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Bohmker v. State of Oregon

United States Court of Appeals, Ninth Circuit

September 12, 2018

Joshua Caleb Bohmker; Larry Coon; Walter R. Evens; Galice Mining District; Jason Gill; Michael Hunter; Michael P. Lovett; Joel Grothe; Millennium Diggers; Willamette Valley Miners; Don Van Orman; J.O.G. Mining LLC, Plaintiffs-Appellants,
v.
State of Oregon; Ellen Rosenblum, in her official capacity as the Attorney General of the State of Oregon; Mary Abrams, in her official capacity as the Director of the Oregon Department of State Lands, Defendants-Appellees, Rogue Riverkeeper; Pacific Coast Federation of Fisherman's Associations; Institute for Fisheries Resources; Oregon Coast Alliance; Cascadia Wildlands; Native Fish Society; Center for Biological Diversity, Intervenor-Defendants-Appellees

          Argued and Submitted March 8, 2018 Portland, Oregon

          Appeal from the United States District Court for the District of D.C. No. 1:15-cv-01975-CL Oregon Mark D. Clarke, Magistrate Judge, Presiding

          James L. Buchal (argued), Murphy & Buchal LLP, Portland, Oregon, for Plaintiffs-Appellants.

          Carson Leonard Whitehead (argued), Assistant Attorney General; Benjamin Gutman, Solicitor General; Ellen F. Rosenblum, Attorney General; Oregon Department of Justice, Salem, Oregon; for Defendants-Appellees.

          Peter M.K. Frost (argued), Western Environmental Law Center, Eugene, Oregon; Roger Flynn, Western Mining Action Project, Lyons Colorado; for Intervenor-Defendants-Appellees.

          Julio N. Colomba, Jonathan Wood, and Damien M. Schiff, Pacific Legal Foundation, Sacramento, California, for Amici Curiae Pacific Legal Foundation and Western Mining Alliance.

          Sean Patrick Smith, Mountain States Legal Foundation, Lakewood, Colorado, for Amicus Curiae American Exploration & Mining Association.

          Lane N. McFadden, Attorney; John C. Cruden, Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Kendra Nitta and Roy W. Fuller, Office of the Solicitor, United States Department of the Interior, Washington, D.C.; John Eichhorst, Deputy Regional Attorney, Office of the General Counsel, Pacific Region, United States Department of Agriculture, San Francisco, California; for Amicus Curiae United States of America.

          Marc N. Melnick, Deputy Attorney General; Gavin G. McCabe, Supervising Deputy Attorney General; Joshua A. Klein, Deputy Solicitor General; Robert W. Byrne, Senior Assistant Attorney General; Office of the Attorney General, Oakland, California; Robert W. Ferguson, Attorney General; Office of the Attorney General, Olympia, Washington; for Amici Curiae States of California and Washington.

          Nicholas Stevens Bryner and Sean B. Hecht, UCLA School of Law, Los Angeles, California; Eric Biber, UC Berkeley School of Law, Berkeley, California; for Amici Curiae Western Public Land Law Professors.

          Before: Raymond C. Fisher, N. Randy Smith and Andrew D. Hurwitz, Circuit Judges.

         SUMMARY[*]

         Mining Law / Preemption

         Affirming the district court's summary judgment in favor of defendants, the panel held that mining restrictions set forth in Oregon Senate Bill 3 are not preempted by federal law.

         To protect threatened fish populations, Senate Bill 3 prohibits the use of motorized mining equipment in rivers and streams containing essential salmon habitat. The restrictions apply throughout the state, including on rivers and streams located on federal lands. Plaintiffs have mining claims on federal land in Oregon.

         Assuming without deciding that federal law preempts the extension of state land use plans onto unpatented mining claims on federal land, the panel held that Senate Bill 3 is not preempted because it constitutes an environmental regulation, not a state land use planning law. In addition, Senate Bill 3 does not stand as an obstacle to the accomplishment of the full purposes and objectives of Congress. The panel concluded that reasonable state environmental restrictions such as those found in Senate Bill 3 are consistent with, rather than at odds with, the purposes of federal mining and land use laws. The panel held that Senate Bill 3 therefore is neither field preempted nor conflict preempted.

         Dissenting, Judge N.R. Smith wrote that the National Forest Management Act and the Federal Land Policy and Management Act occupy the field of land use planning regulation on federal lands. He wrote that because the permanent ban on motorized mining in Oregon Senate Bill 3 does not identify the environmental standard to be achieved but instead restricts a particular use of federal land, it must be deemed a land use regulation preempted by federal law.

          OPINION

          FISHER, CIRCUIT JUDGE.

         To protect threatened fish populations, Oregon prohibits the use of motorized mining equipment in rivers and streams containing essential salmon habitat. The restrictions, adopted into law as Senate Bill 3, apply throughout the state, including on rivers and streams located on federal lands. The district court concluded the restrictions are not preempted by federal law, and we agree. Assuming without deciding that federal law preempts the extension of state land use plans onto unpatented mining claims on federal lands, Senate Bill 3 is not preempted, because it constitutes an environmental regulation, not a state land use planning law. Senate Bill 3, moreover, does not stand as an obstacle to the accomplishment of the full purposes and objectives of Congress. As the United States points out in its amicus brief opposing the plaintiffs' preemption challenge, reasonable environmental restrictions such as those found in Senate Bill 3 are consistent with, rather than at odds with, the purposes of federal mining and land use laws. See Cal. Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 588-89 (1987) (rejecting the proposition that federal law preempts the application of reasonable state environmental regulations to the operation of unpatented mining claims on federal lands).

         Background

         The Oregon legislature adopted Senate Bill 838 in 2013. The Bill's legislative findings recognize both the state's rich tradition of small scale prospecting and mining and its environmental interest in protecting water quality and fish habitat. The findings state:

(1) Prospecting, small scale mining and recreational mining are part of the unique heritage of the State of Oregon.
(2) Prospecting, small scale mining and recreational mining provide economic benefits to the State of Oregon and local communities and support tourism, small businesses and recreational opportunities, all of which are economic drivers in Oregon's rural communities.
(3) Exploration of potential mine sites is necessary to discover the minerals that underlie the surface and inherently involves natural resource disturbance.
(4) Mining that uses motorized equipment in the beds and banks of the rivers of Oregon can pose significant risks to Oregon's natural resources, including fish and other wildlife, riparian areas, water quality, the investments of this state in habitat enhancement and areas of cultural significance to Indian tribes.
(5) Between 2007 and 2013, mining that uses motorized equipment in the beds and banks of the rivers of Oregon increased significantly, raising concerns about the cumulative environmental impacts.
(6) The regulatory system related to mining that uses motorized equipment in the beds and banks of the rivers of Oregon should be efficient and structured to best protect environmental values.

2013 Or. Laws ch. 783, § 1.

         Consistent with these findings, the law imposed a five-year moratorium, beginning in 2016, on motorized mining techniques in areas designated as essential fish habit:

A moratorium is imposed until January 2, 2021, on mining that uses any form of motorized equipment for the purpose of extracting gold, silver or any other precious metal from placer deposits of the beds or banks of the waters of this state, as defined in ORS 196.800, or from other placer deposits, that results in the removal or disturbance of streamside vegetation in a manner that may impact water quality. The moratorium applies up to the line of ordinary high water, as defined in ORS 274.005, and 100 yards upland perpendicular to the line of ordinary high water that is located above the lowest extent of the spawning habitat in any river and tributary thereof in this state containing essential indigenous anadromous salmonid habitat, as defined in ORS 196.810, or naturally reproducing populations of bull trout, except in areas that do not support populations of anadromous salmonids or natural reproducing populations of bull trout due to a naturally occurring or lawfully placed physical barrier to fish passage.

Id. § 2(1). "'Essential indigenous anadromous salmonid habitat' means the habitat that is necessary to prevent the depletion of indigenous anadromous salmonid species during their life history stages of spawning and rearing." Or. Rev. Stat. § 196.810(1)(g)(B).

         The plaintiffs filed this action in October 2015, three months before the moratorium was to take effect. The 12 plaintiffs have mining claims on federal lands in Oregon and use a form of motorized mining known as suction dredge mining to search for and extract gold deposits from rivers and streams.[1] The plaintiffs alleged that many of their mining claims were located in "essential indigenous anadromous salmonid habitat" and that the moratorium on motorized mining imposed by Senate Bill 838 would prevent them from mining these claims. They argued that Senate Bill 838 was preempted by federal law because it "interfere[d] with the federal purpose of fostering and encouraging mineral development on federal property, and st[ood] as an obstacle to the accomplishment and execution of the purposes and objectives of Congress." Compl. ¶ 49. The plaintiffs sought an injunction restraining the state from enforcing Senate Bill 838 and a declaration that the Bill was preempted by federal law. Compl. 14.

         The district court granted the state's motion for summary judgment, ruling that, because Senate Bill 838 was a reasonable environmental regulation, it was not preempted. After the court entered judgment in favor of the state, the plaintiffs timely appealed.

         After briefing in this court was completed, the Oregon legislature adopted Senate Bill 3. Senate Bill 3 repealed the moratorium imposed by Senate Bill 838 and imposed a permanent restriction on the use of motorized mining equipment in waters designated as essential indigenous anadromous salmonid habitat. It states:

In order to protect indigenous anadromous salmonids and habitat essential to the recovery and conservation of Pacific lamprey, motorized in-stream placer mining may not be permitted to occur up to the line of ordinary high water in any river in this state containing essential indigenous anadromous salmonid habitat, from the lowest extent of essential indigenous anadromous salmonid habitat to the highest extent of essential indigenous anadromous salmonid habitat.

         2017 Or. Laws ch. 300, § 4(2). Although the restrictions imposed by Senate Bill 3 differ in some respects from those in Senate Bill 838, both laws prohibit motorized mining in rivers and streams designated as essential salmon habitat.[2]The parties therefore agree that the adoption of Senate Bill 3 does not moot this appeal. See Ne. Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 662 & n.3 (1993) (holding that the repeal of a challenged ordinance and its replacement with a different ordinance did not render the plaintiff's claims moot where the ordinance had not been "sufficiently altered so as to present a substantially different controversy from the one the District Court originally decided" and the two ordinances "disadvantage[d] [the plaintiff] in the same fundamental way"). The parties also agree that we should treat this appeal as a challenge to Senate Bill 3. We now proceed to do so.

         Jurisdiction and Standard of Review

         We have jurisdiction under 28 U.S.C. § 1291. Because at least some of the plaintiffs have standing to pursue this appeal, we need not address the standing of additional plaintiffs. See Nat'l Ass'n of Optometrists & Opticians LensCrafters, Inc. v. Brown, 567 F.3d 521, 523 (9th Cir. 2009) ("As a general rule, in an injunctive case this court need not address standing of each plaintiff if it concludes that one plaintiff has standing.").[3] Our review is de novo. See Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 777 (9th Cir. 2014) (en banc) (grant or denial of summary judgment); Ting v. AT&T, 319 F.3d 1126, 1135 (9th Cir. 2003) (federal preemption).

         Discussion

         A. Background Legal Principles

         1. Federal Laws Governing Mining on Federal Lands

         We begin with an overview of the federal laws respecting mining on federal lands. We consider only those laws the parties have identified as relevant to the preemption issues presented in this appeal.

         "Historically, the Federal mining law has been designed to encourage individual prospecting, exploration, and development of the public domain." H.R. Rep. No. 84-730 (1955), as reprinted in 1955 U.S.C.C.A.N. 2474, 2476. "Under these laws, prospectors may go out on the public domain not otherwise withdrawn, locate a mining claim, search out its mineral wealth and, if discovery of mineral is made, can then obtain a patent." Id.

         The Mining Act of 1872, 17 Stat. 91, for example, provides that:

Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, 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.

30 U.S.C. § 22 (emphasis added). Under this Act, prospectors could acquire unpatented mining claims by discovering valuable mineral resources on federal lands, marking the location of their claims and recording their claims in accordance with state law:

Rights to mineral lands, owned by the United States, are initiated by prospecting, that is, searching for minerals thereon, and, upon the discovery of mineral, by locating the lands upon which such discovery has been made, or lands which the prospector believes to be valuable for minerals. A location is made by staking the corners of the claim, posting a notice of location thereon, and complying with the State laws regarding the recording of the location in the county recorder's office, discovery work, etc.

H.R. Rep. No. 84-730, 1955 U.S.C.C.A.N. at 2477.

         Once the prospector staked out a claim, "the locator, without further requirement under Federal law, as of that moment, acquire[d] the immediate right to exclusive possession, control, and use of the land within the corners of his location stakes." Id. at 2478. As the Mining Act explains:

The locators of all mining locations made on any mineral vein, lode, or ledge, situated on the public domain, their heirs and assigns, where no adverse claim existed on the 10th day of May 1872 so long as they comply with the laws of the United States, and with State, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth . . . .

30 U.S.C. § 26 (emphasis added). To protect this right to exclusive possession, a locator annually must perform $100 worth of labor or carry out improvements worth $100 in value. See id. § 28.

         The locator of an unpatented mining claim either "may remove the minerals from the land without first proceeding to patent," H.R. Rep. No. 84-730, 1955 U.S.C.C.A.N. at 2478, or may obtain a patent by, inter alia, filing an application under oath, showing that $500 worth of labor has been expended or improvements made with respect to the claim and making a payment to the proper officer of $5 per acre, see 30 U.S.C. § 29. Although "[a]n 'unpatented' claim is a possessory interest in a particular area solely for the purpose of mining," the owner of a patented claim "gets a fee simple interest from the United States." Clouser v. Espy, 42 F.3d 1522, 1525 n.2 (9th Cir. 1994). The mining claims at issue in this case are unpatented.

         By 1955, Congress had become increasingly aware of "abuses under the general mining laws by those persons who locate[d] mining claims on public lands for purposes other than that of legitimate mining activity." H.R. Rep. No. 84-730, 1955 U.S.C.C.A.N. at 2478. Sham claims, for example, "could be used for selling timber from national forests, or obtaining free residential or agricultural land." United States v. Shumway, 199 F.3d 1093, 1101 (9th Cir. 1999) (citing United States v. Curtis Nev. Mines, Inc., 611 F.2d 1277, 1282 (9th Cir. 1980)). Congress was also concerned that according the holders of unpatented mining claims exclusive surface rights prevented the "efficient management and administration of the surface resources of the public lands." H.R. Rep. No. 84-730, 1955 U.S.C.C.A.N. at 2474. Mining locations made under existing law, for example,

frequently block[ed] access: to water needed in grazing use of the national forests or other public lands; to valuable recreational areas; to agents of the Federal Government desiring to reach adjacent lands for purposes of managing wild-game habitat or improving fishing streams so as to thwart the public harvest and proper management of fish and game resources on the public lands generally, both on the located lands and on adjacent lands.

Id. at 2478-79.

         To address these concerns, Congress adopted the Surface Resources and Multiple Use Act of 1955, Pub. L. No. 84-167, 69 Stat. 367 (1955). This law prohibits the location of any mining claim for purposes other than mining, see 30 U.S.C. § 612(a), and reserves in the United States - rather than granting to locators - the right to manage the surface resources of unpatented mining claims located after 1955, subject to the important proviso that "any 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," id. § 612(b). The law states:

Rights under any mining claim hereafter located under the mining laws of the United States shall be subject, prior to issuance of patent therefor, to the right of the United States to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof (except mineral deposits subject to location under the mining laws of the United States). Any such mining claim shall also be subject, prior to issuance of patent therefor, to the right of the United States, its permittees, and licensees, to use so much of the surface thereof as may be necessary for such purposes or for access to adjacent land: Provided, however, That any 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: Provided further, That if at any time the locator requires more timber for his mining operations than is available to him from the claim after disposition of timber therefrom by the United States, subsequent to the location of the claim, he shall be entitled, free of charge, to be supplied with timber for such requirements from the nearest timber administered by the disposing agency which is ready for harvesting under the rules and regulations of that agency and which is substantially equivalent in kind and quantity to the timber estimated by the disposing agency to have been disposed of from the claim: Provided further, That nothing in this subchapter and sections 601 and 603 of this title shall be construed as affecting or intended to affect or in any way interfere with or modify the laws of the States which lie wholly or in part westward of the ninety-eighth meridian relating to the ownership, control, appropriation, use, and distribution of ground or surface waters within any unpatented mining claim.

Id. § 612(b) (emphasis added). The legislation sought to "encourage mining activity on . . . public lands compatible with utilization, management, and conservation of surface resources such as water, soil, grass, timber, parks, monuments, recreation areas, fish, wildlife, and waterfowl." H.R. Rep. No. 84-730, 1955 U.S.C.C.A.N. at 2475.

         In 1970, Congress adopted the Mining and Minerals Policy Act of 1970, Pub. L. No. 91-631, 84 Stat. 1876 (1970). This law declares it the policy of the United States to foster the development of an "economically sound and stable domestic mining" industry, but subject to "environmental needs," 30 U.S.C. § 21a, making clear that "Congress did not, and does not, intend mining to be pursued at all costs," Rinehart, 377 P.3d at 825. It states:

The Congress declares that it is the continuing policy of the Federal Government in the national interest to foster and encourage private enterprise in (1) the development of economically sound and stable domestic mining, minerals, metal and mineral reclamation industries, (2) the orderly and economic development of domestic mineral resources, reserves, and reclamation of metals and minerals to help assure satisfaction of industrial, security and environmental needs, (3) mining, mineral, and metallurgical research, including the use and recycling of scrap to promote the wise and efficient use of our natural and reclaimable mineral resources, and (4) the study and development of methods for the disposal, control, and reclamation of mineral waste products, and the reclamation of mined land, so as to lessen any adverse impact of mineral extraction and processing upon the physical environment that may result from mining or mineral activities.

30 U.S.C. § 21a (emphasis added).[4]

         2. Federal Laws Governing National Forests

         The Organic Administration Act, 30 Stat. 11, 35-36 (1897), provides that nothing in 16 U.S.C. §§ 473-82 and 551 "shall . . . prohibit any person from entering upon . . . national forests for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof." 16 U.S.C. § 478. It also provides, however, that "[s]uch persons must comply with the rules and regulations covering such national forests." Id. The Organic Act, moreover, requires the Secretary of Agriculture to "make provisions for the protection against destruction by fire and depredations upon the public forests and national forests," and it authorizes the Secretary to "make such rules and regulations" regarding "occupancy and use" as may be necessary "to preserve the forests thereon from destruction." Id. § 551.

         Under this rulemaking authority, the U.S. Forest Service has promulgated rules regulating mining on national forest lands. These regulations require mining operators to comply with applicable federal and state air quality standards, water quality standards and standards for the disposal and treatment of solid wastes. See 36 C.F.R. § 228.8(a)-(c).

         The Multiple-Use and Sustained-Yield Act of 1960, Pub. L. No. 86-517, 74 Stat. 215 (1960), directs the Secretary of Agriculture "to develop and administer the renewable surface resources of the national forests for multiple use and sustained yield." 16 U.S.C. § 529. After declaring it "the policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes," the Act states that "[n]othing herein shall be construed as affecting the jurisdiction or responsibilities of the several States with respect to wildlife and fish on the national forests." Id. § 528. It further states that "[n]othing herein shall be construed so as to affect the use or administration of the mineral resources of national forest lands or to affect the use or administration of Federal lands not within national forests." Id.

         The National Forest Management Act of 1976 (NFMA), Pub. L. No. 94-588, 90 Stat. 2949 (1976), requires the Secretary of Agriculture to "develop . . . land and resource management plans for units of the National Forest System, coordinated with the land and resource management planning processes of State and local governments and other Federal agencies." 16 U.S.C. § 1604(a). In developing such plans, the Secretary shall assure that they "provide for multiple use and sustained yield of the products and services obtained therefrom in accordance with the Multiple-Use Sustained-Yield Act of 1960." Id. § 1604(e)(1).

         In addition, federal lands, including those falling outside national forests, are governed by the Federal Land Policy and Management Act of 1976 (FLPMA), Pub. L. No. 94-579, 90 Stat. 2743 (1976). FLPMA requires the Secretary of the Interior to develop land use plans for public lands, see 43 U.S.C. § 1712(a), and to "manage the public lands under principles of multiple use and sustained yield," id. § 1732(a). FLPMA directs that, "[i]n managing the public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands." Id. § 1732(b). This "unnecessary or undue degradation" mandate applies not only to land use generally but also to the regulation of mining operations in particular. See id. (providing that nothing in FLPMA, other than the provision establishing the "unnecessary or undue degradation" standard, "shall in any way amend the Mining Law of 1872 or impair the rights of any locators or claims under that Act, including, but not limited to, rights of ingress and egress"). FLPMA further provides that "nothing in this Act shall be construed as . . . enlarging or diminishing the responsibility and authority of the States for management of fish and resident wildlife." Id.

         Under FLPMA, the Bureau of Land Management (BLM) has issued regulations requiring mining operators to "comply with applicable Federal and state" air quality standards, water quality standards and standards for the disposal and treatment of solid wastes. 43 C.F.R. § 3809.420(b)(4)-(6). Another BLM regulation requires mining operators to comply with state environmental regulations that do not conflict with federal law: "If State laws or regulations conflict with this subpart regarding operations on public lands, you must follow the requirements of this subpart. However, there is no ...


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