#housejointresolution140 — Public Fediverse posts

What Happens to the Appeal in Twin Metals v. US if the Senate Passes HJR 140?

Forbes Magazine has excerpted and posted the same moment from the Rules Committee hearing on House Joint Resolution 140 that I did the other day: Pete Stauber’s embarrassing concession that he brings HJR 140 on behalf of a Chilean conglomerate, a foreign company that will ship Minnesota’s ore to China for processing. This was just minutes after the congressman gravely warned that “China, our adversary,” has a “stranglehold” over critical and rare earth minerals.

A publication like Forbes has a lot more reach than I could ever hope to have, so it’s too bad they didn’t offer a little context and commentary to help people understand some of what’s at stake in this exchange, the anti-scientific posture Stauber’s resolution takes, and the abuse of legislative process it represents. I don’t believe that’s well or widely understood.

(I also think there could be a lot more reporting on the various ways that the play for the mineral resources of the Duluth Complex intersect with what’s happening in Minneapolis right now, but that’s a another story, one I started to grapple with here.)

The House passed HJR 140 on Wednesday. Should the resolution of disapproval pass in the Senate, HJR 140 will improve Twin Metals’ North American prospects. By how much is hard to say. This resolution does not permit the mine. As Stauber reminded everyone at the hearing, Antofagasta will still have to take its Twin Metals project through the normal channels of review. (In the hearing, Democrats rightly balked at this suggestion, noting that those channels and the agencies that run them are now captured or seriously compromised.) Advocacy groups, too, have tried to assure supporters that this doesn’t mean that Twin Metals can start building its mine on the edge of the Boundary Waters. It doesn’t. But the legislation will knock down some formidable barriers, most immediately at the DC Circuit Court of Appeals.

A little refresher. In September of 2023, Judge Christoper Cooper dismissed Twin Metals v. US on two grounds: the mining company had come to the wrong court, and it had no claim. HJR 140 could solve one of these issues for Antofagasta — the lack of a claim — and it might just render the case moot.

It seemed pretty clear that the mining company was going to lose its appeal of Cooper’s decision. They tried to delay oral argument, to no avail. Argument at the DC Circuit was held in January of 2025, and the outlook did not change. But what the mining company could not accomplish at law they could now accomplish by other means. Trump was inaugurated just one week after oral argument. Then the federal government did an about-face, took the mining company’s side in the dispute, and won a motion for abeyance. That put the case on hold until October. In October, the Chilean conglomerate and the US government went back to the court and asked for more time. Now the whole matter is on hold until April of this year.

So Stauber’s resolution comes at an incredibly opportune moment, just months before the mining company has to go back to court. How its passage will play into Twin Metals v. US is clear. In the 2023 case that is now on appeal, Judge Cooper ruled that the Bureau of Land Management’s decision to deny Antofagasta’s Preference Right Lease Applications and to reject its Mine Plan of Operations was lawful because the Biden administration had withdrawn the lands in question. If the Senate now joins the House to disapprove the Public Land Order authorizing the 20-year mineral withdrawal, voila: the agencies’ hands are now untied. The Bureau of Land Management will have new legal basis, or at least legal cover, for reviewing and approving the Lease Applications and the Mine Plan of Operations.

This is not just serendipity. It looks like a fairly well-coordinated scheme, one that I suspect was put together by the Bernhardt Group, but I don’t have the records to make that case persuasively. Watch for Antofagasta’s motion to dismiss their appeal at the DC Circuit once the agencies start to deliver.

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