On January 9, 2017, the U.S. Forest Service approved the transfer of 6,650 acres of Superior National Forest to PolyMet Mining Inc. for its proposed open pit copper-nickel mine. WaterLegacy filed suit in federal court three weeks later to block the PolyMet Land Exchange as a “sweetheart deal” that undervalued public lands and would serve to subsidize the PolyMet mine project.
In subsequent months, several other environmental groups also filed lawsuits, challenging the PolyMet land exchange as a violation of public lands and environmental laws.
PolyMet moved to dismiss the cases challenging its land exchange as illegal and lobbied federal elected officials to pass bills to circumvent court review.
Minnesota Politicians Attempt to Compel the PolyMet Land Exchange, Circumvent Court Review of its Legality
Since July 2017, federal elected officials have attempted to pass bills to compel the PolyMet Land Exchange and circumvent judicial review of whether the land exchange complies with long-standing environmental and public lands laws.
Cong. Rick Nolan introduced a federal bill (HR 3115) over the July 4, 2017 weekend that would mandate the PolyMet land exchange and prevent the federal court from analyzing whether the land exchange ripped off the public in violation of federal law. That bill was passed in the House of Representatives on November 28, 2017. No action on a stand-alone PolyMet land exchange bill was taken in the Senate.
In June 2018, Senator Tina Smith and Senator Amy Klobuchar co-authored a rider to the unrelated National Defense Authorization Act (NDAA) that would similarly compel the PolyMet land exchange and circumvent due process.
Citizens, environmental groups and tribes in Minnesota and across the U.S. signed postcards, made calls, sent letters and met with legislators.
The PolyMet Land Exchange Rider was kept out of the National Defense spending bill.
Citizen engagement and U.S. Department of Justice investigation of Glencore for violation of the Foreign Corrupt Practices may have defeated the rider:
Maccabee said she does not know whether the investigation, which was reported two weeks ago, played a role in the decision to remove the land exchange provision. “This has become a national issue,” she said. “Across the country, people are becoming aware of this effort and the risk of intervening in judicial processes. People understand that things like this set precedent.”
Opposition to Bills to Compel the PolyMet Land Exchange
More than 60 Minnesota, regional and national environmental groups oppose any federal bill to compel the PolyMet land exchange.
Passage of a PolyMet land exchange amendment would set a terrible precedent across the United States. . . It is rare and highly unusual for the U.S. Congress to intervene in a land exchange while the courts are considering whether that land exchange is legal.
The National Congress of American Indians enacted a resolution in October 2017 opposing the PolyMet land exchange and a federal bill to compel the transfer of public lands.
[S]uch congressional action sets a dangerous precedent by bypassing important and long-standing laws that ensure tribal lands, resources, and reserved rights are protected, consistent with the federal government’s Treaty and trust obligations to Indian tribes, and subject to the right to seek judicial review of federal agency decision.
News Coverage of Bills to Compel the PolyMet Land Exchange
When the PolyMet land exchange bill was introduced in 2017, commentators emphasized that it would set precedent circumventing federal law and due process:
“This kind of circumventing the courts, circumventing due process, sets a very bad precedent for PolyMet, and also leaves the potential that Minnesota taxpayers and users of public land will be ripped off by this project,” said Paula Maccabee, advocacy director and attorney for WaterLegacy, one of the groups that filed a lawsuit.
North Shore businessman Bill Hansen explained in a Duluth News Tribune Commentary that a federal bill to force the PolyMet cheats the public.
I think we all can agree our national forests shouldn’t be given to wealthy foreign investors without, at the very least, fair compensation in return. As state Sen. Erik Simonson of Duluth asked in a tweet, “Since when does our government work for foreign corporations?
WaterLegacy Minnesota Federal Court Lawsuit to Block PolyMet Land Exchange as “Sweetheart Deal” Violating Public Lands Law
On January 30, 2017, WaterLegacy filed suit in Minnesota federal court challenging the PolyMet land exchange as a violation of the Federal Land Policy and Management Act and a sweetheart deal for PolyMet at the expense of users of public lands and taxpayers. WaterLegacy submitted an expert appraisal review explaining that the federal lands to be transferred to PolyMet were undervalued at only $550 by considering only their use for timber, while lands sold by private northeast Minnesota landowners to mining companies commanded prices as high as $3885 per acre.
Jason L. Messner, MAI, a valuation expert who reviewed the appraisal used by the Forest Service, concluded that valuation of federal lands for the proposed PolyMet mine site “based solely on its value for forestry and timber production, is not reasonable and results in an opinion of value that is not credible.”
PolyMet made a motion to dismiss all of WaterLegacy’s claims. Several other environmental groups then filed three additional lawsuits challenging the PolyMet land exchange under federal environmental and public lands laws. None of the cases have been dismissed.
News Coverage of WaterLegacy Land Exchange Lawsuit
“The 20-page lawsuit ﬁled in Minnesota claims “The Forest Service’s failure to appraise the market value of the federal lands … as a whole property, failure to value the lands according to their most proﬁtable, feasible, probable and intended use for mining related purposes, and failure to value the lands based on the most comparable Northeastern Minnesota transactions by mining companies in the private market reﬂected a willful blindness of the Forest Service to the intended use of the federal property; was neither reasonable nor credible. . .”
“WaterLegacy’s claim strikes me for multiple reasons as highly problematic for PolyMet and also for the Forest Service… WaterLegacy is stating a problem that can be measured in dollars. Better yet, taxpayer dollars.”
Selected Court Filings – WaterLegacy Land Exchange Lawsuit
- WaterLegacy Complaint
- Appraisal Review of Jason Messner, MAI
- WaterLegacy Memorandum of Law Supporting Motion for Preliminary Injunction
- WaterLegacy Reply Memorandum of Law Supporting Motion for Preliminary Injunction
The complete court file can be reviewed in the U.S. District Court electronic filing system. The case file number is 17-cv-276 and the Court has a process for public access to court electronic records.
Why is a Federal Land Exchange Proposed for the PolyMet Sulfide Mine Project?
The PolyMet Company owns the mineral rights to the site on which its proposed sulfide mine would be located. But, the surface rights are part of the Superior National Forest owned by the United States Forest Service (“Forest Service”) for the benefit of the public.
The Forest Service has determined, based on the legal deeds for the public forest land, that an open pit NorthMet sulfide mine cannot proceed unless PolyMet identifies and the Forest Service accepts a land exchange, where the public would lose surface rights to the NorthMet site and receive rights to other land in exchange.
The Forest Service has proposed that several different parcels would be exchanged for approximately 6,650 acres that PolyMet would like to own.
U.S. Forest Service Draft and Final Decisions to Approve the PolyMet Land Exchange
In November, 2015, the Forest Service published a draft decision supporting the PolyMet land exchange, even though the Forest Service stated that the No Action Alternative was the environmentally preferable alternative.
In January 2016, WaterLegacy filed our legal objections to the federal land exchange, six expert reports, and exhibits, including the record of WaterLegacy’s efforts to secure information on the land exchange under the federal Freedom of Information Act.
The U.S. Forest Service approved the PolyMet Land Exchange relying on the PolyMet Final EIS in January 2017.