From: To: Subject: Date: Attachments: Jorjani, Daniel David Bernhardt; James Cason Fwd: Twin Metals Revisions Tuesday, December 5, 2017 11:24:01 AM Twin Metals -- Draft 11 29 17.docx Delivered a hard-copy to Jim as well.  (b) (5) biggest change to the previous draft.  - is far and away the Daniel H. Jorjani Principal Deputy Solicitor U.S. Department of the Interior Main Interior Building, Suite 6356 ' 202-219-3861 (Voice)  202-706-9018 (Cell)   daniel.jorjani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. ---------- Forwarded message ---------From: Jorjani, Daniel Date: Thu, Nov 30, 2017 at 7:23 PM Subject: Fwd: Twin Metals Revisions To: David Bernhardt David - Please see the redlined version attached by Jack (b) (5) to the previous draft that was circulated. is by far the biggest change Daniel H. Jorjani Principal Deputy Solicitor U.S. Department of the Interior Main Interior Building, Suite 6356 ' 202-219-3861 (Voice)  202-706-9018 (Cell)   daniel.jorjani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. ---------- Forwarded message ---------From: Haugrud, Kevin Date: Thu, Nov 30, 2017 at 10:11 AM Subject: Twin Metals Revisions To: Daniel Jorjani Dan: Attached is a redlined version of the to osed Twin Metals M-O inion that addresses comments we received from ENRD. but made the 1s 1e one I need policy following observations that I attempte to a direction 011. From: To: Cc: Subject: Date: Attachments: Haugrud, Kevin Daniel Jorjani Karen Hawbecker; Gary Lawkowski; Briana Collier; Richard McNeer; Mariagrazia Caminiti Twin Metals M-Opinion Thursday, December 7, 2017 11:48:15 AM 2017.12.06 Twin Metals -- Draft Final Clean.docx Dan: Attached is the proposed final M-Opinion that would reverse and withdraw M-37036. Jack From: To: Subject: Date: Attachments: Daniel Jorjani gary.lawkowski@sol.doi.gov Fwd: Twin Metals M-Opinion Thursday, December 7, 2017 12:05:36 PM attachedFile.html 2017.12.06 Twin Metals -- Draft Final Clean.docx Gary - Please review.? Daniel H. Jorjani U.S. Department of the Interior Acting Solicitor & Principal Deputy Solicitor Main Interior Building, Suite 6356 '?202-219-3861?(Voice) ?? ?202-706-9018?(Cell)? ?daniel.jorjani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. ? ?Sent from my iPhone Begin forwarded message: From: "Haugrud, Kevin" Date: December 7, 2017 at 11:48:10 AM EST To: Daniel Jorjani Cc: Karen Hawbecker ,? Gary Lawkowski , Briana Collier ,? Richard McNeer ,? Mariagrazia Caminiti Subject: Twin Metals M-Opinion Dan:? Attached is the proposed final M-Opinion that would reverse and withdraw M-37036.? Jack? file:///C/...AL/Converted%20Email/2017-12-07%2012_05_36%20Daniel%20Jorjani%20-%20Fwd_%20Twin%20Metals%20M-Opinion html[2/7/2020 9:16:32 AM] From: To: Cc: Subject: Date: Attachments: Haugrud, Kevin Briana Collier; Richard McNeer; Gary Lawkowski Daniel Jorjani; Karen Hawbecker Fwd: OGC comments on Twin Metals opinion Thursday, December 7, 2017 1:24:38 PM 11-29 Draft M-Opinion Attachment 1.pdf 11-29 Draft M-Opinion Attachment 2.pdf 11-29 Draft M-Opinion Attachment 3.pdf Twin Metals -- Draft 11 29 17 -- OGC Comments.docx Attached are USDA's comments.  If you have the time, I would appreciate receiving DMR's suggestions on whether/how to address the comments on the latest version by the end of the day.  I see that at least one of their comments is addressed already in the new version. ---------- Forwarded message ---------From: Mulach, Ronald - OGC Date: Thu, Dec 7, 2017 at 12:05 PM Subject: OGC comments on Twin Metals opinion To: "jack.haugrud@sol.doi.gov" , "Hawbecker, Karen (karen.hawbecker@sol.doi.gov)" Cc: "LINDEN, RALPH - OGC" Please see the attached OGC comments on the revised M opinion.  Some of our comments regarding (b) (5) are repetitive and can probably be resolved with a paragraph?  We’ll work on something and send it along.  Let us know if you’d like to set up a call to discuss, thanks. This electronic message contains information generated by the USDA solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. From: LawkowskiI Gag To: Daniel Jog?ani Subject: Re: Twin Metals M-Opinion Date: Thursday, December 7, 2017 6:21:02 PM Attachments: 2017.12.06 Twin Metals Draft Final Clean (GML comments).docx My initial comments are attached. My main thematic concerns are: That said. I reco lize that Let me know if this makes sense. and what next steps you would like to take. Sincerely. Gary Lawkowski 011 Thu. Dec 7. 2017 at 1:09 PM. Lawkowski, Gary <0a1 I Will do. .lawkowski {171' soldoi. oov> wrote: 011 Thu. Dec 7. 2017 at 12:05. PM. Daniel Jorjani Date: December 7, 2017 at 11:48: 10 AM EST To: Daniel orjani Cc: Karen Hawbecker Gary Lawkowski , Briana Collier Richard McNeer Mariagrazia aminiti Subject: Twin Metals M-Opinion Dan: Attached is the proposed ?nal M-Opinion that would reverse and withdraw M-37036. Jack Gt'nji' Lawkowski ("matador to the Department of the Interior 2 5 FE 303-303"- ?31/0 Garv Lawkowski Counselor to the Solicitor Department of the Interior Ga Lawkowski ol.doi. ov 202-208? 7340 From: HaugrudI Kevin To: Daniel Jog?ani Cc: Mariyrazia Caminiti; Karen Hawbecker; Gag Lawkowski; Richard McNeer; Briana Collier Subject: Twin Metals M?Opinion Date: Friday, December 8, 2017 12:19:11 PM Attachments: 2017.12.08 Twin Metals -- Draft Final Clean.docx 2017.12.08 Twin Metals -- Draft Final Redline with OGC response.docx Dan: Attached is the proposed Twin Metals' M-Opinion. I have also attached a redline version that shows the changes we made in res onse to F8 c011m1ents. There are not many revisions. Most are edits to Jac cc Marlgrace, Briana, Karen. Galy, R1c iar From: Haugrud, Kevin To: Daniel Jog?ani Subject: Fwd: Superior National Forest withdrawal Review of USFS communications materials Date: Monday, December 11, 2017 2:19:38 PM Attachments: REDLINE Supplemental SNF CommPlan Dec 8 2017 R5 bwc.docx Dan: Please see message below from Ryan Sklar 011 what the is lanning to do on the Minnesota 811 erior National Forest withch'awal a Forwarded message From: Collier, Briana Date: Mon? Dec 11. 2017 at 12:56 PM Subject: Re: Superior National Forest withdrawal -- Review of USFS connmmications materials To: "Sklar, Ryan" <1 Cc: "Haugrud: Kevin" <'ack.hauomd "Hawbecker. Karen" KER Aaron Moody wrote: Hi Jack and Karen, BLM has asked us to review the attached communications materials related to the Superior National Forest withdrawal. The materials were re ared USFS's regional of?ce in Milwaukee and detail I've attached a clean version and a 1?edlined version that contains my edits. BLM has asked that we get them SOL's edits as soon as possible. Thanks. Ryan From: Jog?ani, Daniel To: Daniel Jog?ani Subject: Fwd: Twin Metals M-Opinion Date: Monday, December 11, 2017 4:55:12 PM Attachments: 2017.12.08 Twin Metals -- Draft Final Clean.docx 2017.12.08 Twin Metals -- Draft Final Redline with OGC responsedocx Daniel H. Jorjani PrinCIpal Deputy Department of the Interior a Main Interior Budding. State 6356 202-219-3861 (Voice) 202-706-9018 (CellThis electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may \iolate the law and subject the violator to ciw] or criminal penalties. If you believe you have received this message in error. please notify the sender and delete the email immediately. Forwarded message From: Haugrud, Kevin Date: Fri Dec 8 2017 at 12:19 PM Subject: Twin Metals M- -Opinion To: Daniel J01jani Cc: Mariaglazia 1' Gary Lawkowski <0 Briana ollrer Dan: Attached is the proposed Twin Metals' M-Opinion. I have also attached a redline version that shows the changes we made in res onse to comments. There are not many revisions. Most are edits to Jack cc Marigrace, Briana, Karen. Gary. Richard From: Jog?ani, Daniel To: Gay Lawkowski Subject: Fwd: Twin Metals M-Opinion Date: Tuesday, December 12, 2017 2:59:07 PM Attachments: 2017.12.08 Twin Metals -- Draft Final Clean.docx 2017.12.08 Twin Metals -- Draft Final Redline with OGC responsedocx Ga1y Take a look at the current draft. Seems to be drifting, but I might be over?reacting. Forwarded message From: Haugrud, Kevin Date: Fri Dec 8 2017 at 12:19 PM Subject. Twin Metals M- -Opinion To: Daniel 01 1am Cc: Mariaglazia a1111111t1 1' McNee1< Briana Collier Dan: Attached is the proposed Twin Metals' M-Opinion. I have also attached a redline version that shows the changes we made in res onse to F8 comments. There are not many revisions. Most are edits to Jack cc Marigrace. Briana, Karen. Gary. Richard From: To: Subject: Date: Attachments: Haugrud, Kevin Daniel Jorjani Fwd: Twin Metals" critique of m-opinion Wednesday, December 13, 2017 12:09:53 PM Twin Metals Minnesota - Seth Waxman Letter to Solicitor Tompkins 7-1-2016.pdf ---------- Forwarded message ---------From: Haugrud, Kevin Date: Mon, Nov 6, 2017 at 6:39 PM Subject: Twin Metals' critique of m-opinion To: Gary Lawkowski Gary:  Here's the letter critiquing the m-opinion. Seth P. Waxman July 1, 2016 The Honorable Hilary C. Tompkins Solicitor Department of the Interior 1849 C Street N.W. Washington, D.C. 20240 Re: +1 202 663 6800 (t) +1 202 663 6363 (f) seth.waxman@wilmerhale.com Solicitor’s Opinion M-37036 Dear Solicitor Tompkins: I write on behalf of Twin Metals Minnesota in response to your opinion M-37036, dated March 8, 2016 (the “Solicitor’s Opinion” or “Opinion”). The Opinion concludes (p.1) that Twin Metals “does not have a non-discretionary right to renewal” of hardrock leases MNES-01352 and MNES-01353, but rather that the Bureau of Land Management “has discretion to grant or deny the pending renewal application.” For the reasons given herein, Twin Metals submits that that conclusion is wrong and that the Opinion should be withdrawn. INTRODUCTION In 1966, after ten years of extensive negotiations, BLM and Twin Metals’ predecessor in interest executed two hardrock mineral leases with respect to land in the Superior National Forest in northern Minnesota. Consistent with the lengthy negotiations that preceded them, the leases set forth comprehensive—and unique— terms. One of those terms is a right to renew the lease (in fact, to successive renewals). This right is critical to the parties’ overall bargain: The investment required of the lessee under the leases is enormous. But because of recognized operational problems in the area, producing minerals in the short term would have been impossible. The leases thus would serve no rational purpose absent a non-discretionary right to renew; no company would undertake the necessary investment for exploration and development knowing that it could be unilaterally deprived of any ability to recoup that investment. Recognizing this, section 1 of the leases provides an unambiguous “right in the Lessee to renew … for successive periods of ten … years.” 1966 Leases §1(a). This renewal right is textually unqualified save for the requirement of being consistent “with regulation 43 C.F.R. § 3221.4(f) and the provisions of this lease,” id.—both of which, as explained below, support the conclusion that BLM has no discretion to deny the right of renewal. The Honorable Hilary Tompkins July 1, 2016 Page 2 In accordance with section 1, BLM in 1989 granted a ten-year renewal of the leases, renewing “under the existing terms and conditions of the original leases.” Ex. 1 (BLM Letter) at 1 (Apr. 25, 1989). To effect this renewal, BLM presented the lessee with short, standard forms, forms that attached the 1966 leases in full. The parties executed those forms. In 2004, the parties again renewed the leases by executing short, standard forms—the very same forms as in 1989—to which they again attached the 1966 leases in full. Importantly, the parties completed this renewal without any discussion, much less negotiation, of any contract terms. The renewal was routine and administrative in nature. In 2012, Twin Metals applied for a third ten-year renewal. BLM subsequently asked your office whether it has the discretion to grant or deny the application. In response, your office issued the Opinion, taking the position (p.1) that Twin Metals “does not have a non-discretionary right to renewal.” Respectfully, that position rests on three overarching errors. First, the Opinion erroneously concludes that the renewal provision in the 2004 standard forms controls. In fact, the 1966 leases control. The Opinion’s contrary view depends on its assertion (p.6) that the 2004 forms are “integrated” contracts. But they are not; the 2004 forms lack any integration clause (a point the Opinion does not acknowledge), and there is no other basis on which to conclude that the 2004 forms— divorced from the 1966 leases that the parties attached—were integrated contracts. In light of this, the Opinion’s refusal to consider extrinsic evidence conflicts with established law. Once the forms are considered in light of that evidence (i.e., the relevant surrounding circumstances), the only reasonable conclusion is the parties’ written agreement when they renewed the leases in 2004 was the standard forms and the complete 1966 leases that the parties attached. Second, the Opinion (p.10) erroneously construes the 1966 leases as establishing (in section 5) a “condition precedent” to any renewal, namely production within the original 20-year term. That interpretation renders meaningless the renewal right in section 1—a right that the Opinion never confronts. The interpretation also runs afoul of the plain text of section 5. By contrast, Twin Metals’ interpretation of the leases gives effect to the text and purposes of both sections: Section 1 provides Twin Metals with a non-discretionary right to renew, while section 5 governs the terms of any renewal, and specifically addresses the scope of BLM’s authority to adjust royalties and other conditions under specified circumstances. The Honorable Hilary Tompkins July 1, 2016 Page 3 Third, having concluded that the 2004 standard forms control the renewal analysis, the Opinion concludes (p.7) that the undefined phrase “preferential right” in those forms is unambiguous. That conclusion conflicts with both relevant case law and a prior Solicitor’s opinion. Because the phrase is ambiguous, extrinsic evidence must be considered, and it confirms that the parties’ intent in executing the 2004 forms was to re-confirm that Twin Metals has a non-discretionary right to renew. Even if extrinsic evidence did not resolve the ambiguity, the rule of contra proferentem would require that this phrase be construed against BLM, which drafted the 2004 standard forms. Because the Opinion’s ultimate conclusion flows from these three errors, the conclusion is unsustainable, and the Opinion should be withdrawn. BACKGROUND A. The Act Of 1950 Leases MNES-01352 and MNES-01353 were issued under the Act of 1950, a law authorizing mining in the Superior National Forest. See Pub. L. No. 81-594, 64 Stat. 311 (codified at 16 U.S.C. §508b). In the words of the accompanying Senate report, the law was “special legislation to meet a special situation.” S. Rep. No. 81-1778, at 2 (1950). The statute authorizes the Secretary of the Interior, with the consent of the Secretary of Agriculture, to “permit the prospecting for and the development and utilization of … mineral resources” on national forest land in Minnesota. 64 Stat. at 312. As the legislative history makes clear, Congress intended not just to “permit” mining, but to encourage it as a “highly desirable” activity, S. Rep. No. 81-1778, at 2—i.e., one that yields substantial benefits for the general public. Congress enacted the Act of 1950 against the backdrop of the executive branch’s failure to honor and protect mining companies’ legitimate reliance interests, resulting in severe economic consequences for those companies. As the Act’s legislative history recounts, mining permits had been granted in Minnesota before 1950, under a ruling from the Solicitor of the Department of Agriculture. S. Rep. No. 81-1778, at 2; H.R. Rep. No. 81-795, at 2 (1949). But that ruling was later reversed, forcing mining companies to liquidate their investments. S. Rep. No. 81-1778, at 2; H.R. Rep. No. 81795, at 2. It was Congress’s dissatisfaction with this outcome—“investment losses resulting from cancellation of mining permits in the Minnesota forests,” S. Rep. No. 811778, at 2—that spurred passage of the Act of 1950. In particular, Congress’s view was that companies that “have made investments for the mining and removal of mineral substances from the described lands should be given the privilege of renewing or retaining their permits or leases.” H.R. Rep. No. 81-792, at 2 (1949). The Honorable Hilary Tompkins July 1, 2016 Page 4 B. 1966 Leases And Renewals 1. 1966 Leases The International Nickel Company (“INCO”) is Twin Metals’ predecessor in interest. Shortly after Congress enacted the Act of 1950, INCO acquired prospecting permits for the lands at issue here. See Ex. 2 (INCO Letter) at 1, 8-9 (Mar. 27, 1956). INCO invested significant money and effort in prospecting on those lands, ultimately discovering a valuable copper and nickel deposit—and thereby acquiring vested mineral rights. In 1956, INCO sought a lease with BLM to have those vested rights formalized. See Ex. 2 (INCO Letter) at 1, 8-9. This gave rise to a decade of what BLM later labeled “intensive negotiations.” Ex. 3 (BLM Memo re Recommendation for Lease Renewals) at 1 (Oct. 14, 1988); see also id. at 2 (noting the “highly negotiated terms and conditions” of the 1966 leases). During those negotiations, INCO was clear that it was “not considered possible to set forth minimum production requirements in the leases” in light of “special problems … involved in developing mining operations in the area.” Ex. 4 (1965 Memo) at 1, 2 (Apr. 15, 1965). In lieu of such a requirement, the parties negotiated and INCO agreed to pay minimum royalties that were significantly higher than normal. This was to ensure—again as BLM itself later confirmed—that INCO retained a financial incentive for development. See Ex. 3 at 1 (“Th[e] high minimum royalty payment … is intended to serve as the ‘production incentive’ or ‘diligent development’ provision in the leases[.]”). On June 14, 1966, INCO and BLM memorialized their agreement, executing the 1966 leases. Consistent with the extensive negotiations that preceded them, the 1966 leases are unique; the parties opted not to use BLM’s standard leasing forms, instead tailoring the leases to address the recognized development challenges in mining operations in the area. In line with Congress’s concern when it enacted the Act of 1950 about protecting mining companies’ investments—and in line with the type of investment required for hardrock minerals in unexplored areas, the very first section (indeed the very first subsection) of the 1966 leases gives the lessee not only the exclusive right to mine on the subject lands, but also the right to renew the lease. More specifically, section 1 (entitled “Rights of Lessee”) provides that the lessee has: a right … to renew … for successive periods of ten (10) years each in accordance with regulation 43 CFR § 3221.4(f) and the provisions of this lease. The Honorable Hilary Tompkins July 1, 2016 Page 5 1966 Leases §1(a). Like section 1 itself, the regulation cited at the end of this language provided that a “lease will be issued for a period not exceeding 20 years,” and that the “lessee will be granted a right of renewal for successive periods, not exceeding 10 years each, under such reasonable terms and conditions as the Secretary of the Interior may prescribe.” 43 C.F.R. §3221.4(f) (1966) (emphasis added). Section 2 of the leases then sets forth comprehensive terms—ranging from rental rates and royalties to the payment of taxes and non-discrimination provisions. Consistent with the parties’ negotiations, section 2(c) establishes a higher-than-usual minimum royalty requirement. Pursuant to this section, INCO and its successors have paid over $1.4 million dollars in royalties to the government. Finally, section 5 of the leases—entitled “Renewal Terms”—authorizes BLM to “readjust” lease terms during “each successive renewal,” except as otherwise provided. As BLM later confirmed, neither section 5 nor any other provision of the 1966 leases establishes “a production requirement.” Ex. 3 at 1. Section 5 instead creates a production incentive, providing that if INCO was producing by the end of the initial 20year term, then BLM would only have limited readjustment rights during the first three renewals. In particular, upon renewal BLM would only be able to readjust the royalty provisions by specified amounts, and would not be able to adjust other terms and conditions at all. See 1966 Leases §5. If instead INCO was not producing before the initial term ended, then BLM would have the right, starting with the first renewal, to readjust terms and conditions without these limitations. Id. 2. 1989 Renewal In 1986, INCO timely applied for the first ten-year renewal of the 1966 leases. Three years later, BLM used standard-form documents to renew the leases—notably stating that it was “agree[ing] to the renewal … under the existing terms and conditions of the original leases.” Ex. 1 at 1. Not surprisingly in light of this, the 1966 leases were attached in full to the standard forms, with certain provisions expressly referenced therein. See 1989 Renewal Forms §14 (referring to the “attached original lease agreement”). Underscoring the fact that the renewal was under the terms of the 1966 leases, BLM, during the process leading up to renewal, withdrew an earlier decision that would have altered the terms of those leases. More specifically, in 1986 an official at BLM’s Milwaukee office submitted a memo offering “recommendations regarding the renewal of the leases.” Ex. 5 (BLM Letter) at 1 (July 9, 1986). These recommendations would have changed the 1966 lease terms in various ways, including by requiring that “INCO … produce 1% of the reserves … by the date of lease expiration.” Id. at 2. “Failure to The Honorable Hilary Tompkins July 1, 2016 Page 6 comply” with that requirement, the memo recommended, “would result in the termination of both leases.” Id. As the 1986 memo recommended, BLM initially sent lease-renewal forms that would have altered the terms and conditions of the original leases. See Ex. 6 (Sept. 12, 1988). A month later, however—after “further review of the leases and their case files”—another official at BLM’s Milwaukee office wrote to “revise our recommendations concerning the subject renewals.” Ex. 3 at 1. He rejected the 1986 memo’s call to revise the lease terms (including by adding a production requirement), instead recommending that “these leases be renewed under the existing terms and conditions.” Id. at 2. As to a production requirement, he noted that “these INCO leases contain a high minimum royalty payment requirement, which was agreed would serve as the production incentive,” and further concluded that a production requirement would be “inappropriate.” Id. BLM promptly embraced these recommendations, withdrawing the lease-renewal forms previously sent to INCO. The withdrawal letter explained that “the new lease forms submitted for signature [would have] alter[ed] the terms and conditions of the original leases.” Ex. 7 (BLM Vacatur Decision) at 1 (Nov. 7, 1988). Instead, BLM sent short standard lease forms, together with full copies of the 1966 leases, explaining, as mentioned, that the renewal was “under the existing terms and conditions of the original leases.” Ex. 1 at 1. The 1989 standard forms referred to the lessee’s “preferential right” to renew, but did not define the phrase. 1989 Renewal Forms part I. The forms did not include an integration clause.1 3. 2004 Renewal After the 1989 renewal, American Copper and Nickel, Inc. acquired leases MNES-01352 and MNES-01353. In 1999, it timely applied for a second ten-year renewal. BLM renewed the leases in 2004, using the very same standard forms the 1 While INCO’s renewal application was pending, BLM asked the Solicitor’s Office whether it could renew the leases even though production had not begun. In a memo dated April 2, 1986, an assistant solicitor concluded that the lease could be extended “for a period not exceeding 10 years,” but that “[i]f production does not occur during th[at] period of extension, no further extensions will be allowed.” Att. to Solicitor’s Opinion at 1. As explained herein, that reading of the leases was wrong—and BLM recognized it was wrong, because even though production had not yet begun by 2004 (which would have prohibited renewal according to the assistant solicitor), BLM because renewed the leases that year. The Honorable Hilary Tompkins July 1, 2016 Page 7 parties had executed in 1989 (and again attaching the 1966 leases in full). See 2004 Renewal Forms. Although the 1989 and 2004 forms were the same, the processes leading up to the renewals in those two years were significantly different. As just discussed, in 1989 BLM engaged in significant internal discussions, seeking advice on renewal before issuing certain lease forms and then withdrawing those and issuing others. In 2004, by contrast, there was no significant discussion about renewal terms, either within the government or between the parties. Instead, BLM—speaking through the same official who oversaw the 1989 renewal (Vincent Vogt)—simply recommended that the leases be renewed “for ten years, as stipulated within the lease language.” Ex. 8 (BLM Letter) at 1 (Apr. 12, 1999). Similarly, the Forest Service stated that it “has no objection to the renewal of the above preference right leases. The terms, conditions and stipulations have been reviewed, and it has been determined that they are sufficient to protect the resources of the United States.” Ex. 9 (Forest Service Memo) at 1 (July 18, 2003). Like the (identical) 1989 standard forms, the 2004 forms did not include an integration clause, and they referred to the lessee’s “preferential right” to renew without defining that phrase. C. Solicitor’s Opinion Twin Metals acquired the leases at issue in 2011. The following year, it applied for a third ten-year renewal. BLM then asked your office “whether it has the discretion to grant or deny Twin Metals Minnesota’s pending application for renewal.” Solicitor’s Opinion 1. Both at an in-person presentation on January 14, 2016, and by memorandum dated January 26, 2016, Twin Metals detailed for your office its position that BLM has no discretion to deny lease renewal. Twin Metals also responded to questions raised by you and by letter from the Northeastern Minnesotans for Wilderness. On March 8, 2016, your office issued the Opinion, taking the position (p.1) that Twin Metals “does not have a non-discretionary right to renewal, but rather the BLM has discretion to grant or deny the pending renewal application.” As explained at the outset of this letter, that position rests on three principal conclusions. First, the Opinion asserts (p.6) that the 2004 standard forms are “complete, integrated documents,” and thus their renewal provision governs the analysis here. In making this assertion, the Opinion does not acknowledge the lack of any integration clause in the 2004 standard forms. The Opinion does recognize that the 1966 leases The Honorable Hilary Tompkins July 1, 2016 Page 8 were attached and referred to in the 2004 standard forms, but it concludes that the parties incorporated “only two provisions from the 1966 leases.” Id. It does not explain how that could be true, however, given that: (1) the 1989 renewal was “under the existing terms and conditions of the original leases,” Ex. 1 at 1, and (2) the 2004 forms were the same ones used in 1989. Second, based solely on the phrase “preferential right,” the Opinion (p.5) interprets the 2004 standard forms as granting Twin Metals only a “a right to be preferred against other parties.” According to the Opinion (id.), the department has “consistently interpreted” the phrase “preferential right” “as not entitling the lessee to an automatic right of renewal.” The Opinion rejects as “without merit” (p.7) Twin Metals’ argument that that phrase is in fact is ambiguous. The Opinion accordingly refuses (p.6) to consider any of the extrinsic evidence that Twin Metals maintained confirms that “BLM intended to simply renew the leases under the exact same terms of the 1966 leases.” Third, the Opinion concludes (p.8) that even if the 1966 leases governed, “they do not prohibit the BLM from exercising its discretion to decide whether to renew the leases.” Ignoring the unqualified renewal right in section 1, the Opinion focuses on section 5, which reads: The Lessor shall have the right to reasonably readjust and fix royalties payable hereunder at the end of the primary term of this lease and thereafter at the end of each successive renewal thereof unless otherwise provided by the law at the time of the expiration of any such period, and to readjust other terms and conditions of the lease, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover; provided, however, that the Lessee shall have the right to three successive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production[.] 1966 Leases §5 (emphasis added). The Opinion (p.10) reads section 5 to mean that “production is the condition precedent for the lessee to obtain any lease renewals of right.” In particular, the Opinion (p.9) interprets the emphasized “unless” clause to qualify “the very right to renew” rather than the right described in the immediately preceding phrase, i.e., the right to renew with BLM’s readjustment authority limited as described in the balance of section 5. The Honorable Hilary Tompkins July 1, 2016 Page 9 ARGUMENT I. UNDER THE 1966 LEASES, WHICH GOVERN THE ANALYSIS HERE, T WIN METALS HAS A NON-DISCRETIONARY RIGHT TO RENEW A. The Parties Incorporated The 1966 Leases In Full Into The 2004 Standard Forms The Solicitor’s Opinion concludes (p.6) that whether Twin Metals has a nondiscretionary right to renew the leases at issue is governed by the renewal provision in the 2004 standard forms, rather than its counterpart in the 1966 leases, because the 2004 standard forms are supposedly “complete, integrated documents.” That is not correct. “A written contract is considered integrated when the parties intend it to constitute the complete and final expression of their agreement.” Starter Corp. v. Converse, Inc., 170 F.3d 286, 295 (2d Cir. 1999) (citing Farnsworth, Contracts §7.3 (2d ed. 1990)). “When a contract lacks an express integration clause [courts] must ‘determine whether the parties intended their agreement to be an integrated contract by reading the writing in light of the surrounding circumstances.’” Id. (emphasis added); see also, e.g., McAbee Constr., Inc. v. United States, 97 F.3d 1431, 1434 (Fed. Cir. 1996) (“extrinsic evidence is ‘especially pertinent … where … the writing itself contains no recitals or other evidence testifying to its intended completeness and finality’”); Montwood Corp. v. Hot Springs Theme Park Corp., 766 F.2d 359, 362 (8th Cir. 1985) (“absence [of an integration clause] is relevant in determining whether the parties intended to integrate their entire agreement into the document” at issue). Here, the 2004 standard forms lack an integration clause—a point not mentioned in the Solicitor’s Opinion. That “very basic fact,” United Precision Prods. Co. v. Avco Corp., 540 F. App’x 489, 493 (6th Cir. 2013), requires consideration of extrinsic evidence.2 Once extrinsic evidence is considered, it is clear that the parties did not intend the 2004 forms to be a “complete and final expression of their agreement.” Starter Corp., 170 F.3d at 295. The forms are short, boilerplate documents, and hence unlikely to encompass all of the parties’ intended terms for such a consequential and complex undertaking. Furthermore, the 2004 forms’ execution was preceded by virtually no discussion—much less actual negotiation—of any contract terms. Again, particularly 2 Even where there is an integration clause, that is not necessarily “conclusive,” and courts will still look to the “surrounding circumstances.” United States v. Basin Elec. Power Coop., 248 F.3d 781, 809 (8th Cir. 2001) (citing Restatement (Second) of Contracts §209 cmt. b (1981)). The Honorable Hilary Tompkins July 1, 2016 Page 10 given the monumental economic interests at stake, this factor further weighs heavily against a finding of integration. See, e.g., ARB (American Research Bureau), Inc. v. ESystems, Inc., 663 F.2d 189, 199 (D.C. Cir. 1980) (“The length of the contract, its exhaustive detail, and the prolonged period of negotiation preceding its signing, collectively considered, support [the] conclusion” that the contract was integrated.). It is all the more implausible that in 2004 the parties intended to depart from the terms of the 1966 leases given that: (1) those leases were attached to the 2004 forms (as they were with the 1989 forms), and (2) all of the 1966 lease terms were in effect when the 2004 renewal was executed. See Ex. 1 at 1 (government agreeing to the 1989 renewal “under the existing terms and conditions of the original leases”). The Opinion disputes this second point, asserting (p.6) that “only two provisions from the 1966 leases” were incorporated in 2004, via “two special stipulations.” But that cannot be right. As just mentioned, the government acknowledged that the 1989 renewal was “under the existing terms and conditions of the original leases,” i.e., all of those existing terms. And the 1989 forms contained the exact same stipulations that the Opinion points to in the 2004 forms as evidence that only the provisions mentioned in those stipulations were incorporated. See 1989 Renewal Forms §14. The Opinion’s conclusion, in short, is that by filling out the same form in 2004 that they had filled out in 1989, in the same way that they had in 1989, and by attaching the same complete copy of the 1966 leases that they had attached in 1989, the parties—without a word to one another on the topic—agreed not only to do something different than what they had done in 1989, but also to do something far-reaching, namely to significantly revise the deal they had both lived under for nearly four decades. That is extraordinarily unlikely. The Opinion appears to address this point in asserting (p.6) that “the 1989 and 2004 renewals differ … because the BLM’s discretion was limited in 1989 but not in 2004.” It was “limited in 1989,” according to the Opinion, because “the 1989 renewal served as a one-time extension of time for commencement of production, as authorized under section 5 of the 1966 leases.” Id. A threshold flaw in this assertion is its premise that section 5 created a production requirement. In fact, as BLM recognized, that section created a production incentive, see Ex. 3 at 1, while also adopting higher-thannormal royalty payments in lieu of a production requirement. In any event, the Opinion points to nothing even suggesting that the 1989 renewal was an extension rather than an actual renewal. No extension was requested, and the relevant contemporaneous documents—including the leases themselves—use the term “renewal,” not “extension.” Indeed, the leases use that term in the title (which surely describe what the document is), as well as in the very opening sentence of text: “This … Lease Renewal … is effective … Jul[y] 01, 1989….” 1989 Renewal Forms at 1. The cover sheet transmitting the forms likewise repeatedly used the term “renewal,” stating: “The Forest Service The Honorable Hilary Tompkins July 1, 2016 Page 11 and [BLM] have agreed to the renewal of the enclosed Preference Right Leases …. Enclosed are lease renewal forms transmitted for your signature and return to this office.” Ex. 1 at 1; see also Ex. 5 at 1 (BLM letter repeatedly using the word renewal); Ex. 3 (same); Ex. 7 (same); Ex. 10 (similar for Agriculture Department memo dated June 19, 1986). This consistent terminology confirms that the 1989 renewal was just that, and not a production extension. In fact, the Opinion appears to recognize this, as it says the 1989 renewal was only “effectively” an extension (p.6). Even if the 1989 renewal were an extension, moreover, the 2004 renewal would have to be as well, because again—although the Opinion ignores this crucial fact—those two renewals are identical. Hence, if the 1989 renewal “limited” BLM’s discretion (Opinion 6), then so did the 2004 renewal. There is no basis to distinguish between the two. And given the government’s acknowledgement at the time that the 1989 renewal was done under all the terms and conditions of the original leases, see Ex. 1, it cannot now retroactively deny that the identical 2004 renewal was as well. The Opinion also claims (p.6) that “nothing in the … 2004 leases … states that the 1966 terms somehow govern over the terms expressly set out in the 2004 leases.” That flips contract law on its head. As a leading treatise explains, “two or more agreements, though of a similar nature and made between the same parties, will not be read together when the later one expressly states that it supersedes or annuls the prior one.” 11 Lord, Williston on Contracts §30:26 (4th ed. 2012) (emphasis added). Hence, the question is not, as the Opinion contends (p.6), whether the 2004 forms “expressly set out” that the 1966 Leases govern. The question instead is whether the 2004 standard forms “expressly state[]” that they have “supersede[d] or annul[ed]” the 1966 leases. They do not. The “subsequent writing” should therefore be “construed in harmony with the original contract.” Fairbrook Leasing, Inc. v. Mesaba Aviation, Inc., 295 F. Supp. 2d 1063, 1075 (D. Minn. 2003). Put simply, the only reasonable conclusion is that the 1989 and 2004 documents were identical because the two renewals were identical: Each incorporated all of the terms in the attached 1966 leases. That conclusion makes sense because the 1966 leases, as discussed, were the product of extensive negotiations, carried out over a decade. Given the enormous effort that went into hammering out the terms of those leases, it would be entirely sensible for the parties to want to retain them. See Arborjet, Inc. v. Rainbow Treecare Sci. Advancements, Inc., 794 F.3d 168, 172 (1st Cir. 2015) (Souter, J.) (“Common sense is as much a part of contract interpretation as is the dictionary or the arsenal of canons.”); Westchester Fire Ins. Co. v. Wallerich, 563 F.3d 707, 712 (8th Cir. 2009) (“The language must be considered within its context, and with common sense.”). The Honorable Hilary Tompkins July 1, 2016 Page 12 Because the parties incorporated the 1966 leases in 2004, it is the renewal provision in the leases that controls. B. The 1966 Leases Establish A Non-Discretionary “Right In The Lessee To Renew … For Successive” Ten-Year Periods The analysis of whether the 1966 leases gives Twin Metals a non-discretionary right to renew the lease “begins with the language of the written agreement.” NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004). In conducting that analysis, the contract must be “construe[d] … as a whole so as not to render any terms meaningless.” Affordable Cmtys. of Mo. v. Federal Nat’l Mortg. Ass’n, 714 F.3d 1069, 1075 (8th Cir. 2013) (quotation marks omitted). Only Twin Metals’ interpretation of the leases is consistent with these tenets. As explained below, section 1 of the leases governs whether Twin Metals has a right to renew—and it answers that question in the affirmative, unambiguously establishing a non-discretionary and unqualified right to successive renewals. Section 5 then governs the terms of any renewal, addressing the scope of BLM’s readjustment authority under certain conditions. This reading “harmonize[s] and give[s] reasonable meaning to all of [the contract’s] parts.” NVT Techs., 370 F.3d at 1159. The interpretation adopted by the Solicitor’s Opinion’s, by contrast, renders meaningless the renewal right established in section 1, and improperly reads critical language out of section 5. 1. Section 1 Entitled “Rights of Lessee,” section 1 of the 1966 leases establishes “a right in the Lessee to renew … for successive periods of ten (10) years each in accordance with regulation 43 CFR § 3221.4(f) and the provisions of this lease.” 1966 Leases §1(a). This language is clear: Twin Metals has a “right … to renew” for “successive” ten-year periods. Nothing in the other “provisions of th[e] lease” or the cited regulation diminishes that right. The Opinion nowhere attempts to give meaning to the renewal language in section 1. Indeed, although the Opinion describes section 1 as one of “[t]he three relevant provisions in the 1966 leases” (p.4), it then ignores that section’s renewal language in its eight pages of analysis. That is remarkable because the entire issue here The Honorable Hilary Tompkins July 1, 2016 Page 13 is the scope of the renewal right under the leases. The Opinion’s complete disregard of the language that speaks directly to the “right in the Lessee to renew” is telling.3 2. Section 5 According to the Opinion (pp.8, 10), section 5 of the 1966 leases contains a “conditional renewal provision,” under which “production is the condition precedent for the lessee to obtain any lease renewals of right.” That is not correct. As discussed above, BLM repeatedly acknowledged over the years that the 1966 leases do not contain a production requirement—and affirmatively reversed course after attempting to impose one as part of the 1989 renewal. BLM’s acknowledgements were wellfounded, given that a production requirement would have been wholly irrational. As INCO made clear in the negotiations preceding the 1966 leases, the area covered by the leases poses special challenges, such that production within the original 20-year lease term would be impossible. Given that, it defies reason and common sense to conclude that INCO would have agreed to condition its renewal rights on production. It did not. The text of section 5 makes this clear. To begin with, the section’s title, “Renewal Terms,” leaves no doubt that the section speaks to the terms of any renewal, not to whether Twin Metals has an unconditional right to renew in the first place. See, e.g., In re Coffman, 766 F.3d 1246, 1251 (11th Cir. 2014) (“title[s] and headings are permissible indicators of meaning” (alteration in original)). A sentence-by-sentence analysis of the section confirms that conclusion. a. sentence one The first sentence of section 5 consists of two principal clauses, separated by a semi-colon. The first clause grants BLM certain “readjust[ment]” rights upon renewal, while the second imposes a limitation on those rights: The Lessor [BLM] shall have the right to reasonably readjust and fix royalties payable hereunder at the end of the primary term of this lease and thereafter at the end of each successive renewal thereof unless otherwise provided by law at the time of the expiration of any such period, and to readjust other terms and conditions of the lease, including the revision 3 Underscoring the extent to which it seeks to avoid engaging with the section 1 renewal language, the Opinion states (p.10) that Twin Metals “reads … section 5 to grant the lessee a non-discretionary right of renewal.” That is wrong. Twin Metals’ consistent position has been that the “non-discretionary right of renewal” is granted by section 1, with section 5 governing (as its title states) the “Renewal Terms.” The Honorable Hilary Tompkins July 1, 2016 Page 14 of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover; provided, however, that the Lessee [Twin Metals] shall have the right to three successive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day. The structure of this sentence leaves no doubt about its meaning: The clause before the semi-colon establishes a general rule, namely that each time the lease is renewed BLM can “reasonably readjust … royalties” and “readjust other terms and conditions.” The clause after the semi-colon then creates an exception to that general rule—for the first “three successive ten-year renewals,” BLM’s royalty readjustments are capped and adjustment of other terms and conditions is barred—but adds that this exception does not apply if the lessee has not “begun production” by the end of the original 20-year lease term. Hence, the consequence of a failure to begin production within that term is not denial of any right to renew, as the Opinion asserts. As explained, the right to renew is granted in section 1 (which, again, the Opinion ignores), and there is no basis to conclude that this separate section (which nowhere refers to section 1) limits that right. Rather, under section 5 the consequence of a failure to begin production within the original term is that even for the first three renewals, BLM can reasonably adjust royalties without regard to the specified caps as well as reasonably adjust “other terms and conditions.”4 The Opinion offers a different reading of the first sentence of section 5. It states (p.9) that the “unless” clause at the end of the sentence “qualifies the very right to renew.” This meaning is supposedly demonstrated by “plac[ing]” the clause “next to 4 Based apparently on section 5’s reference to “three … renewals,” the Opinion states at the outset (p.1) that the 1966 leases offered “the possibility of three ten-year renewals” in total, i.e., no more than three renewals under any circumstances. See also id. at 11. In reality, the “three … renewals” reference refers to the number of renewals with limited BLM royalty readjustments that the lessee would be entitled to if it began production during the original 20-year lease term. The Opinion’s assertion on this point just underscores that its reading renders section 1 meaningless. That section establishes a right to “successive” renewals—without further limitation. Section 5 similarly refers in the opening clause to (unlimited) “successive” renewals. The Honorable Hilary Tompkins July 1, 2016 Page 15 the provision it actually qualifies: ‘[T]he Lessee shall have the right to three successive ten-year renewals of this lease … unless at the end of the primary term of this lease the Lessee shall not have begun production.’” Id. (alteration and ellipsis in original). This reading is untenable. To begin with, the “unless” clause appears in the part of the sentence following the semi-colon. But as the Opinion repeatedly recognizes, everything after the semi-colon is a proviso (hence the phrase “provided, however, that”). That is important because a proviso, by definition, is not a standalone provision; it instead qualifies “the matter immediately preceding” it. Black’s Law Dictionary 1420 (10th ed. 2014); accord, e.g., Barnhart v. Thomas, 540 U.S. 20, 26 (2003) (“[A] limiting clause or phrase … should ordinarily be read as modifying only the noun or phrase that it immediately follows.”); Rintoul v. Sun Life Assurance Co. of Can., 142 F.2d 776, 778 (7th Cir. 1944) (“A proviso is construed to apply to the provision or clause immediately preceding.”). Under the Opinion’s reading, however, the proviso is a standalone provision: It creates a freestanding “right to renew,” unconnected to the material before the semi-colon—material that “describes the BLM’s right to readjust the royalties and other terms and conditions at the renewal stage.” Opinion 9. That does not make sense. A clause establishing a freestanding right to renew is not in any proper sense of the word a “proviso” to a clause regarding BLM’s readjustment rights. By contrast, Twin Metals’ reading respects the second clause’s status as a proviso. As explained, under this reading the second clause confers not a right to renew simpliciter, but rather a right to renew with limits on BLM’s readjustment authority. That is a proper proviso, because the immediately preceding clause is what gives BLM the right to make those readjustments in the first place. The Opinion’s reading also requires that a portion of the first sentence of section 5 be deleted entirely. As noted, the Opinion states that: the proper meaning of the proviso is clear when the last clause is placed next to the provision it actually qualifies: “[T]he Lessee shall have the right to three successive ten-year renewals of this lease … unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day.” Opinion 9 (alteration and ellipsis in original). But this is not what the contract says. Upon reinserting (and emphasizing) the language that the Opinion replaced with an ellipsis, the sentence reads: The Honorable Hilary Tompkins July 1, 2016 Page 16 provided, however, that the Lessee shall have the right to three successive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production. 1966 Leases §5 (emphasis added). The Opinion’s approach is not legitimate; text cannot simply be deleted for purposes of interpretation. And doing so here is particularly inappropriate because the deleted text is a restrictive modifier, describing which “right to … renew[]” depends on production “hav[ing] begun.” Deleting the restrictive modifier thus effects a significant substantive change in the contract. The Opinion (p.9) rejects this analysis on the ground that the use of the word “and” between the two readjustment phrases (i.e., readjustment of royalties and readjustment of other terms and conditions) “ties them together as a single modifier to the right-to-renew language.” The Opinion asserts that because of this, the “unless” clause “cannot merely qualify the readjustment phrases, … but must apply to the overall right of renewal.” Id. But the Opinion does not explain why that conclusion necessarily (or logically) follows, and it does not. That the right to renew described in section 5 includes two benefits—limited readjustment of royalties by BLM and no readjustment of other terms and conditions—rather than one has no bearing on what the “unless” clause modifies. This point, and the Opinion’s erroneous reading of the first sentence of section 5 more generally, is illustrated with a simpler hypothetical. Imagine an airline ticket that stated: The ticket holder shall have the right to board the aircraft with one large carry-on and one personal item unless the overhead compartments are full. As shown by the side-by-side immediately comparison below, this sentence has the same basic structure as the section 5 proviso. The phrase “[t]he ticket holder shall have the right to board the aircraft” corresponds to “the Lessee shall have the right to successive … renewals”; the phrase “with one large carry-on item and one personal item” corresponds to “with any readjustment in the royalties…” (i.e., all of the italicized language in the prior block quotation); and the two “unless” clauses correspond: The Honorable Hilary Tompkins July 1, 2016 Page 17 1966 Leases [1] the Lessee shall have the right to three successive ten-year renewals of this lease [2] with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease [3] unless at the end of the primary term of this lease the Lessee shall not have begun production Airline Ticket [1] The ticket holder shall have the right to board the aircraft [2] with one large carryon and one personal item [3] unless the overhead compartments are full. Under the Opinion’s reasoning, this airline provision would mean that if the overhead compartments are full, then the passenger has no right to board the aircraft at all. It would have that meaning because under the Opinion’s reasoning, the “ticket holder shall have the right to board” language creates a freestanding “right to board,” just like section 5 supposedly creates a freestanding “right to renew,” and the “unless the overhead compartments are full” language modifies that freestanding right (just like the “unless” clause in section 5 supposedly “qualifies the very right to renew,” Opinion 9). But that is obviously not what the airline ticket means. It means instead that when the overhead compartments are full, the person may still board the plane, but has no right to do so with one large carry-on item and one personal item. Likewise, section 5 says that if production has not begun, the lessee still has the right to renew, but does not have the right to do it with caps on BLM’s royalty-readjustment authority and a prohibition on BLM’s adjustment of other terms and conditions. Even this hypothetical, however, addresses only one of the Opinion’s errors, namely deleting the crucial restrictive modifier. The hypothetical does not address two additional errors mentioned above: the Opinion’s failure to give any meaning to section 1 of the 1966 leases, and the Opinion’s failure to account for the fact that the material after the semi-colon in section 5’s first sentence is a proviso. Those two errors can be illustrated by making three additional assumptions about the airline ticket. First, assume the hypothetical language above appears in a section of the ticket entitled “Terms of Boarding,” just as section 5 of the leases is entitled “Renewal Terms.” Second, assume there is a separate section of the ticket entitled “Ticketholder’s Rights,” just as section 1(a) of the leases is entitled “Rights of Lessee,” and that this separate section states: “The Ticketholder shall have the right to board the aircraft in accordance with FAA regulations and the provisions of this ticket.” The Honorable Hilary Tompkins July 1, 2016 Page 18 Third, assume that the original airline provision (regarding boarding with one carry-on and one personal item) is a proviso, with the immediately preceding language stating that the airline “may limit carry-on items for safety or other reasons.” Putting these assumptions together with the original language, the ticket would say: Section 1. Ticket holder’s Rights: The ticket holder shall have the right to board the aircraft in accordance with FAA regulations and the provisions of this ticket. Section 5. Terms of Boarding: The airline may limit ticket holders’ carryon items for safety or other reasons; provided, however, that the ticket holder shall have the right to board the aircraft with one large carry-on and one personal item unless the overhead compartments are full. Again, under the Opinion’s reasoning, the proper reading of section 5 of the ticket would be that if the overhead compartments are full, the ticketholder has no right to board at all—notwithstanding that section 1 is what creates the right to board, notwithstanding that the section 5 right is only a right to board with a large carry-on and a personal item (and hence only that right is qualified by the “unless” clause), and notwithstanding that this reading gives no effect to the proviso’s status as such. That reading is indefensible as to the airline ticket, and it is indefensible as to the 1966 leases. b. sentence two The Solicitor’s Opinion asserts (p.9) that its “conclusion is further reinforced by the second sentence of section 5.” That sentence states: The Secretary of the Interior may grant extensions of time for commencement of production in the interest of conservation or upon a satisfactory showing by the Lessee that the lease cannot be successfully operated at a profit or for other reasons, and the Lessee shall be entitled to renewal as herein provided without readjustment except of royalties payable hereunder if at the end of the primary or renewal period such an extension shall be in effect, but the Lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time. This sentence’s meaning is straightforward—particularly when one recalls that the preceding sentence provided that if production had not commenced by the end of the original lease term then the lessee’s right to have BLM’s adjustment authority limited during the first three renewals did not apply, that is, BLM could make reasonable adjustments for all renewals. The second sentence then says that if the Secretary The Honorable Hilary Tompkins July 1, 2016 Page 19 extends the time for commencing production, and the extension is in effect when the time comes to renew, then the lessee has the right to renew “without readjustment except of royalties payable hereunder.” The final clause (“but the Lessee”) then provides that this “without-readjustment” right does not extend to later renewals unless production begins before the end of the extension period. Although the Opinion agrees with Twin Metals’ reading of most of the sentence, it reads the last clause (“but the Lessee…”) differently—and that difference leads the Opinion to state (p.10) that the sentence “reinforces the preceding sentence’s condition precedent that there must be production before the lessee has a ‘right’ to subsequent renewals.” The flaw in that interpretation is that it reads out of the contract the critical word “such” in the “but the Lessee” clause. Again, the clause states that “but the Lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time.” Hence, the clause does not, as the Opinion asserts, make production a condition precedent to any renewals. It instead makes production a condition precedent to “such renewals.” The “such” refers to the “renewals” described earlier in the same sentence, i.e., “renewal … without readjustment except of royalties payable hereunder.” As with the first sentence of section 5, then, the Opinion’s reading of the second sentence depends on deleting crucial language in the contract. That is not permissible. c. sentence three The third sentence of section 5 specifies the limits on royalty adjustments that BLM may make under the circumstances specified in the first two sentences. In particular, it states that “[i]f the Lessee shall be entitled to renewal without readjustment except of royalties payable hereunder, the Secretary of the Interior may in his discretion increase the royalty rates” by percentages specified in the balance of the sentence. Regarding this sentence, the Opinion states (p.10) only that “without production, there would be no such entitlement.” That is true but as explained, the “entitlement” to which the third sentence refers is “renewal … without readjustment except of royalties.” Under the Opinion’s reading, by contrast, the “entitlement” is to renew at all. Because that is not how the third sentence defines the relevant “entitlement,” that sentence likewise refutes the Opinion’s interpretation. * * * Sections 1 and 5 of the 1966 leases have distinct terms and purposes. Section 1 establishes Twin Metals’ unqualified “right … to renew” for unlimited “successive The Honorable Hilary Tompkins July 1, 2016 Page 20 periods of ten … years.” Section 5 governs the terms of such renewals—without imposing a production requirement. The Opinion’s contrary reading cannot be reconciled with the contractual text. C. The Opinion’s Remaining Arguments Lack Merit The Opinion offers various other arguments in support of its conclusion that section 5 imposes a production requirement, and more generally that BLM has discretion to deny renewal. None of these arguments has merit. 1. The Opinion states (p.11) that its interpretation “is consistent with the regulation regarding renewal applications cited in the lease.” In fact, the cited regulation, 43 C.F.R. §3221.4(f) (1966), supports Twin Metals’ interpretation. Far from suggesting any authority to deny renewal (whether based on a production requirement or otherwise), §3221.4(f) stated: “The lessee will be granted a right of renewal for successive periods, not exceeding 10 years each, under such reasonable terms and conditions as the Secretary of the Interior may prescribe” (emphasis added). The word “will” makes clear that renewal is non-discretionary. The Solicitor’s Opinion (p.8) quotes this language from the regulation but argues that it merely led BLM to “include[] a conditional renewal provision in section 5 of the 1966 leases.” That argument fails for the reasons already discussed, namely that section 5 concerns only the terms of renewal. The argument also repeats the Opinion’s fundamental error of ignoring the renewal provision in section 1. The Opinion cannot simply write out central provisions of the contract. The Opinion also discusses this regulation’s last sentence, which prescribes procedural requirements for a lease-renewal application. Specifically, the sentence states: “An application for renewal of the lease must be filed in a manner similar to that prescribed for extension of a [prospecting] permit in § 3221.3(a)” (emphasis added). The Opinion (p.11) reasons from this language that because §3221.3(a) requires a person seeking an extension of a prospecting permit to show that he or she has “diligently performed prospecting activities,” §3221.4(f) must require a person who is filing for renewal of a lease to make “a showing of diligence in performing … production.” That is meritless. The last sentence of the regulation draws a link between a lease renewal and a prospecting application only for purposes of the “manner” in which each “must be filed.” The requirement that a prospecting applicant show diligence is not part of the “manner” in which an application is filed. In any event, the fact that a lessee has not begun The Honorable Hilary Tompkins July 1, 2016 Page 21 production does not demonstrate a lack of “diligence in performing the lease activities.” Opinion 11. Diligence means “[e]arnest and persistent application to an undertaking; steady effort.” American Heritage Dictionary of the English Language 523 (3d ed. 1992). Given the extreme challenges involved in mining in the relevant areas, a lessee can certainly make a “steady effort” and yet not start production within the original lease term—a reality recognized by section 5 of the 1966 leases, which as discussed authorized the Secretary of the Interior to grant extensions of time for the beginning of production. 2. The Opinion suggests (p.11) that its interpretation of the 1966 leases is consistent with congressional intent. As discussed, however, Congress authorized mining in the Superior National Forest by means of “special legislation to meet a special situation with respect to investment losses resulting from cancellation of mining permits in the Minnesota forests.” S. Rep. No. 81-1778, at 2. Congress recognized the devastating effect that withdrawal of mining authorization can have on a company, and emphasized the importance of security in mining investments. See id. It thus stated that those companies “who have made investments for the mining and removal of mineral substances from the described lands should be given the privilege of renewing or retaining their permits or leases.” H.R. Rep. No. 792, at 2. For the government to suddenly reverse course after Twin Metals and its predecessors have held the leases for half a century—and invested $400 million in acquisition, exploration, technical development, and other preliminary activities to define the mineral deposit and prepare for future development of the resource—utterly fails to respect congressional intent in this regard.5 3. Citing no authority, the Opinion asserts (p.11) that Congress was concerned about ensuring “a fair return to the American taxpayer.” To begin with, as just explained what spurred Congress to act was concern about harm to mining companies. But even assuming the Opinion is correct on this point, that does not justify the Opinion’s conclusion. Taxpayers have received a fair return under the leases, and if the leases are renewed they would continue to do so. The leases provide that return via significantly higher-than-usual minimum royalties—pursuant to which Twin Metals and its predecessors have paid over $1.4 million to the taxpayers. 4. Relatedly, the Opinion rejects (p.13) Twin Metals’ explanation that the 1966 leases include higher-than-usual minimum royalty payments in lieu of a production requirement. But the authority the Opinion relies for this point, General Chemicals 5 The $400 million expenditure also refutes the Opinion’s suggestion that Twin Metals has not been “diligent” in preparing for production. The Honorable Hilary Tompkins July 1, 2016 Page 22 (Soda Ash) Partners, 176 I.B.L.A. 1 (2008), is inapposite because it involved starkly different contractual language (and mineral rights). The appellant in General Chemicals argued that under both a department regulation and the terms of the relevant lease, payment of minimum royalties satisfied the lease’s production requirement. See id. at 9. The Board disagreed based on a provision of the relevant lease stating that “[t]he authorized officer will reject an application for renewal of this lease if, at the end of the lease’s current term, sodium is not being produced.” Id. at 5. That phrase is a clear production requirement—but there is nothing remotely like it in the 1966 leases. If anything, then, General Chemicals undermines the Opinion’s conclusion, by showing that the department knows how to include a production requirement in its leases when it wants to, and that it did not do so here. The Opinion also states in a footnote (p.12 n.19) that “[t]he original leases do not mention minimum royalties as a way to fulfill the production requirement.” That omission is unsurprising given that there is no production requirement. Moreover, the Opinion’s implication that the original leases draw no link between production and minimum royalties is wrong: Section 2(c) states that the lessee agreed, “[b]eginning after the tenth year of the lease …, to mine each year from the area covered by the lease a quantity” that would produce a specified royalty, “or in lieu thereof to pay … as royalty” certain specified amounts. 5. Finally, the Opinion notes (p.12) that a 1986 memorandum by an assistant solicitor “concluded that the BLM is not required to renew the 1966 leases as a matter of right if there has been no production.” The assistant solicitor concluded that the original leases could be “extended … for a period not exceeding 10 years,” but that “[i]f production does not occur during th[at] period of extension, no further extensions will be allowed.” Att. to Solicitor’s Opinion at 1. For the reasons discussed above, that opinion is wrong. Section 5 of the 1966 leases does not place a ten-year limit (or any other limit) on the extensions of time that may be granted to start production, nor do the leases cap the permissible number of renewals in the event production has not begun (let alone cap it at one). The 1986 opinion is also tenuous authority indeed given that BLM itself disagreed with the assistant solicitor, renewing the leases for a second time in 2004 despite the absence of production—a step the assistant solicitor’s opinion said was prohibited. II. EVEN I F THE 2004 R ENEWAL FORMS CONTROL, TWIN METALS HAS A NONDISCRETIONARY RIGHT TO RENEW Even if the 2004 renewal forms had superseded the 1966 leases, the Opinion’s analysis would still fail. Because the renewal provision in the 2004 standard forms is The Honorable Hilary Tompkins July 1, 2016 Page 23 ambiguous, extrinsic evidence must be considered. And for the reasons set forth above, as well as in Twin Metals’ letter and memorandum to you dated January 26, 2016, the relevant extrinsic evidence confirms the parties’ intent: that Twin Metals has a nondiscretionary right to successive renewals. The 2004 forms provide for a “preferential right in the lessee to renew for successive periods of 10 years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.” The Opinion (p.7) interprets this provision to give BLM “discretion to decide whether to renew the leases.” This interpretation rests exclusively on the undefined phrase “preferential right.” That phrase, the Opinion asserts, is unambiguous, giving Twin Metals only the right to be preferred against other parties if BLM decides to continue leasing, and not an entitlement to renewal. Id. at 5, 7. That reasoning is flawed. As the D.C. Circuit has held: “The meaning of the term [‘preference right lease’] is, in fact, ambiguous.” Natural Res. Def. Council, Inc. v. Berklund, 609 F.2d 553, 557 (D.C. Cir. 1979) (per curiam), cited in Utah Int’l, Inc. v. Andrus, 488 F. Supp. 976, 983-984 (D. Colo. 1980). Indeed, a source on which the Opinion itself relies for its conclusion (p.5)—a 1982 Solicitor’s opinion—confirms that the phrase is susceptible to two different meanings. See Sodium Lease Renewals, 89 Interior Dec. 173, 177-178 (1982). There, the Solicitor acknowledged that “preference right” can refer either to a “noncompetitive ‘entitlement lease[]’” or the right to be “preferred against third parties.” Id. at 177, 178. The Opinion here does not discuss Berklund—which also noted that “the term [‘preference right lease’] has … been construed by the agency consistently for nearly 60 years to mean an automatic entitlement of a prospecting permittee who establishes the presence of commercial quantities of coal in the area covered by the permit,” 609 F.2d at 558-559 (emphasis added). The Opinion does discuss Sodium Lease Renewals, trying to distinguish it by arguing (p.7) that the analysis there “focused on the rights obtained in the initial leasing decision.” That is irrelevant. The question is whether the undefined phrase “preferential right” is “‘susceptible of more than one reasonable interpretation.’” Giove v. Department of Transp., 230 F.3d 1333, 1341 (Fed. Cir. 2000). Both Berklund and Sodium Lease Renewals show that it is.6 Where a provision in a contract is ambiguous, courts resort to extrinsic evidence to resolve the ambiguity by “determin[ing] the intent and meaning of the parties.” 6 These opinions also refute the Opinion’s erroneous suggestion (p.7 n.13) that Twin Metals is arguing that the term is ambiguous “merely because the parties disagree on the correct interpretation.” WILMERHALE The Honorable Hilary Tompkins July 1, 2016 Page 24 Sonthland Metals, Inc. v. American Castings, LLC, 800 F.3d 452, 459 (8th Cir. 2015); accord 11 Williston on Contracts ?3027 (an ambiguous contract must be interpreted in light of ?relevant extrinsic evidence of the parties? intent and the meaning of the words that they used?). For the reasons Twin Metals has already given, both here and in its prior memorandum the extrinsic evidence con?rms the parties? intent in executing the 2004 standard forms: that Twin Metals has a non?discretionary right to renewal. The Opinion says nothing to the contrary. Moreover, here again Twin Metals? interpretation accords with common sense. It was clear in 2004 that Twin Metals would not be able to start producing by 2014, within the ten-year renewal period. It would have been wholly irrational for Twin Metals nonetheless to have signed a renewal and spent hundreds of millions of dollars if the renewal did not ensure that it would have an opportunity to mine the minerals. Twin Metals Memo 10-11. Finally, even if extrinsic evidence did not resolve the ambiguity here, the rule of contra proferentem would apply. See, Mata United States, 114 Fed. Cl. 736, 746 (2014). Under that doctrine, ?[w]hen 'a dispute arises as to the interpretation of a contract contra proferentem requires that ambiguous or unclear terms that are subject to more than one reasonable interpretation be construed against the party who drafted the document.? Tm'ner Constr. Co. United States, 367 F.3d 1319, 1321 (Fed. Cir. 2004). Here, of course, BLM drafted the 2004 standard forms (which were not negotiated with Twin Metals? predecessor). If any ambiguity remains after consulting extrinsic evidence, then, the phrase ?preferential right? must be construed against BLM, to mean a non-discretionary right to renewal rather than simply a right to be preferred over other parties in the event renewal is granted. CONCLUSION Solicitor?s Opinion M-37036 should be withdrawn. Yours sincerely, My? Seth P. Waxman Enclosures first.? -. asaecemm 1m .1353;- cu a - . - I I. 1 ?2 a ,1/3 . 2 I ti; J. {3pr of Letter From . - - - moF4333 Mar 1956 3.1)iimatar; Bur-91:12 .533 Land ?amgm?m. - - .Uhi?iae? spates'?epartmpu? cf that 121932192, Warshingtari 25, E. - . 132a: Sir: - - .. .1 '3 Wt} reefer to the 19th- addressed 429.223 dated Apri3.? 39;, 1.953: ?90m the Rampant Searetarygoi?f thalntarirw. I222 gaaor?amm with auah latter the und -- . 922+._ . yum. - 7 . - . afth?mff 4: . . Emma S?a?hes ?apnrmam: - 01, the interior - - . - aaeh of that ralgte. {ms for praspectmg "mun.- - iUni??d'S?a?es af the Enterlgr . usxgrasbian ar as areas of.. rusty _gabbra indica_ 2- Gaolngical .m . pargistant angracter 9f the minara? . . -?sje?tabla for conslderahl' fix i In?? VliO? Of "the . . - - - .araag i (WW6 aim? 316. . .. 99?9BEV?earing minerais. 5 '5Ay?lieant ROLLA, MISSOURI 65401 .oatqberV19, IT??i7ii?77I :IINemarandum State Dlrector (970) ,From.. 9551stant D15tr1ct Manager f6r Solid Mznerals, Rolla Subgect.s 6_n.or191nal forms would case-T1195, I would 11kma? LsubJect renewals. 4w. tie?mi. the "d111gent development" requlrement 1nc1uded in -aI1 Federal coal leases._' 79$ mentioned prev10usly, these INCD leases conta1n a h1gh m1n1mum royalty paymen-t requ1rement, was agreedq ould serve as the pruductlon 1ncent1ve. Because of the negotlated terms and I'ffji?g .of these two leases, __dur1ng lease 33 The provisicns of 333.133393, nvludinv 33*1e Inca went ahv, ad -vm 31 10c& in 3.33 areag_for the as-3? u* -in?31cr on b3 1any fhutors.m Tecuirements, were with out ?rmdnation ?giCh 33$ exawnditures_naw 30.331 in 033083 of mne million {Lven bJ 330 G?vvrn? 'iant that i3 would be gran 1333 133303 on ?he reed. Accordingly uuxmo mautva are not ooTK'" 353333393i3330n1 3.10 39_ ng )1 3133 specia: pvoblems 1% nich wil? 333.030r3319nb in VAC 333; and quired 33 Operation; 03*33 nvono?ic ?ca We are the same area are bt??ra?AJ ?x e?'311ne 31113331 ??u0t10? tne ?0431i; 3J.53?i?a?f ?1Qrk '333 to PPuuinn .L Dr?olr . .n ?111313393913h: a?oolvMQ3135: (.1 x. 1.13! 1.11- .351 J1 bit-1'3} .3 I 3-, r: Try?; *4me .. 4.3:.aq - and state :_product10n The perlod A?hnced turns.fQ.um-.f..; the Qpegapignal .. 4 Memorandum . To: State DireL :Ffomi Assistant Wises? Mineral leases Corporation (INCO) .e right to mine mlner:- These leases granted to INGO the leases. t0 your providing -the falloWing . l. . . TEARS tern States Office, issued to the International Nickel "nickel and associated mlnerals from no. productlon Was. realized from the fr'renewal of the lea 5 es. In response' should require' IN REFER 5T0: I ?gb? .5 I Umted States Dep'trtment of the-Interlor BUREAU SEES 350 Snudll?tklu SMNES 1353 SEP 1. 2- 1.983 CERTIFIED NO .P 396 605 558 Pr?ference'Right Leases :iBureau .of- Land Management-have aoreed to the S-Sw9*f -- 'jases .MNES 135? and MNES l953 under the :3 'e.forms are for your comoletlor'and 23.0 days. Fallure to comply w1tn1n 3O uays o-f . 1 result 1-n t-he ?1na1 legectlon 0f thiS renewal . dec151on will become flnai 3O dayS from Sal_Lo the Interlor Board of Land Appeals OfFiee 6f 'Stuarth- Carlson- Deputy State Dlrector for Mineral Z?Enclosures .. J. $50110 ALEXANDRIA VIRGINIA 223m .. . BUREAU-0 . 4? 34444 13344444 (332 34) Pram Assmm Manager for $9116 M7 5 ?ubgect. 143134493211 as)? Prefexmce 33gb: 5 E??fefn?egjan . . Selma: . .- ..: 5" y-me anthomed af?mr 21? - - _-Natzonai Paimy A?t 1mm in tile comm, 3% Sf?'i?iig'mi?i?. . . -- my .?wa .mw 'wk-M vvw. new? v'A'du'U- Foramt ??atmrn 319 3iuconsin hvanue ?srvi.ue Regina Milaauhea, Wisconsmn 53303 riamltum - 333913 123:.- ?18331? Date: 3% 1 :5 ieferanne Bight L3333 33 31332 and E-8 ?1353 "ilnya International, Inc. (3 upcrior 33'? 33} 31- Eaatarn State? affine, Bataan 33 Land Managemant 5 993303? 333 axisting 13333 terma and conditibna are 333 i3 Support?d by the Superier Ratianal Farest 3133 --333 _"ZImpaat Statemanh, 33333 5333 6,1936, 3 aopy 3f whieh .233 gnu? offiae, 33 furthezr ?nalyul? 33133033 333, From: Jorjani, Daniel To: Caminiti, Man'agrazia Subject: Fwd: Twin Metals MOpinion Date: Thursday, December 14, 2017 3:00:01 PM Attachments: 2017.12.08 Twin Metals -- Draft Final Clean.docx 2017.12.08 Twin Metals -- Draft Final Redline with OGC resmnsedocx Daniel H. Jorjani PrInCIpal Deputy Department of the lnterlor a Main Interior Sunte 6356 202-219-3861 (Voice) 202-706-9018 (Cell) 9 L. This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may ?date the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error. please notify the sender and delete the email immediately. Fo1wa1ded message F1om: Jorjani, Daniel Date. Tue Dec 12 2017 at 2: 59 PM Subject: Fwd: Twin Metals M- -Opi11ion To:Ga1y Lawkowski <0 Galy - Take a look at the current draft. Seems to be drifting. but I might be over-reacting. Forwarded message From: Haugrud, Kevin <'ack.l1a1101ud (zisol.doi.oov> Date: Fri Dec 8 2017 at 12:19 PM Subject. Twin Metals M- -Opinion To: Daniel ijani Dan: Attached is the proposed Twin Metals' M-Opinion. I have also attached a redline version that shows the chan es we made in res onse to F8 conmlents. There are not many revisions. Most are edits to Jac cc Marlgrace, B1'1ana, Karen, Galy, R10 1911? From: HaugrudI Kevin To: Lawkowskil Gag Cc: Jog'ani, Daniel Subject: Re: Twin Metals Date: Monday, December 18, 2017 1:17:26 PM Gary: A few suggested tweaks. TWIN METALS MINNESOTA: On Mon, Dec 18: 2017 at 10:34 AM. Lawkowski. Gary wrote: TWIN METALS MINNESOTA: On Mon. Dec 18, 2017 at 10:34 AM. Lawkowski, Gary <0a1 wrote: Downey requested a brief blurb on the Twin Metals opinion for the Department's 30-day policy outlook report. Here is what I've put together, let me know what you all think: TWIN METALS MINNESOTA: Timing: Week of December 18. 2017 Contact: Daniel Jorjani. Acting Solicitor They usually want these together by 110011 on Mondays. so the sooner you can give me your thoughts. the better. Thank you very much for your time and help! Sincerely, Gm): Lawkowski Counselor to the Solicitor Department of the Interior Gary.Lawkowski@sol.doi.gov 202-208-7340 -Gary Lawkowski Counselor to the Solicitor Department of the Interior Gary.Lawkowski@sol.doi.gov 202-208-7340 From: To: Subject: Date: Lawkowski, Gary Jorjani, Daniel; Kevin Haugrud Twin Metals Talking Points Tuesday, December 19, 2017 2:00:33 PM Comms has requested a one-pager of talking points on the Twin Metals opinion.  Given today's focus on (b) (5) , here is what I've put together.  Let me know what you think. Sincerely, Gary Lawkowski Counselor to the Solicitor Department of the Interior Gary.Lawkowski@sol.doi.gov 202-208-7340 Twin Metals Talking Points (b) (5) From: To: Cc: Subject: Date: Jorjani, Daniel Lawkowski, Gary Kevin Haugrud Re: Twin Metals Talking Points Tuesday, December 19, 2017 2:12:01 PM Wait till you hear from Jack Daniel H. Jorjani Principal Deputy Solicitor U.S. Department of the Interior Main Interior Building, Suite 6356 ' 202-219-3861 (Voice)  202-706-9018 (Cell)   daniel.jorjani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. On Tue, Dec 19, 2017 at 2:00 PM, Lawkowski, Gary wrote: Comms has requested a one-pager of talking points on the Twin Metals opinion.  Given today's focus on (b) (5) , here is what I've put together.  Let me know what you think. Sincerely, Gary Lawkowski Counselor to the Solicitor Department of the Interior Gary.Lawkowski@sol.doi.gov 202-208-7340 Twin Metals Talking Points (b) (5) From: Kevin Haugrud To: Daniel Jog'ani Subject: Fw: Superior National Forest proposed withdrawal -- press release Date: Wednesday, December 20, 2017 8:55:33 AM Attachments: REDLINE - Supplemental SNF CommPlan Dec 8 2017 R5 bwc.docx Dan: This concerns the matter I last emailed about on 12/11. The F5 wants to issue a press release notifying the public that it now intends to do an EA, rather than an EIS, to analyze the Superior National Forest proposed withdrawal. They have an outreach plan that includes Congressional notification. Ryan has said that BLM COMMs has been involved, and asked Ryan to have BLM loop in Departmental but it may also havejust gotten lost in the barrage of other emails he receives. From: Sklar, Ryan Sent: Tuesday, December 19, 2017 4:52 PM To: Haugrud, Kevin Cc: Brown, Laura Subject: Superior National Forest proposed wi?idrawal -- press release Hi Jack, The Forest Service is again pinging BLM about whether it can issue the attached press release (with DOI's edits) announcing USFS's intention to prepare an EA instead of an EIS for the proposed withdrawal. (The press release begins on page 5 of the attachment.) I believe you and Aaron discussed the issue at last Thursda 's coordination meetin and 011 intended to eak with David B. about Thanks, Ryan 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 strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy all copies. From: Jog'ani, Daniel To: Kevin Haugrud Subject: Re: Fw: Superior Na?onal Forest proposed withdrawal -- press release Date: Wednesday, December 20, 2017 8:59:27 AM can you send me the email you sent to David? I will raise it to him asap. Daniel H. Jorjani PrinCIpal Deputy SoliCitor US. Department of the lnlerior Main Interior Budding. 6356 202-219-3861 (Voice) 202-706-9018 (Cell) El This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error. please notify the sender and delete the email immediately On Wed, Dec 20. 2017 at 8:55 AM, Kevin Hauglud wrote: Dan: This concerns the matter I last emailed about on 12/11. The F8 wants to issue a press release notifying the public that it now intends to do an EA, rather than an EIS, to analyze the Superior National Forest proposed withdrawal. They have an outreach plan that includes Congressional notification. Ryan has said that BLM COMMs has been involved, and asked Ryan to have BLM loop in Departmental lost in the barrage of other emails he receives. From: Sklar, Ryan Sent: Tuesday, December 19, 2017 4:52 PM To: Haugrud, Kevin Cc: Brown, Laura Subject: Superior National Forest proposed withdrawal press release Hi ack, The Forest Service is again pinging BLM about whether it can issue the attached press release (with DOI's edits) announcing USFS's intention to prepare an EA instead of an EIS for the proposed withdrawal. (The press release begins on page 5 of the attachment.) I believe you and Aaron discussed the issue at last Thiu'sda ?s coordination meetin and 011 intended to eak with David B. about Thanks, Ryan -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. From: Jog?ani, Daniel To: David Bernhardt Cc: Kevin Haugrud Subject: Fwd: Fw: Superior National Forest proposed withdrawal press release Date: Wednesday, December 20, 2017 9:01:12 AM Attachments: REDLINE - Supplemental SNF CommPlan Dec 8 2017 R5 bwc.docx David-? cc-ingiack- Forwarded message From: Kevin Haugrud Date: Wed. Dec 20. 2017 at 8:55 AM Subject: Fw: Superior National Forest proposed withdrawal -- press release To: Daniel Jorjani g" 0 Dan: This concerns the matter I last emailed about on 12/11. The F8 wants to issue a press release notifying the public that it now intends to do an EA, rather than an EIS, to analyze the Superior National Forest proposed withdrawal. They have an outreach plan that includes Congressional notification. Ryan has said that BLM COlles has been involved, and I asked Ryan to have loop in Departmental but it may also have just gotten lost in the barrage of other emails he receives. From: Sklar, Ryan Sent: Tuesday, December 19, 2017 4:52 PM To: Haugrud, Kevin Cc: Brown, Laura Subject: Superior National Forest proposed withdrawal -- press release Hi Jack, The Forest Service is again pinging BLM about whether it can issue the attached press release (with DOI's edits) announcing USFS's intention to prepare an EA instead of an EIS for the proposed withdrawal. (The press release begins on page 5 of the attachment.) I believe you and Aaron discussed the issue at last Thursda 's coordination meetin . and 011 intended to eak with David B. about Thanks. Ryan 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. From: To: Subject: Date: Kevin Haugrud Jorjani, Daniel Fw: Update on Superior National Forest Proposed Withdrawal Wednesday, December 20, 2017 9:12:57 AM Here's the earlier message to David. From: Haugrud, Kevin Sent: Wednesday, November 22, 2017 2:43 PM To: David Bernhardt Cc: Daniel Jorjani Subject: Update on Superior National Forest Proposed Withdrawal Attorney Client Communication Attorney Work Product DO NOT DISCLOSE David:   (b) (5) . Jac cc Dan From: To: Subject: Date: Daniel Jorjani Kevin Haugrud Re: Update on Superior National Forest Proposed Withdrawal Wednesday, December 20, 2017 9:29:33 AM Thanks. Daniel H. Jorjani Principal Deputy Solicitor Department of the Interior Main Interior Building ' 202-219-3861 (Voice) 202-706-9018 (Cell) daniel.jorjani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. Sent from my iPhone On Dec 20, 2017, at 9:13 AM, Kevin Haugrud wrote: Here's the earlier message to David. From: Haugrud, Kevin Sent: Wednesday, November 22, 2017 2:43 PM To: David Bernhardt Cc: Daniel Jorjani Subject: Update on Superior National Forest Proposed Withdrawal Attorney Client Communication Attorney Work Product DO NOT DISCLOSE David: (b) (5) Jack CC Dan From: To: Cc: Subject: Date: Daniel Jorjani b6 David Bernhardt todd willens@ios.doi.gov; jack.haugrud@sol.doi.gov Fwd: Update on Superior National Forest Proposed Withdrawal Wednesday, December 20, 2017 9:30:21 AM David - Context for the earlier email traffic.  Sent from my iPhone Begin forwarded message: From: Kevin Haugrud Date: December 20, 2017 at 9:13:04 AM EST To: "Jorjani, Daniel" Subject: Fw: Update on Superior National Forest Proposed Withdrawal Here's the earlier message to David. From: Haugrud, Kevin Sent: Wednesday, November 22, 2017 2:43 PM To: David Bernhardt Cc: Daniel Jorjani Subject: Update on Superior National Forest Proposed Withdrawal Attorney Client Communication Attorney Work Product DO NOT DISCLOSE David:   (b) (5) Jack CC Dan From: To: Subject: Date: Attachments: Daniel Jorjani todd willens@ios.doi.gov Fwd: Superior National Forest proposed withdrawal -- press release Wednesday, December 20, 2017 9:39:26 AM REDLINE - Supplemental SNF CommPlan Dec 8 2017 + RS + bwc.docx For context Sent from my iPhone Begin forwarded message: From: "Jorjani, Daniel" Date: December 20, 2017 at 9:01:12 AM EST To: David Bernhardt b6 David Bernhardt > Cc: Kevin Haugrud Subject: Fwd: Fw: Superior National Forest proposed withdrawal -- press release David - (b) (5)   CC'ing Jack.  ---------- Forwarded message ---------From: Kevin Haugrud Date: Wed, Dec 20, 2017 at 8:55 AM Subject: Fw: Superior National Forest proposed withdrawal -- press release To: Daniel Jorjani Dan: This concerns the matter I last emailed about on 12/11. The FS wants to issue a press release notifying the public that it now intends to do an EA, rather than an EIS, to analyze the Superior National Forest proposed withdrawal. They have an outreach plan that includes Congressional notification. Ryan has said that BLM COMMs has been involved, and I asked Ryan to have BLM loop in Departmental COMMs. (b) (5) but it may also have just gotten lost in the barrage of other emails he receives.  From: Sklar, Ryan Sent: Tuesday, December 19, 2017 4:52 PM To: Haugrud, Kevin Cc: Brown, Laura Subject: Superior National Forest proposed withdrawal -- press release Hi Jack. The Forest Service is again pinging BLM about whether it can issue the attached press release (with DOI's edits) announcing USFS's intention to prepare an EA instead of an EIS for the proposed withdrawal. (The press release begins on page 5 of the attachment.) I believe you and Aaron discussed the issue at last Thursda 's coordination nleetin . and 011 intended to eak with David B. about Thanks, Ryan From: To: Cc: Subject: Date: Attachments: Jorjani, Daniel Todd Wynn Kevin Haugrud; Todd Willens Fwd: Twin Metals M-Opinion Wednesday, December 20, 2017 2:30:24 PM 2017.12.08 Twin Metals -- Draft Final Clean.docx Todd Wynn - Per your request, attached.  From: To: Cc: Subject: Date: Attachments: Jorjani, Daniel Newell, Russell Kevin Haugrud; Gary Lawkowski Fwd: Twin Metals M-Opinion Wednesday, December 20, 2017 2:36:35 PM 2017.12.08 Twin Metals -- Draft Final Clean.docx fyi ---------- Forwarded message ---------From: Jorjani, Daniel Date: Wed, Dec 20, 2017 at 2:30 PM Subject: Fwd: Twin Metals M-Opinion To: Todd Wynn Cc: Kevin Haugrud , Todd Willens Todd Wynn - Per your request, attached.  From: Lawkowski, Gan To: Russell Newell Cc: Haugrud, Kevin; Jog'ani, Daniel Subject: Re: Twin Metals Date: Wednesday, December 20, 2017 5:14:00 PM Attachments: Twin Metals Talkin Points short version .docx 2017.12.15 clean Twin Metals - Talking mints Q&A.docx Please ?nd attached a short version of talking points, as well as a longer version that includes some question and answer on the Twin Metals opinion. Sincerely, Galy Lawkowski 011 Wed, Dec 20, 2017 at 2:43 PM, Russell Newell wrote: Thanks Jack! Sent from my iPhone On Dec 20, 2017, at 2:40 PM, Haugiud, Kevin <'ack.hau 11d wrote: Yep, we're working on it and should have the talking points to you later today. On Wed. Dec 20, 2017 at 2:37 PM, Russell Newell <1ussell_newell (piosdoi. ov> wrote: Thanks Dan, Jack Sent from my iPhone 011 Dec 20, 2017. at 2:36 PM, Jorjani, Daniel wrote: Russ - Jack is your go-to guy on this one. Jack - Please have DMR follow-11p with Russ re talking points etc. Daniel H. Jorjani Principal Deputy Solicitor US. Department of the Interior Main Interior Building, Suite 6356 ?8 202-219-3861 (Voice) [El 202-706-9018 (Cell) till daniel.ioriani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. Ifyou believe you have received this message in error, please notify the sender and delete the email immediately. El On Wed, Dec 20, 2017 at 2:33 PM, Newell, Russell gov> wrote: Hi Gary, Dan - got anything on Twin Metals you can send along? Russell Newell Deputy Director of US Department of the Interior (2021? 208-6232 {1 Interior Gary Lawkowski Counselor to the Solicitor Department of the Interior Ga .Lawkowsla' ol.doi. ov 202-208? 7340 From: To: Subject: Date: Attachments: Jorjani, Daniel Wood, Jeffrey (ENRD) Fwd: Twin Metals M-Opinion Wednesday, December 20, 2017 7:14:04 PM 2017.12.08 Twin Metals -- Draft Final Clean.docx Here's the most recent Twin Metals draft.  Might be a couple of tweaks tomorrow, but 99% done.   From: To: Cc: Subject: Date: Attachments: Newell, Russell Laura Rigas; Heather Swift; Magallanes, Downey; Todd Willens; Nachmany, Eli; Matulka, Rebecca; Wynn, Todd; John Tanner; Benjamin Cassidy; Micah Chambers; John Bockmier Daniel Jorjani; David Bernhardt Twin Metals Thursday, December 21, 2017 9:11:56 AM 2017.12.15 clean Twin Metals - Talking points Q&A (1).docx Twin Metals Talking Points (short version).docx Attached is what I have on Twin Metals from SOL.  Waiting on a regional press release from BLM and will send around as well.    Russell Newell Deputy Director of Communications U.S. Department of the Interior (202) 208-6232 @Interior  From: To: Cc: Subject: Date: Attachments: Hawbecker, Karen Daniel Jorjani; Jack Haugrud Briana Collier Fwd: Twin Metals -- Notice of Pretrial Conference Friday, December 22, 2017 11:38:12 AM NRS-#1171855-v1-Notice.DOCX Dan and Jack, This is DOJ's draft notice they propose to file to give the court notice about the new MOpinion.  Please let me know if you have any edits or comments.  Thank you. --Karen  ---------- Forwarded message ---------From: Duffy, Sean C. (ENRD) Date: Fri, Dec 22, 2017 at 11:27 AM Subject: RE: Twin Metals -- Notice of Pretrial Conference To: "Vukelich, Vincent - OGC" , "Collier, Briana" Cc: "HENDERSON, PAMELA P. - OGC" , "Vandlik, John - OGC" , "Mulach, Ronald - OGC" , "Dewitte, Vincent - OGC" , "Franklin, Jessica - OGC" , "McNeer, Richard" , "Hawbecker, Karen" , Joshua Hanson , Roy Fuller , Ryan Sklar , "Boronow, Clare (ENRD)" , "Piropato, Marissa (ENRD)" , "Fuller, David (USAMN)" , "Bosshardt, Stacey (ENRD)" All –   Please see attached, for your edits and comments, a draft notice that we intend to file today.   Thank you, Sean From: To: Cc: Subject: Date: Newell, Russell Laura Rigas; Heather Swift; Nachmany, Eli; Wynn, Todd; Todd Willens; Magallanes, Downey; John Tanner; Benjamin Cassidy; Micah Chambers; Kaster, Amanda; Alex Hinson; John Bockmier Daniel Jorjani Fwd: Reversal of Twin Metals Minnesota Application to Renew Preference Right Leases (MNES-01352 and MNES01353) Friday, December 22, 2017 3:10:27 PM All - below is the if asked statement for Twin Metals.  An earlier version of this was approved by SOL - I added the name and M number, as well as the correct press contact box for BLM.   Reversal of Twin Metals Minnesota Application to Renew Preference Right Leases (MNES-01352 and MNES-01353) BLM PRESS STATEMENT (IF ASKED): Today, the United States Department of the Interior’s Office of the Solicitor issued a new legal opinion concluding that Twin Metals Minnesota has a non-discretionary right to a third renewal of its two hardrock mining leases, located in the Superior National Forest in northern Minnesota.  The new M-Opinion (Memorandum Opinion) M-37049 reverses and replaces a prior opinion on the topic which was issued in March 2016.  Under the new legal opinion, the Bureau of Land Management (BLM) will work together with the surface management agency, USDA Forest Service, to reconsider a 2016 decision in which the BLM denied Twin Metals’ pending lease renewal application.  The agencies will conduct the appropriate environmental analysis under the National Environmental Policy Act (NEPA) to make a final agency decision on the application and to identify appropriate terms and conditions for surface protection.  The M-Opinion is available at this link: https://www.doi.gov/solicitor/opinions. CONTACT:  BLM Public Affairs at BLM_PRESS@blm.gov From: To: Cc: Subject: Date: Attachments: Jorjani, Daniel Newell, Russell Laura Rigas; Heather Swift; Nachmany, Eli; Wynn, Todd; Todd Willens; Magallanes, Downey; John Tanner; Benjamin Cassidy; Micah Chambers; Kaster, Amanda; Alex Hinson; John Bockmier Re: Reversal of Twin Metals Minnesota Application to Renew Preference Right Leases (MNES-01352 and MNES01353) Friday, December 22, 2017 3:15:41 PM M 37049 Reversal of M 37036 Twin Metals Minnesota Application to Renew Preference Right Leases 122217.pdf Here's the TMM PDF.  Will be live on the web shortly.  Daniel H. Jorjani Principal Deputy Solicitor U.S. Department of the Interior Main Interior Building, Suite 6356 ' 202-219-3861 (Voice)  202-706-9018 (Cell)   daniel.jorjani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. On Fri, Dec 22, 2017 at 3:10 PM, Newell, Russell wrote: All - below is the if asked statement for Twin Metals.  An earlier version of this was approved by SOL - I added the name and M number, as well as the correct press contact box for BLM.   Reversal of Twin Metals Minnesota Application to Renew Preference Right Leases (MNES-01352 and MNES-01353) BLM PRESS STATEMENT (IF ASKED): Today, the United States Department of the Interior’s Office of the Solicitor issued a new legal opinion concluding that Twin Metals Minnesota has a non-discretionary right to a third renewal of its two hardrock mining leases, located in the Superior National Forest in northern Minnesota.  The new M-Opinion (Memorandum Opinion) M-37049 reverses and replaces a prior opinion on the topic which was issued in March 2016.  Under the new legal opinion, the Bureau of Land Management (BLM) will work together with the surface management agency, USDA Forest Service, to reconsider a 2016 decision in which the BLM denied Twin Metals’ pending lease renewal application.  The agencies will conduct the appropriate environmental analysis under the National Environmental Policy Act (NEPA) to make a final agency decision on the application and to identify appropriate terms and conditions for surface protection.  The M-Opinion is available at this link: https://www.doi.gov/solicitor/opinions. CONTACT: BLM Public Affairs at BLM PRESS @blm.g0v United States Department of the Interior OF THE Washington. QUE-HI IV Itl-l'H? mm: in DEC 2 2 2017 Memorandum To: Director, Bureau of Land Management From: Principal Deputy Soli it Ex 'cising th Authority ofthe Solicitor Pursuant to Secretarial Order 3345 Subject: Reversal of M-37036. ?Twin Metal . 'cation to Renew Preference Right Leases (MNES- 01352 and I On October 21, 2012, Twin Metals Minnesota (Twin Metals) filed an application with the Bureau of Land Management (BLM) to renew hardrock mineral leases and located within the Superior National Forest in Northeastern Minnesota. On March 8, 2016, the former Solicitor issued an M-Opinion entitled, ?Twin Metals Minnesota Application to Renew Preference Right Leases and concluding that the BLM had discretion to either grant or deny Twin Metals? pending application to renew the two hardrock mineral leases. Twin Metals ?led suit on September 12, 2016, challenging the M-Opinion. After the United States Department of Agriculture Forest Service (Forest Service) withheld its consent to renew the leases, the BLM cancelled the leases in December 2016. In response to the decision not to renew their leases, Twin Metals asked for reconsideration of M-37036. After further review ol?the relevant documents and underlying legal framework, we believe that M- 37036 erred in concluding that BLM has discretion to grant or deny Twin Metals? lease renewal application. Accordingly, this Memorandum withdraws and replaces M-3 703 6. For the reasons set forth below, the terms of the original leases issued to Twin Metals? predecessor?in-interest in 1966 remain the Operative provisions governing lease renewal. The original 1966 leases provide Twin Metals with a non-discretionary right to a third renewal, subject to readjusted terms and conditions as allowed by the 1966 leases. Accordingly, while the United States maintains discretion to impose reasonable new terms and conditions in the lease renewal agreements, the BLM does not have the discretion to deny the renewal application. Background Statutory Authority for Issuance of the Leases The leases are located in northern Minnesota on acquired Weeks Actl lands, as well as lands reserved from the public domain, that are managed as part of the National Forest System by the Forest Service. The Secretary?s authority, as delegated to the BLM, for mineral disposition on the acquired lands is found in section 402 of Reorganization Plan No. 3 of 1946,2 and 16 U.S.C. 520, which governs mineral disposition on Weeks Act lands. The Secretary?s authority, as delegated to the BLM, for mineral disposition on reserved National Forest System lands in Minnesota is 16 U.S.C. 508b. Under these provisions, leasing for hardrock mineral development is allowed only if the Secretary of Agriculture has consented to the issuance of the lease.3 Negotiation and Issuance of the 1966 Leases The history of the original lease negotiations and the subsequent renewals is an important factor in determining the intent of the parties with respect to the right of renewal. The history began in 1952 when Twin Metals? predecessor-in-interest, the International Nickel Company, Inc. (TNCO), followed success?il prospecting activity by approaching the Department of the Interior (Department) regarding applying for hardrock mineral leases. The two parties began negotiating potential terms in 1953, and INCO originally sought a 50-year lease from the Department.4 The lease negotiations did not end for over ten years, in part because the parties disagreed on three major issues: Term TNCO sought a 50-year term to increase certainty for its investors while the BLM wanted a maximum 20-year primary term;5 Royalty rates the Department wanted higher royalty rates than INCO was willing to agree to pay;6 and Production assurances the BLM sought assurance that INCO would begin production during the lease term.7 1 Pub. L. No. 61-436, 6, 36 Stat. 961, 962 (191 1) (codified as amended at 16 U.S.C. 515). 2 60 Stat. 1097, 1099-1100, Section 402 (May 16, I946). 3 See id.; 16 U.S.C. 508(b). 4 Memorandum from United States Geological Survey (USGS) Chief, Conservation Division to ?le, ?Nickel Leasing? (Aug. 13, 1953). 5 Memorandum ?'om P.W. Guild, BLM Chief, Branch of Ferrous Metals to file, ?Meeting in Congressman Blatnik?s of?ce re Cu-Ni deposits in Minnesota? (July 9, 1965). 6 Memorandum from USGS Chief, Conservation Division to USGS Associate Director, ?Proposed preference right lease to lntemational Nickel Company, Inc.? (Oct. 29, 1965). 7 Memorandum from BLM Director to D01 Assistant Secretary, Mineral Resources, ?Proposed Preference Right Leases to lntemational Nickel Company, Inc.? (Oct. 5, 1965). After several years of exchanging drafts of potential lease terms, the parties reached a compromise agreement on these issues: 0 INCO agreed to accept the 20-year primary term; 0 The BLM agreed to accept a lower yet escalating minimum royalty rate; and The BLM received some production assurances in the form of adjustable royalty rates on future production that would ?uctuate depending on how soon the lessee began producing.8 As a result of these and other compromises, the original MN ES-01352 and 353 leases awarded to INCO on June 1, 1966, were unique, borrowing terms from, but not utilizing, the Standard Lease Form in place at the time. The royalty and renewal provisions were particularly distinctive. The ?rst section of the leases provides the lessee with the exclusive right to mine on the leasehold for a primary term of 20 years and the right to renewals at 10-year intervals after the primary term: Rights of Lessee. In consideration of the rents and royalties to be paid and conditions and covenants to be observed as herein set forth the Lessor grants to the Lessee . . . the exclusive right to mine, remove, and dispose of all the copper and/or nickel minerals and associated minerals . . . in, upon, or under [the described lands] . . . together with the right to construct and maintain thereon such structures and other facilities as may be necessary or convenient for the mining, preparation, and removal of said minerals, for a period of twenty (20) years with a right in the Lessee to renew the same for successive periods often (10) yearsgeach in accordance with regulation 43 CFR 3221.40) and the provisions of this lease. The regulation referenced in the renewal clause provides in pertinent part that the ?lessee will be granted a right of renewal for successive periods, not exceeding 10 years each, under such reasonable terms and conditions as the Secretary of the Interior may prescribe.?lo Section 2 of the leases then sets forth most of the lessee?s obligations, covering rental and royalty payments, bonding, inspection, payment of taxes, and non-discrimination provisions, among other things. Of importance for Twin Metals to hold the leases without production, section 2(c) provides for minimum royalty payments in lieu of production. Those provisions state that, beginning a?er the tenth year of the primary term, the lessee is required to mine a quantity of minerals such that the royalties would be equal to $5 per annum per acre for the primary term and $10 per annum per 8 See Memorandum ?'om USGS Assistant Chief, Conservation Division, to ?le, ?Phone call from Julian Feiss re meeting with lntemational Nickel? (Aug. 18, 1965); Memorandum from USGS Director to the Secretary of the Interior, ?Congressman John A. Blatnik may telephone the Secretary? (Jan. 10, I966) (discussing the parties? differing positions on royalty rates and recommending a ?performance clause? be added as a ??reentry? clause for royalty adjustment that might be introduced permitting reevaluation and lowering of the royalty rates if justi?ed after some operating experience?). 9 Section 1(a) of Lease (emphasis added). '0 43 CPR. 3221.40) (I966). acre during each renewal or, in lieu of that production, pay royalties equal to the minimum royalty.ll Section 2(c) also allows the lessor in its discretion to waive, reduce or suspend the minimum royalty payment for reasonable periods of time in the interest of conservation.? Pursuant to this section, INCO and its successors have paid over $1.4 million dollars in royalties to the government. Section 5, entitled ?Renewal Terms,? is also unique by describing in detail rights to readjust royalty rates and other terms upon renewal. As more fully discussed in the analysis section below, section 5 creates a production incentive for the lessee by providing BLM with only limited readjustment rights if the lessee was producing by the end of the initial 20-year term. On the other hand, if the lessee was not producing before the initial term ended (and if BLM had not extended the period for commencement of production), then BLM would have the right, starting with the ?rst renewal, to readjust terms and conditions without these limitations. Finally, section 14, entitled ?Royalty Adjustment,? is unique by providing another production incentive. It requires lowering the royalty rate in the second ten years of the primary lease term and in the ?rst three renewals if the lessee sinks a sha? or otherwise commences commercial development within ?ve years of obtaining all the necessary permits and authorizations.? Activity during the Primary Term of the 1966 Leases INCO ful?lled the royalty rate reduction provisions of section 14 by sinking a 1,100 foot mine shaft on lands leased under MNES-01352 in 1967 to obtain bulk sampling. But no production occurred under the leases during the 20-year primary term. Under the terms of section 2(c) of the 1966 leases, minimum royalty payments became due beginning with the 1976?1977 lease year. The BLM granted requests for waivers of the minimum royalty payments for a ?ve- year period, from June 1, 1976, through May 31, 1981, because the State of Minnesota was conducting environmental studies of the proposed mining operations during that time period, which prevented INCO from proceeding with development of the leases.14 TNCO again requested a waiver of minimum royalty payments for the ?ve-year period between June 1, 1981, and May 31, 1986, citing copper and nickel prices too low to allow for development. The BLM denied this second request, reasoning in part that the royalty payment was the only diligence requirement in the leases: The provision for minimum royalty in lieu of production requirements was a lease term arrived at through pre-lease negotiations between the Bureau and IN CO. The intention of the minimum royalty is to spur development of the resource and, in effect, is the only diligence requirement contained in the subject leases. Waiver of minimum royalty removes all incentive for the timely development of the leases.? See 2(c) of the 1966 leases. 12 I d. '3 Section [4 of the 1966 leases. '4 Memorandum from BLM Associate District Manager, Milwaukee, to the State Director, Eastern States Of?ce, ?Recommendation Regarding an Application for Minimum Royalty Waiver Submitted by Alloys International, Inc.? (Aug. 28, I985Beginning in 1985, after the BLM denied the waiver request, IN CO started submitting minimum royalty payments as required by the leases. The 1989 Lease Renewals INCO timely ?led its ?rst lease renewal application on May 14, 1986.16 After receiving legal advice from the Of?ce of the Solicitor con?rming that the lease could be renewed despite the lack of production,? the BLM requested the consent of the Forest Service, and the Forest Service agreed to the renewals, ?nding the terms and conditions of the original leases to be ?adequate to prevent or mitigate unacceptable impacts and that no additional conditions need to be added prior to their renewal provided that none of the terms and conditions related to [Forest Service surface] authority are diminished in any manner.?18 After then receiving the recommendations of the BLM Assistant District Manager in Milwaukee, the BLM issued a decision renewing the leases on September 12, 1988, and enclosed a new lease form for IN signature.'9 The new lease would have altered several terms and conditions of the leases, including raising the base royalty rate to 5% and lowering the minimum royalty payment to $3 per acre per year. Before the new lease was signed, the BLM took the unusual step of withdrawing the leasing decision ?because the new lease forms submitted for signature will alter the terms and conditions of the original leases.?20 The withdrawal of the decision was made a?er an internal reassessment of the renewal form against the original lease terms. An internal BLM memorandum explained that the minimum royalty rate should not be lowered to $3 per acre as the then-current regulations ?6 The regulations at 43 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 ?within 90 days? language in this regulatory provision allows lease renewal applications to be ?led at any time before the expiration of the lease term. The lessee ?led an application for extension of the term of the leases on May 14, 1986-30 days before the end of the primary twenty-year term on June 14, 1986, which was ?within 90 days? of the lease expiration. Consequently, the renewal application was timely ?led. l7 Memorandum from Associate Solicitor, Energy and Resources, to Deputy State Director, Mineral Resources, Eastern States Of?ce, BLM, "Application for Minimum Royalty Waiver Submitted by Alloys International, Incorporated for Leases ES 01352 and ES 01353? (Apr. 2, 1986). ?8 Decision of United States Department of Agriculture (USDA), Forest Service, Superior National Forest Supervisor, Clay Beal, ?Finding of Categorical Exclusion, Conditions of Extending Bureau of Land Management Leases? (Feb. 6, 1987). The Regional Forester subsequently af?rmed the agency?s consent to the 1989 lease renewals. Decision of United States Department of Agriculture (USDA), Forest Service, Eastern Region, Regional Forester, Floyd .1. Marita, Preference Right Leases, ES 01352 and ES 01353 Inco Alloys lntemational, Inc. (Superior NF MN) (June 19, 1987). 19 Memorandum ??om BLM Assistant District Manager for Energy and Minerals, Milwaukee to State Director, Eastern States Of?ce, ?Recommendations for Lease Renewals, International Nickel Corporation Leases ES-1352 and (July 9, 1986); Decision by Bureau of Land Management Deputy State Director for Mineral Resources, Eastern States Of?ce to INCO Alloys lntemational, lnc., ?Preference Right Leases Renewed, Lease Forms Transmitted for Signature? (Sept. 12, 1988). 20 Decision by BLM Deputy State Director for Mineral Resources, Eastern States Of?ce to Alloys lntemational, lnc., ?Decision Vacated? (Oct. 27, 1988). directed, but should be set at the $10 per acre rate outlined in the 1966 leases, as ?[t]his high minimum royalty payment was agreed to through intensive negotiations and is intended to serve as the ?production incentive? or ?diligent development? provision in the leases, and should not be changed.?21 Likewise, with such a production incentive, the memorandum stated that it would be ?inappropriate? to impose an additional production requirement on the lessee in the lease renewal, especially ?when no other hardrock leases in our District contain such a requirement.?22 The memorandum concludes, ?Because of the highly negotiated terms and conditions of these two leases, which contain many references to requirements to be applied during lease renewal periods, I recommend that these leases be renewed under the existing terms and conditions and in their present form, not on the new lease form.?23 Based on this recommendation, the BLM withdrew its initial leasing decision as noted above. A few months later, the BLM granted renewal application in a new decision. This decision expressly stated that the renewal was on the same terms and conditions of the original leases: ?The Forest Service and the Bureau of Land Management have agreed to the renewal of the enclosed Preference Right Leases MNES 1352 and MNES 1353 under the existing terms and conditions of the original lease. Enclosed are lease renewal forms transmitted for your signature and return to this of?ce.?24 The forms the BLM transmitted for signature were the Standard Form 3520-7 (December 1984), with some terms written in and other terms referencing the 1966 leases, which were attached in full to the standard forms. On the standard forms, the BLM typed in single and double asterisks next to section 2 and and included text later in section 14, entitled ?Special Stipulations,? that corresponded to the single and double asterisks. These provisions stated that the ?terms and conditions of the production royalties remains [sic] as stated in the attached original lease agreement,? and that ?[t]he minimum annual production and minimum royalty is $10.00 per acre or a fraction thereof as stated in the attached original lease agreement.?25 The forms also contain a standard renewal provision stating that the lease is effective ?for a period of ten years . . . with preferential right in the lessee to renew for successive periods of ten years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.?26 During this time period, INCO ?led to assign its interests in the leases to American Copper and Nickel Company, Inc. (?American Copper?) in May 1988. The BLM granted the assignments, effective January 1, 1991. Although exploration work continued, neither INCO nor American Copper began production on the leases during the ?rst renewal period. 2' Memorandum from BLM Assistant District Manager for Solid Minerals, Rolla, Vincent Vogt, to the State Director, Eastern States Of?ce, ?Recommendations for Lease Renewals, Intemational Nickel Corporation Hardrock Mineral Leases MNES-1352 and (Oct. 14, 1988Decision by BLM Deputy State Director for Mineral Resources, Eastern States Of?ce to INCO Alloys lntemational, lnc., ?Preference Right Leases Renewed, Lease Forms Transmitted for Signature? (Apr. 25, 1989). 25 1989 lease renewal forms, at 2?3. 26 Id. at 1. The 2004 Lease Renewals American Copper timely applied for a second renewal of the leases on March 15, 1999.27 The Forest Service consented to the renewals, ?nding the terms and conditions to be suf?cient.28 The BLM issued its decision granting the lease renewals on November 12, 2003, and directed American Copper to sign the enclosed Preference Right Lease forms and return them to the BLM of?ce within 30 days.29 As lease forms, the BLM again provided Standard Form 3520-7 (December 1984), with identical typed-in provisions to those of the 1989 leases, and again attached the 1966 leases in full.30 The leases were renewed with an effective date of January 1, 2004. On April 7, 2004, American Copper ?led to assign its interests in the leases to Beaver Bay Joint Venture. The BLM approved the assignment on March 30, 2005, to be effective April 1, 2005. Although exploration work continued, neither American Copper nor Beaver Bay Joint Venture began production on the leases during the second renewal period. The 2012 Renewal Application and Issuance of M-37036 On October 21, 2012, Beaver Bay Joint Venture timely ?led for a third renewal of the leases.31 Through BLM-approved assignments and transfers, Franconia Minerals (US) LLC (Franconia) later became the current leaseholder of MNES-1352 and MNES-1353. Franconia is a wholly- owned subsidiary of Twin Metals. In processing the 2012 application for renewal, the BLM identi?ed the need for a legal opinion to determine whether it had discretion to grant or deny the lease renewal. The Solicitor issued M- Opinion 37036 on March 8, 2016, in response to the request.32 In M-37036, the Solicitor disagreed with Twin Metals? assertion that the original lease terms governed and provided a perpetual right to renew the leases every ten years. The M-Opinion found that the more recent 2004 lease terms governed renewal, and while the ?2004 lease terms give the lessee preference over other potential lessees to lease the lands in question, they do not entitle the lessee to non- 27 The lessee applied for a second renewal on March 15, 1999, which was 109 days before the end of the ?rst lease renewal on July 1, 1999. The 1999 regulations instruct lessees to ?[t]ile an application [for renewal] at least 90 days before the lease term expires.? 43 CPR. 351 1.27 (1999). Consequently, the 1999 renewal applications were timely ?led. 28 Decision of the USDA Forest Service, Regional Forester, Randy Moore, to BLM State Director, Eastern States Of?ce, ?Renewal of Preference Right Leases MNES 1352 and MNES 1353? (July 18, 2003). 29 Decision of BLM Chief of Use Authorization, Division of Resources Planning, Use and Protection, to American Copper and Nickel Co., ?Additional Requirements to be Met? (Nov. 12, 2003). 30 See 2004 lease renewal forms, at 2?3. 3 The 2012 renewal application was submitted 438 days before the end of the second renewal on January 1, 2014. The ?ling requirements in the current regulations are the same as those in the 1999 regulations. Id. (2014). Consequently, the 2012 application was timely ?led. 32 Twin Metals Minnesota Application to Renew Preference Right Leases (MNES-01352 and M-37036 (Mar. 8, 2016). discretionary renewal of the leases.?33 The M-Opinion also concluded that even if the terms of the 1966 leases governed, they did not provide a non-discretionary right to renewal. Instead, M-37036 found that ?[u]nder the original 1966 lease terms . . . the lessee was required to commence production within the twenty-year primary term to qualify for three renewals of right.?34 Because no production has occurred, the M-Opinion concluded that no right to renewal existed: ?Twin Metals Minnesota does not have a non-discretionary right to renewal, but rather the BLM has discretion to grant or deny the pending renewal application.? After receiving the M-Opinion, the BLM requested the Forest Service?s consent determination on the lease renewals?5 A?er taking public comment on the question, the Forest Service submitted a letter to the BLM Director on December 14, 2016, stating it did not consent to renewal of the leases.36 As a result of the Forest Service?s denial of consent, the BLM issued a decision denying renewal of the leases on December 15, 2016.37 Analysis Twin Metals has consistently asserted that the renewal provisions of its 1966 leases govern and provide a right of renewal every ten years as long as it complies with the terms of the leases. In contrast, M-3 7036 concluded that Twin Metal?s renewal rights were governed by the terms of the 2004 lease forms, and that those terms were unambiguous and provided Twin Metals only with the right to be considered for a renewal at the discretion of the Forest Service and the BLM. In addition, M-37036 asserted that even if the terms of the 1966 leases governed, Twin Metals still would not be entitled to a non-discretionary right of renewal because it did not begin production within its extended primary term. As discussed below, Twin Metals is entitled to a third renewal. First, the renewal terms of the 2004 lease form do not govern. The form is ambiguous, and the intent of the parties to keep operative the terms of the 1966 leases becomes clear once the decision ?les are examined.38 M-37036 also misconstrues the terms of the 1966 leases. They do in fact provide for a third, non-discretionary right to renewal without regard to whether production has begun. Accordingly, Twin Metals has the right to renewed leases, subject to the imposition of reasonable new terms and conditions as allowed by the 1966 leases. In the sections below, we first discuss why the 1966 renewal terms govern, and then discuss the meaning of those termsLetter from Karen Mouritsen, State Director, BLM Eastern States Of?ce, to Kathleen Atkinson, Regional Forester, Eastern Region, Forest Service (June 3, 2016). 36 Letter from Thomas L. Tidwell, Chief, Forest Service, to Neil Komze, Director, BLM (Dec. 14, 2016). 37 Decision by BLM State Director, Eastern States Office, Karen Mouritsen, to Twin Metals Minnesota Chief Operating Of?ce, lan Duckworth, ?Lease Renewal Application Rejected? (Dec. 15, 2016). 38 M-37036 did not examine this extrinsic evidence because of its underlying premise that the 2004 lease forms were unambiguous. Twin Metals? Renewal Application is Governed by the Renewal Terms of the 1966 Leases M-37036 concluded that the renewal rights of Twin Metals are governed by the terms of BLM standard form 3520-7 (Dec. 1984) rather than the terms of the 1966 leases. To reach this conclusion, M-37036 found that the 2004 lease forms ?are each complete, integrated documents that contain all necessary lease terms and are duly signed by the lessee and lessor.?39 The M- Opinion states that the lease forms only incorporate two portions of the 1966 leases through section 14 of the 2004 lease form, and that ?[n]either of these imported provisions includes the lease renewal provisions of the 1966 leases.?40 Consequently, according to M-3703 6, since the time that the 2004 lease form was executed, ?the renewal provisions of the 1966 leases have no longer applied and the only renewal terms are those described in the 2004 leases . . . M-3 7036 treats the 1989 lease renewal, which was identical to the one issued in 2004, very differently. The M-Opinion ?nds that ?the 1989 renewal was effectively a ten-year extension of the 1966 lease terms . . . 3?42 In other words, M-37036 recognized that the 1989 form incorporated all the provisions of the 1966 leases, including the renewal terms, while opining that the identically worded form in 2004 did not.43 M-37036 misapprehends the meaning and effect of the 2004 lease forms. As discussed below, the 2004 lease terms are ambiguous as to the extent to which the provisions of the 1966 leases are incorporated. Pr0perly analyzed, examining both the text of the leases and the intent of the parties as expressed during negotiations, the renewal provisions found in the 1966 leases remain operative, and provide the non-discretionary right to a third renewal. The normal principles of contract construction lead to the foregoing conclusion.44 When construing a contract, we must ?rst examine the plain meaning of its express terms.45 The task is to determine the intent of the parties at the time they contracted, as evidenced by the contract itself.46 If the terms are clear and unambiguous, the provisions must be given their plain meaning 39 M-37036 at 6. 40 Id. 41 Id. M-37036 then opined that the renewal language used in the 2004 lease form made the renewal discretionary, stating that the ?Department has consistently interpreted this provision as not entitling the lessee to an automatic right of renewal . . . 1d. at 5. We do not address in this replacement opinion the meaning of the 2004 lease renewal language because, as explained later, the parties intended the renewal terms of the 1966 leases to remain operativediscussed below, see footnote 62 and accompanying text, M-37036 attempts to distinguish the two situations by ?nding that the 1989 renewal differs ?because the discretion was limited in 1989 but not in 2004.? Id. at 6. We discuss below that the discretion did not vary between the two renewals and, even if BLM had differing discretion, it intended the 2004 renewal to maintain the terms of the original 1966 leases, just as the 1989 renewal had done. 44 The normal rules of contract construction govern the interpretation of agreements between the government and a private party. Thoman v. Bureau of Land Mgmt. (on recon), 155 IBLA 266, 267 (2001) (citing Anthony v. United States, 987 F.2d 670, 673 (10th Cir. 1993)); Press Machinery Corp. v. Smith R. RM. Corp, 727 F.2d 781, 784 (8th Cir. 1984)). 45 Textron Def Sys. v. Widnall, 143 F.3d 1465, 1468 (Fed. Cir. 1998). 4? Greco v. Dep ?t ofArmy, 852 F.2d 558, 560 (Fed. Cir. 1988). and extrinsic evidence is inadmissible to interpret them.47 However, where contract terms are unclear or ambiguous, an examination of extrinsic evidence is appropriate to properly interpret the contract in accordance with the parties? intent.48 Applying these principles, it is evident that the 2004 leases are ambiguous and extrinsic evidence must be examined to determine the intent of the parties. Rather than being ?complete, integrated documents,? the leases attach without full explanation the entirety of the 1966 leases and do not include an integration clause that states that the 2004 lease forms are the complete expression of the parties? agreement.49 These facts alone warrant an examination of extrinsic evidence to determine the intent of the parties.50 The lack of an integration clause in the 2004 leases is particularly important given the parties? interpretation of the identically worded1989 leases that the Department has consistently acknowledged as incorporating the 1966 lease terms in their entirety.? The use of the identical form in 2004 without explanation and without an integration clause at the very least creates an ambiguity as to whether the parties intended the 2004 leases to be treated the same as the 1989 leases or completely differently as interpreted by M-3 7036.52 Even absent that ambiguity, the text of section 14 in the 2004 leases is ambiguous. Section 14 contains two special stipulations that incorporate the 1966 leases: Sec. 14. Special Stipulations -- The terms and conditions of the production royalties remains [sic] as stated in the attached original lease agreement. 47 McAbee Constr., Inc. v. United States, 97 F.3d 1431, 1435 (Fed. Cir. 1996). 48 BP Amoco Chem. Co. v. Flint Hills Res, LLC, 600 F. Supp. 2d 976, 981 (ND. m. 2009); see also 5-24 Corbin on Contracts 24.7. Terms may be ambiguous where the language is susceptible to more than one meaning, where the language is unclear or vague, or where the language can reasonably be construed differently by those who have examined the language in the context of the contract as a whole. Thoman, 155 IBLA at 267 (2001) (citing WH Smith Hotel Services v. Wendy's Int'l, Inc., 25 F.3d 422, 427 (7th Cir. 1994) (?Contractual language will be deemed ambiguous only when it is reasonably susceptible to different Collins v. Harrison-Bode, 303 F.3d 429, 433 (2d Cir. 2002) (?Contract language is ambiguous if it is ?capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated 49 ?Integration clauses, also known as merger clauses, are contract provisions that generally state that the agreement as written constitutes the entire agreement between the parties and supersedes any prior representations.? Jacobson v. Hofgard, 168 F. Supp. 3d 187, 201 (BBC. 2016) (citing 6 Peter Linzer, Corbin on Contracts (Joseph M. Perillo ed., 2010) at 68). 50 Starter Corp. v. Converse, Inc, 170 F.3d 286, 295 (2d Cir. 1999) (?When a contract lacks an express integration clause [courts] must ?determine whether the parties intended their agreement to be an integrated contract by reading the writing in light of the surrounding circumstances.??) (emphasis added); see also, McAbee Constr., Inc. v. United States, 97 F.3d 143 l, 1434 (Fed. Cir. 1996) (?extrinsic evidence is ?especially pertinent where the writing itself contains no recitals or other evidence testifying to its intended completeness and ?nality??). 5' See M-37036 at 6. 52 The historical interpretation given to a contract by the parties is strong evidence of its meaning. Inc. v. Covell, 727 F.2d 1145, 1 150 (DC Cir. 1983). 10 The minimum annual production and minimum royalty is $10.00 per acre or a fraction thereof as stated in the attached original lease agreement.53 The first quoted stipulation is ambiguous because it does not precisely state which sections of the 1966 lease are being incorporated. Instead it provides that the ?terms and conditions of the production royalties? remain as stated in the original 1966 leases. Those terms and conditions are interspersed throughout the 1966 leases, and are addressed in section 2 (setting the initial rate and minimum royalty payments, among other things), section 5 (setting out the authority and limitations on adjusting royalty rates at renewals), and section 14 (setting out additional limitations on royalty adjustments). By not specifying which of these sections were incorporated and how, the 2004 lease form is ambiguous. Were only the provisions of section 2 intended to be incorporated? Or were the provisions of sections 5 and 14 also to be included? M-37036 assumed the former. Despite section 5 addressing the adjustment of royalties and other terms during renewals, M-3 7036 assumed that section 5 of the 1966 leases was not incorporated and had no bearing in analyzing the 2004 leases.54 It addressed the meaning of section 5 solely as an alternative argument. Yet this assumption is unwarranted because the ?terms and conditions? of the production royalties are not ?illy addressed without sections 5 and 14, so they should be incorporated in some fashion. Precisely how they should be incorporated is also ambiguous given that the royalty and other adjustment provisions of section 5 are intertwined with the renewal provisions of section 1 of the 1966 leases.? In short, the meaning of the 2004 leases is ambiguous.56 Given this ambiguity, extrinsic evidence beyond the ?four corners? of the document may be considered to ascertain the intent of the contracting parties.57 Examining the decision ?les of the BLM resolves the ambiguity. The record shows that the BLM renewed the leases in 1989 under the same terms as the 1966 leases, and did so again in 2004. The circumstances surrounding the 1989 renewal provide important context for understanding the 2004 renewal. The decision ?le for the 1989 renewal conclusively establishes that the BLM intended to renew the leases in 1989 on the same terms as the original 1966 leases. The BLM initially issued a decision document in September of 1988 that would have renewed the leases on different terms from the original 1966 leases, but the BLM quickly reassessed the matter and 53 2004 Leases at 14. 5? See M-37036 at 6 (?Neither of these imported provisions includes the lease renewal provisions of the 1966 leases?); id. at 7 there is no con?icting renewal provision [to the one in the 2004 lease form] referenced elsewhere in the 2004 leases?). 55 The interrelationship is seen directly in the text of section 5, which refers to the ?successive? renewals that are provided by section 1 of the 1966 leases. 5? Given the already described ambiguity that is inherent in the 2004 lease forms, this opinion does not address whether there are other potential ambiguities in those forms. 57 See, e. Daewoo Eng?g Constr. Co. v. United States, 557 F.3d 1332, 1337 (Fed. Cir. 2009) (?Where the meaning of a written instrument is unclear, courts look to extrinsic evidence to resolve the question?). 11 formally vacated its decision ?because the new lease forms submitted for signature will alter the terms and conditions of the original leases.?58 The unusual act of BLM vacating its initial renewal decision was based, in part, on a recommendation memorandum from the Assistant District Manager for Solid Minerals. The memorandum concluded that ?[b]ecause of the highly negotiated terms and conditions of these two leases, which contain many references to requirements to be applied during lease renewal periods, I recommend that these leases be renewed under the existing terms and conditions and in their present form, not on the new lease fonn.?59 A few months after vacating its initial decision, the BLM issued a revised decision renewing the leases under the same terms as the original leases. The decision stated unambiguously that it intended to renew the leases with the same terms and conditions as the original leases: ?The Forest Service and the Bureau of Land Management have agreed to the renewal of the enclosed Preference Right Leases MN ES 1352 and MNES 1353 under the existing terms and conditions of the original leases. Enclosed are lease renewal forms transmitted for your signature and return to this of?ce.?60 The forms the BLM transmitted for signature were Standard Forms 3520-7 (December 1984), with the original 1966 leases attached and incorporated by reference into the standard forms through two special stipulations included as section 14 of the forms (the same form and special stipulations that would be used in the 2004 renewals). In sum, the 1989 leases, although using Standard Form 3520-7, renewed the 1966 leases without alteration of the operative terms. This fact was acknowledged in M-3 7036.? When the 2004 renewal was made, there is no statement or other indication in the ?les that the BLM or the company intended to change any of the terms of the 1989 leases. To the contrary, the record shows that the leases were expected to be renewed on the same terms. Before granting the 2004 lease renewals, the Division of Solid Minerals stated by internal memorandum that have no objection to Preference Right Leases MNES-1352 and MNES-1353 being renewed for ten years, as stipulated within the lease language.?62 The BLM of?cial making this recommendation was the same of?cial who recommended renewing the leases in 1989 on the same terms as the 1966 leases. His reference to the ?lease language? therefore was informed by his knowledge of the 1989 leases and refers to the terms of the governing 1966 leases. Later, the 53 Decision by BLM Deputy State Director for Mineral Resources, Eastern States Of?ce to Alloys International, Inc., ?Decision Vacated? (Oct. 27, 1988). 59 Memorandum ??om BLM Assistant District Manager for Solid Minerals, Rolla, Vincent Vogt, to the State Director, Eastern States Of?ce, ?Recommendations for Lease Renewals, lntemational Nickel Corporation Hardrock Mineral Leases MNES-1352 and (Oct. 14, 1988). 60 Decision by BLM Deputy State Director for Mineral Resources, Eastern States Office to INCO Alloys lntemational, Inc., ?Preference Right Leases Renewed, Lease Forms Transmitted for Signature? (Apr. 25, 1989) (emphasis added). 6' M-37036 at 6, 12. 62 Memorandum from BLM Assistant Field Manager for Solid Minerals, Rolla, Vincent Vogt, to State Director, Eastern States Of?ce, ?Renewal of Preference Right Leases MNES-1352 and (Apr. 12, 1999). 12 Forest Service also stated that it had no objection to the renewal, as ?[t]he terms, conditions and stipulations have been reviewed, and it has been determined that they are suf?cient to protect the resources of the United States.?63 The BLM issued its decision granting the lease renewals on November 12, 2003, changing neither the terms of the lease renewals nor the conditions and stipulations, and provided the same standard form for signature as the BLM provided to the lessee in 1989.64 The BLM did not indicate any change to the contracts in its decision, and the course of dealings between the parties had establi?sfhed the common basis of understanding that the 1966 lease terms were to remain in effect. While M-3 7036 attempted to distinguish between the 1989 and 2004 renewals to explain how two identically worded leases could have drastically different meanings, the attempt fails. As noted earlier, M-37036 concludes that the two renewals differ ?because the discretion was limited in 1989 but not in 2004.?66 But even if that were true, it does not follow that BLM intended to exercise its discretion by drastically altering the meaning of the same lease forms in 2004 (without mentioning the fact to the lessee or even in its own internal ?les). As discussed above, there is simply no evidence that either the BLM or the Forest Service intended in the 2004 renewal to deviate from the terms previously in effect in the 1989 renewal the terms of the original 1966 leases). The 2004 renewal could, and did, as discussed above, renew the leases under the same terms as in 1989, thereby retaining the renewal terms of the 1966 leases. In sum, we have found no documents or other evidence that indicate in any way that the 2004 renewals were to be on altered terms or conditions from the 1989 leases. Because the 1989 leases renewed the leases under the same terms and conditions as the original 1966 leases, those terms remain operative in the 2004 renewal and, as discussed below, entitle Twin Metals to a third renewal. 7 63 Decision of the USDA Forest Service, Regional Forester, Randy Moore, to BLM State Director, Eastern States Of?ce, ?Renewal of Preference Right Leases MNES 1352 and MNES 1353? (July 18, 2003). 64 Decision of BLM Chief of Use Authorization, Division of Resources Planning, Use and Protection, to American Copper and Nickel Co., ?Additional Requirements to be Met? (Nov. 12, 2003). 65 The courts have recognized that the parties? own construction of an ambiguous written instrument is important when determining its meaning. See DDB Tee/1.9., L.L.C. v. MLB Advanced Media, L.P., 517 F.3d 1284, 1292 (Fed. Cir. 2008); 11 Richard A. Lord, Williston on Contracts 32:14 (4th ed. 1999) parties' own practical interpretation of the contract-~how they actually acted, thereby giving meaning to their contract during the course of performing it- -can be an important aid to the 66 M-37036 at 6. The M-Opinion reasons that the 1989 renewal, unlike the 2004 renewal, had to be on the same terms as the original 1966 leases because it served as an extension of time for commencement of production as authorized by the second sentence of section 5 of the 1966 leases. M-37036 at 6. That provision states that a renewal made while the extension is in effect must be ?without readjustment except of royalties payable . . . 1966 Lease, 5 (second sentence). Accordingly, to comply with the dictates of section 5 of the 1966 Leases, the M- Opinion concludes that the 1989 renewal had to be on the same terms as the 1966 leases. The M-Opinion concludes that the 2004 renewal, in contrast, did not have to be on the same terms because it could not and did not provide an extension. It is important to note that nothing on the face of the 1989 lease form states that it serves as an extension, and there is no evidence in the decision ?les that the lessee sought an extension or that BLM granted one. 67 Because the parties intended for the renewal terms of the 1966 leases to remain operative, there is no need to address the meaning of the renewal provision used in the 2004 standard form, which provides for a ?preferential l3 The 1966 Lease Terms Provide for a Third Right of Renewal The renewal terms of the 1966 leases are not ambiguous in providing Twin Metals with a non- discretionary right to a third renewal, subject to the United States? right to impose reasonable new terms and conditions. Section 1 of the 1966 leases sets out the overall renewal rights, and it provides ?a right in the Lessee to renew the same for successive periods of ten (10) years each in accordance with regulation 43 C.F.R. 3221 and the provisions of this lease.?68 The referenced regulation is similarly unambiguous in providing a right to successive renewals, in relevant part providing lessees with: right of renewal for successive periods, not exceeding 10 years each, under such reasonable terms and conditions as the Secretary of the Interior may prescribe, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereof.69 Thus, section 1 of the 1966 leases, by its own terms and by reference to section 3221.4(f) of the regulations, establishes that the lessee has a right of renewal for successive ten-year periods, and that the renewals are subject to the provisions of the lease, including provisions regarding subsequent terms and conditions. No other provision of the leases negates this right of renewal. Accordingly, the 1966 leases provide the lessee with a non-discretionary right of renewal for successive ten-year periods, as long as the lessee complies with the lease terms. M-37036 reached a different conclusion by ?nding that section 5 of the leases conditioned the lessee?s right of renewal upon the lessee having begun production by the end of the primary term. But the text of section 5 does not support this interpretation. Instead, section 5 merely provides terms that govern the extent to which the leases are subject to readjustment at the time of renewal; it does not abrogate the non-discretionary right of renewal provided by section 1. The text of section 5 provides: Renewal Terms. The Lessor shall have the right to reasonably readjust and ?x royalties payable hereunder at the end of the primary term of this lease and thereafter at the end of each successive renewal thereof unless otherwise provided by the law at the time of the right in the lessee to renew for successive periods of 10 years under such terms and conditions as may be prescribed by the Secretary of the Interior, unless otherwise provided by law at the expiration of any period.? 68 1966 leases 1. 69 43 C.F.R. 3221.40) (1966). M-37036 suggests that the last sentence of section 3221.40) supports its conclusion that production is a condition of renewal. M-37036 at 11?12. The last sentence of section 3221.4(t) states: ?An application for renewal of the lease must be ?led in a manner similar to that prescribed for extension of a [prospecting] permit in M-37036 reasons ??om this language that because section 3221.3(a) required a person seeking an extension of a prospecting permit to show that he has ?diligently performed prospecting activities,? section 3221.4(0 must analogously require a person who is ?ling for renewal of a lease to make ?a showing of diligence in performing production.? M-37036 at M-37036 provided no administrative or judicial precedent to support this interpretation, and it fails upon closer examination. Section 3221.4(0 incorporated section 3221.3(a) only to the extent it dealt with the ?manner? of ?ling 3221.3(a) required ?ling an application in triplicate and with a ?ling fee within 90 days of the permit expiration); it does not incorporate the substantive criteria under which a prospecting permit extension is adjudicated. It thus provides no support for the conclusion that a production requirement is a condition of renewal. l4 expiration of any such period, and to readjust other terms and conditions of the lease, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover; provided, however, that the Lessee shall have the right to three successive ten-year renewals of this lease with any readjustment in the royalties payable hereunder limited to that hereinafter provided and with no readjustment of any of the other terms and conditions of this lease unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day. The Secretary of the Interior may grant extensions of time for commencement of production in the interest of conservation or upon a satisfactory showing by the Lessee that the lease cannot be successfully operated at a pro?t or for other reasons, and the Lessee shall be entitled to renewal as herein provided without readjustment except of royalties payable hereunder if at the end of the primary or renewal period such an extension shall be in effect, but the Lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time. If the Lessee shall be entitled to renewal without readjustment except of royalties payable hereunder, the Secretary of the Interior may in his discretion increase the royalty rate prescribed in subsection of Section 2 up to, but not exceeding 5% during the ?rst ten-year renewal period, (ii) 6% during the second ten-year renewal period, and 7% during the third ten-year renewal period. The extent of readjustment of royalty, if any to be made under this section shall be determined prior to the commencement of the renewal period. Rather than conditioning the right of renewal upon production as M-3 7036 argues, section 5 sets forth the degree to which the BLM may readjust the terms, conditions, and royalty rates during lease renewals, and creates an incentive for early production by limiting discretion during the ?rst three lease renewals if production has begun. The ?rst sentence in section 5 has engendered the most commentary, but its meaning is evident from the text. Parsed out, the initial clause grants the BLM two rights: 1. The right to reasonably readjust and ?x royalties at the end of the primary term of the lease and at the end of each successive renewal thereof unless otherwise provided by the law at the time of the expiration of any such period; and 2. The right to readjust other terms and conditions of the lease, including the revision of or imposition of stipulations for the protection of the surface of the land as may be required by the agency having jurisdiction thereover. These rights are subject to one condition set out in the proviso clause. The proviso provides an incentive to production by restricting the right to adjust the terms of the leases during the ?rst three renewals if production has begun during the primary term: That the Lessee has the right to three successive ten-year renewals of the lease with any readjustment in the royalties payable limited to that provided in the 1966 lease and with no readjustment of any of the other terms and conditions of this lease unless at the end of the 15 primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day. Under the terms of this proviso, the consequence of a failure to begin production within the primary term is not the loss of the right to renew, as M-3 7036 asserted, but the loss of the right to a renewal with extremely limited readjustments. Despite the plain wording of this proviso, M-37036 attempted to argue that the ?unless? clause at the end of the sentence ?quali?es the very right to renew.?70 According to that M-Opinion, this ?proper? meaning was demonstrated by deleting text from the provision: [T]he proper meaning of the proviso is clear when the last clause is placed next to the provision it actually quali?es: ?[T]he Lessee shall have the right to three successive ten- year renewals of this lease . .. unless at the end of the primary term of this lease the Lessee shall not have begun production, either hereunder or under the companion lease granted to the Lessee this day.?71 Under this interpretation, the ?nal ?unless? phrase in the proviso imposes a production requirement that negates sub silentio the renewal rights provided in section 1 of the leases. This interpretation is not correct. Deleting the text from the proviso does not clarify its meaning, it simply (and not surprisingly) changes the meaning. The deleted text works with the ?unless? phrase to form one restrictive modi?er that states how the right to three successive renewals will be limited if production has begun. In other words, the ?unless? phrase does not qualify the right to renewal but is part and parcel of the restrictive modi?er describing precisely how the readjustment rights were to be limited if production had begun. Deleting the text thus changes, rather than clari?es, the meaning of the proviso. Moreover, the interpretation suggested by M-37036 does not account for the fact that the entire sentence is a proviso to the ?rst clause. The ?rst clause describes the readjustment authority at renewal and evinces no intention to circumscribe the renewal rights set out in section 1 of the leases or create a production condition on renewal. The proviso is properly interpreted as qualifying this clause,72 but the interpretation suggested by M-37036 elevates the proviso into a separate, standalone provision that creates a production condition, which negates the section 1 renewal rights. Such an interpretation is not warranted by the text or placement of the proviso. The remaining two sentences of section 5 reinforce that the right to renew is not impacted by section 5, but merely the amount of readjustments that can be made with a renewal. The second sentence has three clauses. The ?rst clause gives the Secretary of the Interior broad discretion to grant extensions of time for commencement of production in the interest of conservation, upon a showing that the lease cannot be operated for a pro?t, or ?for other reasons.? The second clause makes clear that a consequence of granting an extension is that the lessee will continue to enjoy the 7? M-37036 at 9. 71 Id. (alteration and ellipsis in original). 72 See, Barnhart v. Thomas, 540 US. 20, 26 (2003) limiting clause or phrase should ordinarily be read as modifying only the noun or phrase that it immediately follows?). 16 favorable limitations on lease readjustments if renewal occurs while the extension is in effect: ?the Lessee shall be entitled to renewal as herein provided without readjustment except of royalties payable.? The third clause provides that ?the Lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time? (emphasis added). The phrase ?such renewals? refers back to the preceding clause, which references renewals without readjustment of the terms and conditions.73 In other words, the second sentence of section 5 takes as a given the right to renew the lease; it is only the terms and conditions of a renewal that are affected by the authorized extension of time for commencement of production. Finally, the third sentence of section 5 is straightforward. It provides a schedule for the rate readjustments when the lessee is entitled to renewal without readjustment except of royalties. It limits rate readj ustments to: 0 5% during the ?rst ten-year renewal period; 0 6% during the second ten-year renewal period; and 0 7% during the third ten-year renewal period. As re?ected by this analysis of section 5, its provisions set out the right of BLM to readjust royalty rates and lease terms and conditions at the time of renewal, but creates a production incentive for the lessee by providing BLM with only limited readjustment rights if the lessee begins production by the end of the primary term (or by the end of an extension if one is granted). The commencement of production is thus a condition precedent to limiting readjustment rights, but it is not a condition precedent to the right to a renewal. M-37036 attempts to support its interpretation that section 5 imposes a production condition on renewal with a number of subsidiary arguments. The M-Opinion argues, for example, that its position is longstanding and supported by a 1986 memorandum from an Associate Solicitor.74 While that 1986 Opinion answered the narrow renewal question before it correctly, ?nding that BLM could renew the leases in the absence of production, its reasoning is faulty and was not even relied upon in M-3 7036. More speci?cally, the 1986 Opinion improperly focused only on the second sentence of section 5, without reference to section 1 of the lease or even the other sentences of section 5. It summarily concluded that the ?nal clause of the second sentence (which states that ?the lessee shall not be entitled to subsequent such renewals unless it shall have begun production within the extended time?) precludes all subsequent renewals. As discussed above, that is an 73 M-37036 asserts that the last clause of the second sentence supports its interpretation, apparently viewing the phrase ?shall not be entitled to subsequent such renewals? as effectively meaning ?shall not be entitled to any renewals.? The M-Opinion?s construction does not square with the actual wording of the clause. 74 M-37036 at l2 (citing Memorandum from Associate Solicitor, Energy and Resources, signed by Kenneth G. Lee, Assistant Solicitor, Branch of Eastern Resources, to Deputy State Director, Mineral Resources, Eastern States Of?ce, BLM, ?Application for Minimum Royalty Waiver Submitted by Alloys International, Incorporated for Leases ES 01352 and ES 01353? (Apr. 2, I986) (I986 Opinion?. 17 improper reading that ignores what the clause is qualifying and gives no meaning to the phase ?such renewals,? instead transforming it into ?all renewals.? Moreover, the BLM appropriately did not follow the advice given in the 1986 Opinion when it renewed the leases for a second time in 2004. The 1986 Opinion thus provides no support for concluding that production is a precondition to the right to renew. M-37036 also argues that the lease requirement to pay minimum royalties in lieu of production does not negate the precondition of production for mandatory renewals.75 While it is certainly true that BLM could impose both requirements, the very case cited in the M-Opinion shows that when BLM intends to impose a production requirement, it will do so explicitly. In General Chemicals (Soda Ash) Partners,76 the BLM had imposed a minimum royalty payment in a sodium lease but also included an express production precondition for renewal, stating that ?[t]he authorized of?cer will reject an application for renewal of this lease if, at the end of the lease?s current term, sodium is not being produced.?77 General Chemicals underscores that the BLM will explicitly include a production precondition when it so intends.78 There is no such provision in the leases at issue. Moreover, the historical record of the 1966 lease implementation shows that production was not made a condition of renewal. For example, as stated in the background section above, the BLM denied requested waiver of minimum royalty payments precisely because there was no production requirement in the lease: The provision for minimum royalty in lieu of production requirements was a lease term arrived at through pre-lease negotiations between the Bureau and INCO. The intention of the minimum royalty is to spur development of the resource and, in effect, is the only diligence requirement contained in the subject leases. Waiver of minimum royalty removes all incentive for the timely development of the leases.79 Later, when processing the 1989 renewal application, the BLM wrote in an internal memorandum that it would be ?inappropriate? to impose a production requirement upon the lessee in the lease renewal, especially ?when no other hardrock leases in our District contain such a requirement.?80 75 M-37036 at 12?13. 76 176 IBLA 1 (2008). 77 Id. at 5. 78 M-37036 suggests that General Chemicals supports its position because the Board in that case found that the payment of minimum royalties did not satisfy the lease?s production requirement. M37036 at 13 (citing General Chemicals, 176 IBLA. at 9.). Given that the lease in General Chemicals included an express production requirement, while the leases at issue do not, the case is clearly distinguishable and actually supports the conclusion reached here that no production requirement is imposed by the leases. 79 Memorandum from BLM Associate District Manager, Milwaukee to the State Director, Eastern States Office, ?Recommendation Regarding an Application for Minimum Royalty Waiver Submitted by INCO Alloys International, Inc.? (Aug. 28, 1985), at 2. 80 Memorandum from BLM Assistant District Manager for Solid Minerals, Rolla, Vincent Vogt, to the State Director, Eastern States Of?ce, ?Recommendations for Lease Renewals, lntemational Nickel Corporation Hardrock Mineral Leases and (Oct. 14, 1988) at 2. l8 Finally, M-37036 makes in essence a public policy argument that a lease without a production precondition would allow for speculative holding of mineral rights in contravention of Congress?s intent to encourage mineral development and ?provide a fair return to the American taxpayer?!? But the leases here do provide incentives for production by imposing minimum royalty payments and authorizing greater revisions of the royalty rates and other terms when there has been no production. The American public has received over $1.4 million dollars in royalty payments, and Twin Metals has asserted that it has spent over $400 million in exploration activity. The public policy concern is unfounded in this instance. In summary, neither the terms of the 1966 leases, the course of conduct of the parties over the last 50 years, nor public policy suggest that a production precondition is required. Conclusion M-37036 improperly interpreted the leases at issue and is withdrawn. As discussed above, the terms of the original leases issued to Twin Metals? predecessor-in-interest in 1966 remain operative in the 2004 lease renewal. The original 1966 leases provide Twin Metals with a non- discretionary right to a third renewal, subject to the United States? right to impose reasonable terms and conditions as authorized by the 1966 leases. Accordingly, the BLM does not have the discretion to deny the renewal application. Daniel H. Jorjani 3? M-37036 at 11. 19 From: To: Cc: Subject: Date: Jorjani, Daniel Newell, Russell Laura Rigas; Heather Swift; Nachmany, Eli; Wynn, Todd; Todd Willens; Magallanes, Downey; John Tanner; Benjamin Cassidy; Micah Chambers; Kaster, Amanda; Alex Hinson; John Bockmier Re: Reversal of Twin Metals Minnesota Application to Renew Preference Right Leases (MNES-01352 and MNES01353) Friday, December 22, 2017 3:46:24 PM TMM M-Opinion is now up on the web page at https://www.doi.gov/solicitor/opinions for the M-Opinion homepage and https://www.doi.gov/sites/doi.gov/files/uploads/m-37049.pdf for the TMM M-opinion Daniel H. Jorjani Principal Deputy Solicitor U.S. Department of the Interior Main Interior Building, Suite 6356 ' 202-219-3861 (Voice)  202-706-9018 (Cell)   daniel.jorjani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. On Fri, Dec 22, 2017 at 3:10 PM, Newell, Russell wrote: All - below is the if asked statement for Twin Metals.  An earlier version of this was approved by SOL - I added the name and M number, as well as the correct press contact box for BLM.   Reversal of Twin Metals Minnesota Application to Renew Preference Right Leases (MNES-01352 and MNES-01353) BLM PRESS STATEMENT (IF ASKED): Today, the United States Department of the Interior’s Office of the Solicitor issued a new legal opinion concluding that Twin Metals Minnesota has a non-discretionary right to a third renewal of its two hardrock mining leases, located in the Superior National Forest in northern Minnesota.  The new M-Opinion (Memorandum Opinion) M-37049 reverses and replaces a prior opinion on the topic which was issued in March 2016.  Under the new legal opinion, the Bureau of Land Management (BLM) will work together with the surface management agency, USDA Forest Service, to reconsider a 2016 decision in which the BLM denied Twin Metals’ pending lease renewal application.  The agencies will conduct the appropriate environmental analysis under the National Environmental Policy Act (NEPA) to make a final agency decision on the application and to identify appropriate terms and conditions for surface protection.  The M-Opinion is available at this link: https://www.doi.gov/solicitor/opinions. CONTACT: BLM Public Affairs at BLM PRESS @blm.g0v From: To: Subject: Date: Swift, Heather daniel.jorjani@sol.doi.gov out of office - This is important: If you"re a reporter on deadline, please email interior_press@ios.doi.gov. Re: Reversal of Twin Metals Minnesota Application to Renew Preference Right Leases (MNES-01352 and MNES01353) Friday, December 22, 2017 3:47:13 PM Thanks for your email. I'm at home wrapping presents, eating cookies, and enjoying family time. I ho-ho-hope you are too. This is important: If you're a reporter on deadline, please email interior_press@ios.doi.gov. If it's about litigation, contact DOJ.  If you're looking for a press release, please check www.doi.gov/pressreleases Thanks, Heather Swift  -Heather Swift Department of the Interior  @DOIPressSec  Heather_Swift@ios.doi.gov l Interior_Press@ios.doi.gov  From: To: Subject: Date: Attachments: Hawbecker, Karen Daniel Jorjani; Jack Haugrud Fwd: Twin Metals -- Notice Friday, December 22, 2017 4:38:47 PM ECF 129 - Notice.pdf Dan and Jack, FYI--DOJ has filed notice of the Twin Metals M-Opinion with the court.  --Karen  ---------- Forwarded message ---------From: Duffy, Sean C. (ENRD) Date: Fri, Dec 22, 2017 at 4:19 PM Subject: Twin Metals -- Notice To: "Hawbecker, Karen" , "Vukelich, Vincent - OGC" , "HENDERSON, PAMELA P. - OGC" , "Vandlik, John - OGC" , "Mulach, Ronald - OGC" , "Dewitte, Vincent - OGC" , "Franklin, Jessica - OGC" , "Collier, Briana" , "McNeer, Richard" , Joshua Hanson , Roy Fuller , Ryan Sklar Cc: "Boronow, Clare (ENRD)" , "Piropato, Marissa (ENRD)" , "Fuller, David (USAMN)" , "Bosshardt, Stacey (ENRD)" All – Please see attached, the notice filed with the Court today, apprising it of the issuance of the new M-Opinion.  Thank you for your helpful suggestions and edits.  Please let us know if you have any questions.   -- Sean   ___________________________________ Sean C. Duffy Environment & Natural Resources Division U.S. Department of Justice Natural Resources Section (202) 305-0445 sean.c.duffy@usdoj.gov ___________________________________   CASE 0:16-cv-03042-SRN-LIB Document 129 Filed 12/22/17 Page 1 of 2 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA ) ) ) ) ) CIVIL NO. 16-3042 SRN/LIB ) ) ) ) ) ) ) ) ) ) ) ) ) ) FRANCONIA MINERALS (US) LLC and TWIN METALS MINNESOTA LLC, Plaintiffs, v. UNITED STATES OF AMERICA; U.S. DEPARTMENT OF THE INTERIOR; SALLY JEWELL, Secretary of the U.S. Department of the Interior; HILARY C. TOMPKINS, Solicitor, U.S. Department of the Interior; and BUREAU OF LAND MANAGEMENT, Defendants. NOTICE Federal Defendants hereby give notice that on December 22, 2017, the Acting Solicitor of the Department of the Interior issued a new opinion, M-37049, entitled “Reversal of M-37036,” which replaces M-37036. A copy of the new opinion is attached as Exhibit A. In light of this new opinion, the Department of the Interior has indicated that the BLM Eastern States Office will be issuing a decision that rescinds its December 15, 2016 decision rejecting the Plaintiffs’ lease renewal application, thereby reinstating the renewal application as it was before the December 15, 2016 decision was issued and also reinstating the two leases (MNES 1352 and MNES 1353) that were issued in 2004, subject to a future decision by BLM on the renewal application. 1 CASE 0:16-cv-03042-SRN-LIB Document 129 Filed 12/22/17 Page 2 of 2 The legal opinion M-37036, BLM’s December 15, 2016 decision rejecting the lease renewal application, and the two leases (MNES 1352 and MNES 1353) are the subjects of this litigation. Federal Defendants are analyzing the effects that the new opinion has on this litigation and may move for further relief or dismissal on additional jurisdictional or other grounds depending on our review. Dated: December 22, 2017 Respectfully submitted, JEFFREY H. WOOD Acting Assistant Attorney General Environment & Natural Resources Division CLARE BORONOW (Admitted to MD bar) Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Natural Resources Section 999 18th Street South Terrace, Suite 370 Denver, CO 80202 Email: clare.boronow@usdoj.gov ph: (303) 844-1362 /s/ Sean C. Duffy MARISSA A. PIROPATO (MA 651630) SEAN C. DUFFY (NY Bar No. 4103131) Trial Attorneys Natural Resources Section 601 D Street NW Washington, DC 20004 Email: sean.c.duffy@usdoj.gov ph: (202) 305-0445 Attorneys for Federal Defendants 2 From: To: Subject: Date: Attachments: Jorjani, Daniel David Bernhardt; Todd Willens Fwd: Twin Metals -- Notice Friday, December 22, 2017 4:52:16 PM ECF 129 - Notice.pdf FYI re TMM ---------- Forwarded message ---------From: Hawbecker, Karen Date: Fri, Dec 22, 2017 at 4:38 PM Subject: Fwd: Twin Metals -- Notice To: Daniel Jorjani , Jack Haugrud Dan and Jack, FYI--DOJ has filed notice of the Twin Metals M-Opinion with the court.  --Karen  ---------- Forwarded message ---------From: Duffy, Sean C. (ENRD) Date: Fri, Dec 22, 2017 at 4:19 PM Subject: Twin Metals -- Notice To: "Hawbecker, Karen" , "Vukelich, Vincent - OGC" , "HENDERSON, PAMELA P. - OGC" , "Vandlik, John - OGC" , "Mulach, Ronald - OGC" , "Dewitte, Vincent - OGC" , "Franklin, Jessica - OGC" , "Collier, Briana" , "McNeer, Richard" , Joshua Hanson , Roy Fuller , Ryan Sklar Cc: "Boronow, Clare (ENRD)" , "Piropato, Marissa (ENRD)" , "Fuller, David (USAMN)" , "Bosshardt, Stacey (ENRD)" All – Please see attached, the notice filed with the Court today, apprising it of the issuance of the new M-Opinion.  Thank you for your helpful suggestions and edits.  Please let us know if you have any questions.   -- Sean   ___________________________________ Sean C. Duffy Environment & Natural Resources Division U.S. Department of Justice Natural Resources Section (202) 305-0445 sean.c.duffy@usdoj.gov ___________________________________       CASE 0:16-cv-03042-SRN-LIB Document 129 Filed 12/22/17 Page 1 of 2 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA ) ) ) ) ) CIVIL NO. 16-3042 SRN/LIB ) ) ) ) ) ) ) ) ) ) ) ) ) ) FRANCONIA MINERALS (US) LLC and TWIN METALS MINNESOTA LLC, Plaintiffs, v. UNITED STATES OF AMERICA; U.S. DEPARTMENT OF THE INTERIOR; SALLY JEWELL, Secretary of the U.S. Department of the Interior; HILARY C. TOMPKINS, Solicitor, U.S. Department of the Interior; and BUREAU OF LAND MANAGEMENT, Defendants. NOTICE Federal Defendants hereby give notice that on December 22, 2017, the Acting Solicitor of the Department of the Interior issued a new opinion, M-37049, entitled “Reversal of M-37036,” which replaces M-37036. A copy of the new opinion is attached as Exhibit A. In light of this new opinion, the Department of the Interior has indicated that the BLM Eastern States Office will be issuing a decision that rescinds its December 15, 2016 decision rejecting the Plaintiffs’ lease renewal application, thereby reinstating the renewal application as it was before the December 15, 2016 decision was issued and also reinstating the two leases (MNES 1352 and MNES 1353) that were issued in 2004, subject to a future decision by BLM on the renewal application. 1 CASE 0:16-cv-03042-SRN-LIB Document 129 Filed 12/22/17 Page 2 of 2 The legal opinion M-37036, BLM’s December 15, 2016 decision rejecting the lease renewal application, and the two leases (MNES 1352 and MNES 1353) are the subjects of this litigation. Federal Defendants are analyzing the effects that the new opinion has on this litigation and may move for further relief or dismissal on additional jurisdictional or other grounds depending on our review. Dated: December 22, 2017 Respectfully submitted, JEFFREY H. WOOD Acting Assistant Attorney General Environment & Natural Resources Division CLARE BORONOW (Admitted to MD bar) Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Natural Resources Section 999 18th Street South Terrace, Suite 370 Denver, CO 80202 Email: clare.boronow@usdoj.gov ph: (303) 844-1362 /s/ Sean C. Duffy MARISSA A. PIROPATO (MA 651630) SEAN C. DUFFY (NY Bar No. 4103131) Trial Attorneys Natural Resources Section 601 D Street NW Washington, DC 20004 Email: sean.c.duffy@usdoj.gov ph: (202) 305-0445 Attorneys for Federal Defendants 2 From: To: Subject: Date: Jorjani, Daniel David Bernhardt Re: TMM to dismiss their case Friday, December 22, 2017 5:34:09 PM Gov. Dayton had a robust statement:  “This shameful reversal by the Trump Administration shows that big corporate money and special interest influence now rule again in Republicancontrolled Washington. We will have to uncover why the financial interests of a large Chilean corporation, with a terrible environmental record, has trumped the need to protect Minnesota’s priceless Boundary Waters Canoe Area.” Daniel H. Jorjani Principal Deputy Solicitor U.S. Department of the Interior Main Interior Building, Suite 6356 ' 202-219-3861 (Voice)  202-706-9018 (Cell)   daniel.jorjani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. On Fri, Dec 22, 2017 at 5:21 PM, David Bernhardt wrote: Sent from my iPhone On Dec 22, 2017, at 5:19 PM, Jorjani, Daniel wrote: FYI Daniel H. Jorjani Principal Deputy Solicitor U.S. Department of the Interior Main Interior Building, Suite 6356 ' 202-219-3861 (Voice)  202-706-9018 (Cell)   daniel.jorjani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. ---------- Forwarded message ---------From: Haugrud, Kevin Date: Fri, Dec 22, 2017 at 5:17 PM Subject: TMM to dismiss their case To: Briana Collier , Karen Hawbecker , Daniel Jorjani , Richard McNeer Just got a call from Raya at Wilmer.  Twin Metals is moving today to dismiss their case against us. From: To: Subject: Date: David Bernhardt Jorjani, Daniel Re: TMM to dismiss their case Friday, December 22, 2017 5:44:09 PM He should call Ken Salazar  Sent from my iPhone On Dec 22, 2017, at 5:34 PM, Jorjani, Daniel wrote: Gov. Dayton had a robust statement:  “This shameful reversal by the Trump Administration shows that big corporate money and special interest influence now rule again in Republican-controlled Washington. We will have to uncover why the financial interests of a large Chilean corporation, with a terrible environmental record, has trumped the need to protect Minnesota’s priceless Boundary Waters Canoe Area.” Daniel H. Jorjani Principal Deputy Solicitor U.S. Department of the Interior Main Interior Building, Suite 6356 ' 202-219-3861 (Voice)  202-706-9018 (Cell)   daniel.jorjani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. On Fri, Dec 22, 2017 at 5:21 PM, David Bernhardt wrote: FYI Daniel H. Jorjani > Principal Deputy Solicitor US. Department of the Interior Main Interior Building, Suite 6356 ?8 202-219-3861 (Voice) 202-706-9018 (Cell) LE daniel.ioriani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. Ifyou believe you have received this message in error, please notify the sender and delete the email immediately. Forwarded message From: Haugrud, Kevin Date: Fri, Dec 22, 2017 at 5:17 PM Subject: TMM to dismiss their case To: Briana Collier Karen Hawbecker Daniel Jorjani Richard McNeer Just got a call from Raya at Wilmer. Twin Metals is moving today to dismiss their case against us. From: To: Subject: Date: Jorjani, Daniel David Bernhardt Re: TMM to dismiss their case Friday, December 22, 2017 5:45:56 PM perfect. On Fri, Dec 22, 2017 at 5:44 PM, David Bernhardt wrote: Sent from my iPhone On Dec 22, 2017, at 5:34 PM, Jorjani, Daniel wrote: Gov. Dayton had a robust statement:  “This shameful reversal by the Trump Administration shows that big corporate money and special interest influence now rule again in Republican-controlled Washington. We will have to uncover why the financial interests of a large Chilean corporation, with a terrible environmental record, has trumped the need to protect Minnesota’s priceless Boundary Waters Canoe Area.” Daniel H. Jorjani Principal Deputy Solicitor U.S. Department of the Interior Main Interior Building, Suite 6356 ' 202-219-3861 (Voice)  202-706-9018 (Cell)   daniel.jorjani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. On Fri, Dec 22, 2017 at 5:21 PM, David Bernhardt > wrote: Daniel H. Jorjani Principal Deputy Solicitor US. Department of the Interior Main Interior Building, Suite 6356 3 202-219-3861 (Voice) 202-706-9018 (Cell) II. This electronic message contains information generamd by the US Depamnent of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. Ifyou believe you have received this message in error, please notify the sender and delete the email immediately. [a Forwarded message From: Haugrud, Kevin Date: Fri, Dec 22, 2017 at 5:17 PM Subject: TMM to dismiss their case To: Briana Collier Karen Hawbecker Daniel orjani Richard McNeer Just got a call from Raya at Wilmer. Twin Metals is moving today to dismiss their case against us. From: Bcc: Subject: Date: Hinson, Alex daniel jorjani@ios.doi.gov *News Alert* The Energy 202: Trump took a long break this December. His environmental deputies did not. Tuesday, January 2, 2018 12:40:31 PM Washington Post: The Energy 202: Trump took a long break this December. His environmental deputies did not. Dino Grandoni January 2, 2018 While a cold snap gripped much of the United States at year’s end, President Trump mocked the majority of Americans who think man-made climate change is real. Pointing to the thermometer in his adoptive home of Washington and elsewhere along the East Coast while vacationing in Florida, Trump suggested that what the country might need is a bit of warming:"In the East, it could be the COLDEST New Year's Eve on record. Perhaps we could use a little bit of that good old Global Warming that our Country, but not other countries, was going to pay TRILLIONS OF DOLLARS to protect against," Trump wrote on Twitter. "Bundle up!" Predictably, Democrats and activists who bemoaned Trump’s ignorance of climate science since he began running for president howled in indignation.  But less conspicuously but more consequently, the gears within the administration, which have spent much of 2017 unwinding former President Barack Obama's energy and environmental policies, were also humming away over the holidays. Trump officials within the Interior Department were particularly busy over the break. On Dec. 29, the last business day of 2017, Interior rescinded a 2015 Obama administration rule that would have tightened standards for well construction and wastewater management for hydraulic fracturing and required the disclosure of the chemicals contained in fracking fluids. The agency rescinded the rule it said would save “up to $9,690 per well or approximately $14 million to $34 million per year” in industry compliance costs. Also that day, another office within Interior, the Bureau of Safety and Environmental Enforcement, published new regulations rewriting rules regarding devices used during offshore oil production that were put in place after the 2010 Deepwater Horizon disaster. Among the rules tossed is one requiring that safety and pollution prevention equipment be inspected by independent auditors — an idea born out of the bipartisan presidential commission that investigated the oil spill. Shortly before Christmas, Interior moved to renew leases for copper and nickel mines that are on the border of Minnesota’s Boundary Waters Canoe Area Wilderness and that are owned by a billionaire who rents a home to Ivanka Trump and Jared Kushner in Washington. Unber Obama, U.S. Forest Service had decided not to renew the leases while federal officials launched a formal review of the operation’s environmental impact. Finally, there was one legal decision that, for wildlife activists, was for the birds: Interior’s principal deputy solicitor wrote to other department employees that the Trump administration would no longer prosecute oil and gas, wind, and solar operators for accidentally killing birds under the 1918 Migratory Bird Treaty Act. Over the years, the federal government has used the law to impose large fines after environmental disasters — including, again, the BP oil spill.  The takeaway: the Trump administration isn't done with its wholesale rolling back of environmental and energy policy as we head into the administration's second year. ### -Alex Hinson Deputy Press Secretary Department of the Interior   From: To: Subject: Date: Hawbecker, Karen Daniel Jorjani; Jack Haugrud Fwd: FW: Activity in Case 0:16-cv-03042-SRN-LIB Franconia Minerals (US) LLC et al v. United States of America et al Order (Text Only) Friday, January 5, 2018 6:11:57 PM Dan and Jack, FYI--the magistrate judge has canceled the January 17 pre-trial conference in the Twin Metals case in light of the plaintiffs' voluntary dismissal of the case. --Karen  ---------- Forwarded message ---------From: Duffy, Sean C. (ENRD) Date: Fri, Jan 5, 2018 at 12:09 PM Subject: FW: Activity in Case 0:16-cv-03042-SRN-LIB Franconia Minerals (US) LLC et al v. United States of America et al Order (Text Only) To: "Hawbecker, Karen" , "Vukelich, Vincent - OGC" , "HENDERSON, PAMELA P. - OGC" , "Vandlik, John - OGC" , "Mulach, Ronald - OGC" , "Dewitte, Vincent - OGC" , "Franklin, Jessica - OGC" , "Collier, Briana" , "McNeer, Richard" , Joshua Hanson , Roy Fuller , Ryan Sklar Cc: "Piropato, Marissa (ENRD)" , "Boronow, Clare (ENRD)" , "Fuller, David (USAMN)" All – just an f/y/i.  In light of plaintiffs’ voluntary dismissal of the case, the magistrate judge has canceled the January 17 pre-trial conference in Duluth.   From: ecf-notice@mnd.uscourts.gov [mailto:ecf-notice@mnd.uscourts.gov] Sent: Friday, January 05, 2018 11:54 AM To: mndecfnotifications@mnd.uscourts.gov Subject: Activity in Case 0:16-cv-03042-SRN-LIB Franconia Minerals (US) LLC et al v. United States of America et al Order (Text Only)   This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply. U.S. District Court U.S. District of Minnesota Notice of Electronic Filing The following transaction was entered on 1/5/2018 at 10:54 AM CST and filed on 1/5/2018 Case Name: Franconia Minerals (US) LLC et al v. United States of America et al Case Number: 0:16-cv-03042-SRN-LIB Filer: Document Number: 131(No document attached) Docket Text: TEXT ONLY ORDER - canceling Pretrial Conference. Pursuant to Docket No. 130, the Pretrial Conference scheduled for Wednesday, January 17, 2018, is hereby CANCELED. Signed by Magistrate Judge Leo I. Brisbois on January 5, 2018. (VLM) 0:16-cv-03042-SRN-LIB Notice has been electronically mailed to: Albinas Jehan Prizgintas     albinas.prizgintas@wilmerhale.com Amy Slusser Conners     aconners@bestlaw.com, rricke@bestlaw.com Clare Boronow     clare.boronow@usdoj.gov, efile_nrs.enrd@usdoj.gov Daniel S. Volchok     daniel.volchok@wilmerhale.com David W Fuller     david.fuller@usdoj.gov, carla.kohl@usdoj.gov, catherine.merle@usdoj.gov, deb.kapinos@usdoj.gov, muriel.holland@usdoj.gov, usamn.ecfcivil@usdoj.gov I Daniel Colton     colton.dan@dorsey.com, chryst.vicki@dorsey.com James Andrew Tucker     jtucker@mofo.com, cwoods@mofo.com Joseph Alex Ward     alexward@mofo.com, emarsh@mofo.com, SOzturkGunertem@mofo.com Joseph R. Palmore     jpalmore@mofo.com Marissa Piropato     marissa.piropato@usdoj.gov Mark R. Kaster     kaster.mark@dorsey.com, jaworski.alice@dorsey.com, niemczycki.sarah@dorsey.com Michael John Patrick Hazel     michael.hazel@wilmerhale.com Paul R.Q. Wolfson     paul.wolfson@wilmerhale.com Sean Christian Duffy     sean.c.duffy@usdoj.gov Stephen J Snyder     stephen.snyder@snyderattorneys.com, craig.brandt@snyderattorneys. com, deborah.norvold@snyderattorneys.com, sherri.milless@snyderattorneys.com Steven J Wells     wells.steve@dorsey.com, blaylark.rosalie@dorsey.com, kappelman.ben@dorsey.com, shaw.gail@dorsey.com Thomas Backer Heffelfinger     theffelfinger@bestlaw.com 0:16-cv-03042-SRN-LIB Notice has been delivered by other means to:   From: To: Cc: Subject: Date: Jorjani, Daniel Hawbecker, Karen Jack Haugrud Re: FW: Activity in Case 0:16-cv-03042-SRN-LIB Franconia Minerals (US) LLC et al v. United States of America et al Order (Text Only) Friday, January 5, 2018 6:14:47 PM Thank you. Have a great weekend.  On Fri, Jan 5, 2018 at 6:11 PM, Hawbecker, Karen wrote: Dan and Jack, FYI--the magistrate judge has canceled the January 17 pre-trial conference in the Twin Metals case in light of the plaintiffs' voluntary dismissal of the case. --Karen  ---------- Forwarded message ---------From: Duffy, Sean C. (ENRD) Date: Fri, Jan 5, 2018 at 12:09 PM Subject: FW: Activity in Case 0:16-cv-03042-SRN-LIB Franconia Minerals (US) LLC et al v. United States of America et al Order (Text Only) To: "Hawbecker, Karen" , "Vukelich, Vincent - OGC" , "HENDERSON, PAMELA P. - OGC" , "Vandlik, John - OGC" , "Mulach, Ronald - OGC" , "Dewitte, Vincent - OGC" , "Franklin, Jessica - OGC" , "Collier, Briana" , "McNeer, Richard" , Joshua Hanson , Roy Fuller , Ryan Sklar Cc: "Piropato, Marissa (ENRD)" , "Boronow, Clare (ENRD)" , "Fuller, David (USAMN)" All – just an f/y/i.  In light of plaintiffs’ voluntary dismissal of the case, the magistrate judge has canceled the January 17 pre-trial conference in Duluth.   From: ecf-notice@mnd.uscourts.gov [mailto:ecf-notice@mnd.uscourts.gov] Sent: Friday, January 05, 2018 11:54 AM To: mndecfnotifications@mnd.uscourts.gov Subject: Activity in Case 0:16-cv-03042-SRN-LIB Franconia Minerals (US) LLC et al v. United States of America et al Order (Text Only)   This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply. U.S. District Court U.S. District of Minnesota Notice of Electronic Filing The following transaction was entered on 1/5/2018 at 10:54 AM CST and filed on 1/5/2018 Case Name: Franconia Minerals (US) LLC et al v. United States of America et al Case Number: 0:16-cv-03042-SRN-LIB Filer: Document Number: 131(No document attached) Docket Text: TEXT ONLY ORDER - canceling Pretrial Conference. Pursuant to Docket No. 130, the Pretrial Conference scheduled for Wednesday, January 17, 2018, is hereby CANCELED. Signed by Magistrate Judge Leo I. Brisbois on January 5, 2018. (VLM) 0:16-cv-03042-SRN-LIB Notice has been electronically mailed to: Albinas Jehan Prizgintas     albinas.prizgintas@wilmerhale.com Amy Slusser Conners     aconners@bestlaw.com, rricke@bestlaw.com Clare Boronow     clare.boronow@usdoj.gov, efile_nrs.enrd@usdoj.gov Daniel S. Volchok     daniel.volchok@wilmerhale.com David W Fuller     david.fuller@usdoj.gov, carla.kohl@usdoj.gov, catherine.merle@usdoj.gov, deb.kapinos@usdoj.gov, muriel.holland@usdoj.gov, usamn.ecfcivil@usdoj.gov I Daniel Colton     colton.dan@dorsey.com, chryst.vicki@dorsey.com James Andrew Tucker     jtucker@mofo.com, cwoods@mofo.com Joseph Alex Ward     alexward@mofo.com, emarsh@mofo.com, SOzturkGunertem@mofo.com Joseph R. Palmore     jpalmore@mofo.com Marissa Piropato     marissa.piropato@usdoj.gov Mark R. Kaster     kaster.mark@dorsey.com, jaworski.alice@dorsey.com, niemczycki.sarah@dorsey.com Michael John Patrick Hazel     michael.hazel@wilmerhale.com Paul R.Q. Wolfson     paul.wolfson@wilmerhale.com Sean Christian Duffy     sean.c.duffy@usdoj.gov Stephen J Snyder     stephen.snyder@snyderattorneys.com, craig.brandt@snyderattorneys.c om, deborah.norvold@snyderattorneys.com, sherri.milless@snyderattorneys.com Steven J Wells     wells.steve@dorsey.com, blaylark.rosalie@dorsey.com, kappelman.ben@dorsey.com, shaw.gail@dorsey.com Thomas Backer Heffelfinger     theffelfinger@bestlaw.com 0:16-cv-03042-SRN-LIB Notice has been delivered by other means to:   From: To: Subject: Date: Jorjani, Daniel David Bernhardt; Todd Willens Fwd: FW: Activity in Case 0:16-cv-03042-SRN-LIB Franconia Minerals (US) LLC et al v. United States of America et al Order (Text Only) Friday, January 5, 2018 6:15:17 PM FYI ---------- Forwarded message ---------From: Hawbecker, Karen Date: Fri, Jan 5, 2018 at 6:11 PM Subject: Fwd: FW: Activity in Case 0:16-cv-03042-SRN-LIB Franconia Minerals (US) LLC et al v. United States of America et al Order (Text Only) To: Daniel Jorjani , Jack Haugrud Dan and Jack, FYI--the magistrate judge has canceled the January 17 pre-trial conference in the Twin Metals case in light of the plaintiffs' voluntary dismissal of the case. --Karen  ---------- Forwarded message ---------From: Duffy, Sean C. (ENRD) Date: Fri, Jan 5, 2018 at 12:09 PM Subject: FW: Activity in Case 0:16-cv-03042-SRN-LIB Franconia Minerals (US) LLC et al v. United States of America et al Order (Text Only) To: "Hawbecker, Karen" , "Vukelich, Vincent - OGC" , "HENDERSON, PAMELA P. - OGC" , "Vandlik, John - OGC" , "Mulach, Ronald - OGC" , "Dewitte, Vincent - OGC" , "Franklin, Jessica - OGC" , "Collier, Briana" , "McNeer, Richard" , Joshua Hanson , Roy Fuller , Ryan Sklar Cc: "Piropato, Marissa (ENRD)" , "Boronow, Clare (ENRD)" , "Fuller, David (USAMN)" All – just an f/y/i.  In light of plaintiffs’ voluntary dismissal of the case, the magistrate judge has canceled the January 17 pre-trial conference in Duluth.   From: ecf-notice@mnd.uscourts.gov [mailto:ecf-notice@mnd.uscourts.gov] Sent: Friday, January 05, 2018 11:54 AM To: mndecfnotifications@mnd.uscourts.gov Subject: Activity in Case 0:16-cv-03042-SRN-LIB Franconia Minerals (US) LLC et al v. United States of America et al Order (Text Only)   This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply. U.S. District Court U.S. District of Minnesota Notice of Electronic Filing The following transaction was entered on 1/5/2018 at 10:54 AM CST and filed on 1/5/2018 Case Name: Franconia Minerals (US) LLC et al v. United States of America et al Case Number: 0:16-cv-03042-SRN-LIB Filer: Document Number: 131(No document attached) Docket Text: TEXT ONLY ORDER - canceling Pretrial Conference. Pursuant to Docket No. 130, the Pretrial Conference scheduled for Wednesday, January 17, 2018, is hereby CANCELED. Signed by Magistrate Judge Leo I. Brisbois on January 5, 2018. (VLM) 0:16-cv-03042-SRN-LIB Notice has been electronically mailed to: Albinas Jehan Prizgintas     albinas.prizgintas@wilmerhale.com Amy Slusser Conners     aconners@bestlaw.com, rricke@bestlaw.com Clare Boronow     clare.boronow@usdoj.gov, efile_nrs.enrd@usdoj.gov Daniel S. Volchok     daniel.volchok@wilmerhale.com David W Fuller     david.fuller@usdoj.gov, carla.kohl@usdoj.gov, catherine.merle@usdoj.gov, deb.kapinos@usdoj.gov, muriel.holland@usdoj.gov, usamn.ecfcivil@usdoj.gov I Daniel Colton     colton.dan@dorsey.com, chryst.vicki@dorsey.com James Andrew Tucker     jtucker@mofo.com, cwoods@mofo.com Joseph Alex Ward     alexward@mofo.com, emarsh@mofo.com, SOzturkGunertem@mofo.com Joseph R. Palmore     jpalmore@mofo.com Marissa Piropato     marissa.piropato@usdoj.gov Mark R. Kaster     kaster.mark@dorsey.com, jaworski.alice@dorsey.com, niemczycki.sarah@dorsey.com Michael John Patrick Hazel     michael.hazel@wilmerhale.com Paul R.Q. Wolfson     paul.wolfson@wilmerhale.com Sean Christian Duffy     sean.c.duffy@usdoj.gov Stephen J Snyder     stephen.snyder@snyderattorneys.com, craig.brandt@snyderattorneys.c om, deborah.norvold@snyderattorneys.com, sherri.milless@snyderattorneys.com Steven J Wells     wells.steve@dorsey.com, blaylark.rosalie@dorsey.com, kappelman.ben@dorsey.com, shaw.gail@dorsey.com Thomas Backer Heffelfinger     theffelfinger@bestlaw.com 0:16-cv-03042-SRN-LIB Notice has been delivered by other means to:   From: To: Cc: Subject: Date: Hawbecker, Karen Jorjani, Daniel Jack Haugrud Re: FW: Activity in Case 0:16-cv-03042-SRN-LIB Franconia Minerals (US) LLC et al v. United States of America et al Order (Text Only) Friday, January 5, 2018 6:19:36 PM You too, Dan.  --Karen  On Fri, Jan 5, 2018 at 6:14 PM, Jorjani, Daniel wrote: Thank you. Have a great weekend.  On Fri, Jan 5, 2018 at 6:11 PM, Hawbecker, Karen wrote: Dan and Jack, FYI--the magistrate judge has canceled the January 17 pre-trial conference in the Twin Metals case in light of the plaintiffs' voluntary dismissal of the case. --Karen  ---------- Forwarded message ---------From: Duffy, Sean C. (ENRD) Date: Fri, Jan 5, 2018 at 12:09 PM Subject: FW: Activity in Case 0:16-cv-03042-SRN-LIB Franconia Minerals (US) LLC et al v. United States of America et al Order (Text Only) To: "Hawbecker, Karen" , "Vukelich, Vincent - OGC" , "HENDERSON, PAMELA P. - OGC" , "Vandlik, John - OGC" , "Mulach, Ronald - OGC" , "Dewitte, Vincent - OGC" , "Franklin, Jessica - OGC" , "Collier, Briana" , "McNeer, Richard" , Joshua Hanson , Roy Fuller , Ryan Sklar Cc: "Piropato, Marissa (ENRD)" , "Boronow, Clare (ENRD)" , "Fuller, David (USAMN)" All – just an f/y/i.  In light of plaintiffs’ voluntary dismissal of the case, the magistrate judge has canceled the January 17 pre-trial conference in Duluth.   From: ecf-notice@mnd.uscourts.gov [mailto:ecf-notice@mnd.uscourts.gov] Sent: Friday, January 05, 2018 11:54 AM To: mndecfnotifications@mnd.uscourts.gov Subject: Activity in Case 0:16-cv-03042-SRN-LIB Franconia Minerals (US) LLC et al v. United States of America et al Order (Text Only)   This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply. U.S. District Court U.S. District of Minnesota Notice of Electronic Filing The following transaction was entered on 1/5/2018 at 10:54 AM CST and filed on 1/5/2018 Case Name: Franconia Minerals (US) LLC et al v. United States of America et al Case Number: 0:16-cv-03042-SRN-LIB Filer: Document Number: 131(No document attached) Docket Text: TEXT ONLY ORDER - canceling Pretrial Conference. Pursuant to Docket No. 130, the Pretrial Conference scheduled for Wednesday, January 17, 2018, is hereby CANCELED. Signed by Magistrate Judge Leo I. Brisbois on January 5, 2018. (VLM) 0:16-cv-03042-SRN-LIB Notice has been electronically mailed to: Albinas Jehan Prizgintas     albinas.prizgintas@wilmerhale.com Amy Slusser Conners     aconners@bestlaw.com, rricke@bestlaw.com Clare Boronow     clare.boronow@usdoj.gov, efile_nrs.enrd@usdoj.gov Daniel S. Volchok     daniel.volchok@wilmerhale.com David W Fuller     david.fuller@usdoj.gov, carla.kohl@usdoj.gov, catherine.merle@usdoj.gov, deb.kapinos@usdoj.gov, muriel.holland@usdoj.gov, usamn.ecfcivil@usdoj.gov I Daniel Colton     colton.dan@dorsey.com, chryst.vicki@dorsey.com James Andrew Tucker     jtucker@mofo.com, cwoods@mofo.com Joseph Alex Ward     alexward@mofo.com, emarsh@mofo.com, SOzturkGunertem@mofo.com Joseph R. Palmore     jpalmore@mofo.com Marissa Piropato     marissa.piropato@usdoj.gov Mark R. Kaster     kaster.mark@dorsey.com, jaworski.alice@dorsey.com, niemczycki.sarah@dorsey.com Michael John Patrick Hazel     michael.hazel@wilmerhale.com Paul R.Q. Wolfson     paul.wolfson@wilmerhale.com Sean Christian Duffy     sean.c.duffy@usdoj.gov Stephen J Snyder     stephen.snyder@snyderattorneys.com, craig.brandt@snyderattorneys.com, deborah.norvold@snyderattorneys.com, sherri.milless@snyderattorneys.com Steven J Wells     wells.steve@dorsey.com, blaylark.rosalie@dorsey.com, kappelman.ben@dorsey.com, shaw.gail@dorsey.com Thomas Backer Heffelfinger     theffelfinger@bestlaw.com 0:16-cv-03042-SRN-LIB Notice has been delivered by other means to:   From: To: Subject: Date: Attachments: Hawbecker, Karen Daniel Jorjani; Jack Haugrud Fwd: Twin Metals - Order Dismissing Case Tuesday, January 9, 2018 1:19:09 PM NRS-#1173601-v1-ECF 132 - Order Dismissing Case.PDF Dan and Jack, FYI--the Court dismissed the Twin Metals case today. --Karen    ---------- Forwarded message ---------From: Duffy, Sean C. (ENRD) Date: Tue, Jan 9, 2018 at 1:08 PM Subject: Twin Metals - Order Dismissing Case To: "Hawbecker, Karen" , "Vukelich, Vincent - OGC" , "HENDERSON, PAMELA P. - OGC" , "Vandlik, John - OGC" , "Mulach, Ronald - OGC" , "Dewitte, Vincent - OGC" , "Franklin, Jessica - OGC" , "Collier, Briana" , "McNeer, Richard" , Joshua Hanson , Roy Fuller , Ryan Sklar Cc: "Piropato, Marissa (ENRD)" , "Boronow, Clare (ENRD)" , "Fuller, David (USAMN)" All – Per the attached, the Court today dismissed the case in Twin Metals.    ___________________________________ Sean C. Duffy Environment & Natural Resources Division U.S. Department of Justice Natural Resources Section (202) 305-0445 sean.c.duffy@usdoj.gov ___________________________________       CASE 0:16-cv-03042-SRN-LIB Document 132 Filed 01/09/18 Page 1 of 1 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA FRANCONIA MINERALS (US) LLC; and TWIN METALS MINNESOTA LLC, Civil Action No. 16-3042 (SRN/LIB) Plaintiffs, v. ORDER DISMISSING CASE UNITED STATES OF AMERICA, et al., Defendants, and NORTHEASTERN MINNESOTANS FOR WILDERNESS, Defendant-Intervenor. Based upon the Notice of Dismissal filed by the Plaintiff herein [Doc. No. 130], and upon all of the files, records, and proceedings in this matter, the Court orders this case to be dismissed without prejudice and without costs or disbursements to any party. LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: January 9, 2018 s/Susan Richard Nelson SUSAN RICHARD NELSON United States District Judge From: To: Subject: Date: Attachments: Daniel Jorjani ; todd willens@ios.doi.gov; Gary Lawkowski@ios.doi.gov Fwd: Twin Metals - Order Dismissing Case Tuesday, January 9, 2018 1:21:31 PM NRS-#1173601-v1-ECF 132 - Order Dismissing Case.PDF b6 David FYI Sent from my iPhone Begin forwarded message: From: "Hawbecker, Karen" Date: January 9, 2018 at 1:18:34 PM EST To: Daniel Jorjani , Jack Haugrud Subject: Fwd: Twin Metals - Order Dismissing Case Dan and Jack, FYI--the Court dismissed the Twin Metals case today. --Karen    ---------- Forwarded message ---------From: Duffy, Sean C. (ENRD) Date: Tue, Jan 9, 2018 at 1:08 PM Subject: Twin Metals - Order Dismissing Case To: "Hawbecker, Karen" , "Vukelich, Vincent OGC" , "HENDERSON, PAMELA P. OGC" , "Vandlik, John - OGC" , "Mulach, Ronald - OGC" , "Dewitte, Vincent - OGC" , "Franklin, Jessica - OGC" , "Collier, Briana" , "McNeer, Richard" , Joshua Hanson , Roy Fuller , Ryan Sklar Cc: "Piropato, Marissa (ENRD)" , "Boronow, Clare (ENRD)" , "Fuller, David (USAMN)" All – Per the attached, the Court today dismissed the case in Twin Metals.  ___________________________________ Sean C. Duffy Environment & Natural Resources Division U.S. Department of Justice Natural Resources Section (202) 305-0445 sean.c.duffy@usdoj.gov ___________________________________ CASE 0:16-cv-03042-SRN-LIB Document 132 Filed 01/09/18 Page 1 of 1 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA FRANCONIA MINERALS (US) LLC; and TWIN METALS MINNESOTA LLC, Civil Action No. 16-3042 (SRN/LIB) Plaintiffs, v. ORDER DISMISSING CASE UNITED STATES OF AMERICA, et al., Defendants, and NORTHEASTERN MINNESOTANS FOR WILDERNESS, Defendant-Intervenor. Based upon the Notice of Dismissal filed by the Plaintiff herein [Doc. No. 130], and upon all of the files, records, and proceedings in this matter, the Court orders this case to be dismissed without prejudice and without costs or disbursements to any party. LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: January 9, 2018 s/Susan Richard Nelson SUSAN RICHARD NELSON United States District Judge From: To: Cc: Subject: Date: Attachments: Hawbecker, Karen Daniel Jorjani Jack Haugrud; Richard McNeer Twin Metals letter to Forest Service and draft BLM decision document Thursday, February 22, 2018 6:03:09 PM 2018.02.16 BLM0013635 outgoing to Forest Service re. Twin Metals.pdf DecisionLetter.MNES.1352.1353.Rescinding.prior.decision.8Feb2018.docx Dan, At our weekly meeting yesterday, you asked for a copy of the letter to the Forest Service about the Twin Metals Solicitor's Opinion, as well as a copy of BLM's draft decision document that will notify Twin Metals that its prior two leases and lease renewal application have been reinstated.  I've attached both documents for your reference.  --Karen  United States Department of the Interior BUREAU OF LAND MANAGEMENT Washington. DC. 20240 Mr. Tony Tooke Chief, US. Forest Service Department of Agriculture FEB 5 2013 201 14th Street, NW Washington, DC 20250 Dear Mr. Tooke: In 2012, Twin Metals Minnesota (TMM) applied to renew its two existing mineral leases (MNES 01352 and MNES 01353) in northeastern Minnesota. The US. Forest Service is the surface management agency for the lands where these two leases are located, and the Bureau of Land Management (BLM) has jurisdiction over the subsurface mineral estate. The BLM previously issued renewals of the 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 of the Interior?s former Solicitor issued a legal Opinion (M- 37036) which concluded that TMM did not have a non-discretionary right to renewal of the leases; rather, the government retained discretion to grant or deny the renewal application. After the issuance of M37036, the BLM requested the Forest Service?s decision on whether to 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 ?led suit in the US. District Court for the District of Minnesota. The company also requested that the Department review and reconsider the legal conclusion of ltd-32036. The Of?ce of the Solicitor has since reviewed M-37036 and has concluded that the opinion?s analysis was incorrect. On December 22, 2017, the Acting Solicitor issued a new opinion entitled, ?Reversal of Pvt-37036, ?Twin Metals Minnesota Application to Renew Preference Right Leases (MINES-01352 and (NI-32049), which reverses and replaces M-37036. 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. In light of 1121-32049, we are writing to notify you that the BLM will be issuing a decision that rescinds its December 15, 2016, decision rejecting the lease renewal application, thereby reinstating renewal application as it was before the decision was issued and also reinstating the two leases that were issued in 2004. Once BLM issues that decision, the reinstated leases will remain in effect as written in 2004, until such time as the BLM approves the application for a third lease renewal, Subject to appropriate, updated terms and conditions. Because the prior request for the Forest Service to consent was based on the legal error that the United States had discretion whether to renew the leases, we will no longer treat the Forest Service?s December 2016 non-consent determination as a valid determination. Consistent with the process followed for the ?rst and second lease renewals in 1989 and 2004, the BLM would like to consult with the Forest Service and requests any appropriate surface protection stipulations to be incorporated into the terms of the third lease renewal, subject to environmental review in accordance with the National Environmental Policy Act. We appreciate your continued partnership in this process and in managing the public lands in northern Minnesota. If you need additional information, please contact me at (202) 208-3801. Sincerely, Joseph R. Balash Assistant Secretary Land and Minerals Management Enclosure cc: Ms. Kathleen Atkinson, Regional Forester, Eastern Region, US. Forest Service Ms. Connie Cummins, Forest Supervisor, Superior National Forest United States Department of the Interior BUREAU OF LAND MANAGEMENT Eastern States 20 M Street SE, Suite 950 Washington D.C. 20003 http://www.es.blm.gov In Reply Refer To: 3566 (930) P MNES 01352, MNES 01353 CERTIFIED MAIL – RETURN RECEIPT REQUESTED DECISION Mr. Kevin Baker Vice President, Legal Affairs Twin Metals Minnesota, LLC 380 St. Peter Street, Suite 705 St. Paul, MN 55102 : : : : : Leasing of Solid Minerals: MNES 01352, MNES 01353 Rescind Decision dated December 15, 2016, Rejecting Lease Renewal Application (b) (5) (b) (5) We appreciate your continued partnership in this process and in managing the public lands and resources in Northern Minnesota. 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 (b) (5) Concurred in by: _______________________________ Joseph R. Balash Assistant Secretary Land and Minerals Management U.S. Department of the Interior Enclosure: Solicitor Opinion M-37049 (December 22, 2017) “Reversal of M-37036…” cc: BLM Northeastern States District Office Regional Forester, USFS Region 9 Forest Supervisor, Superior National Forest From: Hawbec ker Karen To: Daniel Jog?ani Subject: Fwd: If asked statement? Date: Friday, April 13, 2018 6:05:33 PM Dan. 111 preparation for Joe conc1u11'ng in BLM's decision to reinstate the Twin Metals 2004 leases and 2012 application for renewal. we've assisted BLM in prepaiing an if-asked statement. as shown below. My understanding is that Jim may be giving his concmrence today. which would ?'ee up Joe to sign the concmrence line on the BLM reinstatement decision next week. --Karen Forwarded message From: Collier, Briana Date: Fri Apr 13, 2018 at 5:17 PM Subject: Re: If asked statement? To: "Winston Beverly" Cc: Kalen Hawbecke1 Richald McNee1 We edited the statement a bit and included you! B1?1a11a ease et me 10w 11 you lave any questlons. DRAFT -- TMM lf-Asked Statement April 13. 2018 ss?. r; -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 From: Daniel Jog'ani To: Hawbecker Karen Subject: Re: If asked statement? Date: Friday, April 13, 2018 6:24:27 PM Daniel H. Jorjani Principal Deputy Solicitor Department of the Interior 5-- Main Interior Building (Voice) 2112;795:2018 (Cell) This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosru'e of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error. please notify the sender and delete the email immediately. Sent from my iPhone 011 Apr 13. 2018. at 6:05 PM, Hawbecker. Karen wrote: Dan. In preparation for Joe concurring in BLM's decision to reinstate the Twin Metals 2004 leases and 2012 application for renewal. we?ve assisted BLM in preparing an if-asked statement. as shown below. My understanding is that Jim may be giving his concurrence today. which would free up Joe to sign the concurrence line on the BLM reinstatement decision next week. --Karen Forwarded message From: Collier, Briana Date: Fri. Apr 13. 2018 at 5:17 PM Subject: Re: If asked statement? To: "Winston Beverly" Cc: Karen Hawbecker Richard McNeer Pease et me owr you ave any questions. DRAFT -- TMM If-Asked Statement April 13, 2018 (b) (5) Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (505) 248-5604  This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. -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 From: To: Cc: Subject: Date: Attachments: Hawbecker, Karen Daniel Jorjani Richard McNeer Twin Metals lease and renewal application reinstatement decision Monday, April 16, 2018 2:37:01 PM Final signed BLM-TwinMetalsMinnesota decision.pdf Dan, During the last administration, when BLM Eastern States Director Karen Mouritsen signed the decision rejecting Twin Metals' application for renewal of its two leases in December 2016, former Assistant Secretary Janice Schneider was recused from the matter, so former Deputy Secretary Mike Connor approved the decision, thereby removing jurisdiction from IBLA to hear any appeals from the decision.  See attached copy of the decision signed by Karen Mouristen and Mike Connor. We are now preparing for the BLM to sign a decision reinstating the two leases that were issued in 2004 and reinstating Twin Metals lease renewal application.  (b) (5)      Thank you. --Karen     ---------- Forwarded message ---------From: Collier, Briana Date: Mon, Apr 16, 2018 at 11:40 AM Subject: Original Twin Metals decision with Mike Connor concurrence To: Karen Hawbecker Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (505) 248-5604  This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. -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 mum mm as mm: mini UJ. DEPARTMENT OF 941(le lulu? a! United States Department of the Interior BUREAU OF LAND MANAGEMENT Eastern States Of?ce 20 Street, SE Suite 950 Washington, DC 20003 In Reply Refer To: 3500(930) MNES 01352, MNES 01353 CERTIFIED MAIL RETURN RECEIPT REQUESTED 7015 0640 0002 5642 3908 DECISION Mr. Ian Duckworth, Chief Operating Of?cer Leasing of Hardrock Minerals Twin Metals Minnesota Serial Number MNES 01352 380 St. Peter Street, Suite 705 Serial Number MNES 01353 St. Paul, MN 55102 Lease Renewal Application Rejected On December 14, 2016, the United States Forest Service (US. Forest Service or USFS) submitted a letter to the Bureau of Land Management (BLM) stating it did not consent to renewal of Preference Right Leases MNES 01352 and MNES 01353. As a result, with the approval of the Deputy Secretary, I hereby reject the application for renewal of these leases. The reasons for my decision to reject the lease renewals are set forth below. Background The Department of the Interior (DOI) Bureau of Land Management (BLM) Eastern States Office completed its review of the application for renewal of Preference Right Leases MNES 01352 and MNES 013 53, located within the Superior National Forest in Northern Minnesota, submitted by Twin Metals Minnesota (TMM), a subsidiary of ranconia Minerals (US) LLC, on October 21, 2012. The application for renewal was submittedtimely as the leases were scheduled to expire on January 1, 2014. The USP is the surface management agency for the lands where these two leases are located, and BLM has jurisdiction over the mineral rights. The predecessor in interest obtained the two original preference right leases that were issued in 1966 for a primary term of 20 years. The BLM issued two renewals, with US. Forest Service concurrence, in 1989 and 2004. Those leases allowed for the mining of copper, nickel, and associated minerals, but to date, TMM has not begun mineral production on either of the leases. The leases are located on the South Kawishiwi River on Superior NF lands south of the Boundary Waters Canoe Area (BWCA) Wilderness on acquired Weeks Act lands, as well as National Forest System lands reserved from the public domain and managed by USFS. These lands are not open to the operation of the Mining Law of 1872. Rather, the Secretary of the Interior?s (Secretary) authority, delegated to BLM, for mineral disposition on the acquired lands is in section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099?1100, and 16 U.S.C. 520, which governs mineral disposition on Weeks Act lands. The Secretary?s authority, delegated to BLM, for mineral disposition on reserved National Forest System lands in Minnesota is found in 16 U.S.C. 508b. For acquired lands, these authorities provide that ?mineral development on such lands shall be authorized by the Secretary only when he is advised by the Secretary of Agriculture that such development will not interfere with the primary purposes for which the land was acquired and only in accordance with such conditions as may be speci?ed by the Secretary of Agriculture in order to protect such purposes.? Section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099-1100. For public domain lands, the authorities provide that ?the development and utilization of such mineral deposits shall not be permitted by the Secretary of the Interior except with the consent of the Secretary of Agriculture.? 16 U.S.C. 508b. Since submission of the application for renewal of these Preference Right Leases, BLM has consulted with the DOI Office of the Solicitor and the Department of Agriculture, U.S. Forest Service, about this application. In processing the application, BLM identified the need for a legal opinion to determine whether TMM has a non-discretionary right to renew the two preference right leases. The DOI Of?ce of the Solicitor (Solicitor) examined the issue. On March 8, 2016, the Solicitor issued Memorandum Opinion 37036 (M-Opinion) (Enclosure 1) determining that the lessee does not have a non?discretionary right to a third 10-year renewal and, therefore, that BLM has discretion to decide whether to grant or deny the application. The M-Opinion also noted that, even if the original 1966 lease terms apply, the renewal provision gives BLM discretion regarding whether to renew the leases and requires renewal as a matter of right only if the lessee has already begun production, which is not the case here. Therefore, BLM has discretion to grant or deny these leases and, in accordance with the relevant statutes identified above and BLM regulations at 43 C.F.R. 3503.13, 3503.20, BLM must have written consent from the surface management agency to issue any permits or leases. U.S. Forest Service Consent Decision On June 3, 2016, BLM issued a letter to USF requesting a written decision on whether the Agency consents or does not consent to renewal of the leases (Enclosure 2). The USFS in turn issued a media release on June 13, 2016, announcing a 30?day period for public input. The USF held two listening sessions: one in Duluth, Minnesota, on July 12, 2016, and a second session in Ely, Minnesota, on July 19, 2016. On December 14. 2016. the US. Forest Service issued a letter stating it did not consent to the renewal of MN ES 01352 and MNES 01353 (Enclosure 3). In its decision, USFS determined that these leases were inconsistent with the Agency?s af?nnative duty to protect and maintain the values in the BWCA Wilderness, embodied by the directive in the 2004 Superior National Forest Plan to manage the BWCA Wilderness in such a manner that ?perpetuates and protects its unique natural ecosystems, provides an enduring wilderness resource for future generations, and provides opportunities for a primitive and uncon?ned recreation experience.? in considering this renewal application, the Agency identi?ed grave concerns that the development of the copper sulfide-ore mining in the Rainy River Watershed, in particular the MNES 01352 and 01353 mineral leases, risks seriously impairing the ecosystem health of the wilderness area, and with it, poses unacceptable risks to the wildlife, recreational uses, tribal hunting, ?shing, and usufructuary rights, and tourism industry that depend on the pristine nature of the BWCA Wilderness. Conclusion As stated above, in accordance with section 402 of Reorganization Plan No. 3 of 1946. 60 Stat. 1097, 1099?1100, 16 U.S.C. 520, [6 U.S.C. 508b, and BLM regulations in 43 C.F.R. Subpart 3503, BLM must have written consent from the surface management agency before it may issue the leases on both public domain and acquired lands. In this instance, because USFS did not consent, BLM cannot grant your application for renewal of leases MNF.S 01352 and MN ES 01353 and hereby rejects the lease renewal application. Final Agency Action It is my decision to reject your application to renew Twin Metals Leases MNES 01352 and MNES 01353 based on decision on December 14, 2016, not to consent. The lease expires upon receipt of this notice. 43 CPR. 3514.25. We are providing you 30 days to remove equipment from the lease and remediate existing boreholes. If more time is needed, please contact the BLM Northeastern States District Manager to arrange for additional time for equipment removal and remediation. fw?l E. Moimtsen State Director Eastern States Office, BLM Final Agency Action I hereby approve the decision rejecting the application to renew Twin Metals Leases MNES 01352 and MNES 01353. My approval of this decision constitutes the ?nal decision of the Department of the interior and, in accordance with the regulations at 43 C.F.R. is not subject to appeal under departmental regulations at 43 CPR. Part 4. Approved by: Michael L. Connor Deputy Secretary Department of the Interior Enclosures 1 Memorandum Opinion 37036, dated March 8, 2016. 2 Letter from BLM ES-State Director to US. Forest Service Regional Director, dated June 3. 2016 3 Forest Service letter cc: BLM Northeastern States District Of?ce Regional Forester, USFS Region 9 Case Files ES-930 Reading Files From: To: Cc: Subject: Date: Attachments: Newell, Russell David Bernhardt; Todd Willens; Magallanes, Downey; Daniel Jorjani Laura Rigas Fwd: TMM lease reinstatement -- fyi Wednesday, April 18, 2018 3:49:13 PM DRAFT If asked statement TMM reinstatement.docx FYSA - BLM's if-asked statement on Twin Metals.  Russell Newell Deputy Director of Communications U.S. 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" , Isabel Benemelis Cc: Jeff Krauss , Amber Cargile Hello, Just flagging 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 Office. Bev DRAFT -- TMM If-Asked Statement April 13, 2018   On December 22, 2017, the Department of the Interior's Solicitor issued an opinion concluding that the Twin Metals Minnesota (TMM) 1966 mineral lease terms give TMM a non-discretionary right to a third renewal of its two leases.  The two 1966 leases were previously renewed twice, in 1989 and 2004.  On April __, 2018, the Bureau of Land Management (BLM) reinstated the 2004 leases and TMM’s application to renew them for a third time.  The reinstated leases will remain in effect until the BLM acts on the application for a third lease renewal​, informed by review under the National Environmental Policy Act, and​ subject to reasonable updated terms and conditions.  Because the leases are located within the Superior National Forest in northern Minnesota, the BLM will coordinate with the U.S. Forest Service to identify the updated stipulations to be included in the leases when renewed. The lease reinstatements do not give TMM approval to begin any mining operations.   -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 DRAFT -- TMM If-Asked Statement April 13, 2018 On December 22, 2017, the Department of the Interior's Solicitor issued an opinion concluding that the Twin Metals Minnesota (TMM) 1966 mineral lease terms give TMM a non-discretionary right to a third renewal of its two leases. The two 1966 leases were previously renewed twice, in 1989 and 2004. On April __, 2018, the Bureau of Land Management (BLM) reinstated the 2004 leases and TMM’s application to renew them for a third time. The reinstated leases will remain in effect until the BLM acts on the application for a third lease renewal, informed by review under the National Environmental Policy Act, and subject to reasonable updated terms and conditions. Because the leases are located within the Superior National Forest in northern Minnesota, the BLM will coordinate with the U.S. Forest Service to identify the updated stipulations to be included in the leases when renewed. The lease reinstatements do not give TMM approval to begin any mining operations. From: To: Subject: Date: Attachments: Jorjani, Daniel Karen Hawbecker; Richard McNeer Fwd: TMM lease reinstatement -- fyi Wednesday, April 18, 2018 6:36:50 PM DRAFT If asked statement TMM reinstatement.docx OK? ---------- 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 , "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 @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" , Isabel Benemelis Cc: Jeff Krauss , Amber Cargile Hello, Just flagging 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 Office. Bev DRAFT -- TMM If-Asked Statement April 13, 2018   On December 22, 2017, the Department of the Interior's Solicitor issued an opinion concluding that the Twin Metals Minnesota (TMM) 1966 mineral lease terms give TMM a non-discretionary right to a third renewal of its two leases.  The two 1966 leases were previously renewed twice, in 1989 and 2004.  On April __, 2018, the Bureau of Land Management (BLM) reinstated the 2004 leases and TMM’s application to renew them for a third time.  The reinstated leases will remain in effect until the BLM acts on the application for a third lease renewal​, informed by review under the National Environmental Policy Act, and​ subject to reasonable updated terms and conditions.  Because the leases are located within the Superior National Forest in northern Minnesota, the BLM will coordinate with the U.S. Forest Service to identify the updated stipulations to be included in the leases when renewed. The lease reinstatements do not give TMM approval to begin any mining operations.   -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 DRAFT -- TMM If-Asked Statement April 13, 2018 On December 22, 2017, the Department of the Interior's Solicitor issued an opinion concluding that the Twin Metals Minnesota (TMM) 1966 mineral lease terms give TMM a non-discretionary right to a third renewal of its two leases. The two 1966 leases were previously renewed twice, in 1989 and 2004. On April __, 2018, the Bureau of Land Management (BLM) reinstated the 2004 leases and TMM’s application to renew them for a third time. The reinstated leases will remain in effect until the BLM acts on the application for a third lease renewal, informed by review under the National Environmental Policy Act, and subject to reasonable updated terms and conditions. Because the leases are located within the Superior National Forest in northern Minnesota, the BLM will coordinate with the U.S. Forest Service to identify the updated stipulations to be included in the leases when renewed. The lease reinstatements do not give TMM approval to begin any mining operations. From: To: Cc: Subject: Date: Hawbecker, Karen Jorjani, Daniel Richard McNeer Re: TMM lease reinstatement -- fyi Thursday, April 19, 2018 10:58:44 AM 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 , 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 @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" , Isabel Benemelis Cc: Jeff Krauss , Amber Cargile Hello, Just flagging 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 Office. Bev DRAFT -- TMM If-Asked Statement April 13, 2018   On December 22, 2017, the Department of the Interior's Solicitor issued an opinion concluding that the Twin Metals Minnesota (TMM) 1966 mineral lease terms give TMM a non-discretionary right to a third renewal of its two leases.  The two 1966 leases were previously renewed twice, in 1989 and 2004.  On April __, 2018, the Bureau of Land Management (BLM) reinstated the 2004 leases and TMM’s application to renew them for a third time.  The reinstated leases will remain in effect until the BLM acts on the application for a third lease renewal​, informed by review under the National Environmental Policy Act, and​ subject to reasonable updated terms and conditions.  Because the leases are located within the Superior National Forest in northern Minnesota, the BLM will coordinate with the U.S. Forest Service to identify the updated stipulations to be included in the leases when renewed. The lease reinstatements do not give TMM approval to begin any mining operations.   -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 From: To: Subject: Date: Daniel Jorjani Newell, Russell Re: TMM lease reinstatement -- fyi Thursday, April 19, 2018 11:01:38 AM Ok Daniel H. Jorjani Principal Deputy Solicitor Department of the Interior Main Interior Building ' 202-219-3861 (Voice) 202-706-9018 (Cell) daniel.jorjani@sol.doi.gov This electronic message contains information generated by the US Department of the Interior solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. Sent from my iPhone On Apr 18, 2018, at 3:49 PM, Newell, Russell wrote: FYSA - BLM's if-asked statement on Twin Metals.  Russell Newell Deputy Director of Communications U.S. 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" , Isabel Benemelis Cc: Jeff Krauss , Amber Cargile Hello, Just flagging 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 Office. Bev DRAFT -- TMM If-Asked Statement April 13, 2018   On December 22, 2017, the Department of the Interior's Solicitor issued an opinion concluding that the Twin Metals Minnesota (TMM) 1966 mineral lease terms give TMM a non-discretionary right to a third renewal of its two leases.  The two 1966 leases were previously renewed twice, in 1989 and 2004.  On April __, 2018, the Bureau of Land Management (BLM) reinstated the 2004 leases and TMM’s application to renew them for a third time.  The reinstated leases will remain in effect until the BLM acts on the application for a third lease renewal​, informed by review under the National Environmental Policy Act, and​ subject to reasonable updated terms and conditions.  Because the leases are located within the Superior National Forest in northern Minnesota, the BLM will coordinate with the U.S. Forest Service to identify the updated stipulations to be included in the leases when renewed. The lease reinstatements do not give TMM approval to begin any mining operations.   -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 From: To: Subject: Date: Attachments: Hawbecker, Karen Daniel Jorjani Fwd: URGENT: Questions for the Record - Secretary"s hearing before House Interior Appropriations DUE: April 24th Tuesday, April 24, 2018 12:01:38 PM McCollum Q65-69 Mineral Withdrawal Superior National Forest + SOL draft answers.docx 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 I supplied to BLM for the Twin Metals QFRs.  Adam Merrill said that he would send us the finished product for our information.  I'll pass it along when I get it. Thank you. Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (505) 248-5604  This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. ---------- Forwarded message ---------From: 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 U.S. 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. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On 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 final.   Adam   Adam Merrill Acting Deputy Chief Division of Solid Minerals (WO-320) Washington Office (202) 912-7044 On Tue, Apr 24, 2018 at 10:21 AM, Sklar, Ryan wrote: Adam, can we please see the final responses when they are done?  We don't need to see a draft.  We're just interested in seeing the final 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 finished up.   Thanks, Adam  Adam Merrill Acting Deputy Chief Division of Solid Minerals (WO-320) Washington Office (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 (b) (5) Please let Briana and I know if you have any questions or see anything you'd like to discuss. Thanks, Ryan 011 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: Briana and Ryan, The BLM has received QFRs from the Budget office 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 (WO-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" , 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 #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" , 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 M 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 WO-880 by COB Tuesday, April 24th.    The QFRs are assigned to the directorates as follows: WO-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-700 - State Staffing Levels WO-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 (WO-880) Office:  202-912-7070 Mobile/Alternate Number: 202-779-0612 Fax:  202-912-7183 Email: tmjackson@blm.gov This email (including attachments) is intended for the addressee(s) only. It may contain information that is privileged, confidential, sensitive, or otherwise protected from disclosure by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this e-mail to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited.  If you have received this email in error, please notify the sender immediately and delete this e-mail and all copies. -Gregory Muehl Management & Program Analyst Energy, Minerals & Realty Management Directorate (WO-300) Bureau of Land Management U.S. Department of the Interior Office:    202.912.7315 Mobile:  202.306.6113 -Bev Winston Bureau of Land Management Communications 202-208-4602 bwinston@blm.gov -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. -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 Mineral \Vithdrawal: Superior National Forest Formatted: Font: Not Bold From: To: Subject: Date: Jorjani, Daniel Hawbecker, Karen Re: URGENT: Questions for the Record - Secretary"s hearing before House Interior Appropriations DUE: April 24th Tuesday, April 24, 2018 12:03:22 PM 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 I supplied to BLM for the Twin Metals QFRs.  Adam Merrill said that he would send us the finished product for our information.  I'll pass it along when I get it. Thank you. Briana Collier Attorney-Adviser, Division of Mineral Resources U.S. Department of the Interior, Office of the Solicitor 505 Marquette Ave., NW Ste.1800 Albuquerque, NM 87102 Phone: (505) 248-5604  This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. ---------- Forwarded message ---------From: 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 U.S. 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. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On 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 final.   Adam   Adam Merrill Acting Deputy Chief Division of Solid Minerals (WO-320) Washington Office (202) 912-7044 On Tue, Apr 24, 2018 at 10:21 AM, Sklar, Ryan wrote: Adam, can we please see the final responses when they are done?  We don't need to see a draft.  We're just interested in seeing the final 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 finished up.   Thanks, Adam  Adam Merrill Acting Deputy Chief Division of Solid Minerals (WO-320) Washington Office (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, om? response references the 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, 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. ollier, 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 sru'face im acts. These answers will reference However. questions 65, 66, and 67 are questions of pine 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 011 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 counteipait in OS omms to answer Q67. 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 veiy much. 505 Marquette Ave. NW Ste. 1800 Albuquerque. NM 87102 is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this email to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this email or its contents is strictly prohibited. If you received this email in error, please notify the sender immediately and destroy all copies. On Mon, Apr 23, 2018 at 12:55 PM, Merrill, Adam wrote: Briana and Ryan, The BLM has received QFRs from the Budget office 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 (WO-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" , 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 #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" , 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 M 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 WO-880 by COB Tuesday, April 24th.    The QFRs are assigned to the directorates as follows: WO-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-700 - State Staffing Levels WO-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 (WO-880) Office:  202-912-7070 Mobile/Alternate Number: 202-779-0612 Fax:  202-912-7183 Email: tmjackson@blm.gov This email (including attachments) is intended for the addressee(s) only. It may contain information that is privileged, confidential, sensitive, or otherwise protected from disclosure by applicable law. If you are not the intended recipient or the employee or agent responsible for delivery of this e-mail to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or use of this e-mail or its contents is strictly prohibited.  If you have received this email in error, please notify the sender immediately and delete this e-mail and all copies. -Gregory Muehl Management & Program Analyst Energy, Minerals & Realty Management Directorate (WO-300) Bureau of Land Management U.S. Department of the Interior Office:    202.912.7315 Mobile:  202.306.6113 -Bev Winston Bureau of Land Management Communications 202-208-4602 bwinston@blm.gov -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. -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