PEOPLE v. RINEHART

Appellant’s Answer Brief on the Merits

Cal.April 22, 2015

No. 8222620 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA Plaintiff and Respondent, V. BRANDON LANCERINEHART, APR 92 2018 Defendant and Appellant. Third Appellate District, Case No. C074662 Plumas County Superior Court, Case No. M1200659 Honorable Ira Kaufman,Judge _ ANSWERINGBRIEF ON THE MERITS James L. Buchal, SBN 258128 Murphy & Buchal LLP 3425 SE Yamhill Street, Suite 100 Portland, OR 97214 Tel: 503-227-1011 Fax: 503-573-1939 April 21, 2015 Attorneyfor Defendant and Appellant TABLE OF CONTENTS COUNTERSTATEMENTOF THE ISSUE FOR REVIEW........cccsseseseess 1 INTRODUCTION.......ccccccscessceseseceseeeseessessssceecsseesnsesseeseseaeeaeeneeesseeseeereseeees 1 BACKGROUND.......cccccsssssessesecseneesecoeseeeeesosesecssesassssseeseseesescesseseeesaessesreeeas 3 A. The Purposes and Objectives of Congress in the Federal Mining Law.........eeceseessesessssessecnssccsneresesesseesensessessesessesseeennes 3 B. California’s Regulation of Suction Dredge Mining................. 5 C. Rinehart’s Case .......ceeeesecscescessesecsnesssessescseeeseessesaseseeseesseeeaes 10 D. The Court ofAppeals Opinion... ceccceeesessereeteseeeeeeeeees 15 ATQUMENL......cceeeeeeeseeseesssecseseeerensesseeeeassesessenessessesesessesnesneessessenesneseesateateas 17 I, OVERVIEW OF THE LAW OF FEDERAL PREEMPTION: WHY THE PEOPLE’S IMAGINATIVE RE-INTERPRETATION OF THAT LAW SHOULD BE REJECTED........ccececesseseteeeeneenseneenaes 17 Il. CALIFORNIA’S REFUSAL TO ISSUE MANDATORY SUCTION DREDGING PERMITS STANDSAS AN OBSTACLE TO THE ACCOMPLISHMENT AND EXECUTION OF THE FULL PURPOSES AND OBJECTIVES OF CONGRESSIN THE FEDERAL MINING LAWS.0.0... ececsesesreesresseeeneesnnecneesersensneeeeenees22 A. The Court of Appeals Correctly Followed Overwhelming and Persuasive Precedent..........cccsscessesssssesseeessesesseeseestssesneesseres22 Restrictions Frustrating the Purpose of Federal Law Are Preempted Whether Characterized as Environmental or Land Use Regulations: It is the Effect of the Challenged Restriction that Matters. .......cccesssscssesesssessersssesssssseseseneenes24 The 1872 Mining Law Contains Specific Purposes Frustrated by § 5653.1. oo eescecesssssessscsseeerseeseeeesaseneeseeensetes27 Section 5653.1 Also Frustrates the Objectives of the 1955 Multiple Use Act...eee sessssssescssseseessesseeceseesessnsssessesenesnees32 l. The right to managefor other“surface resources”is Limited .0.... ccc eeescecesscssecceneeeessaceereseeeesseseseesesesosseeneseenes 33 2. Congress provided an express andlimited role for State LAW .......cccssccesssssesscesseccesneeseaeeeseeesesesserseessuessnesoes 35 E. The People’s Imaginative Re-interpretation of the 1872 Mining Act Must Be Rejected. 0.0... ce ceeceseseetesenseeeeeteeeaes36 F, Early Law Concerning Debris Disposal Does Not Support a General Refusal to Issue Permits. ..........cecssecseeseseeeesrseeeees39 G. Federal Agency Determinations Are Not Useful Here..........43 1. The regulations cited by the People prove nothing.....44 2. Granite Rock Does Not Support the People’s POSITION 0... cesceceeseesseeeesneereeeseeeeeeeeessneessseeesatenseenatennees47 H. Mischaracterizing § 5653.1 as a “Temporary Moratorium” Does Not Prevent a Finding of Preemption ...........cee49 II. THIS COURT SHOULD REVERSE RINEHART’S CONVICTION, OR, IN THE ALTERNATIVE, AFFIRM THE COURT OF APPEALS. ...ccccsssssesssecsscesecsnccecesnesecesesenersaseesnesssessssesssessateeeesasennees 51 A. This Court Can and Should Determinethat § 5653.1 Frustrates Federal Objectives as a Matter ofLaw ................. 52 B. If this Court Regards Factual Questions Concerning Suction Dredge Mining as Relevant, It Should Affirm the Court of Appeals Remand Order........cccscseessecsestessseeessssseeeseeesnreeneees 55 COnclusiOn......cccccccsccssssscsseesesecceseeesseceeceeusesnecesessasaseseseseseseessneceseneeesnseeeenes 58 -ii- TABLE OF AUTHORITIES ALCOA v. BPA, 903 F.2d 585, 598 (9th Cir. 1989), cert. denied, 498 U.S. 1024 (1991)cececcssscssssstenseesssesesensesseeeessessestnenes45 Arizona v. United States, 132 S. Ct. 2492 (2012)... .ccccccsscsessesseeseesneseesssessecessessssesseessseeessseaeesesseeegs 20 Barnett Bank, N.A. v. Nelson, 517 U.S. 25 (1996)... cccecsccsesecssseeresseeseceeeeseesserseceessessersssssessseaseseneeesenes 30, 56 Bronco WineCo.v. Jolly, 33 Cal.4th 943 (2004)occcecccssessseseeeeecsesesesesssecsassscsscseassesseessessesssseeseenes 42 Brown v. Mortensen, 51 Cal. 4th 1052 (2011) neeeeseeseseeeeresssesseeccseeersereceseeesesssesesnseeseeens 18 Brubaker v. Board ofCounty Commissioners, 652 P.2d 1050 (Colo. 1982)... eessecesssessesssssseeaseeesestesseeseeses 22, 28, 29, 54 Butte City Water Co. v. Baker, 196 U.S. 119 (1905)ec csccecsecesecseseeeessssasensensssseessseeseeseeeseesesenseseeeneens 38, 39 California Coastal Comm’n v. Granite Rock Co., A480 U.S. 572 (1980)... ceeesceceerecsseereeeecesescaseseesssasesssscssecssessesssenrensess PASSIM Chapman v. California, 386 U.S. 18 (1967)... .ccccscssssscsscssceccsessseseseeeesescsessesevssessssassseresassseseeneerensensees 58 City ofBurbank v. Lockheed Air Terminal, Inc., A11 US. 624 (1973) ..cccsccccseeseescescessesessevseessessesssvseesscesseeeesesaeeeeesnesateneenees 19 Commonwealth Edison Co. v. Montana, 453 U.S. 609 (1981)... cecccscestecseesseseeseeceneesescnseesaseesusessseseeeeseseeeeneeseees 20, 32 County ofSutter v. Nicols, 152 Cal. 688 (1908) ......cccscecscecseesseeeeesesecessssssseessteceseeeessenseeseeseeeneenees41,42 County ofYuba v. Kate Hayes Mining Co., 141 Cal. 360 (1903) ...ceeccesesseesessecneseseeesssssusseeeseeeseeseesseesseesssessessesneesaes40 - lil - Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000)... cccccsccsesseseeeeesecsecseesecsersneseeessensseseeseuseeseeseeseeatensseeees 21 Elliott v. Oregon Int'l Mining Co., 654 P.2d 663 (Or. Ct. App. 1982)... eeceesecessrsesseessssssesserseeecsens 22, 31, 54 Geier v. American Honda Motor Co., 529 U.S. 861 (2000)... cccccecescesersceseescessesesseesssscssessessecnsssessenseneenseneeseens 18 Hines v. Davidowitz, 312 U.S. 132, (1941)... cee cecesessecesecseeecseseseaeesteeeecsseseneessssssusstesssasentenee 2,18 In re Shoemaker, 110 L.B.L.A. 39 (July 13, 1989)oececsecneesseesesesseseesneseeseetenesseeaseees 34 In re Suction Dredging, Case No. JCCP4720 (San Bernardino Countty)..........ccesesesseseserseees 6, 52, 53 Kleppe v. New Mexico 426 U.S. 529 (1976)....ccccsccsccssseeseeesseeeneceeeeesssessessseesessesceeeesseseneeseeseeesseesntens 19 Lawless v. Calaway, 24 Cal.2d 81 (1944) on ceecccceseseessessseersecescssereseeeeesssesessscasessereseesessesneneeeeey 53 Pac. Gas & Elec. Co. v. State Energy Res. Conservation and Dev. Comm'n, 461 U.S. 190 (1983)... cccescccenceseeceseeeseceseeesseesesecsensueseseeseasessesssesseesseeegs 20, 32 People v. Gold Run Ditch and Mining Co., 66 Cal. 138 (1884)oncccescssesseeeeeecstsescsecssesssscsecnearsessessseseneesessesesaeessesessees 40 People v. Lucero, AA Cal.3d 1006 (1988) oo... ceccsccccececsecseeseeseessecsssersessseesuscsesseecsreanenasseeenes 58 People v. Rinehart, 230 Cal. App.4th 419 (2014) oieeccesesereseesecseenseseseesenerseeeneneypassim Perez v. Campbell, A402 U.S. 637 (1971) ..cccecccessessesssssceeeseeesseeesessessessescsscnssessessessesseneenseneenseeseees 26 RCJMed. Servs., Inc. v. Bonta, 91 Cal. App.4th 986 (2001) oo. eecescssesesseseseesseessenseseseeseneseessssenseneceees46 -1V- Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) uo eeseseeseneessesesessessssessesesssseeeseesesneeeeseeerenes 20, 21, 22 Seven Up Pete Venture v. Montana, 114 P.3d 1009 (Mont. 2005), cert. denied, 546 U.S. 1170 (2006).........cesscccssenceeecsseereseesrseerseeeesneessensesnees 46 Skaw v. United States, 740 F.2d 932 (Fed. Cir, 1984)... ce cecsesssressrecsneeesessessecenenens 22, 25, 31, 54 South Dakota Mining Ass’n v. Lawrence County, 155 F.3d 1005 (8th Cir. 1998)...eceeeecsseesseceneeeseresessessesseassessneeneeeypassim Sperry v. Florida, 373 U.S. 379 (1963) ..ccescsceesersecseeseescsesseecsssesessuseesscsessssseseesesrensesesesseas 20, 31 Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002).......csesccssecsrecseceeeeeeeescereseeesseeceesessssessssssessaseseserseaseeeas 50 United States v. Backlund, 689 F.3d 986 (Oth Cir. 2012)... ccscesesesseeseserseseessesssssssasessssssesesteresesees 4, 33 United States v. Coleman, 390 U.S. 599 (1968)... cccscccsecseeescesetseeeerseessascessesseessssneusresssassenseseeeseenses 27 United States v. Locke, 529 U.S. 89 (2000).......ccccssesscscccstecseecseteceeeeseersssersseseseseesesesssussssssseseseensetenes21 United States v. Nogueira, 403 F.2d 816 (9th Cir. 1968)........cccececcesceseseseecesteeessesesesessessesessssesseessessneens 34 United States v. Richardson, 599 F.3d 290 (9th Cir, 1979)... ceeeeesseeeseessecsseessesseersersessaeseeeees 34, 35, 56 United States v. Shumway, 199 F.3d 1093 (9th Cir. 1999)... ccccecesessreesseeceseessesseeseesessesseeseeeneres 33, 56 Utah Power & Light Co. v. United States, 243 U.S. 389 (1917) ..cccccsccsscsseceseessecserseeeeeseeseseesssecsascsessssssesssseseeseceseeseeeges 19 Ventura County v. GulfOil Corp., 601 F.2d 1080 (9th Cir. 1979)... ccccsesecsseerseeeeessssssnsesersesssessusseesaresees 22,49 Viva! International Voicefor Animals v. Adidas Promotional Retail Operations, Inc. A1 Cal.4th 929 (2007) .....esseccssscsesecseesseessescnseseesessssesessssesssseesscenssssenteneees 20 Wachovia Bank, N.A. v. Watters, 431 F.3d 556 (6th Cir. 2005), Off’d, 550 U.S. 1 (2007) nee eecceeceseseeessesesssesenssessssesseesssseseesseaeensseeseesaseesseees 21 Woodruffv. North Bloomfield Gravel Mining Co., 18 F. 753 (C.C.D. Cal. 1884) 0.eeeseseeseecseescerseceesesssesceseanesssees 39, 40, 41 Wilbur v. United States, 280 U.S. 306 (1930)... cesccsteceeeeseeeeeeseeteeeseeeseessasessesssssesssessscssseessntesetenses 29 Wyeth v. Levine, 555 U.S. 555 (2009)... cc cesesececsscessecsecserenevsssesseesseassasesssesessscssesesseeses 21, 22, 43 Constitution and Federal Statutes United States Constitution, Article TV, § 3... eeeeeeseseceessseeenseeseeesseessreeseeseeeeees 19 United States Constitution, Article VI, Cl. 2 0... cccccesssscceeesstecesseceeseneereseneenanons 1,18 25 US.C. § B00] .eeecccescessscsesseeeceecseseersceesssercsccessesessscesseucsssessessesseesesesesesasseesatees 8 30 U.S.C. § 211)... ceecesceensecseeeseeecseeessseaesecsessesesessassassassssessssesecseereseeseseeesnesees 51 30 U.S.C. § 22 .eeecececesesseessesecneceerecssseeesessessssessssessseseesaecnessnesesenessenees27, 28, 37, 39 30 ULS.C. § 26 ve ececesescscsscsscsceseeseceseesseeseesecsessecsnsseassusesseseessrensesentensseseneenees 29, 35, 37 30 U.S.C. § 28 vo eecccccsscssessecsesseeessceeaeesessceeesesseseasesessssevseesesessssssesseseesseeeeneseeeeneees 30 30 U.S.C. § 35 eccccccscsssssssssssscsseesessesseeseeseeeseesseseseesensessavsessssessensseensseassssanenseseeeeanens 29 30 U.S.C. § SL icc cccccsessssssceseceeesecesecseesereecesseeesecessesesseesrsessssesasesseestessseneensesnenes 4] 30 ULS.C. § 612(D) occ eeccscccsesseccenceeseneseesssesseeseeseeesseneesseecessecnecesseeeeeeereneeeespassim -Vi- 30 ULS.C. § 1281eeeeeseseeeeeeeseeeeesseesssssecsscesensesarseseaeseneseeseseeeeesseteneessnessenees 31 43 U.S.C. § 1701 (a)(2) ne erecesesceseesseeecseesscnecsssssecesssseessassessessesseseseensesesenesnssnsesenes 4 43 U.S.C. § 1712(€)(3)cee eescsseeseeeseeeseesneceeeeseessecesssvseesssssscecereessesecsenensecsarenseeneees 31 A3 U.S.C. § 1714 cececceccsecsseseceecsceseeeesesevsceesssecaseseessesssessesessessessesesssensensesnesnesneey 31 Federal Rules 36 C.F.R. § 228.5(8)ce eccscsccsneeeesseseeseesesssevsevsssseavaressessucssesessseseseesscseensenesesssenenneas 56 36 CLF.R. § 228.8 oo ccccccsseseeeseccnecsesessesessessessessesssesssecssecsesessessesseseeseeeseenesneessnenees 47 A3 C.F.R. § 3809.1(a)... eeeeeeseceeeseeesecsecseeeseessseessesvseessessasssseeecsecssersenseneessessseeseess44 43 U.S.C. § 3809.2(b) occ eececeesecneceseceeeessecseseeseesesessecssessessecsssssuseecesesesensessenenessees 44 A3 CFR. § 3809.3 v..ccccscscsscesccesersreeseesseesssesssseeesessssesessssasesseessessecseseseeeeneenseeness44 California Evidence Code § 354ccseceseccsscesessssceeesseceeceaeeeseeeseesneeseeesesesnessscseeseseacsesssesaussssneeseseeessareueenseeenegees 58 § 452(C) ..eceecscccsccessecssceseseeeseesesesesseeesseseeeoeeecssscsseseassusesuecsusatessessessseseeegeenseeeqessseess 47 California Fish and Game Code § S653 ..ceccsccecccseesseseesssesecseeneessssesasesecesesscesucsesesssueseenserssessesesseeaesseersaenenenes 24, 36, 51 § S653) ..ececccecceccssecesseceesceeseeecseesneseosecsecsesesscsassecesseressssesessenseseesesseeatensesnssessesnees 11 § 5653 (D) .....ccccesccssescsssscessesseeseeesesereesneeseesseonssesaecssevensecssssesssasseusnensesseessteneeeeseenseaees 5 § 5S653(d) .ecececccscescsseceteeseeseeseesecssssseesesseessasssssesesssecseessesseesssessseseesesseeoneneeses 5, 10, 11 § SO53(C) .cccccsccecseccsssccscsccecceeceecesecscesseesassecsesessescessevsscsesssesseseeseeseessereeatensenseeseees 17, 25 § 5653.1 Le ceecccsseccserseesresseseseeesseeesseseseaseseecssesssssecsesceseeseseeessueseecseecseesseesngneeseeespassim § 5653.1(D)(4) ..eccsccsccccerestecseesceseeesesesecesesesesesecesessisacssscsescsucessnsessseeeesesteseaeesseeaeesass 6 - Vii - § 5653.10) ccsssscsccssscccssesccsssvcssecesssssesssssesssssssessessusessssssssssssseessssssssiseeseesssseeseeeesseasen 10 § S653.1(€) cececceccseesceesecescsssessesscssesscsscsesssssesesssessseaasecssesessesecseeseesessenseensessenasnesaes 17 § 5653.9ee cseeceseeeeneeseeeseeessessesesseseesecesesseusueusnsescsessevsesasesnsessenssesessessecesenneneenaeees 5 § LOZD 1 (a)(2).eeeceeeeenecsneeseeeseeeeesecnsesseseneasseassesssesssssensaecseesseessesaeeasepseecesenatenenaeeegs 8 California Public Resources Code § B98]ee eccessessessesecsseesnecesscecssceeseseesseseoneeseneeesanecessscsssesessssesssecsesnsnessesensaeesseenesenes 57 § 21002... eeeeessesescceesecesaecnnecneecessecsessseseseesseessessssssssnsuseecseasseeseceeeessseseeesesssenenass 10 California Code of Regulations 14 C.CLR. § 228cceeeneeeceseeseesceessecsseesssseesssersessensssesseesecseessenessesseeseeesseseeaeens 5,11 14 C.CLR. § 15232. cecescesscectceeseecceneceseceserssessasessessessusenssscnsessessassesenseeesseenseateneesges 6 Other Authority 65 Fed. Reg. 69,998 (Nov. 21, 2000)...ee eeeesesessssseseeseeseessesssseeseceeesessatersesens 45 C. Lindley, American Law Relating to Mines and Mineral Lands (3d ed. 1914) occccssecstecsesnerseseeesscesseesseesaseesssesesseeessnssseessesseassssseesssateneeeeeneees 38 California Department ofFish and Wildlife Report to the Legislature Regarding Instream Suction Dredge Mining Underthe Fish and Game Code, April 1, 2013.0... eeecscsseeceteeseceeeseseerseceseesesescserecssessassecnssssseseseeeessesssstensenss 5 NRC, Hardrock Mining on Federal Lands, 96 (Nat’! Academy Press 1999)..........4 Proposed Forest Service Mining Regulations: Hearings before the Subcommittee on Public Lands, House Committee on Interior and Insular Affairs, 93rd Cong., 2d Sess. (Mar. 7-8, 1974)... cessscessssessssssseesscsescsseeneesenseneesees 4 - Vili - COUNTERSTATEMENTOF THE ISSUE FOR REVIEW Doesthe State’s schemeofboth requiring suction dredge miners to obtain permits and categorically refusing to issue them frustrate the purposes of federal mining law within the meaning of the Supremacy Clause of the U.S. Constitution? INTRODUCTION Rinehart does not challenge the State’s right to regulate his operations, but the State’s right to suspend indefinitely a longstanding permitting process through § 5653.1 of the Fish and Game Code. Because this case does not concern what permit conditions might be imposed tolimit environmental harm, the People’s insinuations of harm to “fish, water quality, and other resources in California” (People’s Opening Brief on the Merits at 1 (hereafter “People’s Br.’’)) should not distract the Court. In fact, the DepartmentofFish and Wildlife was developing (and did develop) a revised set of regulations, mining under which would not be “deleterious to fish.” If permitted to present evidence—the Superior Court allowed no such evidence—Rinehart would show that the use of suction dredges for placer miningin the State of California under prior permits had no appreciable adverse environmental effects whatsoever. While California obtained in California Coastal Commission v. Granite Rock Co., 480 U.S. 572 (1987), the powerto issue permits for mining on federal land, that power remains subject to the substantive limitations provided by Congress on the exercise of regulatory power to restrict mining. A hundred years of federal and state precedent confirms the limited state role with respect to the traditionally federal realm of mining on federal lands. The People thus present a remarkable distortion of both the law of federal preemption and the history of mining regulation in California, but cannot avoid the obvious conclusion that shutting down a longstanding permit program “stands as an obstacle to the accomplishment of the full purposes and objectives of Congress,” Granite Rock, 580 U.S.at 581 (citing Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). Allowing the Legislature to shut down mining on federal mining claims because of the asserted need to evaluate environmental risks from the tiny suction dredges operated by gold miners, which have operated in California for decades, while all other, larger suction dredging may proceed apace,plainly frustrates the purpose of federal mining law. The Court of Appeals properly applied the law of federal preemption, andifit erredat all, it erred because of the People’s remarkable insistence that restricting mining for all practical purposes to gold panning by hand wassufficient to avoid a preemption finding. The Court of Appeals could and should have determinedthat the State’s scheme was prohibitory as a matter of law. Contrary to the statements of the People, the Court of Appeals did not make the touchstone ofpreemption whetheror not the State’s regulatory scheme had made the mining “commercially impracticable” in the sense of being unprofitable. It merely cited evidence concerning the degree ofinterference with the federal purpose of fostering commercial mining as amongthe factual questions to be developed upon remand, if necessary. Theright result, however, is to set aside Rinehart’s conviction without reaching the question of whether any particular instance of the State’s actual exercise of permitting authority might be preempted. BACKGROUND A. The Purposes and Objectives of Congress in the Federal Mining Law. Unlike nearly any other economic activity, mining can only occurat the location where the minerals are found, and one cannot explore for or develop mineral deposits without disturbing the natural environmentin ways now commonly regardedas significant. Nonetheless, Congress has struck the balance between protecting the natural environment and extracting the minerals in favor of extracting the minerals—subject to reasonable environmental protection that do not “materially interfere” with the mining.’ A large body of federal law confirms this proposition. See, e.g., United States v. Backlund, 689 F.3d 986, 997 (9th Cir. 2012) (regulatory authority “is cabined by Congress’ instruction that regulation not ‘endangeror materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto;’” quoting 30 U.S.C. § 612(b)). Atthe core of the People’s position is the notion that Congress, legislating with plenary authority under the Property Clause, intended to allow thestates to strike an entirely different policy balance effectively prohibiting mining on federal lands, and destroying mining industries vital to the Nation’s interests. In context where Congress has demandedthat “the public lands be managed in a manner which recognizes the Nation’s need for domestic sources of minerals”(43 U.S.C. § 1701(a)(2)),’ it is not ' Congress has repeatedly acted to protect miners from regulation by federal land managementagencies. See, e.g., Proposed Forest Service Mining Regulations: Hearings before the Subcommittee on Public Lands, House Committee on Interior and Insular Affairs, 93rd Cong., 2d Sess. (Mar. 7-8, 1974). Morerecently, the National Research Council (NRC)reported to Congressthat “BLM andthe Forest Service are appropriately regulating the suction dredge mining operations at issue under current regulations as casual use or causing no significant impact, respectively”. NRC, Hardrock Mining on Federal Lands 96 (Nat’] AcademyPress 1999). * The State’s assertion that suction dredge mining “is largely done for recreation” (People’s Br. 5) is not based on any facts of record, and is akin to asking the Court to infer that because there are more sport fishers in California, there is no commercial fishing industry. 4. surprising that every reported case hasrejected this position, and this Court should too. B. California’s Regulation of Suction Dredge Mining. In 1961, California enacted a permit program to ensure that suction dredge mining wasnot “deleterious to fish” (Fish & Game Code § 5653(b)). Specifically, § 5653.9 requires regulations, pursuant to which the Department generally limited suction dredging to times of the year when fish eggs would notbe present in the gravel, and § 5653(d) provides that it is unlawful to possess a suction dredge within 100 yards ofwaters that are closed. The current version of these regulations is set forth at 14 Cal. Code Regs. § 228 et seq., classifying the sensitivity of various areas and limiting mining periods. The Department formally found that the issuance of suction dredging permits underthese regulations “will not be deleterious to fish”.> Notwithstanding this conclusion, the Legislature adopted a carefully-crafted schemeto prohibit the mining. The subtleties of the scheme are important to understanding whyit cannot pass muster as a mere reasonable environmental regulation consistent with federal law. California Department of Fish and Wildlife Report to the Legislature Regarding Instream Suction Dredge Mining Underthe Fish and Game Code (“Report”), April 1, 2013, at 3. The People correctly note that the initial version of § 5653.1 merely placed a hold on permits until the Department completed California Environmental Quality Act (CEQA) review and promulgated new regulations. Effective July 26, 2011, however, § 5653.1 was amended to require that suction dredge mining could not be permitted unlesstheir issuance under newregulations was determinedto “fully mitigate all identified significant environmental impacts”. Fish & Game Code § 5653.1(b)(4). California law has an extraordinarily low threshold for “significance,” where “significant effect on the environment”includes any “notentially substantial, adverse change in any ofthe physical conditions within the area affected by the project, including land, air, water, minerals, flora, fauna, ambient noise, and objects ofhistoric or aesthetic significance”. 14 Cal. Code Regs. § 15232 (emphasis added). The Departmentstretchedto find “potentially significant” impacts involving birds, noise, possible disturbance of unknownhistorical or culturalartifacts, and water quality. (Report at 3 n.4.*) To the extent it becomesrelevant, evidenceattrial will demonstrate that suction dredge miners working underwater have no greater impact onbirds, noise, and artifacts than 4 The Department’s stretches have been challenged in the coordinated cases Inre Suction Dredging, Case No. JCCP4720 (San Bernardino County). campersor anyone engaged in any motorized activity. Rinehart could also demonstrate that water quality impacts are evanescent, and a net benefit, because the miners enhancefish habitat and remove toxic metals that would otherwise continue to leach downstream. All of this evidence, which Rinehart has had no opportunity to present, would be relevant for assessing the reasonableness ofparticular permit-based restrictions on mining. But no permit conditions are before the Court. Rather, the question is whether § 5653.1 of the Fish and Game Code, as amended, operates as a prohibition preempted by federal law. Thelegislative history of § 5653.1 demonstrates that its unique requirementof “full mitigation”of “all identified significant environmental impacts” was designed as a prohibition carefully crafted to stop permit issuance. The Legislature derailed the ordinary course of the CEQAandregulatory process that had only required findings, among other things, that permit issuance “not be deleterious to fish”. Atthe time the Legislature amended § 5653.1 to add the “fully mitigated” language totheinitial statute (the amendmenteffective July 26, 2011), the Department had already released its February 2011 Draft Subsequent Environmental Impact Review (DSEIR)listing the assertedly- “significant and unavoidable impacts” of suction dredge mining. (See Report at 4 n.5 & 3 n.4 (final study showed “impacts remained significant;” emphasis added); see also Rinehart Request for Judicial Notice (“R-RJN”) Ex. 4 (excerpts from DSEIR)). The “fully mitigate all identified significant environmental impacts” language was a responseto specific findings in the DSEIR,with the purpose and effect of ensuring that “full mitigation” was both factually and legally impossible. The concept of“full mitigation” had heretofore been employed in the context of compensation for “actual damagesto fish, plant, bird, or animal life and habitat”. E.g., Fish and Game Code § 10211(a)(2). “Fully mitigating”potential risks of vanishingly small probability is an entirely different matter. Anyone digging anywhere in California mightstrike an artifact, but it appears the intention wasto insist that “fully mitigate” meant notto dig atall, existing protections for artifacts being regarded as insufficient.’ Anyone running a motor in California may cause noise, but it appearsthe intent wasto “‘fully mitigate” noise in the wilderness by not allowing any, existing noise regulations being regardedas insufficient. Anyonehiking anywherein California might disturb a bird, causingit to fly away from humancontact, but it appears the intent was to “fully mitigate” the risk by singling out miners, existing bird protection regimes being > E.g., The Native American Graves Protection and Repatriation Act, 25 U.S.C. § 3001 et seq. regardedasinsufficient. (See also R-RJN Ex.4, at ES-14 (“nofeasible mitigation is available”).) The statute was designed to ensure not only that the Department could not makethe “fully mitigated” finding as a factual matter, but also that it was legally impossible to do so. The Legislature respondedto the Department’s repeated statements in the DSEIR (R-RJN Ex. 4, at ES-12 to -14) thatit lacked jurisdictional authority to fully mitigate by demanding that the Department exercise authority the Legislature knew the Departmentdid not have. The Departmentreiterated this conclusion in its Report to the Legislature: “the FSEIR includes a detailed discussion in Section 4.1, at pages 4-8 through 4-15, of the Department’s substantive authority to address significant environmentaleffects in the regulationsit is required to adopt to implement Section 5653. Thelatter portion of that discussion addresses the full mitigation condition added by AB 120 specifically, indicating the “full mitigation certification contemplated by Section 5653.1 does not provide the Department with the substantive legal authority necessary to address significant environmental effects beyond the reach of the Department’s existing authority.” (/d., § 4.1, p. 4-15 (italics in original).) The CEQA Findings adopted by the Department in March 2012 also address AB 120 in a numberofplaces, reiterating the same point.” (Report at 11.) The Department did provide recommendationsforlegislative changesto grant the jurisdictional authority, but the Legislature has never passed them. Unless anduntil the Legislature changesthe law, further permits are effectively banned as a matter oflaw. As general matter, under CEQA,“individual projects may be approvedin spite of one or more significant effects thereof’. Public Resources Code § 21002. There are a myriad of regulatory systemsin California that operate to issue permits day in and day out, because agencies can generally exercise administrative discretion to proceed with projects notwithstanding so-called “significant environmental impacts”. The requirementfor suction dredging permits to “fully mitigate”is unique, and further demonstrates that the State does not seek neutrally- prescribed environmental standards, but to obstruct federal policy. The statute exemptsall other “suction dredging conducted for regular maintenance of energy or water supply managementinfrastructure,flood control, or navigational purposes”. Fish & Game Code § 5653.1(d). C. Rinehart’s Case. Rinehart, having made a discovery of a valuable gold deposit “locatable” under federal mining law, took the legally required steps to obtain a federally-registered placer mining claim on National Forest Land and did obtain such a claim. (See CT71-72.°) Up until 2009, he obtained a suction dredging permit from the Department, but the 2009 permit he 6 All “CT”references are to the Clerk’s transcript of the record. -10- purchased was revoked by operation of SB 670 in the middle of the mining season. (See Tr. 47.”) But for the continuing statutory prohibition on issuing permits, he would have continued to apply for permits. (/d.) Issuance ofpermits would be, but for the statutory prohibition, a ministerial act. See generally 14 Cal. Code Regs. § 228. In an act the Superior Court Judge called “civil disobedience”(Tr. 38 & 52), Rinehart proceeded to mine without a permit, and was charged with two misdemeanor counts: suction dredge mining without a permit (Fish and GameCode § 5653(a)) and unlawful possession of a suction dredge near a waterway(id. § 5653(d)). On October 30, 2012, Rinehart filed a demurrer, arguing that given facts ofwhich the Court could take judicial notice, including the fact that he wasoperating on his own federal mining claim on federal land andthat the State refused to issue mining permits, the prosecution could not be maintained under the Supremacy Clause. (CT5-34.) The People responded that Rinehart’s constitutional challenge could not be determined by demurrer (CT35-36); that factual issues barred resolution of the question of federal preemption (CT36-39); and that there was no federal preemption (CT39-47). 7 All “Tr.” references are to the reporter’s transcript of the benchtrial, held May 15, 2013. -ll- On December 18, 2012,the parties argued the demurrer, which was overruled by the Court. (CT63.) Thereafter the parties entered into a Joint Stipulation of Facts and Procedure, approved by the Court, which established a novel procedure to resolve the defense of federal preemption utilizing an offer of proof. (CT68-70.) The parties stipulated as follows: “On or about June 16, 2012 Defendant Brandon L. Rinehart did use vacuum and suction dredge equipmentin the County of Plumas in a river or stream in the Plumas National Forest in an area closed to suction dredge mining by the State of California, and did not then possess a valid permit issued by the California Department ofFish and Wildlife, then knownas the Department of Fish and Game, to usehis vacuum and suction dredge equipment.” “On or about June 16, 2012 Defendant Brandon L. Rinehart did possess vacuum and suction dredge equipmentin the County ofPlumasin the Plumas National Forest, and within 100 yards ofan area closed to suction dredge mining by the State of California.” “The conduct identified in Paragraphs | and 2 occurred within the boundaries of the “Nugget Alley” placer mining claim owned by Defendant, and registered with the U.S. Bureau of Land Managementwith Serial Number CAMC0297113.” (CT68-69: Joint Stipulation of Facts and Procedure ff 1-3.) Thereafter, a bench trial was held. The foregoing stipulation was introduced into evidenceas the prosecution’s case-in-chief. (Tr. 6.) The parties then argued at length the question of federal preemption,for the People had reversed their position concerning the demurrer and now contended that the question of federal preemption could be decided as a -12- matter of law. The Superior Court concluded that the State of California had the “right” not to issue permits, and that no preemption claim could be madeas a matter of law. (See Tr. 42.) Asto the offer of proof, the Court ruled that paragraphs 1-5 of the offer of testimony by Appellant would be admitted (see Tr. 43), but {{ 6-9, andall testimony from the two mining experts, would not be admitted as “irrelevant based on my preemption decision” (Tr. 43). The parties then stipulated to the admission of§§ 1-5 (Tr. 45), plus the facts that Rinehart’s permit was nullified by the Legislature’s initial statute in 2009, and that he would have continued to apply for such permits had they been available (Tr. 47.) The parties also stipulated to the admission of certain documents as to which requests for judicial notice had been made, which were then denominated as Defendant’s Exhibits A-F. (Tr. 47-50.) The agreed upon facts thus expandedto include: “1. Defendant would testify that he was workingin the water within the boundaries of the “Nugget Alley” mining claim, one oftwo contiguous mining claims ownedby he and his father and four other locators. He would testify that he and his father obtained the claims by making a discovery of a valuable locatable mineral, posting a Notice of Location on the claim as required by law,filing the Location Notice with Plumas County and then transmitting a copy ofthefile- stamped Location Notice to the U.S. Bureau of Land Management. He would offer as evidence a true copy ofthe Location Notice (previously filed as Exhibit 1 to the Declaration of Brandon Rinehart, filed on October 30, 2012). He wouldtestify that the Location Notice identifies, and establishes, upon acceptance by BLM,the boundaries ofthe -13- claim, which are set forth in attached maps. He would offer pictures of the claim, and areas where gold is to be found (copies of which are attached hereto as Exhibit A), together with a picture of substantial quantities of gold recovered from the claim (Exhibit B). “2. He would testify that BLM accepted the Location Notice and registered the Nugget Alley claim with Serial Number CAMC2971 13, and offer a true copy of a printout from the BLM LR2000 system (previously filed as Brandon Decl. Ex. 2), showing that this claim (and the adjacent claims) are in good standing with the United States, all required fees having been paid to all governmental entities. He wouldtestify that the Nugget Alley Claim, though located on land to which the federal governmenthaslegaltitle (within the Plumas National Forest), is private property on which he and the other owners payreal estate taxes to Plumas County, and offer a true copy of the most recent tax bill from Plumas County (previously filed as Brandon Decl. Ex. 3). “3. He would offer a map ofthe area (previously filed as Brandon Decl. Ex. 4) andtestify that at the time he wascited by the game warden,he wasat the location marked on Exhibit 4 as “approx. location of our placer workings when cited,” within the boundaries the claim. “4. He wouldtestify that placer claims, by their nature, contain gold deposited by water bodies. He would testify that much of California has already been subject to significant mining activity that has extracted the gold nearto, but outside of, flowing waters, and that the Nugget Alley claim has been hydraulically mined in the past to remove such gold. “5, He wouldtestify that he excavated test pits outside the water-covered areas of the claim to survey for the presence of recoverable gold and found no economically- significant quantity of gold outside the water-covered areas. He would testify that the gold remaining on the claim, and additional gold brought from upstream sources, has been concentrated by flowing waters and may be found beneath the waters of the claim. -14- In general, the trial court ruled “irrelevant” those portions of Appellant’s offer ofproof whichrelated to the degree of interference that the State’s refusal to issue permits posed to mining on his claim, and to mining ofplacer claims in the State generally. Once the record wasestablished, the Court found Appellantguilty: “T believe that although this is a—although technically a criminalcase, this is basically more of anactofcivil disobedience where Mr. Rinehart-—basically, this is a test case where Mr. Rinehart believes he is being frustrated in his ability to earn a living or to mine, and the State would disagree with that. Perhapsthere’s a better way to dothat, but I think this is a case that needs to be taken up and needsto be resolved.” (Tr. 52.) The Court also expressed disapproval of the State’s refusal to issue permits, stating: “I think the State needsto deal with it in an appropriate manner in terms of coming up with regulations ...”. (Tr. 53.) The Court found defendantguilty ofboth charges (CT377) and sentenced Appellantto three years’ probation and $832 in fines and assessments, with the fine stayed pending successful completion of probation. (CT378.) D. The Court of Appeals Opinion. On August 15, 2013, the Appellate Division of the Superior Court of Plumas County certified the case for transfer to the Court of Appeals pursuant to Rule 8.1005, and on October 4, 2013, the Court ofAppeals took jurisdiction. The Court of Appeals carefully analyzed the federal -15- preemption issue, beginning with the observation that Congress possessed plenary powerover federal lands pursuant to the Property Clause of the U.S. Constitution. People v. Rinehart, 230 Cal. App.4th 419, 430 (2014). The Court of Appeals recognized that the State of California mightstill enforce its laws on federal land so long as those laws did not conflict with federal law, and that Granite Rock provided guidance as to whether andto whatextent state regulation of mining on federal mining claims had been preempted by federal law. Jd. at 433-34. The Court ofAppeals then madea straightforward application of the Granite Rock test: “whether §§ 5653 and 5653.1, as presently applied, stand as obstacles to the accomplishmentofthe full purposes and objectives of Congress in passing the federal mining laws”. Jd. at 433. Building upon the almost precisely analogous finding that a general refusal to issue permits did so in the leading case ofSouth Dakota Mining Ass'n v. Lawrence County, 155 F.3d 1005 (8th Cir. 1998), the Court ofAppeals found the State’s refusal to issue permits here to create a “colorable” defense to Rinehart’s criminal charges. Rinehart, 230 Cal. App.4th at 436. Unfortunately, the Court of Appeals was under the impression that “because of a lack of funding, the Department is unable for financial reasonsto fulfill the conditions set forth in section 5653.1, which results in a continuing, if not permanent, moratorium on suction dredge mining -16- permits”. Jd. at 433; but cf: People’s Br. at 8 n.4 (People now acknowledge no funding issue). Accordingly, the Court of Appeals remandedforthetrial court to address, among other things, the question “does § 5653.1, as currently applied, operate as a practical matter to prohibit the issuance of permits required by § 5653”. Jd. at 436. And because the People had strenuously argued that Rinehart might still engage in “nonmotorized recreational mining activities, including panning for gold” (§ 5653.1(e)), the Court ofAppeals also asked thetrial to determine on remand whetherthe permit denial “rendered commercially impracticable the exercise of defendant’s mining rights granted to him by the federal government?” Jd. Rinehart contendsthat it is obvious as a matter of law that refusal to issue permits stands as an obstacle to accomplishmentofthe full purposes and objectives of Congress, but remains prepared to demonstrate on remand that recreational hand panning doesnot vindicate the Congressional purpose to develop mineral resources on federal lands. Argument I, OVERVIEW OF THE LAW OF FEDERAL PREEMPTION: WHYTHE PEOPLE’S IMAGINATIVE REINTER- PRETATION OF THAT LAW SHOULD BE REJECTED. The Supremacy Clause provides that federal law “shall be the supreme Law ofthe Land; and the Judges in every State shall be bound -17- thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2. Congress may preemptstate law under the Supremacy Clause of the United States “by enacting an express preemption provision, or courts may infer preemption under one or moreofthree implied preemption doctrines: conflict, obstacle, or field preemption”. Brown v. Mortensen, 51 Cal. 4th 1052, 1059 (2011). This case concerns whetherthe State’s refusal to issue permits “stands as an obstacle to the accomplishmentofthe full purposes and objectives of Congress”. Granite Rock, 480 U.S.at 581 (quoting Hines v. Davidowitz, 312 U.S. 132, 142-43 (1941)). An “obstacle” need not be an insurmountable obstacle, and the “accomplishmentofthefull purposes and objectives” of federal law is not satisfied by partial accomplishmentthereof. While the People claim preemption may only be foundif “State regulations makeit impossible to comply with federal law” (People’s Br. 11), it is well-established that impossibility is not required for “obstacle” preemption. As the Supreme Court has explained, “both forms of conflicting state law are ‘nullified’ by the Supremacy Clause”: (1) conflicts “that prevent or frustrate the accomplishmentof a federal objective” and (2) conflicts “that make it ‘impossible’ for private parties to comply with both state and federal law”. Geier v. Am. Honda Motor Co., - 18 - 529 U.S. 861, 873-74 (2000); see also id. at 873 (“Congress would not want either kind of conflict”). Lacking any reported cases to support their position, the People attempt a restatementofthe law of federal preemption by stitching together snippets from a variety of preemption cases. But in the federal preemption context, “each case turns on the peculiarities and special features of the federal regulatory schemein question,” City ofBurbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973). Because Granite Rock, Lawrence and several other cases construe precisely the same federal regulatory schemeat issue here, they provide the most guidance for resolving this action. And they underscore thatcritical to analysis ofpreemption hereis that the federal statutes involve Congressional action underArticle IV, § 3 of the U.S. Constitution: the Property Clause. As the Supreme Court has explained, under the Property Clause, Congress enjoys “complete power” over federal public lands. Kleppev. New Mexico, 426 U.S. 529, 540-41 (1976) (overturning State attempts to regulate wildlife on federal land). State powers over federal lands cannot “extend to any matter that is not consistent with full power in the United States to protect its lands, control their use and to prescribe in what manner others may acquire right in them”. Utah Power & Light Co. v. United States, 243 U.S. 389, 404 (1917). This case is thus sharply distinguished -19- from the many cases cited by the People which concern Congressional trespasses on “‘a field which the States have traditionally occupied”. (People’s Br. 20.) In particular, there is no presumption against preemption here. As this Court explained in Viva! Int’! Voicefor Animals v. Adidas Promotional Retail Operations, Inc., 41 Cal.4th 929, 938 (2007), “[t]here is a presumption against federal preemption in those areas traditionally regulated by the states .. .” (Id. at 938; emphasis added(citing Rice, 331 U.S. at 230). Suggestions of some general presumption against preemption that applies in “all cases” are unsupported dicta amply refuted by a legion ofpresumption cases involving plenary powers of Congress that make no reference to the allegedpresumption whatsoever. Most obviously, Granite Rock itself makes no reference to any such presumption or deference to historic police powersin this context. Other analogouscases include: Arizona v. United States, 132 8. Ct. 2492 (2012) (no mention ofpresumption in immigration context); Commonwealth Edison Co. v. Montana, 453 U.S. 609 (1981) (no mention in national energy policy context); Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm’n, 461 U.S. 190 (1983) (same); Kleppe v. New Mexico, 426 U.S. 529 (1976) (Property Clause); Sperry v. Florida, 373 U.S. 379 (patents). This is no accident, for the Supreme Court - 20 - has explained that the presumptionis “not triggered when the State regulates in an area wherethere has been history ofsignificant federal presence”. United States v. Locke, 529 U.S. 89, 108 (2000); see also Wachovia Bank, N.A. v. Watters, 431 F.3d 556, 560 n.3 (6th Cir. 2005) (presumption “disappears. . . in fields of regulation that have been substantially occupied by federal authority for an extended period oftime”), aff'd, 550 U.S. 1 (2007). It is also important to understand that federal preemption does not depend upon any express Congressional recognition of a preemption issue at all. As the Supreme Court has explained, “[a] failure to provide for preemption expressly may reflect nothing more than thesettled character of implied preemption doctrine that courts will dependably apply . . .”. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 387-88 (2000). The law of preemptionin the mining contextis precisely such well-settled law,a fact that fully accounts for and again distinguishes every preemption case upon which the People rely. Put another way, the question of development of mineral resources on federalland is a field in which the federalinterestis sufficiently dominantthat courts will easily infer that states may not frustrate that interest. Cf Rice, 331 U.S. at 330. The People anchortheir restatement of the law of preemption upon Wyeth v. Levine, 555 U.S. 555 (2009), involving “commonlaw negligence -21- andstrict-liability theories;” plaintiff alleged a drug company failed to warn of a drug’s danger, causing her to lose her arm. Jd. at 559. This involved “a field which the States have traditionally occupied”. Jd. at 565 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). Even more importantly, the Court carefully reviewed the relevant constellation of statutes and cited the express provisions where Congress addressed the preemption question and “took care to preserve state law”in the context before the Court. Jd. at 567; see also id. at 574-75. The People’s other cases are likewise distinguishable. II. CALIFORNIA’S REFUSAL TO ISSUE MANDATORY SUCTION DREDGING PERMITS STANDSAS AN OBSTACLE TO THE ACCOMPLISHMENT AND EXECUTION OF THE FULL PURPOSES AND OBJECTIVES OF CONGRESSIN THE FEDERAL MINING LAWS. A. The Court of Appeals Correctly Followed Overwhelming and Persuasive Precedent. Every reported case addressing state-law-basedrefusals to issue permits to mine onfederal lands hasfoundpreemption. South Dakota Mining Ass’n v. Lawrence County, 155 F.3d 1005 (8th Cir. 1998); Brubaker v. Board ofCounty Commissioners, 652 F.2d 1050 (Colo. 1982); Elliott v. Oregon Int'l Mining Co., 654 P.2d 663 (Or. Ct. App. 1982); see also Ventura County v. GulfOil Corp., 601 F.2d 1080 (9th Cir. 1979), aff'd mem., 445 U.S. 947 (1980); Skaw v. United States, 740 F.2d 932 (Fed. Cir. 1984). The People ask this Court to fragmentize the mining statutes and -22- search for some express Congressionalintent regarding state environmental regulation, but all these cases have found the Congressional purpose to promote mineral development by opening federal lands and granting mining claims on them, exercised in the context of the plenary Property Clause power, sufficient to preempt state laws obstructing exploration or developmentofthose claims. In the leading case, the U.S. Court of Appeals for the Eighth Circuit struck down a “county ordinance prohibiting the issuance of any new or amendedpermits for surface metal mining within the Spearfish Canyon Area”. Lawrence, 155 F.3d at 1006. As the Eight Circuit explained: “The ordinance's de facto ban on mining on federal land acts as a clear obstacle to the accomplishmentofthe Congressional purposes and objectives embodied in the Mining Act. Congress has encouraged exploration and mining of valuable mineral deposits located on federal land and has granted certain rights to those who discover such minerals. Federal law also encourages the economical extraction and use of these minerals. The Lawrence County ordinance completely frustrates the accomplishmentofthese federally encouraged activities. A local government cannotprohibit a lawful use of the sovereign's land that the superior sovereign itself permits and encourages. To do so offends both the Property Clause and the Supremacy Clauseofthe federal Constitution. The ordinance is prohibitory, not regulatory, in itsfundamentalcharacter. The district court correctly ruled that the ordinance was preempted.” Id. at 1011 (emphasis added). As the Eight Circuit noted, “unlike Granite Rock, we are not confronted with uncertainty as to what conditions must be - 23 - metto obtain a permit . . the [legislation] is a per se ban onall new or amended permits .. .”. Lawrence, 155 F.3d at 1011. The Court of Appeals properly found this case “particularly useful” and “nearly directly on point,” and reviewedits holding in detail. Rinehart, 230 Cal. App.4th at 434. Indeed, the only distinction identified by the Court of Appeals wasthat Fish and Game Code “§§ 5653 and 5653.1, read togetheror alone, do not expressly prohibit the issuance of suction dredge mining permits.” Jd. at 435 (emphasisin original). While the California Legislature was more subtle in its design than the people of Lawrence County, the People now acknowledge that no permits may be issued pending furtherlegislation, making this a distinction without a difference. B. Restrictions Frustrating the Purpose of Federal Law Are Preempted Whether Characterized as Environmental or Land Use Regulations: It is the Effect of the Challenged Restriction that Matters. The People argue, however, that South Dakota Mining should be distinguished on the groundthat the prohibition was foundin a local zoning ordinance as opposedto a statewide “environmental regulation”. (People’s Br. 34.) But as the Court of Appeals, relying upon Granite Rock, explained, even environmentalrestrictions could “rise to the level of impermissible state land use regulations”: “