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CASE 0:16-cv-03042-SRN-LIB Document 72 Filed 02/21/17 Page 1 of 34

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA

FRANCONIA MINERALS (US) LLC;
and TWIN METALS MINNESOTA
LLC,

Plaintiffs,

v.
Civil Action No. 16-3042 SRN/LIB
UNITED STATES OF AMERICA; U.S.
DEPARTMENT OF THE INTERIOR; SUPPLEMENTAL AND
KEVIN HAUGRUD, Acting Secretary, AMENDED COMPLAINT
U.S. Department of the Interior; ED
KEABLE, Acting Solicitor, U.S.
Department of the Interior; BUREAU
OF LAND MANAGEMENT; U.S.
DEPARTMENT OF AGRICULTURE;
MICHAEL YOUNG, Acting Deputy
Secretary, U.S. Department of
Agriculture; U.S. FOREST SERVICE;
and THOMAS L. TIDWELL, Chief,
U.S. Forest Service,

Defendants,

and

NORTHEASTERN MINNESOTANS
FOR WILDERNESS,

Defendant-Intervenor.1

1 Since plaintiffs moved to file their supplemental and amended complaint, three of
the public-officer defendants have resigned. Pursuant to Federal Rule of Civil
Procedure 25(d), plaintiffs have substituted those officers’ successors in the
caption. Plaintiffs have also made conforming changes to paragraphs 10, 18, 19,
22, 89, 99, and the titles to Counts II, III, and IV. Finally, pursuant to the Court’s
order granting the motion of Northeastern Minnesotans for Wilderness (“NMW”)
to intervene, plaintiffs have added NMW to the caption.
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Plaintiffs Franconia Minerals (US) LLC (“Franconia”) and Twin Metals

Minnesota LLC (“Twin Metals”), for their complaint against defendants—the

United States, the U.S. Department of the Interior, Kevin Haugrud, Ed Keable, the

Bureau of Land Management (“BLM”), the U.S. Department of Agriculture, Michael

Young, the U.S. Forest Service, and Thomas L. Tidwell—allege as follows:

INTRODUCTION AND NATURE OF THE ACTION

1. This is an action under the Quiet Title Act and the Administrative

Procedure Act challenging the federal government’s unlawful evisceration of

plaintiffs’ established property rights in minerals in the Superior National Forest in

northeastern Minnesota.

2. Plaintiffs are two Minnesota mining companies. They possess valid

existing mineral rights under federal law, based on the discovery of valuable

minerals on federal lands. These rights are memorialized in two leases for hardrock

minerals (copper, nickel, and platinum-group metals) that were executed with the

United States in 1966: MNES-01352 and MNES-01353 (“the Leases”).

3. The Leases grant the lessee the “exclusive right to mine, remove, and

dispose” of all the copper, nickel, and associated minerals for a period of 20 years,

with a “right in the Lessee to renew the same for successive periods” of 10 years.

Ex. 1 (1966 Leases) § 1(a).

4. This right to successive renewals, which was grounded in the

applicable government regulations and embodied in long-standing mineral policy,

was included in the Leases because it was consistent with the type and nature of

mineral tenure granted for valuable hardrock minerals that are discovered in

unknown exploration areas. The renewal right, like the Leases themselves,

represented a reward for the discovery made by the lessee and the risk undertaken

to make that discovery, i.e., a reward for the challenges associated with hardrock

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mineral development generally and challenges unique to such development in

northeastern Minnesota specifically.

5. Hardrock mineral development is inherently risky, time-consuming,

and expensive, requiring a substantial and long-term commitment of resources by

the lessee in order for such minerals to be produced. Given this, no lessee would

have undertaken the necessary investment in mineral exploration and development

on the lands at issue without a successive right to renew. Doing so would mean the

government could unilaterally deny renewal of the Leases and thereby deprive the

lessee of a reasonable opportunity to recoup that investment. Absent a non-

discretionary right to renew, in other words, the Leases would have little if any

value.

6. Over the past five decades—in reliance on their rights under governing

federal law and the Leases, and on continued assurances provided by federal

government officials—plaintiffs (and their parent companies) have invested

approximately $400 million to explore for and then develop the vital hardrock

minerals—metals of great strategic importance to the U.S. economy and national

defense.

7. As a result of their investment, plaintiffs have identified and defined

in the subject lands one of the largest untapped copper and nickel resources in the

world, conservatively estimated at more than $40 billion of in-ground mineral

value. Plaintiffs also possess adjacent state and private mineral leases, as well as

additional valid existing federal mineral rights, that together total another $90

billion of in-ground mineral value. Given the interconnected nature of the mineral

deposits on these various lands, denying plaintiffs’ right to renew the Leases also

impairs these other mineral rights.

8. The federal government, meanwhile, has assumed no financial risk for

the work undertaken by plaintiffs (and their predecessors in interest) to discover

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and develop these minerals. It has, however, reaped significant benefits. These

include substantial rents and royalties paid by the lessees under the Leases. See

Ex. 1 § 2. The benefits also include awareness and understanding of previously

unknown mineral deposits on public lands.

9. Plaintiffs’ predecessors in interest exercised their right to renew in

1989 and again in 2004; in each instance, BLM granted a 10-year renewal of the

Leases—without giving any indication that it believed it had discretion to deny

renewal. See Ex. 2 (1989 Renewal Forms); Ex. 3 (2004 Renewal Forms).

10. When plaintiffs sought a third renewal, however—following the same

process used for the two previous ones—the government changed the rules: Amid

increased political pressure and intense opposition from environmental groups,

then-Solicitor of the Interior Hilary Tompkins issued a binding opinion concluding

that BLM has discretion to deny renewal of the Leases outright. See Ex. 4

(“Solicitor’s Opinion” or “Opinion”).

11. BLM relied on the Solicitor’s Opinion to request the Forest Service’s

consent to lease renewal. When the Forest Service denied that consent, BLM

rejected plaintiffs’ renewal application and terminated the Leases.

12. The Solicitor’s Opinion, the Forest Service’s denial of consent, and the

BLM’s denial of renewal of the Leases are each arbitrary, capricious, and contrary

to law and to the unambiguous terms of the Leases, and the harm they inflict on

plaintiffs is drastic and far-reaching. They indefensibly change the nature of the

mineral tenure granted to plaintiffs, undermining their rights and creating a

dispute over the parties’ interests in the mineral estate. They also represent an

unjustifiable reversal of the government’s prior recognition of plaintiffs’ rights—

rights on which plaintiffs and their predecessors reasonably relied for decades as

they invested hundreds of millions of dollars to explore and develop the underlying

minerals. Finally, they thwart plaintiffs’ ability to develop the mineral estate—

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denying plaintiffs any return on their massive investment, jeopardizing the jobs for

generations that would come with the future mining project, and prejudicing

plaintiffs’ mineral rights on federal, state, and private lands contiguous to the

Leases.

13. Plaintiffs therefore bring this suit to quiet title to their renewable

leasehold interest in the subject mineral estate (that is, the hardrock minerals in

the specified lands) and to obtain a declaration that the Solicitor’s Opinion, the

Forest Service’s withholding of consent to renewal, and the BLM’s denial of renewal

of the Leases are arbitrary, capricious, and contrary to law.

PARTIES
14. Plaintiff Twin Metals is a privately owned limited liability mining

company, headquartered in Minnesota, that focuses on developing and operating a

mining project to produce the valuable minerals underlying the lands covered by the

Leases and other minerals.

15. Plaintiff Franconia is a limited liability mining company,

headquartered in Minnesota, that engages in the discovery and development of base

metals and platinum-group metals in the United States. Franconia is a wholly

owned subsidiary of Twin Metals. Franconia is the owner by assignment of any and

all rights, titles, and interests in the Leases.

16. Defendant United States owns the real property covered by the Leases.

17. Defendant U.S. Department of the Interior is responsible for the

management of certain federal lands and natural resources, including the mineral

resources covered by the Leases.

18. Defendant Kevin Haugrud is the Acting Secretary of the Interior and

is sued in his official capacity. The Secretary has the authority to permit

prospecting, development, and use of mineral resources in the subject lands.

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19. Defendant Ed Keable is the Acting Solicitor of the Department of the

Interior and is sued in his official capacity. The Solicitor is the chief legal officer of

the Department of the Interior, see Department of the Interior, Department Manual,

Part 209, § 3.1 (1992), and is authorized to “issue final legal interpretations, in the

form of M-Opinions … on all matters within the jurisdiction of the Department,” id.

§ 3.2(A)(11). Such opinions are “binding … on all other Departmental offices and

officials and … may be overruled or modified only by the Solicitor, Deputy

Secretary, or the Secretary.” Id. On March 8, 2016, Keable’s predecessor

(Tompkins) issued the Solicitor’s Opinion at issue in this case.

20. Defendant BLM is an administrative agency within the U.S.

Department of the Interior. It has been delegated authority by the Secretary of the

Interior to administer the prospecting for and development and utilization of

minerals on certain federal lands and, in particular, is responsible for approving

applications for the grant and renewal of mineral-related leases on federally owned

land.

21. Defendant U.S. Department of Agriculture is responsible for the

management of certain federal lands and natural resources, including the federal

surface lands described in the Leases. (Most but not all of the surface land covered

by the Leases is federally owned.)

22. Defendant Michael Young is the Acting Deputy Secretary of

Agriculture and is sued in his official capacity. Young, currently the highest

ranking official at the U.S. Department of Agriculture, is authorized by statute to

perform the functions and duties of the Secretary of Agriculture temporarily in an

acting capacity. The Secretary has authority over the management of certain

federal lands and natural resources, including the federal surface lands described in

the Leases.

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23. Defendant U.S. Forest Service is an administrative agency within the

U.S. Department of Agriculture. It manages national forests and grasslands,

including the Superior National Forest, under a multiple-use and sustained-yield

mandate. It is the surface owner of the federal lands described in the Leases.

24. Defendant Thomas L. Tidwell is the Chief of the Forest Service and is

sued in his official capacity. On December 14, 2016, Tidwell issued a decision on

behalf of the Forest Service refusing consent to renewal of the Leases.

JURISDICTION AND VENUE

25. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331,

1346(f), and 1361.

26. Venue is proper in this Court under 28 U.S.C. §§ 1391 and 1402(d)

because the property that is the subject of this action is located in Minnesota.

27. Plaintiffs’ Quiet Title Act claim is timely under 28 U.S.C. § 2409a

because it is brought within 12 years of the date that plaintiffs knew or should have

known that the United States disputes Franconia’s right, title, or interest in the

lands at issue.

28. Plaintiffs’ Administrative Procedure Act claims are timely under 28

U.S.C. § 2401(a) because they are brought within six years of defendants’ actions

repudiating plaintiffs’ successive non-discretionary right to renewal of the Leases.

LEGAL BACKGROUND

29. This case involves a mineral estate in lands within the Superior

National Forest in northeastern Minnesota. The lands encompassed by the Leases

include public-domain land as well as land acquired by the United States under the

Weeks Act, 36 Stat. 961 (1911) (codified at 16 U.S.C. §§ 515 et seq.).

A. General Mining Law

30. The process of prospecting for and developing federal mineral

deposits—especially hardrock mineral deposits—is risky, time-consuming, and

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expensive. It requires long-term planning and investment and presents a high

likelihood of failure.

31. Recognizing these inherent difficulties, as well as the national interest

in hardrock-mineral development, Congress created incentives for private

exploration of unknown geologic deposits, by rewarding the discovery of valuable

mineral deposits.

32. In particular, in 1872 Congress enacted the General Mining Law,

which provides the foundation for the private acquisition of hardrock minerals on

public-domain lands. See 17 Stat. 91 (1872) (codified at 30 U.S.C. §§ 22 et seq.). The

purposes of this law included encouraging development of U.S. resources and

facilitating the transfer of public minerals to private parties. Hence, declaring that

“all valuable mineral deposits in lands belonging to the United States … [are] free

and open to exploration and purchase,” id., the General Mining Law encourages

citizens to “enter and explore the public domain, and search for minerals,” Andrus

v. Shell Oil Co., 446 U.S. 657, 658 (1980).

33. Under the law, “‘[d]iscovery’ of a mineral deposit … gives an individual

the right of exclusive possession of the land for mining purposes” and the right “to

extract and sell minerals” lying beneath the surface. United States v. Locke, 471

U.S. 84, 86 (1985). Additionally, “[f]or a nominal sum, and after certain statutory

conditions are fulfilled, an individual may patent the claim, thereby purchasing

from the Federal Government the land and minerals and obtaining ultimate title to

them.” Id.

B. Mineral Leasing Act Of 1920 And Mineral Leasing Act For Acquired
Lands Of 1947
34. Nearly half a century after passage of the General Mining Law,

Congress enacted comprehensive mineral leasing legislation to encourage “private

mining and marketing while preserving federal ownership of the mineral lands.”

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Natural Resources Def. Council v. Berklund, 609 F.2d 553, 555 (D.C. Cir. 1979) (per

curiam).

35. In that legislation—the Mineral Leasing Act of 1920, Pub. L. No. 66-

146, 41 Stat. 437 (codified at 30 U.S.C. §§ 181 et seq.)—Congress withdrew certain

non-hardrock minerals (“oil shale and several other minerals”) from the open-access

regime of the General Mining Law, providing “that thereafter [they] would be

subject to disposition only through leases.” Andrus, 446 U.S. at 659.

36. Because the Mineral Leasing Act authorized leasing of identified non-

hardrock minerals only on public-domain lands, Congress subsequently enacted the

Mineral Leasing Act for Acquired Lands, authorizing leasing of the same minerals

on acquired lands. See Pub. L. No. 80-382, 61 Stat. 913 (1947) (codified at 30 U.S.C.

§§ 351 et seq.).

37. Consistent with the long-standing mineral policies embodied in the

General Mining Law, these later statutes continued to recognize the critical

importance of mineral development to the United States, and the corresponding

need to reward prospectors for undertaking the risk of exploring for unknown

mineral deposits.

38. In particular, Congress—using “unequivocal and clear” statutory

language—established that a prospecting permittee who makes a valuable

discovery “‘shall be entitled to a lease’” for the minerals. Berklund, 609 F.2d at 557

(quoting 30 U.S.C. § 201(b) (1970)). That pellucid language deprived the Secretary

of the Interior of discretion to deny a lease once a valuable discovery occurs. Id.

Put simply: “[T]he applicant who satisfies the condition is entitled to a lease.” Id.

(emphasis added).

39. The Department of the Interior, through decades of uniform practice,

agreed. As the D.C. Circuit explained in 1979, “[t]he Department … , through the

58 years of administration of these provisions, has consistently interpreted

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§ 201(b) … as denying [the Secretary] discretion to reject a preference right lease

once a permit has issued and coal in commercial quantities has been found.”

Berklund, 609 F.2d at 555 n.5. The term “preference right lease,” as the D.C.

Circuit explained in the same case, has “been construed by [the Department of the

Interior] 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.” Id. at 557-558 (emphasis added).

C. Mineral Development In Minnesota

40. The acquisition of federal hardrock minerals by private parties in the

Superior National Forest is not governed by the General Mining Law or the other

statutes discussed above. It is instead regulated under three laws enacted in the

early and mid-1900s, as well as the Secretary’s implementing regulations. Those

governing statutes and regulations, however, preserve the defining feature of the

laws discussed above, namely rewarding prospectors for the discovery of a valuable

mineral deposit by granting a property interest in the mineral estate.

1. Public-Domain Lands

41. One year after enacting the General Mining Law, Congress excepted

from it all mineral lands in Minnesota (and Michigan and Wisconsin). See 17 Stat.

465 (1873) (codified at 30 U.S.C. § 48); S. Rep. No. 81-1778, at 1 (1950).

42. In 1950, however, Congress authorized hardrock mineral exploration

and development on public-domain land in the Superior National Forest.

Specifically, it authorized 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” in the Forest, to the extent not already

statutorily authorized. Pub. L. No. 81-594, 64 Stat. 311 (1950) (codified at 16 U.S.C.

§ 508b).

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43. According to the accompanying Senate report, the 1950 Act was

intended not just to “permit” such mining, but to encourage it as a “highly

desirable” activity. S. Rep. No. 81-1778, at 2. That policy continues to be reflected

in the current Superior National Forest Land and Resource Management Plan

(“Forest Plan”), which expressly designates “[e]xploration and development of

mineral and mineral material resources” as a “desired condition” in the Forest. The

Forest Plan and the activities it authorizes—including mineral development—were

the result of a Forest-wide environmental analysis conducted pursuant to the

National Environmental Policy Act (“NEPA”).

44. Congress enacted the 1950 Act 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. See

S. Rep. No. 81-1778, at 2; H.R. Rep. No. 81-795, at 2 (1949). Indeed, according to

the Senate report it was Congress’s dissatisfaction with “investment losses resulting

from cancellation of mining permits in the Minnesota forests” that spurred passage

of the law. S. Rep. No. 81-1778, at 2. In particular, the accompanying House report

stated, 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.

2. Acquired Lands

45. As noted, this case involves not only federal public-domain land but

also land acquired by the federal government under the Weeks Act, which

authorized the Secretary of Agriculture (and now the Secretary of the Interior) to

identify and purchase certain lands “as in his judgment may be necessary to the

regulation of the flow of navigable streams or for the production of timber.” 15

U.S.C. § 515.

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46. Congress authorized hardrock mining on such land by a statute

enacted in 1917 and amended in 1946. See Pub. Law No. 64-390, 39 Stat. 1150

(1917) (codified at 16 U.S.C. § 520), amended by Reorganization Plan No. 3 § 402, 60

Stat. 1099 (1946).

47. As amended, this statute authorizes the Secretary of the Interior “to

permit the prospecting, development, and utilization of mineral resources of the

land acquired under … the Weeks law,” 39 Stat. 1150, provided that the Secretary

“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 specified by the Secretary of Agriculture in order to

protect such purposes,” 60 Stat. 1099.

3. The Boundary Waters Canoe Area Wilderness

48. In 1964, Congress enacted the Wilderness Act, “establish[ing] a

National Wilderness Preservation System to be composed of federally owned areas

designated by Congress as ‘wilderness areas.’” Pub. L. No. 88-577 § 2(a), 78 Stat.

890 (1964). The Wilderness Act represented a compromise between preservation

and mining interests: While Congress imposed restrictions on mineral development

in wilderness areas, it (1) authorized continued prospecting for minerals if such

activity was “carried on in a manner compatible with the preservation of the

wilderness environment”; (2) protected pre-existing mineral rights; and

(3) established a 20-year grace period for the exploration of minerals and the

conveyance of mineral tenure upon the occurrence of a valuable discovery. Id.

§ 4(d)(2), (3), 78 Stat. at 894-895.

49. The Boundary Waters Canoe Area became part of the National

Wilderness Preservation System established by the Wilderness Act. Pub. L. No. 88-

577 § 4(d)(5), 78 Stat. at 895.

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50. In 1978, twelve years after the Leases were executed, Congress

reaffirmed its support for mining in the Superior National Forest when it passed

the Boundary Waters Canoe Area Wilderness Act. See Pub. L. No. 95-495, 92 Stat.

1649 (1978). Superseding the 1964 designation of the Boundary Waters Canoe

Area, this act designated the 1.1-million-acre Boundary Waters Canoe Area

Wilderness, an area located along the northern border of the 3.7-million-acre Forest.

See id. The product of intense public debate, that designation reflected a

compromise that balanced preservation interests with the need for access to

important mineral resources—and respect for vested mineral rights—in the Forest.

51. Although Congress prohibited mineral development in the wilderness,

it expressly permitted mining in 2.4 million acres of the Superior National Forest—

including the subject lands here. See Pub. L. No. 95-495 § 11(b)(1), 92 Stat. at 1655-

1656. To ensure that mineral development would not harm the wilderness,

Congress established as a buffer zone a 220,000-acre “Mining Protection Area”

bordering the wilderness. See id. §§ 9-10, 92 Stat. at 1655. The Leases are on land

located outside the buffer zone.2
52. The following map depicts the Boundary Waters Canoe Area

Wilderness, the Mining Protection Area, and the Superior National Forest

boundary.

2 Subsequent to the execution of the Leases, Minnesota created a Mineral
Management Corridor bordering the wilderness area (depicted in blue on the
above map). State law prohibits surface mining—but not underground mining—
within the Corridor. A portion of the surface of MNES 1353 is located within the
Corridor.

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4. Relevant Regulations

53. The Secretary of the Interior, under the authority of both the 1950 Act

and the 1917 Act as amended in 1946, promulgated regulations governing hardrock-

mineral development in public-domain and acquired lands in the Superior National

Forest. See generally 43 C.F.R. Pt. 3220 (1966); id. §§ 3325.0-3 to 3325.3 (1966).

54. In accordance with the long-standing mineral law and policy discussed
above, these regulations created incentives for exploration, including rewards for

discovery. In particular, the regulations established that the discovery of a valuable

mineral deposit entitled a prospector to a renewable leasehold interest in the

mineral estate. 43 C.F.R. § 3221.4(a), (f) (1966). Although both the method by

which prospectors acquired an interest in the minerals and the type of mineral

tenure that was granted (a leasehold) differed from what was provided under the

General Mining Law (a patent), the central feature of both was the same: an

entitlement right to the mineral estate upon the discovery of a valuable mineral

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deposit. The purpose behind this right is to give prospectors an incentive to incur

the expense and risk required to identify the valuable deposit, and to reward them

for doing so by providing an opportunity to benefit from any discovery.

55. More specifically, the Secretary’s regulations required a prospector to

submit an application for a prospecting permit to the Secretary of the Interior. See

43 C.F.R. § 3221.2 (1966). If a permit was granted, the permittee had the “exclusive

right to prospect on and explore the described lands to determine the existence of, or

workability of, the mineral deposits therein.” Id. § 3221.2(a) (1966).

56. The regulations further provided that if the holder of a prospecting

permit discovered a valuable mineral deposit, the permittee was entitled to a

“[r]eward for discovery.” 43 C.F.R. § 3221.4 (1966). In particular, the permittee

was entitled to a lease for the mineral deposit, with a non-discretionary right of

renewal:

Upon discovery of any valuable deposit of minerals the
permittee shall be entitled to a preference right lease for
the mineral in any or all of the lands in the permit[.]

The lease will be issued for a period not exceeding 20
years …. 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[.]
Id. § 3221.4(a), (f) (emphasis added).

57. In granting this non-discretionary right of renewal, the Secretary of

the Interior retained the ability, in consultation with the surface-management

agency (in this case, the Forest Service), to make reasonable adjustments to the

terms and conditions of the lease, “including the revision of or imposition of

stipulations for the protection of the surface of the land.” 43 C.F.R. § 3221.4 (1966).

This provision gave the government the flexibility, through periodic modification of

the lease terms, to address concerns about surface impacts arising after lease

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issuance, while also providing the lessee with certainty regarding its mineral rights.

Nothing in the applicable statutes or regulations authorized either the Secretary of

the Interior or the Forest Service to deny renewal of leases outright.

FACTS
A. Franconia’s Predecessors In Interest Received Prospecting Permits
And Made Valuable Mineral Discoveries
58. Shortly after Congress enacted the 1950 Act, Franconia’s predecessor

in interest, the International Nickel Company, Inc. (“INCO”), applied for

prospecting permits to explore for hardrock minerals in the Superior National

Forest.

59. The Secretary of the Interior, through his designee BLM, granted

INCO’s applications, after obtaining the consent of the Forest Service, on behalf of

the Secretary of Agriculture, as the Act of 1950 required.

60. INCO made significant investments to explore for mineral deposits in

the subject lands. As a result of those investments and exploration efforts, INCO

discovered valuable deposits of copper, nickel, and other strategic minerals. Under

the governing regulations discussed above, that discovery entitled INCO to an

exclusive, renewable leasehold interest in the mineral estate.

B. 1966 Leases

61. In 1956, INCO sought to memorialize its mineral rights, applying for a

lease from the United States that would grant it the exclusive right to dispose of the

copper, nickel, and associated minerals in the subject lands. INCO’s application

gave rise to a decade of what BLM later labeled “intensive negotiations” over the

lease terms and conditions. Ex. 5 (BLM Memo re Recommendation for Lease

Renewals) at 1 (Oct. 14, 1988).

62. In particular, INCO rejected the inclusion in the Leases of any

minimum production requirement, in light of the expected time and difficulty

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involved in developing the minerals. In lieu of a production requirement, the

parties inserted several production incentives into the Leases.

63. On June 14, 1966, INCO and the United States memorialized their

agreement, executing leases MNES-01352 and MNES-01353. See generally Ex. 1.

64. The Leases, which are attached to and incorporated by reference into

this complaint, contain a legal description of the lands that they cover. Ex. 1 § 1(a)

(MNES-01352); Ex. 1 § 1(a) (MNES-01353).3 The following map (which is an

enlargement of the center of the previous map) shows the location of the Leases.

3 With the exception of the described lands, leases MNES-01352 and MNES-01353
are identical.

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65. Consistent with the governing regulations, the first section of the

Leases recites not only the lessee’s exclusive right to mine on the subject lands, but

also the non-discretionary right to renew the Leases. Specifically, section 1, entitled

“Rights of Lessee,” provides that the lessee has:
the exclusive right to mine, remove, and dispose of all the
copper and/or nickel minerals and associated minerals and,
with the exception of oil, gas, oil shale, coal, phosphate,
potassium, sodium, or sulphur, any other minerals in,
upon, or under the described lands … for a period of twenty
(20) years with a right in the Lessee to renew the same for
successive periods of ten (10) years each in accordance with
regulation 43 CFR § 3221.4(f) and the provisions of this
lease.

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66. 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) creates incentives

for production, requiring INCO to pay minimum royalties that were significantly

higher than normal. These high royalties ensured—as BLM later confirmed—that

INCO retained a financial incentive for development. See Ex. 5 at 1 (“Th[e] high

minimum royalty payment … is intended to serve as the ‘production incentive’ or

‘diligent development’ provision in the leases[.]”). Pursuant to this provision, INCO

and its successors have paid significant royalties and rent to the government over

the past 50 years.

67. Section 5 of the Leases, entitled “Renewal Terms,” authorizes BLM to

“reasonably readjust” lease terms during “each successive renewal,” except as

otherwise provided. As BLM later confirmed, however, neither section 5 nor any

other provision of the Leases establishes “a production requirement.” Ex. 5 at 1.

68. Section 5 instead creates a second production incentive, providing that

if the lessee begins producing within the initial 20-year term of the Leases, then

BLM’s ability to readjust terms and conditions during the first three renewals

would be limited. Specifically, if the lessee began production during the initial 20-

year term, then upon renewal of the Leases BLM could only adjust the royalty

provisions by specified amounts, and could not adjust other terms and conditions at

all. See Ex. 1 § 5. By contrast, if the lessee did not begin production before the

initial term ended, then BLM would have the ability to make reasonable

adjustments not only to royalty rates but also to other terms and conditions, such as

stipulations for the protection of the surface land. Id.

69. Section 14 of the Leases contains a third production incentive: It

further limits BLM’s ability, upon certain actions by the lessee, to readjust royalties

during both the second half of the primary lease term and the first, second, and

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third 10-year renewal periods. In particular, this section provides that if the lessee

“sunk a shaft for underground exploration or development or … otherwise

commenced commercial development of the premises leased under [either] lease …

within five years,” then the royalty rates in sections 2 and 5 of the Leases would be

reduced as specified. Ex. 1 § 14. One year after the Leases were executed, INCO

sunk an 1100-foot shaft, at a cost of at least $1 million, for exploration and

development on lease MNES-01352.

C. 1989 Renewal

70. In 1986, INCO timely applied for a 10-year renewal of the Leases.

Three years later, BLM used standard-form documents to renew the Leases—

stating that the renewal was “under the existing terms and conditions of the

original leases.” Ex. 6 (BLM Decision) at 1 (Apr. 25, 1989).

71. The Leases were attached in full to the standard forms, with certain

provisions of the Leases cited. See Ex. 2 § 14 (referring to the “attached original

lease agreement”).

72. As part of the lease-renewal process, BLM asked the Forest Service to

review the terms and conditions of the Leases to ensure they were adequate to

protect the resources of the United States. Neither agency suggested that the

Forest Service could withhold consent entirely; its authority was limited to

suggesting terms and conditions to provide such protection. The Forest Service

acknowledged this limited authority in responding to BLM’s request: the Forest

Supervisor stated that the Forest Service was “not deciding if the leases should be

issued but instead [was] deciding if new restrictions need to be added before

extending them.” Ex. 10 at 2 (Forest Service Finding of Categorical Exclusion (Feb.

9, 1987)). No restrictions were deemed necessary, however, because the Forest

Service found that the Leases’ existing terms and conditions “are adequate to

prevent or mitigate unacceptable impacts and that no additional conditions need to

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be added prior to their renewal.” Id. at 2. The Forest Service thus issued a

“Finding of Categorical Exclusion,” consenting to renewal because the “activities

authorized by these leases can be conducted in conformance with the management

direction found in the Forest Plan.” Id. at 1; see also Ex. 11 at 1 (Forest Service

Consent Letter (June 19, 1987) (consenting to renewal because the “existing lease

terms and conditions are adequate”)).

73. At no point during the 1989 renewal process did plaintiffs or their

predecessors concede that Forest Service consent was required in order for BLM to

renew the Leases.

74. Underscoring that the renewal continued all of the terms and

conditions of the Leases, BLM, during the process leading up to renewal, withdrew

an earlier decision that would have altered those terms and conditions, including by

imposing a production requirement and reducing the minimum royalty payment.

See Ex. 7 (BLM Letter) at 1 (July 9, 1986); Ex. 8 (BLM Vacatur Decision) (Nov. 7,

1988).

75. In withdrawing its earlier decision, BLM explained that the “lease

forms submitted for signature [would have] alter[ed] the terms and conditions of the

original leases.” Ex. 8 at 1. In place of those forms, BLM sent short standard lease

forms, together with full copies of the Leases, explicitly stating that the renewal

was “under the existing terms and conditions of the original leases.” Ex. 6 at 1.

76. The forms were executed, and the Leases thereby renewed, on July 1,

1989. Ex. 2.

D. 2004 Renewal

77. In 1988, American Copper and Nickel Company purchased the Leases

from INCO. The United States approved the sale effective January 1, 1991.

78. In 1999, American Copper timely applied for a second 10-year renewal

of the Leases.

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79. Just as it had in 1989, BLM asked the Forest Service to review the

Leases’ terms and conditions to ensure they were adequate to protect U.S.

resources. Again, neither agency suggested that the Forest Service possessed any

broader authority to withhold consent.

80. On July 18, 2003, the Forest Service informed BLM that it “has no

objection to the renewal,” because the Leases’ “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. 12 at 1 (Letter from Randy Moore, Regional

Forester, to Director, BLM Eastern States Office (July 18, 2003)). In consenting,

the Forest Service noted that any future operations under the Leases would require

“the approval of an operating plan by the authorized officer” and “will be subject to

an analysis under the National Environmental Policy Act.” Id.

81. As in 1989, neither plaintiffs nor their predecessors conceded during

the 2004 renewal process that Forest Service consent was required in order for BLM

to renew the Leases.

82. BLM renewed the Leases in January 2004, using the identical forms

the parties had executed in 1989 (and again attaching the Leases in full). See

generally Ex. 3.

83. Unlike in 1989—when BLM engaged in lengthy internal deliberations

regarding the terms and conditions of lease renewal—there was no significant

discussion in 2004 about renewal terms, either within the government or between

the parties. This is consistent with the parties having a shared understanding that

BLM did not have discretion to deny the renewal, and that the Forest Service did

not have discretion to deny consent to the renewal.

E. 2012 Renewal Application

84. In March 2004, Beaver Bay Joint Venture purchased the Leases from

American Copper. The United States approved the sale effective April 1, 2005.

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85. In July 2010, Beaver Bay Joint Venture converted to a corporation,

called Beaver Bay, Inc., which became the owner of the Leases. The United States

approved the assignment effective February 1, 2013.

86. In October 2012, Beaver Bay and its joint venture partner, Franconia,

applied for a third 10-year renewal of the Leases. See Ex. 9 (2012 Renewal

Application).

87. In August 2013, Beaver Bay assigned the Leases to Franconia in its

capacity as the operator of the joint venture between the two companies. The

United States approved the assignment effective April 1, 2014.

88. The possibility of a future project to mine pursuant to the Leases—

which would be operated by Twin Metals, Franconia’s parent company—attracted

the attention of certain environmental organizations opposed to mining in

northeastern Minnesota. Those organizations put intense pressure on officials at

the Department of the Interior, BLM, and the Forest Service to deny the renewal

application, arguing that BLM had the authority to do so.

89. Under this pressure from those environmental organizations, BLM

asked then-Solicitor Hilary Tompkins for an opinion “whether it has the discretion

to grant or deny Twin Metals Minnesota’s pending application for renewal.” Ex. 4

at 1.4

F. Solicitor’s Opinion

90. On March 8, 2016, Tompkins issued her Opinion concluding that “Twin

Metals Minnesota does not have a non-discretionary right to renewal, but rather the

BLM has discretion to grant or deny the pending renewal application.” Ex. 4 at 1.

4 The Solicitor’s Opinion refers to Twin Metals rather than Franconia, the actual
lease owner.

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91. The Solicitor’s Opinion constitutes the final legal determination of the

Department of the Interior and is binding on BLM (and all other departmental

offices). Department of the Interior, Department Manual, Part 209, § 3.1 (1992).

92. The Opinion is fatally flawed on both the facts and the law, and it has

caused plaintiffs, and will continue to cause them, immediate harm. It rejected

Franconia’s renewable leasehold interest in the mineral estate and disregarded the

valuable discovery made by Franconia’s predecessor in interest. It also vitiated

plaintiffs’ investments in the mining project to date—approximately $400 million in

acquisition, exploration, technical development, and other activities—and inhibited

them from engaging in any long-term planning, investment, development, and

operational decisions.

G. The Forest Service’s Consent Decision

93. On March 8, 2016—the same day that Tompkins issued her Opinion—

BLM sent Twin Metals a letter stating that the Opinion was “binding on … BLM,”

and that BLM therefore “will consider [the application for renewal] using the same

criteria it would apply in deciding whether to grant the initial leases.” BLM

Letter 1. BLM further stated that it intended to ask the Forest Service “whether it

consents to renewing the leases,” and that the agencies “will undertake NEPA

analysis.” Id.

94. On June 3, 2016, BLM sent a letter to the Forest Service requesting

that it “provide, in writing, a decision on whether it consents or does not consent to

renewal of the leases.” Letter from Karen Mouritsen, BLM Eastern States Director,

to Kathleen Atkinson, Regional Forester.

95. Ten days later, the Forest Service issued a press release announcing a

“30-day period for public input” on the lease renewals, during which it planned to

hold a “listening session.” Forest Service Press Release. The release stated that the

Forest Service was “considering withholding consent for lease renewal” based on

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certain purported environmental “concerns,” id.—notwithstanding the fact that no

site-specific mining project has been proposed.

96. In response, Twin Metals asked the Forest Service for the opportunity

to address the public at the so-called listening session, explaining that its rights are

directly affected by the government’s actions, and thus that it is differently situated

than any other stakeholder or member of the public. Twin Metals Ltr. 1 (July 6,

2016).

97. The Forest Service held two “listening sessions”: one in Duluth,

Minnesota, on July 13, 2016, and a second six days later in Ely, Minnesota. Before

the first listening session, the Forest Service held a press conference at which it

again expressed concern about the location of the Leases and the environmental

risks of mining in general. Twin Metals was not given a meaningful opportunity to

respond to the Forest Service’s concerns or to address the public at either session.

Two days after the second listening session, the Forest Service denied Twin Metals’

request, stating without elaboration that while it “underst[oo]d” the request, it

would “not be appropriate for [Twin Metals] to address the audiences.” Forest

Service Ltr. (July 21, 2016).

98. On July 20, 2016, Twin Metals submitted a letter to the Forest Service

detailing its objections to the public-input process and contesting the agency’s

asserted plenary authority to withhold consent or to consider factors other than the

terms and conditions of the Leases. See Ex. 13 (Twin Metals Comment Letter).

99. By this point, Twin Metals had already sent letters to Sally Jewell,

then the Secretary of the Interior, and Tompkins explaining the flaws in the

Solicitor’s Opinion and requesting that it be withdrawn. As of the filing of this

amended complaint, the Opinion has not been withdrawn.

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100. The Forest Service did not provide Twin Metals with an opportunity to

review or respond to the comments submitted during the public-input process, or to

address with the Forest Service any concerns raised in those comments.

101. On December 14, 2016, the Forest Service declined to consent to

renewal of the Leases. Letter from Thomas L. Tidwell, Chief, U.S. Forest Service,

to Neil Kornze, Director, BLM.

102. In its decision withholding consent, the Forest Service did not discuss

the terms and conditions of the Leases, nor did it identify any aspect of the Leases

that it found concerning. The Forest Service also did not identify any problems

(including environmental concerns) with plaintiffs’ past or current activity pursuant

to the Leases, nor did it address any of the arguments in Twin Metals’ comment

letter. Instead, the Forest Service claimed “absolute discretion” to withhold

consent, and premised its denial on the Leases’ location near the Boundary Waters

and the “inherent potential risk” of mining in general. See Tidwell Ltr. at 1, 8. The

Forest Service did not acknowledge or explain its departure from its consent to

lease renewal in 1989 and 2004, when of course the Leases’ location was identical.

103. The Forest Service did not engage in an environmental review under

NEPA in making its decision.

H. BLM’s Denial Of Lease Renewal

104. On December 15, 2016, BLM rejected plaintiffs’ application to renew

the Leases. Letter from Karen Mouritsen, Eastern States Director, BLM, to Ian

Duckworth, Chief Operating Officer, Twin Metals Minnesota.

105. The denial relied on the Solicitor’s Opinion’s conclusion that BLM has

discretion to deny the renewal application. BLM in turn took the view that it “must

have written consent from the surface management agency” to renew the Leases.

Mouritsen Ltr. at 3. According to BLM, because the Forest Service refused to

consent, BLM was required to reject the lease renewal application. Id.

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106. Under the heading “Final Agency Action,” BLM’s denial letter states

that “this decision constitutes the final decision of the Department of the Interior

and … is not subject to appeal under departmental regulations.” Mouritsen Ltr.

at 4.

COUNT I: QUIET TITLE ACT
(AS TO DEFENDANT UNITED STATES)
107. The allegations in paragraphs 1 through 106 above are realleged as if

fully set forth herein.

108. The Quiet Title Act provides that the United States is subject to suit to

quiet title to real property in which the United States claims an interest. 28 U.S.C.

§ 2409a.

109. The United States claims fee simple ownership of the property that is

the subject of leases MNES-01352 and MNES-01353.

110. By operation of federal law, Franconia has the successive right to a

renewable lease in the mineral estate of the relevant lands as a result of its

predecessor in interest’s discovery on those lands of a valuable mineral deposit.

Specifically, Franconia is “entitled to a preference right lease for the mineral in any

or all of the lands in [its predecessor in interest’s prospecting] permit[s]” and “a

right of renewal [of the Leases] 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(a), (f) (1966).

111. Franconia also has a renewable leasehold interest in the relevant

mineral estate as the assignee and holder of the Leases. That leasehold interest

gives Franconia “the exclusive right to mine, remove, and dispose of all the copper

and/or nickel minerals and associated minerals and, with the exception of oil, gas,

oil shale, coal, phosphate, potassium, sodium, or sulphur, any other minerals in,

upon, or under” the lands described in those Leases, “together with the right to

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construct and maintain thereon such structures and other facilities as may be

necessary or convenient for the mining, preparation, and removal of said minerals.”

Ex. 1 § 1(a).

112. Franconia and its predecessors in interest have held the Leases

continually for 50 years and have timely filed all applications for renewal. The first

two applications were granted on the same terms and conditions as in the original

Leases. Accordingly, Franconia has a right to renew those Leases, as well as a

continued exclusive right to mine, remove, and dispose of the specified minerals in

the land described by the Leases.

113. The United States disputes Franconia’s renewable leasehold interest

in the relevant mineral estate. BLM rejected plaintiffs’ renewal application, in

reliance on the conclusion of the Solicitor’s Opinion that BLM had discretion to deny

renewal. BLM’s lease denial, and the Solicitor’s interpretation of the applicable

regulations and construction of the Leases on which BLM’s decision rested, have

created an actual and concrete controversy between Franconia and the United

States about their relative interests in the mineral estate.

114. Accordingly, Franconia is entitled under 28 U.S.C. § 2409a to an

adjudication of that dispute and a declaration of its leasehold interest in the

mineral estate covered by the Leases.

COUNT II: ADMINISTRATIVE PROCEDURE ACT
(AS TO DEFENDANTS UNITED STATES, DEPARTMENT OF THE INTERIOR, HAUGRUD,
KEABLE, AND BUREAU OF LAND MANAGEMENT)
(Violation of 5 U.S.C. § 706(2)(A) because federal law entitles plaintiffs
to a non-discretionary right of renewal)
115. The allegations in paragraphs 1 through 114 above are realleged as if

fully set forth herein.

116. The Administrative Procedure Act provides that a “person suffering

legal wrong because of agency action, or adversely affected or aggrieved by agency

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action within the meaning of a relevant statute, is entitled to judicial review

thereof.” 5 U.S.C. § 702. BLM’s denial of lease renewal expressly and correctly

stated that it constitutes final agency action of the Department of the Interior.

117. The lease denial has had and will have a direct and immediate effect

on plaintiffs’ businesses, halting authorized and ongoing geotechnical work and

preventing plaintiffs from making further investments or engaging in future

mineral development at the lease sites. It will also harm plaintiffs by denying them

any return on their enormous investment, foreclosing the opportunity to develop the

tens of billions of dollars worth of strategic minerals underlying the subject lands.

And it will prejudice plaintiffs’ mineral rights on federal, state, and private lands

contiguous to the Leases (which are illustrated on the following map).

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118. BLM’s lease denial—and the Solicitor’s Opinion that provided its legal

justification—are contrary to law because they deny plaintiffs the renewable Leases

to which they are entitled under federal law. Among other things, the Solicitor’s

Opinion disregards the renewal right in section 1, alters the language of section 5,

and misconstrues the contractual and regulatory term “preference right lease.”

Accordingly, BLM’s lease denial and the Opinion should be set aside under 5 U.S.C.

§ 706(2)(A).

COUNT III: ADMINISTRATIVE PROCEDURE ACT
(AS TO DEFENDANTS UNITED STATES, DEPARTMENT OF THE INTERIOR, HAUGRUD,
KEABLE, AND BUREAU OF LAND MANAGEMENT)
(Violation of 5 U.S.C. § 706(2)(A) because the Leases entitle plaintiffs to a
non-discretionary right of renewal)
119. The allegations in paragraphs 1 through 118 above are realleged as if

fully set forth herein.

120. BLM’s denial of renewal of the Leases, and the Solicitor’s Opinion on

which that denial rests, are arbitrary, capricious, or otherwise not in accordance

with law because they give an erroneous construction to the negotiated terms of the

Leases and the subsequent renewals by declaring that BLM has discretion to deny
Franconia’s pending application for renewal, and then exercising that supposed
discretion to cancel the Leases.

121. The Leases unambiguously vest plaintiffs with a non-discretionary

right to renew—which reflects the right to which plaintiffs are entitled under

federal law by virtue of their predecessor’s discovery of a valuable mineral deposit.

122. To the extent the Leases are ambiguous, BLM’s decision and the

Solicitor’s Opinion are arbitrary, capricious, or otherwise not in accordance with law

because BLM and the Solicitor failed to consider evidence that confirms that the

parties intended the Leases to establish a non-discretionary right to renewal.

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123. BLM’s denial and the Solicitor’s Opinion are also arbitrary, capricious,

or otherwise not in accordance with law because they constitute an unexplained

change in the position of the Department of the Interior. Plaintiffs relied on

defendants’ prior interpretation of the Leases—which affirmed plaintiffs’ non-

discretionary right to renew—and incurred significant costs based on that reliance.

124. Because the Solicitor’s Opinion interprets the Leases and renewals in a

manner that is arbitrary, capricious, or otherwise contrary to law, and because

BLM’s denial rests on the Opinion’s erroneous conclusions, both should be set aside

under 5 U.S.C. § 706(2)(A).

COUNT IV: ADMINISTRATIVE PROCEDURE ACT
(AS TO DEFENDANTS UNITED STATES, DEPARTMENT OF AGRICULTURE, YOUNG,
FOREST SERVICE, AND TIDWELL)
(Violation of 5 U.S.C. § 706(2) because the Forest Service’s denial of consent
was arbitrary, capricious, in excess of statutory authority, or otherwise
contrary to law)

125. The allegations in paragraphs 1 through 124 above are realleged as if

fully set forth herein.

126. The Forest Service’s denial of consent constitutes final agency action

under 5 U.S.C. § 704 because it represents the final and binding position of the U.S.
Department of Agriculture. The decision was signed by defendant Tidwell, Chief of

the Forest Service, and there is thus no right to administrative appeal. See 36

C.F.R. § 214.7(a)(2). The denial of consent alters plaintiffs’ legal rights, because it

led directly to BLM’s denial of plaintiffs’ lease renewal application.

127. The Forest Service’s denial is in excess of statutory authority because

Congress has not vested the Forest Service with the “absolute discretion” it claimed

to deprive plaintiffs of their long-established mineral rights. And for good reason: If

the Forest Service had unbounded discretion to prevent lease renewal, it would

undermine the entire regulatory process for acquiring mineral rights, which

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depends on rewarding prospectors who make a valuable mineral discovery with a

mineral lease.

128. The Forest Service’s denial is arbitrary, capricious, or otherwise not in

accordance with law because its decision was based on irrelevant and impermissible

factors. The Forest Service does not have authority to consider, at the lease-

renewal stage, potential environmental impacts from a mining project that has not

even been proposed and that would be subject to a separate approval process that

includes environmental review. The lack of an actual proposed mine plan also

means the Forest Service has no adequate scientific and factual basis on which to

draw conclusions about the potential environmental impacts of such a project.

129. The Forest Service’s denial is contrary to the legal framework

governing hardrock mineral development in the Superior National Forest.

Applicable statutes and regulations contemplate mining in the Forest, and the

governing Forest Plan adopted by the Forest Service in 2004—following

environmental analysis under NEPA—designates mineral development as a

“desired condition” on the lease lands. If the Forest Service wants to prohibit

mining outside the wilderness boundary and the Mining Protection Area that

Congress has protected, it must, at a minimum, amend the Forest Plan. But the

Forest Service has no authority to “maintain buffer strips of undeveloped wildland

to provide an informal extension of wilderness.” Forest Manual, § 2320.3.5. By

denying consent based on the Leases’ proximity to the Boundary Waters, the Forest

Service has acted contrary to congressional intent and circumvented the required

regulatory process to effect a fundamental policy shift in its management of the

Superior National Forest.

130. The Forest Service’s denial is also arbitrary, capricious, or otherwise

not in accordance with law because it constitutes an unexplained change in the

agency’s position. On two prior occasions the Forest Service consented to lease

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renewal, in each case confining its review to the terms and conditions of the Leases

and concluding that they were sufficient to protect the surface resources. Plaintiffs

relied on the Forest Service’s prior actions—which reflected the limited nature of

the agency’s consent authority—and incurred significant costs based on that

reliance.

131. Because the Forest Service’s denial of consent to lease renewal is

arbitrary, capricious, in excess of statutory authority, or otherwise contrary to law,

it should be set aside under 5 U.S.C. § 706(2)(A).

PRAYER FOR RELIEF
Plaintiffs respectfully request that this Court enter judgment in their favor

and award the following relief:

A. A declaration that (1) Franconia has a leasehold interest in the

mineral estate on the land described by the Leases, with a non-

discretionary right to renew such Leases, (2) the Forest Service acted

improperly in denying consent to renewal of the Leases, and (3) BLM is

required to grant Franconia’s renewal application and any subsequent

applications for renewal of the Leases that Franconia or its assignees

properly files, subject only to reasonable adjustments to the terms and

conditions of those Leases, as permitted by section 5 of those Leases;

B. An order (1) holding unlawful and setting aside BLM’s denial of the

Leases and the Solicitor’s Opinion on which it was based, (2) vacating

the Forest Service’s denial of consent, and (3) directing BLM to grant

Franconia’s application for renewal of the Leases, with only reasonable

adjustments to the terms and conditions of the Leases as permitted by

section 5 of those Leases;

C. Plaintiffs’ costs and expenses incurred in this litigation to the extent

permitted by law; and

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D. Any other relief, legal or equitable, that this Court deems just and

proper.

Dated: February 21, 2017 /s/ Paul R.Q. Wolfson
PAUL R.Q. WOLFSON
(pro hac vice)
DANIEL S. VOLCHOK
(pro hac vice)
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave. N.W.
Washington, DC 20006
Tel.: (202) 663-6000
Fax: (202) 663-6363

MICHAEL J. P. HAZEL
(pro hac vice)
WILMER CUTLER PICKERING
HALE AND DORR LLP
1225 17th St., Suite 2600
Denver, CO 80202
Tel.: (720) 274-3135
Fax: (720) 274-3133

STEVEN J. WELLS (Atty. #163508)
I. DANIEL COLTON (Atty. #223116)
MARK R. KASTER (Atty. #159517)
DORSEY & WHITNEY LLP
50 South Sixth St., Suite 1500
Minneapolis, MN 55402
Tel.: (612) 340-2600
Fax: (612) 340-2868

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