No. 16-35262 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOSHUA CALEB BOHMKER et al., Plaintiffs-Appellants, v. STATE OF OREGON et al., Defendants-Appellees, ROGUE RIVERKEEPER et al., Intervenors-Appellees. On Appeal from the United States District Court for the District of Oregon No. 1:15-cv-01975-CL Hon. Mark D. Clarke, Magistrate Judge BRIEF OF THE STATES OF CALIFORNIA AND WASHINGTON AS AMICI CURIAE IN SUPPORT OF DEFENDANTS-APPELLEES AND AFFIRMANCE ROBERT W. FERGUSON Attorney General of Washington 1125 Washington Street SE P.O. Box 40100 Olympia, WA 98504-0100 Telephone: (360) 753-6200 KAMALA D. HARRIS Attorney General of California ROBERT W. BYRNE Senior Assistant Attorney General JOSHUA A. KLEIN Deputy Solicitor General GAVIN G. MCCABE Supervising Deputy Attorney General MARC N. MELNICK (SBN 168187) Deputy Attorney General P.O. Box 70550 Oakland, CA 94612-0550 Telephone: (510) 879-0750 Fax: (510) 622-2270 Email: [email protected]Case: 16-35262, 10/21/2016, ID: 10169409, DktEntry: 38, Page 1 of 44
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No. 16-35262
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JOSHUA CALEB BOHMKER et al.,
Plaintiffs-Appellants,
v.
STATE OF OREGON et al.,
Defendants-Appellees,
ROGUE RIVERKEEPER et al.,
Intervenors-Appellees.
On Appeal from the United States District Court for the District of Oregon No. 1:15-cv-01975-CL
Hon. Mark D. Clarke, Magistrate Judge
BRIEF OF THE STATES OF CALIFORNIA AND WASHINGTON AS AMICI CURIAE IN SUPPORT OF
DEFENDANTS-APPELLEES AND AFFIRMANCE ROBERT W. FERGUSON Attorney General of Washington 1125 Washington Street SE P.O. Box 40100 Olympia, WA 98504-0100 Telephone: (360) 753-6200
KAMALA D. HARRIS Attorney General of California ROBERT W. BYRNE Senior Assistant Attorney General JOSHUA A. KLEIN Deputy Solicitor General GAVIN G. MCCABE Supervising Deputy Attorney General MARC N. MELNICK (SBN 168187) Deputy Attorney General P.O. Box 70550 Oakland, CA 94612-0550 Telephone: (510) 879-0750 Fax: (510) 622-2270 Email: [email protected]
Interest and Authority .................................................................................... 1 Summary of Argument .................................................................................. 2 Argument ....................................................................................................... 4
I. Congress’s Purposes and Objectives in Enacting the Mining Act of 1872 Do Not Require Displacement of Oregon’s Law ............................................................................ 4 A. The Federal Statute’s Fundamental Concern—
Settling Property Rights—Is Unaffected by Oregon’s Law ................................................................. 4
B. A Presumption Against Preemption Applies Even When Construing Congress’s Intent as to Statutes Enacted Under the Property Clause ................................ 9
C. Substantial Weight Should Be Given to Federal Agencies’ Determination that Statutes Like Oregon’s Pose No Risk to Federal Goals ..................... 13
D. A “Commercial Impracticability” Test Would Be Unworkable and Would Call Into Doubt State Regulations that Courts Have Approved ...................... 19
II. Bohmker’s Cases and Other Federal Statutes Do Not Support Preemption Here ........................................................ 23 A. Bohmker Relies on Superseded and Inapposite
Precedents ..................................................................... 23 B. The Surface Mining and Reclamation Act, Federal
Land Policy and Management Act, and 30 U.S.C. § 612(b) Do Not Support Bohmker’s Preemption Claim ............................................................................. 26
III. California’s Experience Shows that Oregon’s Moratorium Is a Reasonable Response to the Significant Environmental Risks Posed by Suction Dredge Mining ........ 30
O’Donnell v. Glenn 19 P. 302 (Mont. 1888) ...................................................................... 30
Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n 461 U.S. 190 (1983)............................................................................. 8
Pacific Merchant Shipping Association v. Goldstene 639 F.3d 1154 (9th Cir. 2011) ........................................................... 12
People v. Gold Run Ditch & Mining Co. 66 Cal. 138 (1884) ............................................................................. 21
People v. Rinehart 377 P.3d 818 (Cal. 2016) ............................................................ passim
Rodriguez v. United States 480 U.S. 522 (1987)............................................................................. 8
Seven Up Pete Venture v. Montana 114 P.3d 1009 (Mont. 2005) .............................................................. 15
Skaw v. United States 740 F.2d 932 (Fed. Cir. 1984) ........................................................... 26
South Dakota Mining Association, Inc. v. Lawrence County 155 F.3d 1005 (8th Cir. 1998) ............................................... 23, 24, 25
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg. Planning Agency 535 U.S. 302 (2002)........................................................................... 24
United States v. Backlund 689 F.3d 986 (9th Cir. 2012) ............................................................. 28
United States v. Cal. State Water Res. Control Bd. 694 F.2d 1171 (9th Cir. 1982) ........................................................... 10
United States v. Locke 529 U.S. 89 (2000)............................................................................. 11
United States v. Shumway 199 F.3d 1093 (9th Cir. 1999) ........................................................... 29
Ventura County v. Gulf Oil Corp. 601 F.2d 1080 (9th Cir. 1979) ..................................................... 25, 26
An Act of March 1, 1893, ch. 183, 27 Stat. 507 ..................................... 22
FEDERAL REGULATIONS
Code of Federal Regulations, title 36 § 228.5(b) ........................................................................................... 18 § 228.8 ............................................................................................... 18
Code of Federal Regulations, title 43 § 3715.5(b) ......................................................................................... 18 § 3802.3-2(a)-(c) ................................................................................ 18 § 3809.3 ............................................................................................. 14
CALIFORNIA STATUTES
Cal. Fish and Game Code § 5653 ................................................................................................ 32 § 5653.1 ............................................................................................. 32
1893 Cal. Stat., ch. 223, § 1, at p. 337 .................................................... 12
Federal Rules of Appellate Procedure Rule 29(a) ............................................................................................ 1
OTHER AUTHORITIES
Brief of United States as Amicus Curiae, People v. Rinehart, 2015 WL 5166997 ...................................................................................... 15
Clarification as to When a Notice of Intent To Operate and/or Plan of Operation Is Needed for Locatable Mineral Operations on National Forest System Lands, 70 Fed. Reg. 32713 (June 6, 2005) ................ 14
George C. Coggins & Robert L. Glicksman, Public Natural Resources Law (2d ed. 2007 & 2016 Supp.) ................................................ 26, 28
Great Basin Mine Watch, 146 IBLA 248 (1998) ................................... 18
House Report No. 84-730 (1955) ........................................................... 29
House Report No. 84-1096 (1955) ........................................................ 29
Mining Claims Under the General Mining Laws; Surface Management, 64 Fed. Reg. 6422 (Feb. 9, 1999) ............................... 14
Mining Claims Under the General Mining Laws; Surface Management, 65 Fed. Reg. 69998 (Nov. 21, 2000) .............. 13, 14, 15
the miner may acquire “not only possession, but formal title—a patented
claim.” 377 P.3d at 824; see 30 U.S.C. §§ 29, 37.
As Rinehart observed, the statute’s text focuses on “the delineation of
the real property interests of miners vis-à-vis each other and the federal
government.” 377 P.3d at 824.
The provisions of the 1872 law identify in detail the conditions for obtaining, and extent of, a right of occupancy (30 U.S.C. §§ 26-27), the conditions for obtaining complete title (id., §§ 29, 37), the size of claims (id., §§ 23, 35), the marking and recordation of claims (id., §§ 28, 34), how disputes between claimants are to be resolved (id., § 30), and so on.
Id. In short, “the act as a whole is devoted entirely to the allocation of real
property interests among those who would exploit the mineral wealth of the
nation’s lands, not regulation of the process of exploitation—the mining—
itself.” Id.
Far from displacing state law, the Mining Act envisions considerable
local control over mining activities. See 30 U.S.C. § 43 (approving state-law
regulation of mining claim sales); id. § 22 (mineral exploration on federal
land shall occur “under regulations prescribed by law, and according to the
local customs or rules of miners in the several mining districts, so far as the
same are applicable and not inconsistent with the laws of the United
States”); id. § 28 (allowing miners to adopt local rules, not in conflict with
the argument that Congress’s long regulation of securities markets rendered
the presumption against preemption inapplicable in a suit testing whether the
1 Nor was there any ambiguity for a presumption to resolve in Don’t Tear it Down, where the federal statute prohibited the District of Columbia from “‘modify[ing], or depart[ing]’” from the federal entity’s congressionally mandated development plan. 642 F.2d at 533.
v. Granite Rock Co., 480 U.S. 572 (1987)). It reflects BLM’s consistent
view over several decades. See id. (quoting preamble to 1980 regulations).2
BLM made special note of a Montana statute. 65 Fed. Reg. at 70009.
That statute banned one method of mining—cyanide leaching-based
2 The U.S. Forest Service has similarly stated that “[i]t is entirely
possible that both the Forest Service and a State can permissibly regulate suction dredge mining operations for locatable minerals occurring on [Forest Service] lands,” and that “[s]tate regulation … is pre-empted when it conflicts with Federal law.” Clarification as to When a Notice of Intent To Operate and/or Plan of Operation Is Needed for Locatable Mineral Operations on National Forest System Lands, 70 Fed. Reg. 32713, 32722 (June 6, 2005).
solid waste standards, as well as with general state environmental protection
laws. See id. at 583-584 (citing 36 C.F.R. §§ 228.5(b), 228.8).3
The Court rejected the dissent’s position that federal law could not
permit a regime whereby “state regulators, whose views on environmental
and mineral policy may conflict with the views of the Forest Service, have
the power, with respect to federal lands, to forbid activity expressly
authorized by the Forest Service.” Compare 480 U.S. at 606 (Powell, J.,
concurring and dissenting), with id. at 594 (majority opinion). And it
rejected the argument that preemption was required because the state
regulations were invalidly “duplicative” of federal requirements. Id. at 593-
594.
The text and history of the Mining Act have not changed since Granite
Rock, and federal agency regulations continue to “assume that those
submitting plans of operations [to mine on federal land] will comply with
3 See also 43 C.F.R. §§ 3715.5(b) (requiring miners to comply with
“all applicable … state environmental standards”); id. § 3802.3-2(a)-(c) (requiring compliance with state air, water quality, and solid waste disposal standards); Great Basin Mine Watch, 146 IBLA 248, 256 (1998) (in determining whether a federal mining claim is “valuable” and therefore valid, “the costs of compliance with all applicable Federal and State laws (including environmental laws) are properly considered”; “[u]nder no circumstances can compliance be waived merely because failing to do so would make mining of the claim unprofitable”).
value to nil.” 1 George C. Coggins & Robert L. Glicksman, Public Natural
Resources Law § 5:28 (2d ed. 2007 & 2016 Supp.).5
B. The Surface Mining and Reclamation Act, Federal Land Policy and Management Act, and 30 U.S.C. § 612(b) Do Not Support Bohmker’s Preemption Claim
Bohmker’s arguments for preemption under other federal statutes are
equally erroneous.
1. The Surface Mining Control and Reclamation Act expressly
preserves state law, providing that “[n]o state law or regulation … shall be
superseded by any provision of this chapter or any regulation issued
pursuant thereto, except insofar as such State law or regulation is
inconsistent with the provisions of this chapter.” 30 U.S.C. § 1255(a).
Bohmker maintains that Oregon’s statute is preempted nevertheless because
it is inconsistent with 30 U.S.C. § 1281, which allows States to petition the
Secretary of the Interior to completely withdraw federal lands from mining.
5 Skaw v. United States, 740 F.2d 932, 940 (Fed. Cir. 1984), and
Brubaker v. Board of County Commissioners, 652 P.2d 1050, 1056-1059 (Colo. 1982), likewise relied on Ventura County’s now-discredited theory and are no longer good law. See 1 Coggins & Glicksman, supra, § 5:28 (“Because it preceded Granite Rock, and for other reasons, Skaw probably has little value as precedent.” (footnote omitted)). Elliott v. Oregon International Mining Co., 654 P.2d 663 (Or. Ct. App. 1982), and Brubaker are also distinguishable because they involved local zoning ordinances, not statewide environmental laws focused on mining equipment and methods.
Opening Brief 34. But nothing in section 1281 indicates that such petitions
are the exclusive means for States to protect federal lands within their
jurisdiction. There is good reason why a complete withdrawal of federal
land from all mining requires a process that is not required for regulation of
a single mining method.
2. Bohmker also seeks support from the Federal Land Policy and
Management Act (FLPMA). In Granite Rock, “[f]or purposes of [its]
discussion and without deciding [the] issue,” the Court “assume[d] that the
combination of [the FLPMA and the National Forest Management Act] pre-
empts the extension of state land use plans onto unpatented mining claims in
national forest lands.” 480 U.S. at 585. The assumption made no difference
in Granite Rock, because the Court concluded that the state laws at issue
were environmental laws rather than land use laws and hence would not be
preempted regardless of the assumption’s validity. Id. at 586-587. Neither
Granite Rock nor any other decision holds that the FLPMA, alone or with
other federal statutes, in fact preempts state laws—and any such conclusion
would conflict with Granite Rock’s underlying premises.6 That is perhaps
6 Under Granite Rock, “‘the State is free to enforce its criminal and
civil laws’ on federal lands so long as those laws do not conflict with federal law.” Granite Rock, 480 U.S. at 580. Thus, there is no preemption unless a
not surprising since the FLPMA requires that federal agencies “coordinate
the land use inventory, planning, and management activities of … [public]
lands” with states and local governments, and that federal land use plans
“shall be consistent with State and local plans to the maximum extent …
consistent with Federal law and purposes of this Act.” 43 U.S.C.
§ 1712(c)(9). In any event, the Oregon statute at issue here is an
environmental law, not a land use law. See Rogue Riverkeeper Brief 22-25.
3. Bohmker argues that his claim is supported by two Multiple Use Act
of 1955 provisions in 30 U.S.C. § 612(b). Opening Brief 29-32.
The first states that “use of the surface of any such mining claim by the
United States, its permittees or licensees, shall be such as not to endanger or
materially interfere with prospecting, mining or processing operations or
uses reasonably incident thereto.” § 612(b) (emphasis added). But that
provision says nothing about state law, and the cases applying section 612
do so to scrutinize federal action. See United States v. Backlund, 689 F.3d
(…continued) federal land use plan directly conflicts with a state land use plan. This has led one treatise to question whether the FLPMA would ever in fact preempt state land use plans, given that, in the FLPMA, “Congress apparently sought accommodation with, not preemption of, state law.” 1 Coggins & Glicksman, supra, § 5:28.
986 (9th Cir. 2012); United States v. Shumway, 199 F.3d 1093 (9th Cir.
1999). Congress enacted section 612 out of concern about people who used
spurious mining claims to gain control of land and profit from non-mining
surface uses such as logging. See H.R. Rep. No. 84-730, at 6 (1955). The
statute provides a means to settle rights between miners on the one hand, and
federal agencies and contractors on the other. 30 U.S.C. § 613.7
Bohmker also relies on section 612(b)’s proviso that “nothing in this
subchapter … shall be construed as affecting … [state] laws … relating to
the ownership, control, appropriation, use, and distribution of ground or
surface waters.” See Opening Brief 31. This language, which preserves
state priority of water rights between various water users, prevents the
federal government from taking control of water that states had allocated to
miners, whether or not that water was necessary to the mining operation.
See H.R. Rep. No. 84-1096, at 3 (1955) (Conf. Rep.). Bohmker’s argument
that this implies an intent to allow only state water law to survive on federal
mining claims is unpersuasive, given the presumption against preemption
7 Congress often limits federal agencies, while leaving States free to
make their own choices. See, e.g., Center for Competitive Politics v. Harris (9th Cir. 2015) 784 F.3d 1307, 1318-1319 (statute prohibiting federal agency from disclosing tax returns to state governments does not preempt State from requiring the taxpayer to disclose the return to the State directly).
and 30 U.S.C. § 22’s requirement that miners comply with “regulations
prescribed by law.”8 Moreover, Bohmker’s argument would effectively bar
States from all non-water regulation, whereas Granite Rock, which
considered section 612(b), see 480 U.S. at 582, held that States properly
have a regulatory role.
III. CALIFORNIA’S EXPERIENCE SHOWS THAT OREGON’S MORATORIUM IS A REASONABLE RESPONSE TO THE SIGNIFICANT ENVIRONMENTAL RISKS POSED BY SUCTION DREDGE MINING
Bohmker maintains that Oregon’s moratorium responds to a non-
existent problem (Opening Brief 42-43), notwithstanding this Court’s
observation that suction dredge mining may affect endangered salmon
species in critical habitat, Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d
1006, 1028-1029 (9th Cir. 2012) (en banc). In fact, Oregon’s statute reflects
a scientific consensus about the serious environmental risks posed by suction
dredge mining and the need for adequate regulation.
The California Department of Fish and Wildlife, which has regulated
suction dredge mining since 1961, recently spent several years and millions
8 See O’Donnell v. Glenn, 19 P. 302, 306 (Mont. 1888) (“[t]he
expression, ‘under regulations prescribed by law,’” in Rev. Stat. 23l9, which is now codified at 30 U. S .C. § 22, “is ample enough to embrace, not only the laws of [C]ongress, but also those of the territory”).
review of the issue. Oregon’s statute is the kind of “higher level of
environmental protection” that, as BLM concluded, Congress intended not to
preempt under federal law. See pp. 13-15, supra.
CONCLUSION
The district court’s decision should be affirmed.
Dated: October 21, 2016 ROBERT W. FERGUSON Attorney General of Washington
Respectfully Submitted, KAMALA D. HARRIS Attorney General of California ROBERT W. BYRNE Senior Assistant Attorney General JOSHUA A. KLEIN Deputy Solicitor General GAVIN G. MCCABE Supervising Deputy Attorney General /s/ Marc N. Melnick MARC N. MELNICK Deputy Attorney General
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Dated: October 21, 2016
KAMALA D. HARRIS Attorney General of California /s/ Marc N. Melnick MARC N. MELNICK Deputy Attorney General Attorneys for Amicus Curiae State of California