the first sentence of Paragraph 92 to the extent that one sign has been placed on an entrance gate to Forest Service lands covered by the leases. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the remaining the allegations in Paragraph 92. 93. The allegations in Paragraph 93 constitute Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny those allegations, deny any violation of law, and deny Plaintiffs are entitled to their requested relief or any relief whatsoever. 94. The allegations in the first and second sentences of Paragraph 94 constitute Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny those allegations and deny any violation of law. In response to the allegations in the third sentence of Paragraph 94, Defendants admit that it is possible that certain types sulfide-ore mining may carry risks, but aver that whether those risks would exist in relation to any proposed Twin Metals plan of operations cannot be evaluated unless and until Twin Metals submits a mining plan. The allegations in the ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 15 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 17 of 26 fourth sentence of Paragraph 94 purport to characterize unidentified data from the U.S. Environmental Protection Agency, which speaks for itself and is the best evidence of its contents. 95. The allegations in the first sentence of Paragraph 95 purport to characterize unspecified reports, which speak for themselves and are the best evidence of their contents. In response to the allegations in the second sentence of Paragraph 95, defendants acknowledge that that it is possible that certain types of sulfide-ore mining may carry risks, but aver that whether those risks would exist in relation to any proposed Twin Metals plan of operations cannot be evaluated unless and until Twin Metals submits a mining plan. The remaining allegations in Paragraph 95 constitute Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny those allegations and deny any violation of law. 96. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in the first four sentences of Paragraph 96. Defendants deny the allegations in the fifth sentence of Paragraph 96. 97. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 97. 98. Defendants deny the allegations in the first sentence of Paragraph 98. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 98. 99. Defendants deny the allegations in the first and third sentences of Paragraph 99. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 99. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 16 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 18 of 26 100. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 100. 101. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 101. 102. Defendants deny the allegation in the first sentence of Paragraph 102 that NMW’s members will be harmed by mining. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in the remainder of sentence one and all of sentence three of Paragraph 102. The allegations in the remainder of Paragraph 102 constitute Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny those allegations and deny any violation of law. 103. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in sentence one of Paragraph 103. The allegations in the remainder of Paragraph 103 constitute Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny those allegations and deny any violation of law. 104. The allegations in the first sentence of Paragraph 104 constitute Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny the allegations. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 104. 105. The allegations in the first and second sentences of Paragraph 105 constitute Plaintiffs’ characterization of their case to which no response is required. To the extent a response ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 17 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 19 of 26 is required, Defendants deny the allegation, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. The allegations in the third sentence of Paragraph 105 purport to characterize a 2014 University of Minnesota study, which speaks for itself and is the best evidence of its contents. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in sentence four of Paragraph 105. 106. The allegations in the first sentence of Paragraph 106 purport to characterize unidentified statements of unidentified scientists and physicians. Defendants lack the knowledge or information sufficient to form a belief as to the truth of those allegations. In response to the allegations in the second sentence of Paragraph 106, Defendants acknowledge that it is possible that certain types of hard-rock or sulfide-ore copper mining may generate harmful byproducts, but aver that whether those risks would exist in relation to any proposed Twin Metals plan of operations cannot be evaluated unless and until Twin Metals submits a mining plan. In response to the allegations in the third sentence of Paragraph 106, Defendants admit that contamination of lands held in the public trust could negatively impact stakeholders, but aver that whether those risks would exist in relation to any proposed Twin Metals plan of operations cannot be evaluated unless and until Twin Metals submits a mining plan. 107. The allegations in Paragraph 107 purport to characterize unidentified scientific evidence. Without more specific information, Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 107. 108. The allegations in Paragraph 108 constitute Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny the ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 18 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 20 of 26 allegations in Paragraph 108 and deny any violation of law. Defendants also aver that whether the risks alleged in Paragraph 108 would exist in relation to any proposed Twin Metals plan of operations cannot be evaluated unless and until Twin Metals submits a mining plan. 109. Defendants deny the allegations in Paragraph 109. CLAIM FOR RELIEF COUNT I: INTERIOR AND BLM LACK AUTHORITY TO RESCIND THE PRIOR DECISION AND REINSTATE THE EXPIRED LEASES 110. Defendants incorporate their response to Paragraphs 1-109. 111. The allegations in Paragraph 111 purport to characterize the Administrative Procedure Act, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the statute. 112. The allegations in Paragraph 112 constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 113. The allegations in Paragraph 113 constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 114. The allegations in Paragraph 114 constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny any violation of law and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 19 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 21 of 26 115. The allegations in Paragraph 115 constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny any violation of law and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 116. The allegations in Paragraph 116 purport to characterize the Bureau of Land Management’s May 2, 2018, Decision, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of that document. The allegations in Paragraph 116 also constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 117. The allegations in Paragraph 117 purport to characterize the Bureau of Land Management’s May 2, 2018, Decision, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of that document. 118. The allegations in the first sentence of Paragraph 118 purport to characterize the May 2, 2018 Decision, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of that document. The remaining allegations in Paragraph 118 constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 119. The allegations in the second and third sentences of Paragraph 119 purport to characterize the Bureau of Land Management’s May 2, 2018, Decision, which speaks for ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 20 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 22 of 26 itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of that document. The remaining allegations in Paragraph 119 constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 120. The allegations in Paragraph 120 constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. COUNT II: THE REINSTATEMENT OF THE LEASES IS ARBITRARY AND CAPRICIOUS BECAUSE THE JORJANI M-OPINION IS RIDDLED WITH ERRORS 121. Defendants incorporate their response to Paragraphs 1-121. 122. The allegations in Paragraph 122 purport to characterize the Administrative Procedure Act, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the statute. 123. The allegations in Paragraph 123 constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 124. The allegations in Paragraph 124 constitute conclusions of law and Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 21 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 23 of 26 125. The allegations in Paragraph 125 constitute Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. The allegations in Paragraph 125 126. The allegations in Paragraph 126 constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 127. The allegations in Paragraph 127 constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny any violation of law and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 128. The allegations in Paragraph 128 purport to characterize the May 2, 2018 Decision and the Jorjani M-Opinion, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of those documents. 129. The allegations in Paragraph 129 constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 130. The allegations in Paragraph 130 purport to characterize the Thompkins M-Opinion and the Jorjani M-Opinion, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the Jorjani M-Opinion. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 22 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 24 of 26 131. The allegations in Paragraph 131 purport to characterize the May 2, 2018 Decision and the Jorjani M-Opinion, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of those documents. 132. The allegations in Paragraph 132 constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. RELIEF REQUESTED The remainder of the Amended Complaint constitutes Plaintiffs’ request for relief, to which no response is required. To the extent a response is required, Defendants deny any violation of the Administrative Procedure Act or any other applicable statute, and deny that Plaintiffs are entitled to the requested relief or any relief whatsoever. GENERAL DENIAL Defendants deny any allegations of the Complaint, whether express or implied, not specifically admitted, denied, or qualified herein. DEFENSES 1. Plaintiffs have failed to state a claim upon which relief can be granted. 2. This Court lacks subject matter jurisdiction to review Plaintiffs’ claims. Respectfully submitted this 27th day of August, 2018, JEFFREY H. WOOD ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 23 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 25 of 26 United States Department of Justice Acting Assistant Attorney General Environment & Natural Resources Division /s/ Tyler M. Alexander TYLER M. ALEXANDER Natural Resources Section Trial Attorney PO Box 7611 Washington, DC 20044-7611 Tel: (202) 305-0238 (Alexander) Fax: (202) 305-0506 tyler.alexander@usdoj.gov Attorneys for Federal Defendants ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 24 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 26 of 26 CERTIFICATE OF SERVICE I certify that on August 27, 2018, I filed the foregoing ANSWER TO COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF electronically through the CM/ECF system, which caused all parties or counsel of record to be served by electronic means, as more fully reflected on the Notice of Electronic Filing. /s/ Tyler M. Alexander TYLER M. ALEXANDER Attorney for Federal Defendants Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 1 of 26 JEFFREY H. WOOD United States Department of Justice Acting Assistant Attorney General Environment & Natural Resources Division TYLER M. ALEXANDER (CA Bar No. 313188) Natural Resources Section Trial Attorney PO Box 7611 Washington, DC 20044-7611 Tel: (202) 305-0238 Fax: (202) 305-0506 tyler.alexander@usdoj.gov Attorneys for Federal Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________________ ) ) ) ) ) ) Case No. 1:18-cv-01463-TNM UNITED STATES OF AMERICA, et al. ) ) Defendants, ) Hon. Trevor N. McFadden v. ) ) TWIN METALS MINNESOTA, et al. ) ) Defendant-Intervenors. ) _________________________________________ ) VOYAGEUR OUTWARD BOUND SCHOOL, et al. Plaintiffs, v. DEFENDANTS’ ANSWER TO COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 2 of 26 In accordance with Federal Rules of Civil Procedure 8 and 15, the U.S. Department of the Interior, U.S. Bureau of Land Management (“BLM”), Ryan Zinke, in his official capacity as Secretary of the Interior, and Brian Steed, in his official capacity as the Deputy Director of BLM, by its undersigned counsel, submit the following Answer and defenses to the claims and allegations in Plaintiffs’ Complaint for Declarative and Injunctive Relief (“Complaint”). The paragraph headings in this Answer correspond to the paragraph headings in Plaintiffs’ Complaint, and are included solely for the purpose of organizational convenience in matching the answers provided herein with the allegations made in the Complaint. The headings are not part of Defendants’ answer to the allegations. Defendants do not waive any defensive theory or agree to or admit that Plaintiffs’ headings are accurate, appropriate, or substantiated. When a textual sentence is followed by a citation or citations, the textual sentence and its accompanying citation are referred to as one sentence. INTRODUCTION 1. Paragraph 1 constitutes Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny any violation of law and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 2. Paragraph 2 constitutes Plaintiffs’ characterization of their case and conclusions of law, to which no response is required. To the extent a response is required, Defendants deny any violation of law and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 3. Defendants admit the allegations in the first sentence of Paragraph 3 that the BWCAW is a water-based wilderness protected by federal law. The remaining allegations in the first sentence of Paragraph 3 constitutes Plaintiffs’ characterization of their case to which no ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 1 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 3 of 26 response is required. To the extent a response is required, Defendants deny any violation of law and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. Defendants admit the allegations in the second sentence of Paragraph 3. In response to sentence three of Paragraph 3, Defendants admit that it is possible that certain types of sulfide-ore mining may cause negative environmental impacts, but aver that whether those risks would exist in relation to any proposed Twin Metals plan of operations cannot be evaluated unless and until Twin Metals submits a mining plan. Defendants deny the remaining allegations in Paragraph 3. 4. The allegations in the first sentence of Paragraph 4 purport to characterize and quote from the U.S. Forest Service’s December 14, 2016 correspondence to the Bureau of Land Management, which speaks for itself and is the best evidence of its contents. The remaining allegations in Paragraph 4 constitute Plaintiffs’ characterization of their case and conclusions of law to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 5. The allegations in Paragraph 5 constitute Plaintiffs’ characterization of their case and conclusions of law to which no response is required. To the extent a response is required, Defendants deny the allegations and deny any violation of law. The allegations also purport to characterize the Bureau of Land Management’s May 2, 2018, Decision, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of that decision. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 2 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 4 of 26 6. The allegations in Paragraph 6 state conclusions of law and constitute Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny the allegations and deny any violation of law. 7. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 7. 8. The allegations in sentences one, three, and four of Paragraph 8 state conclusions of law and constitute Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny the allegations and deny any violation of law. Defendants deny the remaining allegations in Paragraph 8. JURISDICTION AND VENUE 9. The allegations in Paragraph 9 consist of conclusions of law, which do not require a response. To the extent a response may be deemed required, the statutes cited speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of these statutes. 10. The allegations in Paragraph 10 consist of conclusions of law, which do not require a response. To the extent a response may be deemed required, the statutes cited speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of these statutes. 11. The allegations in Paragraph 11 consist of conclusions of law, which do not require a response. To the extent a response may be deemed required, the statutes cited speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of these statutes. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 3 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 5 of 26 PLAINTIFFS 12. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 12. 13. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 13. 14. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 14. 15. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 15. 16. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 16. 17. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 17. 18. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 18. 19. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 19. 20. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 20. 21. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 21. 22. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 22. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 4 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 6 of 26 23. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 23. 24. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 24. DEFENDANTS 25. Defendants admit the allegations in Paragraph 25. 26. Defendants admit the allegations in Paragraph 26, but aver that the Department of the Interior is not solely responsible for the management of federal mineral interests. 27. Defendants admit the allegations in Paragraph 27. 28. Defendants admit the allegations in Paragraph 28. 29. Defendants admit the allegations in Paragraph 29. 30. Defendants admit the allegations in Paragraph 30. 31. Defendants admit the allegations in Paragraph 31. 32. Defendants admit the allegations in Paragraph 32. Defendants aver that BLM does not presently have a director, but that Brian Steed is currently exercising the authority of the director. 33. Defendants admit the allegations in Paragraph 33. Defendants aver that BLM does not presently have a director, but that Brian Steed is currently exercising the authority of the director. BACKGROUND The Boundary Waters Canoe Area Wilderness and the Superior National Forest 34. The allegations in Paragraph 34 purport to characterize the Boundary Waters Canoe Area Wilderness, which is defined by statute through the Boundary Waters Canoe Area ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 5 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 7 of 26 Wilderness Act of 1978. Defendants deny any allegations contrary to the plain language, context, or meaning of that statute. 35. Defendants admit the allegations in the first and third sentences of Paragraph 35. The allegations in the second sentence of Paragraph 35 purport to characterize the Boundary Waters Canoe Area Wilderness, which is defined by statute through the Boundary Waters Canoe Area Wilderness Act of 1978. Defendants deny any allegations contrary to the plain language, context, or meaning of that statute. The allegation in the fourth sentence of Paragraph 35 constitutes Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny those allegations and deny any violation of law. 36. Defendants admit the allegations in Paragraph 36. 37. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in the first sentence of Paragraph 37. Defendants admit the remaining allegations in Paragraph 37. 38. Defendants admit the allegations in the first sentence of Paragraph 38. The allegations in the remaining sentences of Paragraph 38 purport to characterize wilderness statutes, including the Wilderness Act of 1964, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of those statutes. 39. The allegations in Paragraph 39 purport to characterize and quote from the Boundary Waters Canoe Area Wilderness Act of 1978, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the statute. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 6 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 8 of 26 40. The allegations in Paragraph 40 purport to characterize and quote from the Boundary Waters Canoe Area Wilderness Act of 1978, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the statute. 41. The allegations in Paragraph 41 constitute conclusions of law to which no response is required and purport to characterize the Boundary Waters Canoe Area Wilderness Act of 1978, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the statute. 42. The allegations in Paragraph 42 constitute conclusions of law to which no response is required and purport to characterize statutes and regulations, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the statutes or regulations. Issuance and Two Renewals of Leases MNES 01352 and 01353 43. Defendants admit the allegations in Paragraph 43. 44. The allegations in sentence one of Paragraph 44 purport to characterize and quote from the 1966 Leases, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of those documents. Defendants deny the allegations in sentence two of Paragraph 44. Defendants aver that the land leased under MNES 01353 is adjacent to the BWCAW and the land leased under MNES 01352 is located within three miles of the BWCAW. 45. The allegations in Paragraph 45 purport to characterize the Boundary Waters Canoe Area Wilderness, which is defined by statute through the Boundary Waters Canoe Area ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 7 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 9 of 26 Wilderness Act of 1978. Defendants deny any allegations contrary to the plain language, context, or meaning of that statute. 46. Defendants admit the allegations in the first sentence of Paragraph 46. Defendants admit the allegation in the second sentence of Paragraph 46 that the majority of the leased lands are public-domain lands. Defendants deny the remaining allegations in Paragraph 46. 47. The allegations in Paragraph 47 purport to characterize and quote from the 1966 Leases, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of those documents. 48. Defendants admit the allegations in Paragraph 48. 49. Defendants deny the allegation in the first sentence of Paragraph 49 that BLM sent correspondence to the Forest Service on June 8, 1986, but aver that BLM sent correspondence to the Forest Service on June 6, 1986. The remaining allegations in Paragraph 49 purport to characterize and quote from the documents exchanged in correspondence between the BLM and the Forest Service sent on June 6, 1986 and June 19, 1987, which speak for themselves and are the best evidence of their contents. 50. Defendants deny the allegation in the third sentence of Paragraph 50 that the Rolla office is a District Office, but aver that it is a sub-office of the Northeastern States District Office. The remaining allegations in Paragraph 50 purport to characterize the July 9, 1986 memorandum of the BLM Assistant District Manager for Energy and Minerals, Milwaukee and the February 1, 1988 memorandum of the BLM Assistant District Manager for Solid Minerals, Rolla to the BLM Eastern States State Director, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of those documents. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 8 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 10 of 26 51. The allegations in Paragraph 51 purport to characterize the September 12, 1988 BLM decision and the proposed leases, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of those documents. 52. The allegations in Paragraph 52 purport to characterize the October 14, 1988 memorandum of the BLM Assistant District Manager for Solid Minerals and the October 27, 1988 BLM Decision Vacatur, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of those documents. 53. The allegations in Paragraph 53 purport to characterize and quote from the BLM’s April 26, 1989 decision to renew the leases challenged in this action and the lease renewal forms the BLM and Inco Alloys International Inc. signed in May and June of 1989, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of those documents. 54. The allegations in Paragraph 54 purport to characterize and quote from the lease renewal forms the BLM and Inco Alloys International Inc. signed in May and June of 1989, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of those documents. 55. Defendants admit the allegations in Paragraph 55. 56. The allegations in Paragraph 56 purport to characterize and quote from a March 25, 1999 BLM letter to the Forest Service requesting its recommendation on renewal and the Forest Service’s July 18, 2003 response, documents which speak for themselves and are ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 9 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 11 of 26 the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of those documents. 57. The allegations in Paragraph 57 purport to characterize and quote from the 2004 lease renewal forms the BLM and American Copper and Nickel Inc. signed in November and December of 2003, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of those documents. 58. Defendants admit the allegations in the first sentence of Paragraph 58. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in sentence two of Paragraph 58, and on that basis deny. 59. In response to the allegations in Paragraph 59, Defendants admit that neither Twin Metals nor its predecessors-in-interest have commercially produced minerals, but aver that those entities have conducted mineral exploration activities. 60. The allegations in Paragraph 60 purport to characterize and quote correspondence between BLM and Hilary C. Tompkins, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of that correspondence. 61. The allegations in Paragraph 61 purport to characterize the March 8, 2016, Memorandum Opinion, M-37036, which speaks for itself and is the best evidence of its contents. 62. The allegations in Paragraph 62 purport to characterize the March 8, 2016, Memorandum Opinion, M-37036, which speaks for itself and is the best evidence of its contents. 63. The allegations in Paragraph 63 purport to characterize the March 8, 2016, Memorandum Opinion, M-37036, which speaks for itself and is the best evidence of its contents. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 10 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 12 of 26 64. The allegations in Paragraph 64 purport to characterize the March 8, 2016, Memorandum Opinion, M-37036, which speaks for itself and is the best evidence of its contents. 65. The allegations in Paragraph 65 purport to characterize the June 3, 2016, letter from the BLM Eastern States Director to the Forest Service Regional Forester, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the letter. 66. The allegations in Paragraph 66 purport to characterize the December 14, 2016, letter from the Forest Service Chief to the BLM Director, which speaks for itself and is the best evidence of its contents. 67. The allegations in Paragraph 67 purport to characterize and quote from the December 14, 2016, letter from the Forest Service Chief to the BLM Director, which speaks for itself and is the best evidence of its contents. 68. The allegations in Paragraph 68 purport to characterize and quote from the December 14, 2016, letter from the Forest Service Chief to the BLM Director, which speaks for itself and is the best evidence of its contents. 69. The allegations in Paragraph 69 purport to characterize and quote from the December 14, 2016, letter from the Forest Service Chief to the BLM Director, which speaks for itself and is the best evidence of its contents. 70. The allegations in Paragraph 70 purport to characterize and quote from the December 14, 2016, letter from the Forest Service Chief to the BLM Director, which speaks for itself and is the best evidence of its contents. 71. The allegations in the first sentence of Paragraph 71 purport to characterize the December 14, 2016, letter from the Forest Service Chief to the BLM Director, which speaks for ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 11 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 13 of 26 itself and is the best evidence of its contents. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in the second sentence of Paragraph 71. Additionally, to the extent the photograph included in the complaint is not found in the Administrative Record for the challenged decision, Defendants object to this Court considering that photograph on Administrative Procedure Act review. 72. The allegations in Paragraph 72 purport to characterize and quote from the December 14, 2016, letter from the Forest Service Chief to the BLM Director, which speaks for itself and is the best evidence of its contents. 73. The allegations in Paragraph 73 purport to characterize the December 14, 2016, letter from the Forest Service Chief to the BLM Director, which speaks for itself and is the best evidence of its contents. 74. The allegations in Paragraph 74 purport to characterize the December 15, 2016, decision from then-BLM Eastern States Director, Karen Mouritsen, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of that document. 75. The allegations in Paragraph 75 constitute Plaintiffs’ characterization of their case and conclusions of law to which no response is required. To the extent a response is required, Defendants deny those allegations and deny any violation of law. The allegations in Paragraph 75 also purport to characterize 43 C.F.R. § 3514.25, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of that regulation. 76. Defendants admit the allegations in Paragraph 76. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 12 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 14 of 26 The BLM Reinstates the Expired Leases 77. Defendants admit the allegations in Paragraph 77. 78. The allegations in Paragraph 78 purport to characterize the December 22, 2017, Memorandum Opinion, M-37049, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the M-Opinion. 79. The allegations in Paragraph 79 purport to characterize the December 22, 2017, Memorandum Opinion, M-37049, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the M-Opinion. 80. The allegations in Paragraph 80 purport to characterize and quote from the December 22, 2017, Memorandum Opinion, M-37049, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the M-Opinion. 81. The allegations in Paragraph 81 purport to characterize the December 22, 2017, Memorandum Opinion, M-37049, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the M-Opinion. 82. The allegations in sentence one of Paragraph 82 purport to characterize the December 22, 2017, Memorandum Opinion, M-37049, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the M-Opinion. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 13 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 15 of 26 83. The allegations in sentence one of Paragraph 83 purport to characterize the December 22, 2017, Memorandum Opinion, M-37049, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the M-Opinion. 84. The allegations in Paragraph 84 purport to characterize and quote from the December 22, 2017, Memorandum Opinion, M-37049, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the M-Opinion. 85. The allegations in Paragraph 85 purport to characterize and quote from the May 2, 2018, BLM decision rescinding the prior December 15, 2016 decision to reject the lease renewal application and reinstating the leases and the renewal application, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of that document. 86. Defendants deny any allegation in Paragraph 86 that withdrawal or modification of the Forest Service’s non-consent determination was required prior to reinstatement of the leases. Defendants admit the remaining allegations in Paragraph 86. Defendants’ Actions Harm Plaintiffs’ Interests by Threatening the Businesses and Use of the BWCAW and Superior National Forest 87. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 87. 88. The allegations in Paragraph 88 constitute conclusions of law and Plaintiffs’ characterization of their case, to which no response is required. To the extent a response is required, Defendants deny the allegations. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 14 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 16 of 26 89. Defendants admit the allegation in the first sentence of Paragraph 89 that Twin Metals requested an amendment to its 2013 Plan of Operations. The remaining allegations in Paragraph 89 purport to characterize the 2013 Plan of Operations, which speaks for itself and is the best evidence of its contents. 90. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 90. 91. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 91. 92. Defendants admit the allegation in the first sentence of Paragraph 92 to the extent that one sign has been placed on an entrance gate to Forest Service lands covered by the leases. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the remaining the allegations in Paragraph 92. 93. The allegations in Paragraph 93 constitute Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny those allegations, deny any violation of law, and deny Plaintiffs are entitled to their requested relief or any relief whatsoever. 94. The allegations in the first and second sentences of Paragraph 94 constitute Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny those allegations and deny any violation of law. In response to the allegations in the third sentence of Paragraph 94, Defendants admit that it is possible that certain types sulfide-ore mining may carry risks, but aver that whether those risks would exist in relation to any proposed Twin Metals plan of operations cannot be evaluated unless and until Twin Metals submits a mining plan. The allegations in the ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 15 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 17 of 26 fourth sentence of Paragraph 94 purport to characterize unidentified data from the U.S. Environmental Protection Agency, which speaks for itself and is the best evidence of its contents. 95. The allegations in the first sentence of Paragraph 95 purport to characterize unspecified reports, which speak for themselves and are the best evidence of their contents. In response to the allegations in the second sentence of Paragraph 95, defendants acknowledge that that it is possible that certain types of sulfide-ore mining may carry risks, but aver that whether those risks would exist in relation to any proposed Twin Metals plan of operations cannot be evaluated unless and until Twin Metals submits a mining plan. The remaining allegations in Paragraph 95 constitute Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny those allegations and deny any violation of law. 96. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in the first four sentences of Paragraph 96. Defendants deny the allegations in the fifth sentence of Paragraph 96. 97. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 97. 98. Defendants deny the allegations in the first sentence of Paragraph 98. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 98. 99. Defendants deny the allegations in the first and third sentences of Paragraph 99. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 99. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 16 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 18 of 26 100. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 100. 101. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 101. 102. Defendants deny the allegation in the first sentence of Paragraph 102 that NMW’s members will be harmed by mining. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in the remainder of sentence one and all of sentence three of Paragraph 102. The allegations in the remainder of Paragraph 102 constitute Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny those allegations and deny any violation of law. 103. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in sentence one of Paragraph 103. The allegations in the remainder of Paragraph 103 constitute Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny those allegations and deny any violation of law. 104. The allegations in the first sentence of Paragraph 104 constitute Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny the allegations. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 104. 105. The allegations in the first and second sentences of Paragraph 105 constitute Plaintiffs’ characterization of their case to which no response is required. To the extent a response ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 17 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 19 of 26 is required, Defendants deny the allegation, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. The allegations in the third sentence of Paragraph 105 purport to characterize a 2014 University of Minnesota study, which speaks for itself and is the best evidence of its contents. Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in sentence four of Paragraph 105. 106. The allegations in the first sentence of Paragraph 106 purport to characterize unidentified statements of unidentified scientists and physicians. Defendants lack the knowledge or information sufficient to form a belief as to the truth of those allegations. In response to the allegations in the second sentence of Paragraph 106, Defendants acknowledge that it is possible that certain types of hard-rock or sulfide-ore copper mining may generate harmful byproducts, but aver that whether those risks would exist in relation to any proposed Twin Metals plan of operations cannot be evaluated unless and until Twin Metals submits a mining plan. In response to the allegations in the third sentence of Paragraph 106, Defendants admit that contamination of lands held in the public trust could negatively impact stakeholders, but aver that whether those risks would exist in relation to any proposed Twin Metals plan of operations cannot be evaluated unless and until Twin Metals submits a mining plan. 107. The allegations in Paragraph 107 purport to characterize unidentified scientific evidence. Without more specific information, Defendants lack the knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 107. 108. The allegations in Paragraph 108 constitute Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny the ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 18 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 20 of 26 allegations in Paragraph 108 and deny any violation of law. Defendants also aver that whether the risks alleged in Paragraph 108 would exist in relation to any proposed Twin Metals plan of operations cannot be evaluated unless and until Twin Metals submits a mining plan. 109. Defendants deny the allegations in Paragraph 109. CLAIM FOR RELIEF COUNT I: INTERIOR AND BLM LACK AUTHORITY TO RESCIND THE PRIOR DECISION AND REINSTATE THE EXPIRED LEASES 110. Defendants incorporate their response to Paragraphs 1-109. 111. The allegations in Paragraph 111 purport to characterize the Administrative Procedure Act, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the statute. 112. The allegations in Paragraph 112 constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 113. The allegations in Paragraph 113 constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 114. The allegations in Paragraph 114 constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny any violation of law and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 19 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 21 of 26 115. The allegations in Paragraph 115 constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny any violation of law and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 116. The allegations in Paragraph 116 purport to characterize the Bureau of Land Management’s May 2, 2018, Decision, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of that document. The allegations in Paragraph 116 also constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 117. The allegations in Paragraph 117 purport to characterize the Bureau of Land Management’s May 2, 2018, Decision, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of that document. 118. The allegations in the first sentence of Paragraph 118 purport to characterize the May 2, 2018 Decision, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of that document. The remaining allegations in Paragraph 118 constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 119. The allegations in the second and third sentences of Paragraph 119 purport to characterize the Bureau of Land Management’s May 2, 2018, Decision, which speaks for ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 20 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 22 of 26 itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of that document. The remaining allegations in Paragraph 119 constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 120. The allegations in Paragraph 120 constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. COUNT II: THE REINSTATEMENT OF THE LEASES IS ARBITRARY AND CAPRICIOUS BECAUSE THE JORJANI M-OPINION IS RIDDLED WITH ERRORS 121. Defendants incorporate their response to Paragraphs 1-121. 122. The allegations in Paragraph 122 purport to characterize the Administrative Procedure Act, which speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the statute. 123. The allegations in Paragraph 123 constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 124. The allegations in Paragraph 124 constitute conclusions of law and Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 21 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 23 of 26 125. The allegations in Paragraph 125 constitute Plaintiffs’ characterization of their case to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. The allegations in Paragraph 125 126. The allegations in Paragraph 126 constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 127. The allegations in Paragraph 127 constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny any violation of law and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 128. The allegations in Paragraph 128 purport to characterize the May 2, 2018 Decision and the Jorjani M-Opinion, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of those documents. 129. The allegations in Paragraph 129 constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. 130. The allegations in Paragraph 130 purport to characterize the Thompkins M-Opinion and the Jorjani M-Opinion, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of the Jorjani M-Opinion. ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 22 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 24 of 26 131. The allegations in Paragraph 131 purport to characterize the May 2, 2018 Decision and the Jorjani M-Opinion, which speak for themselves and are the best evidence of their contents. Defendants deny any allegations contrary to the plain language, context, or meaning of those documents. 132. The allegations in Paragraph 132 constitute conclusions of law to which no response is required. To the extent a response is required, Defendants deny the allegations, deny any violation of law, and deny that Plaintiffs are entitled to their requested relief or any relief whatsoever. RELIEF REQUESTED The remainder of the Amended Complaint constitutes Plaintiffs’ request for relief, to which no response is required. To the extent a response is required, Defendants deny any violation of the Administrative Procedure Act or any other applicable statute, and deny that Plaintiffs are entitled to the requested relief or any relief whatsoever. GENERAL DENIAL Defendants deny any allegations of the Complaint, whether express or implied, not specifically admitted, denied, or qualified herein. DEFENSES 1. Plaintiffs have failed to state a claim upon which relief can be granted. 2. This Court lacks subject matter jurisdiction to review Plaintiffs’ claims. Respectfully submitted this 27th day of August, 2018, JEFFREY H. WOOD ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 23 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 25 of 26 United States Department of Justice Acting Assistant Attorney General Environment & Natural Resources Division /s/ Tyler M. Alexander TYLER M. ALEXANDER Natural Resources Section Trial Attorney PO Box 7611 Washington, DC 20044-7611 Tel: (202) 305-0238 (Alexander) Fax: (202) 305-0506 tyler.alexander@usdoj.gov Attorneys for Federal Defendants ANSWER TO COMPL. Voyageur Outward Bound School, et al. v. U.S., et al., No. 1:18-cv-01463-TNM. 24 Case 1:18-cv-01463-TNM Document 35 Filed 08/27/18 Page 26 of 26 CERTIFICATE OF SERVICE I certify that on August 27, 2018, I filed the foregoing ANSWER TO COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF electronically through the CM/ECF system, which caused all parties or counsel of record to be served by electronic means, as more fully reflected on the Notice of Electronic Filing. /s/ Tyler M. Alexander TYLER M. ALEXANDER Attorney for Federal Defendants 1025 Connecticut Avenue NW, Suite 800 Washington, DC 20036 Phone: 202.862.9200 Fax: 202.862.6678 16 April 2018 Lance Purvis U.S. Department of the Interior Office of the Solicitor (SOL) MS-6429 1849 C Street, NW Washington, DC 20240 Fax: 202-208-5206 E-Mail: sol.foia@sol.doi.gov FOIA REQUEST EXPEDITED PROCESSING REQUESTED FEE WAIVER REQUESTED Dear FOIA Officer: Pursuant to the federal Freedom of Information Act, 5 U.S.C. § 552, I am sumitting an order for copies of all communications regarding Solicitor’s Opinion M-37049, Reversal of M-37036, "Twin Metals Minnesota Application to Renew Preference Right Leases (MNES-01352 and MNES-01353.)". · All documents provided and all electronic and written communications before and after meetings with representatives of Twin Metals, Antofagasta Plc and its representatives and lobbyists at all firms including WilmerHale. · All communications between Michael J. Catanzaro, EOP/WHO, and anyone in the Solicitor’s Office. · All electronic recordings of the video calls and meetings with Twin Metals, Antofagasta Plc and its representatives and lobbyists at all firms including but not limited to WilmerHale. · All communications about Twin Metals and Antofagasta with and among the following individuals Daniel Jorjani, the Department of the Interior's principal deputy solicitor; Kevin “Jack” Haugrud; Associate Deputy Secretary James Cason; Special Assistant Kathleen Benedetto; associate solicitor Karen Hawbecker; Mariagrazia Caminiti; and Raya Treiser of WilmerHale, Andy Spielman of WilmerHale. All electronic recordings of these video calls, and any documents, letters, PowerPoints, presentations, emails, communications among any of the parties before or after these meetings: · June 14, 2017, via video call. Participants include Kevin Naugrud, Karen Hawbecker, Raya Treiser of WilmerHale, Andy Spielman of WilmerHale, Mariagrazia Caminiti · July 25, 2017, video call. Participants include Mr. Jorjani, Associate Deputy Secretary James Cason, Special Assistant Kathleen Benedetto · August 22, 2017: Daniel Jorjani Met About the “Minnesota Project.” Participants included, “Daniel Jorjani,connie.smith@osec.usda.gov, Catanzaro, Michael J. EOP/WHO, Mariagrazia Caminiti, Vaden, Stephen - OGC” 1025 Connecticut Avenue NW, Suite 800 Washington, DC 20036 Phone: 202.862.9200 Fax: 202.862.6678 · September 7, 2017: Daniel Jorjani Participated in Twin Metals Meeting. Participants included, Mariagrazia Caminiti, Kevin Haugrud, Daniel Jorjani, Joshua Campbell. I would like to receive the information in electronic format. As a representative of the news media I am only required to pay for the direct cost of duplication after the first 100 pages. Through this request, I am gathering information on the reversal of the Twin Metals case that is of current interest to the public because the decision affects a national wildlife preserve on public lands and various community and environmental groups have opposed the reversal. The decision has also received significant news coverage in the past weeks. This information is being sought on behalf of The Wall Street Journal for dissemination to the general public. Please waive any applicable fees. Release of the information is in the public interest because it will contribute significantly to public understanding of government operations and activities. The Wall Street Journal is the largest print and digital news organization in the United States and the information is for the general public and not for commercial use. If my request is denied in whole or part, I ask that you justify all deletions by reference to specific exemptions of the act. I will also expect you to release all segregable portions of otherwise exempt material. I, of course, reserve the right to appeal your decision to withhold any information or to deny a waiver of fees. As I am making this request as a journalist and this information is of timely value, I would appreciate your communicating with me by telephone, rather than by mail, if you have questions regarding this request. Please provide expedited processing of this request which concerns a matter of urgency. As a journalist, I am primarily engaged in disseminating information. The public has an urgent need for information about the reversal of M-37036 because the decision has generated significant national attention and controversy with news articles in major publications, including The Wall Street Journal, The Washington Post, Associated Press, among many other publications. There is a need for bringing information on this subject to the public's attention now because more informed members of the public might contribute through lobbying or other contacts with public officials regarding this decision. In these instances, delay would rob the public of its ability to make known its views in a timely manner, depriving the public of information it could make to appeal the ruling or seek redress of grievances. Another need is for the public to address allegations of suggesting the governmental decision was not made absent conflicts of interest in the administration. I certify that my statements concerning the need for expedited processing are true and correct to the best of my knowledge and belief. I look forward to your reply within 20 business days, as the statute requires. If you have any questions, please call me at 202-862-6665. 1025 Connecticut Avenue NW, Suite 800 Washington, DC 20036 Phone: 202.862.9200 Fax: 202.862.6678 Thank you for your assistance. Sincerely, James V. Grimaldi SENIOR WRITER O: +1 202 862-6665 M: +1 202 439-0104 E: james.grimaldi@wsj.com https://www.wsj.com/news/author/8279 T: @jamesvgrimaldi Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 1 of 37 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA VOYAGEUR OUTWARD BOUND SCHOOL 1007 Spruce Road Ely, MN 55731 PIRAGIS NORTHWOODS COMPANY, INC. 105 N Central Avenue Ely, MN 55731-1210 ELY OUTFITTING COMPANY & BOUNDARY WATERS GUIDE SERVICE 529 East Sheridan Street Ely, MN 55731 WENONAH CANOE, INC. 1252 Bundy Blvd Winona, MN 55987-4872 NORTHSTAR CANOE 1506 14th Street S Princeton, MN 55371-2317 SAWBILL CANOE OUTFITTERS, INC. 4620 Sawbill Trail Tofte, MN 55615 HUNGRY JACK OUTFITTERS 318 S Hungry Jack Road Grand Marais, MN 55604 WOMEN’S WILDERNESS DISCOVERY 429 East Sheridan Street Ely, MN 55731 RIVER POINT RESORT AND OUTFITTING COMPANY PO Box 397 Ely, MN 55731-0397 dc-929367 Case No. ______________ Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 2 of 37 NORTHEASTERN MINNESOTANS FOR WILDERNESS PO Box 625 Ely, MN 55731 Plaintiffs, v. UNITED STATES OF AMERICA U.S. DEPARTMENT OF THE INTERIOR 1849 C Street NW Washington, DC 20240 RYAN ZINKE, in his official capacity as Secretary of the Interior 1849 C Street NW Washington, DC 20240 BUREAU OF LAND MANAGEMENT, 1849 C Street NW Washington, DC 20240 BRIAN STEED, in his official capacity as the official exercising the authority of the Director of the Bureau of Land Management 1849 C Street NW Washington, DC 20240 Defendants. COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 2 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 3 of 37 INTRODUCTION 1. Plaintiffs seek declaratory and injunctive relief under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706, against the United States, the U.S. Department of the Interior (“Interior”), the Secretary of the Interior, the Bureau of Land Management (“BLM”), and the Acting Director of the BLM to declare that their reinstatement of two mining leases exceeds their authority under law and is arbitrary and capricious, and to enjoin them from further consideration of applications to renew the two leases. 2. This case challenges the Defendants’ unlawful decision to reinstate two expired mining leases in the Superior National Forest adjacent to the Boundary Waters Canoe Area Wilderness (“BWCAW” or “Wilderness”) in northern Minnesota. 3. The BWCAW is a pristine, water-based wilderness protected by federal law. The lessee plans to construct a copper-nickel sulfide-ore mine on parts of the leased areas. Sulfideore mining causes acid mine-drainage when sulfide minerals present in ore bodies and rock overburden are exposed to air and water. Mining and mining-related activities on the leased land would be likely to cause severe and irreparable harm to the BWCAW and the Plaintiffs. 4. The BLM lawfully and properly rejected the applications for renewal of the two mining leases in 2016 after the United States Forest Service (“Forest Service”), which is invested by statute with the authority to consent (or to withhold consent) to the development of minerals owned by the United States in the Superior National Forest, found “unacceptable the inherent potential risk that development of a regionally-untested copper-nickel sulfide ore mine within the same watershed as the BWCAW might cause serious and irreplaceable harm to this unique, iconic, and irreplaceable wilderness area.” Ex. 1. The leases expired in December 2016 as a result of the BLM’s decision to deny the renewal request. 3 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 4 of 37 5. Nearly 16 months after the leases’ expiration, the BLM purported to reinstate them based on a dubious claim that the decision to reject the renewal application was based on a legal error. According to Defendants, Interior and the BLM are bound to renew the leases regardless of the Forest Service’s objection and its statutory right to disapprove mineral-leasing decisions in the Superior National Forest. 6. The BLM’s decision to correct this purported legal error is without authority and comes well after any reasonable period for correcting errors. It is also arbitrary and capricious because the claimed legal error does not exist. In fact, the decision to reject the lease-renewal application was supported by a reasoned opinion of the Solicitor of the Department of the Interior that considered and soundly rejected the flawed arguments that the BLM and Interior are now advancing. It was also supported by the Forest Service’s determination that sulfide-ore mining adjacent to the BWCAW posed grave dangers to its precious water-based ecosystem. 7. Plaintiffs are business owners and users of the Wilderness and Superior National Forest. Their businesses and other uses of the Wilderness depend on the BWCAW remaining in its undiminished, pure state, and on the Superior National Forest remaining a welcoming place for tourists and recreational users. 8. Defendants’ unlawful action has the effect of allowing the lessee, Franconia Minerals (US) LLC (“Franconia”), to continue mining development-related activities in pursuit of a dangerous sulfide-ore mine adjacent to the BWCAW. The operation and development of the mine, including the activities leading to Franconia’s submission of a mine plan, are already harming and will continue to harm Plaintiffs’ livelihoods and enjoyment of the Wilderness and Superior National Forest. It is precisely these activities that the Chief of the Forest Service found to pose an unacceptable risk to the pristine, water-based wilderness found in the BWCAW. 4 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 5 of 37 This Court should declare the Defendants’ action unlawful and enjoin them from further pursuing courses of action that threaten the integrity of the Wilderness and those who depend on it. JURISDICTION AND VENUE 9. The Court has subject-matter jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 1361, as well as 5 U.S.C. § 702. 10. The Court has authority to grant declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201-2202 and its inherent authority. Injunctive relief is also authorized by 5 U.S.C. § 706. 11. Venue is proper under 28 U.S.C. § 1391(b) and (e) because all Defendants reside in this judicial district. Additionally, the events giving rise to the action challenged here, including the decision to reinstate the two leases and the lease-renewal application, took place in this judicial district. PLAINTIFFS 12. Plaintiff VOYAGEUR OUTWARD BOUND SCHOOL (“VOBS”) is a nonprofit organization that focuses on leadership and outdoor experiential education through multi-week outdoor and wilderness expeditions. Since 1964, VOBS’s basecamp has been located in Ely, Minnesota within the Superior National Forest, along the South Kawishiwi River adjacent to the BWCAW. VOBS expeditions bring more than 600 people a year into the BWCAW. VOBS employs approximately 25 people year round, all of whom live in and around Ely, Minnesota, and it employs an additional 75 people in Ely during the summer months. VOBS expeditions cater to a wide range of people, including but not limited to military veterans, young people struggling to make positive choices, adults undergoing major life changes, families, and college 5 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 6 of 37 students. The pristine wilderness setting provided by the BWCAW is a critical aspect of the VOBS expeditions. 13. Plaintiff PIRAGIS NORTHWOODS COMPANY, INC. (“Piragis Northwoods”) is a canoe-trip outfitting and guide business located in Ely, Minnesota. Founded in 1979 to serve the needs of wilderness canoe paddlers visiting the BWCAW and the outdoor needs of the local population, Piragis Northwoods currently employs 18 full-time, year-round staff. In the peak summer months, that number increases to 55 employees. Piragis Northwoods’ payroll exceeds $1 million. 14. Plaintiff ELY OUTFITTING COMPANY & BOUNDARY WATERS GUIDE SERVICE (“Ely Outfitting”) is a professional guide and outfitting service based in Ely, Minnesota and founded in 2008 primarily to service the needs of customers and clients around the nation who travel to and explore the BWCAW. A significant percentage of Ely Outfitting’s customers enter the BWCAW through the South Kawishiwi River, Gabbro Lake, Snake River, Isabella River, Farm Lake, Lake One, and Fall Lake entry points. These entry points, located in and around Ely and the Kawishiwi Triangle, are popular with first-time paddlers because they offer excellent wilderness and outdoor recreation characteristics with comparatively easy access. 15. Plaintiff WENONAH CANOE, INC. (“Wenonah Canoe”) is an independent, family-owned corporation that is one of the largest manufacturers of Kevlar canoes in the world. Founded in the early 1970s in Winona, Minnesota, Wenonah Canoe now employs nearly 100 people and produces more than 4,000 canoes and kayaks per year. Wenonah Canoe has many customers who frequent the BWCAW area, and 25 percent of its canoes are sold in Minnesota. 16. Plaintiff NORTHSTAR CANOES is a canoe-manufacturing business located in Princeton, Minnesota. Founded in 2014, Northstar Canoes manufactures canoes and sells them 6 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 7 of 37 directly to outfitters and retailers. Northstar Canoes sells around 200 canoes each year to outfitters, most of which are located in or near the BWCAW and in the Midwest. The company employs, off and on, about 20 full-time or part-time people. Northstar Canoes’ business depends largely on the BWCAW—so much so that it focuses about 90 percent of its advertising on the BWCAW area. 17. Plaintiff SAWBILL CANOE OUTFITTERS, INC. (“Sawbill”) is a family-owned canoe outfitting business located in a remote location on the Sawbill Trail north of Tofte, Minnesota with no telephone or power lines. Sawbill provides outfitting services to clients entering the BWCAW. In addition to operating an outfitting shop and store, Sawbill issues BWCAW entry permits and also operates as the concessionaire for three Forest Service campgrounds, one of which is located onsite. Sawbill’s customers rely on its outfitting services and campground both before and after their trips. Many customers also choose to stay onsite at the campground and complete day-trips into the BWCAW. Sawbill relies exclusively on visitors to the BWCAW to sustain its customer base. On average, Sawbill employs 15 full-time employees from May to October. Sawbill customers come from all across the United States and from a number of foreign countries. 18. Plaintiff HUNGRY JACK OUTFITTERS (“Hungry Jack”) is a family-owned accommodation and camping-outfitting business located on the Gunflint Trail north of Grand Marais, Minnesota. Founded in 1983, Hungry Jack is primarily a rental operation that provides canoes, camping gear, food, and overnight accommodations for people who want to experience the Wilderness. Hungry Jack’s clients and customers come from all across the globe, and from a wide range of socio-economic backgrounds, to visit the BWCAW and surrounding areas. 7 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 8 of 37 19. Plaintiff WOMEN'S WILDERNESS DISCOVERY, LLC (“Women’s Wilderness Discovery”) was founded in March 2014 as the only female-owned, female-packed, femaleguided professional outfitting and guide business in Ely, Minnesota. Women’s Wilderness Discovery provides year-round, fully outfitted, and guided BWCAW canoe camping, hike camping, canoe and kayak treks, day hikes, and winter camping treks catered principally to women. Women’s Wilderness Discovery seeks to provide a safe, positive model for women and girls to enrich their lives through the wilderness experience and outdoor adventure, with clients coming from Minnesota and many other states, as well as from a few foreign nations. 20. Plaintiff RIVER POINT RESORT AND OUTFITTING COMPANY (“River Point”) is a tourism and hospitality business located in Ely, Minnesota that has been in operation since 1944. Owned and operated continually by the Koschak family since its founding, River Point offers lodging in the form of 16 housekeeping cabins, villas, and chalets, along with auxiliary recreational opportunities such as swimming, boating, kayaking and canoeing, guided fishing, hiking and other family activities. River Point accommodates approximately 2,000 housekeeping guests per season, which runs from mid-May through mid-October. As a complement to its lodging and accommodations, River Point also outfits trips in the BWCAW. River Point’s outfitting business includes more than 100 canoes, and it outfits more than 775 people traveling in the BWCAW in the course of a summer. River Point offers both partial and complete outfitting services, which can include meals, routing, maps and permits, and transportation to any of the approximately 30 entry points into the BWCAW in the Ely area. 21. River Point’s property consists of 34 acres, with one mile of shoreline, in the heart of the Superior National Forest. Prior to construction of the resort, the land had been unoccupied and undeveloped since the time of the Laurel Indians, who lived there about 500 years before the 8 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 9 of 37 Common Era. The land includes a significant archeological site that was discovered in 1982, the first discovery of a site occupied by the Laurel Indians in the United States. An archeological covenant with the Forest Service protects this site on the south shoreline. The BWCAW lies five river miles to the northeast of the River Point resort property and is accessible from the River Point property by canoe through Entry Point 32 (South Kawishiwi River). Most River Point customers and clients are attracted to River Point’s location on the edge of the BWCAW, the area’s natural beauty, the clean air, the quiet, and the wilderness setting. 22. Plaintiff NORTHEASTERN MINNESOTANS FOR WILDERNESS (“NMW”) is a nonprofit, tax-exempt, charitable corporation organized under the laws of Minnesota. Formed in 1996 and based in Ely, Minnesota, NMW’s mission is to protect and preserve wilderness and wild places in Minnesota’s Arrowhead region, to advocate for the protection of the BWCAW and Voyageurs National Park and the enhancement of their wilderness aspect, and to foster education about the value of wilderness and wild places. NMW was formed to continue the local tradition of working to protect wild places, particularly the BWCAW, against increasing commercial pressures so that the area’s natural features and processes remain intact for future generations. 23. NMW has approximately 13,000 members, all of whom have contributed financially, and more than 133,000 additional supporters across all 50 states. 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 BWCAW, as well as in Voyageurs National Park. They have a long-standing interest in lynx, moose, wolf, and forest conservation, both in the BWCAW and across the Superior National Forest. 9 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 10 of 37 24. NMW members and staff regularly visit the BWCAW, Voyageurs National Park, the Superior National Forest, and surrounding areas for recreation, wildlife observation, and other uses. Many NMW members plan to visit the BWCAW over the coming days, weeks, months, and years. DEFENDANTS 25. Defendant UNITED STATES owns the mineral interests covered by the leases. 26. Defendant UNITED STATES DEPARTMENT OF THE INTERIOR is responsible for the management of certain federal mineral interests, including the mineral interests covered by the leases. 27. Defendant RYAN ZINKE is sued in his official capacity as the Secretary of the Interior of the United States. 28. Secretary Zinke is responsible for ensuring that the Department of the Interior and its constituent agencies, including the BLM, comply with the applicable law, including with respect to the decision to reinstate the mining leases and lease-renewal application as described below. 29. The Secretary of the Interior resides and conducts his duties in Washington, D.C. 30. 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 development and utilization of certain mineral interests owned by the United States, including the mineral interests covered by the leases. 31. Defendant BRIAN STEED is sued in his official capacity as the official exercising the authority of the Director of the BLM within the U.S. Department of the Interior. 10 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 11 of 37 32. The Director of the BLM (and currently, Mr. Steed) is responsible for ensuring that the BLM complies with the applicable law, including with respect to the decision to reinstate the mining leases and lease-renewal application as described below. 33. The Director of the BLM (and currently, Mr. Steed) resides and conducts his duties in Washington, D.C. BACKGROUND The Boundary Waters Canoe Area Wilderness and the Superior National Forest 34. The BWCAW is a 1.1 million-acre, federally protected wilderness situated in northern Minnesota, extending nearly 200 miles along the border with Canada. It constitutes the northern third of the Superior National Forest. Northwest of the BWCAW is Voyageurs National Park. 35. The BWCAW is a water-based wilderness. It includes approximately 1,750 pristine lakes ranging in size from 10 acres to 10,000 acres, and has more than 1,200 miles of canoe routes. Together with the rest of the Superior National Forest, it holds 20 percent of the entire National Forest System’s fresh water supply. The extremely high water quality of the BWCAW is critical to maintaining the wilderness ecosystem. 36. The Superior National Forest (“Forest”) provides abundant and diverse habitats for thousands of species. The Forest has many popular game species of fish, birds and mammals. It is also home to three threatened or endangered species: the Canada lynx, northern long-eared bat, and gray wolf. Indeed, it has one of largest populations of gray wolves outside Alaska. 37. The BWCAW is the most visited wilderness area in the entire National Wilderness Preservation System. In addition to hiking, fishing and camping, summer visitors are 11 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 12 of 37 able to travel long distances by non-motorized watercraft through the thousands of lake and stream canoe routes. In the winter, visitors enjoy snowshoeing, skiing, dog-sledding, camping and ice-fishing. 38. In 1926, the Department of Agriculture first set aside some of the area that now constitutes the BWCAW. The Wilderness Act of 1964 designated land in what is now the BWCAW as a wilderness. The Boundary Waters Canoe Area Wilderness Act of 1978 expanded the Wilderness to its current size and also established a BWCAW Mining Protection Area (“MPA”) around the edges of the Wilderness. 39. The Boundary Waters Canoe Area Wilderness Act of 1978 states that its purposes are to: “(1) provide for the protection and management of the fish and wildlife of the wilderness so as to enhance public enjoyment and appreciation of the unique biotic resources of the region, (2) 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 areas, (5) prevent further road and commercial development and restore natural conditions to existing temporary roads in the wilderness, and (6) provide for the orderly and equitable transition from motorized recreational uses to nonmotorized recreational use on those lakes, streams, and portages in the wilderness where such mechanized uses are to be phased out under the provisions of this Act.” Pub. L. 95–495, § 2, Oct. 21, 1978, 92 Stat. 1649. 40. The Boundary Waters Canoe Area Wilderness Act of 1978 not only prohibits the United States from issuing any permit, lease, or other authorization for “exploration for, or mining of, minerals owned by the United States within the Boundary Waters Canoe Area 12 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 13 of 37 Wilderness and Boundary Waters Canoe Area Mining Protection Area” and “exploration for, or mining of minerals within such areas if such activities may affect navigable waters,” it also prohibits “the use of property owned by the United States in relation to any mining of or exploration for minerals in such areas which may materially impair the wilderness qualities of the wilderness area or which may materially impair the natural values and environmental quality of the mining protection area.” Pub. L. 95–495, § 11(a), Oct. 21, 1978, 92 Stat. 1649. 41. The Boundary Waters Canoe Area Wilderness Act of 1978 therefore protects Plaintiffs’ interests in using the BWCAW for recreational and business purposes, as well as their interests in preserving the BWCAW as a natural and undiminished environment and protecting against the environmental impacts associated with mineral development affecting the BWCAW. 42. In areas of the Superior National Forest outside the BWCAW and MPA, the Secretary of the Interior is authorized to grant or renew mineral leases and prospecting permits for federally owned minerals only if the Secretary of Agriculture consents to such mineral development. 16 U.S.C. §§ 508b and 520; 43 C.F.R. §§ 3503.13(c) and 3503.20. Through this statute, the BWCAW, MPA and Superior National Forest are afforded greater protection from the dangers of mining. This statute protects Plaintiffs’ interests in using the Superior National Forest and BWCAW for recreational and business purposes against the environmental impacts associated with mineral development affecting the Superior National Forest and BWCAW. 13 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 14 of 37 Issuance and Two Renewals of Leases MNES 01352 and 01353 43. The United States, through the BLM, issued two hardrock mineral leases, MNES 01352 and MNES 01353 (the “Leases”), to the International Nickel Company (“INCO”) on June 1, 1966. Ex. 2. 44. The 1966 Leases conveyed “the exclusive right to mine, remove, and dispose of all the copper and/or nickel minerals and associated minerals” within certain lands located in the Superior National Forest south of the BWCAW in the State of Minnesota. Ex. 2. The land leased under MNES 01352 is located directly adjacent to the BWCAW, and MNES 01353 is located within three miles of the BWCAW. 45. The lands covered by the Leases are shown in relation to the BWCAW in the map below: 14 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 15 of 37 46. The leased areas contain a mixture of lands reserved from the public domain and acquired lands. The vast majority are public-domain lands. 47. The 1966 Leases stated in Section 1(a) that they were “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.” Ex. 2. 15 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 16 of 37 Section 5 of the 1966 Leases, entitled Renewal Terms, provided detailed limits and conditions on the renewals. Id. 48. INCO requested renewal of the leases in 1986. 49. On June 8, 1986, the BLM requested that the Forest Service “advise whether you have any objections to the requested renewals.” Ex. 3. On June 19, 1987, the Forest Service responded that “we consent to the renewal of the above noted leases for a 10-year period.” Ex. 4. 50. In a July 9, 1986 memorandum, the Assistant District Manager for Energy and Minerals recommended that the leases be renewed with some new terms. Ex. 5. Specifically, he recommended the production royalties be increased to 5 percent (from 4.5 percent), the minimum royalty in lieu of production be decreased to $3 per acre (from $10 per acre), and a minimum production requirement be added. Id. The Rolla district office joined in that recommendation in a letter dated February 1, 1988. Ex. 6. 51. In accordance with the recommendations, the BLM, in a decision dated September 12, 1988, proposed to renew the leases on Standard Form 3520-7 (December 1984). Ex. 7. Sections 2(a) and 2(b) of the proposed renewal leases, which are part of Standard Form 3520-7 (December 1984), contained the recommended new terms. Specifically, they imposed a 5 percent production royalty, a $3 per-acre royalty in lieu of production, and a requirement for minimum production. 52. On October 14, 1988, the Assistant District Manager for Solid Minerals sent a memorandum to the State Director revising the Rolla office recommendation and advising that the three new conditions not be added. Ex. 8. On October 27, 1988, the BLM vacated the September 12, 1988 decision. Ex. 9. 16 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 17 of 37 53. On April 25, 1989, the BLM issued a new decision renewing the leases, again using Standard Form 3520-7 (December 1984). Ex. 10. To that form, the BLM added in Section 14 two Special Stipulations marked with * and **, as follows: *The terms and conditions of the production royalties remains [sic] 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. Ex. 11. Those asterisks correspond with the * and ** next to Clauses 2(a) and 2(b) of the 1989 Renewal Leases. Id. The first Special Stipulation reverses Section 2(a) of Standard Form 35207, which provides that “Lessee shall pay lessor a production royalty in accordance with the attached schedule.” Id. The second Special Stipulation reverses Section 2(b) of Standard Form 3520-7, which provides that “Lessee shall produce on an annual basis a minimum amount of copper, nickel, & assoc. mins…” and “the authorized officer may allow in writing the payment of a $3.00 per acre or fraction thereof minimum royalty in lieu of production….” Id. 54. The 1989 Renewal Leases, using the standard language from Standard Form 3520-7, provided in Part I that the 1989 Renewal Leases were effective “for a period of 10 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.” Ex. 11. The 1989 Renewal Leases did not contain any Special Stipulation or other provision that purported to reverse Part I of Standard Form 3520-7. Id. 55. American Copper & Nickel Company, the successor-in-interest to INCO, requested a second renewal of the Leases in 1999. 17 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 18 of 37 56. On March 25, 1999, the BLM asked the Forest Service to “provide this office with your recommendation regarding the renewal request and additional stipulations if necessary.” On July 18, 2003, the Forest Service responded that it consented to renewal. Ex. 12. 57. The BLM renewed the Leases effective January 1, 2004. Ex. 13. The 2004 Renewal Leases were also executed on the standard BLM form. Id. As with the 1989 Renewal Leases, the 2004 Renewal Leases were effective for a period of 10 years and provided for a “preferential right in the lessee to renew for successive periods of 10 years….” Id. The 2004 Renewal Leases attached the 1966 Leases and included the same two Special Stipulations incorporating specific terms of the original leases. Id. Section 1 of the 1966 Leases was not among the specific terms of the 1966 Leases that were incorporated. Id. Denial of Application for Third Renewal and Expiration of the Leases 58. On October 16, 2012, Beaver Bay, Inc. and Franconia, the successor-in-interest to American Copper & Nickel Company, jointly submitted an application for a third renewal of the leases. On information and belief, these entities are wholly owned and operated by Twin Metals Minnesota (“Twin Metals”). 59. To this day, 52 years after the Leases were first issued, neither Twin Metals nor any of its predecessors-in-interest have developed a mine or produced minerals on the leased lands. 60. In processing the application for the third renewal, the BLM asked the then- Solicitor of the Department of the Interior, Hilary C. Tompkins, for guidance on “whether it has the discretion to grant or deny” the application for renewal of the Leases. 61. On March 8, 2016, Solicitor Tompkins issued a Memorandum Opinion, M-37036 (“Tompkins M-Opinion”), concluding that “Twin Metals Minnesota does not have a non- 18 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 19 of 37 discretionary right to renewal, but rather the BLM has discretion to grant or deny the pending renewal application.” Ex. 14. Solicitor Tompkins analyzed the language of the leases in question as well as the relevant statutes and regulations. She found that Part I of the 2004 Renewal Leases, providing for a “preferential right in the lessee to renew for successive periods of 10 years,” controlled the applicant’s renewal rights. Id. She also found that Section 1(a) of the 1966 Leases, providing for “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,” had not been incorporated into the 2004 Renewal Leases. Id. 62. Solicitor Tompkins specifically addressed the argument raised by Twin Metals that, because the 2004 Renewal Leases were ambiguous, she should therefore consider extrinsic evidence in interpreting the 2004 Renewal Leases. Ex. 14. She concluded that “there is nothing ambiguous with the renewal provision contained in the 2004 leases: there is no conflicting renewal provision referenced elsewhere in the 2004 leases and the provision has a longstanding and well established meaning.” Id. 63. Because the 2004 Renewal Leases provided only a “preferential right of renewal,” Solicitor Tompkins concluded that Twin Metals was not entitled to renewal of the leases but rather had only a “legal right to be preferred against other parties, should the Secretary, in the exercise of his discretion, decide to continue leasing.” Ex. 14. 64. Although she found the issue was resolved by the terms of the 2004 Renewal Leases, Solicitor Tompkins also addressed the argument made by Twin Metals that the 1966 Leases entitled it to mandatory renewals. Solicitor Tompkins determined that the terms of the 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 19 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 20 of 37 production has not begun at the end of the first renewal extension period.” Ex. 14. Solicitor Tompkins concluded that 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.” Id. 65. On June 3, 2016, in accordance with 16 U.S.C. § 508b and § 520 and 43 C.F.R. § 3503.13(c) and § 3503.20, the BLM asked the Chief of the Forest Service to provide a decision on whether he consented to the renewal of the Leases. Ex. 15. 66. On December 14, 2016, the then-Chief of the Forest Service, Thomas Tidwell, informed the then-Director of the BLM, Neil Kornze, that the Forest Service did not consent to renewal of the Leases. Ex. 1. 67. Chief Tidwell’s letter explained that he found “unacceptable the inherent potential risk that development of a regionally-untested copper-nickel sulfide ore mine within the same watershed as the BWCAW might cause serious and irreparable harm to this unique, iconic, and irreplaceable wilderness area.” Ex. 1. 68. Chief Tidwell’s 21 page letter detailed the factual and legal considerations that contributed to his judgment. Specifically, he first found that the BWCAW is an irreplaceable resource for many reasons, but in particular because of its “extremely high water quality.” Ex. 1. He also noted the lengthy history of federal legislative protection for the BWCAW and surrounding areas, including outright bans on mining in the BWCAW and the MPA, and the special requirement to obtain Forest Service consent for mining any federally-owned minerals in the Superior National Forest. Id. 69. Chief Tidwell also found that “[i]rrespective of the [Tompkins] M-Opinion, the [Forest Service’s] consent to any hardrock lease renewal is mandated by 16 U.S.C. § 508b and Section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099.” Ex. 1. 20 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 21 of 37 70. Chief Tidwell made detailed factual findings supporting his conclusion that “there is no reason to doubt that the mining operations TMM hopes to eventually conduct could result in [acid mine drainage] and concomitant metal leaching both during and after mineral development given the sought after copper-nickel ore is sulfidic.” Ex. 1. 71. Chief Tidwell’s letter considered publicly available information concerning the potential mine, including a 2014 Pre-Feasibility Study conducted on behalf of Twin Metals’s ownership. The photograph below shows the location of the mine outlined in Twin Metals’s public plans: 21 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 22 of 37 72. In support of his finding, Chief Tidwell observed that acid mine drainage “occurs when sulfide minerals present in ore bodies and rock overburden are exposed to air and water.” Id. The exposure creates sulfuric acid and leaches harmful metals. Id. Contaminated water can “enter streams and lakes through wastewater management plant discharges, uncollected runoff and leakage, concentrate spills, pipeline spills, truck accidents, spillway releases, tailings dam failures, water collection and treatment operation failures, and post-closure failures.” Id. 73. The leased lands, including the likely sites of the Twin Metals mine, overlay the Duluth Complex containing nickel-copper-platinum group element deposits, which can produce significant amounts of acid. Id. Because of the low buffering capacity of the lakes and streams in the region, the direct flow of water from the leased lands into the BWCAW, and the proposed and likely placement of certain key mining facilities for the Twin Metals mine as indicated in Twin Metals’s public plans, as well as the history of similar mines, Chief Tidwell concluded it was likely that acid mine drainage would contaminate the BWCAW and cause adverse effects to the water quality, fish populations, aquatic ecosystems, and animal species. Id. Finally, Chief Tidwell considered the possibility of containment and remediation strategies, and found that very few would be compatible with maintaining the BWCAW’s wilderness and character. Id. 74. On December 15, 2016, based on the Forest Service’s decision to withhold consent, the then-BLM Eastern States Director, Karen Mouritsen, denied the renewal applications. Ex. 16. 75. The Leases expired on December 15, 2016, or shortly thereafter. 43 C.F.R. § 3514.25. 76. On September 12, 2016, before the Forest Service had withheld its consent and the BLM had denied the lease renewals, Franconia and its affiliate Twin Metals Minnesota filed 22 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 23 of 37 a lawsuit against the United States in the District of Minnesota, challenging Solicitor Tompkins’ M-Opinion. The case was assigned to Judge Susan Nelson. On February 21, 2017, Judge Nelson granted NMW’s motion to intervene. Also on February 21, 2017, the plaintiffs amended their complaint to reflect the Forest Service’s non-consent decision and the denial of the two lease renewal applications. Both the United States and NMW moved to dismiss the complaint for lack of jurisdiction. Judge Nelson had not ruled on the merits of the motions by the time the plaintiffs voluntarily dismissed their suit. The BLM Reinstates the Expired Leases 77. On December 22, 2017, Daniel Jorjani, Principal Deputy Solicitor, issued a new Memorandum Opinion, M-37049 (“Jorjani M-Opinion”), withdrawing and replacing the Tompkins M-Opinion. Ex. 17. 78. The Jorjani M-Opinion is premised on the assertion that the 2004 Renewal Leases “are ambiguous as to the extent to which the provisions of the 1966 leases are incorporated.” Ex. 17. In particular, the Jorjani M-Opinion contends that Section 14 of the 1989 and 2004 Renewal Leases, which contains the two Special Stipulations, “is ambiguous because it does not precisely state which sections of the 1966 lease are being incorporated.” Id. According to the Jorjani MOpinion, the “terms and conditions of the production royalties” are “interspersed throughout the 1966 leases” in Sections 2, 5 and 14, and therefore it is ambiguous as to which of these provisions from the 1966 Leases are incorporated into the 1989 and 2004 Renewal Leases. Id. The Jorjani M-Opinion then states: “Given this ambiguity, extrinsic evidence beyond the ‘four corners’ of the document may be considered to ascertain the intent of the contracting parties.” Id. 23 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 24 of 37 79. The Jorjani M-Opinion also cites the lack of an integration clause in the 1989 and 2004 Renewal Leases. Ex. 17. The Jorjani M-Opinion contains no analysis of the parties’ intent regarding integration. 80. Relying on extrinsic evidence, the Jorjani M-Opinion concludes that the 1966 Leases, including in particular Section 1(a), were incorporated in toto into the 1989 Renewal Leases. Ex. 17. The Jorjani M-Opinion points out that the BLM renewed the leases in 1988 but then quickly vacated that renewal decision “because the new lease forms submitted for signature will alter the terms and conditions of the original leases.” Id. The Jorjani M-Opinion also cites the fact that the BLM stated in the transmittal letter for the 1989 Renewal Leases that the BLM had agreed to renew them “under the existing terms and conditions of the original leases.” Id. According to the Jorjani M-Opinion, this extrinsic evidence indicates the BLM’s intent that all of the 1966 Lease terms, including Section 1(a), would apply to the 1989 Renewal Leases. Id. 81. The Jorjani M-Opinion does not explain why it is proper to use extrinsic evidence to incorporate Section 1(a) of the 1966 Leases into the 1989 Renewal Leases even though the only ambiguity the Jorjani M-Opinion alleges is whether Sections 2, 5 and 14 of the 1966 Leases are incorporated into the Renewal Leases. 82. Neither does the Jorjani M-Opinion explain why the BLM added the two Special Stipulations addressing production royalties, royalties in lieu of production, and minimum production, with asterisks corresponding to the asterisks on Sections 2(a) and 2(b) addressing those same topics, if its intent was to incorporate all of the terms and conditions of the 1966 Leases. 83. Neither does the Jorjani M-Opinion explain why the BLM did not also include a Special Stipulation regarding the renewal term in Section 1(a) of the 1966 Leases if it intended to 24 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 25 of 37 incorporate that term into the 1989 Renewal Leases, notwithstanding the conflicting term in Part I of Standard Form 3520-7 (December 1984). 84. The Jorjani M-Opinion concludes that 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” and therefore that the “BLM does not have the discretion to deny the renewal application.” Ex. 17. 85. On May 2, 2018, Mitchell Leverette, the Acting Eastern States Director of the BLM, issued a decision reinstating the Leases on the basis that the “BLM’s prior request for Forest Service consent was based on the legal error that the United States had discretion to decide whether to renew the leases” and that the Forest Service’s “December 2016 non-consent determination was not legally operative.” Ex. 18. The decision cited the Jorjani M-Opinion as the authority for this legal conclusion. Id. The BLM did not give any other reasons for its decision. Id. The May 2, 2018 decision also reinstated Twin Metals’s renewal application. Id. Joseph Balash, the Assistant Secretary for Land and Mineral Management, concurred in the May 2, 2018 decision, and stated that the decision was “a final agency action for the Department of Interior….” Id. 86. The Forest Service has not withdrawn or modified its letter dated December 14, 2016 denying its consent to the renewal of the Leases. Defendants’ Actions Harm Plaintiffs’ Interests by Threatening the Businesses and Use of the BWCAW and Superior National Forest 87. Each of the Plaintiff organizations has individual members, customers, or clients who regularly use and enjoy the BWCAW and Superior National Forest for a variety of purposes, including canoeing and outdoor recreation, wildlife viewing, cultural and spiritual 25 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 26 of 37 purposes, and aesthetic appreciation. Plaintiffs’ customers and members value the remoteness, beauty, and largely unspoiled nature of the landscape and the ecological and hydrological resources found throughout the BWCAW and Superior National Forest, including the area covered by the Leases. 88. On information and belief, Interior’s and the BLM’s decision to reinstate the Leases has already triggered a series of preliminary development activities that are causing and will continue to cause immediate harm to Plaintiffs. 89. Shortly after the reinstatement in May 2018, Twin Metals requested an amendment to its 2013 Plan of Operations for the leased land. The 2013 Plan of Operations called for two hydrogeological wells that were never developed. The amendment requests four wells instead of two. These new wells will require the construction of additional roads. 90. Twin Metals has informed some property owners in the area that the drilling program will last until August 27, 2018, and the drilling will take place 24 hours a day, 7 days a week during this period. 91. Such a program would cause constant noise and light pollution, as drilling operations and road construction are expected to occur 24 hours a day, 7 days a week. The noise will be audible to Plaintiffs’ owners, customers and members, in particular those who live near the leased areas. Twin Metals conducted similar drilling in prior years, and the noise from that drilling created significant harms to Plaintiff businesses. 92. Twin Metals has placed placards or signs stating “Access Restricted TMM & TMM Contractors Only,” on at least one entrance gate to Forest Service land covered by the Leases. On information and belief, Twin Metals plans to bar access to more Forest Service land by placing restricted-access signs on either side of commonly used roads leading to Forest 26 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 27 of 37 Service and State of Minnesota lands stating “Twin Metals Minnesota Authorized Personnel Only,” and “PERSONAL PROTECTIVE EQUIPMENT REQUIRED BEYOND THIS POINT. HARD HAT, FOOT PROTECTION, HEARING PROTECTION, EYE PROTECTION, HIGH VISIBILITY OUTERWEAR.” As a result of the reinstatement of the Leases, Plaintiffs (and the rest of the public) are not able to access and use the leased lands. 93. These severe detriments will worsen if sulfide-ore copper mining occurs within the watershed of the BWCAW. If Interior and the BLM’s decision to reinstate the Leases and the renewal application is allowed to stand, NMW and its members will face irreparable harm. Conversely, a favorable decision will redress this injury by substantially diminishing the possibility of sulfide-ore mining in the watershed of the BWCAW. 94. Sulfide-ore copper mining would threaten to pollute clean water and damage the important forest habitat used by many types of wildlife. Sulfide-ore copper mining has a consistent record of devastating environmental harm, including contaminated waters, degraded forests, and unpredicted, catastrophic spills of toxic materials. There are inherent risks to sulfide-ore copper mining. Indeed, data from the U.S. Environmental Protection Agency show sulfide-ore copper mining to be the leading generator of toxic waste in the nation. 95. Scientific reports show that low buffering capacity of water and soil and the interconnection of lakes and streams make the watershed of the BWCAW and Voyageurs National Park particularly vulnerable to the impacts of sulfide-ore copper mining. Sulfide-ore copper mining could inject sulfuric acid, sulfides, sulfates, and heavy metals into the watershed. From the location of the two mining Leases, water flows into and through the heart of the BWCAW, through the Quetico Provincial Park in Canada along the U.S. border, and finally into Voyageurs National Park. Consequently, clean water—the natural asset most essential to the 27 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 28 of 37 health of the BWCAW, Quetico, and Voyageurs—is also the resource most at risk of permanent pollution from sulfide-ore copper mining in the watershed of the BWCAW. 96. Voyageur Outward Bound School is a nonprofit organization with its major base of operations located adjacent to the BWCAW that works with people on multi-week expeditions into the BWCAW to improve students’ perseverance, strength, and mental toughness with hopes that they take those skills and determination back home to serve and better their communities. In addition, veterans participate in veterans’ dogsled expeditions with Voyageur Outward Bound School. The expeditions use the wilderness and its soundscape to help veterans transition back to civilian life by offering a chance to heal from the effects of post-traumatic stress disorder, depression, and anxiety. Exposure to a largely uninterrupted ecosystem and pristine natural area is critical to this experience. Sulfide-ore copper mining would diminish the experience for all participants. 97. Plaintiff businesses and their owners also have direct links to the Superior National Forest and BWCAW, have staked their livelihoods on these wilderness areas, and rely on pristine waters, a healthy ecosystem, an abundance of wildlife, and the quiet and serenity of the deep wilderness to effectively conduct their operations. 98. Plaintiff businesses would be devastated by sulfide-ore mining adjacent to the BWCAW. These businesses and their owners guide canoe trips through the BWCAW; operate retail and outfitting operations that provide wilderness paddlers with outfitting services, accommodations, BWCAW entry permits, canoes, camping gear, food, knowledge and information about the BWCAW, and recreational opportunities such as swimming, boating, kayaking, canoeing, guided fishing, and hiking; provide camping trips in the BWCAW; and operate cafés and destination gift and souvenir stores, among other things. 28 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 29 of 37 99. Customers and clients of these businesses from all over the world would feel the effects of a negatively altered wilderness experience. Individuals and groups travel from as near as Minnesota and the Midwest to as far as Florida, New York, California, Japan, Germany, Switzerland, the UK, Zimbabwe, Brazil, France, the Netherlands, Austria, and other countries and continents to visit the BWCAW. Sulfide-ore copper mining would negatively impact Plaintiff businesses and their owners, as the public perception of the BWCAW as a place of wilderness and clean water would be damaged. 100. In reliance on the June 2016 Forest Service announcement that it did not plan to renew the Leases, several Plaintiff businesses made considerable financial investments in their respective businesses with the understanding that mining would not be allowed on the leased lands. 101. Individual members of NMW have direct and specific interests in keeping sulfide- ore copper mining and the associated habitat disruption, noise, and pollution out of the BWCAW and its watershed. Some NMW members are property owners who have homes and cabins and spend significant time in surrounding areas of the Wilderness and on Superior National Forest lands adjacent to or near the BWCAW, including on Jock Mock Lake, the Gunflint Trail, Hungry Jack Lake, Snowbank Lake, White Iron Lake, Burntside Lake, Sawbill Lake, Bald Eagle Lake, Gabbro Lake, Little Gabbro Lake, South Farm Lake, the South Kawishiwi River, Birch Lake, and Forest Service lands east of the South Kawishiwi River. Some of these locations, like the South Kawishiwi River, Birch Lake, White Iron Lake, and South Farm Lake, are along or near the reinstated lease sites. 102. NMW’s members are property owners, business owners, tribal members, veterans, hunters, anglers, and recreational visitors, whose livelihoods and property interests will 29 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 30 of 37 be harmed by mining. Sulfide-ore mining in the watershed of the BWCAW will negatively affect the recreational interests of Plaintiffs. NMW members participate in canoeing, kayaking, camping, fishing, hunting, hiking, backpacking, trail running, swimming, cross-country skiing, snowshoeing, skijoring, dogsledding, berry picking, teaching wilderness skills, wildlife watching, and photography, among other activities. Residents, friends, family members of multiple generations, business owners, boy scout troops, church groups, veterans, and numerous other groups of individuals and organizations partake in these activities, and all stand to lose their enjoyment of these wilderness experiences if sulfide-ore copper mining occurs next to the Wilderness in the BWCAW watershed. 103. NMW members frequently paddle on, utilize, and enjoy waters that include the South Kawishiwi River, the Basswood River, Birch Lake, the White Iron chain of lakes, Fall Lake, Newton Lake, Pipestone Bay of Basswood Lake, and the border lakes (Crooked, Iron, Lac La Croix, Loon, Little Vermilion, and Sand Point Lakes, among others). These waters, among others, would be in the path of pollution if the expired sulfide-ore mineral Leases at issue in this case were to be renewed and a mine complex developed. The development of a sulfide-ore copper mining district in the BWCAW watershed would inevitably pollute surrounding lakes, groundwater and downstream waters in the BWCAW, and both the quality and public image of the BWCAW as an authentic, pure, natural outdoor recreational paradise would be harmed. 104. The effects of sulfide-ore copper mining on land and property owners are already harsh. The current threat of sulfide-ore copper mining has already depreciated property values. Land values plummeted after exploratory drilling noise and pollution began in 2006. 105. Sulfide-ore mining will cause Plaintiff property owners to be left with devalued land, and those with homes or businesses dependent upon the BWCAW will be forced to sell 30 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 31 of 37 their property at steep discounts or close their doors. If the Leases are renewed and the mine is developed, several Plaintiffs will be forced to close their businesses and will lose even more property value than they have already lost due to the exploratory work that has already occurred. One 2014 University of Minnesota study showed that 23 percent of area property owners said they would move away from the area if mining were allowed in the area. Indeed, the development of the mine would cause some NMW members to move away from their current homes. 106. Scientists and physicians have attested to the effect that sulfide-ore copper mining has on people and the environment. Several of the substances most toxic to human health are released by hard-rock or sulfide-ore copper mining, including arsenic, asbestos, cadmium, mercury, and lead. Contaminating surface water, groundwater, and the air with these substances would have serious environmental and health consequences for those who live or work near the mining. 107. Scientists and physicians also understand and appreciate the multitude of short- and long-term health benefits of spending time in the wilderness. Spending time in the BWCAW has quantifiable positive impacts on physical, emotional, and psychological health. A growing body of scientific evidence shows that time spent in the wilderness improves objective, measurable health markers such as blood pressure, heart rate, cortisol and blood glucose, as well as improvements in subjective markers such as mood and emotional well-being. Additionally, time spent in wilderness has been shown to improve children’s neurocognitive development. These experiences strengthen children’s immune systems and instill critical thinking and problem-solving strategies that aid in the development of resilience and self-reliance. These 31 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 32 of 37 benefits cannot be replicated outside of a true wilderness environment; they require the space, the communing with nature, the quiet, and the challenge presented by pristine wilderness. 108. Sulfide-ore mining would also have long-lasting negative effects on fish and wildlife. The Superior National Forest and BWCAW forest landscape would be altered such that it could no longer provide a habitat for diverse species and complex chains of life within the forest. Mine construction would counter proper management of critical lynx habitat within the Superior National Forest, and that habitat would be difficult, if not impossible, to return to its original state if destroyed. A mining complex would also cause habitat fragmentation and devastating loss of forest habitat on the edge of the BWCAW, harming moose and other species as a result. 109. All of these impacts would have a detrimental effect on NMW and all of its members. NMW’s environmental and financial interests would be harmed if the Court allows Interior’s and the BLM’s decision to reinstate the Leases to stand and the resulting exploratory and development activities to continue. CLAIM FOR RELIEF COUNT I: INTERIOR AND BLM LACK AUTHORITY TO RESCIND THE PRIOR DECISION AND REINSTATE THE EXPIRED LEASES 110. Plaintiffs reassert and incorporate by reference all of the above allegations. 111. The APA prohibits Defendants from acting in a manner that is in excess of statutory jurisdiction, authority, or limitations, or short of statutory right. 5 U.S.C. § 706(2)(C). The APA also prohibits Defendants from acting in a manner that is arbitrary and capricious, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). 32 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 33 of 37 112. Interior’s and the BLM’s reinstatement of the 2004 Renewal Leases is in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, as well as arbitrary and capricious, because neither the BLM nor Interior had authority to reinstate the 2004 Renewal Leases over 16 months after their expiration, and 26 months after the alleged legal error on which the reinstatement was based. 113. Interior and BLM’s sole authority to issue leases in the Superior National Forest is 16 U.S.C. § 508b and § 520 and the regulations implementing those statutory authorities. There is no authority to undo a decision to reject a lease renewal application based on a purported legal error and, even if there were, any such action must be accomplished within a short and reasonable time. 114. Interior and the BLM rejected Twin Metals’s applications for renewal of the Leases in a decision dated December 15, 2016. The decision to reject the renewal applications was a final agency action. 115. Pursuant to 43 C.F.R. § 3514.25, the 2004 Renewal Leases expired on Twin Metals’s receipt of the notice rejecting the renewal applications. On information and belief, Twin Metals received the notice from the BLM on or about December 15, 2016. The 2004 Renewal Leases therefore expired on December 15, 2016 or shortly thereafter. 116. Interior and the BLM issued a decision on May 2, 2018 that “rescinds” the December 15, 2016 decision rejecting the renewal applications and “re-instates mineral leases MNES 01352 and MNES 01353, which were issued in 2004, and reinstates Twin Metal’s 2012 lease renewal application.” The May 2, 2018 decision is a final agency action. 5 U.S.C. § 704. 117. The May 2, 2018 decision was based on a claimed “legal error” in the Tompkins M-Opinion, which was issued on March 6, 2016. 33 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 34 of 37 118. There is no provision in 16 U.S.C. § 508b, § 520, or the regulations implementing those statutory authorities permitting Interior or the BLM to reinstate expired leases, and the May 2, 2018 decision did not cite any such authority. Interior and the BLM therefore acted in excess of statutory authority and in an arbitrary and capricious manner in reinstating the Leases. 119. The decision to correct the claimed legal error by rescinding the December 15, 2016 decision and re-instating the 2004 Renewal Leases was not done within a short and reasonable time period after the issuance of the Tompkins M-Opinion or the decision rejecting the lease renewal applications. The May 2, 2018 decision did not cite any unusual circumstances to justify the inordinate length of time between the claimed legal error and the decision to correct that claimed error. The May 2, 2018 decision did not consider any reliance interest of Plaintiffs or others on the decision rejecting the renewal applications. 120. The decision to reinstate the Leases was therefore without authority and arbitrary and capricious. COUNT II: THE REINSTATEMENT OF THE LEASES IS ARBITRARY AND CAPRICIOUS BECAUSE THE JORJANI M-OPINION IS RIDDLED WITH ERRORS 121. Plaintiffs reassert and incorporate by reference all of the above allegations. 122. The APA prohibits Defendants from acting in a manner that is arbitrary and capricious, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). 123. Interior’s and the BLM’s reinstatement of the 2004 Renewal Leases is arbitrary and capricious because the prior decision rejecting the lease renewal application was well supported, and the decision to reinstate the 2004 Renewal Leases after a change in administrations is not based on reasoned analysis and was done without consideration of Plaintiffs’ and others’ reliance on the expiration of the Leases. 34 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 35 of 37 124. Interior’s and the BLM’s arbitrary and capricious reinstatement of the 2004 Renewal Leases impinges upon Plaintiffs’ business, recreational, and aesthetic interests protected by Boundary Waters Canoe Area Wilderness Act of 1978, 16 U.S.C. § 508b, and 16 U.S.C. § 520. 125. The prior decision rejecting the lease-renewal application rested on the Tompkins M-Opinion and the Forest Service’s non-consent decision. The Tompkins M-Opinion is based on a careful analysis of the law and the provisions of the Leases. Likewise, the Forest Service’s decision to withhold consent to the lease renewals is well supported by extensive fact-finding regarding the likely harms that would result from sulfide-ore mining next to the BWCAW. 126. The Tompkins M-Opinion properly concluded that the 2004 Renewal Leases provided Twin Metals with a preferential right to renew, which provided Twin Metals with only a legal right to be preferred against other parties should the BLM, in the exercise of its discretion, decide to continue leasing. Accordingly, to the extent the BLM decided not to lease the subject area, it had no obligation to renew the 2004 Renewal Leases. 127. The May 2, 2018 decision reinstating the Leases is a final agency action. 5 U.S.C. § 704. 128. Interior’s and the BLM’s reinstatement of the 2004 Renewal Leases relies on the assertion in the Jorjani M-Opinion that the rejection of the renewal applications was legal error because the BLM does not have discretion to deny the requested renewals. 129. The Jorjani M-Opinion incorrectly concludes that the BLM is required to renew the 2004 Renewal Leases. The Jorjani M-Opinion improperly relies on extrinsic evidence, inappropriately uses extrinsic evidence to contradict Part I of the 2004 Renewal Leases that plainly provides for a preferential right to renew, and mischaracterizes the extrinsic evidence. 35 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 36 of 37 130. Moreover, the Tompkins M-Opinion expressly considers and rejects the argument that the Renewal Leases are ambiguous. Neither the Jorjani M-Opinion nor the May 2, 2018 decision identify any rationale not already considered in the Tompkins M-Opinion. 131. Neither the Jorjani M-Opinion nor the May 2, 2018 decision consider the Plaintiffs’ and others’ reliance on expiration of the Leases. 132. Interior’s and the BLM’s reinstatement of the 2004 Renewal Leases is therefore arbitrary and capricious. PRAYER FOR RELIEF Plaintiffs respectfully request that this Court: 1. declare that Defendants violated the Administrative Procedure Act; 2. declare that the reinstatement of the 2004 Renewal Leases exceeds Interior’s and BLM’s authority under law and is arbitrary and capricious; 3. grant an order and judgment vacating and invalidating Defendants’ reinstatement of the 2004 Renewal Leases and Twin Metals’s renewal application; 4. grant injunctive relief staying and enjoining Defendants’ further consideration of the applications to renew the 2004 Renewal Leases; and 5. grant such other and further relief the Court deems just and proper. 36 dc-929367 Case 1:18-cv-01463 Document 1 Filed 06/21/18 Page 37 of 37 Dated: June 21, 2018 Respectfully submitted, By: /s/ Joseph Alexander Ward Joseph Alexander Ward (D.C. Bar No. 463927) Dustin C. Elliott (pro hac vice application pending) MORRISON & FOERSTER LLP 2000 Pennsylvania Ave., NW Washington, DC 20006-1888 Telephone: 202.887.1500 Thomas B. Heffelfinger (pro hac vice application pending) Amy S. Conners (pro hac vice application pending) BEST & FLANAGAN LLP 60 South Sixth Street Suite 2700 Minneapolis, MN 55402 Telephone: 612.339.7121 Attorneys for Plaintiffs 37 dc-929367 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 northem 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. 1 109 (1854). 3 See 1966 leases 5. 4 The regulations at 43 CPR. 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 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 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. 1? 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. It 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 ?lrther 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.18 It should be noted that the lessee? 3 payment of minimum royalties 1n lieu of production does not alter the foregoing analysis.9 The payment of minimum royalties is certainly one incentive to produce that was imposed by the 1966 leases, but that incentive worked 1n 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 BUREAU OF LAND MANAGEMENT Easlem States 20 Street SE. Suite 950 Washington DC. 20003 In Repl)r Refer To: 3566 (930) MAY - 2 2018 MNES 01352, MNES 0 353 CERTIFIED MAIL RETURN RECEIPT REQUESTED DECISION Mr. Kevin Baker Leasing ol?Solid Minerals: Vice President, Legal Affairs MNES 01352, MNES 01353 Twin Metals Minnesota, LLC 380 St. Peter Street, Suite 705 St. Paul, Minnesota 55102 Rescission of December 15. 2016. Lease Renewal Application Reiection Reinstatement ofMineral Leases MNES 01352 MNES 01353 as Issued in 2004 Reinstatement of Twin Metal?s 2012 Lease Renewal Application On December 22, 2017, the Acting Solicitor issued an opinion (M-37049), which concluded that the original 1966 leases (MNES 01352 and MNES 01353) gave the lessee a non?discretionary right to a third renewal ofthe leases. subject to reasonable changes to the terms and conditions of the leases. In light ofM?37049. the Bureau ofLand Management (BLM) hereby rescinds its decision dated December 15. 2016. which was entitled, "Lease Renewal Application Rejected,? reinstates mineral leases MNES 01352 and MNES 01353, which were issued in 2004, and reinstates Twin Metal?s 2012 lease renewal application. The reinstated leases will remain in effect as written in 2004, until such time as the BLM acts on the application for a third lease renewal, subject to reasonable updated terms and conditions. The reasons for my decision are set forth below. Background In 2012, Twin Metals Minnesota (TMM) applied to renew its two existing mineral leases (MNES 01352 and MNES 01353) within the Superior National Forest in Northeastern Minnesota. The USDA Forest Service is the surface management agency for the lands where these two leases are located, and the BLM hasjurisdietion over the subsurface mineral estate. The BLM previously issued renewals ofthe leases in 1989 and 2004 after consulting with the Forest Service. In processing the pending application for renewal. the BLM identified the need for a legal opinion to determine whether TMM has a non-discretionary right to renew the two leases. On March 8, 2016. the Department ol?the Interior?s former Solicitor issued a legal opinion 37036), which concluded that TM did not have a non?discretiomlry right to renew the leases; rather, the government retained discretion to grant or deny the renewal application. After the issuance of M-3 7036, the BLM requested the Forest Service?s decision on whether they would consent to the renewal of the leases for a third time. By letter dated December 14, 2016, the Chief of the Forest Service issued a non-consent determination. Given the lack of consent, the BLM rejected third renewal application in a letter dated December 15, 2016. TMM filed suit in the U.S. District Court for the District ofMinnesota and requested that the Interior Department review and reconsider the legal conclusion ofM?3 7036. The Of?ce of the Solicitor has since reviewed and concluded that the initial opinion?s analysis was incorrect. On December 22, 2017, the Acting Solicitor issued a new opinion entitled, ?Reversal of M-3703 6, ?Twin Metals Minnesota Application to Renew Preference Right Leases 01352 and (M-37049), which reverses and replaces See enclosure. The revised M?Opinion concludes that the original 1966 leases gave the lessee a non- discretionary right to a third renewal of the leases, subject to reasonable changes to the terms and conditions of the leases at renewal. Because the prior request for Forest Service consent was based on the legal error that the United States had discretion to decide whether to renew the leases, we informed the Forest Service that its December 2016 non?consent determination was not legally operative. The Forest Service has not objected to that conclusion. Conclusion It is my decision to rescind the prior BLM decision dated December 15, 2016, which was entitled, ?Lease Renewal Application Rejected,? to reinstate mineral leases MNES 01352 and MNES 01353, which were issued in 2004, and to reinstate the lease renewal application that Twin Metals ?led in 2012. BLM will treat the reinstated leases as though the December 15, 2016, decision was never issued and the reinstated leases will remain in effect until such time as the BLM acts on the application for a third lease renewal, subject to reasonable, updated terms and conditions. If you need additional information, please contact me at (202) 912-7701. Sincerely, Mitchell Leverette Acting State Director Eastern States Final Decision of the Agency I concur in the Acting State Director?s decision to rescind the prior BLM decision dated December 15, 2016, which was entitled, ?Lease Renewal Application Rejected,? and to reinstate mineral leases MNES 01352 and MNES 01353, which were issued in 2004. My concurrence in this decision makes it a ?nal agency action for the Department of the Interior and, in accordance with the regulations at 43 C.F.R. is not subject to appeal to the Interior Board of Land Appeals under departmental regulations at 43 C.F.R. Part 4. Concurred in by: ids/eph/R. Balash Assistant Secretary Land and Minerals Management U.S. Department of the Interior Enclosure: Solicitor Opinion M-37049 (December 22, 2017) ?Reversal cc: BLM Northeastern States District Of?ce Regional Forester, USFS Region 9 Forest Supervisor, Superior National Forest -. .. ?.337 -- .t 1*?m .. 3. I. 03:33} 3343.3. A 33.333333333312133 333' 3333;313:923 1333313333333 MAR 2 2 1965 I ?an. 0133433332336 0- .3 VI a' ~r_n ,?my 0'13 2 1 5 Also 1?3 34L.) n. nus . ied iaieAuk-Luv - .. To: .. - ?Wall-min ?rt ?pgendix Shauld bu DEPAE rm" .5 a 3.513.: 1. 333333323933, 33. 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A detailed autumn: muting permits Yam: la muting :8 me an 2:;er aims} anuutml um? ouch ?no: thinly Im. in a. way Mm Eewwnc of. chi Interim. OB action will land vole ma Mucus e! ?an sumac? to um um Ewes? 01 Land Magma 1 ca Manta; than we? 0! cm to who mam-:31 ?cm to hawk attachsd (at you: L?umttoa.? -- you cut ?5ch? ?11112.; to 1 want aroma: ml may mm b: that such ?the null mates: dwamo. 2mm? smutmac-zeal fee join: we! can,? ?cues that thin pansy Int exam 3 ?put cam: 62 meant?. . saith-:5 DEPARTMENT OF. THE INTER10R or: TM: SECRETARY . ta: 92m: Mus-yolmhm: mmzamm: a mm; W5 .9 a! Winn. macaw by :21. We: 01 Emma Walmt ham 66mm a may; you? to: ?2232;: mean: Lamas an! equation mu than. a: m: magma, (hangout. 1: co out 6mm Gaza-agar!) at 15:15:11? and to at as: been mm ?st'mt mum . Wang Wag than magnum. . 251mm! dsmumz in u- mm: Venue hm was? by at: 53163233 a! an 31mm? am: Emma M: o! 1950. Esme: t3: $135.3 A33 52 15.72 as: tits-amt laws as o! 1915 not 83911063019 :3 urn-2.2m amaze. WI usu- - mm :33 33358314 by the It: 9% was to: 81.232319 333223 gas-3 uh Ram Ea: ?mm: as: as may 0: we mz?smm. . within the 5m: mum: team: we yum-Apia em: a new - have been mm by (mm) mmutzm can mam-y $611133 wan-Ana 65235313 $3.53 9.0 a 63- am: m) ?mum. 3.73.5239 seams. and mm gem 032m. manually. an emmim twas 2512:: 91:92 La 222:2? ?my {2:23-33 em: Lem 2:51:22}: to 25:12:; pmzved my: mm a; a was (xii taxman Am: a! 19:0. {01:41.3 ?232: ?a 19433. hatime? a: 87,533 by mam ewes: 55:. till? as W's-59. a mum: cam-5a. ?ma-axes. 1m and ?am saw when mama also an :33 mm scam. *9 - no suwaor forest am .1: mam a! land! ?and two print. 5121, an?! the 0. I. talc-stun! land m. patented land which has since bean by the forest Santa, all a ?tabla scream of land which. mu can remain its white mu status, has been withdrawn and at wide for the mtdotntion by tho Forest Service as pet: of tho investor 3:2;qu Forest. ms, the hardly gauge in tho ?9de! mum: forest is a mhum o! mautmd land and mu. 2: mm be mind that application! for dual mm tad mutation wait: in tin th1 tons: no Mound by the Dayna-cut o! tho Interior through its Burma 0! Mad Mm- Wt, tho' um- uonary tether-icy o! the auteur}; of the Interior to tam and 153mm 13 subject to tho meant a! tho beauty 61 Agricultuu. much an Maidant'l endear-undo: at tho Task ram. . e? appointed by a. secretary o! Agricultun made: chal'muhtp of . 6:32:33 hike. haw ?Wad that ducal minutiae tad leaning in the Scam-:10: ?aticml Faust be ma?a-d to the mxupu ?uu um outatda the 2:.qu Waters enact Am. to 2mm 42:31:: a cwetdlumtm batman tin national (oust land: within cm 32an man canon Am- tad than mtci?a. With-Mam to than Federal white Mn and acqulmd 13nd; wit?? tha Bound?: - Eaters antes Arm. 1: mu bc?m poltcy of this Deparmnt'to rcjoct? grinding and futun applications In anon! mutation permits and to refuse team! 0: extension at misting waits. For his part, Maury Freeman has of to cuboid mm: for alumni. pmmcung poulu within an asunder: water: Cam: Am, 5? and to withdraw meant pmioaezly given when. Ouch action 1: than. This would be subject to mam-Aux remind by tho circum- tame.? :92 I astiml Grammy. with 2?95??:an to rinse had: of sagas}: 53mm: rams: can?. the: units: 03 the ham Eaten {3:333 12:23, this is in ?3222er with tho 92.3201 ?:22.er tin warm: of Agriculture that full mm?! mm: $723315 ta ?mace. caesium: with the mace?: of atlupb use. Applications to: aim). ?@10th was 511m upla- uttoa waits ?studs 01 W17 Raters :ra Am v1.11 he mind and admitted by tka appucmt; vi}: ugly.? to ?amino 1.1.57 and mumw- MW ?115?" regatta of 'a'mi?uunta to: ?them"?iatammt?cna. If mini. 0! mm . me: the? tests and tha mama ot ?22; ?bmt union. alum . . . .. .- .- . . .f31"".Wr~u.r4r a~{533* w? unset awe Ara to cum.? nan as tat tho has: ism? can now: to swim Mutton; an Along the Mahatuu?my. mutton: mu provide to: no pW?, annoying o: ?hafnium quirky mm: 1111 . ?tact the quality 0! nu ma: ?aw tn um ?mum ?to: and rivers. - - haunted that autumn alum mwmmum . gamma: ?Sam on tho cum of minds; cad pain: nix-aunt uplo- 4" 3, 1921? waits to whit an this policy with ?ditty, 3? and that autumn 9001.031: all We an um; gather? with? .1 ding-ufu? . wt :1 inn-20m to th- pmdin: lean mucsum. that ask,- copus o! this imam mum no porn.? 6mm fox-1am in?eumima locum actions on tho annotate? tn' the ?nder lineal latest. . . 0 ?r cc: 80c. otfiu Sec. 3.3. 1 a 2 722 722b 1.2. swung 2/3/63 . IN REPLY REFER TO: UNITED STATES A-022697 DEPARTMENT OF THE INTERIOR Minuesota GEOLOGICAL SURVEY WASHINGTON. D.C. 20242 March 10, 1965 Memorandum for the files Subject: International Nickel Company (INCO) lease applications in Minnesota 011 Toesday, March 2, 1965, Hessrs. Duncan, Blessing, Binsnore, Gazdik and Bailey conferred with Bill Sharer, Baron: of Land Management, eon- oerning pending lease applications of the International Hickel Company in the Superior National Forest, Minnesota. The harem "of Land ?it, containing Seiko Report md recent correspondinoe mg Secretary of Agriculture, Secretary of the Interior and Director, of Land Management has been reviewed. The Selke Report (prepared by several prominent people from !innesota), dated December 15, 1961;, recommended that all prospecting permits now in Boundary Waters Canoe Area be canceled and no new ones issued; that ?ning not be allowed inthe RICA, except in national need or emergency, but that full mineral development should be encouraged in mltiple use portions of the Superior National Forest outside MA. The Secretary of Agriculture and Secretary of the Interior, have followed the recommendation of the Selke Report in setting the policy for mineral prospecting and leasing in the Superior National Forest. This brought up the International Nickel Company's preferential lease applications, which have been pending since 1956. Though IHCO apparently has a firm commitment to lease from the Depart- ment by Oreo Lewis, then Assistant Secretary, in a letter dated April 29, 19511, Hr. Sharer has raised several points concerning issuance of the preposed leases as follows: 1. Whether a discovery has been made that would warrant issuance of the lenses. 2. 50-year lease. 3. Lack of production requirements. Also, that a review of the issue be made concerning the economic merchantability and feasibility. In response to the foregoing questions, the following cements are made: 1. Information in the files definitely indicates a dis- covery of copper and nickel to the satisfaction of the U. 3. Geological Survey. 2. The 50-year term was and should now be a definite comitnent by the Department. 3. This is also a definite con?uent by the Department, but minim royalty, involving escalating rates, was included in lieu of production requirements. The applicant has expended nearly $1-million on geologic investiga? tions and core drilling, which showed a discovery of copper and nickel. Further, it appears the applicant believes the land cons tains sufficient mineral values to claim discovery and subsequent conversion of their prospecting permits into leases. However, it also believed that the drilling and geological information, at this time, is insufficient to estimate the economic feasibility and additional detailed drilling will be required before the mineral values can be appraised. In view of the length of time that has elapsed since 1956, it is believed that the applications and lease term should be reviewed and the thinking of both Department of the Interior and the applicant be brought current. We have no objections to putting mineral prospecting and leasing off limits in the RICA, as outlined in the Selke Report. A report from the field is forthcoming after a further study of geological data, drill hole information and consultation with the applicant representatives . A. V. Bailey Deputy. Mining Supe sor cc: Mules ter Miami . '1 J, (?soapy 90: Mr . 7). Alma: m9: 1W5 s. mm W,Waf mm hm W. W: mamas. mm?mm, Wu. s. Him?, m, WM Mm (?Lawn ma. m,mv. m. MW, 93.1mm, ?Macaw, water?s mm, 3. n. w, wit. if. m. gamma-i Awaywhu(amun mu) u,um WW?nmmL Simumwrim a) mum,mtmbaumm. Mammal, Wmhmifbn ?am,.,mmxmum.m,asumnm if?? a? 555! mum mm,mm. ?imam. %mgumm - m3?: $me ts." Wham fmm?. ?.3,th WMMEWM. MMwWatam-me ?mummy-ream. mm. Watt. mum mu. a puma-n has waived. Ming mica-my. Copy to J. D. Turner" Julian D. Feiss UNITED STATES DEPARTMENT OF THE INTERIOR mtA-02h828 GEOLOGICAL SURVEY Minnesota WASHINGTON . D.C. 20242 July 12, 1965 Memorandum for the files Subject: Clapper-nickel lease applications of the International Nickel Germany (INGO) in the Superior National Forest, Mimesota, and (Minnesota) A conference was held in Congressman John A. Blatnik's (Minnesota) office, Room 214149, Rayburn Building, at 2:30 Wednesday, July 7. The conferees present were as follows: Name Position BLANK, John A. Congressman OVERSTAR, James Administrative Assistant to Blatnik WDIGATE, Henry Chairman of the Board of INCO KENNEDY, W. F. Secretary of INCO RAMSTEAD, Dean Assistant to the President of INCO HANFP, Phillip Duluth Attorney PURGEL, Joseph Mayor of Ely 0 mm, Joe D. uses GUILD, Phillip uses 3101mm), Charles BLM JUL 13 1965 SHAFER, William BLM CAMAUGH, Thomas 301. -J. ounce? Congressman Blatnik called the meeting to order and stated that he was primarily interested in obtaining employment for more people in Minnesota. However, he recognizes that there are certain obstacles that INGO may have to overcome before investing capital and employing more people. ?llhnam, there followed a briefing by Messrs. Sharer and Stoddard that the leases only assured production during the h9th lease year, and that it was customary for lessees to obtain production prior to the 5th, 10th, or 15th lease years. Further, Mr. Stoddard stated the Bureau of Land Management was subject to more political pressure than any other agency, and it was necessary for them to do something to demonstrate that they are performing in the best public interest. 5? However, he further stated that it was not his wishes to cancel the permits, or leases. Mr. Wingate entered the discussion and stated that if the leases were to be for only 20 years, Or less, that the Department could forget about INCO. He further stated that it would take at least a year to get issues cleared that would be acceptable to the Forest Service. Then, a shaft, with additional drilling, would be necessary before they could determine whether a mill should be constructed near the mine, or the ore shipped to Canada, or that the project should be abandoned. The meeting was concluded with the understanding that INCO uould submit a memorandum to the Department, outlining what INCO believed that both parties can defend publicly. Thrner Chief, Branch of Mining Operations cc: Director's reading file Regional Mining Supervisor, HoAles ter, Oklahoma Deputy Mining Supervisor, Miami, Oklahoma JDTurner:amg Attorney-Client Privilege/Attorney Work Product LITIGATION BRIEFING PAPER FOR DEPUTY SOLICITOR OF ENERGY AND MINERAL RESOURCES DATE: August 1, 2018 THROUGH: Karen Hawbecker Associate Solicitor, Mineral Resources FROM: Briana Collier Attorney-Adviser, Mineral Resources SUBJECT: New Twin Metals lawsuits; Voyageur Outward Bound School v. U.S.; Wilderness Society v. Zinke; and Friends of the Boundary Waters v. BLM, (D.D.C.) – Challenging the BLM’s Rescission of the Previously Denied Renewal of Federal Hardrock Mineral Leases MNES 1352 and 1353 and Reinstating Twin Metals’ Lease Renewal Application The purpose of this memo is to provide background information and the current status of three lawsuits recently filed in the U.S. District Court for the District of Columbia: Voyageur Outward Bound School v. U.S., Wilderness Society v. Zinke, and Friends of the Boundary Waters v. BLM. These cases challenge the Bureau of Land Management’s (BLM) May 2, 2018 decision to rescind its prior December 15, 2016 decision rejecting Twin Metal Minnesota’s request to renew federal hardrock mineral leases MNES 1352 and 1353 in Minnesota, administered by the BLM Eastern States Office. In the complaints initiating the lawsuits, Plaintiffs also challenge a DOI Office of the Solicitor legal opinion, issued in December 2017, reversing a prior Solicitor’s opinion of March 2016 that supported the original BLM decision to deny the lease renewal. BACKGROUND Twin Metals Minnesota LLC, and its subsidiary Franconia Minerals LLC (collectively, Twin Metals), are lease holders of hardrock mineral leases MNES 1352 and 1353. 1 The leases are located in northeastern Minnesota on the South Kawishiwi River within the Superior National Forest. Lease MNES 1352 is three miles southwest of the Boundary Waters Canoe Area (BWCA) Wilderness and lease MNES 1353 is immediately adjacent to the wilderness area, to the south. The BLM first issued the subject leases in 1966, which authorized the development of federal copper, nickel, and associated minerals for a primary term of twenty years and provided for three lease renewals of ten years each. The BLM renewed the leases for a ten-year period in 1989 and for a second ten-year period in 2004. The consent of the surface managing agency, in this case the United States Forest Service (Forest Service), is specifically required for leasing and 1 The record title to the Subject Leases has been transferred four times since issuance in 1966. As of April 1, 2014, the record title lessee of the Subject Leases is Franconia Minerals, LLC, which is wholly owned by Twin Metals Minnesota, LLC. Twin Metals Minnesota is a subsidiary of Antofagasta Minerals, a Chilean corporation. 1 mineral development decisions in Minnesota under the relevant mineral leasing statutes. 2 As part of the 1989 and 2004 renewal processes, the BLM sought and received consent to renew the leases from the Forest Service. SOL ISSUES M-37036 CONCLUDING THAT BLM HAS DISCRETION TO GRANT OR DENY THIRD LEASE RENEWAL (MARCH 2016) On October 24, 2012, the BLM received an application for a third renewal of the leases. In processing the 2012 application for renewal, the BLM identified the need for a legal opinion to determine whether it had discretion to grant or deny the lease renewal, due to the lack of clarity of the lease terms regarding renewal. Former Solicitor, Hilary Tompkins, issued M-Opinion 37036 on March 8, 2016, in response to the request. 3 The M-Opinion concluded that the BLM had discretion to grant or deny the renewal. Twin Metals Minnesota filed suit on September 12, 2016, challenging this first M-Opinion as disputing their mineral interests under the Quiet Title Act, and as being otherwise arbitrary, capricious, and not in accordance with the law under the Administrative Procedure Act (APA). BLM REJECTS TWIN METALS’ APPLICATION FOR THIRD LEASE RENEWAL (DECEMBER 2016) Following the guidance of the M-Opinion 37036, which identified the statutory and regulatory requirements for the renewal application, the BLM requested the consent of the Forest Service, to renew the leases, which the Forest Service did not grant. The Forest Service sent the BLM a letter containing its non-consent determination on December 14, 2016. As a result, the BLM was required to reject the application for lease renewal and did so on December 15, 2016. In January 2017, Twin Metals amended their litigation complaint to include the Forest Service as a party and the non-consent determination and lease renewal rejection as challenged actions. SOL ISSUES NEW M-OPINION REVERSING M-37036 (DECEMBER 2017) In 2017, incoming Acting Solicitor Dan Jorjani granted Twin Metals’ request to reexamine the legal analysis in M-37036. Finding legal error, Acting Solicitor Jorjani issued a new M-Opinion, M-37049, 4 reversing the prior opinion, M-37036. The second M-Opinion concluded that M37036 improperly interpreted the leases. M-37049 found that the renewal terms of the original 1966 leases remained operative, and that those renewal terms provided Twin Metals with a nondiscretionary right to a third renewal, subject to the United States’ right to impose reasonable terms and conditions. Thus, the BLM did not have the discretion to reject the company’s renewal application in December 2016. Following the issuance of M-37049, Twin Metals voluntarily dismissed its lawsuit against the Department without prejudice. 2 16 U.S.C. § 508b for public domain lands; 16 U.S.C. § 520 for acquired lands. Twin Metals Minnesota Application to Renew Preference Right Leases (MNES-01352 and MNES-01353), M37036 (Mar. 8, 2016). 4 Reversal of M-37036, “Twin Metals Minnesota Application to Renew Preference Right Leases (MNES-01352 and MNES-01353),” M-37049 (Dec. 22, 2017). 3 2 BLM RESCINDS PRIOR DECISION REJECTING RENEWAL APPLICATION (MAY 2018) In May of 2018, the BLM took steps to correct its error, as outlined in M-37049. BLM issued a decision rescinding its prior December 15, 2016 decision, which had rejected Twin Metals’ lease renewal application, thereby causing the underlying leases to expire. See 43 C.F.R. § 3514.25(a). This rescission had the effect of reinstating the two leases as they were, as well as reinstating the lease renewal application as pending once more. The BLM is currently processing the lease renewal application anew, now with the understanding that Twin Metals has a non-discretionary right to a third renewal, subject to the reasonable changes to lease stipulations, terms, and conditions. The BLM and the Forest Service are drafting an Environmental Assessment to analyze any changes to the stipulations, terms, or conditions the agencies might include in the new leases. NEW LITIGATION In June of 2018, several local outfitters and environmental groups filed suit against the United States, the Department, and the BLM, challenging the rescission and the second M-Opinion. A summary of the three lawsuits follows below: Voyageur Outward Bound School v. U.S. (D.D.C.) (First Twin Metals Challenge). On June 21, a citizen’s group and nine commercial entities filed a challenge to BLM’s reinstatement of the Twin Metals leases pending decision on the lease renewal application. Plaintiffs claim the BLM’s actions in rescinding its prior decision to reject the lease renewal application and reinstating the leases violates the APA and is arbitrary, capricious, and not in accordance with the law. Plaintiffs ask the court to vacate the BLM’s reinstatement of the leases and enjoin the BLM from further renewal of the leases. Federal Defendants response is due August 27, 2018. Wilderness Society v. Zinke (D.D.C.) (Second Twin Metals Challenge). On June 25, the Wilderness Society, Izaak Walton League of America, and Center for Biological Diversity filed a complaint in the U.S. District Court for the District of Columbia challenging the reinstatement of Twin Metals’ two leases. They argue that there is no statutory, regulatory, or inherent authority for BLM's rescission of its December 2016 decision denying Twin Metals’ lease renewal application. They also argue that the challenged decision is arbitrary and capricious because it is allegedly based on an incorrect interpretation of the leases. The plaintiffs ask the court to vacate the challenged decision. Federal Defendants response is due September 3, 2018. Friends of the Boundary Waters v. BLM (D.D.C.) (Third Twin Metals Challenge). On June 25, the Friends of the Boundary Waters Wilderness filed a complaint challenging the same lease reinstatement decision, arguing that the decision violates the APA, is based on an incorrect interpretation of the leases, and is beyond the 3 govermnent?s authority to revisit an agency decision made 16 months before. Plaintiffs ask the court to vacate both the reinstatement decision and the December 2017 M- Opinion. M-3 7049. and to declare the leases expired. They also ask for preliminary and permanent injunctive relief in their complaint, but have not ?led a motion for preliminary injunction. Federal Defendants response is due September 14. 2018. NEXT STEPS DMR can supply its draft litigation report if you would like to see it. DMR attorney contacts: Karen Hawbecker, 202-208-4146: Richard McNeer?. 202-208-5793; Briana Collier. 202-208-4853; Roy Fuller, 202-208-3442. DOJ attorney contacts: Stacey Bosshardt. 202-514-2912; Tyler Alexander, 202-305-0238. Ian Duckworth Chief Operating Officer Twin Metals Minnesota 380 St. Peter St, Suite 705 St. Paul, MN 55102 Dear Mr. Duckworth, Thank you for your letter dated May 26, 2017, regarding the proposed withdrawal in the Superior National Forest. In your letter, you request that the U.S. Forest Service (USFS) cancel its application for withdrawal and, in the event the withdrawal application is not cancelled, that the Bureau of Land Management (BLM) deny the USFS’s application. (b) (5) You have asked for an opportunity to meet with the Secretary and his staff to discuss the withdrawal application. Please feel free to contact Gisella Ojeda-Dodds at 202-208-4123 to schedule a meeting with Mr. Vincent Devito, the Secretary’s Counselor for Energy Policy. Sincerely, cc: United States Department of Agriculture Attorney-Client Privilege/Attorney Work Product BRIEFING MEMORANDUM DATE: July 20, 2017 FROM: Karen Hawbecker Associate Solicitor, Mineral Resources SUBJECT: Franconia Minerals v. United States, No. 16-3042 (D. Minn.) – Involving the Denied Renewal of Federal Hardrock Mineral Leases MNES 1352 and 1353 The purpose of this memo is to provide background information and the current status of the Franconia Minerals litigation involving the Bureau of Land Management’s (BLM) decision to reject Twin Metal Minnesota’s request to renew federal hardrock mineral leases MNES 1352 and 1353 in Minnesota, administered by the BLM Eastern States Office. In the complaint initiating the lawsuit, Plaintiffs challenged a DOI Office of the Solicitor legal opinion, issued in March 2016, and the BLM’s decision denying the lease renewals, issued in December 2016. BACKGROUND Franconia Minerals LLC, and Franconia’s parent company, Twin Metals Minnesota LLC (collectively, Twin Metals), are lease holders of hardrock mineral leases MNES 1352 and 1353. 1 The leases are located in northern Minnesota on the South Kawishiwi River within the Superior National Forest. Lease MNES 1352 is three miles southwest of the Boundary Waters Canoe Area (BWCA) Wilderness and lease MNES 1353 is immediately adjacent to the wilderness area, to the south. The BLM first issued the subject leases in 1966, which authorized the development of federal copper, nickel, and associated minerals for a primary term of twenty years and provided for three lease renewals of ten years each. The BLM renewed the leases for a ten-year period in 1989 and for a second ten-year period in 2004. The consent of the surface managing agency, in this case the United States Forest Service (Forest Service), is specifically required for leasing decisions in Minnesota under the relevant mineral leasing statutes. 2 As part of the 1989 and 2004 renewal processes, the BLM sought and received consent to renew the leases from the Forest Service. On October 24, 2012, the BLM received an application for a third renewal of the leases. In processing the 2012 application for renewal, the BLM identified the need for a legal opinion to determine whether it had discretion to grant or deny the lease renewal. The Solicitor issued MOpinion 37036 on March 8, 2016, in response to the request. 3 The M-Opinion concluded that 1 The record title to the Subject Leases has been transferred four times since issuance. As of April 1, 2014, the record title lessee of the Subject Leases is Franconia Minerals, LLC, which is wholly owned by Twin Metals Minnesota, LLC. Twin Metals Minnesota is a subsidiary of Antofagasta Minerals, a Chilean corporation. 2 16 U.S.C. § 508b; 16 U.S.C. § 520. 3 Twin Metals Minnesota Application to Renew Preference Right Leases (MNES-01352 and MNES-01353), M- 1 the BLM has discretion to grant or deny the renewal. Plaintiffs filed suit on September 12, 2016, challenging the M-Opinion as disputing their mineral interests under the Quiet Title Act, and as being otherwise arbitrary, capricious, and not in accordance with the law under the Administrative Procedure Act (APA). Following the guidance of the M-Opinion, which identified the statutory and regulatory requirements for the renewal application, the BLM requested the consent of the Forest Service, to renew the leases, which the Forest Service did not grant. As a result, the BLM was required to reject the application for lease renewal in December 2016. In January 2017, Plaintiffs amended their complaint to include the Forest Service as a party and the non-consent determination and lease renewal rejection as challenged actions. Plaintiffs seek a declaration and order from the Court that the BLM must grant the lease renewals, costs and expenses, and any other relief the Court deems just and proper. DISCUSSION Solicitor’s M-Opinion In seeking the third lease renewal, Twin Metals asserted that the terms of the original 1966 lease provided the company with an initial 20-year term and an automatic right to three 10-year renewals without significant lease term amendments, thus the BLM had no discretion to deny the application for renewal. Twin Metals also asserted that it has a perpetual right to renew these leases thereafter subject to certain additional lease term amendments. In the M-Opinion, the Solicitor disagreed with this assessment, finding that “under 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.” 4 While Twin Metals has drilled over 170 exploratory bore holes to collect mineral samples, and conduct hydrologic monitoring on the leased lands, all parties agree that no production has occurred on either of the leases over the 50 years that the leases have been in effect. The M-Opinion also found the more recent 2004 lease terms addressing renewal to control, and while the governing “2004 lease terms gave the lessee preference over other potential lessees to lease the lands in question, they do not entitle the lessee to non-discretionary renewal of the leases.” 5 The M-Opinion concluded that Twin Metals did not have a right to automatic renewal, but rather the BLM has discretion to grant or deny the pending renewal application. With this question addressed, the BLM proceeded with processing the application for renewal of the leases in accordance with pertinent laws and regulations, including those requiring consent from the surface management agency, as discussed below. 37036 (Mar. 8, 2016). 4 M-37036 at 2. 5 Id. at 13. 2 ores! Service Denial of Consent Based on the reasoning of the M-Opinion, the statutory and regulatory authorities governing the leases required the BLM to obtain the consent of the Secretary of Agricultru?e (USDA), through the Forest Service, before it could issue lease renewals.6 In addition, where leased lands at issue involve acquired sru?face lands (as opposed to public domain sru?face lands), the Secretary of Agricultru'e must determine that the mineral development ?will not interfere with the primary pruposes for which the land was acquired . . On J1me 3, 2016, the BLM requested the Forest Service?s consent determination on the lease renewals. The Forest Service then opened a 30-day period for public input, and held two listening sessions, in Duluth, MN on July 12, 2016, and in Ely, MN on July 19, 2016. On December 14, 2016, the Forest Service submitted a letter to the Director of BLM stating it did not consent to renewal of the leases. The Forest Service based its decision to withhold consent 011 several factors, including the directive in the 2004 Superior National Forest Plan to manage the BWC A Wilderness in such a manner that ?perpetuates and protects its unique natru'al ecosystems, provides an enduring wilderness resoru'ce for futru?e generations, and provides oppommities for a primitive and unconfmed recreation experience,? along with grave concerns that development of the leases within the BWC A watershed risks seriously impairing the water- based ecosystem of the wilderness area, and with it, poses rmacceptable risks to the wildlife, recreation, tribal hrmting, ?shing, and usufructuary rights, and toru'ism industry that depend on the pristine nature of the BWC A Wilderness. As a result of denial of consent by the Forest Service, the Eastern States? State Director issued a decision denying renewal of the leases on December 15, 2016.8 Litigation On September 12, 2016, prior to the denial of the application for lease renewal, Twin Metals ?led a lawsuit against the United States, the DOI, the BLM, and the Solicitor challenging the M- Opinion under the Administrative Procedru?e Act and Quiet Title Act, requesting that the court ?quiet title? to their renewable leasehold interest in the subject mineral estate and declare that the M-Opinion is arbitrary, capricious, and contrary to law. On December 5, 2016, cormsel conveyed a settlement proposal to resolve the pending litigation containing the following points: 6 See 43 C.F.R. 7 Section 402 of the Reorganization Plan No. 3 of 1946. 60 Stat. 1097. 1099. See also 43 C.F.R. 8 Under 43 C.F.R. the BLM denial of the lease renewal application was basically a ministerial action after the USPS denied consent on the lease renewal application. On December 12. 2016, the govenmient ?led a Motion to Dismiss in response to the Complaint arguing that the M-Opinion was not a ?nal agency action subject to federal court review. On February 21, 2017. Twin Metals ?led a Supplemental and Amended Complaint that included the US. Department of Agriculture (USDA). the Forest Service, and the Forest Service Chief as Defendants and added additional claims speci?c to the Forest Service?s denial of consent and the rejection of lease renewal. Also 011 February 21? 2017. the district court granted environmental group Northeastern Minnesotans for Wilderness intervenor status in the lawsuit. After seeking and receiving multiple extensions of time? 011 June 5? 2017. the DOJ, with the assistance of the Solicitor?s Of?ce, ?led a second Motion to Dismiss. which argued that the Plaintiffs? claims amount to a contract action that may only be brought in the Court of Federal 4 Claims; (ii) the Plaintiffs cannot invoke the court’s jurisdiction under the Quiet Title Act, and (iii) the Forest Service’s decision to withhold consent to the renewal of the leases is not reviewable under the APA. Northeastern Minnesotans for Wilderness filed a separate Motion to Dismiss the same day. NEXT STEPS After two 30-day extensions, plaintiffs’ opposition to the United States’ motion to dismiss is now due on August 25, 2017. The United States’ reply brief is currently due September 8, 2017, but the United States will likely seek an extension. A hearing on the government’s and Northeastern Minnesotans for Wilderness’ Motion to Dismiss is currently scheduled for September 8, 2017, but will likely be rescheduled to later in the year. In the meantime, the BLM is compiling the administrative record for the lawsuit. 5 file:///C/.. klin/Desktop/test/55.%20Fwd_%20[EXTERNAL]%20Superior%20National%20Forest%20and%20Bound/3.1%20ATT00001.txt[2/20/2020 11:42:56 AM] American Canoe Association * Alaska Wilderness League * American Rivers * Black Hills Clean Water Alliance * Boise Idaho Chapter of Great Old Broads for Wilderness * Campaign to Save the Boundary Waters * Center for Biological Diversity Conservation Minnesota * Conservatives for Responsible Stewardship * Crow River Trail Guards * Defenders of Wildlife E.C. Oberholtzer Foundation * Earthjustice * Earthworks * Endangered Species Coalition * Environment America Environment Minnesota * Environmental Action * Environmental Law & Policy Center Environmental Protection Information Center * Freemans Explore LLC * Friends of the Boundary Waters Wilderness Friends of the Earth US * Great Old Broads for Wilderness * High Country Conservation Advocates * Hip Hop Caucus Kentucky Heartwood * Klamath Forest Alliance * League of Conservation Voters * League of Women Voters Duluth Mining Action Group of the Upper Peninsula Environmental Coalition * Mining Impact Coalition of Wisconsin Minnesota Center for Environmental Advocacy * Minnesota Division Izaak Walton League of America Minnesota Public Interest Research Group * National Parks Conservation Association Northeastern Minnesotans for Wilderness * Save Our Cabinets * Science & Environmental Health Network Sierra Club * Sierra Club North Star Chapter * The Conservation Alliance * The Wilderness Society UPEC Mining Action Group * Voyageurs National Park Association Thursday, May 31, 2018 The Honorable Ryan Zinke Secretary of the Interior U.S. Department of the Interior 1849 C Street, N.W. Washington, DC 20240 The Honorable Sonny Perdue Secretary of Agriculture U.S. Department of Agriculture 1400 Independence Avenue, S.W. Washington, DC 20250 Dear Secretaries Perdue and Zinke, We, the undersigned conservation organizations, write to express our grave concerns with the Department of Interior’s recent action to reinstate expired minerals leases held by Antofagasta’s Twin Metals Minnesota, and to request an immediate suspension of all mineral development authorizations in the Superior National Forest during the U.S. Forest Service’s on-going study of a proposed mineral withdrawal on 234,328 acres of public lands within the Rainy River watershed and adjacent to the Boundary Waters Canoe Area Wilderness. A suspension of all authorizations related to mineral development should include a halt to any action on the applications to renew the two now reinstated mineral leases, and any permitting, leasing, or other approvals by either the Bureau of Land Management or the Forest Service. As you are aware, the Forest Service study commenced on January 13, 2017, and began a two-year moratorium on new leasing activities. This study will be the basis for a decision by Secretary Zinke on the request by the Forest Service to withdraw from the federal mineral leasing program 234,328 acres of Superior National Forest lands for the maximum period of twenty years. Both Secretaries have voiced their support for the study. At a U.S. House hearing on May 25, 2017, Secretary Perdue responded to a question about the Forest Service study as follows: “...your statement there regarding the two-year study over the sound science.... [W]e are absolutely allowing that to proceed.” Secretary Zinke responded to a similar question during an April 11, 2018 U.S. House hearing as follows: “I agree that there are some areas that are too precious to mine.” 1 Even though the study will be completed by January 2019, the Department of Interior has moved aggressively to reinstate expired mineral leases within the very area being considered for a mineral withdrawal. This approach severely undercuts the study and violates the spirit of the two-year moratorium. It also disregards the Forest Service’s significant concerns, expressed in both the agency’s denial of consent to the renewal of the Twin Metals leases and in its application for the proposed withdrawal, that sulfide-ore mining is not an appropriate activity in the watershed of the Boundary Waters. It eliminates the public from involvement and goes against the will of 70% of Minnesotans. And it raises serious questions about the Department of Interior’s willingness to protect our most cherished public lands and waters from the threats of industrial development and irremediable contamination. The Boundary Waters is the most visited wilderness area in the country, spanning 1.1 million acres of interconnected waterways and forests in northeastern Minnesota. The Superior National Forest, which includes the Boundary Waters, contains 20 percent of all the freshwater in the 193 million-acre National Forest System. Downstream from the Boundary Waters are Voyageurs National Park and Canada’s Quetico Provincial Park. These wild lands are an important part of the regional economy, and much of the economic infrastructure – businesses, resorts, lodges, outfitters, campgrounds, homes, Boundary Waters entry points, and more – is located in the Boundary Waters watershed, the area under review in the Forest Service study. Proposals to transform this area to a sulfide-ore copper mining district would displace local residents and many businesses, resulting in a potential loss of more than 27,000 jobs, $1.4 billion in economic activity, and over $500 million in lost property value in northeastern Minnesota. Until the current Forest Service study, these and other environmental and socio-economic impacts of sulfide-ore mining in this area had never been studied or thoroughly vetted with the public. The National Environmental Policy Act (NEPA), which requires agencies to look before they leap, was enacted in 1970, several years after the Twin Metals leases were first issued. By analyzing scientific data, consulting the public, and considering alternative courses of action, NEPA supports informed decision making – here, whether sulfide-ore mining in the Boundary Waters watershed is an appropriate activity. We respectfully request that you allow appropriate space for that study to be completed in a rigorous, science-based, and transparent fashion. Reinstating 52-year-old leases in the middle of an on-going twoyear study considering how that very action could harm the Boundary Waters Canoe Area Wilderness simply makes no sense. Thus, we ask that you suspend all additional mineral development authorizations on the segregated lands to allow the Forest Service to fully analyze the environmental, economic, and social impacts of sulfide-ore mining in this unique ecosystem and landscape. We look forward to your response. Sincerely, American Canoe Association By Brett Mayer Alaska Wilderness League By Leah Donahey American Rivers By Brendan Mysliwiec 2 Black Hills Clean Water Alliance By Lilias Jarding, Ph.D. Boise Idaho Chapter of Great Old Broads for Wilderness By Pamela Conley Campaign to Save the Boundary Waters By Becky Rom Center for Biological Diversity By Marc Fink Conservation Minnesota By Nels Paulsen Conservatives for Responsible Stewardship By David Jenkins Crow River Trail Guards By Tom Koshiol Defenders of Wildlife By Katie Taylor E.C. Oberholtzer Foundation By Beth Waterhouse Earthjustice By Blaine Miller-McFeeley Earthworks By Aaron Mintzes Endangered Species Coalition By Tara Thornton Environment America By John Rumpler Environment Minnesota By Tim Schaefer Environmental Action By Sally King Environmental Law & Policy Center By Ann Mesnikoff Environmental Protection Information Center By Thomas Wheeler 3 Freemans Explore LLC By David Freeman Friends of the Boundary Waters Wilderness By Kara Josephson Friends of the Earth US By Nicole Ghio Great Old Broads for Wilderness By Lauren Berutich High Country Conservation Advocates By Matt Reed Hip Hop Caucus By Mark Antoniewicz Kentucky Heartwood By Jim Scheff Klamath Forest Alliance By Kimberly Baker League of Conservation Voters By Arian Rubio League of Women Voters Duluth By Gay Trachsel Mining Action Group of the Upper Peninsula Environmental Coalition By Kathleen Heideman Mining Impact Coalition of Wisconsin By Dave Blouin Minnesota Center for Environmental Advocacy By Kevin Lee Minnesota Division Izaak Walton League of America By Noreen Tyler Minnesota Public Interest Research Group By Mary Franz National Parks Conservation Association By Ani Kame'enui Northeastern Minnesotans for Wilderness By Jon Nelson 4 Save Our Cabinets By Mary Costello Science & Environmental Health Network By Ann C Manning Sierra Club By Athan Manuel Sierra Club North Star Chapter By Margaret Levin The Conservation Alliance By Josie Norris The Wilderness Society By Chris Rackens UPEC Mining Action Group By Kathleen Heideman Voyageurs National Park Association By Christina Hausman W. J. McCabe (Duluth) Chapter, Izaak Walton League of America By Richard Staffon Waterkeeper Alliance By Larissa Liebmann WaterLegacy By Paula G. Maccabee Weber Sustainability Consulting By Ivan Weber Wilderness Watch By Kevin Proescholdt Cc: Deputy Interior Secretary David Bernhardt Associate Deputy Interior Secretary Jim Cason Assistant Interior Secretary Joe Balash Special Advisor Kathy Benedetto Acting Eastern States Director Mitch Leverette Special Advisor Brian Klippenstein Acting USDA Deputy Under Secretary Dan Jiron Interim Forest Service Chief Vicki Christiansen Regional Forester Kathleen Atkinson Superior National Forest Supervisor Connie Cummins 5 U. S. Department of the Interior National Business Center Security Services Branch BUILDING ADMITTANCE REQUEST FROM MAIN & SOUTH INTERIOR BUILDINGS DOI requestor-employee’s only (print): James Hines Signature (if not sent electronically): ______________________________________________ Bureau/Office: Office of the Solicitor, Immediate Office Purpose of visit: Meeting with Karen Hawbecker, Deputy Solicitor Energy & Minerals Room visitors report to: SOL Conference Room #6340/6342 Date(s) and Time(s): May 8, 2018 (1:30-2:30pm) POC for visit: James Hines Phone #: (202) 208-4270 Alternate POC: Kimberley Edwards Phone #: (202) 208-6212 Name of escort (if necessary): _________________ Phone #: ________________ Visitors/Company: See Below - Daniel Altikes, Vice President, Antofagasta - Kevin Baker, Vice President of Legal Affairs, Twin Metals - Andy Spielman, WilmerHale - Kayla Byers, WilmerHale *Attach additional pages if necessary Internal Use Only Date & Time Received:____________ Method Received: __________ Authorized by:____________________________ Memo tracking#____________ File in ___________________________ notebook Pull from post on: __________ Goes to Posts: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Dispatch Page ______ of ______ Badge Type: Modernization Visitor Public Visitor Mtg Contractor Mineral Withdrawal: Superior National Forest The Forest Service is currently in the process of conducting an environmental study of a proposed 20 year withdrawal of mineral leasing in the Superior National Forest, within the watershed of the Boundary Waters Canoe Area Wilderness and Voyageur’s National Park. The Service has collected extensive public input, and recently announced that they will be conducting an Environmental Assessment, as they expect to report to the Bureau of Land Management that there is no significant adverse impact of a 20-year withdrawal of leasing. McCollum Q65: In his testimony before the Subcommittee, Secretary Zinke affirmed that some places are too precious to mine. If the Forest Service finds that there is no significant impact of the withdrawal in the Superior National Forest, will that be enough for the Department to move forward on a 20-year ban on mining in this unique, precious, and vulnerable watershed? If not, what are the factors that the Bureau of Land Management will consider when making their decision? McCollum Q66: What factors make a place inappropriate for mining? What information would the Department need to conclude that sulfide-ore mining is not appropriate in this watershed? McCollum Q67: Is the Secretary aware that 92 percent of sulfide-ore copper mines operating in the United States have experienced failures that impact water quality? Does the Secretary agree that with this record of failure, sulfide-ore mining is particularly risky in a vast, interconnected watershed like the one that flows north through the Boundary Waters, into Voyageurs National Park, and across the border into a Canadian Provincial Park? McCollum Q68: Prior to making a decision on the withdrawal, will the Secretary and the BLM assess the potential economic consequences to the region if acid mine drainage causes significant damage to the waterways, aquatic life, and forests within the watershed? McCollum Q69: Prior to making a decision on the withdrawal, will the Secretary and the BLM consider the costs to the taxpayer that would come from having to clean-up public lands after a discharge, leakage or spill from a sulfide mine—all of which are common events for this industry? 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 ALTERNATIVE ROYALTY SYSTEMS MINNESOTA FEDERAL HARDROCK MINERALS . le of ontents Final Draft Report - September 10, 2013 - For Internal Discussion Purposes Only Fina! 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 Purposes Only Final Draft Report September 10, 2013 - For Internal Discussion Purposes Only Final Draft Report September 10, 2013 - For Internal Discussion Purposes Only Finai 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 Purposes Only 10 Final Draft Report - September 10, 2013 - For Internal Discussion Purposes Only Final Draft Report ?September 10, 2013 - For lnternal Discussion Purposes Only 3. TYPES OF ROYALTY SYSTEMS Production-Based Royalty The term royalty originally meant the ?of?ce or position of a sovereign,? and later developed the ?rights granted by a sovereign to an individual.? From this comes the more general ?payment to a landowner for use of a mine.? In the historical practice of a production share royally, the sovereign (royals) received a share of the actual minerals produced. For example, 18?1 century colonists were required to pay a royalty of one-fifth of all metals or minerals produced in Spanish America to the King of Spain. Production-based royalty is simple to administer; the lessor pays a royalty based on the production taken from the mine. The lessor may have a direct need or use for the minerals, like ?lling a strategic stockpile, or sell the production to the market, becoming a minerals broker. 7 The term rent here refers to a per-lease or per-acre fee imposed on the lessee, not to be confused with economic rent, or consumer surplus mentioned prior. 12 Final Draft Report September 10, 2013 - For Internal Discussion Purposes Only Nearly all other royalty schemes can be categorized according to the ?base? and the ?rate? used. The base to which the royalty is applied is interdependent with the rate applied to that base. Ad Valorem Royalty An ad valorem royalty (meaning ?according to value? in Latin) is based on the value of the resource. The lessor pays a royalty based on a percentage of the sale proceeds and may vary among jurisdictions, depending on the royalty base (or value upon which the percentage is applied) and the royalty rate (or percentage itself). Royalty Bases Royalty bases fall into three general categories: 1. Unit of Production The base is usually a physical measure, such as a ton or cubic yard, with royalty calculated at .cents 01' dollars per unit. This is commonly used with low-value materials such as sand and gravel, where the value varies little between units and where little processing is required to bring the product to the normally marketed form. The production units calculation is simple because units are easy to measure and verify. However, if a ?xed rate is used, in?ation and Commodity price ?uctuations are not captured. 2. Gross Value and Gross Income Royalty is based on the gross value of the minerals produced. For hardrock minerals mining, this is typically the gross revenue less transportation and re?ning costs, since the gross value implies an arms-length transaction. The NSR royalty system is commonly used and is synonymous with a gross value approach in most metal mining districts. Mining output sold requires further processing by smelters, such that the mining products are sold directly to the smelters at a discounted (net) price based on how much further processing is needed, hence the term ?net smelter return.? Another approach to determining the royalty base is based on ?gross income? as de?ned in the context of the percentage depletion allowance under federal tax laws. The percentage depletion allowance is one of several tax preferences or subsidies available to a mining ?rm. Tax laws de?ne gross income from mining as the mining company?s revenue from the sale of the ?rst marketable mineral product created as a result of mining, before any non-mining processes manufacturing processes such as re?ning or smelting) are applied. The main reason for considering this royalty base is that, not only is gross income under the tax depletion rules consistent with the economic concept 13 Final Draft Report -September 10, 2013 - For Internal Discussion Purposes Only of an ad valorem royalty, but the legal and regulatory apparatus are in place. The fact that the existing administrative structure is in place would tend to reduce the costs of industry compliance and Government administration of the royalty system. This royalty base has been suggested in past royalty debates and was the base proposed in legislation considered in the early 19903. Additional details can be found in appendix 1. The gross value and gross income approaches imply an arms-length sales transaction. If truly arms-length, there can be little disagreement between the lessor and the lessee in calculating the royalty due. However, it is dif?cult to verify sales prices and deductions in vertically integrated operations, where no arms-length transactions exist. The gross approaches are the simplest method that considers, however imperfectly, the ability to pay. The lessor receives revenue, even if the operation is losing money; however, it may reduce the size of economic ore reserves, as it is a cost of mining whether the operator is making a pro?t or not. In practice, many so?called gross value systems allow some costs to be deducted, thereby increasing the cost of administration and effectively decreasing the royalty base. NSR works best when the material is sold arms-length to a custom smelter, and may be dif?cult to administer if the mining company owns the smelter. Note: NSR, as a term, is awkward when no smelter is used, as in solvent extraction and electro-Winning (SX-EW) or other hydrometallurgical processes, but the concept is still valid. 3. Net Value Net value systems or net revenue royalties provide for the deduction of most costs, including mining, milling, concentration and smelting costs from sales revenue in deriving the royalty base. The level of allowable deductions can vary depending on the system and what costs may be netted out. Net value systems help assure that royalty payments are based on ability to pay. They may not increase ore cut-off grade or otherwise reduce the size of economic ore reserves because when pro?ts are low, so is the royalty due. They shift more of the risk away from the producer to the Government. Net value systems encourage exploration and development in areas where costs and risks are relatively higher than in jurisdictions which base royalties on gross value. Administrative costs may be very high. Royalty Rates 1. ?xed Royalty Rates Fixed dollar value per unit of production. This was discussed under ?unit of production? royalty base, above, and ignores changes in the value of the mineral produced, either real or in?ationary. This approach is usually satisfactory only if the simplicity criterion is of greatest importance or where the mineral is of low value and the risk of loss is low. 14 Final Draft Report September 10, 2013 For internal Discussion Purposes Only Fixed percentage of production value. Fixed percentage ensures that royalties will automatically adjust for changes in output value. If a ?xed rate is applied to a net value, it can distinguish between real and in?ationary increases, inasmuch as royalty payments will then only increase when revenues rise relative to costs. Fixed rates are ?fair? in the sense that every unit of output is taxed equally and is subject to the same royalty rate. 2. Variable Royalty Rates Variable royalty rates are most commonly applied to some measure of production value or pro?tability. Variable rates can allow the mineral owner to capture more revenue when commodity prices are relatively high or when an operation is relatively more pro?table. In comparison to a ?xed rate system, this system should more closely achieve both fair market return for resource utilization and mineral conservation through lower royalties on marginal ore. For a variable royalty to function properly, it is necessary to de?ne a royalty base that will both re?ect changes in commodity prices and mine pro?tability, and be readily measurable. Three alternatives have been used: I Ore Value: The royalty rate may be based on ore value in dollars per ton, as in the Minnesota State system. Ore value per ton relates well to pro?tability, but this metric is not easily obtained, since it may require price and cost data from the lessee. An in?ation adjustment factor (as used by Minnesota) could be applied to mineral prices used to ensure that the real value of the royalty rate remains constant. 0 Product Price: Since commodity prices relate well to pro?tability, the royalty rate is set to ?oat with changes in the commodity price. An in?ation adjustment factor could be applied if the goal was a royalty based in terms of real values. - Ore Quality: Ore quality correlates well with pro?tability and can be checked and veri?ed. However, changes in product price aren?t considered directly, and no allowance is made for production cost differences between mines. 4. CHARACTERISTICS OF HARDROCK MINERAL DEVELOPMENT AFFECTING SELECTION OF ROYALTY SYSTEMS The State of Minnesota Royalty Regime The state of Minnesota has developed a mineral leasing program based on the net return value (NRV) of the minerals mined. Functionally, this system is similar to but more complex than a net smelter return. Royalty is computed on the dry weight of the crude ore. The royalty rate is the sum of the ?base rate? and an additional ?bid rate?: 15 Final Draft Report September 10, 2013 - For Internal Discussion Purposes Only Royalty [(base royalty rate)*PPI (bid rate)] (value of dry weight of mineral ore recovered at the smelter allowable charges) The base rate varies from a minimum of 3.95 percent to a maximum of 20_ percent, based on the NRV of the minerals recovered from each ton of ore mined. The base rate is determined from a Base Royalty Rate Table, which is attached to the lease. The base rate as shown in the table varies from the 3.95 percent minimum royalty, when the NRV per ton of the dry crude ore is $75 or less, to 20 percent when the NRV is greater than $444 per ton. The base rate is adjusted based on changes in the Producer Price Index for All Commodities. The bid rate is the rate that was bid by a lessee and accepted by the lessor at a competitive lease sale, where parcels are auctioned through a sealed-bid process to the bidder offering the highest royalty rate. At the October 24, 2012, Minnesota Metallic Minerals Lease Sale, the royalty bids varied from 3.3 percent to 6.5 percent. Determination of Base Rate Using RV and the Base Royalty Rate Table If the ?nal mineral product is recovered in a smelter, the NRV of metals recovered in each ton of dried crude ore is determined by multiplying the total pounds or troy ounces of each metal recovered in the mill concentrate during the month by the average ?Metals Week? market price, for each fully re?ned metal. Allowable charges may be subtracted from that total, including: 1) the base smelter treatment and re?nery charges; and (2) the smelter losses, refinery losses, and penalties for impurities that are deducted from the assay or market values. (Transportation costs are not allowable charges.) The NRVs thus obtained for each metal are then summed, and the sum is divided by the total number of tons of dried crude ore from the mining unit concentrated in the mill during the month. The resulting total NRV of the dried crude ore is then matched on the Base Royalty Rate Table with its corresponding ?nal base royalty rate. This base rate is then added to the bid rate to determine the total royalty rate for the month. If the ?nal mineral product is recovered in a hydrometallurgical process, or in a combination hydrometallurgical and pyrometallurgical process, the NRV of metals recovered from each ton of dried crude ore is determined by multiplying the total pounds or troy ounces of each metal in the ?nal metal product recovered from the mining unit during the month from a hydrometallurgical process, or in a combination hydrometallurgical and pyrometallurgical process by the average ?Metals Week? market price, for each fully re?ned metal. Allowable charges which may be subtracted from that total are charges attributable to recovery of dissolved metal from the leaching solution by chemical puri?cation, pressurization, roasting 16 Final Draft Report September 10, 2013 - Forr Internal Discussion Purposes Only of concentrate, melting of concentrate, ?ltration, absorption, solvent extraction, cvapOration, distillation, electrolysis, ion exchange, or precipitation. (Transportation costs and charges attributable to the direct leaching of ores for recovery of metals, or to the separation of the leaching solution from the spent ore are not allowable charges.) The NRVs thus obtained for each metal are then summed, and the sum is divided by the total number of tons of dried crude ore from the mining unit processed by hydrometallurgy or by a combination of hydrometallurgy and pyrometallurgy. The resulting total NRV of the dried crude ore is then matched on the Base Royalty Rate Table to the corresponding ?nal base royalty rate. This base rate is then added to the bid rate to determine the total royalty rate for the month. In either case, to determine the total royalty due, the total royalty rate is multiplied by the total NRV of the dry weight of the crude ore mined during the month. The State may grant a partial deferral of up to one-half of the royalty due during the ?rst 5 years of the mine life. 17 Final Draft Report September 10, 2013 - For Internal Discussion Purposes Onty Final Draft Report September 10, 2013 - For Internai Discussion Purposes Only 19 Final Draft Report - September 10, 2013 - For Internal Discussion Purposes Only Final Draft Report - September 10, 2013 For Internal Discussion Purposes Only 21 Final Draft Report September 10, 2013 - For Internal Discussion Purposes Only Final Draft Report September 10, 2013 - For Internal Discussion Purposes Only 23