'That right there is chaos': Legal expert warns of GOP-caused forest service collapse

Congress’ move to allow mining in a national forest near a wilderness area may have broad ramifications across the country.

The U.S. Senate voted Thursday to overturn a mining ban in Minnesota’s Superior National Forest, the headwaters of the Boundary Waters Canoe Area Wilderness.

By using an obscure tool known as the Congressional Review Act to open the national forest for mining, lawmakers have called into question the validity of every management plan issued by the U.S. Forest Service over the past several decades. That could result in legal chaos for thousands of permits covering logging, grazing, mining and outdoor recreation.

Over the past year, Congress for the first time has used the Congressional Review Act to revoke management plans for regions managed by the Bureau of Land Management, seeking to allow more mining and drilling. Such plans had not previously been considered “rules” subject to lawmakers’ review.

Under the act, federal agencies must submit new regulations to Congress before they can take effect. Because management plans, which function as high-level guidance documents, were never considered rules, federal agencies did not submit them to Congress for review.

Using a new legal theory, Republicans in Congress have opened reviews and revoked several specific plans that limited resource extraction in Alaska, Montana, North Dakota and Wyoming. But those actions call into question whether more than 100 other such plans are legally in effect, since they are now considered rules that were not sent to Congress as the law requires.

Public lands experts say the new interpretation could create legal jeopardy across hundreds of millions of acres managed by the Bureau of Land Management, threatening any permit issued under a management plan drafted after the passage of the Congressional Review Act in 1996.

Now, for the first time, Congress has used the review tool to overturn a management decision on Forest Service land.

“There’s a huge playing field of actions that would be forbidden if none of these management plans are lawfully in place,” Robert Anderson, who served as solicitor for the Department of the Interior during the Biden administration, told Stateline earlier this year. “This could bring things to a screeching halt.”

Longtime outdoors writer Wes Siler, who has written extensively about the Boundary Waters review battle, said in a post Thursday that the vote will “destroy the Forest Service’s ability to conduct regular business for the foreseeable future.” If the agency’s management plans suddenly become invalid, he wrote, “not only could this grind industrial operations on (Forest Service) land to a halt as all of this winds its way through federal court, but it could also set (the Forest Service) the task of re-doing 30 years of work.”

On Thursday, the Senate voted 50-49 to revoke a Biden-era plan that banned mining on land in the Superior National Forest. The resolution will now go to President Donald Trump for his signature.

A Chilean mining company has proposed to mine for copper, nickel and cobalt along Birch Lake in Minnesota. The planned mine would sit at the headwaters of the wilderness area’s watershed. The Boundary Waters is the most popular wilderness in the country, and advocates say the water is so pristine that many visitors fill their bottles straight from the surface of its lakes.

Wilderness proponents say such mines have a long track record of pollution, and leaks from the proposed site would flow downstream and irreversibly contaminate the treasured Boundary Waters.

U.S. Rep. Pete Stauber, the Minnesota Republican who sponsored the review action, has said the mine would bring jobs to the region. Opponents have argued that the tourism economy centered on the Boundary Waters is a larger economic driver, and noted that the mine will be run by a foreign company that will likely export the copper to China.

U.S. Sen. Tina Smith, a Minnesota Democrat, led the effort to uphold the mining ban on the Senate floor. Following the vote, she said that supporters of the Boundary Waters would likely mount a legal challenge, questioning the use of the Congressional Review Act to revoke a public land order from the Forest Service.

“I question the legality of what Congress did,” Smith said, according to the Minnesota Reformer.

Two Republican senators, Susan Collins of Maine and Thom Tillis of North Carolina, also voted against the measure. Tillus also questioned the use of the Congressional Review Act.

“It’s a precedent that I think our Republican colleagues are going to regret,” he told the Minneapolis Star Tribune.

The Forest Service oversees nearly 200 million acres of land, managed for multiple uses, including timber harvests, grazing, outdoor recreation and wildlife habitat. Some legal experts fear the management plans governing those activities are now in legal jeopardy.

“That right there is chaos,” Peter Van Tuyn, a longtime environmental lawyer and managing partner at Bessenyey & Van Tuyn LLC, told Stateline earlier this year.

“Those (plans) go across the full spectrum of what land managers do: conservation and preservation, mining approvals, oil and gas drilling, resource exploitation, public access and recreation,” he added. “There’s a very real chance that a court could say that a resource management plan was never in effect and all the implementation actions under the umbrella of that plan are invalid.”