How Robins Kaplan Helped Protect Minn. Wilderness Area

By Marco Poggio | September 22, 2023, 7:02 PM EDT ·

lake view

A view of South Fowl Lake, part of the Boundary Waters Canoe Area Wilderness, a federally protected wilderness area encompassing more than a million acres in northeastern Minnesota along the Canadian border. The area has recently been at the center of a dispute over a proposed $1.7 billion mining project on its edge. (Aaron Lavinsky/Star Tribune via Getty Images)

The Boundary Waters Canoe Area Wilderness is a swath of pristine land in northeastern Minnesota near the border with Canada, covering a million-plus acres, patched with over a thousand lakes, with no roads or electricity, untouched by the imprint of human activity.

It also sits atop an ore-rich rock formation thought to contain billions of tons of copper and nickel, which made it the epicenter of a long political and legal fight between the Biden administration and mining company Twin Metals over a proposed $1.7 billion mining project on the area's edge.

Earlier this month, attorneys with Robins Kaplan LLP, a midsize firm headquartered in Minneapolis, notched a major pro bono victory on behalf of a nonprofit conservation group as it helped convince a federal judge in Washington, D.C., to reject arguments from Twin Metals that the Biden administration had made an "arbitrary, capricious and illegal" decision in canceling the company's mineral rights leases for the lode.

"This decision is a victory for Minnesota's ecological crown jewel and an important milestone in ending a grave threat to the Boundary Waters," Robins Kaplan partner Stephen P. Safranski said in a statement after the ruling.

The dispute stems from the U.S. Department of the Interior's move last year to cancel mineral rights leases that the Trump administration had approved in 2019. And after Twin Metals, a subsidiary of Chilean mining giant Antofagasta PLC, turned around and sued the government to have the leases reinstated, several environmental groups — including Robins Kaplan client Friends of the Boundary Waters — joined the litigation as intervenors to stop the company in its tracks.

Their main concern is that toxic mine drainage could end up flowing into the Boundary Waters, the largest federal wilderness area east of the Rocky Mountains and north of the Florida Everglades, causing untold environmental damage.

In a phone interview with Law360, Safranski and fellow firm partner Bryan J. Mechell said their pro bono work to protect the Boundary Waters from environmental damage and pollution had roots in their personal bond with the area, and their connections with Friends of the Boundary Waters.

Safranski, who co-chairs Robins Kaplan's antitrust and trade regulation group and is an outdoor enthusiast and avid fisherman, has served on the board of directors of the organization. Mechell serves on the nonprofit's policy committee.

"This represents a good example of positive cooperation amongst environmental groups and local businesses with a common perspective in order to achieve a common goal of protecting the Boundary Waters wilderness," Mechell said.

Safranski said that, soon after he left his job at Jenner & Block LLP in Chicago for Minneapolis in 2002, he came to revel in the natural beauty of the Boundary Waters Canoe Area Wilderness — its pristine lakes, unique ecosystem, starry skies, solitude — and decided to use his skills as a lawyer to try to protect it.

"I really just fell in love with the Boundary Waters," Safranski said. "I had this kind of desire to get involved in environmental legal issues that might affect the Boundary Waters."

While it is the duty of the government to protect the wilderness, advocacy groups like Friends of the Boundary Waters play a big role in fighting off possible environmental hazards caused by human activity, Safranski said.

"The wilderness can't speak for itself," he said.

About 10 years ago, he filed his first lawsuit on behalf of Friends of the Boundary Waters against AT&T over a proposed 450-foot-tall cellphone tower on the edge of the wilderness. It was only the beginning of a long-term relationship with the nonprofit that has produced several pieces of litigation.

"Once you get involved with an organization like this, it's easy to come back for repeat opportunities," Safranski said. "There's always a new challenge to confront in trying to protect a really magical unique wilderness like the Boundary Waters."

And Robins Kaplan has supported Safranski in his pro bono cause throughout the years, he said.

Friends of the Boundary Waters, alongside other environmental groups dedicated to protecting the wilderness area, as well as business owners, filed joint briefs as part of the litigation, including a memorandum in December supporting their intervention in the case where they laid out their interests at stake. Several of the intervenors, including Northeastern Minnesotans for Wilderness, were jointly represented by attorneys with Morrison & Foerster LLP working pro bono.

"In addition to owning property, many of the applicants' members have staked their livelihoods to these areas and rely on pristine waters, a healthy ecosystem, an abundance of wildlife, and the quiet and serenity of the deep wilderness to effectively conduct their businesses," the groups said.

They argued in the filing that businesses across several industries, including retail, hospitality, fishing, food and outfitting services, "would be devastated" by mining operations near the wilderness.

The Friends of the Boundary Waters, which was founded in 1976 to lead the effort in advocating for legislation protecting the Boundary Waters, said in the memo that mining activity would impact its 4,500-plus members who pursue a wide range of activities there: wilderness travel, canoeing, birdwatching, wildlife viewing, photography, fishing, spiritual advancement, as well as ecological and historical study.

During the last days of the Obama administration in December 2016, the Interior Department's Bureau of Land Management denied applications from Twin Metals looking to renew leases for two sites in Minnesota's Superior National Forest, which is located upstream from the Boundary Waters Canoe Area Wilderness and within its watershed. In its decision, the Bureau of Land Management said it was deferring to the U.S. Forest Service's determination that it did not consent to renewing the leases, which were first issued in 1966 and were subject to renewals every 10 years.

In 2017, however, President Donald J. Trump's administration scrapped that decision and approved the leases, paving the way for Twin Metals to develop its project.

But in October 2021, after Joe Biden became president, the Interior Department ordered that mineral exploration in areas adjacent to the Boundary Waters be paused for 20 years to allow the government time to study the environmental impact of mining on the wider area.

Then the following January, the Biden administration completely revoked Twin Metals' leases after concluding that the previous administration had renewed them in violation of several regulations, including by failing to conduct an adequate environmental review.

Twin Metals sued in August of the same year, calling the denials "arbitrary and capricious political whipsawing" and arguing that the government had violated federal law.

In its complaint, the company claimed that the language of the original leases entitled them to a non-discretionary renewal every 10 years. The government, meanwhile, said that its decision was premised on revised terms included in approvals granted in 1989 and 2004 providing the company with only a "preferential right" to renewal subject to oversight by the Interior Department.

While Twin Metals claimed that imposing revised terms on the renewal process violated federal laws governing mineral lease applications and the process through which agencies develop regulations, Judge Cooper agreed that the government was within its discretion to impose new terms.

In his order tossing the suit, however, Judge Cooper disagreed that those laws gave rise to such a right. He said instead that the terms of the leases gave the Interior Department the discretion to set the conditions for their approval or denial. As a result, he tossed the suit for lack of jurisdiction.

Twin Metals has 60 days from the order's date to file an appeal.

Counsel for Twin Metals declined to comment. The company did not respond to a request for comment.

Friends of the Boundary Waters is represented by Stephen P. Safranski, Bryan Mechell, Eric Barstad, Richard Bruce Allyn and Siobhan M. Jamsa of Robins Kaplan LLP.

Twin Metals is represented by William H. Taft V and Mark W. Friedman of Debevoise & Plimpton LLP.

The case is Twin Metals Minnesota LLC et al. v. United States et al., case number 1:22-cv-02506, in the U.S. District Court for the District of Columbia.

--Editing by Alyssa Miller.

Update: This story has been updated with counsel information for some of the intervenors.

Hello! I'm Law360's automated support bot.

How can I help you today?

For example, you can type:
  • I forgot my password
  • I took a free trial but didn't get a verification email
  • How do I sign up for a newsletter?
Ask a question!