PEOPLE v. RINEHART

Respondent’s Reply to Answer to Petition for Review

Cal.December 18, 2014

Jn the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Case No. $222620 v. SUPREME COURT BRANDON LANCERINEHART, FILED DEC 18 2014Defendant and Appellant. Frank A. McGuire Clerk - Third Appellate District, Case No. C074662 Plumas County Superior Court, Case No. M1200659 Deputy The Honorable Ira Kaufman, Judge REPLY TO ANSWERTO THE PETITION FOR REVIEW KAMALA D. HARRIS Attorney General of California MaRK J. BRECKLER Chief Assistant Attorney General ROBERT W. BYRNE Senior Assistant Attorney General GAVIN G. MCCABE Supervising Deputy Attorney General MaRC N.MELNICK Deputy Attorney General State Bar No. 168187 1515 Clay Street, 20th Floor P.O. Box 70550 Oakland, CA 94612-0550 Telephone: (510) 622-2133 Fax: (510) 622-2270 Email: Mare.Melnick@doj.ca.gov Attorneysfor Plaintiffand Respondent the People ofthe State ofCalifornia TABLE OF CONTENTS Page INTRODUCTION. ..........0..seeseeseeesaeasseeecssseseseeeeesstsaeseaeeceesatensesseeestensatesas 1 ARGUMENT 0... ceeecccssesesessesseeseesessessesseesesesssssssevscsscsscsevsccasescsevasssceeaenss 2 I. Rinehart’s Submission Does Nothing to Disprove That This Case Poses an Important Issue of Law With the Potential to Affect Wide Categories of Environmental and Other Laws............. 2 Il. This Case Requires Review Because the Court of Appeal Did Not Consider the Views of the Relevant Federal Agencies Or the U.S. Supreme Court’s Presumption Against Preemption........... 4 Ill. The Court of Appeal’s Decision Was Wrong in Other Ways AS WEILice cccecsscsscccnecnessecteessecssssecsesscsssesateessessesssesssseusavesesscaseanenees 7 IV. This Court Should Not Expand Rinehart’s Relief by Ordering Judgment As a Matter of Law......ececsesseseesesscssseetessessessssuseerseeens 12 CONCLUSION 0... eee eceeescssecsseseessesseessesscnessssesscsecsesessscsssssesaevsesasnessesaneens 13 CERTIFICATE OF COMPLIANCE......cccccccsccscsssssescsscsscsscesscacsecteceevaaeess 14 TABLE OF AUTHORITIES li Pages CASES Arizona v. United States (2012) 132 S.Ct. 2492oeccceseesesseesesesesssesssscecsssssseseasececseseseseseeees 6 Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450 ooeceesseecesessseessseeesesssessasesseseerscssecssscseseseeseees 3 Bates v. Dow Agrosciences LLC (2005) 544 U.S. 431ec ecesetcccesssesesseeeescscecsesssensnecsesecesesecssseesseaseesseaeessees 9 Brown v. Mortensen (2011) 51 Cal4th 1052occcccccessecsseeesstssesssssssesseescssseecseseesesesecs 9 Brubaker v. Bd. ofCounty Comrs. (Colo. 1982) 652 P.2d 1050...ee eeeceeceseseseceseceseeessesessesseeesseseeseeeatessseseeeenss 8 California Coastal Commission v. Granite Rock Co. (1987) 480 U.S. 572icccceesecscseescseressesessesessesstecasseeecsesenssatens passim Commonwealth Edison Co. v. Montana (1981) 453 U.S. 609ccccccecscseeseeesesessesssseseseseeesssssesesesesseecssasatseseers 8 Eliott v. Oregon Intern. Min. Co. (Or. App. 1982) 654 P.2d 663... cccccssessseessssscsseecsscsessescessvscseseeseeenees 8 Granite Rock Company v. California Coastal Commission (9th Cir. 1985) 768 F.2d 1077 ccccceccsesessscseseseseseseessesesesersesecesassseseees 9 In re Countrywide Financial Corp. Mortgage-Backed Securities Litigation (C.D. Cal. 2013) 966 F.Supp.2d 1018 voccccccsscscsesecsessseseeescssseves 6 Kleppe v. New Mexico (1976) 426 U.S. 529iceccceesetsesesstesesesesesesesssensesecsesesesecscssseseaeensieees 5 ~ Loshonkohl v. Kinder (2003) 109 CalApp.4th S10.cccceeceesesnensesessesseessssssereeseessseesses 3 TABLE OF AUTHORITIES (continued) Pages McDaniel v. Wells Fargo Investments | LLC (9th Cir. 2013) 717 F.3d 668 ou. cccceccccscscscscseseeesescsssessesssvesscseees 6 Nelson v. County ofKern (2010) 190 Cal.App.4th 252 v...cccccccsssssssssssssvsesssssseessssssessssssessssssssssevesesssseven 3 Pac. Merch. Shipping Assn. v. Goldstene (9th Cir. 2011) 639 F.3d 1154 ooccscsccescscscscscsesesesscssesesesvsvstsstevevens 6 Pacific Gas & Elec. Co. v. State Energy Resources Conservation& Development Com. (1983) 461 U.S. 190eceeesessssssestssesnssssesesscsessscsesecscsssentscsvevseseneevavens 8 RCJMedical Servs., Inc. v. Bonta (2001) 91 Cal.App.4th 986.0... cccccccscccsscsccscsecssseerereceescsrevessersasersees 5 Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218cceeceeseesecetecsesssensssecesseceessesesesessesesscsesscsscanensess 6 South Dakota Mining Association v. Lawrence County (8th Cir. 1998) 155 F.3d 1005 oocccesseesessseeseesseesesssecseessenees 4,8, 10 Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency ; (2002) 535 U.S. 302oeeecssseseceseesssetesssseeeceseeseeseessessescsssssssecsssenssensenaseas 1] U.S. v. 9,947.71 Acres ofLand (D. Nev. 1963) 220 F.Supp. 328... ccccccsesseseseessesrscevsvscsssescstecseees 11 U.S. v. Salerno (1987) 481 U.S. 739ccccc cecsscsscssnsrscseeseesteeeeensdesea venenennesenseeneesenesties 12 United States v. Calif: State Wat. Res. Control Bd. (9th Cir. 1982) 694 F.2d U7] oo ccececssesscessrecsesessescscececsssescsvevessersens 5 United States v. Locke (2000) 529 U.S. 89 vicccccseccsssscssssssssssvevevecsessssesessesevasasscsessucassseevarseseees 5 ili TABLE OF AUTHORITIES (continued) Pages Ventura County v. GulfOil Corp. (9th Cir. 1979) 601 F.2d 1080 oooccsescccscscscsseecstesssevererseeseseers 8,9 Wyeth v. Levine (2009) 555 U.S. 555 vcccccccsscssscssessesesesesssrcecscscssssssssesvscesusesssececeessaneeaees 5,6 Wyoming v. United States (10th Cir. 2002) 279 F.3d 1214 .ccccccccccccscscscssscsssesvevsessavsrseseerecaees 5 STATUTES United States Code, Title 30 BD.eesccssesscessetsnssesesseevetssesaeesseesssssesssesssasessseeesauseussuseeseussscssssecsesssacrecnees 7,9 §8ccssceseesessseneeeeesseeesesseesssesesesesssssecsesssseeserseessssnseessssseucsscatacaseaeanvas 10 § 28f(a)... cece eeessscseeesetecsceeesscsecsesesesescseseseesesesscsceecsessseuseusasausassevacaneceecaneas 11 SSDecccneeseneeeeseeseseesesaeessssssesessssescsecsssscsucsessevasssceasessisessesareesaesarsares 9 § G12(D)eeeeecesesseeeeeseeeseesescsseesesenessecsesecsessessessssssscassessevsuesveneaes 7,10 8 OLBcccceseeeeceersescenseesssssssseetecsesesacsesscsecsucasesscaseceuvssnavaueecanvaseeteaees 10 Fish and Game Code . § LOSO.eeeeeecseeceecseesessceeseeecseesesensvessssesecsecsvsessevasesscsecsasescnsssevscesvestatsaees 12 § S653. ceeesecccscsesestesersesesecseneessesaesesssvseseseaeceesesevessseeesessucausscsusssassscevaeeasasvases 2 § SO53Loecseeecnesseteeessesscecseeevsvecsesesesseeaesecsescecnssssecsssacssessenssscaseneeseenes 2 § 5653.1 (C)L) vc receececcssesccssesseesecseseessscscsesecsscsesssssssessecseecsseacsseascacesseeeacerees 12 Statutes 2009, Chapter 62, § 2 .o..cccccceessseesssssenseees veseeennegeccseesarecsseeesteesaeees 1] Statutes 2012, Chapter 39, § 7 oo. iccccccccssccssecseesseseseessceeecseccsssecsssessesuevenans 12 Statutes 2012, Chapter 565, § 5 .occccccscsssecsesscssescsscsscsscssecssssusvsessevacnevseeseses 12 REGULATIONS Code of Federal Regulations, Title 36 § 228Socescesesesestseseterecseescssessessuesesessnssesassessesesessesecsresscsussssesstssssssteesassesaes 5 § 228.8. cecessescscesesseseeseessesassceeescsssessesessessessessesecsecssecsusscsessscaverenatauvansas 5 iv TABLE OF AUTHORITIES (continued) Pages Code of Federal Regulations, Title 43 § 3809.3 ccccccesseessesesesssseestsestsessceessescsevsesesssssesscassesesscsevsssecsecscsecsesasenss 4 § 3834.11 (a) cseceeeescceceesceecseseesceacseesecvessesassecssssusevscsscesssscsssatcsevscesenesrees 1] § 3836.1Qccceecstesseseseeessceessesseesessssssssssesecsessesscssseessecessessessecaesutensaees 1] OTHER AUTHORITIES H. Rept. No. 730 (June 6, 1955), as reprinted in 1955 U.S.C.C.A.N. 2474 ....10 70 Fed. Reg. 32713 (June 6, 2005) wo... cccesccscscesssecssscsssscsscessevsecssssseressessseereeaes 5 INTRODUCTION As explained in the People’s Petition for Review, the Court of Appeal’s decision in this case announced a newrule of law with important and potentially wide-ranging effects. Appellant Brandon Lance Rinehart, in his answer, attempts to portray the Court of Appeal’s decision as limited to the suction dredge mining moratorium. However, the Court of Appealin fact stated its new rule of preemption in general terms with potentially broad effect: in future cases, miners and others seeking to conduct activities on federal land without submittingto state regulation will undoubtedly claim that state law is preemptedifit renders their activity “commercially impracticable.” Since almost one-half of California’s land massis federal land, and there are thousands of miners, this case presents an important legal issue that merits the Court’s review. Asexplained in the People’s Petition for Review, the Court of Appeal neglected to consider the United States Supreme Court’s presumption against preemption, andfailed to consider federal regulations that approve of the kind of state regulation at issue here. These omissions do more than show that the decision below was erroneous. They also show whythe decision below shouldnot stand without further review. At the very least, before applying a novel theory of preemption, California’s courts should consider the views of the relevant federal agencies, and key United States Supreme Court doctrine. Although Rinehart tries to defend the Court of Appeal’s reasoning, the Court of Appeal’s reading ofthe leading case, California Coastal Commission v. Granite Rock Co. (1987) 480 U.S. 572, ignored the key part of that decision: the part finding no congressional intent for federal mining law to preemptstate environmental regulation. Finally, the Court should reject Rinehart’s unsupportable attempt to expandhisrelief by having this Court order judgment as a matter of law in his favor. ARGUMENT 1. RINEHART’S SUBMISSION DOES NOTHING TO DISPROVE THAT THIS CASE POSES AN IMPORTANTISSUE OF LAW WITH THE POTENTIAL TO AFFECT WIDE CATEGORIES OF ENVIRONMENTAL AND OTHER LAWS Aspreviously explained, the Court of Appeal’s reasoningin this case ~ if allowed to remain binding precedent — could affect the viability of countless California laws. (Petition, pp. 6-12.) Rinehart asserts only that this case is not worthy of review becauseit involves a “fact-specific issue” in that Fish and Game Codesection 5653.1 is “a highly unusualstatute.” (Answer, pp. 11-12.) But this case involves more. Althoughthestarting point for the Court of Appeal’s opinion was the statutes in this case, the ending point wasa legal proposition that litigants will seize on more generally. The Court of Appeal announcedits rule by saying: “Put differently, and in the language of the hypothetical used by the Court in Granite Rock, if sections 5653 and 5653.1 are environmental regulations that are ‘so severe that a particularland use [in this case mining] . .. becomes commercially impracticable,’ then they have becomede facto land use planning measuresthatfrustrate rights granted by the federal mining lawsand, thus, have becomeobstaclesto the realization of Congress’ intent in enacting those laws.” (Slip Op., p. 19 [emphasis added;alteration and omissionin original].) By statingits rule as encompassing any environmental regulations burdening “a particular land use,” and by using mining as an example (“in this case mining”) rather than a limitation, the Court of Appeal hasstated its rule in termsthatare at least arguably general enough to affect more state environmental regulations than just the cited Fish and Game Codeprovisions. If the Court of Appeal’s general rule cannotbe distinguished from future cases involving additionalstate statutes and regulations, then Superior Courts throughout the state will be required to follow it. (See Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455 [“all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior Jurisdiction” and “must accept the law declared by courts of superior Jurisdiction”]; cf. Loshonkohl v. Kinder (2003) 109 Cal.App.4th 510, 517 [“‘As an intermediate appellate court we are bound by decisions of our Supreme Court and we mustfollow the reasoningfound therein.” (emphasis added)].) A rule with such broad potential consequences should not be allowed to stand without careful review by this Court. A variety of state environmental laws may increase costs or reduce mining recoveries — for instance, by limiting equipmentor chemicals that can be used. Because the opinion below requires a remandfora factual inquiry to assess “commercial impracticability,” which would be applied on a claim-by-claim basis, suction-dredge and other miners can attemptto apply this holding to challenge a variety of state environmental laws and regulations on the theory that those requirements makeit “commercially impracticable” to mine a given claim. This renders uncertain the application of a whole rangeofstate laws, as detailed in thepetition for review, including nuisance law andstate mining laws.' Even with respect to the suction dredge mining regulations alone, the issue is important not just to the miners (as, indeed, Rinehart and other miners have asserted in requesting publication) but to all Californians. It involvesthe State’s | ability to enforce a law that the Legislature, after weighingcosts and ' Rinehart relies on Nelson v. County ofKern (2010) 190 Cal.App.4th 252, 280-82 for the proposition that enforceability of California’s Surface Mining and Reclamation Actis not placed at risk by the Court of Appeal’s decision here. But in Ne/son there was “no preemption claim.” (190 Cal.App.4th at p. 281.) In future case arising on federal property in California, miners would almost certainly bring such a preemption claim based on the decision here. benefits, believed necessary and enacted underits police power. Moreover, the federal regulations permitting this sort of state environmental regulation reflect a substantial federal interest in favor of California’s law, which the Court of Appeal’s opinion did not address. (See pages 4-5, infra.) II. THIS CASE REQUIRES REVIEW BECAUSE THE COURT OF APPEAL DID NOT CONSIDER THE VIEWS OF THE RELEVANT FEDERAL AGENCIES OR THE U.S. SUPREME COURT’S PRESUMPTION AGAINST PREEMPTION The Court of Appeal found that the Legislature’s enactment could be preempted without addressing twocrucial points: the views of the relevant federal agencies; and the U.S. Supreme Court’s presumption against preemption. Nordid the case it relied on, South Dakota Mining Association v. Lawrence County (8th Cir. 1998) 155 F.3d 1005, consider either of these issues. Because of these omissions, the Court of Appeal’s consideration of the issue cannot be considered complete, and should not stand without further review. 1. As earlier explained, both the U.S. Bureau of Land Management (BLM)andthe U.S. Forest Service (USFS) have enacted regulations allowing concurrentstate environmental regulation of mining on federal land. (Petition, pp. 17-19.) The BLM regulation specifically states that “there is no conflict if the State law or regulation requires a higher standard of protection for public lands than [BLM regulations].” (43 C.F.R. § 3809.3.) Neither the Court of Appeal decision under review, nor the South Dakota Mining decision on whichit relied, considered the BLM regulation. This was a serious omission. Rinehart’s responseis to assert that the BLM regulation is “bad law.” (Answer, p. 25.) But Granite Rock recognized agencies’ ability to affect the scope of preemption whenit directed agenciesto state their positions on preemption. (480 U.S. at p. 583.) More generally, the U.S. Supreme Court has explained that federal agencies “have a unique understanding of the statutes they administer and an attendantability 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.’” (Wyeth v. Levine (2009) 555 U.S. 555, 557.) BLM’s interpretation should control unlessit is unreasonableto interpret the federal mining laws as BLM has. (E.g., RCJMedical Servs., Inc. v. Bonta (2001) 91 Cal.App.4th 986, 1004-05.) At a minimum, some California court should considerthe relevant federal agency’s view before striking downthestate statute at issue. For this reason, the BLM regulations support review bythis Court.’ 2. The Court of Appeal likewise failed to discuss the U.S. Supreme Court’s presumption against preemption. (Petition, pp. 19-23.) Rinehart argues that the presumption does not apply here “[g]iven the Property Clause and the history of Federal mining law.” (Answer, p. 25.) But the presumption does apply on lands that are federal property. (See, e.g., Wyoming v. United States (10th Cir. 2002) 279 F.3d 1214, 1230-31; United States v. Calif. State Wat. Res. Control Bd. (9th Cir. 1982) 694 F.2d 1171, 1176; see also Kleppe v. New Mexico (1976) 426 U.S. 529, 543, 545 (“State[s] undoubtedly retain[] jurisdiction over federal lands within its territory” and states have “broad” police powers even on federal land.) Although Rinehart, quoting United States v. Locke (2000) 529 U.S. 89, 108, claims that the presumptionis “not triggered when the State regulates in an ? Rinehart says “it is worth noting that defendant’s claim is on Forest Service land, not BLM land” (Answer, p. 27), without explaining why that matters. Both BLM and USFS“administer” the federal mining laws and thus both are entitled to deference. (RCV, supra, 91 Cal.App.4th atp. 1005.) Moreover, the USFS regulationsalso explicitly require compliance with a wide variety of state laws. (36 C.F.R. §§ 228.5, 228.8 [discussed in Granite Rock, supra, 480 U.S.at pp. 583-84]; 70 Fed. Reg. 32713, 32722 (June 6, 2005).) areas where there has been a history of significant federal presence’” (Answer, p. 25), that view does notreflect the current state of the law. The U.S. Supreme Court has morerecently held that the applicability of the presumption dependsnoton the “absenceoffederal regulation,” but rather on the “historic presenceofstate law.” (Wyeth, supra, 555 U.S.at p. 565 fn. 3.) As a result, courts now apply the presumption against preemption in a wide range of scenarios wherethere is a heavy history of federal regulation. (See McDaniel v. Wells Fargo Investments, LLC (9th Cir. 2013) 717 F.3d 668, 675 [applying presumption when California labor law affected securities operations]; Pac. Merch. Shipping Assn. v. Goldstene (9th Cir. 2011) 639 F.3d 1154, 1166-67 [applying presumption when California air quality regulations affected marine commerce]; see generally In 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].) Contrary to Rinehart’s assertion, in the immigration case Arizona v. United States (2012) 132 S. Ct. 2492, the Court did recite the presumption against preemption: “In preemption analysis, courts should assumethat‘the historic police powers of the States’ are not superseded ‘unless that was the clear and manifest purpose of Congress.” (132 S. Ct. at p. 2501, quoting Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218, 230 and citing, inter alia, Wyeth, supra, 555 US.at p. 565.)° ° That Arizona foundthestate statute at issue preempted does nothing to help Rinehart’s case here. Unlike environmental law, immigration is not a traditional focusof state police power. For immigration, “Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track ofaliens within the Nation’s borders” (132 S. Ct., at p. 2502), whereas environmental regulation features overlapping state and federal responsibilities. Onceagain, at the very least, the U.S. Supreme Court’s views on the presumption against preemption deserve consideration before California’s judicial system notonly strikes downthis particular law, but announcesa potentially broad rule affecting many other laws. The Court of Appeal’s failure to consider the presumption reinforces the need for review. Ill. THE COURT OF APPEAL’S DECISION WAS WRONGIN OTHER WAYSAS WELL Rinehart’s attempts to buttress the Court of Appeal’s reasoning fail on other fronts as well. 1. The Petition for Review explained that the Supreme Court’s decision in Granite Rock found no preemption by the federal mining laws in part because “the Mining Act of 1872,as originally passed, expressed no legislative intent on the as yet rarely contemplated subject of environmental. regulation.” (480 U.S.at p. 582.) Rinehart focuses on Granite Rock’s discussion ofpreemption under federal /and use statutes — the context in which Granite Rock brought up the hypothetical question of a regulation making a federally sanctioned activity “commercial impracticable.” (/d. at pp. 584-89.) But the statutes at issue here are not land use statutes because they do not prohibit any useof the land. They permit mining — they just require it to be done in an environmentally sensitive manner. (Petition, pp. 24-25.) . Mostimportantly, while he seeks support from Granite Rock, Rinehart ignores the opinion’s most apposite point: its extended discussion of preemption under federal mining laws, including 30 U.S.C. §§ 22, 612(b). (480 U.S. at pp. 582-84.) In that section of Granite Rock, the U.S. Supreme Court held that the preemption issue depends on federal regulations and those “not only are devoid of any expression ofintent to pre-emptstate law, but rather appear to assumethat those submitting plans of operations [to mine on federal land] will comply with state laws.” (/d. at p. 583.) This discussion is not addressed by Rinehart, the Court of Appeal here, or South Dakota Mining. Rinehart instead asserts that Granite Rock lacks persuasive authority because “[i]t appears the Supreme Court wasnotfully informed concerning mining law.” (Answer, p. 21 fn. 11.) That contentionis factually wrong* and legally irrelevant. Granite Rock (unlike South Dakota Mining)is binding authority and must be followed. 2. Like the Court of Appeal, Rinehart relies heavily on the Eighth Circuit’s opinion in South Dakota Mining. (Answer, pp. 20-21). But that case relied on the same misinterpretations of Granite Rock explained above. (See also Petition, pp. 12-23.) Rinehart also cites to three non-binding cases consistent with South Dakota Mining. (Answer,pp. 20-21, citing Brubaker v. Bd. ofCounty Comrs. (Colo. 1982) 652 P.2d 1050; Eliott v. Oregon Intern. Min. Co. (Or. App. 1982) 654 P.2d 663; Ventura County v. GulfOil Corp. (9th Cir. 1979) 601 F.2d 1080.) But these three cases were decided before Granite Rock; like South Dakota Mining, they are inconsistent with its reasoning. Among other things, they rely on the simplistic belief that the congressional encouragement of mining amountsto a decision to encourage mining atthe expense of everything else. Such reasoning as a basis for preemption has been disapproved of by the Supreme Court in Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Development Com. (1983) 461 U.S. 190, 221-23 and Commonwealth Edison Co. v. Montana (1981) 453 U.S. 609, 633-34 — cases which Rinehart’s answer does not address. “See,e.g., Brief for the United States as Amicus Curiae Supporting Appellee, Granite Rock, 1986 WL 727647. *4 fn. 3, *5 fn. 4, *16, *25-*30 [unsuccessfully arguing in favor of preemption and comprehensively discussing the federal mining laws]; Reply Brief for Appellants, Granite Rock, 1986 WL 727649, *8-*14 [rebutting preemption arguments]. Rinehart’s reliance on Ventura County is especially telling. The Ninth Circuit later “applied [Ventura County’s] reasoning” whenit found preemption in Granite Rock Company v. California Coastal Commission (9th Cir. 1985) 768 F.2d 1077, 1082. But the U.S. Supreme Court reversed in Granite Rock and held there was no preemption. (480 U.S. 572.) That Rinehart relies on reasoning the Supreme Court later (by extension) reversed speaks volumes about the tenuousnessofhis position. 3. Rinehart portrays various federal laws as evincing a purposeto promote mining, with only a limited role for state law. For instance, Rinehart says that “Congress considered a role for state law,” only to the extent expressed in 30 U.S.C. § 51 —a limited provision dealing with ditches and water use. (Answer, p. 16; see also id. at pp. 14- 15.) But the contention that § 51 represents a rejection ofstate environmental regulation is unsupportable. As Granite Rock explained, “the Mining Act of 1872, as originally passed, expressed nolegislative intent on as yet rarely contemplated subject of environmental regulation.” (480 USS. at p. 582.) ‘Rinehart argues that 30 U.S.C. § 22 does not contemplate state regulation because the phrase “regulations prescribed by law”in that section does not explicitly mention state law. (Answer, p. 16.) But neither does the statute explicitly limit itself tofederal law. Rather, the statute uses a general term (“regulations prescribed by law”) that is capacious enoughto include state law. The statutory ambiguity, combined with the federal regulations and the presumption against preemption, counsel in favor of recognizing the continuingrole of state law. (Brown v. Mortensen (2011) 51 Cal.4th 1052, 1064, citing Bates v. Dow Agrosciences LLC (2005) 544 U.S. 431, 449); see also pages 5-7, supra.) At the very least, the ambiguity requires that, before setting a statewide policy of potential preemption, state court review should take into account the federal presumption and regulations, which the Court of Appealfailed to do. Rinehart arguesat length about 30 U.S.C. § 612(b), a provision that sets a standard for resolving conflicts between miners’ and the federal government’s use of surface resources. (Answer, pp. 16-19.) Although Rinehart has said that § 612(b)is ‘at the core of Appellant’s federal preemption claim” (Ltr. Opposing Depublication, p. 7), the Court of Appeal decision here did not mention or rely on § 612(b). Nor did South Dakota Mining. Granite Rock’s discussion of § 612(b) led the Supreme Court to look at the relevant agency regulations, finding them “devoid of any expression of intent to preempt state law.” (480 U.S.at p. 582.) If such reasoning led to no preemption in Granite Rock, then afortiori there is no preemption here, wherethe federal regulationsat issue specifically countenancestate regulation.” Rinehart also argues that 30 U.S.C. § 28 creates a “duty” to mine, such that the state law makesit impossible to comply with federal requirements. (Answerp. 26 fn. 13.) But § 28 does not require minersto mine (and certainly not to mine using a suction dredge). Rather, § 28 only > That Rinehart cites no case holding that 30 U.S.C. § 612(b) preempts state law is not surprising. Section 612(b) is focused on the relationship between miners and the federal government, speaking to the “right of the United States” and “any use of the surface of any such mining claim by the United States, its permittees or licensees.” (Seealso, e.g., H. Rept. No. 730, pp. 3, 6, 10 (June 6, 1955), as reprinted in 1955 U.S.C.C.A.N. 2474.) Section 612(b) does not seek to resolve differences between miners and state governments. This is most obvious when one looksto the next section, § 613, the provision that implements § 612(b) and explains how the process for resolving those conflicts. Section 613 only speaksto federal agencies; there is no mention ofstate or local _ governments or anyone else. Section 612(b) does notreflect “clear and manifest” intent to preemptstate laws that affect the use of surface resources. 10 requires miners to expend “$100 worth of labor,” which can include any workrelating to the claim. (See, e.g., U.S. v. 9,947.71 Acres ofLand (D. Nev. 1963) 220 F.Supp. 328, 332; 43 C.F.R. § 3836.12 [listing examples of qualifying assessment work].) Miners may also pay a smallfee in lieu of performing that labor. (See 30 U.S.C. § 28f(a) [“Such claim maintenance fee shall be in lieu of the assessment work requirement contained in the Mining Law of 1872 (30 U.S.C. 28 to 28e)”]; 43 C.F.R. § 3834.11(a) {same].) Thus, there is no duty to mine, and no conflict between the state lawsat issue here and federal law. 4, Rinehart spendsmuchofhis time arguing factual issues, such as whether suction dredge mining in fact harms the environment. But the Legislature’s explicit finding on the matter controls, and, in any event, accords with commonsense and the extensive scientific report whichis part of the record below.° Although Rinehart claims that the suction dredge mining moratorium is effectively permanent, the statute explicitly makes the ban temporary, and the Department and Legislature continue to move forward in establishing a regime to allow such mining while addressing crucial environment needs.’ ° See Stats.2009, ch. 62, § 2 [“The Legislature finds that suction or vacuum dredge miningresults in various adverse environmental impacts to protected fish species, the water quality of this state, and the health of the people of this state”]; https://nrm.dfg.ca.gov/FileHandler.ashx? DocumentID=63843 &inline=1 [report to the Legislature] (last visited December 17, 2014). 7 Rinehart makes muchofthe fact that the Department did not believe it had legal authority to address someofthe significant environmental effects. But moratoria often are established bya legislative body pending a report by an administrative agency as to what changesin law are necessary to address the issues, and the legislative body then makes those changes in due course. (E.g., Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002) 535 U.S. 302, 337-38 & fns. 31-34.) Here, in further revising this moratorium in 2012 — after the (continued...) 11 IV. THIS COURT SHOULD NOT EXPAND RINEHART’S RELIEF BY ORDERING JUDGMENT AS A MATTER OF LAW Rinehart finally asserts that this Court should summarily expand the relief granted by the Court of Appeal by “ordering review and then retransfering to the Court of Appeals with instructions that § 5653.1 is declared to be unconstitutional as a matter of law, and defendant’s conviction is vacated.” (Answer,p. 31.) Rinehart’s cursory briefing on the issue is insufficient to establish that the Legislature’s temporary moratorium ofsuction dredge miningis facially preempted. (See, e.g., U.S. v. Salerno (1987) 481 U.S. 739, 745 [a facial challengeto legislative act is “the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid” (emphasis added)].) The only judicial analysis Rinehart points to in support of his argument — what Rinehart terms “the trial court’s commonsensereaction, regrettably not embodiedin his formalruling, that the State needs to regulate suction dredging ‘in an appropriate manner’” (Answer, p. 31) — is neither a considered judicial view, nor any finding relevant to preemption. In any event, Rinehart’s assertions regarding the viability of non-suction- dredge mining on his claim have not been factually established;all he has (...continued) Departmenthadissued its final environmental impact report with findings of unmitigated significant environmental effects — the Legislature understoodthat it needed to take actionto lift the moratorium. (See Stats.2012, ch. 39, § 7, adding Fish & G. Code, § 5653.1, subd. (c)(1) [requiring report to Legislature “with recommendationsonstatutory changesor authorizations”as to significant environmental effects].) Since then the Legislature has authorized the Departmentto revise permit fees. (See Stats.2012, ch. 565, § 5, amending Fish & G. Code, § 1050.) That the Legislature has not yet acted on the moredifficult issues related to water quality, cultural resources, birds, and noise in the year-and-a-half since the _ Department submitted its legislative report is unremarkable. 12 madeis a proffer. It is quite an overreach for Rinehart to advocate that federal law preemptsstate regulation not only if the regulation makes mining commercially impracticable for him, but evenifthe regulation does not affect practicability at all.® ~ CONCLUSION For these reasons, the People respectfully request that the Court grant the petition for review or, alternatively, order that the Court of Appeal’s opinion be depublished. Dated: December 18, 2014 Respectfully submitted, KAMALA D. HARRIS Attorney General of California MARK J. BRECKLER Chief Assistant Attorney General ROBERT W. BYRNE Senior Assistant Attorney General GAVIN G. MCCABE Supervising Deputy Attorney General Wee MARC N. MELNICK Deputy Attorney General Attorneysfor Plaintiffand Respondent the People ofthe State ofCalifornia SA2013310544 90460040.doc . ® Suction dredge mining is not the only way to mine a federal unpatented mining claim. Other waysinclude panning, shoveling, and sluicing in the water, as well as using heavy equipmentoutside the water. In any case, according to a survey conducted for the Departmentby a well- respected economist, over 80% ofall suction dredge minersare recreational in nature, and do not obtain a profit even when using suction dredge mining equipment. (See https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID =27421&inline=1 [socioeconomicreport on suction dredge mining regulatory amendments, developed during the environmental review].) 13 CERTIFICATE OF COMPLIANCE I certify that the attached REPLY TO ANSWER TO THE PETITION FOR REVIEWuses a 13 point Times New Roman font and contains 3,983 words. ~ Dated: December 18, 2014 KAMALAD. HARRIS Attorney General of California Wee MARC N. MELNICK Deputy Attorney General Attorneysfor Plaintiffand Respondent the People ofthe State of California 14 DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Rinehart No.: §222620 I declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe 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; my business address is 1515 Clay Street, 20th Floor, Oakland, CA 94612-0550. On December 18, 2014, I served the attached Reply to Answerto the Petition for Review by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Mail at Oakland, California, addressed as follows: 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 Main Street, Room 404 Quincy, CA 95971 James L. Buchal Murphy & Buchal LLP 3425 S.E. Yamhill, Suite 100 Portland, OR 97214 Counselfor Defendant and Appellant 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 I declare under penalty of perjury under the laws of the State of California the foregoingiis true and correct and that this declaration was executed on“ZzWe C7 Signature Ida Martinac Declarant $A2013310544 90463206.doc