PEOPLE v. RINEHART

Respondent’s Reply Brief on the Merits

Cal.June 11, 2015

oe . 8 In the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. BRANDON LANCE RINEHART, Defendant and Appellant. Third Appellate District, Case No. C074662 . 62Case No SethEME courr FILE JUN E1205 Frank A. McGuire Clerk Deputy Plumas County Superior Court, Case No. M1200659 The Honorable Ira Kaufman, Judge PEOPLE’S REPLY BRIEF ON THE MERITS KAMALAD. HARRIS Attorney General of California EDWARD C, DUMONT Solicitor General MARK J. BRECKLER Chief Assistant Attorney General ROBERT W. BYRNE Senior Assistant Attorney General JOSHUA A. KLEIN Deputy Solicitor General GAVING. MCCABE Supervising Deputy Attorney General MICHAEL M. EDSON MARCN.MELNICK (SBN 168187) Deputy Attorneys General 1515 Clay Street, 20th Floor P.O. Box 70550 Oakland, CA 94612-0550 Telephone: (510) 622-2133 Fax: (510) 622-2270 Email: Marc.Melnick@doj.ca.gov Attorneysfor Plaintiffand Respondent the People ofthe State ofCalifornia In the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. BRANDON LANCE RINEHART, Defendant and Appellant. Case No. 8222620 Third Appellate District, Case No. C074662 Plumas County Superior Court, Case No. M1200659 The Honorable Ira Kaufman, Judge PEOPLE’S REPLY BRIEF ON THE MERITS KAMALAD. HARRIS Attorney General of California EDWARD C, DUMONT Solicitor General MARK J. BRECKLER Chief Assistant Attorney General ROBERT W. BYRNE Senior Assistant Attorney General JOSHUA A. KLEIN Deputy Solicitor General GAVIN G. MCCABE Supervising Deputy Attorney General MICHAEL M. EDSON MARCN. MELNICK (SBN 168187) Deputy Attorneys General 1515 Clay Street, 20th Floor P.O. Box 70550 Oakland, CA 94612-0550 Telephone: (510) 622-2133 Fax: (510) 622-2270 Email: Marc.Melnick@doj.ca.gov Attorneysfor Plaintiffand Respondent the People ofthe State ofCalifornia TABLE OF CONTENTS Page IMtrOGuctiOn oo... ee seescccsesssenecececseeeesessessssseessessscseseseseseeeesaeees sescesesestsnesansenee 1 ALQUMENE.... cece cccscsescssceersesenecesneceteeeaeeaeeevseeeateeaeesaseseceaecaesrssseseneseesetens 2 I. Congress Intended Federal Mining Law To Preempt Only Those State Laws Which Would Makeit Impossible To Comply with Federal Law ............cccceeessene 2 A. The Presumption Against Preemption Applies to the Existence and Scope of Rinehart’s Preemption Claim oo... ccscessccssssesssesesesesesseetsesaes 3 B. The Mining Act of 1872 Does Not Preempt California’s Law oo... ccccssssccssccssesssecessecseseseersssessessess 5 l. Congress’s General Intent To Promote Mining Does Not Establish Preemption.......... 5 2. Rinehart’s Textual Arguments Fail ................. 8 California’s History of Regulating Hydraulic Mining — and Congress’s Response — Disprove Rinehart’s Claim....... 10 C. Section 612(b) Limits Only Federal, Not State, ACTIONsee cesceesseeeceeeesessecssecssessascesusesseeesseesseeeestensss 12 D. This Court Should Follow BLM’s View that State Mining Regulations Do Not Obstruct Congress’s Purposes Unless they Makeit Impossible To Comply with Federal Law ................ 14 E. Precedent Does Not Support Preemption................. 18 II. Even a Broader View of Obstacle Preemption Would Not Result in Preemption of California’s Temporary Moratorium .......cecesescesceseeesecsecssceeccsseesseeecssaeeesensssnessereessees 20 A. B. California Has Enacted a Reasonable, Temporary Environmental Regulation...............000.. 21 This Court Should Reject the Court of Appeal’s Unadministrable “Commercial Impracticability” Standard oeeeecceseseereeeesseeeneeeesesseetseeeesecssnersenees 25 TABLE OF CONTENTS (continued) Page HI. Rinehart Is Not Entitled to Judgmentas a Matter of LAW... eeeseesscesseseeceseeeesaeecsaecsecseeseeeseaeecessessaeeeecessesateaseseatesssess 27 CONCIUSION. 0.ss ceescceseescnseseesseseesaecssecessesessssaseseecseecsuessesseeusssausessessersesaeres 28 Certificate of COMplianceoecesesscsssssessssseessscseccsecseceseeesseressesssssesensens 29 ii TABLE OF AUTHORITIES Pages CASES Bates v. Dow Agrosciences LLC (2005) 544 US. 431ecscsceseseeeneeseeesssesessseesessecsesessasseesaeeessessesstsusaesases 3 Bronco Wine Co. v. Jolly (2004) 33 Cal.4th 943 ooescsssesecsssssscssssssseessesescsscssssessesssssesseesesevecsaes 7 Brown vy. Mortensen (2011) 51 Cal4th 1052 oocccsesescssesscsecssssssscrscssreseessesseeessssessuseaeeres 3 Brubaker v. Board ofCounty Commissioners (Colo. 1982) 652 P.2d 1050.0... ceccscessesseteeeesscssceseeesessessesessessessscsess 19, 20 Butte City Water Co. v. Baker (1905) 196 U.S. 11QLceecccceceseessesseesesssesesssesseascseceecseessetasencevsusens 9, 10 California Coastal Commission v. Granite Rock, Co. (1987) 480 U.S. S72.seceeecesctsesesseeseessesessessssseseecsecseesseessesscsuersenspassim Centerfor Competitive Politics v. Harris (9th Cir, 2015) 784 F.3d 1307 wo. cceccsesccscessesessscsscsecssecsecseecescsscscsssesesseaens 13 Citizensfor Responsible Dev. v. City of W. Hollywood (1995) 39 Cal.App.4th 490 ooo. iccceccsesesessecssessessesssesscsecserssseesseeseesseserans 24 City ofAlhambra v. County ofLos Angeles (2012) 55 Cal.4th 707 occccccccesesecssesseseseessecseesseeesssesseseseseassasssersssssesenes 21 Commonwealth Edison Co. v. Montana (1981) 453 U.S. 609.eeceeecnsstectecerseesssssensesssseesssesecatensessassesess 5, 6,7 Elliott v. Oregon International Mining Co. (1982) 60 Or.App. 474 [654 P.2d 663]... .cccccesccsecsssersecsseeeeseessrsesens 19, 20 Envtl. Prot. Information Center v. Calif. Dept. ofForestry & Fire Protection (2008) 44 Cal.4th 459 ooccccseceseesseseessevensssessessseeerseecsessnssseeevsuecseeses 23 Faulkner v. California Toll Bridge Auth. (1953) 40 Cal.2d 317 ooeeccceeessenessecsesseeeessseersesseesessssessesseensnsssacssseees 24 ill TABLE OF AUTHORITIES (continued) Pages Granite Rock Co. v. Calif: Coastal Commission (9th Cir. 1985) 768 F.2d 1077 veces cecssssceceeesseeeeceeeesaeeveneeseservensseesecneens 20 Idaho ex rel. Andrus v. Click (1976) 97 Idaho. 791 [554 P.2d 969] ooo. eeeeceeseerteseeseesnaeeseseseeessessasnaeees 6 In re Cipro Cases I & II (2015) 61 Cal.4th 116 [2015 WL 2125291] occseeeseceeeeseersenetseneeneens 4 In re Countrywide Financial Corp. Mortgage-Backed Securities Litigation (C.D. Cal. 2013) 966 F.Supp.2d 1018 oo... cceceecsssessseceseceseseeaceeesestsesesieessesA Inre S.B. (2004) 32 Cal.4th 1287cc cccceeccccesecsseevseecereesersaeesneeeeseesseessaeaseaeenecseness 24 Kasler v. Lockyer (2000) 23 Cal4th 472 ...cccscsscssesercesssesessctecsevesesseessessasenasenesatesasensieeeesas 22 McDaniel v. Wells Fargo Investments, LLC (9th Cir. 2013) 717 F.3d 668 ........ wececeesecaecscecessceaeesecenecsaeceeevaeenseeseeaeatsevateas 4 Nadler v. Schwarzenegger (2006) 137 Cal.App.4th 1327 oceeseeneesercessersessscssessessesssreeseesasseseries 22 Nelson v. County ofKern (2010) 190 Cal.App.4th 252 occ ccecscsscesseesertestceceneerseeeecneceneessssecneeeseeaees 26 Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Development Com. (1983) 461 U.S. 190.eeeeerenecseteecneteesssenersesetsresereenneessassesseusensesensanicnys 5,7 Pacific Merchant Shipping Association v. Goldstene (9th Cir. 2011) 639 F.3d 1154 ccceesceseeessesecneesseeseeessessneeeeeereseenesseeeenees 4 People ex rel. Harris v. Pac Anchor Transp., Inc. (2014) 59 Cal.4th 772 ...cccccseccessesesncenereeensseeseesseeseeseeeesaeeseensersssesenees 2, 3,8 People v. Picklesimer (2010) 48 Cal4th 330eeeeccsseescensessseessssesseecssnessssesseesnesaseaveeeesved iV TABLE OF AUTHORITIES (continued) Pages Pringle v. Oregon (D. Or. 2014) 2014 WL 79532800... ecceesessessescssssessecssecssresseeesessnssenssseses 19 Rodriguez y. United States (1987) 480 U.S. 522eceteertecsecsceessetesseeeecsesseseseecssesssssesaseecaessesseasens 6 Ry. Express Agency v. New York (1949) 336 U.S. 106.0... sissesseesanecseceeusevseeaseneeceaeseaeeessesseesseetsecsesesatenss 22 Seven Up Pete Venture v. Montana (2005) 327 Mont. 306 [114 P.3d 1009] oo... ceseessssseseeeesetessseetsesreesens 18 Shoemaker v. Myers (1990) 52 Cal.3d 1 oicecsessessessecsecsesesssssseesesseessesseesecesseeesesecnsessecees 22 Skaw v. United States (Fed. Cir. 1984) 740 F.2d 932... cesccsessesenesecsesceeseseeseeseessesesaseessees sesneeaee 20 South Dakota Mining Association v. Lawrence County (8th Cir. 1998) 155 F.3d 1005 vo. eeseeeeecceecsecssesseessseeeesesseserseescsesans 19 Sutter County v. Nicols (1908) 152 Cal. 688oeccceeneeneeesesseeesevseeeecesesseeeecsessesssessesetseeesseats 1] Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002) 535 U.S. 302cccecscesscessesseenecsscessseessessseesseeeeeseseeessessteeeeues 21,25 Union Brokerage Co. v. Jensen (1944) 322 U.S. 202iceccceseeeesseeseeeseesneesensesseecsseestecsenessseesseesesssnssseentesss 9 United States v. Backlund (9th Cir. 2012) 689 F.3d 986 woeececsecseneccseceseeceeseesseeseseeessessesseereesess 13 United States v. Calif: State Water Resources Control Board (9th Cir. 1982) 694 F.2d 1171eeecccccscescenersecesseessseessessseessssseessessssessasens 4 United States v. Locke (2000) 529 US. 89eececsseeesceesesesseesscsseaeceeeessesenessseceessareesessesecseseasenss 4 TABLE OF AUTHORITIES (continued) Pages Ventura County v. GulfOil Corp. (9th Cir, 1979) 601 F.2d 1080 ooo...ecccccccecseeecseeessseceeesseeesstecssesseeees 19, 20 Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929ooecscssteeeesetnecsesneeeesseseseesseseeeseesseseaspassim Wachovia Bank, N.A. v. Watters (6th Cir. 2005) 431 F.3d 556 voce ecesssesscessecesseesssesetesseeseseesecessersesssesseeseees 4 Walnut Creek Manor vy. Fair Employment & Hous. Com. (1991) 54 Cal.3d 245 oo cicccsscccccssscssecssseesessssceeesesssecesseeeesescsesessssessseees 22 Woodruffv. North Bloomfield Gravel Mining Co. (C.C.D. Cal. 1884) 18 F. 753 occ ccccccsccsssecccesssesscesseeccesssnsesseesssevseaseueses 11 Wyeth v. Levine (2009) 555 U.S, 55S ceeccccccseccssseccsseescenseseeeeeestecesesseneatsesseseaeessenaes 4,15,17 Wyoming v. United States (10th Cir. 2002) 279 F.3d 1214occccsccccssscessecessssecesssesesssesssesssessstecees 4 FEDERAL STATUTES United States Code,title 16 . § 1600 et SOQ. oo. eeeseessscsceestecesstseeeeeestseesenaeers aseessaeecerenseeesssecnterseeeeeneers 21 United States Code,title 30 § Qa.eecccccecssssessessessecsesseeesecsusceseesecseesesssseceessecstsuesseseesuteeesesnesseeeesenatenetss 6 3 Qoecseteeeseeseecsesssseereersesssasesseseeeecaesevesesenesesensesaresaeeeeeseenseaeeareaspassim § 26... ceccccsccseesenssessessesscssesseessesenseeesnsesssenssestesessecseseatessseesessesensespeetensevsteseeas 9 § GL 2CA)-(C) oo. ceeessessecssescecsecessenecesseesesssecseeecsessessseseseseeeeaeesesssecsestseasseeseee 13 § 12D). eecccesssceseessessesssesesseecesseeneeeessesssesesuseeesessseeesssssncesssteeseenans 1,12, 13 I 13 United States Code, title 42 § 4331 (A) ecccccsccesesscescssceseessesensecesensessessssesssesseceeessesesseeeseeseeeverssessseseeseseees 6 § 4371(D)....ccceesssessessssscessseseseeseeesesseeesecesseeeseseeeceaseesseseesauseeesseersessseesetessenens 6 vi TABLE OF AUTHORITIES (continued) Pages CALIFORNIA STATUTES Civil Code § 3479.ecesccccsscessssecessevsssesssseceesssscsssevsrevesaueseseeverscseeetassensecetssevssecersseuecess 11 § 3480.cccccccscessescesssrssscsssscccusessscvsesssssecssavcnsesersaessenasseeceescerssesssusessaeers 11 § 3493 eeeccccsscecsesssessecsseeeesecceesssssesssssesrerssseessessesusevsesevsseseseeesesecsuertuueess 11 Evidence Code § O64... eccceccccssessessccssscsscesessssevsesscsssssessecesstecssesvessuseeseaseesuessasestusecesscetanees 24 § BOL. eeecscccesscesesssessecessecssessecesssssssssseceverseuesessesesseeesnsscenseceueceatevcauerenaaes 27 27 Fish and Game Code . § 2050 et SQ. eeeecescccsesessecesseesetseesetetseeseesessesssesecsssesessseecsssacseensessesserens 23 § S650... cccecsccssessesseccssccsssesescsssccusssccssceeeccesuvenseevesteseceacecsarersseevsuecesaueeaaes 23 § 5653.1, SUD. (BD)oeceesccesscesscsssscssscssscsesesasccssscraseascrsesseetesseesersees 21 § 5653.1, SUB. (D)(4)... ce ceeessscccsssecessecsscscssssecsssoesssesesacsereesecsecsaeeesueesenass 23 § 5653.1, SUB. (d) on... ecscecccccssssscsssecssccsssssesssessecseverseceauecracestetecsueesasecs 23 § LQO11, Subd. (€)(2) cee eeeccccsssssecssvessuereessecssesersarevsuesesecsuetsarecssnesensees 23 Government Code § 8670.61.5, SUDA. (D) oc ceccccesccssccsesseecssscsssssesevssseverscssessasvessenserseevsresens 23 Public Resources Code § 3981oeceeseccsscesssscessseeevessesssauecsssseseesurssversceceecesteaeeerenuuersuisesseesuesensaes 12 § 21000 et SEQ. oceiccceneccsssseceeessevseseeseesesseessssecseessesessecsecsaesevseseeessseneens 23 Water Code § 12314, SUDA. (C)..e ce sesesssccessseeessrssscessesscussscsessessssessessssesussssesseecaseesereaecs 23 § 79560.1, SUD. (D) oc ceeceseceeecsssecsssecssscsssssevscscsssusesssecsasacesaseasectseeesatess 23 Stats. 1893, ch. 223, p. 337 § Lessscccscesssssssssssssecesssssssevsssssseeasssssrasesssansesese 12 Stats. 2011, ch. 133, § 6... ce ecsesscccessssecssevssseccevsveesseseveesseetssesseveeenesenseesenes 22 Stats. 2012, ch. 39, § 7. ccccscssccssseecessecssscsseessscsssecssecsavevesscessvsasevsavarenseenes 21, 22 vil TABLE OF AUTHORITIES (continued) Pages STATE AND FEDERAL REGULATIONS Code of Federal Regulations,title 36 § 228.5(D)..cecsccssececcsseceseecseseserseescsecsescscsesaesesecsevsssesussssscsesevavaceseevavavavavenes 16 § 228.8... ecccscescssssscneseesseeesesecseesesessuscsesesevaesessecessssusessscsssssscssssvavsvavecavaees 16 § 228.8(a)-(C) .csccercscssecssessessesecssesssesesesesesseeessececsesscsssssscessesasessavsvavareveaes 16 Code of Federal Regulations,title 43 § 3809.3 ccceesesetecetsrscssessseseessssssssseesssesecsevssssssssusecscsessvsseaveveeasavacanes 15 § 3830.2. eccecsesessssseesrsceeessesseerssssssesssessseecsecessssessseecsssessvsssscevsvavssseaces 16 § 3830.5cc essesesesessesetesseesscsseecsecsesscsssesssesccsesesateessesessesssscsesstsseevavevstacevates 16 California Code of Regulations, title 14 8 S382.eeesesessseretesterseeeseesscessssvevasseesseessucsessessessesssvevsevssesvacseevacaceees 23 § S384.ccsseceeessecsessseneescereessesstssesesssecsesaesesssseesesesscsessssscessevseeevaes 23 OTHER AUTHORITIES 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)... 15, 16 Congressional Record (House), July 18, 1892.0... ccccccsccscsscecsereesessssesseseeees 11 Curtis H. Lindley, American Law Relating to Mines and Mineral Lands (1897) cesesecssesecssseeseeseseesessseenesssesesesessscsasssnesescscaresanensesseecatersesagacensusaeacasasees 9 George C. Coggins & Robert L. Glicksman, Public Natural Resources Law (2d ed. 2007 & 2015 Supp.) ....ccccccscscsseseeseesesscsesssessnscsscsssecssssseseners 20 Great Basin Mine Watch (Dept. of Int. Mineral Mgmt. Serv. Nov. 9, 1998) 146 IBLA 248 [1998 WL 1060687] ...... cc ccecccssesesecsecscsseescsscssrecssseeverseeees 18 House Conference Report No. 84-1096 (July 11, 1955) reprinted in 1955 ULS.C.C.ALN. 2496ieccscceescsesecsessessesesecsessesssesesessessecsecssssseussessvsvessaeseaes 14 House Report No. 84-730 (June 6, 1955) reprinted in 1955 U.S.C.C.A.N. DATA cccccccesesenseseesssesseseseeecsesetseesecsusesssensesesessesasssessesscsecsesssssssesetecavaevecavaces 12 Mining Claims Under the General Mining Laws; Surface Management, 64 Fed.Reg. 6422 (Feb. 9, 1999) oo. ccccsssessessessssscsesscsscscsssesssseusevsvsevevevaves 17 Vill TABLE OF AUTHORITIES (continued) Pages Mining Claims Under the General Mining Laws; Surface Management, 65 Fed.Reg. 69998 (Nov. 21, 2000)......ccccesescsesscssssesesesstessssssssesvesesens 15, 16 iX INTRODUCTION The People’s opening brief demonstrated that the text and history of the federal mining statutes show nointent to preempt state environmental regulation unless the state-imposed requirements makeit impossible to comply with federal law. That conclusionis strongly buttressed by the rule of construction under which Congress is presumed not to have intended to supplant state law unless it speaksclearly to the issue, and by the views of relevant federal agencies which are given strong weight under California Coastal Commission v. Granite Rock, Co. (1987) 480 U.S. 572. California’s suction dredge mining statute does not render compliance with federal requirements impossible, and it therefore is not preempted. Appellant Rinehart’s response argues that the presumption against preemption does not apply because his mining claim is on federal land and because miningis a subject of longstanding federal regulation. But federal precedents require a clear statement of congressional intent to preemptstate law evenasto activities on federal land, and the U.S. Supreme Court has clarified that a presumption against preemption applies whereverthere is a long history of state regulation, regardless of the history of federal involvement. Precedent also requires rejection of Rinehart’s argumentthat Congress’s purpose to promote mining implies an intent to override state laws affecting the profitability of his claim. The text and history of 30 U.S.C. § 22 do not support Rinehart’s claim of broad-based preemption, and 30 U.S.C. § 612(b) affects only the powers of the federal government, not the states. Federal agencies have endorsed the view that statutes such as California’s are not preempted. Those agencies’ conclusions remain highly relevant, not only because Granite Rock considers agency views critical to mining-law preemption questions, but also because the agencies’ special knowledge and experience gives them special insight into what kinds of state laws would,as a practical matter, frustrate congressional goals. Additionally, Rinehart’s reliance on out-of-jurisdiction cases upholding preemption claims fails, because those cases largely predated and are superseded by Granite Rock, and the one post-Granite Rock case suffers numerousanalytical flaws. Those observations render Rinehart’s factual allegations about California’s legislation irrelevant,since Rinehart concedesthat it would not be impossible for him to comply with both state and federal law. But even if a broader view of obstacle preemption wereat issue, Rinehart’s claim would fail. Rinehart’s mischaracterizations notwithstanding, California’s statute is a reasonable environmental regulation, whichis neither unprecedented nor designed to be permanent. Thestatute, by its own terms, is not a prohibition but is rather a delay in permitting based on suction dredge mining’s environmental effects and set to expire when thoseeffects are addressed. Under Granite Rock, it is permissible. The Court of Appeal’s “commercial impracticability” standard for preemption remains ill-suited to judicial application, and Rinehart’s argument for this Court to expand the Court of Appeal’s relief by entering judgment in his favoris meritless. Because Rinehart has no viable preemption defense, the Court should affirm the trial court’s conviction. ARGUMENT I. CONGRESS INTENDED FEDERAL MINING LAW TO PREEMPT ONLY THOSE STATE LAWS WHICH WOULD MAKE IT IMPOSSIBLE TO COMPLY WITH FEDERAL LAW A party seeking preemption has the burden to prove that Congress intended to preemptthestate law. (Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 936.) Rinehart fails to meet this burden. A. The Presumption Against Preemption Applies to the Existence and Scope of Rinehart’s Preemption Claim “In all pre-emption cases, and particularly in those in which Congress has legislated ... in a field which the States havetraditionally occupied, we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” (People ex rel. Harris v. Pac Anchor Transp., Inc. (2014) 59 Cal.4th 772, 778, internal quotation marks omitted and quoting Brown v. Mortensen (2011) 51 Cal.4th 1052, 1060.) This isa “cornerstone[]” of preemption analysis. (Pac Anchor, supra, 59 Cal.4th at p. 778, internal quotation marks omitted.) The presumptionis “strong,” and “applies not only to the existence, but also to the extent, of federal preemption.” (Brown, supra, 51 Cal.4th at p. 1064.) If two readings of a federal statute are plausible, courts must “accept the reading that disfavors pre-emption.” (Bates v. Dow Agrosciences LLC (2005) 544 U.S. 431, 449.) Under Brown and Bates, because the Mining Act of 1872 can be read as preempting only state environmental laws that would makeit impossible to comply with federal mandates (see Opening Brief 11-20), this Court must presumethatthat is the full extent of preemption that Congress intended. Rinehart does not dispute that California’s regulation to protect fish and wildlife and preserve water quality and the environment concern “field[s] which the States have traditionally occupied.” (Pac Anchor Transp., supra, 59 Cal.4th at p. 778, internal quotation marks omitted.) Nordoes Rinehart dispute that California has acted in these fields since the Nineteenth Century, even whenthe state regulation affects mining. (Opening Brief, p. 22.) Instead, Rinehart argues that the presumption does not apply for two reasons. First, Rinehart suggests the presumption cannot apply becausehis activity occurred on federal land. (Rinehart Brief, p. 19.) But the presumption does, in fact, apply on federal land. (See Wyoming v. United States (10th Cir. 2002) 279 F.3d 1214, 1231 [no preemption of | “Wyoming’shistorical police powers to manage wildlife on federal lands within its borders “unless that was the clear and manifest purpose of Congress’”]; United States v. Calif, State Water Resources Control Bd. (9th Cir. 1982) 694 F.2d 1171, 1172 fn. 1, 1174-76 [applying the presumption against preemption in case regarding reclamation project on federal land controlled by the DepartmentofInterior; analyzing Congress’s powers under the Property Clause].) Second, Rinehart claims that under United States v. Locke (2000) 529 U.S. 89, 108, the presumption does not apply when ““‘the State regulates in an area where there has been history of significant federal presence.’” (Rinehart Brief, p. 21 [also citing Wachovia Bank, N.A. v. Watters (6th Cir. 2005) 431 F.3d 556].) But the U.S. Supreme Court has more recently clarified that application of the presumption depends uponthe “historic presence ofstate law,” not on “the absence of federal regulation.” (Wyeth v. Levine (2009) 555 U.S. 555, 565 fn. 3; see Jn re Countrywide Financial Corp. Mortgage-Backed Securities Litigation (C.D. Cal. 2013) 966 F.Supp.2d 1018, 1025 fn. 5 [explaining that Wyeth “clarified” Locke].) Thus, Wyeth requires application of the presumption wherethere is a long history ofstate regulation, even in areas which also feature longstanding federal regulation. (See McDaniel v. Wells Fargo Investments, LLC (9th Cir. 2013) 717 F.3d 668, 675 [securities regulation]; Pacific Merchant Shipping Assn. v. Goldstene (9th Cir. 2011) 639 F.3d 1154, 1167 [maritime commerce]; see also Jn re Cipro Cases I & IT (2015) 61 Cal.4th 116, _ [2015 WL 2125291, *24] [antitrust].) In light of California’s long history of regulating environmentally destructive mining practices (see Opening Brief pp. 4 fn. 3, 17-18, 22), the presumption against preemption applies in this case. B. The Mining Act of 1872 Does Not Preempt California’s Law Rinehart argues that, instead of applying the presumption against preemption, this Court should infer a wide-ranging preemptive scope for federal mining law. Rinehart does not contradict the People’s account of the legislative history behind the Mining Act of 1872, the main purpose of which was to removetrespassingrestrictions and allow citizens onto federal land. (See Opening Brief, pp. 12-13.) Although the People demonstrated that Congress intended to preserve state authority over unpatented mining claims(id. pp. 13-17), Rinehart calls such arguments “sophistry,” and instead makes general assertions about the mining law’s purpose, which he supports by scattered textual references. (Rinehart Brief, pp. 36-39.) ‘1. Congress’s General Intent To Promote Mining Does Not Establish Preemption Rinehart first argues that the Mining Act of 1872 was intended to promote mining, and that Congress’s purposeis therefore frustrated by state regulation that makes any mining moredifficult or less profitable. (Rinehart Brief, pp. 36-38.) Obviously, one of Congress’s purposes wasto promote mining. (Opening Brief, p. 2.) But Congress’s general intent to promote an activity does not prove congressional intent to preemptstate regulation that may inhibit that activity. (Commonwealth Edison Co.v. Montana (1981) 453 U.S. 609, 633-34; Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Development Com. (1983) 461 U.S. 190, 221-23.) Although Rinehart attempts to distinguish these cases by claiming that they considered only the preemptive effect of “vague and general statutory purpose clauses” (Rinehart Brief, pp. 31-32), the congressional purposes in those statutes were no more general than Rinehart’s claimed purpose for the mining laws,to “get the minerals out of the ground.” (Rinehart Brief, p. 30.) Commonwealth Edison reasonedthat although federal statutes evinced a purpose of “encouraging the use of coal,” “[w]e do not ... accept appellants’ ... suggestion that these general statements demonstrate a congressionalintent to pre-emptall state legislation that may have an adverse impacton the use of coal.” (453 U.S.at p. 633.) Rinehart’s argumentis essentially the same as what the Supreme Court found wanting in Commonwealth Edison, and should be similarly rejected. Rinehart is also wrong to portray federal mining law as focused single-mindedly on resource extraction. “[N]o legislation pursuesits purposesat all costs.” (Rodriguez v. United States (1987) 480 U.S. 522, 525-26.) Federal mining law is intended to “assure satisfaction of industrial, security, and environmental needs.” (30 U.S.C. § 21a, emphasis added.) Indeed, as the Idaho Supreme Court noted in a pre-Granite Rock case finding no preemption of a dredge mining permit requirement, Congress often depends on state regulation to further environmental goals. (Jdaho ex rel. Andrus v. Click (1976) 97 Idaho 791, 799 [554 P.2d 969, 977] [quoting 42 U.S.C. § 4331 (a) (noting the “continuing policy of the Federal Government, in cooperation with State and local governments, ... to create and maintain conditions under which man and nature can exist in productive harmony”) and 42 U.S.C. § 4371(b) (announcing “a national policy for the environment which provides for the enhancement of environmental quality,”andstating that “[t]he primary responsibility for implementing this policy rests with State and local governments”).]) Andrus reasonedthat “[t]hese statements ... evidence a concern that developmentbe carried out wherever possible so as to minimize its adverse impact on environmental quality.” (bid.) Andrus found Idaho’s dredge miningstatute to be “in harmony with this goal” where the statute.allowed a permit to be withheld if the operation “‘would not be in the public interest, giving consideration [to factors including] fish and wildlife habitat.’” (Jd. at pp. 796, 799.) California’s moratorium, which is designed to pause suction dredge mining until similar protections can be assured, should be similarly upheld. Rinehart also claims that Congress “grant[ed] specific property rights to specific parcels for mineral development”and that the state cannot “forbid,” “impair,” or “obstruct” that activity on any such parcel. (Rinehart Brief, pp. 29-31.) But the Supreme Court has upheld state regulations notwithstanding their effects on activities licensed under federal law. (See Commonwealth Edison, supra, 453 U.S. at p. 629 [coal mining leases under the federal Mineral Lands Leasing Act of 1920]; Pacific Gas & Elec. Co., supra, 461 U.S. at pp. 206-07 [nuclear powerplants licensed under the federal Atomic Energy Act].) In neither case was congressional encouragementof an activity combined with the grant of a federal privilege enoughto preemptstate regulation. Nor has Congressspecifically sanctioned suction dredge mining on Rinehart’s parcel. In Viva! and Bronco Wine Co. v. Jolly (2004) 33 Cal.4th 943, the party arguing preemption, like Rinehart, “contendedthat state law prohibited what federal law authorized.” This Court reasonedthat “[t]here is a difference between (1) not making an activity unlawful, and (2) making that activity lawful.” (Viva!, supra, 41 Cal.4th at p. 952, internal quotation marksand ellipses omitted and quoting Bronco Wine, supra, 33 Cal.Ath at p. 992.) Here, as in Bronco Wine and Viva}, “‘it is more accurate to characterize the state statute as prohibiting ... what the federal [regulation] 399does not prohibit.’” (Ibid., emphasisin original.) Under Bronco Wine and Viva!, that type of prohibition poses no conflict and does notresult in _preemption. | Rinehart arguesthat the federal mining laws “struck the balance between protecting the natural environment and extracting the minerals” (Rinehart Brief, pp. 3-4), and that California cannotalter that balance by imposing additional requirements. But that argument doesnot survive Granite Rock. The dissenting justices in that case argued that Congress could not have intended a system where “state regulators, whose views on environmental and mining policy may conflict with the viewsofthe Forest Service, have the power, with respect to federal lands, to forbid [mining] activity expressly authorized by the Forest Service.” (480 U:S.at p. 606 {conc. & dis. opn. of Powell, J.J.) But the majority in Granite Rock directly rejected this view, requiring an “actual conflict between state and federal law.” (480 USS.at pp. 593-94.) The U.S. Supreme Court’s rejection of that argument there should lead this Court to reject Rinehart’s argumenthere as well. 2. Rinehart’s Textual Arguments Fail The Mining Act of 1872 allows miners to enter federal land to mine “under regulations prescribed by law, and according to the local customs or rulesof 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.) Although Rinehart appears to concede that the phrase “regulations prescribed by law” envisionsa role for state statutes (see Opening Brief, pp. 14-17), he argues that California’s suction dredge miningstatute is “inconsistent with the laws of the United States” because it is an “obstacle[]” to the “full purposes and objectives” of the federal law andits ““‘liberal spirit.’” (Rinehart Brief, pp. 37-38.) But section 22 requires consistency with federal “laws” — not with more vague notions of 99 66federal “spirit,” “objective[],” or “purpose[].” As the People have explained, the phrase “not inconsistent with the laws of the United States” effectively codifies what is understood now asconflict preemption, which occurs whenit is impossible to comply with both federal law andstate law at the same time. (Opening Brief, p. 15 fn. 7; cf. Pac Anchor Transp., supra, 59 Cal.4th at p. 778 [using the term “conflict preemption”to discuss scenarios in whichit is impossible to comply with both state and federal law]; Viva!, supra, 41 Cal.4th at p. 936 [same].) In state-federal relations, where “the Governmenthasprovided for collaboration the courts should not find conflict.” (Union Brokerage Co. v. Jensen (1944) 322 U.S. 202, 209.) Under the presumption against preemption, the non-preemptive interpretation must be given effect. (See supra pp. 3-4.) Rinehart argues that 30 U.S.C. § 26 “sharpens [c]ongressional intent” by explicitly preserving only state laws “‘governing ... possessory title.’” (Rinehart Brief, pp. 37-38, emphasis omitted; see 30 U.S.C. § 26 [granting mining claim locators “exclusive right of possession and enjoyment”“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”].) But Granite Rock gave effect to state permitting laws having nothing to do withtitle. (480 U.S.at p. 576.) Moreover,there is nothing in section 26 concerning possessory title that would override section 22’s requirement that miners comply with “regulations prescribed by law” when mining. . Rinehart’s position finds no support from an isolated statement in Butte City Water Co. v. Baker (1905) 196 U.S. 119, 125, that, with respect to mining, the state cannot “impos[e] conditions so onerousas to be repugnantto the liberal spirit of the Congressional laws.” (Rinehart Brief, p. 38.) That was not a holding of the Court but rather the Court’s preliminary quotation (see Butte City, supra, 196 U.S. at p. 125) of a treatise, which asserted the proposition without citation. (1 Curtis H. ' Section 22’s express provision discussing the scope of preemption also creates a rebuttable inference that there is no additional implied preemption. (See Viva!, supra, 41 Cal.4th at pp. 944-45.) This is consistent with the view that only an express conflict makingit impossible to comply with both federal and state law can give rise to preemption in the mining context. Lindley, Am. Law Relating to Mines & Mineral Lands (1897) § 249, p. 310.) In any event, it cannot bear the weight Rinehart places on it. The legislative history, explained in the People’s opening brief and not contradicted by Rinehart, shows that Congress’s overriding purpose and motivation for passing what is now codified in section 22 wasits intention to removethe trespassing restrictions that would otherwise have barred miners from entering federal land. (Opening Brief, pp. 12-13.) California’s law does nothing to hinder or obstruct that purpose. Butte City did not involve environmental regulations, but rather the validity of state requirements “concerning the location of mining claims” — thatis, requirements for establishing title. (196 U.S. at pp. 122, 127-28.) Even ifa similar “liberal” spirit applied to federal requirements concerning matters besidestitle, the federal statute’s intent is protected so long as states do not pass lawsthat directly conflict. As the People have demonstrated, Congress acted with full awareness that it was preserving a substantial sphere for continued state and local control. (Opening Brief, p. 16 [citing legislative history].) Rinehart points to no contrary indication, and contrary reasoning might require preemption of state laws on dynamite and hydraulic mining, as well as general state laws which happentoaffect mining. (See infra p. 16; Opening Brief, pp. 37-38.) 3. California’s History of Regulating Hydraulic Mining — and Congress’s Response — Disprove Rinehart’s Claim The People’s opening brief showsthat after the Mining Act of 1872 was enacted, Congress was confronted with several cases decided under state law that prohibited hydraulic mining in California; Congress did nothing to overturn these decisions, evidencingan intent to preserve the existence of state law mining regulations and prohibitions. (Opening Brief, pp. 17-19.) Rinehart contends that these cases are irrelevant because they 10 weretort lawsuits regarding downstream damage from mining on privately held land. (Rinehart Brief, pp. 39-40.) In fact, Woodruffv. North Bloomfield Gravel Mining Co. (C.C.D. Cal. 1884) 18 F. 753 concerned California’s nuisancestatutes, not just common law. (/d. at p. 770 [injunction under Civil Code sections 3479, 3480, and 3493].) More importantly, these cases considered and rejected many of the same arguments on which Rinehart relies. They rejected miners’ claimsthat the state laws should yield because “the main objects and purposes of [federal mining law] are to encourage the production of gold.” (County ofSutter v. Nicols (1908) 152 Cal. 688, 694.) They likewise rejected miners’ arguments that Congress’s permission to engage in mining-related activity barred the state from prohibiting it. (Woodruff, supra, 18 F. at p. 770 [miners argued that federal mining laws“authorized the use ofthe navigable waters of the Sacramento and Featherrivers for the flow and deposit of mining debris; and having so authorizedtheir use,all the acts of defendants complained of are lawful”); see generally id. at pp. 773-75 [discussing federal mining laws].) The miners’ complaint to Congress(like Rinehart’s complaint here) wasthat, as the result of the application of state law, a particular form of mining was “suppressed.” (See People’s Request for Judicial Notice, filed March 23, 2015, (“RJN”), Exh. L [Cong. Rec. (House), July 18, 1892,p. 6344, remarks of Rep. Cutting].) Although Congress could have respondedby forbidding states from barring particular forms of mining based on environmental destructiveness, it chose not to do so whenit ? Rinehart asserts that the hydraulic mining cases regulated only an effect of mining, not the mining activity itself. But downstream debris was an integral part of hydraulic mining (Woodruff, supra, 18 F. at p. 756), and miners claimedthat the hydraulic decisions had effectively “paralyzed” the industry (RJN, Exh. L, p. 6344). 1 enacted further mininglegislation in 1893. (OpeningBrief, pp. 18-19.) In light of this history, Rinehart’s attempt to read broad preemption into the federal mining laws cannotbesustained.” C. Section 612(b) Limits Only Federal, Not State, Action Focusing on a statute the Court of Appeal did not rely on, Rinehart (at pp. 32-36) argues that his claim is supported by twoprovisionsof 30 U.S.C. § 612(b). The first provision is section 612(b)’s statement 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.” Rinehart maintains that this imposes a general limitation that “regulation to protect other interests, including environmental interests, may not materially interfere with mineral development.” (Rinehart Brief, p. 33.) This provision, which addresses only “the United States, its permittees or licensees,” says nothing about state law. Congress passedthis statute out of concern about people whogained control of land by making spurious mining claims whentheir real goal wasto profit from non-mining surface uses such as logging and runningfilling stations or summer camps. (H. Rept. No. 84-730 (June 6, 1955), p. 6, reprinted in 1955 U.S.C.C.A.N. 2474.) The statute, which reserves such surface rights to the United States, was therefore designedto settle rights between miners on the one hand and > Rinehart asserts that the cases enjoining hydraulic mining “did not involve federal mining claims or federal land.” (Rinehart Brief, p. 40 & fn. 11.) But the opinionsat issue do not base their reasoning on any such assertion; nor are California’s statutory restrictions on hydraulic mining limited to non-federal land. (See Pub. Resources Code, § 3981 [originally enacted by Stats. 1893, ch. 223, p. 337 § 1].) 12 the federal governmentand those under federal contract on the other. (30 U.S.C. § 612(a)-(c).) Nothing in the legislative history or elsewhere points to a broader congressional intent. The dispute resolution mechanism in the statute provides for participation by federal departments and agencies, making no mention ofstate actors. (30 U.S.C. § 613.) Rinehart’s reliance on cases such as United States v. Backlund (9th Cir. 2012) 689 F.3d 986 (Rinehart Brief, pp. 4, 33-35), which scrutinize federal action under section 612(b), is therefore unhelpful because such cases say nothing about the latitude afforded to states to regulate. It was entirely logical for Congress to make a policy choice that limits federal agencies but leaves states free to make their own choices based on local conditions. (See, e.g., Centerfor Competitive Politics v. Harris (9th Cir. 2015) 784 F.3d 1307, 1318-19 [federal statute prohibiting federal agency from disclosing federal tax return to state governments does not preempt state from requiring the taxpayerto disclose the return to the state directly].) Rinehart’s view that congressional limitations on federal power amount to preemption ofstate poweris an argument for preemption-by-implication, which cannot be squared with the presumption against preemption’s requirementof a “clear and manifest” intent to preempt. (See supra pp. 3-4.) The second statement in section 612(b) that Rinehart relies on isits proviso that “nothing in this subchapter and sections 601 and 603 ofthis 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 ofthe ninety-eighth meridian relating to the ownership, control, appropriation, use, and distribution of ground or surface waters within any unpatented mining claim.” (Rinehart Brief, pp. 35-36.) This provision preservesstate priority of water rights between various waterusers, including federal permit holders such as miners andcattle grazers. It . prevents the federal government from taking control of water that states had 13 allocated to miners, whether or not that water was necessary to the mining operation. (See H. Conf. Rept. No. 84-1096 (July 11, 1955), p. 3, reprinted in 1955 U.S.C.C.A.N. 2496 [“this amendment makesclear an intent to leave unaffected the operation of State water laws ... governing the ownership, control, appropriation, use, and distribution of groundor surface waters”].) Rinehart maintains that by this provision Congress “carved out a role only”for state laws pertaining to waterrights, leaving states no other ability to affect mining. (Rinehart Brief, p. 35.) But that argument by implication is unpersuasive given the presumption against preemption and 30 U.S.C. § 22’s requirement that miners comply with “regulations prescribed by law.” Moreover, Rinehart’s argument would effectively bar California from any regulation — including not only that allowed in Granite Rock but also longstanding seasonalrestrictions on mining during sensitive times of the year andrestrictions on the use of certain chemicals, which Rinehart elsewhere claimshe is not challenging. (Rinehart Brief, pp. 56- 57.) D. This Court Should Follow BLM’s View thatState Mining Regulations Do Not Obstruct Congress’s Purposes Unless they Makeit Impossible To Comply with Federal Law As the People have explained, Granite Rock provides further guidance about how to resolve claims of preemption under federal mining law: by looking to federal agency regulations. (Opening Brief, pp. 25-28.) Rinehart wrongly contends that Granite Rock considered only the test for field preemptionandnot obstacle preemption. (Rinehart Brief, p. 48.) It is true that in Granite Rock the plaintiff challenged the very existence of a permit requirement (480 U.S. at p. 580), whereas Rinehart wants to be given a permit. Rinehart is wrong, however, to state that Granite Rock ignored obstacle preemption. Granite Rock followed an analysis under which the state statute would be preempted not only if Congress had 14 occupied the field, but also if the state law ‘““‘actually conflict[ed] with eefederal law’”or ““‘st[ood] as an obstacle to the accomplishmentofthe full purposes and objectives of Congress.’” (480 U.S.at p. 581.) Granite Rock provides an answeras to congressional intent, which SOG8is the ultimate touchstone in every pre-emption case. 999 (Wyeth, supra, 555 U.S. at p. 565.) Granite Rock concluded that the Mining Act of 1872 itself expressed no specific intent “on the as yet rarely contemplated subject of environmental] regulation,” and that federal preemptive intent should be evaluated by looking to agency regulations. (480 U.S. at p. 582-83; see ibid. [“one would expect to find the expression of [preemptive] intentin the[] Forest Service regulations”].) As the People have shown (OpeningBrief, pp. 23-25), the U.S. Bureau of Land Management (BLM), an agency with substantial expertise administering federal mining law, has determined through formal rulemakingthat a state environmental regulation applied to mining on federal land “is preempted only to the extent that it specifically conflicts with federal law,” which occurs “only whenit is impossible to comply with both Federal and State law at the same time.” (Mining Claims Under the General Mining Laws; Surface Management, 65 Fed.Reg. 69998, 70008-09 (Nov. 21, 2000).) BLM has further concluded that thatstandard is not met “if the State law or regulation requires a higher standard of protection for public lands,” such as wherethe state regulation bans one form of mining. (bid.; 43 C.F.R. § 3809.3; see Opening Brief, pp. 24-25.) Rinehart claims that BLM’s viewis irrelevant because his mining claim is in a national forest. (Rinehart Brief, p. 44.) But that contention fails for two reasons. First, the U.S. Forest Service concurs that the test for preemption is whether the state regulation on mining directly “conflicts” with federal law. (Clarification as to When a Notice of Intent To Operate and/or Plan of 15 Operation Is Needed for Locatable Mineral Operations on National Forest System Lands, 70 Fed.Reg. 32713, 32722 (June 6, 2005).) Thisis consistent with Forest Service regulations that require compliance with variousstate laws. (E.g., 36 C.F.R. §§ 228.5(b), 228.8 [discussed in Granite Rock, supra, 480 U.S. at pp. 583-84].) Attempting to minimize these regulations’ import, Rinehart argues that one regulation’s introductory phrase requires miners to “minimize adverse environmental impacts” only “where feasible.” (Rinehart Brief, p. 47, quoting 36 C.F.R. § 228.8.) But the Forest Service’s specific provisions requiring compliance with state air quality, water quality, and solid waste standards have no such qualifying language. (See id. § 228.8(a), (b), (c).) In sum, evenifthe Forest Service has not explained its views as extensively as BLM has, there is nothing to suggest that the Forest Service views preemption differently than BLM.’ Second, BLM hasspecial insight into the question of federal-land- based mining law preemption becauseofthe agency’s general authority over mining on federal land nationwide — including mining within national forests. (See 43 C.F.R. § 3830.2 [“These [BLM] regulations govern locating, recording, and maintaining mining claims ... on al/ Federal lands.” (emphasis added): id. § 3830.5 [defining “Federal lands”as including national forest land].) Indeed, Rinehart’s mining claim at issue here arises from documents he filed with BLM. (Rinehart Brief, pp. 13-14 * Rinehart claimsthat a single Deputy Regional Forester’s decision on one plan of operations says the opposite. (Rinehart Brief, pp. 46-47.) But that decision does not address preemptionat all; it amounts merely to a discretionary decision that the state permit requirement would not be explicitly incorporated as a requirement of one particular federal plan of operations. (Rinehart Request for Judicial Notice, Exh. 2.) It certainly does not carry more weight than the Forest Service’s formal statement endorsing conflict preemption. (70 Fed.Reg. at p. 32722.) 16 [discussing Rinehart’s filing of Location Notice with BLM, and BLM’s “accept[ance]” of the notice and registration of the claim].) BLM applies and interprets the entirety of federal mining law, includingthe statutes on which Rinehart relies. Given BLM’srole administering federal mining law throughout the country, the agency has, under Wyeth, “a unique understanding ofthe statutes [it] administer[s] and an attendant ability to make informed determinations about how state requirements may pose an ‘obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” (555 U.S. at p. 577.) Rinehart’s claim that BLM’s view misinterprets the federal statute misunderstands Congress’s balance of goals in passing the mining law. (See Opening Brief, pp. 11-20 [discussing text and legislative history]; see also supra pp. 5-14 [same].) It also fundamentally misunderstandsthe reason courts look to agency preemption views under Wyeth. In concluding that state regulations are not preempted unless they directly conflict with federal requirements, the federal agencies here have not “wipe[d] out two of the three branches of implied preemption law” as Rinehart argues. (Rinehart Brief, pp. 45-46.) Instead, BLM andthe Forest Service, applying their “unique understanding” of federal and state mining regimes, have made an “informed determination[]” that state requirements such as California’s do not “pose an ‘obstacle to the accomplishmentand execution of the full purposes and objectives of Congress.’” (Wyeth, supra, 555 U.S. at p. 577.) BLM didso in response to the express urging of the U.S. Supreme Court. (Granite Rock, supra, 480 U.S. at p. 583; Mining Claims Under the General Mining Laws; Surface Management, 64 Fed.Reg. 6422, 6427 (Feb. 9, 1999) [proposedrule, citing Granite Rock].) The agencies have determined that Congress’s “full purposes and objectives’” (Wyeth, supra, 555 U.S.at p. 577) will still be accomplishedif states impose greater levels of protection, or even if states ban one kind of mining that may 17 render some claims unprofitable.* This does noteliminate the principle of obstacle preemption. Rather, it is an informed application of that doctrine, in which the agencies have used their expertise to evaluate whether particular kinds of state regulation will, as a practical matter, frustrate Congress’s goals, and have concludedtheywill not.® E. Precedent Does Not Support Preemption Rinehart contendsthat “[e]very reported case addressing state-law- based refusals to issue permits to mine on federal lands has found ° Rinehart claims (Rinehart Brief, p. 46 fn. 12) that BLM’s acceptance of bans on one form ofmining is flawed because BLM “misread” a Montana case, Seven Up Pete Venture v. Montana (2005) 327 Mont. 306 [114 P.3d 1009]. In fact, BLM did not purport to interpret the Seven Up case,sincethatlitigation occurred after BLM’s 2000 rulemaking. But BLM’srulemaking and Seven Up did directly consider the same Montanastatute, Montana Code section 82-4-390. (See Seven Up, supra, 327 Mont. at p. 309; 65 Fed.Reg.at p. 70009.) The statute banned a particular method of mining that miners believed wasthe only economically viable way to mine. (Seven Up, supra, 327 Mont. at p. 313.) Whetherornot the particular plaintiffs in Seven Up had unpatented claims on federalland is irrelevant; BLM’s rulemaking concluded that applying the Montanastatute to such claims on federal land would not pose an obstacle to congressional goals. That reasoning should lead to a similar conclusion here. © Rinehart, taking issue with BLM’slongstanding position that compliance with all applicable state laws is relevant to whether a federal mining claim is “valid,” argues that state law is relevant only whenissuing a patent. (Rinehart Brief, pp. 29 fn. 9, 55 fn. 16.) But BLM also assumes that the claimant will comply with all applicable state laws when considering a miner’s basic plan of operations and when deciding whether to “take affirmative steps to invalidate a claim by filing a mining contest.” (Great Basin Mine Watch (Dept.of Int. Mineral Mgmt. Serv. Nov. 9, 1998) 146 IBLA 248, 256 [1998 WL 1060687] [citing various decisions].) This reflects the BLM’s expectation, from start to finish, that miners will comply with all state laws that do not directly conflict with federal law. 18 preemption.” (Rinehart Brief, p. 22, emphasis omitted.)’ The decisions Rinehart cites are neither binding nor persuasive on the issuesraised here. Ofthe cases cited by Rinehart, only South Dakota Mining Association v. Lawrence County (8th Cir. 1998) 155 F.3d 1005 postdates Granite Rock. (Rinehart Brief, p. 22.) The People have shown that South Dakota Mining not only failed to analyze the federal mining laws’ text or history, but also failed to consider agency views, the presumption against preemption, or the Supreme Court’s warning that an intent to encouragean activity is not the sameas an intent to preemptstate regulation. (Opening Brief, pp. 34-36.) South Dakota Mining therefore haslittle persuasive power. Rinehart’s other cases all predate Granite Rock, and are no longer authoritative. Like South Dakota Mining, these cases do not address the federal agencies’ views or the presumption against preemption. Most importantly,all of these cases were decided on the theory that the state laws at issue were preempted because Congress encouraged miningactivity on federal land by granting a permit for the activity. As discussed above, Granite Rock explicitly rejected this theory. (See supra pp. 7-8.)* Ventura County v. GulfOil Corp. (9th Cir. 1979) 601 F.2d 1080 exemplifies the problems with the precedents on which Rinehart-relies. Ventura County struck downapplication of a local permitting requirement, because “‘[t}]he federal Governmenthas authorized a specific use of federal ’ Rinehart doesnot cite or discuss a recent unreported federal case Pringle v. Oregon (D, Or. 2014) 2014 WL 795328, which holdsthat Oregon’s prohibition on suction dredge mining is not preempted as a matter of law. 8 Elliott v. Oregon International Mining Co. (1982) 60 Or.App. 474 [654 P.2d 663], Brubaker v. Board ofCounty Commissioners (Colo. 1982) 652 P.2d 1050, and South Dakota Mining are also distinguishable from this case because they were cases involving local zoning ordinances, not statewide environmental laws focused on mining equipment and methods. 19 lands, and Ventura cannotprohibit that use, either temporarily or permanently, in an attempt to substitute its judgment for that of Congress.” (601 F.2d at p. 1084.) The Ninth Circuit cited Ventura County andrelied on this precise holding when it found preemption in the Granite Rock case, (Granite Rock Co. v. Calif, Coastal Com. (9th Cir. 1985) 768 F.2d 1077, 1082; see also Granite Rock, supra, 480 U.S.at p. 611 [dis. opn. of Scalia, J., citing to Ventura County].) But the U.S. Supreme Court disagreed and reversed, holding there was no preemption becausestates could regulate mining evenif that mining had a federal approval. (See supra pp. 7-8.) As a result, “the Granite Rock opinion as a whole apparently reduces [Ventura County’s| precedential value to nil.” (1 George C. Coggins & Robert L. Glicksman, Public Natural Resources Law (2d ed. 2007 & 2015 Supp.) _ § 5:28.) Similar problemsaffect Brubaker, supra, 652 P.2dat pp. 1056-59 and Skaw v. United States (Fed. Cir. 1984) 740 F.2d 932, 940, which likewise relied on Ventura County’s theory of preemption andare no longer good law. (See 1 Coggins & Glicksman, supra, § 5:28 [“Becauseit preceded Granite Rock, and for other reasons, Skaw probably haslittle value as precedent.” (footnote omitted)].) IJ. EVEN A BROADER VIEW OF OBSTACLE PREEMPTION WOULD NOT RESULT IN PREEMPTION OF CALIFORNIA’S TEMPORARY MORATORIUM Rinehart has abandonedhis prior arguments that California’s statute makesit impossible for him to do something federal law requires.’ Because the People have shownthat Congress intended preemption to occur only in cases of such actual impossibility, Rinehart’s allegations about the motivation behind California’s moratorium are therefore irrelevant. But ’ (Compare Rinehart Brief, p. 30 [“[i]t certainly is not impossible to comply with § 28 without suction dredging”] with Answerto Petition for Review, p. 26 fn. 13.) 20 Rinehart’s defense would fail even under a broader conception of obstacle preemption once Rinehart’s mischaracterizations of California’s statute are corrected. A. California Has Enacted a Reasonable, Temporary Environmental Regulation Rinehart portrays California’s law as a bare refusal to issue required permits. (E.g., Rinehart Brief, p. 1.) In fact, the California Legislature has prohibited suction dredge mining only temporarily, until the moratorium can be lifted based on specific conditions. (See Fish & G. Code, § 5653.1, subd. (b).) As the People have explained (OpeningBrief, p. 32), this sort of interim moratorium is a commonplacesolution to allow proper consideration and fixing of a problem. (Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002) 535 U.S. 302, 337-38 & fns. 31-34.) Rinehart alleges that the moratorium will be permanent. (Rinehart Brief, pp. 49-50.) But when Rinehart engagedin the criminal conduct for which he was convicted, the moratorium wasset to expire in 2016. (Opening Brief, p. 32.) Subsequent changes making the end date contingent on particular findings could not change the statute’s character as of the date of Rinehart’s offense. (Cf. People v. Picklesimer (2010) 48 Cal.4th 330, 342 [statutes are presumed to operate prospectively absent clear indication of contrary intent].) Thecurrentstatute continues to specify conditions under which the moratorium will end. The Legislature instructed the Department of Fish and Wildlife to report on any statutory changes needed for the moratorium- lifting conditions to be met — sign that the Legislature in fact intends to act itself to help achieve a resolution that accommodates both environmental protection and appropriately permitted mining. (See Stats. 2012, ch. 39, § 7.) These provisions would have been meaninglessif the 21 Legislature intended a permanent ban. (See Shoemaker v. Myers (1990) 52 Cal.3d 1, 22 [We do not presumethat the Legislature performsidle acts....”]; Walnut Creek Manor v. Fair Employment & Housing Com. (1991) 54 Cal.3d 245, 268 [statutes should be construed to preserve their constitutionality].) Given that the Department’s environmental review was completed in 2012, the Department provided the required legislative report in 2013, and there is ongoingtrial court litigation challenging the Departmentfindings that are currently delaying the lifting of the moratorium (Rinehart Brief, p. 6 fn. 6; Opening Brief, p. 33 fn. 16), Rinehart falls short of showing that the moratorium will be permanent, or even long-standing. (See Viva!, supra, 41 Cal.4th at p. 936 [burden is on person claiming preemption]; cf. Nadler v. Schwarzenegger (2006) 137 Cal.App.4th 1327, 1334 fn. 2 [“Courts must presume the Legislature acted in good faith.”].)"° Rinehart’s claim that this statute is unique in requiring full mitigation of significant environmental effects (Rinehart Brief, p. 10) is legally irrelevant. (See Ry. Express Agency, Inc. v. New York (1949) 336 U.S. 106, 110 [legislature need nottreat all problemsidentically]; Kasler v. Lockyer (2000) 23 Cal.4th 472, 482 [Legislature may address problems '° Interim amendments to the moratorium do not prove another motive: the current time is well within the window the Legislature originally intended for the resolution of environmental issues and resumption of mining. (See Stats. 2011, ch. 133, § 6 [setting 2016 end for moratorium]; Stats. 2012, ch. 39, § 7 [removing 2016 date, but requiring report with recommendationsfor “statutory changesor authorizationsthat, in the determination of the department, are necessary” to meet the requirementto “mitigat[e] . . . all identified significant environmental impacts”].) 22 piecemeal]).'' It is also inaccurate: manyother statutes impose the same standard.” Rinehart alleges that the statute is an overreaction to negligible environmental concerns. (Rinehart Brief, pp. 6-8.) But the moratorium will last only as long as neededto address “significant” environmental effects (Fish & G. Code, § 5653.1, subd. (b)(4)) — that is, concerns that are “substantial” and not based on speculation (Cal. Code Regs., tit. 14, §§ 15382, 15384). Contrary to Rinehart’s portrayal, the Department’s environmental impact report made findings aboutsignificant problems, such assuction dredge mining’s “substantial adverse effect[s|” on seven specific “candidate, sensitive, or special status [bird] species.” (Supplemental Request for Judicial Notice, filed concurrently, (“SRJN’’) Exh. S [pp. 4.3-22 and table 4.3-3 of the draft environmental impact report]; see also SRJN, Exh. R [pp. 4.2-24 to -25 and 4.2-33 to -59, water pollution], '! Rinehart complains (Rinehart Brief, p. 10) that dredging related to “energy or water supply managementinfrastructure, flood control, or navigational purposes” need not obtain Departmentsuction dredge mining permits. (Fish & G. Code, § 5653.1, subd. (d).) But such larger scale projects are fully regulated through other applicable federal, state, and local permitting regimes, including the California Endangered Species Act (Fish & G. Code, § 2050 et seq.) and the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.). '? (See Envtl. Prot. Information Center v. Calif: Dept. ofForestry & Fire Protection (2008) 44 Cal.4th 459, 513-15 [discussing the “full mitigation” requirementfor incidental take permits under the California Endangered Species Act]; see also Fish & G. Code, § 12011, subd. (a)(2) [fines for violations of Fish and Game Code section 5650 mustinclude cost to “fully mitigate all actual damagesto fish, plant, bird, or animallife and habitat”]; Gov. Code, § 8670.61.5, subd. (b) [parties responsible for oil spills “shall fully mitigate adverse impacts to wildlife, fisheries, wildlife habitat, and fisheries habitat”]; Water Code, §§ 12314, subd.(c) [Delta flood protection projects must fully mitigate certain environmental effects], 79560.1, subd. (b) [requiring determination as to whether projects funded by Proposition 50 bonds fully mitigate environmental effects].) 23 Exh. S [pp. 4.3-48 to -49, riparian bird habitat], Exh. T [pp. 4.5-11 to -15, cultural, historical, and unique archeological resources], Exh. U [p. 4.7-9 to -10, noise], Exh. V [final findings].) The Department’s findings are the subject of separate civil litigation. (Rinehart Brief, p. 6 fn. 6; Opening Brief, p. 33 fn. 16; see also SRJN, Exh. X [stipulation setting briefing schedule].) If that litigation shows that the Department’s findings were a prejudicial abuse of discretion, or that the Departmenthasexisting authority to mitigate those effects, then that may result in a prospective lifting of the moratorium. For purposes ofthis case, however, the Department’s findings should be presumed correct. (Evid. Code, § 664; Faulknerv. California Toll Bridge Auth. (1953) 40 Cal.2d 317, 330.) Bytrivializing these environmental concerns, Rinehart seeks to argue that the moratorium is a state land use statute under Granite Rock. (Rinehart Brief, p. 25 [“the People seek to repurpose Rinehart’s mining claim into a wilderness preserve”|.) As previously explained, such arguments would only be relevant to preemption claims based on federal land use statutes, such as the National Forest Management Act (16 U.S.C. § 1600 et seq.), a statute Rinehart nevercites or analyzes. (See Opening Brief, pp. 29-31.) In any case, the “core” characteristic of land use regulation — that it “chooses particular uses for the land” (Granite Rock, '? Rinehart argues that, “[i]f permitted to present evidence,” he would show that suction dredge mining “had no appreciable adverse environmental effects whatsoever.” (Rinehart Br., p. 1.) The argumentis forfeited, because Rinehart did not makeit in the trial court. Un re S.B. (2004) 32 Cal.4th 1287, 1293.) Nor would the Department’s findings of significant, unmitigated environmental effects be subject to review in this criminal case even if Rinehart had preserved the issue. (See Citizensfor Responsible Dev. v. City of W. Hollywood (1995) 39 Cal.App.4th 490, 505 [““California courts have consistently held that an administrative decision which has not been overturned through administrative mandamusis absolutely immune from collateral attack.”’].) 24 supra, 480 U.S.at p. 587) — is lacking, since the statute applies statewide withoutregard to particular land characteristics. Just as a prohibition on firing gunsin public is not the same thing as a zoning law controlling where a shooting range maybesituated, a ban on suction dredge mining statewide is not a land-use regulation of the land containing Rinehart’s unpatented claim. The moratorium is, on its face, a response to the environmental effects of suction dredge miningandis designed to end whenthose environmental effects are resolved. (OpeningBrief, pp. 31-32.) Correctly understood, the moratorium is a statutory provision that safeguards the environment by temporarily delaying the issuance of permits until environmentaleffects are mitigated.'* The moratorium thusfits into Granite Rock’s holding allowing for state permitting requirements. It even fits within Rinehart’s admission that California can “regulate his operations.” (Rinehart Brief, at p. 1; see also RT, p. 23 [trial counsel’s agreementthat “under Granite Rock” “the State ha[s] the ability to set regulations in how dredging should be done”].) It affects mining as a whole far less than the hydraulic mining restrictions that this and other courts have previously upheld, and cannot be considered to obstruct Congress’s intent. B. This Court Should Reject the Court of Appeal’s Unadministrable “Commercial Impracticability” Standard Rinehart disagrees with the People’s observations that the Court of Appeal’s “commercial impracticability” preemption test is unadministrable. (Rinehart Brief, p. 56.) But Rinehart has not suggested how a court could administer such a standard given suchissuesas the fluctuations in the price '* (See Tahoe-Sierra, supra, 535 U.S.at p. 337 fn. 31 [noting the lack of any “persuasive explanation for why moratoria should be treated differently from ordinary permit delays”’].) 25 of gold, the different nature and extent of individual mining operations, and the multiple regulations that apply to mining. (Opening Brief, pp. 38-39.) Indeed, Rinehart cannot even settle on a single formulation for what his proposed preemption test involves; he asserts variously that future cases should assess whether regulations are “unreasonable,” ‘materially interfere,’ or render[] mining ‘commercially impracticable.’” (Rinehart Brief, p. 57.) Norshould this Court accept Rinehart’s suggestion to save for “{f]uture cases” concerns about whether the Court of Appeal’s standard would endanger the enforcementof other vital California laws. (Rinehart Brief, pp. 56-57). The People have listed a variety of laws whose application might render a particular mining claim arguably unprofitable for a particular operator, including not only environmental regulations but also labor and workplace safety laws. (Opening Brief, pp. 37-38.) Rinehart asserts, without evidence, that some of these laws address conduct unlikely to occur in suction dredge operations. (Rinehart Brief, pp. 56-57.) But Rinehart offers no explanation for why the “commercial impracticability” test for mining law preemption on federal land, if established in this case, would not also apply to large-scale commercial mines and to mines using deadly chemicals and explosives. In short, Rinehart does nothing to disprove the People’s explanation of the serious, harmful consequencesthat | would result from adopting the Court of Appeal’s view of the law."° 'S Rinehart notes that Nelson v. County ofKern (2010) 190 Cal.App.4th 252, 281 found that the California Environmental Quality Act applied to a mining project on federal land. (Rinehart Brief, p. 56) But Nelson wasnot a preemption case and did not apply the “commercial impracticability” test. It thus proveslittle about how that statute would fare if the Court of Appeal’s view here remains thelaw. 26 Tlf. RINEHART IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW Rinehart closes his brief by requesting that this Court go beyond the Court of Appeal’s judgment and find the moratorium facially preempted as a matter of law. (Opposition Brief, pp. 51-54.) But Rinehart’s untested offer of proof in the trial court cannotestablish that the only way to profitably mine his claim is by suction dredge mining. No court has determined that Rinehart’s proffered expert testimony evensatisfies the requirements of Evidence Code sections 801 and 803, and the People do not concede that suction dredge miningis the only practical way to mine Rinehart’s claim. (CT 118-19; RT 33.)'® Rinehart’s argumentfor enlargementofthe relief afforded by the Court of Appeal should be rejected. '® Rinehart (at pp. 52-53) unconvincingly relies on a preliminary ruling in the San Bernardino consolidated civil action. But that ruling relied almost entirely on the now-depublished decision under review here. (Rinehart Request for Judicial Notice, Exh. 6, pp. 9-17.) It also ignored the state’s expert testimony that suction dredge miningis not the only way to mine similar claims. (SRJN, Exh. W [expert declaration].) 27 CONCLUSION This Court should reverse the decision of the Court of Appeal and affirm the trial court’s judgment of conviction. Dated: June 10, 2015 SA2015101156 90503673.doc Respectfully submitted, KAMALAD. HARRIS Attorney General of California EDWARD C, DUMONT Solicitor General MARK J. BRECKLER Chief Assistant Attorney General ROBERT W. BYRNE Senior Assistant Attorney General JOSHUA A. KLEIN Deputy Solicitor General GAVIN G. MCCABE Supervising Deputy Attorney General MICHAEL M. EDSON Deputy Attorney General We MARC N, MELNICK Deputy Attorney General Attorneysfor Plaintiffand Respondent the People ofthe State ofCalifornia 28 CERTIFICATE OF COMPLIANCE I certify that the attached PEOPLE’S REPLY BRIEF ON THE MERITSuses a 13 point Times New Roman font and contains 8,259 words. Dated: June 10, 2015 KAMALA D. HARRIS Attorney General of California “Wie MARC N.MELNICK Deputy Attorney General Attorneysfor Plaintiffand Respondent the People ofthe State ofCalifornia 29 DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Rhinehart No.: $222620 I declare: I am employedin the Office of the Attorney General, whichis the office of a member ofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the businesspractice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordancewith that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On June 11, 2015, I served the attached PEOPLE’S REPLY BRIEF ON THE MERITSby placing a true copy thereof enclosed in a sealed envelope in the internal mailcollection system at the Office of the Attorney Generalat 1515 Clay Street, 20th Floor, Oakland, CA 94612-0550, addressed as follows: Please see attachedlist. and correct and that this declaration was executed on June 11, 201 Ida Martinac = Declarant — Signature $A2015101156 90521209.doc People v. Rinehart Clerk, Court of Appeal of the State of California Third Appellate District Stanley Mosk Library and Courts Building 914 Capitol Mall, 4" Floor Sacramento, CA 95814 Clerk, Plumas County Superior Court Main Courthouse 520 Main Street, Room 404 Quincy, CA 95971 Matthew K. Carr Plumas County District Attorney's Office 520 MainStreet, Room 404 Quincy, CA 95971 Jonathan Wood Pacific Legal Foundation 930 G Street Sacramento, CA 95814 Counselfor Amici Curiae Lynne R.Saxton Saxton & Associates 912 Cole Street, Suite 140 San Francisco, CA 94117 Counselfor Amici Curiae Jonathan Evans Center for Biological Diversity 351 California St., Suite 600 San Francisco, CA 94104 Counselfor Amici Curiae Supreme Court Case No. $222620 James L. Buchal Murphy & Buchal LLP 3425 S.E. Yamhill, Suite 100 Portland, OR 97214 Counselfor Defendant and Appellant John D, Leshy and Sean B. Hecht University of California Hastings College of Law . 200 McAllister St. San Francisco, CA 94102 Counselfor Amici Curiae Michael A.M. Lauffer State Water Resources Control Board P.O. Box 100 Sacramento, CA 95812-0100 Counselfor Amici Curiae Mark Nechodom Department of Conservation 801 K St., MS 24-01 Sacramento, CA 95814 Counselfor Amici Curiae Nathaniel H. Kane Environmental Law Foundation 1736 Franklin St., 9"" Fl. Oakland, CA 94612 Counselfor Amici Curiae John H. Mattox Department of Fish and Wildlife 1416 Ninth St., 12” FI. Sacramento, CA 95814 Counselfor Amici Curiae