Governor Walz is Trying to Block Mining in the Boundary Waters. Will it Work?

Earlier this week, Minnesota Governor Tim Walz issued an executive order to enhance the protection of the Boundary Waters. The order is particularly concerned with mining leases and permitting in the Rainy River Headwaters Watershed, where a potential copper sulfide mine has long raised alarms among the conservation community because of potential downstream impacts on the otherwise pristine Boundary Waters.

Walz’s executive is the latest in a years-long back and forth over the mining project. In January 2023, the Department of the Interior under the Biden-Harris administration issued a 20-year mineral withdrawal in the area that blocked it. This spring, however, the Congress made an unprecedented use of the Congressional Review Act (CRA) to repeal the mineral withdrawal in a narrow, partisan vote. The move was widely seen as a step toward reinstating leases for a mine that had previously been proposed by Twin Metals, a subsidiary Chilean mining conglomerate Antofagasta.

Now, Walz’s executive order stands to delay and potentially interminably block this mine and any other potential new operations in the Rainy River Headwaters Watershed (RRHW) by directing the Minnesota Department of Natural Resources to not undertake any environmental review or permitting work associated with proposals for nonferrous mineral mining pending the resolution of an ongoing lawsuit, cooperate with a federal agency on the environmental review of a nonferrous mining project, or offer new state mineral or surface leases.

It also orders the “review of existing state nonferrous mineral leases located within the RRHW and strictly enforces compliance with the terms of those leases” and prohibits the Minnesota Pollution Control Agency from environmental permitting and review work in the area.

Additionally, the executive order directs the Minnesota DNR to draft legislation permanently “prohibiting nonferrous mining in the RRHW for consideration as part of the agency’s budget and policy development process.”

“I’m using my executive authority to put an end to the Trump administration’s relentless attacks on the sanctity of the Boundary Waters,” said Walz. “The Boundary Waters represent a treasure we share—not just with each other, but with future generations of Minnesotans who will come here to be at peace with nature.”

Conservation advocates are celebrating the move. “This is a monumental step forward at the state level,” says Lukas Leaf, executive director at Sportsmen for the Boundary Waters. “It’s something we’ve been working towards for a long time.”

While Governor Walz’s executive order is an important step toward conserving the Boundary Waters, it is not a definitive result. For one, the executive order could easily be rescinded or contradicted by the state’s next governor; Walz is considered a “lame duck” as he is not running for reelection.

According to MPR News, Republican candidate Lisa Demuth panned Walz’s order, calling it part of Democrats’ continued “hostility toward Minnesota mining, taking job growth opportunities off the table before they can even go through the regulatory review process.”

On the Democratic side, gubernatorial candidate Amy Klobuchar said that she had not yet had time to review the order and that though she had significant concerns about mining in the headwaters of the Boundary Waters, “there is other mining going on across the Range, including Mesabi Metallics iron ore mine about to open up, and some other proposed mining projects that don’t endanger the Boundary Waters, that I think it is important to continue to allow pending environmental reviews to go forward.”

Leaf says it’s important to consider the candidates’ stances on the issue come November, and he also plans to work with other advocates to lobby for the passage of the legislation that the Minnesota DNR is directed to draft as part of Walz’s order.

As for the legal durability of the order, there are likely a couple of factors at play, according to Mark Squillace, Professor of Law at the University of Colorado Law School. Squillace says a Supreme Court case known as California Coastal Commission vs. Granite Rock established that states have the right to regulate mining activities on federal land as long as they are not interfering or overturning federal law.

As previous leases for the mine were revoked and have not yet been reissued, it’s not clear exactly on what types of land that any revived mining operation plan would be on, though the last mine plan involved a mix of 36% federal land, 3% private, and 61% state land. According to Squillace, the state of Minnesota has greater authority on state and private land than federal, but it could still hinder the development of a mine on federal public lands within the state.

“[The order] makes clear that the state has authority to regulate mining operations in significant ways,” he says. “And those regulations could be onerous…they can’t block [a mine on federal land] entirely, but they can impose significant regulations that could be enough to force a mining company to decide it’s not worth it.”

Another potential wrench in the issue is the as-yet unresolved question of the legality of using the CRA to revoke a mining withdrawal; the CRA gives Congress the opportunity to review “rules” that federal agencies issue, but this is the first time a mineral withdrawal has been considered such and been revoked under the law. Squillace says that this may lead to a legal challenge on this front, though no conservation groups have yet filed litigation. If successful, such litigation would have the potential to make Walz’s recent order a moot point when it comes to the Twin Metals Mine.

As for Leaf, he considers Walz’s executive order a win—but one that requires further effort. “Our next steps are to fight against the federal mineral leases being reissued to Twin Metals and to work hard to get the state legislature to pass permanent protection that the DNR will now draft,” he says. “Minnesota knows the value of our precious wild places, and we’re going to keep fighting tooth and nail to keep them that way.”