The PolyMet Mine proposal is a microcosm of an even larger and timeless debate on how public lands should be used and valued. This issue is particularly salient with land exchanges – transactions between private companies and government entities that seek to utilize the land for natural resources. The discussion becomes increasingly convoluted when the site of the proposed operation sits in an environmentally and ecologically sensitive area. These situations engender additional layers of debate, frequently pitting environmentalists against mining companies and struggling families in the region. The PolyMet Mine proposal is no exception. What has further contributed to the controversy surrounding the land exchange was a federal bill seeking to streamline the exchange that would, if successful, essentially prohibit environmental groups from challenging the land exchange in court. Thus, the bill targeted a significant part of the process of determining the viability of large-scale mining proposals. The bill has since failed to pass but, nonetheless, it should prompt an important discussion on checks and balances and the role of the judiciary in the administrative permitting process.

The following article does not purport to affirmatively resolve the complex issues surrounding the PolyMet mine or land transfer. The mine exposes a myriad of environmental and legal issues—some very familiar to mining communities and those privy to environmental regulation and some that present novel legal and economic questions. This discussion focuses on the land exchange between the United States Forest Services and PolyMet. The following analysis discusses the legal standards by which courts, legislatures, and agencies determine the legality and viability of land exchanges and, in particular, whether these standards were upheld with the PolyMet land exchange.

From a legal perspective, the exchange likely is not in the public interest, and there is evidence that the lead state and federal agencies did not take the requisite “hard look” as required by NEPA. Using Ninth Circuit decisions for guidance, the lead agencies appear to have conducted a mere cursory investigation into the environmental risks and erred in the valuation of the land, which is at the crux of land transfers. As a normative discussion, the following also evaluates the various standards for determining valuation. Ultimately, it is evident there is need for a clearer rule. This will reduce the risk of arbitrary or politically charged valuations and should, theoretically, benefit both the public and the organizations seeking the transfers by providing guidance and predictability for land transfers.

The following discussion will also explore the legality and public policy implications of a recent federal bill that, ostensibly, would bar environmental groups from challenging land transfers and which would, indisputably, expedite the finalization of the mine. The bill ultimately did not pass, but the implications of such attempted legislation are important to discuss for future projects and bills or if this bill is reintroduced for the PolyMet Mine. If successful, the bill would have eviscerated a fundamental constitutional check on the land exchange’s administrative process by cutting judicial challenges out of the equation. Opponents of the bill argued that it was a mere political move to stifle challenges to land exchanges and expedite the administrative permitting process. Considering the scope of the mine and land exchange, the deeply political underpinnings, and how it has the potential to impact the livelihoods of many—for better or for worse—such motivations are not beyond the realm of possibility.