If you go by what the law says on its face – yes, you need either approval from Congress or the Secretary, and probably the Secretary has made clear they are unlikely to agree to use whatever powers they technically have in this area.
If you start coming up with inventive legal arguments – then it comes down to whether you can convince the courts to accept them. Maybe you will, maybe you won't. But obviously this is a much more legally risky strategy.
Although, at least in this case, it is unlikely that anyone will go to prison if the courts don't like their inventive legal argument. Still, it would require state officials to risk being ruled against by federal court, and some of them might not view the political consequences of that as acceptable.
If you go by what the law says on its face – yes, you need either approval from Congress or the Secretary, and probably the Secretary has made clear they are unlikely to agree to use whatever powers they technically have in this area.
If you start coming up with inventive legal arguments – then it comes down to whether you can convince the courts to accept them. Maybe you will, maybe you won't. But obviously this is a much more legally risky strategy.
Although, at least in this case, it is unlikely that anyone will go to prison if the courts don't like their inventive legal argument. Still, it would require state officials to risk being ruled against by federal court, and some of them might not view the political consequences of that as acceptable.