REGIONAL— Through an unprecedented legislative maneuver, members of the Trump administration and some GOP members of Congress are hoping to not only rescind the Biden administration’s 20-year mining ban on about 225,000 acres of the Superior National Forest, but prevent any future president from instituting a similar restriction.
The maneuver goes before the House Rules Committee on Tuesday, Jan. 20, which will have to determine if it complies with legislative process. In short, a provision pushed by Eighth District Congressman Pete Stauber claims that the Biden Interior Department’s 20-year mining prohibition constitutes a rule rather than an agency order, but that is hotly disputed by opponents of the mine, who argue Stauber’s gambit is predicated on a false claim.
Stauber’s effort, if successful, would significantly benefit Antofagasta, a Chilean based mining company that is seeking to open a copper-nickel mine south of Ely. Opponents of the mine say it threatens to pollute the pristine waters of the Boundary Waters Canoe Area Wilderness, located just downstream, as well as disrupt a well-established local economy based on outdoor recreation.
Citing such concerns, the Biden Interior Department issued the so-called “mineral withdrawal,” on the Superior National Forest in January 2023 as authorized by the Federal Lands Policy and Management Act, or FLPMA. The department has issued more than two dozen such mining prohibitions since Congress passed FLPMA in 1976, by both Republican and Democratic administrations, including the Trump administration. Under FLPMA, agency orders such as mineral withdrawals are required to be published in the Federal Register, as the Biden administration did once the order was issued.
But the Trump administration and Rep. Stauber are now claiming that the order is actually a rule, not an order, and that notice of the mineral withdrawal should have been published in the Congressional Register as well as the Federal Register. The Trump administration is planning to publish the order in the Congressional Register in the coming days. And under an unrelated law, known as the Congressional Review Act, or CRA, Congress has the right to review and veto, effectively permanently, rules promulgated by federal agencies. Under the CRA, new rules must be noticed in the Congressional Register and, once published, Congress has 60 days to rescind the rule. By doing so, the Congress essentially prohibits promulgation of similar rules in the future.
But rules and orders are different in the federal system. Agency rules are essentially regulations that are general prospective statements with the force of law, created through a rule-making process that includes public notice and comment. Orders, by contrast, are specific, final agency decisions resolving questions or disputes, or applying existing rules to specific situations.
FLPMA specifically states in Section 204 that mineral withdrawals are considered Public Land Orders. FLPMA treats these actions as administrative decisions made by the Executive Branch to restrict land use, rather than legislative rules. FLPMA further requires that orders need only be published in the Federal Register, not the Congressional Register.
It also requires that Congress be separately notified of withdrawals, such as through a letter from the agency or department, and that notification was provided at the time for the Superior National Forest withdrawal.
While a Reuters report from earlier this month suggested that the order also needed publication in the Congressional Register, it appears that report was in error on that point.
Becky Rom, a retired attorney with the Campaign to Save the Boundary Waters, notes that past administrations have followed the same procedures for decades when instituting mining bans and members of Congress have never attempted the kind of end-around that Stauber and the Trump administration now hope to engineer. “This is an unprecedented attempt and it’s based on a faulty reading of the law,” she said.
While Stauber’s maneuver would normally never get past a filibuster in the Senate, under the CRA, Congress can act with simple majorities in both the House and Senate, and those decisions are not subject to judicial review.
But it isn’t clear if Stauber’s effort will ultimately succeed. With the resignation of Republican Congresswoman Marjorie Taylor Greene, the unexpected death earlier this month of another GOP House member from California, and the recent car accident of an elderly Kentucky representative, the Republican’s House majority is currently razor thin.
And it isn’t clear that all members of Congress, even Republicans, would support a reinterpretation of long-established policies and procedures that would, in effect, undermine the ability of executive branch agencies to issue final orders.
“Using the Congressional Review Act to attack these protections also creates a reckless precedent that would allow Congress to retroactively target virtually any public land action as a ‘rule.’ If this maneuver succeeds, no established land management decision would be safe,” said Ingrid Lyons, executive director of Save the Boundary Waters.