Interior Secretary Deb Haaland’s implicit threat of legal action against a proposed titanium dioxide mine on the flanks of Georgia’s Okefenokee Swamp raises unresolved questions about the scope of the agency’s authority to protect public lands outside their boundaries, legal experts say.
Haaland wrote a November letter, made public this week, to Georgia Gov. Brian Kemp (R) urging the state to avoid permitting Twin Pines Metals LLC’s proposed mine near Okefenokee National Wildlife Refuge in southern Georgia.
The mine is planned for a site about three miles outside the refuge on a low ridge that helps to contain the Okefenokee Swamp. The Okefenokee is North America’s largest blackwater swamp and is considered one of the East Coast’s most biologically diverse wild places.
“The Department will exercise its own authorities to protect the swamp ecosystem and will continue to urge our state and federal partners to take steps under their own authorities to do the same,” Haaland wrote in the Nov. 22 letter.
‘Ignored the Science’
Haaland is signaling an intent to pursue legal remedies to block the mine, said Patrick Parenteau, an emeritus environmental law professor at the Vermont Law School.
“It will be interesting to see what happens if Governor Kemp thumbs his nose,” Parenteau said.
Kemp’s office confirmed it received the letter, but declined to comment further.
Haaland’s appeal to Kemp is “disturbing,” distorts the truth and is an “extremely sad reflection on those in power,” Steve Ingle, president of Twin Pines Metals, said in a statement.
The US Fish and Wildlife Service has “ignored the science,” “created hysteria,” and is “weaponizing the regulatory process to achieve its objective,” Ingle said.
The state has no estimated date for a final decision on Twin Pines’ permit, said Sara Lips, spokeswoman for the Georgia Department of Natural Resources.
Supreme Court Case
A 1976 Supreme Court case, Kleppe v. New Mexico, left unresolved how far the federal government’s “absolute authority” to regulate wildlife on federal lands extends beyond those lands’ boundaries, Parenteau said.
Other court decisions have signaled that Interior can enjoin other actions, such as groundwater pumping, that threaten public lands outside their boundaries, he said.
“There’s no crisp answer” about the extent to which Interior could regulate mining outside Okefenokee’s boundaries, said John Leshy, a former Interior solicitor in the Clinton administration.
“Any water pollution in the refuge caused by the mine may give the feds some authority under the Clean Water Act,” he said. “The same is true if the mine impacts any listed threatened or endangered species.”
It’s also common for federal agencies to weigh in on state permitting issues when federal lands are threatened, but it’s always better if the federal government and states work together to protect federal lands, Leshy said.
Interior is concerned that the mine would damage the swamp’s hydrology, harm the swamp’s ecosystem and affect the ancestral homelands of the Muscogee Nation, Haaland wrote.
US Fish and Wildlife Service officials wrote in 2019 they were concerned that the sand removal and processing on Trail Ridge could dry up the swamp and increase wildfire frequency there.
The titanium dioxide found there is used in paint pigments and sunscreens, and has been studied for use in solar photovoltaic cells.
Ingle dismissed concerns that the company’s mining technique is harmful to the area’s water table.
“Our so-called ‘mining’ is nothing more than temporarily extracting sands and soils,” and planting native plants atop them, Ingle said.
Melissa Schwartz, communications director for the Interior Department, said officials “don’t comment on government to government correspondence.”
Following Babbitt’s Legacy
Haaland’s campaign to protect the refuge follows former Interior Secretary Bruce Babbitt’s successful 1997 effort to prevent the DuPont Co. from mining titanium dioxide in the same area. DuPont quickly shelved its mine plans after Babbitt sent a letter similar to Haaland’s.
“It worked then to stop mining. I hope it helps again now,” said Geoff Haskett, president of the National Wildlife Refuge Association.
Permanent protection for Okefenokee may require the Georgia Legislature to act to prohibit mining on the ridge that contains the swamp, said swamp advocate Joshua Marks, counsel at Parker Poe Adams & Bernstein LLP, who provided Haaland’s letter to Bloomberg Law.
“Such a bill was introduced in 2022 with significant support, and we expect the bill to have even greater momentum in this upcoming session,” Marks said. “The ultimate success of the effort will come down to Governor Kemp.”
A fight to protect the refuge is also unfolding in federal court.
The association is the lead plaintiff in a lawsuit, National Wildlife Refuge Association v. US Army Corps of Engineers, filed last month in the US District Court for the District of Columbia after the Army Corps paved the way for Twin Pines to mine near the Okefenokee as part of a long-running battle over Clean Water Act jurisdiction.
The Army Corps during the Trump administration determined that wetlands on the mine site weren’t considered waters of the US, or WOTUS, under the Clean Water Act, but the Corps reversed that decision when a Trump-era rule that lifted protections for many wetlands nationwide was tossed out.
The Army Corps backpeddled again this year when it settled with Twin Pines without explanation, declaring again that the wetlands at the mine site aren’t federally-protected waters.
The association and three other environmental groups are asking the federal court to vacate the settlement.
Haaland’s letter highlights why the Army Corps’ decision to settle with Twin Pines was a bad idea, said Megan Hinkle Huynh, a senior attorney for the Southern Environmental Law Center, which is representing the plaintiffs.
“The fact that the Secretary of the Interior—whose department oversees the National Refuge System—has spoken out so strongly highlights just how dangerous and ill-advised it is to strip mine next to one of the nation’s most iconic natural resources,” Huynh said via email.
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