Swaths of Ryan Zinke's text messages during his time as Interior secretary appear to be missing, according to a recent agency court filing that has sparked criticism that the department could be running afoul of federal record-keeping requirements.
At issue: Zinke's government-issued cellphones.
The Interior Department's chief information officer says in a court declaration that the secretary had one phone for domestic use, another for international use and trouble managing those devices. Zinke — who led the department from March 2017 to January 2019 — lost his original domestic phone around November 2018, the filing says.
Because the phone contained sensitive information, Interior attempted to remotely wipe it clean. But, apparently by mistake, it wiped Zinke's international phone instead — raising questions about what happened to his communications on that device.
"There is no way to restore the data on the International Phone following the wipe," Interior chief information officer David Alspach said in the Oct. 26 court declaration in a Freedom of Information Act case brought by the Center for Biological Diversity.
Zinke was issued a replacement domestic phone. But about a month later, in December 2018, he found his original domestic-use phone. The following January, he announced he was stepping down as Interior secretary.
Alspach said his office collected all three phones — the original and replacement domestic phones, as well as the international phone. They were also turned over to the Office of Inspector General, which is investigating Zinke.
Interior was able to get the replacement domestic phone, but Zinke appears to have provided the wrong passcode to the original domestic phone.
Alspach's declaration then becomes confusing.
He states that Interior had the passcode and accessed the replacement domestic phone, but that there were no text messages on it. In the next paragraph, he states that the passcode for the original phone didn't work and that the "passcode issue only became apparent several weeks" after a government shutdown.
But then Alspach states the department has "no technical means, and knows of no means, to access the Replacement phone without a passcode."
It is unclear whether Alspach meant "original" phone there, since he had already said Interior had access to the replacement phone.
Then Alspach says the department doesn't have a way to recover the text messages from whichever phone it lacked the passcode for once Zinke left office, raising questions about whether they are gone for good.
"It is my understanding," he wrote, "that the Department cannot force — even if the Secretary could remember the passcode — the Secretary to provide the passcode as he is no longer an employee of the Department."
The saga raises red flags for government watchdogs.
"This is a real comedy of errors — except it's not very funny," said Steven Aftergood, who runs the Project on Government Secrecy at the Federation of American Scientists. "It sounds like the department and the secretary made just about every mistake you could think of."
Interior declined to comment, citing the ongoing litigation.
Zinke's text messages are subject to the Federal Records Act (FRA) preservation requirements and should be turned over to the National Archives and Records Administration.
"There are definitely some FRA issues," said Nikhel Sus, senior counsel at Citizens for Responsibility and Ethics in Washington. "There is some clear incompetence. They supposedly wiped one phone by accident, thinking they were wiping a different phone. I don't know how you do that."
That wiping could qualify as an "unauthorized disposition" of Zinke's communications, which by law the agency would be required to report to the archives.
"The apparent loss of information is a problem," said Justin Rood of the Project on Government Oversight.
Interior didn't respond to a question on whether it has reported the matter to the archives.
Rood added that he was bewildered by Alspach's apparent admission that the department couldn't follow up with Zinke for passcodes once he left office.
"The department is powerless to ask the secretary for a second guess at his access codes?" he asked. "That doesn't make any sense to me."
Missing coal leasing documents
Alspach's declaration comes after months of legal wrangling from the Center for Biological Diversity.
The advocacy group is seeking documents related to the Trump administration's 2017 decision to lift a temporary moratorium President Obama placed on leasing federal coal in 2016.
Zinke signed a secretarial order in March 2017 officially lifting the moratorium.
Getting nowhere with its FOIA request, CBD filed the lawsuit in the U.S. District Court for the District of Columbia, asking the court to compel the department to turn over the documents. But over the course of the litigation, the center noticed something strange in Interior's FOIA disclosures: There was next to nothing from Zinke, including no draft order.
"This secretarial order just magically appeared," said CBD senior counsel William Snape, a fellow at American University's Washington College of Law. "To make a long story short, to this day they cannot find anything to or from Zinke, or any draft secretarial order."
Snape and CBD have now filed a motion for summary judgment, requesting that the court order Interior to conduct a new search.
The Obama-era policy brought the coal-leasing program in line with its aggressive effort to address climate change.
Until then, many of Obama's climate initiatives focused on the demand side of fossil fuels. Meanwhile, the federal coal program was flourishing in the West.
Obama's Bureau of Land Management leased 2.2 billion tons of coal before pausing the program. That's more coal than any other administration has leased, said Shannon Anderson, an attorney at the Powder River Basin Resource Council.
"There was a huge disconnect between the Clean Power Plan and the federal coal program," Anderson said.
Former Interior Secretary Sally Jewell froze leasing in January 2016 to study the program's effects on the environment and whether taxpayers were receiving a fair return.
The order had little impact on the ground because of exemptions like allowing leases in progress to proceed. Interior had already leased 20 years' worth of coal.
But it gave the administration time to evaluate the program. In that last month of Obama's presidency, BLM issued a report laying the groundwork for a coal leasing overhaul. It recommended raising royalties, offsetting emissions and considering a permanent leasing ban (Greenwire, Jan. 11, 2017).
Zinke's order lifting the moratorium in March 2017 did little to revive coal leasing.
Companies had applied to mine 2.7 billion tons of coal at that time. By March of this year, firms had withdrawn applications, leaving less than 1.8 billion tons up for lease (Greenwire, March 3).
Demand for coal continues to fall, and suppliers have cut back production. Arch Resources Inc., the nation's second largest coal producer, has announced plans to wind down its Wyoming mines (Greenwire, Oct. 22).
Anderson said the Biden administration could pick up where Obama left off with its review of the leasing program.
"Four years from when it was written, it can be picked up again and reviewed and revitalized by somebody new," Anderson said. "That was its goal."
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