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;
and
FRIENDS OF THE BOUNDARY WATERS
WILDERNESS, 401 North Third Street, Suite 290
Minneapolis, MN 55401-1475; and
NORTHEASTERN MINNESOTANS FOR
WILDERNESS, PO Box 625, Ely, MN 55731; ELY
OUTFITTING COMPANY & BOUNDARY WATERS
GUIDE SERVICE, 529 East Sheridan Street, Ely, MN
5573; HUNGRY JACK OUTFITTERS, 318 S Hungry
Jack Road, Grand Marais, MN 55604; NORTHSTAR
CANOE, 1506 14th Street S, Princeton, MN 553712317; PIRAGIS NORTHWOODS COMPANY, INC.,
105 N Central Avenue, Ely, MN 55731-1210; RIVER
POINT RESORT AND OUTFITTING COMPANY, PO
Box 397, Ely, MN 55731-0397; SAWBILL CANOE
OUTFITTERS, INC. 4620, Sawbill Trail, Tofte, MN
55615; VOYAGEUR OUTWARD BOUND SCHOOL,
1007 Spruce Road, Ely, MN 55731; WENONAH
CANOE, INC., 1252 Bundy Blvd, Winona, MN 559874872; and WOMEN’S WILDERNESS DISCOVERY,
429 East Sheridan Street, Ely, MN 55731.
Plaintiffs,
v.
DAVID BERNHARDT, in his official capacity as
Secretary of the Interior, 1849 C Street NW,
Washington, DC 20240; BUREAU OF LAND
MANAGEMENT, 1849 C Street NW, Rm. 5665,
Washington, DC 20240; GARY TORRES, in his official
capacity as Acting Eastern States Director for the
Bureau of Land Management, 20 M Street SE Suite 950,
Washington, DC 20003; CASEY HAMMOND, in his
official capacity as Acting Assistant Secretary for Land
and Minerals Management for the U.S. Department of

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Case No. ___________

COMPLAINT FOR
DECLARATORY AND
INJUNCTIVE RELIEF
(5 U.S.C. §§ 701-706; 42 U.S.C. §
4321 et seq)

 the Interior, 1849 C Street NW, Washington, DC 20240;
DEAN GETTINGER, in his official capacity as District
Manager for the Northeastern States District for the
Bureau of Land Management, 10406 Gunston Road,
Lorton, VA 22079; U.S. DEPARTMENT OF THE
INTERIOR, 1849 C Street NW, Washington, DC 20240;
U.S. FOREST SERVICE, 201 14th Street, SW,
Washington, DC 20024; U.S. DEPARTMENT OF
AGRICULTURE, 1400 Independence Ave., S.W.,
Washington, DC 20250; and VICTORIA
CHRISTIANSEN, in her official capacity as Chief of
the U.S. Forest Service, 201 14th Street, SW,
Washington, DC 20024.
Defendants.

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INTRODUCTION
1.

Plaintiffs challenge the Bureau of Land Management’s failure to comply with the

National Environmental Policy Act when it issued two hardrock mining lease renewals to Twin
Metals Minnesota in an area adjacent to the Boundary Waters Canoe Area Wilderness, a 1.1million-acre pristine wilderness area in northeastern Minnesota that has been protected for nearly
100 years. Plaintiffs also challenge under the Administrative Procedures Act the U.S. Forest
Service’s arbitrary and capricious approval of lease stipulations that promote development of a
mine on the leases without precluding the impacts the Forest Service previously found would
pose unacceptable risks to the Boundary Waters.
2.

The Boundary Waters Canoe Area Wilderness (“Boundary Waters”) is renowned

for its healthy forests, extremely high water quality, and networks of pristine lakes, streams,
wetlands, and canoe routes. Together with the Quetico Provincial Park to the north of the
Boundary Waters and Voyageurs National Park to its west, the area includes multiple thousands
of interconnected lakes, streams, and waterways, surrounded by pristine forests. The Boundary
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 Waters offers abundant habitat for wildlife, including iconic Minnesota species like walleye,
moose, and loon, many species of migratory birds, as well as three species listed as threatened
under the Endangered Species Act: the Canada lynx, northern long-eared bat, and gray wolf.
Shown in the image below is the striking beauty of a typical waterway and surrounding forest in
the Boundary Waters.

3.

Twin Metals Minnesota (“Twin Metals”) is pursuing development of an

underground copper and nickel mine on lands managed by the Forest Service in the Superior
National Forest within three miles of the Boundary Waters and in the same watershed. The photo
below shows an aerial view of the area on which Twin Metals plans to build a mine.

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The Wilderness Society et al. v. Bernhardt et al.,
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 4.

The Bureau of Land Management (“Bureau”) first issued two preference right

hardrock mineral leases (“Leases”) to the International Nickel Company, Twin Metals’
predecessor, in 1966. Since then, other Twin Metals predecessors filed for two renewals of the
Leases, which the Bureau renewed in 1989 and 2004. Twin Metals submitted its application to
renew the Leases for a third time in 2012. Believing it had discretionary authority to grant or
deny the Lease renewal, the Bureau requested that the Forest Service provide its opinion as to
whether it would consent to the renewal of the leases under 16 U.S.C. § 508b, which states that
the Bureau “shall not . . . permit[]” development and utilization of mineral deposits in the State
of Minnesota “except with the consent of the Secretary of Agriculture.”
5.

The Forest Service withheld its consent. In a detailed letter, the Forest Service

found that developing a copper-nickel sulfide ore mine on the Leases would pose an
“unacceptable” risk that the mine might “cause serious and irreplaceable harm” to the Boundary
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 Waters. The Forest Service found that the development of a regionally untested copper-nickel
sulfide ore mine within the same watershed as the Boundary Waters posed an unacceptable risk
of serious and irreversible harm to this unique, iconic, and irreplaceable wilderness area. Based
on the Forest Service’s refusal to consent, the Bureau accordingly rejected the Lease renewal
application on December 15, 2016.
6.

On December 22, 2017, more than one year later, the Department of the Interior

Solicitor’s Office issued a legal opinion reversing course and asserting that the Bureau lacked
discretion to reject the renewal application because the terms of the prior Leases guaranteed
renewal. In light of this 2017 legal opinion, the Bureau rescinded the decision to reject Twin
Metals’ renewal application and reinstated the Leases and renewal applications on May 2, 2018.1
7.

In a subsequent and separate agency action, on May 15, 2019, the Bureau

renewed the Leases for an additional ten-year period. Even assuming that the decision to renew
the Leases was not discretionary, the Bureau did have discretion in crafting the terms of the
Leases, including the ability to add lease stipulations increasing protection of the environment.
8.

The National Environmental Policy Act (“NEPA”) requires that agencies take a

“hard look” at the environmental impacts of their actions before the actions occur, and that they
prepare an Environmental Impact Statement (“EIS”) for “major Federal actions significantly
affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); Kleppe v. Sierra Club,
427 U.S. 390, 410 n.21 (1976). Courts have clarified that in the mineral leasing context, an
agency must prepare an EIS analyzing the ultimate effect of mineral development when it issues
a lease without reserving absolute authority to prevent development on the lease.
1 Plaintiffs challenged the final agency action reinstating the Leases in Voyageur Outward Bound
Sch. v. United States, No. 1:18-CV-01463 (TNM), 2020 WL 1275795 (D.D.C. Mar. 17, 2020),
and have appealed the court’s judgment upholding that agency action, appeal docketed No. 205097 (D.C. Cir. Apr. 20, 2020).
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 9.

By renewing Twin Metals’ Leases, the Bureau committed to allowing mining on

the Leases and did not reserve absolute authority to prevent development. The agency did not
prepare an EIS as required by NEPA, however. Instead, the Bureau prepared an Environmental
Assessment (“EA”)—a document limited to determining the threshold question of whether an
action will have significant impacts on the environment. The EA did not evaluate the impacts of
the associated proposed mine, nor did it meaningfully consider lease stipulations that would have
mitigated the impacts of the mine. By failing to prepare an EIS, which would have taken a hard
look at the environmental impacts of a mine on the doorstep of the pristine Boundary Waters, in
the context of a decision that could prevent or reduce that impact, the Bureau violated NEPA.
10.

The Administrative Procedures Act (“APA”) requires that when an agency

changes position, it must articulate a rational justification. The Forest Service never withdrew its
December 2016 finding that allowing development of a mine would pose unacceptable
ecological risks to the Boundary Waters. Nevertheless, the Forest Service agreed to new lease
stipulations that do not preclude such unacceptable risks and instead are aimed at promoting
quick development of a mine on the Leases, and to a stipulation that curtails the agency’s ability
to withhold consent to future lease renewals. The Forest Service’s decision to agree to these
stipulations without rationally explaining the departure from its prior position was arbitrary,
capricious, and not in accordance with law.
JURISDICTION AND VENUE
11.

The Court has subject matter jurisdiction over Plaintiffs’ claims pursuant to

28 U.S.C. § 1331 and under the APA, 5 U.S.C. §§ 701-06, which waives the Defendants’
sovereign immunity. The Court may issue a declaratory judgment and further relief pursuant to

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 28 U.S.C. §§ 2201-2202 and 5 U.S.C. §§ 705-706. There exists an actual controversy between
the parties within the meaning of 28 U.S.C. § 2201.
12.
Venue is appropriate under 28 U.S.C. § 1391(e) because at least one Defendant
resides in the District of Columbia and because Plaintiff The Wilderness Society resides in the
District of Columbia.
PLAINTIFFS
13.

Plaintiff The Wilderness Society, founded in 1935, is a national, non-profit

membership organization headquartered in Washington, D.C., 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 sulfideore 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 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.
14.

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 40,000 members and about 200 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
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The Wilderness Society et al. v. Bernhardt et al.,
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 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 decision makers, 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.
15.
Plaintiff Center for Biological Diversity (“the Center”) is a non-profit
organization with over 74,000 members. The Center is headquartered in Tucson, Arizona, and
has offices across the United States, including in Duluth and Minneapolis, Minnesota, and
Washington, D.C. 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
in order 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 long
advocated for northeastern Minnesota’s animal and plant species in administrative processes and
in court, including by commenting on mining-related 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.
16.

Plaintiff Friends of the Boundary Waters Wilderness (“Friends”) is a Minnesota

non-profit corporation with a mission “[t]o protect, preserve and restore the wilderness character
of the Boundary Waters Canoe Area Wilderness and the Quetico-Superior Ecosystem.” Founded
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 by Miron “Bud” Heinselman, a preeminent scientist and researcher for the Forest Service,
Friends was the principal organization that promoted passage of the 1978 Boundary Waters
Canoe Area Wilderness Act (“the Boundary Waters Act”), which increased the size of the
Boundary Waters to approximately 1.1 million acres and removed incompatible uses from the
Boundary Waters, and protected the Boundary Waters through an independent federal statute.
Pub. L. 95-495, 92 Stat. 1649.
17.
Friends has been involved in nearly every significant litigation involving the
Boundary Waters since its founding. These include cases defending the constitutionality of the
1978 Boundary Waters Canoe Area Act, cases challenging the Forest Service’s Forest
Management Plans for the Superior National Forest and proposed timber sales adjacent to the
Boundary Waters, and many others that would have adversely impacted the serene wilderness
character of the Boundary Waters and surrounding areas. Through its “No Boundaries to the
Boundary Waters” program, since 2007, Friends has sponsored 600 underserved children to visit
the Boundary Waters free-of-charge. Friends’ members have an interest in maintaining and
improving the ecological diversity of wilderness habitat of the Boundary Waters and greater
Superior-Quetico ecosystem, including the land at issue in this case. Friends’ members include
residents who own land and houses near the leased land on which Twin Metals seeks to open a
mine. Friends’ members regularly visit and plan to visit the Boundary Waters, the leased land,
and/or areas surrounding the leased land, and use those lands for various purposes, including
recreation, wildlife viewing, canoeing, fishing, photography, and/or other aesthetic enjoyment.
18.
Plaintiff Northeastern Minnesotans for Wilderness (“NMW”) is a non-profit, taxexempt, 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 Boundary Waters and
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 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 Boundary Waters, against increasing
commercial pressures, so that the area’s natural features and processes remain intact for future
generations.
19.

NMW has approximately 23,500 members, all of whom have contributed

financially, and more than 185,000 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 Boundary Waters, as well as
in Voyageurs National Park. They have a long-standing interest in lynx, moose, wolf, and forest
conservation, both in the Boundary Waters and across the Superior National Forest. NMW
members and staff regularly visit the Boundary Waters, Voyageurs National Park, the Superior
National Forest, and surrounding areas for recreation, wildlife observation, and other uses. Many
NMW members plan to visit the Boundary Waters over the coming days, weeks, months, and
years.
20.

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 Boundary Waters. A significant percentage of Ely Outfitting’s customers enter
the Boundary Waters 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.

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 21.

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. The clients and customers of Hungry Jack come from all across the globe, and
from a wide range of socio-economic backgrounds, to visit the Boundary Waters and
surrounding areas.
22.
Plaintiff Northstar Canoes is a canoe-manufacturing business located in Princeton,
Minnesota. Founded in 2014, Northstar Canoes manufactures canoes and sells them directly to
outfitters and retailers. Northstar Canoes sells around 200 canoes each year to outfitters, most of
which are located in or near the Boundary Waters and in the Midwest. The company employs, off
and on, about 20 full-time and part-time individuals. Northstar Canoes’ business depends largely
on the Boundary Waters—so much so that it focuses about 90 percent of its advertising on the
Boundary Waters area.
23.
Plaintiff Piragis Northwoods Company, Inc. (“Piragis Northwoods”) is a canoetrip outfitting and guide business located in Ely, Minnesota. Founded in 1979 to serve the needs
of wilderness canoe paddlers visiting the Boundary Waters 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.
24.

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

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 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 Boundary Waters. River Point’s outfitting
business includes more than 100 canoes, and it outfits more than 775 people traveling in the
Boundary Waters 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 Boundary Waters in the Ely area.
25.
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
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 Boundary Waters
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 Boundary
Waters, the area’s natural beauty, the clean air, the quiet, and the wilderness setting.
26.
Plaintiff Sawbill Canoe Outfitters, Inc. (“Sawbill”) is a family-owned canoe
outfitting business located in a remote, off the grid location on the Sawbill Trail north of Tofte,
Minnesota. Sawbill provides outfitting services to clients entering the Boundary Waters. In
addition to operating an outfitting shop and store, Sawbill issues Boundary Waters entry permits
and 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
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 their trips. Many customers also choose to stay onsite at the campground and complete day trips
into the Boundary Waters. Sawbill relies exclusively on visitors to the Boundary Waters 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.
27.

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 Boundary
Waters. VOBS expeditions bring more than 600 people a year into the Boundary Waters. 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
students. The pristine wilderness setting provided by the Boundary Waters is a critical aspect of
the VOBS expeditions.
28.
Plaintiff Wenonah Canoe, Inc. (“Wenonah Canoe”) is an independent, familyowned corporation that is one of the largest manufacturers of Kevlar canoes in the world.
Founded in the early 1970s in Winona, Minnesota, Wenonah Canoe employed nearly 100 people
in 2019 and produced more than 4,000 canoes and kayaks per year. Wenonah Canoe has many
customers who frequent the Boundary Waters area, and 25 percent of its canoes are sold in
Minnesota.
29.

Plaintiff Women’s Wilderness Discovery, LLC (“Women’s Wilderness

Discovery”) was founded in March 2014 as the only female-owned, female-packed, female-

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 guided professional outfitting and guide business in Ely, Minnesota. Women’s Wilderness
Discovery provides year-round, fully outfitted, and guided Boundary Waters canoe camping,
hike camping, day canoe trips, 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.
30.
Each of the Plaintiff organizations has individual members, customers, owners,
employees, and clients (hereinafter, “Plaintiffs and Plaintiffs’ members”) who regularly use and
enjoy the Boundary Waters and Superior National Forest for a variety of purposes, including
canoeing and outdoor recreation, wildlife viewing, cultural and spiritual purposes, and aesthetic
appreciation. Plaintiffs’ and Plaintiffs’ members value the remoteness, beauty, and largely
unspoiled nature of the landscape and the ecological and hydrological resources found
throughout the Boundary Waters and Superior National Forest, including the area covered by the
Leases.
31.

Members of Plaintiff organizations, including John Ipsen and Jon Nelson,

members of The Wilderness Society and the League, and Collette Adkins, a member of the
Center for Biological Diversity, regularly use and enjoy 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 aesthetic and spiritual enjoyment. These
members intend to continue to use and enjoy the Boundary Waters, for example, during planned
trips in summer 2020. 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.

COMPLAINT
The Wilderness Society et al. v. Bernhardt et al.,
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 32.

The Bureau’s May 15, 2019 decision to renew Twin Metals’ Leases directly and

imminently injures Plaintiffs’ and Plaintiffs’ members’ interests. Renewing the Leases entitles
Twin Metals to casual use of the leased lands and to request permits for more extensive use of
the leased lands. After the reinstatement of the Leases, Twin Metals installed gates at entrances to
public land on the Leases. Since renewal of the Leases, Twin Metals has engaged in further
activities on the leased land, including (but not limited to): the clearing of trees; widening and
hardening of roads; sealing up exploratory boreholes, including backfilling holes with cement;
maintaining hydro-geological wells; and limiting access to the leased land by closing and locking
gates. These industrial activities interfere with Plaintiffs’ and 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. The Boundary Waters, among other protected land and waters, would be in the path of
pollution if a mine complex is developed. The development of a sulfide-ore copper mine in the
watershed would inevitably pollute surrounding lakes, groundwater and downstream waters in
the Boundary Waters, and both the quality and public image of the Boundary Waters as an
authentic, pure, natural outdoor recreational paradise—“[t]he last great pure experience,” as the
Ely, Minnesota Chamber of Commerce calls it—would be harmed. Routes that include or cross
the pollution flow path downstream from the mine site would effectively bisect the Boundary
Waters. These circumstances would dissuade Plaintiffs and Plaintiffs’ members from visiting the
leased land and surrounding lands. Plaintiffs and Plaintiffs’ members will in fact be dissuaded
from visiting the Boundary Waters, and the value of their experiences will be reduced when they
do.

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The Wilderness Society et al. v. Bernhardt et al.,
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 33.

Plaintiffs and Plaintiffs’ members live, work, and recreate in and around the

federal lands at issue in this case. They will be harmed by the development of a copper-nickel
sulfide ore mine on the Leases. A copper-nickel sulfide ore mine on the Leases would cause
long-term harm to Plaintiffs’ and Plaintiffs’ members’ interests in the leased land and
surrounding lands, including the Boundary Waters and areas accessible via the nearby Boundary
Waters entry points, through increased noise, increased traffic, and visible degradation of the
landscape on the leased lands. It would damage Plaintiffs’ and Plaintiffs’ members’ aesthetic,
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 (but not be limited to): 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, traffic, air pollution, and light pollution;
increased risk of the spread of invasive species; and degradation of air quality. Drainage of mine
pollution 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. Plaintiffs’ members have already suffered economic damage in
the form of decreased property values and a depressed market for owned residences and lands in
the area, which largely depends on maintaining the area’s wilderness character. A mine would
also deprive Plaintiffs and Plaintiffs’ members of access to the leased lands during the life of the
mine, if not beyond. These harms are imminent and flow from the decision to renew Twin
Metals’ Leases.
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 34.

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 15, 2019 decision to renew Twin Metals’ Leases
will directly injure these interests.
35.
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.
36.

Plaintiffs and Plaintiffs’ members also have a substantial interest in ensuring that

the Bureau complies with federal law, including the procedural requirements of NEPA and the
APA. Plaintiffs’ injuries are actual and concrete and would be remedied by the relief sought in
this case.
37.

Sulfide-ore copper-nickel mining will leave Plaintiff and Plaintiff member

property owners with devalued land, and those with homes or businesses dependent upon the
Boundary Waters will be forced to sell their property at steep discounts or close their doors. If 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. The
development of the mine would cause some of Plaintiffs’ members to move away from their
current homes.
38.
To prevent these harms, various 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.
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 § 3507.19(b); 43 U.S.C. § 1732(a). The Federal Land Policy and Management Act (“FLPMA”)
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 find that it is in the best interests of the United States and to
obtain the consent of the Forest Service. 16 U.S.C. § 508b. The Forest Service has statutory
duties to consider wilderness, habitat, recreational, spiritual, non-extractive business, and other
non-mining values 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
Plaintiff groups and their members in the Boundary Waters, the leased land, and the areas
surrounding the leased land.
39.
Plaintiffs participated extensively in the Bureau’s administrative process,
including commenting on the Environmental Assessment for the lease renewals. Plaintiffs have
exhausted administrative remedies.
DEFENDANTS
40.

Defendant David Bernhardt is sued in his official capacity as Secretary of the

Interior. Secretary Bernhardt heads the U.S. Department of the Interior, the Cabinet-level agency
responsible for the Lease renewals.
41.
Defendant Bureau of Land Management is an agency of the U.S. 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.
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 42.

Defendant Gary Torres is sued in his official capacity as Acting Eastern States

Director for the Bureau of Land Management. The Eastern States Director for the Bureau of
Land Management signed the Decision Record approving the Lease renewals.
43.
Defendant Dean Gettinger is sued in his official capacity as District Manager for
the Northeastern States District for the Bureau of Land Management. Mr. Gettinger signed the
Finding of No Significant Impact for the Lease renewals.
44.
Defendant Casey Hammond is sued in his official capacity as Acting Assistant
Secretary for Land and Minerals Management for the United States Department of the Interior.
The Assistant Secretary for Land and Minerals Management for the U.S. Department of the
Interior signed the Lease renewals Decision Record after the Eastern States Director for the
Bureau of Land Management, concurring in that decision and making it final agency action.
45.
Defendant U.S. Department of the Interior is a Cabinet-level agency that manages
the country’s natural and cultural resources.
46.
Defendant U.S. Forest Service is an agency of the U.S. Department of Agriculture
and is responsible for the management and protection of the Superior National Forest and
Boundary Waters Canoe Area Wilderness. In that capacity, the Forest Service has jurisdiction and
responsibility to protect and maintain the character and quality of the Boundary Waters Canoe
Area Wilderness and to withhold consent to any mineral leasing that it finds would adversely
affect the Boundary Waters.
47.
Defendant U.S. Department of Agriculture is a Cabinet-level agency that is
responsible for the management and protection of the Superior National Forest and Boundary
Waters Canoe Area Wilderness.
48.
Defendant Victoria Christiansen is sued in her official capacity as Chief of the
Forest Service.

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 LEGAL BACKGROUND
I.

STATUTORY AND REGULATORY REQUIREMENTS FOR ENSURING
ENVIRONMENTAL PROTECTION PRIOR TO ISSUING MINERAL LEASES
ON PUBLIC LAND
49.

Mineral leasing on more than ninety percent of the land that is the subject of the

Leases at issue in this case is governed by 16 U.S.C. § 508b. This statute allows the Secretary of
the Interior to permit mineral prospecting, development, and utilization on certain lands in the
national forests in Minnesota otherwise withdrawn from the mining laws of the United States,
but requires that the Secretary of the Interior act in the best interests of the United States. Id. The
Secretary of the Interior “shall not” permit mineral development or utilization on § 508b lands
without the consent of the Secretary of Agriculture. Id.
50.
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, the Boundary Waters Act, and the National Forest Management Act (“NFMA”).
The Wilderness Act charges the Forest Service with 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. 95495, §§ 1-2, 92 Stat. 1649 (1978). NFMA requires the Forest Service to consider wilderness,
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).
51.
Mineral leasing on the remainder of the land that is the subject of the Leases is
governed by the Weeks Act, 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
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 Weeks Act. Id. In doing so, the Secretary of Agriculture must act in the best interests of the
United States. Id. Section 402 of the 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, must consider environmental impacts before
granting a lease under Section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099. 43
C.F.R. § 3507.19(b).
52.
The 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.
53.
16 U.S.C. § 508b, 16 U.S.C. § 520, Section 402 of Reorganization Plan No. 3 of
1946, and FLPMA 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.
I.

THE NATIONAL ENVIRONMENTAL POLICY ACT
54.

§ 1500.1(a).
55.

NEPA is “our basic national charter for protection of the environment.” 40 C.F.R.
NEPA’s goals are to (1) “prevent or eliminate damage to the environment and

biosphere,” (2) “stimulate the health and welfare of” all people, and (3) “encourage productive
and enjoyable harmony” between human kind and the environment. 42 U.S.C. § 4321. NEPA
recognizes that “each person should enjoy a healthful environment” and ensures that the federal

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 government uses all practicable means to “fulfill the responsibilities of each generation as trustee
of the environment for succeeding generations” and “assure for all Americans safe, healthful,
productive, and esthetically and culturally pleasing surroundings.” Id. § 4331(b)-(c).
56.
To fulfill these purposes, NEPA requires that: (1) agencies take a “hard look” at
the environmental impacts of their actions before the actions occur, thereby ensuring “that the
agency, in reaching its decision, will have available, and will carefully consider, detailed
information concerning significant environmental impacts,” and (2) “the relevant information
will be made available to the larger audience that may also play a role in both the
decisionmaking process and the implementation of that decision.” Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 349 (1989).
57.
NEPA requires federal agencies to prepare an EIS for “major Federal actions
significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). To
determine whether the nature and extent of a proposed action’s environmental effects requires
preparing an EIS, federal agencies prepare an EA. 40 C.F.R. § 1501.4(b)-(c). If, on the basis of
the EA, the agency finds that the proposed action will produce “no significant impact” on the
environment, then an EIS need not be prepared. Id. § 1501.4(e). An agency’s finding of “no
significant impact” and consequent decision not to prepare an EIS can be overturned if the
decision was arbitrary, capricious, or an abuse of discretion. See, e.g., Am. Rivers v. Fed. Energy
Regulatory Comm’n, 895 F.3d 32, 49-52 (D.C. Cir. 2018).
58.
A finding of “no significant impact” will be overturned when an agency commits
to an action that will significantly affect the environment without evaluating the impacts of the
decision. NEPA requires an agency to evaluate the environmental effects of its action at the point
of commitment. This “critical agency decision” is made when the decision results in “irreversible
and irretrievable commitments of resources” to an action that will affect the environment. Sierra

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 Club v. Peterson, 717 F.2d 1409, 1414 (D.C. Cir. 1983). In the mineral leasing context, an
agency makes “irreversible and irretrievable commitments of resources” when it issues a lease
without reserving absolute authority to prevent development on the lease. Id. at 1414-15. If it has
issued a lease without reserving absolute authority to prevent development, the agency must
prepare an EIS that examines the consequences of the ultimate development on the lease. Id. at
1415.
59.

Among other things, the agency’s NEPA analysis must assess the cumulative

impacts of the action “result[ing] from the incremental impact of the action when added to other
past, present, and reasonably foreseeable future actions.” 40 C.F.R. §§ 1508.7, 1508.27(b)(7).
This analysis must include more than “conclusory remarks, statements that do not equip a
decisionmaker to make an informed decision about alternative courses of action.” Nat. Res. Def.
Council, Inc. v. Hodel, 865 F.2d 288, 298 (D.C. Cir. 1988). An agency must prepare an EIS if it is
reasonable to anticipate a cumulatively significant impact on the environment. Grand Canyon Tr.
v. Fed. Aviation Admin., 290 F.3d 339, 346 (D.C. Cir. 2002).
60.

As part of its NEPA review, an agency is also required to prepare a detailed

statement regarding the alternatives to a proposed action. See 42 U.S.C. § 4332(2)(C)(iii), (E).
This alternatives analysis is the “heart” of NEPA review. 40 C.F.R. § 1502.14; see also id.
§ 1508.9(b). Consideration of reasonable alternatives is necessary to ensure that the agency has
taken into account all possible approaches to, and potential environmental impacts of, a
particular project. Calvert Cliffs’ Coordinating Comm., Inc. v. U. S. Atomic Energy Comm’n, 449
F.2d 1109, 1114 (D.C. Cir. 1971). An agency must “[r]igorously explore and objectively evaluate
all reasonable alternatives.” 40 C.F.R. § 1502.14(a). These alternatives must include a “noaction” alternative. Transmission Access Policy Study Grp. v. Fed. Energy Regulatory Comm’n,

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 225 F.3d 667, 736 (D.C. Cir. 2000). The “no-action” alternative for when an agency is approving
a proposed activity “would mean the proposed activity would not take place, and the resulting
environmental effects from taking no action would be compared with the effects of permitting
the proposed activity or an alternative activity to go forward.” Forty Most Asked Questions
Concerning CEQ’s National Environmental Policy Act Regulations, 46 Fed. Reg. 18,026, 18,027
(Mar. 23, 1981). This is true even if the agency is “under a court order or legislative command to
act.” Id. When a member of the public proposes an alternative for the agency to consider, the
agency must also give a reasoned explanation for why it has rejected a proffered alternative.
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 50
(1983) (requiring a rational connection between “the facts found and the choice made”).
III.

THE ADMINISTRATIVE PROCEDURE ACT
61.

The APA provides a right to judicial review for any “person suffering legal wrong

because of agency action.” 5 U.S.C. § 702. Final agency actions “for which there is no other
adequate remedy in a court” are reviewable under the APA. Id. § 704.
62.

Under the APA, a reviewing court shall “hold unlawful and set aside agency

action . . . found to be arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” Id. § 706(2)(A). Agency actions may also be set aside if the action is
“without observance of procedure required by law.” Id. § 706(2)(D). Courts will also set aside
agency action that contradicts an agency’s prior position, “when, for example, its new policy
rests upon factual findings that contradict those which underlay its prior policy” and the agency
has given no reasoned justification for the change. Fed. Commc’ns Comm’n v. Fox Television
Stations, Inc., 556 U.S. 502, 515 (2009).

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 FACTUAL BACKGROUND
I.

THE BOUNDARY WATERS CANOE AREA WILDERNESS, A 1.1-MILLION
ACRE PROTECTED EXPANSE IN NORTHEASTERN MINNESOTA, OFFERS
EXCEPTIONAL AND UNIQUE WILDERNESS EXPERIENCES
63.

The Leases at issue are adjacent to the Boundary Waters, a 1.1-million-acre

wilderness in the Superior National Forest in northeastern Minnesota. With 250,000 visitors
annually, it is the most visited wilderness in the United States. The Boundary Waters contains
more than 1,000 lakes, over 1,200 miles of canoe routes, and 2,000 remote water-access-only
campsites. Visitors canoe the wilderness, as well as fish, hike, camp, cross-country ski, dog sled,
harvest wild rice and other edible wild plants, and hunt. The outfitters, guides, and other
Minnesota businesses that cater to summer-only visitors who enter the Boundary Waters generate
tens of millions of dollars annually in direct 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 U.S. Fish and
Wildlife Service has designated most of the Boundary Waters and Superior National Forest as
critical habitat for the threatened Canada lynx and gray wolf.
64.
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 what was later designated the
Boundary Waters Canoe Area Wilderness. In 1926, Secretary of Agriculture W. M. Jardine set
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 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 along boundaries similar to the modern Boundary Waters.
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). Most recently, in 1978, Congress passed the 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.
65.
The Superior National Forest, including the Boundary Waters, is an outstanding
freshwater 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.
66.
The Boundary Waters is among the most expansive, wild, untrammeled places in
the United States. The largest wilderness area east of the Rocky Mountains and north of the
Everglades, the Boundary Waters was recognized by the National Geographic Society as one of
“50 Places of a Lifetime” in the entire planet—under the category “Paradise Found”—and the
only one in the Midwest. See National Geographic Traveler, 50 Places of a Lifetime (1999). To
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 preserve the wilderness character of the Boundary Waters, the Forest Service allows camping
only on designated campsites, limits the number of persons who can enter the Boundary Waters
each day, and restricts entry to specific, numbered and designated entry points.
II.

MINING ON THE LEASES POSES SERIOUS RISKS TO THE BOUNDARY
WATERS CANOE AREA WILDERNESS
67.

The Leases are adjacent to the Boundary Waters and are in the Rainy River

watershed, upstream and downstream of the Boundary Waters, and upstream of Quetico
Provincial Park and Voyageurs National Park. 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, Lease MNES 01353 lies immediately adjacent to the Boundary Waters
and southwest of Boundary Waters entry points 32 and 33, which are at the South Kawishiwi
River and Little Gabbro Lake, respectively. Lease 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.
68.
Twin Metals intends to develop a copper-nickel sulfide ore mine on the Leases.
Mining in sulfide-bearing mineral deposits causes significant pollution of air and the surrounding
landscape by the deposition of air pollution and water pollution. 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, rock dust, and tailings. A process called acid mine
drainage occurs when water collects the acid and metals and then drains or leaks from the mine
complex. All major elements of a mining operation can produce acid mine drainage, and mine
drainage may not become acidic until years or decades after mining has commenced. Even when
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 mine drainage is not acidic, it consistently includes toxic heavy metals and sulfate, which in lowsulfate waters plays a significant role in the formation of methyl-mercury, the form of mercury
that bio-accumulates in nature and poses serious hazards to human and animal health. 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. Acidic or not, mine
drainage adversely affects fish populations and aquatic ecosystems with both direct effects on
aquatic life and indirect effects on food supplies and habitat.
69.
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 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, and the waters are naturally very low in
sulfate.
70.

Should the Boundary Waters be 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. Moreover, 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.
71.

In addition to the threat from mine drainage, a copper-nickel sulfide ore mine

would degrade the wilderness character of the Boundary Waters and its associated recreational

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 opportunities, ecosystem services, and wildlife habitat. Mining would introduce significant noise
and air pollution likely to continue 24 hours per day and 365 days per year, as well as long-term
water pollution, contamination of fish and wildlife, and scenic disruption from construction and
operation of an industrial mining district.
72.
Sulfide-ore copper-nickel mining would also have long-lasting negative effects on
fish and wildlife. The Superior National Forest and Boundary Waters forest landscape would be
altered such that it could no longer provide a habitat for the diverse species and complex chains
of life within the forest. Mine construction would counter proper management of critical Canada
lynx and gray wolf habitat within the Boundary Waters and Superior National Forest, habitat
which 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 Boundary Waters, harming moose, northern long-eared bat, gray wolf, and other
species’ habitat as a result.
III.

HISTORY OF THE BUREAU’S UNLAWFUL RENEWAL OF THE LEASES
DESPITE THE RISK TO THE BOUNDARY WATERS
73.

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 20 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 their issuance in 1966.

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 74.

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.
75.
On March 25, 1999, the Bureau requested the Forest Service’s consent 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.
76.
77.

On October 21, 2012, Twin Metals applied for a third renewal of the Leases.
In processing the application for the third renewal, the Bureau asked the then-

Solicitor of the Department of the Interior, Hilary C. Tompkins, for guidance on whether it had
discretion to grant or deny the application for renewal of the Leases. On March 8, 2016, Solicitor
Tompkins issued a Memorandum Opinion, M-37036, concluding that Twin Metals Minnesota
did not have a non-discretionary right to renewal, but rather the Bureau had discretion to grant or
deny the pending renewal application.
78.
On June 3, 2016, the Bureau requested a decision from the Forest Service on
whether it consented to a third renewal. The Forest Service announced that it was considering
withholding consent, 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.
79.
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
pose an “unacceptable . . . inherent potential risk that development of a regionally-untested
copper-nickel sulfide ore mine within the same watershed as the [Boundary Waters] might cause

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 serious and irreplaceable harm to this unique, iconic, and irreplaceable wilderness area.” The
Forest Service found that “[t]here is a direct flow of water from the lands subject to the [Leases]
to the [Boundary Waters].” It also found that “[a]ll of the waste rock and tailings derived from
the sulfide ore bodies on the Leases would have a high likelihood of oxidizing and becoming
sources of [acid mine drainage]” and that once water was contaminated with acid mine drainage,
“very few of the available containment and remediation strategies would be compatible with
maintaining the [Boundary Water’s] quality and character.” The Forest Service therefore
determined it was “incumbent upon” it to withhold its consent to lease renewal, and 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.
80.
In its letter withholding consent, the Forest Service also noted the lengthy history
of federal legislative protection for the Boundary Waters and surrounding areas, including
outright bans on mining in the Boundary Waters and the Mining Protection Area, and the special
requirement to obtain Forest Service consent for mining of federally-owned minerals in the
Superior National Forest.
81. On December 15, 2016, the Bureau rejected Twin Metals’ October 2012 application
to renew the Leases, citing the Forest Service’s denial of consent, and the Leases expired.
82.
On December 22, 2017, more than a year after the Leases expired and more than
five years after the last renewal application, then-Principal Deputy Solicitor of the Department of
the Interior Daniel Jorjani issued an opinion about the expired Leases, Memorandum Opinion M37049, concluding that the Bureau had no discretion to deny Twin Metals’ 2012 renewal request.
83.
On May 2, 2018, the Bureau rescinded 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 application to renew the Leases.

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 84.

Plaintiffs filed three suits against the Bureau in the U.S. District Court for the

District of Columbia challenging the Bureau’s reinstatement decision as violating the APA.
Voyageur Outward Bound Sch. v. United States, No. 1:18-CV-01463 (TNM) (consolidated
cases). Twin Metals joined as a defendant-intervenor. On March 17, 2020, the Court issued a
final, appealable order granting summary judgment for the defendants. On April 17, 2020,
Plaintiffs in the consolidated case filed notices of appeal to the U.S. Court of Appeals for the
District of Columbia Circuit. Voyageur Outward Bound Sch. v. United States, No. 20-5097 (D.C.
Cir. April 20, 2020) (consolidated cases).
85.
On May 15, 2019, the Bureau renewed the Leases for an additional ten-year
period. The Bureau added new discretionary stipulations. Unlike the 1966 and 2004 Leases, the
renewed Leases established by stipulation: (1) a right to perpetual renewal of the Leases if Twin
Metals complies with the Leases’ terms and stipulations; and (2) a stipulation that if Twin Metals
fails to meet certain milestones for developing and constructing a mine during the 10-year
renewal period, the Leases will terminate, but with provisions that can toll the Leases’ term.
86.

The Forest Service did not withdraw its December 14, 2016 findings that

developing a mine would pose “unacceptable . . . inherent potential risk.” Nonetheless, the Forest
Service included no stipulations to the Leases to prevent those risks and even worked with the
Bureau to add stipulations that would limit the Forest Service’s ability to withhold consent to
future renewals, including a stipulation that “if the lessee is in full compliance with the terms and
conditions of this lease, the Forest Service will provide consent to a renewal, subject to any
reasonable adjustments as described in Section 14.” It also agreed to stipulations aimed at
promoting mining on the Leases, including a “diligent development and continued operation”
requirement. The Forest Service provided no explanation for its change in position.

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 87.

In conjunction with its decision to renew the Leases, the Bureau prepared an EA

pursuant to NEPA. However, the EA did not take a hard look at the environmental impacts of
mining on the Leases even though (i) the Leases conveyed the right to mine without reserving
absolute authority to the Bureau to prevent development on the Leases and (ii) the Bureau
considered mining to be a cumulative impact to leasing. The EA also did not consider a true “no
action” alternative comparing the proposed mine to no mine. Finally, the EA did not consider
other reasonable alternatives to leasing presented by the public, including alternative stipulations
that would have reserved the Bureau’s authority to prevent development and alternative
stipulations that would have been more protective of the environment.
CAUSES OF ACTION
COUNT I—ARBITRARY AND CAPRICIOUS ACTION (AGAINST THE FOREST
SERVICE)
88.
89.

All preceding paragraphs are hereby incorporated as if fully set forth herein.
In 2016, the Forest Service made factual findings that developing a mine in

accordance with the Leases would have the potential to result in acid mine drainage and cause
extreme environmental harm to the Boundary Waters.
90.
The Forest Service therefore determined that renewing Twin Metals’ Leases
would pose an “unacceptable . . . inherent potential risk that development of a regionallyuntested copper-nickel sulfide ore mine within the same watershed as the [Boundary Waters]
might cause serious and irreplaceable harm to this unique, iconic, and irreplaceable wilderness
area,” and refused to consent to lease renewal.
91.
The Forest Service has not withdrawn these factual findings or its determination
that it must withhold consent to lease renewal in order to protect the Boundary Waters.
92.
The Forest Service has the right and obligation under the terms of the Leases, and
under, among other authority, 16 U.S.C. § 508b; Section 402 of Reorganization Plan No. 3 of

COMPLAINT
The Wilderness Society et al. v. Bernhardt et al.,
Case No.

33

 1946; the Boundary Waters Act; the Wilderness Act; and NFMA, to include lease stipulations it
deems necessary to protect the surface resources. Concomitantly, the Forest Service has the right
and obligation to object to and to deny consent to stipulations that would interfere with its ability
to protect and maintain the character and quality of the Boundary Waters.
93.
The Forest Service consented or failed to object to lease stipulations on the
renewed Leases that encourage development of a mine without preventing the impacts cited in its
2016 analysis and that would limit its ability to withhold consent to future renewals. This directly
contradicts its previous position, and violates 16 U.S.C. § 508b, which on its face requires the
Forest Service’s consent through the Secretary of Agriculture for any development and utilization
of mineral deposits in the Boundary Waters.
94.
The Forest Service has offered no justification for its policy reversal, which “rests
upon factual findings that contradict those which underlay its prior policy.” Fed. Commc’ns
Comm’n v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (explaining that an agency
must provide a detailed justification for changing positions “when, for example, its new policy
rests upon factual findings that contradict those which underlay its prior policy”).
95.
The Forest Service’s decision to agree, or fail to object to, stipulations on the
renewed Leases promoting development of the Leases without preventing the impacts it
described in its 2016 conclusion and curtailing its own authority was arbitrary and capricious and
not in accordance with law under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A).
COUNT II—VIOLATION OF NEPA, FAILURE TO PREPARE AN EIS (AGAINST THE
BUREAU)
96.
97.

All preceding paragraphs are hereby incorporated as if fully set forth herein.
Under NEPA, an agency must prepare an EIS before it makes an “irreversible and

irretrievable commitment of resources” to an action that will significantly affect the environment.
42 U.S.C. § 4332(C); Sierra Club v. Peterson, 717 F.2d 1409 (D.C. Cir. 1983).

COMPLAINT
The Wilderness Society et al. v. Bernhardt et al.,
Case No.

34

 98.

The Bureau’s renewal of Twin Metals’ Leases was an “irreversible and

irretrievable commitment of resources” by the Bureau to allow mine development causing
significant impacts to the environment, because the Bureau did not withhold absolute authority to
prevent development on the Leases.
99.
The Bureau did not produce an EIS prior to its renewal of the mine Leases.
100. The Bureau’s failure to prepare an EIS evaluating the environmental impacts of
mine development violated NEPA. 42 U.S.C. § 4332(2)(C). The Bureau’s approval of the Leases
was therefore arbitrary, capricious, not in accordance with law, and not in accordance with the
procedures required by law. 5 U.S.C. § 706(2)(A), (D).
COUNT III—VIOLATION OF NEPA, FAILURE TO ADEQUATELY CONSIDER
CUMULATIVE IMPACTS (AGAINST THE BUREAU)
101.

All preceding paragraphs are hereby incorporated as if fully set forth herein.

102.

An agency’s NEPA analysis must assess the cumulative impacts of the action

“result[ing] from the incremental impact of the action when added to other past, present, and
reasonably foreseeable future actions.” 40 C.F.R. §§ 1508.7, 1508.27(b)(7). This analysis must
include quantified and detailed information. General statements about possible effects and some
risk do not constitute a hard look. An agency must prepare an EIS if it is reasonable to anticipate
a cumulatively significant impact on the environment.
103.

The Bureau has determined that mining is a cumulative action to the Lease

renewal.
104.

Nevertheless, the EA considers the impacts of mining in only generalized,

conclusory statements that fail to take a hard look at the impacts of mining.
105.

The Bureau’s failure to adequately analyze cumulative impacts of the Lease

renewal violated NEPA. 40 C.F.R. §§ 1508.7, 1508.27(b)(7). The Bureau’s approval of the

COMPLAINT
The Wilderness Society et al. v. Bernhardt et al.,
Case No.

35

 Leases was therefore arbitrary, capricious, not in accordance with law, and not in accordance
with the procedures required by law. 5 U.S.C. § 706(2)(A), (D).
COUNT IV—VIOLATION OF NEPA, FAILURE TO CONSIDER ALTERNATIVES
(AGAINST THE BUREAU)
106.

All preceding paragraphs are hereby incorporated as if fully set forth herein.

107.

Under NEPA, an agency is required to prepare a detailed statement regarding the

alternatives to a proposed action. See 42 U.S.C. § 4332(2)(C)(iii), (E); 40 C.F.R. § 1508.9(b).
These alternatives must include a no-action alternative. And when the public proposes an
alternative for the agency to consider, the agency must also give a reasoned explanation for why
it has rejected a proffered alternative.
108.

The Bureau failed to consider a true no-action alternative of no mining on the

Leases. It also failed to consider other reasonable alternatives suggested by the public without a
reasoned explanation for rejecting them.
109.

The Bureau’s failure to adequately consider these alternatives violated NEPA. 42

U.S.C. § 4332(2)(C)(iii), (E); 40 C.F.R. § 1502.14. The Bureau’s approval of the Leases was
therefore arbitrary, capricious, not in accordance with law, and not in accordance with the
procedures required by law. 5 U.S.C. § 706(2)(A), (D).
PRAYER FOR RELIEF
Therefore, Plaintiffs respectfully request that the Court:
A.

Issue a declaratory judgment that the Forest Service’s decision to agree to

stipulations on the renewed Leases promoting development of the Leases without precluding
impacts it previously identified and curtailing its own authority was arbitrary and capricious and
not in accordance with law under the APA, 5 U.S.C. § 706(2)(A);

COMPLAINT
The Wilderness Society et al. v. Bernhardt et al.,
Case No.

36

 B.
Leases;
C.

Issue a declaratory judgment that the Bureau violated NEPA in renewing the
Issue an order setting aside as unlawful the decision record approving the lease

renewal, the underlying EA and Finding of No Significant Impact, and the renewed Leases;
D.
Enter any other appropriate injunctive relief to ensure that the Defendants comply
with NEPA and the APA, and to prevent irreparable harm to the Plaintiffs and to the environment
until such compliance occurs;
E.
Award Plaintiffs the costs of this action, including reasonable attorneys’ fees,
pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412;
F.
Retain continuing jurisdiction over this matter until Defendants remedy the
violations of law identified herein; and
G.
Grant such other relief as the Court deems just and proper.
Dated this 6 day of May, 2020.
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/ Elizabeth B. Forsyth
Elizabeth B. Forsyth (pro hac vice pending)
EARTHJUSTICE
707 Wilshire, Suite 4300
Los Angeles, CA 90017
T: 213.766.1067
E: eforsyth@earthjustice.org

s/ Erin Whalen
Erin Whalen (pro hac vice pending)
EARTHJUSTICE
325 Fourth Street
Juneau, AK 99801
T: 907.586.2751
E: ewhalen@earthjustice.org

COMPLAINT
The Wilderness Society et al. v. Bernhardt et al.,
Case No.

37

 Attorneys for Plaintiffs The Wilderness Society, Izaak Walton League of
America, and Center for Biological Diversity.

s/ Ari B. Lukoff
Richard B. Allyn (pro hac vice pending)
Stephen P. Safranski (pro hac vice pending)
Ari B. Lukoff (pro hac vice pending)
Eric Barstad (pro hac vice pending)
ROBINS KAPLAN LLP
2800 LaSalle Plaza
800 LaSalle Avenue
Minneapolis, MN 55402-2015
T: 612-349-8500
RAllyn@robinskaplan.com
SSafranski@robinskaplan.com
ALukoff@robinskaplan.com
EBarstad@robinskaplan.com
s/ Meegan F. Hollywood

Meegan F. Hollywood (D.D.C. Bar No. NY0206)
399 Park Avenue, Suite 3600
New York, NY 10022
ROBINS KAPLAN LLP
T: 212-980-7400
MHollywood@robinskaplan.com
Attorneys for Plaintiff Friends of the Boundary Waters
Wilderness
s/ DRAFT
_________________________________________________
Joseph Alexander Ward (D.C. Bar No. 463927)
Robin A. Smith (pro hac vice pending)
Haydn Forrest (pro hac vice pending)
MORRISON & FOERSTER LLP
2000 Pennsylvania Ave., NW
Washington, DC 20006
Telephone: 202-887-1888
Kyle Saari Pietari (pro hac vice pending)
MORRISON & FOERSTER LLP
4200 Republic Plaza, 370 Seventeenth Street
Denver, CO 80202
Telephone: (303) 592-2221
Zainab Ali (pro hac vice pending)
MORRISON & FOERSTER LLP
707 Wilshire Boulevard, Suite 6000
Los Angeles, California, 90017
Telephone: (213) 892-5200
Attorney for Plaintiffs Northeastern Minnesotans for Wilderness,
COMPLAINT
The Wilderness Society et al. v. Bernhardt et al.,
Case No.

38

 Voyageur Outward Bound School, Piragis Northwoods Company, Inc.,
Ely Outfitting Company & Boundary Waters Guide Service, Wenonah
Canoe Inc., Northstar Canoe, Sawbill Canoe Outfitters, Inc., Hungary
Jack Outfitters, Women’s Wilderness Discovery, and River Point
Resort and Outfitting Company.

COMPLAINT
The Wilderness Society et al. v. Bernhardt et al.,
Case No.

39