REGIONAL— Eighth District Congressman Pete Stauber is continuing his efforts to bring sulfide-based copper-nickel mining to the headwaters of the Boundary Waters Canoe Area.
On Tuesday, he brought a half dozen of his GOP House colleagues to the Iron Range to a Congressional field hearing to tout the mineral potential of the Iron Range region along with its history of mining. Stauber organized the hearing as part of his role as chair of the House Subcommittee on Energy and Mineral Resources.
The field hearing was held within days of Stauber’s introduction of a House resolution that would cancel the recent 20-year mineral withdrawal on about 225,000 acres of the Superior National Forest. Stauber has called that withdrawal an attack on “our way of life,” in the region, but the withdrawal impacts only the proposed Twin Metals mine, part of a joint venture controlled by Chilean mining giant Antofagasta. The withdrawal would not impact taconite mining, nor would it hamper efforts to establish the planned PolyMet copper-nickel mine, near Hoyt Lakes.
Stauber’s resolution has little chance of passage in Congress and opponents of the Twin Metals project called his effort a “stunt” meant to garner headlines rather than results.
The recent mineral withdrawal, approved by Interior Secretary Deb Haaland in January, was under authority of the 1976 Federal Land Policy and Management Act, or FLPMA. That law gives the executive branch the authority to withdraw sensitive areas from the federal mineral leasing program for up to 20 years. A provision within FLPMA gives the Congress the ability to reverse a mineral withdrawal approved by the executive branch, as long as the action is taken within 90 days. Under the federal statute, the president would not have the ability to veto a congressional decision under that provision.
“Congress is exercising its authority to roll back this misguided ban and secure our domestic mineral supply chains,” said Stauber in a press statement announcing his proposed resolution. “It is well past time for elected officials, not appointed bureaucrats, to dictate how and when America’s abundant resources and public lands are utilized.” 
Stauber’s resolution is almost certainly dead-on-arrival in the U.S. Senate, so his efforts likely won’t result in overturning the Biden administration’s decision.
What’s more, there appears to be wide agreement in the federal courts that Stauber’s action is unconstitutional.
Historical context
The executive branch has long claimed authority to make leasing determinations, including the ability to withdraw areas from mineral or oil and gas leasing that are not otherwise leased. Federal courts have consistently confirmed that authority ever since a 1915 U.S. Supreme Court case, United States v. Midwest Oil Co., which found that the executive branch had made temporary withdrawals of federal land from mineral leasing since “an early period in the history of the government.” While the high court acknowledged no clear statutory authority for such executive action, it found that since Congress had never objected to such actions, it had given “implied consent” to the authority.
Enactment of the FLPMA was an effort to codify a wide range of executive authorities pertaining to federal land policy and management and it included an explicit grant of executive authority to undertake temporary mineral withdrawals. While that law also incorporated a congressional veto of such withdrawals, Congress has never attempted to avail itself of that veto power, until Stauber’s most recent effort. That’s despite the fact that presidents from both parties have utilized the withdrawal authority under FLPMA nearly 90 times since its enactment.
That continuing acquiescence on the part of Congress may well be a recognition of the unconstitutional nature of that veto provision. In a separate 1983 case, I.N.S v Chadha, the U.S. Supreme Court found that a similar congressional veto in an immigration law was unconstitutional. In a decision written by Chief Justice Warren Burger, a Nixon appointee, the court found that a resolution to deport a non-resident alien passed solely by the U.S. House was unconstitutional since it violated the separation of powers and the principles of bicameralism.
A 2017 case, Nat’l Mining Assoc. v. Zinke, involving a mineral withdrawal near the Grand Canyon, was even more to the point. In that case, the National Mining Association and others challenged the constitutionality of FLPMA’s congressional veto authority, in the hopes that it could result in the invalidation of the entire law, which was the legal basis for a withdrawal of uranium leasing.
The mining interests argued that the unconstitutional congressional veto included within FLPMA invalidated the overall withdrawal authority because Congress would not have enacted that authority without it.
The Ninth Circuit Court of Appeals agreed on the unconstitutional nature of the congressional veto provision, but rejected the claim that the problematic provision invalidated the withdrawal authority under FLPMA. The court noted that the federal law includes a severability clause, that expressly states that should any provision of the law prove invalid, the remaining provisions continue in effect. In addition, the court found that Congress had enacted other provisions to advance Congress’s broad oversight of withdrawal decisions, and that the withdrawals, in either case, were temporary and that only Congress could enshrine permanent protection.
What’s more, the court found that Congress retained its ability to veto any withdrawal decision by the executive branch through the normal course of legislative action— passing an appropriate bill in both houses of Congress and obtaining a presidential signature.
The Timberjay provided questions about the shaky constitutional nature of Stauber’s effort to block the mineral withdrawal. Stauber’s office did not respond.
Congressional field hearing
Tuesday’s congressional hearing, held at the Mt. Iron-Buhl High School, featured comments and testimony from three witnesses, including Ely area resort owner Joe Baltich, a vehement supporter of the proposed Twin Metals mine, along with Dean Peterson, chief geologist with Big Rick Exploration, and Jessica Johnson, of Talon Metals Corp., which is in the planning stage for a small, high-grade nickel mine near Tamarac.
Baltich regaled the half dozen members of Congress with his family’s struggles in the tourism business, suggesting that those involved in tourism typically work multiple jobs to make ends meet. “Tourism is a feast or famine business,” said Baltich.
He said early promises that the Boundary Waters would be a major draw to the area were “baloney,” and he said mining would actually encourage tourism.
When asked by Rep. Tom Tiffany, R-Wis., if tourism and mining could co-exist, Baltich was quick to respond. “Absolutely,” he said. Tiffany also asked Baltich to weigh in on whether mine permitting had become “weaponized” in the U.S. and on whether the U.S. can mine in a safer manner than China. Baltich answered affirmatively to other leading questions as well from the assembled members of Congress. Baltich also talked about the Eagle Mine, a nickel mining operation in Michigan’s Upper Peninsula, which Baltich described as “perfect.”
Peterson described how the Mid-Continent Rift, which created the Great Lakes, also brought enormous quantities of metals from the Earth’s core relatively near the surface, creating the Duluth Complex, among other formations, which contains a vast amount of metals, most of it low-grade.
Supporters of the mineral withdrawal chided Stauber and Tuesday’s hearing. “We are disappointed that Rep. Pete Stauber has decided to conduct a field hearing that is not representative of the majority of his constituents’ interests,” said Becky Rom, national chair of the Campaign to Save the Boundary Waters.
Chris Knopf, of Friends of the Boundary Waters, referred to the hearing as a “political stunt to show foreign mining conglomerates that he [Stauber] is still fighting for their interests.”