Gov. Tim Walz’s decision to use his authority to halt all state permitting of a proposed Twin Metals copper-nickel mine in the Boundary Waters will not stop the federal government from considering new permits for the project.
That’s because the proposed mine site is on federal land in Superior National Forest and Congress in April lifted a federal moratorium on any sulfide mining in that area.
So, Twin Metals can pursue a restoration of federal leases that were cancelled by the Biden administration, and if they are obtained, the federal government can move forward with its environmental review of the project.
Related: The battle over mining near the Boundary Waters now moves to home turf
“The state government cannot prevent the federal government from issuing leases and conducting an environmental review,” said Becky Rom, the national chair of Save the Boundary Waters. “And you might see these leases issued without consideration of science.”
Yet, the plan Twin Metals has to mine copper and nickel in the Boundary Waters is a two-track process. On the state’s track, Walz, in his waning days in office, used his executive powers to put down a clear marker of where the state stands on the issue of nonferrous mining in the Boundary Waters’ watershed.
Brad Karkkainen, an authority on environmental and natural resources law at the University of Minnesota, said Congress voted to end a moratorium on mining that had been established by a rule issued by the U.S. Forest Service and the Bureau of Land Management.
“The congressional action removed federal impediments to mining development in or near the Boundary Waters,” Karkkainen said. “It does not compel mining development, nor does it override the state’s concurrent and independent authority to issue or deny permits for any new mines within the state of Minnesota.”
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Walz’s order also instructs the Minnesota Department of Natural Resources to draft legislation to be considered by the next session of the state legislature that would ban sulfide mining in the watershed.
Similar legislation has failed to win approval in the past.
Still, the governor’s actions, which included halting all state government work on environmental reviews or permitting work on mining proposals while litigation over state mining regulations is ongoing, is a new chapter in a continuing battle over the future of copper-nickel mining in the state.
The litigation over the state’s mine siting permitting rules, brought by environmental groups that oppose the construction of Twin Metal’s mine is scheduled to be considered in state court in February.
“It makes no sense to move forward to review a mine when those rules are about to change,” Rom said.
Sarah Strommen, commissioner of the Minnesota Department of Natural Resources, acknowledged the federal government is moving on a different track. But she said the state would not cooperate with the federal government’s review in any way.
“It’s important to note that while the federal government cannot unilaterally authorize a mine to begin construction, it can begin its environmental review process and may ask DNR to be what is referred to as a cooperating agency … it would not be prudent for the DNR to participate as a cooperating agency in any federal environmental review” she said.
At a press conference Tuesday in Ely, Walz said he is confident his executive order will withstand any challenge.
“This is solid,” he said. “As I said, we’ve done the legal work.”
Joshua Huder, an expert on separation of powers at Georgetown University, said this is likely a case “where state law and federal law overlap, meaning Walz may be able to put in place a ban even if Congress has prohibited the Department of Interior from keeping its ban on the books.”
Nevertheless, Walz expects a blustery and hyperbolic response from the Trump administration, which he threw a zinger at in his press conference Tuesday.
“These people can’t manage a reflecting pool, so why would we think they could manage this mine?” he said.
The bottom line, he added, is “there’s nothing they can do about it.”
The governor’s actions, however, reignited the debate about mining near the Boundary Waters.
Lawmakers representing northeastern Minnesota criticized the order.
Rep. Pete Stauber, R-8th District, who sponsored the legislation to lift the federal moratorium on mining in the watershed, said in a statement that it order is “radical” and “job killing.”
“Simply put, the governor’s executive order is an outright war on Northern Minnesota and our way of life,” he said.
State Rep. Roger Skraba, a Republican from Ely, said special interests got to the governor just like they persuaded President Joe Biden to impose the federal moratorium.
Related: The Boundary Waters is not a place to experiment with mining
“Let the agencies, the regulatory agencies, review the plans,” he said. “Then if they make it, they do. If they don’t, they don’t. Don’t say you can’t even look at the plans. Seriously? That’s good governance? I beg to differ.”
Walz’s successor will decide whether to keep the executive order, which sunsets 90 days after the governor leaves office, or scrap it.
Sen. Grand Hauschild, DFL-Hermantown, said his constituents are tired of executive overreach by a governor who leaves office in a matter of months.
“The truth is, no one can honestly say whether they support a mining project before it has gone through the full environmental review and permitting process,” Hauschild said in a statement.
Environmental groups and tribal leaders, meanwhile, applauded Walz’s announcement.
“Walz made it clear that federal overreach will not decide the fate of Minnesota’s waters,” stated Chris Knopf, executive director of Friends of the Boundary Waters Wilderness. “He defended what is best about this state. This is the kind of action a governor is remembered for.”
At the very least, Walz’s order pauses what was already going to be a lengthy timeline for copper-nickel mine permitting in Minnesota. Even proponents of the project have said they expected years or even more than a decade to pass before mining got up and running.
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