REGIONAL — A legislative gambit, introduced by Minnesota Eighth District Rep. Pete Stauber and engineered by supporters of the proposed Twin Metals copper-nickel mine near Ely, narrowly passed the U.S. House late last Wednesday, just after the Timberjay’s weekly deadline. The Twin Metals proposal is being spearheaded by Antofagasta, a Chilean copper mining giant that controls Twin Metals.
Stauber’s measure seeks to permanently rescind the 20-year mining ban put in place in 2023 on approximately 225,000 acres of the Superior National Forest, a move that would open the way for Twin Metals to apply for new mineral leases along the Kawishiwi River watershed, a major hydrological system that flows into the heart of the Boundary Waters Canoe Area Wilderness.
The measure must still pass the U.S. Senate under the provisions of the Congressional Review Act.
The Congressional Review Act, or CRA, was enacted in 1996 as part of a small business reform measure. It gave Congress authority to review and, potentially, overturn federal agency regulations. But the law limited that review and decision-making process to 60 days.
For decades, the use of the CRA was limited to review of regulations promulgated by federal agencies, but a recent determination by the General Accounting Office suggests that the law could also apply to other agency actions, including public land management plans. Since that decision, Congress has used the CRA to overturn land management plans in Alaska and North Dakota, among other places.
Deputy Secretary of the Interior Katharine Sinclair MacGregor officially submitted the 2023 mining ban, known as Public Land Order 7917, to Congress on Jan. 6, 2026, which gave Congress until March 7 to vote to rescind. The House has now done so, and action remains pending in the Senate.
Far-reaching potential
consequences
The new push by Congress to review and repeal land management plans and public land orders, which had not been considered subject to the CRA in the past, threatens to create considerable uncertainty over the management of public lands.
In a Jan. 15, 2025, letter, outgoing Interior Department Solicitor and Ely native Robert Anderson wrote in a letter to U.S. Sen. Martin Heinrich of New Mexico that the management plans are not subject to the CRA. Anderson never addressed the question of whether public land orders constituted rules since the notion was considered too far-fetched. Both resource management plans, and public land orders like the 2023 mining ban affecting the Superior National Forest, are routinely developed for public lands under the authority of the 1976 Federal Lands Policy and Management Act, commonly referred to as “flipma.” Since passage of FLPMA, dozens of mineral withdrawals have been enacted by both Republican and Democratic administrations, including the Trump administration.
“[Land management plans] have never been considered rules by the Department of the Interior or any reviewing court,” wrote Anderson. “For that reason, the department has never reported the approval of a [management plan], as a ‘rule’ under the CRA,” he added.
Under the interpretation of the CRA developed for Stauber’s recent provision, all of those withdrawals, as well as hundreds of management plans for national forests and for Bureau of Land Management lands throughout the country would be legally suspect. According to Anderson, it “could affect hundreds of decisions across millions of acres for each [management plan].” Anderson said the BLM alone has approximately 160 million acres of lands under management plans that could be challenged legally. Those include plans that authorize oil and gas leases, grazing, logging, mining and mineral exploration across much of the western half of the country, including Minnesota.
As Anderson noted, “Since the CRA provides that “rules” do not take effect until reported to Congress and the Comptroller General as provided in that Act, treating [management plans] as rules under that statute could, at a minimum, cause uncertainty regarding the effectiveness of BLM [management plans] going back to the passage of the CRA in 1996-as well as the validity of implementation decisions issued in conformance with those RMPs ( e.g., oil and gas leases and approvals to drill, livestock grazing permits and leases, rights-of-way for energy generation and transmission, travel management plans).”
Anderson points out that another aspect of the CRA elevates the uncertainty still further. The CRA not only provides Congress the authority to rescind federal agency regulations, any recission automatically prohibits the federal agency from ever issuing a new rule “in substantially the same form,” would apparently have the same effect on land management plans and public land orders. According to Anderson, that “could have extremely far-reaching consequences.” For example, management plans that authorize logging, mineral exploration, oil and gas leasing, or recreational activities, if disallowed, could prevent public land agencies from developing similar plans in the future.
Stauber’s initiative also opens up potential new points of legal challenge for hundreds of management plans out West that lay the foundation for extractive uses, such as grazing or oil and gas development, as well as timber sales or mineral exploration on the Superior National Forest. Since none of these plans were noticed to Congress as prescribed by the CRA, environmental groups would have a legal framework to challenge their validity and the extractive projects approved under them.
More likely than these legal challenges, is a lawsuit over the recent reinterpretation of federal law inherent in Stauber’s action. That challenge, which would likely play out over years, would leave plenty of uncertainty over the future of the mineral ban.