FUTURE LITIGATION?
On April 16, the U. S. Senate voted 50-49 to invoke the Congressional Review Act to overturn a 20-year ban on mining on more than 225,000 acres of the Superior National Forest upstream of the Boundary Waters Canoe Area Wilderness. The President is expected to sign it. Under the CRA, federal agencies must submit new regulations to Congress before they can take effect. If Congress disapproves by a simple majority, the agency can never issue another rule “in substantially the same form.”
This is the first time Congress has used the CRA to overturn a management decision on national forest land, although the ban on mining was in a public land order mineral withdrawal. by the Secretary of the Interior. The title of the joint resolution is:
“H.J.Res.140 – Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Bureau of Land Management relating to Public Land Order No. 7917 for Withdrawal of Federal Lands; Cook, Lake, and Saint Louis Counties, MN.”
While this resolution describes the Secretarial Order as a “rule,” federal land management agencies have never considered their land management decisions to be regulations, and so have never submitted them for congressional review, apparently leaving them vulnerable to review now. Last year, Congress employed the CRA to invalidate several BLM resource management plans. We discussed that here.
During the CRA’s first 20 years of existence, it was used only once. But President Trump and Republicans have worked to dramatically expand and weaponize the CRA. It appears the current Congress sees no limits to what kinds of agency decisions it may review and reverse. It’s not hard to imagine the chaos this could cause for federal land management, especially with regard to land management plans. Plans revised (and presumably amendments) after the passage of the CRA in 1996 would be vulnerable. Another example, Republican Senator Mike Lee of Utah has proposed a CRA resolution to eliminate the resource management plan for the Grand Staircase Escalante National Monument.
Potential litigants are circling, one referring to the situation as “extraordinarily legally questionable.” Our prior discussion touched on the question of how a lawsuit might arise.
“The U.S. Forest Service is 100 percent opposed to mining in this watershed,” said Marc Fink, director of the Public Lands Law Center and a senior attorney for the Center for Biological Diversity. In 2016, the Forest Service determined that a sulfide-ore copper mine, such as the one Twin Metals is proposing, could cause “extreme” and “serious and irreplaceable harm” to the area. “This clearly goes against the science and the administration’s own agencies,” Fink said.
The US imports about half the copper it uses, and that doesn’t count the copper in all of the imported electronics. I would think it better to mine copper here where we have strict environmental laws than in some country where there are no laws.
I’d also like to see the mining done by an American owned company with strict rules about only American workers. Even more importantly much higher royalties paid to the government. Doesn’t copper typically pay 0%? I’d think 20% or 30% more appropriate. Let them scream.
About Fink…..After wolves I automatically discount whatever someone from the CBD says, I’d even be inclined to assume the folks on the other side have a more compelling argument. Alienate people and they stay alienated forever.
Any sane version of copper self-sufficiency would NOT include mining near the Boundary Waters, period.
Why? Do you have another area you think would be better?
I want to say, get ready. With this dismantling of the Forest Service, I fear this will be just the beginning. The mention of the word “science.” Well, the dismantling took care of that. My only hope is if you do not like the dismantling and the consequences we just are reading about, please share your voice. Please.
Very respectfully,
All resource extraction can cause “extreme” and “serious and irreplaceable harm.” That does not mean that we should ban it entirely. If we did, we would lack the mineral resources that we need! Hence, decisions need to be site specific. Can the mining be done with minimal damage and maximum resource extraction? I think so.
Who makes the decisions? bureaucrats, Republicans, or Democrats? In my opinion, we have delegated too much authority to unelected bureaucrats who have failed to show the great wisdom expected of them. That invites the next level of authority, elected Republicans and Democrats, to intervene. They may make a mess of things too, but they are at least accountable to the electorate.
The enormous Gold King mine disaster in 2015 would say that government bureaucrats and their Obama Administration masters were THOROUGHLY negligent. Should we therefore let Republicans make the decisions? Perhaps Republicans have also shown extremely poor judgement on another occasion? In any case, we need everyone involved to make the wisest decisions they can in each specific case. And we need to punish those who betray the public trust.
Years ago, I visited a fantastic wild cave in New Mexico that happened to have an entrance a few hundred meters from a long abandoned natural gas platform. The only visible signs of the resource extraction were a small flat area where the well had been and a rough road leading to the site. Those involved in that resource extraction had done a good job of minimizing impacts. It can be done.
Gordon J. Fulks, PhD (Physics)
Corbett, Oregon USA
How can you compare the Gold King mine accident to Congress making the purely political decision to allow mining near the Boundary Waters Canoe Area Wilderness? I’m not seeing it.
Thank you for the opportunity to comment on this important development.
This move is associated with the claim that the US needs these minerals, so we must mine them for our domestic survival.
In fact the mining company is Chilean, and the concentrate will in all probability be shipped overseas for smelting and then sold on the world market. Zero benefit to Americans!
A cursory investigation by the curious will reveal that a large percentage of the mining done on public lands is by foreign companies. I can provide 2 examples that I’m familiar with …
The Stillwater mine in Montana (the only American platinum/palladium mine) fully owned by Silbane, from South Africa. The cement mine/plant near Three Forks, Montana is Mexican owned.
Here’s my “radical environmentalists/socialist” idea: ALL resources extracted from public lands must be used in this country – no exportation – for the benefit of the American people- timber, fossil fuels, minerals, and water to name a few.
I like your “radical environmentalist/socialist” idea. No exportation and by American companies only.
So former Secretary Haaland’s PLO 7917 withdrawing mineral leasing for 20 years isn’t “weaponization” against existing property rights but Congress, who has the absolute authority to “…exercise its constitutional authority to withdraw or otherwise designate or dedicate Federal lands for specified purposes…” overturning the designation is weaponization. How do we know that the decision isn’t racist, or misogynist, or transphobe, or….or is it just that those words don’t mean anything any longer because of being applied to everything so-called progressives disagree with?
And then there’s all the deals that were cut and the promises made to get the Wilderness Area through originally that surely must be forgotten in order to make way for the self-indulgence of today not to mention the congressionally delegated ability and authority of the USFS for–but failure to–acquire the mineral rights in the intervening decades if extinguishing them were that important to protect the Wilderness.
Of course, all that–and more–can just be simplified to the disconnected by promoting slogans like “Congress votes to destroy the Boundary Waters…YOUR PUBLIC LAND” (and BTW, give us a click and like and send us your money).
Per Google AI: “To weaponize is to adapt, equip, or develop something—such as technology, substances, or information—for use as a weapon, often implying a change from a benign or neutral state to a harmful, lethal, or malicious one.” A mineral withdrawal is a routine procedure that has a history of being used this way. The Congressional Review Act has essentially never been used for this purpose. I.e. adapted for a new use perceived as harmful – a weapon.
Brohm was an Australian company recruited by a now-dead Republican governor who gutted environmental protection in South Dakota. In the pre-cellphone days Brohm and this interested party shared a radio telephone party line where managers plotting an environmental disaster at the Gilt Edge site unwittingly leaked the news to anyone listening.
Disadvantaged populations have been subject to mining-driven environmental racism for hundreds if not thousands of years and in 2014 Nobel Prize winner, Professor Paul Krugman warned Americans that Earth hating Republicans want to make America one big strip mine.
In September Sibanye-Stillwater mining company in Montana announced the ending of some 800 jobs after Russia flooded the world palladium market sinking Democratic Senator Jon Tester’s reelection. Montana Tunnels Mining, Inc. in Jefferson County is in bankruptcy after a century of pollution and tax fraud.
According to the US Geological Survey the nation imports most of its bauxite and alumina so instead of ripping up ground in America recycling aluminum is mostly working but there is so much metal buried in landfills that if we mined those we’d import even less. Electronic waste containing copper, gold and platinum is valued at nearly $100 billion but only 4% is repurposed while new mines are currently being permitted in Montana and Arizona.
Visitors and skiers at Terry Peak in the occupied Black Hills are increasingly concerned by the encroachment of a massive tailings pile and ever-widening mining scars from decades of scorched earth. But the Black Hills of South Dakota and Wyoming are hardly the only public lands plundered by foreign companies under cover of the General Mining Law of 1872 that was enacted to settle Civil War debt and rob Indigenous peoples of their homes and human rights.
Australia-based South32 Ltd. is ripping into Sobaipuri O’odham and Hohokam ancestral lands at Harshaw, Arizona with plans to extract zinc, manganese and nickel. In 2023 Trump appointees rejected a lawsuit that would have blocked mineral exploration in Arizona’s Patagonia Mountains despite the resultant acid mine drainage that puts wildlife at risk and that half of all migratory birds in North America move through the nearby avian sanctuaries at Sonoita Creek State Natural Area and Patagonia Lake. Santa Cruz County is concerned that the 78% of residents who speak Spanish as a first language will be unfairly impacted by the dust, noise and traffic. Mining towns Miami and Globe, Arizona were mostly washed away after miners stripped an entire mountain range and replaced it with piles of waste rock.
Until it closed in 1939 the Tererro Mine in the headwaters of the Pecos River took gold, lead and other metals then left piles of toxic waste rock in their place. After major flooding in 1991 when sulfuric acid, aluminum and zinc swept into the river miner Freeport-McMoRan was held responsible for the deaths of some 100,000 Rio Grande cutthroat trout and for the subsequent decades of acid mine drainage.
I’ve preached this for going on forty years. It takes trucks, tub grinders and balers dedicated to specific materials to recycle on a regional scale. The United States has thousands of mountains of glass cullet from the municipal waste stream just waiting to be repurposed. We sell millions of tons of salvage material to India and Asia to be recycled while tearing up our own ground mining for virgin minerals while metals and plastics, that could be petroleum, are buried in landfills. Zinc is one of the most recoverable and recycled materials on the planet so mining the Phoenix and Tucson landfills seems a far more Earth-friendly endeavor than blowing up the Sky Islands does.