PEOPLE v. RINEHARTRespondent’s Supplemental BriefCal.April 22, 2016SUPREME COURT SOPY Iu the Supreme Court of the State of California Oo THE PEOPLE OF THESTATE OF O CALIFORNIA, Plaintiff and Respondent, Case No. $222620 v. SUPREME COURT BRANDON LANCERINEHART, F L E D Defendant and Appellant. APR 22 2016 Frank A. McGui Third Appellate District, Case No. C074662 McGuire Cierk Plumas County Superior Court, Case No. M1200659 Deputy The Honorable Ira Kaufman, Judge PEOPLE’S SUPPLEMENTALBRIEF REGARDING BOHMKER V. OREGON 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 MarCN. MELNICK (SBN 168187) Deputy Attorney General 1515 Clay Street, 20th Floor P.O. Box 70550 Oakland, CA 94612-0550 Telephone: (510) 622-2133 Fax: (510) 622-2270 Email: Marce.Melnick@doj.ca.gov Attorneysfor Plaintiffand Respondent the People ofthe State ofCalifornia Pursuant to California Rules of Court, rule 8.520(d), the People of the State of California submit this supplemental brief regarding the recent decision, projected for publication, in Bohmker v. Oregon (D. Or., Mar. 25, 2016, No. 1:15-CV-01975-CL) ___ F.Supp.3d__-[2016 WL 1248729}. As explainedbelow,the analysis in Bohmkeris consistent with the arguments in the People’s briefs, and supports reversal of the Court of Appealin this case. At issue in Bohmker was whether Oregon could “temporarily ban all motorized formsof instream miningin certain areas, out of concern for the environment.” (2016 WL 1428729,at p. *2.) The Oregonlaw atissue, “with some exceptions, temporarily prohibits instream miningthat uses any form of motorized equipment within certain limited areas including the beds or banks ofthe waters of the state containing essential indigenous anadromous salmonid habitat.” (/d. at p. *1.) Theplaintiffs, represented by Mr. Rinehart’s counsel here, claimed that the Oregon law was preempted by numerousfederal statutes including the Mining Act of 1872. In support, the Bohmkerplaintiffs advanced argumentssimilar to those Rinehart has madeto this Court. Bohmker rejected each of those arguments. ([bid.) Bohmker reasonedthat, in California Coastal Commission v. Granite Rock Co. (1987) 480 U.S. 572, the U.S. Supreme Court “held that federal mining laws and environmental regulations do not preempt reasonable state environmental lawsthat restrict miningactivities on federal lands.” (2016 WL 1248729,at p. *6.) Indeed, as we have noted, Granite Rock interpreted relevant regulations as “‘expressly contemplat[ing] coincident compliance with state law as well as with federal law.’” (/bid., quoting Granite Rock, supra, 480 U.S.at p. 584; see People’s Opening Brief, pp. 25-27.) Based on Granite Rock, Bohmker concluded that federal mining laws do not “conflict with a state’s reasonable environmental regulation, evenif the state law restricts mining operations on federal land” (2016 WL 1248729, at p. *5)—a principle that the court found wasalso consistent with other federal laws such as the Clean Water Act(id. at p. *6). The Bohmker court’s reasoning on these points essentially matchesthat of the People and amicuscuriae the United States in Rinehart’s case. (See People’s Opening Brief, pp. 11-27; People’s Reply Brief, pp. 5-20; Amicus Brief of the United States, pp. 9-23.) Like Rinehart here (see Answering Brief on the Merits, pp. 24-27, 47-49), the Bohmkerplaintiffs contended that Oregon’s law was preempted because “Granite Rock held that federal law would preempta state land use law that extended onto federal land to prohibit otherwise lawful mining activity.” (2016 WL 1248729, at p. *6.) The court rejected the argument. The court agreed that in Granite Rock “the Court, in dicta, did speculate on” whether certain federal land use statutes might “‘pre-empt[] the extension ofstate land use plans onto unpatented mining claimsin national forest lands.” (/bid., quoting Granite Rock, supra, at p. 585.)' But just as Granite Rock found it unnecessary to “reach a decision on the merits of federal land use preemption,”the court in Bohmker found such a decision unnecessary as well. (2016 WL 1248729,at p. *6.) That is because Oregon’s temporary ban on instream mining,like the California law at ' Although Bohmker wasright to note that Granite Rock assumedfor the sake of argumentthatstate land use controls mightbe facially preemptedby federal land use laws,there is reason to believe that such facial preemption wouldnotbe foundif the question were directly presented. (See 1 George C. Coggins & Robert L. Glicksman, Public Natural Resources Law (2d ed. 2007 & 2016 Supp.) § 5:28; ibid. [footnote 5, quoting 43 U.S.C. § 1712(c)(9) (“Landuse plans... underthis section shall be consistent with State and local plans to the maximum extent [found] consistent with Federal law and purposesof this Act” [brackets and emphasis in Coggins & Glicksman])].) issue in Granite Rock, was an environmental regulation and not a land use law. (Id. at pp. *6-*7.) The Bohmker court found the Oregonlawto be a “reasonable environmental regulation,” based on the statute’s “stated purpose”andlegislative findings, which stated that “motorized methods of mining‘posesignificant risks to Oregon’s natural resources, including fish and otherwildlife, riparian areas, water quality, the investmentsof th[e] state in habitat enhancement, andareasofcultural significance to Indian tribes.’” (/d. at p. *7.) The Oregon law neither “mandate[s] particular uses of the land, nor ... prohibit[s] mining all together.” (/bid.; see ibid. [the law “Jimits only one form of mining, and only in specified areas”].) Because California’s law greatly resembles Oregon’s in these respects, Bohmker’s reasoning is directly applicable to Rinehart’s case. (See People’s Opening Brief, pp. 5-6 [explaining that California’s moratorium applies only to motorized suction dredging, haslegislative findingsas to its environmental justification, and will last only until significant environmentaleffects are mitigated and a new permit fee structureis in place], 31-34 [same]; People’s Reply Brief, pp. 21-25 [same].)° * Rinehart has argued that the preemption inquiry turns on whether a state law is “regulatory” or “prohibitory.” (Answering Brief on the Merits, p. 26.) But that framework would notdistinguish Bohmker. Although Oregon’s moratorium only applies in rivers and tributaries containing “essential indigenous anadromous salmonhabitat”or “naturally reproducing populations ofbull trout” (Bohmker, supra, 2016 WL 1248729, at p. *3), the Bohmkerplaintiffs characterized it as a “‘complete ban’” on mining (id. at p. *7), claiming thatit in fact covered virtually every possible stream-mining site (see Plaintiffs’ Mot. Summary Judgment & Mem.Points & Auth., Bohmker v. Oregon (D. Or., Nov. 30, 2015, No. 1:15-CV-01975-CL) 2015 WL 10372817,at Preliminary Statement [Oregonlaw effectively applies to “nearly all gold-bearing streamsin the State, wiping outan entire industry,the pioneer cultural heritage of many rural areas in Oregon,and the rights of thousandsofcitizen prospectors, miners and mining claim owners”]; Statement of Facts [Oregonstatute “can (continued...) Like Rinehart here (see Answering Brief on Merits, pp. 49-51), the plaintiffs in Bohmkeralleged that the state law at issue amountedto “a ‘complete ban,’” because “there are no conditions [in the law] that would allow them to continue motorized instream mining.” (2016 WL 1248729, at p. *7.) As aresult, they argued, Granite Rock was distinguishable and did not control the analysis. (Ia. at pp. *7-*8.) Disagreeing with that argument, the court found persuasive the analysis in Pringle v. Oregon (D.Or., Feb. 25, 2014, No. 2:13-CV-00309-SU) 2014 WL 795328, which. held that “‘a ban on one particular method of mining was not equivalent to a complete ban on mining,” notwithstandingthe plaintiff's argumentthatthe ban “‘stripped [the mining claims] of their entire economic value.”” (Bohmker, supra, 2016 WL 1248729,at pp. *7-*8; see generally People’s Reply Brief, pp. 17-18 & fn. 5, 19 fn. 7.) Importantly, Bohmker specifically considered and rejected the reasoningofthe California Court of Appeal’s decision in this case. (2016 WL 1248729,at pp. *8-*9.) In contrast to the lower court here, the federal ‘court in Bohmker determinedthat “nothing in the Mining Act or subsequent federal regulations makes the costor practicability of mineral extraction a factor in whether or not a state environmental law is preempted.” (/d. at p. *9.) Notably, the court found particularly “persuasive” the brief that the United States has filed in this case. (/d. at p. *8.) The court quoted with (...continued) be interpreted to shut down precious metals mining upto the high water mark nearly everywhere”); Argumentsection II.B [characterizing California’s law as “similar” to Oregon’s].) Even if Rinehart were correct that the prohibitory nature ofa state statute matters, the relevant factors, in evaluating both Oregon’s statute and California’s, are that the moratorium at issue affects only suction dredge mining and notother forms of mining and that it is a temporary pause to address environmental concerns. (See Fish & Game Code § 5653.1; People’s Reply Brief, pp. 21-25.) approval that brief’s reasoning that, though California’s prohibition on suction dredging “may have made mining considerably moredifficult for Rinehart and mayre[sul]t in Rinehart determining that the deposit in his mining claim “no longerjustifies ... the further expenditure of his labor and means[citation],” those facts provide “nobasis for findingthat the State’s law is preempted by federal law.” (/d. at p. *9.) The court reasoned that “(t]he Mining Act guaranteesthat federal lands will remain free and open to mineral discovery and development,butit does not guarantee that such discovery and developmentwill be profitable or efficient.” (/bid.; see ibid. (“nothing in the Mining Act or subsequent federal regulations makes the cost or practicability of mineral extraction a factor in whetheror nota state environmental law is preempted”].) The court thus rejected “the ‘commercially impracticable’ standard” for deciding when a state environmental law is preempted, and held that federal law did not “prevent[] the State of Oregon from temporarily banning the use of motorized instream equipmentas a legitimate way to protect water quality andfish habitat.” (/d. at p. *8-*9.) For the Court’s convenience, a copy of the Bohmker opinionis attached. Dated: April 21, 2016 SA2013310544 90636613.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 Wot. MARCN. MELNICK. Deputy Attorney General Attorneys for Plaintiffand Respondentthe People ofthe State ofCalifornia CERTIFICATE OF COMPLIANCE I certify that the attached PEOPLE’S SUPPLEMENTALBRIEF REGARDING BOHMKERV. OREGONusesa 13 point Times New Roman font and contains 1,522 words. Dated: April 21, 2016 KAMALAD. HARRIS Attorney General of California WieLN MARC N. MELNICK Deputy Attorney General Attorneysfor Plaintiffand Respondent the People ofthe State of California DECLARATION OF SERVICEBY U.S. MAIL Case Name: People v. Rinehart No.: $222620 I declare: 1 am employed in the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member's direction this service is made. | am 18 years of age or older and nota party to this matter. I am familiar with the business practice at the Office of the Attorney Generalfor collection and processing of correspondencefor mailing with the United States Postal Service. In accordancewith that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney Generalis deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On April 22, 2016, I served the attached People’s Supplemental Brief Regarding Bohmkerv. Oregonbyplacing a true copy thereof enclosed in a sealed envelopein the internal mail collection system at the Office of the Attorney General at 1515 Clay Street, 20th Floor, Oakland, CA 94612-0550, addressed as follows: Please see attached servicelist. I declare under penalty of perjury under the lawsofthe State of California the foregoi ng is true and correct and that this declaration was executed on April 22, 2016, at O nd, Californigx; Ida Martinac of > Declarant \ Signature — $A2015101156 90642933.doc People v. Rinehart Service List 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 MainStreet, Room 404 Quincy, CA 95971 Matthew K.Carr Plumas County District Attorney's Office 520 Main Street, Room 404 Quincy, CA 95971 Brook B. Bond L. Michael Bogert Parsons Behle & Latimer 800 W.Main Street, Suite 1300 Boise, ID 83702 Attorneysfor Amicus Curiae American Exploration & Mining Association Lynne R. Saxton Saxton & Associates 912 Cole Street, Suite 140 San Francisco, CA 94117 Counselfor Amici Curiae Jonathan Evans Center for Biological Diversity 1212 Broadway, St. #800 Oakland, CA 94612 Counselfor Amici Curiae Aaron P, Avila Lane N. McFadden Environment & Natural Resources Division United States Departmentof Justice PO Box 7415 Ben Franklin Station Washington, DC 20044 Supreme Court Case No. 8222620 James L. Buchal Murphy & Buchal LLP 3425 S.E. Yamhill, Suite 100 Portland, OR 97214 Counselfor Defendant and Appellant John D. Leshy 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” Fl. Sacramento, CA 95814 Counselfor Amici Curiae James S. Burling Jonathan Wood Pacific Legal Foundation 930 G Street Sacramento, CA 95814 Counselfor Amici Curiae Pacific Legal Foundation, Western Mining Alliance, and Siskiyou County People v. Rinehart Supreme Court Case No. 8222620 Service List Sean B. Hecht UCLASchool of Law 405 Hilgard Avenue Los Angeles, CA 90095 Attorneys for Amici Curiae Steven J. Lechner Jeffrey W. McCoy Mountain States Legal Foundation 2596 South Lewis Way Lakewood, CO 80227 Attorneysfor Amicus Curiae American Exploration & Mining Association Eric Biber UC Berkeley School of Law 689 Simon Hall Berkeley, CA 94720 Attorneysfor Amici Curiae Bohmkerv. State, --- F.Supp.3d ---- (2016) ¥, ms KeyCite Blue Flag - Appeal! Notification Appeal Filed by JOSHUA BOHMKER,ET AL v. STATE OF OREGON, ETAL, 9thCir, April 7, 2016 2016 WL 1248729 Only the Westlawcitation is currently available. United States District Court, D, Oregon, MedfordDivision. Joshua Caleb Bohmker,et al, Plaintiffs, Vv. State of Oregon,et al, Defendants, Vv. Rogue Riverkeeper,et al, Intervenor-defendants. Case No. 1:15-cv-01975-CL | Signed March 25, 2016 Attorneys and Law Firms James L. Buchal, Murphy & Buchal, LLP, Portland, OR,for Plaintiffs. Darsee Staley, Christina L. Beatty-Walters, Departmentof Justice, Portland, OR,for Defendants. Oregon Peter M.K.Frost, Eugene, OR, Roger Flynn, Western Mining Action Project, Lyons, CO, for Intervenor-defendants. ORDER CLARKE,Magistrate Judge *1 This case comes before the Court on the parties’ cross- motions for summary judgment (# 18, # 52). Plaintiffs are individual miners, mining groups and associations, and businesses related to the mining industry. Collectively, they bring this cause of action against the defendants, the State of Oregon, Ellen Rosenblum in herofficial capacity as the Attorney General of the State of Oregon, and Mary Abramsin herofficial capacity as the Director of the Oregon Department of State Lands, claiming that Oregon Senate Bill 838 (SB 838) is preempted by federal law. SB 838, with some exceptions, temporarily prohibits instream mining that uses any form of motorized equipment within certain limited areas including the beds or banks of the waters of the state containing essential indigenous anadromoussalmonid habitat (“ESH”). WESTLAW Plaintiffs request declaratory relief to prevent enforcement of SB 838, which wentinto effect on January 2, 2016. Intervenor defendants are groups and associations that support SB 838, and they opposethe plaintiffs' motion. For the reasons below, plaintiffs’ motion (# 18) is DENIED and defendants’ motion (# 52) is GRANTED. LEGAL STANDARD Summary judgmentshall be granted when the record shows that there is no genuine dispute as to any material of fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party has the initial burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.2001) (en banc). The court cannot weigh the evidence or determine the truth but may only determine whetherthere is a genuine issue offact. PlayboyEnters., Inc. v. Welles, 279 F.3d 796, 800 (9th Cir.2002). An issue of fact is genuine “if the evidence is such that a reasonablejury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. When a properly supported motion for summary judgment is made, the burden shifts to the opposing party to set forth specific facts showingthat there is a genuine issue fortrial. /d. at 250, 106 S.Ct. 2505. Conclusory allegations, unsupported by factual material, are insufficient to defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Instead, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts which show there is a genuine issue fortrial. Devereaux, 263 F.3d at 1076, In assessing whether a party has met its burden, the court views the evidence in the light most favorable to the non-movingparty. Allen v. City ofLos Angeles, 66 F.3d 1052, 1056 (9th Cir. 1995). INTRODUCTION Thetradition of small scale prospecting and mining hasa rich heritage in this country, dating back to the early days of the American frontier. Early miners developed their own rules and customs, which evolved in the local miners’ meetings, and “were used to govern mining campsbefore any official government existed at these remote locations.” United States Bohmkerv, State, --- F.Supp.3d ---- (2016) v, Shumway, 199 F.3d 1093, 1097 (9th Cir.1999), Mining has been particularly important to the history and economic development of southwest Oregon. Even though mostof the gold in the [California gold rush of 1849] and other western gold rushes was found onfederalland, the federal government adopted a mining law schemelate, long after the customs of ownership by discovery and extraction had been established. Id. at 1098. Plaintiffs, miners and mining associations, who are passionate aboutboth the history and the future of their industry, properly pointto significant mining rights granted them by Congressin the Mining Act of 1872, which provides that ‘all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase.” 30 U.S.C.§ 22. *2 However, the Mining Act must be viewed in the context of the extensive federal and state regulations that have been enacted since 1872 to govern mining and competing interests on federal land, such as the Multiple Use Act, 30 U.S.C. § 611-612, and the Mining and Minerals Policy Act, 30 U.S.C. § 21a. The Court understandsthatplaintiffs are frustrated by the complexities of the mining regulations, and it is far from clear from the record before the Court whether most of them have in fact complied with federal law. Onthe otherside of this dispute are the groups and individual citizens who are understandably increasingly concerned about the impact that mining activities have on the natural environment. These concerms havetheir place in the law as well, as reflected by the federal and state regulatory schemes that have developed to manage and protect land, surface resources, waterways, and animal habitats. See, e.g., Clean Air Act, 42 U.S.C. §§ 7401 et seq.; Clean Water Act, 33 U.S.C. §§ 1251 et seq.; Nat. Environ. Policy Act, 42 U.S.C. §§ 4321 et seq.; Oregon Air Toxics Program, Oregon Admin. Rules 340-246-0010 et seq. Both of these groups have important, but conflicting interests. Federal and state laws attempt to balance these conflicting interests, and the task is made more challenging by the interaction between different, complicated regulatory schemes. The basic question in this case, however,is simple: Can a state temporarily ban all motorized forms of instream mining in certain areas, out of concern for the environment, or is such a law preempted by the federal regulations that apply? SUMMARY Plaintiffs have standing and this dispute is ripe for adjudication by this court. SB 838 is a temporary ban on instream motorized mining. It does not preclude all forms of mining. The Court finds, consistent with the extensive regulations cited above and case law including California Coastal Comm'n vy. Granite Rock Co., 480 U.S. 572, 107 S.Ct. 1419, 94 L.Ed.2d 577 (1987), and Pringle v. Oregon, No. 2:13-CV—00309-SU, 2014 WL 795328 (D.Or. Feb. 25, 2014),it is a valid state environmental regulation that is not preempted by federal law. STATUTORY LANGUAGEOF SENATEBILL 838 On August 14, 2013, Oregon Governor John Kitzhabersigned into law Senate Bill 838. The legislative findings of the bill state: 1. Prospecting, small scale mining and recreational mining are part of the unique heritage of the State of Oregon. 2. Prospecting, small scale mining and recreational mining provide economic benefits to the State of Oregon and local communities and support tourism, small businesses and recreational opportunities, all of which are economic drivers in Oregon's rural communities. 3. Exploration of potential mine sites is necessary to discover the minerals that underlie the surface and inherently involves natural resource disturbance. 4. Mining that uses motorized equipment in the beds and banks ofthe rivers of Oregon can pose significant risks to Oregon's natural resources, including fish and other wildlife, riparian areas, water quality, the investments of this state in habitat enhancement and areas of cultural significance to Indian tribes. 5. Between 2007 and 2013, mining that uses motorized equipment in the beds and banks of the rivers of Oregon increased significantly, raising concerns about the cumulative environmental impacts. 6. The regulatory system related to mining that uses motorized equipment in the beds and banksof the rivers of Oregon should be efficient and structured to best protect environmentalvalues. WESTLAW 2.2916 Thomsen Reuters, No clam to original Bohmkerv. State, --- F.Supp.3d ---- (2016) *3 Oregon Senate Bill 838 § 1(1-6) (2013). Therefore, the first sentence of SB 838 provides: Id. at § 2(1). “Watersofthis state” is defined in ORS 196.800 to include essentially all water bodiesin the State. “Beds or banks”are not defined bystatute, but the rules of the Division A moratorium is imposed until January. 2, 2021, on miningthat uses any form of motorized equipment for the purpose of extracting gold, silver or any precious metal from placer deposits of the beds or banks of waters of this state, as defined in ORS 196.800, or from other placer deposits, that results in the removalor disturbance of streamside vegetation that may impact water quality. of State Landsprovide: The second sentence of SB 838 provides additional “Beds or Banks” meansthe physical - container of the waters ofthis state, bounded on freshwater bodies by the ordinary high water line or bankfull stage, and in tidal bays and estuaries by the limits of the highest measured tide. The “bed”is typically the horizontal section and includes non-vegetated gravel bars. The ‘bank’ is typically the vertical portion. parameters for the moratorium: WESTLAW The moratorium applies up to the line of ordinary high water, as defined in ORS 274.005, and 100 yards upland perpendicular to the line of ordinary high water that is located above the lowest extent of the spawning habitat in any river and tributary thereof in this state containing essential indigenous anadromous salmon habitat, as defined in ORS 196.810, or naturally reproducing populations of bull trout, except in areas that do not support populations of anadromous salmonids or naturally reproducing populations of bull trout due to a naturally occurring or lawfully placed physical barrier to fish passage. SB 838 at § 2(1). “ ‘Essential indigenous anadromous salmonid habitat’ means the habitat that is necessary to prevent the depletion of indigenous anadromous salmonid species during their life history stages of spawning and rearing.” ORS 196.810(1)(g)(B). SB 838 also provides for permits to be issued for motorized mining outside of the prohibited areas: In areas where the moratorium does not apply as described in subsection (1) of this section, the Department of State Lands shall limit the individual permits issued under ORS 196.810 and the general authorizations issued under ORS 196.850 to not more than 850 permits and authorizations for mining described in this section at any time during the moratorium period. The Department of State Lands shall give priority, to the greatest extent practicable, to persons who held permits or authorizations for the longest period of time before January 1, 2014. SB 838 § 2(3).! Section 2(2) of SB 838 provides, “The moratorium does not apply to any mining for which the State Department of Geology and Mineral Industries issues an operating permit under ORS 517.702 to 517.989. This regulatory scheme governs surface mining, defined to include “the process of mining minerals by the removal of overburden and the extraction of natural mineral deposits thereby exposed by any method by which more than 5,000 cubic yards of minerals are extracted or by which at least one acre of land is affected within a period of 12 consecutive calendar months”. ORS 517.750(15). None ofthe plaintiffs have mining operationsofthis scale, and the permitting schemeis not at issue in this litigation. Bohmkerv. State, --- F.Supp.3d ---- (2016) DISCUSSION I. Plaintiffs have standing, and the case is ripe for adjudication. *4 “The Article ITI case or controversy requirement limits federal courts' subject matter jurisdiction by requiring, inter alia, that plaintiffs have standing and that claims be ‘ripe’ for adjudication.” Chandler v. State Farm Mut, Auto. Ins. Co., 598 F.3d 1115, 1121 (9th Cir.2010). “Standing addresses whether the plaintiff is the proper party to bring the matter to the court for adjudication... [whereas] ripeness is a means by which federal courts may dispose of matters that are premature for review because the plaintiff's purported injury is too speculative and may never occur.” Jd. at 1122. In addition to the Article ITI standing and ripeness requirements, federal courts have also imposed additional prudential standing and ripeness requirements that further limit the scope of cases federal courts will entertain. See City of Los Angeles v. County of Kern, 581 F.3d 841, 845 (9th Cir.2009). Standing requires three elements: (1) injury in fact, (2) the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court, and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. /d. at 560-561 (internal citations omitted). The court “need only find that one petitioner has standing to allow a case to proceed.” Pub. Citizen v. Dep't of Transp., 316 F.3d 1002, 1014-15 (9th Cir.2003) rev'd on other grounds, 541 U.S. 752, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004); see also Watt v. Energy Action Educ. Found., 454 U.S. 151, 160, 102 S.Ct. 205, 70 L.Ed.2d 309 (1981) (“Because wefind [one plaintiff] has standing, we do not consider the standing of the other plaintiffs’); ChiefProbation Officersv. Shalala, 118 F.3d 1327, 1331 (9th Cir.1997) (White, Justice, by designation) (evaluation of the standing of a secondplaintiff is “unnecessary to resolution of the case”). Defendants assert that the federal environmental and mining regulations prevent the plaintiffs’ mining activities unless the plaintiffs have received approval from either the Forest Service or the BLM, dependingonthe location oftheir mining claim. Defendants assert that plaintiffs have not proven that they have received this approval, therefore their alleged injuries are not fairly traceable to SB 838, nor can they be redressed by this court. The Court disagrees. SB 838 prevents all motorized methods of mining: A moratorium is imposed until January 2, 2021, on miningthat uses any form of motorized equipment for the purpose of extracting gold, silver or any precious metal from placer deposits of the beds or banks of waters of this state, as defined in ORS 196.800, or from other placer deposits, that results in the removal ordisturbance of streamside vegetation that may impact water quality. By contrast, the federal regulations give the Forest Service and the BLM authority to determine on a site-specific basis whether or not a person's particular motorized mining operation is allowed. E.g. 36 C.F.R. § 228.4(a)(1)(v). For example, under Forest Service regulations, even when a person submits a notice of intent to operate, the regulations simply require the District Ranger to notify the operator within 15 days if approvalof a plan of operations is required before operations begin. 36 C.F.R. § 228.4(a)(1)(wii)(2). If the operator is not contacted, he orshe is free to operate without such a plan. Regulations with such an informal and flexible approval process are very unlikely to completely overlap with a moratorium like SB 838. While defendants would like this Court to find that federal law prevents all of the plaintiffs’ mining operations, certainly a set of circumstances mustexist in which an individual mining operation would be allowed under federal law and disallowed under SB 838. *5 In this case, Plaintiff Jason Gill has asserted facts that give him standing to bring this claim. His declaration states that he owns“the ‘Governor Davis' claim, federally registered as ORMC161726, taking in approximately 2,000 feet of Josephine Creek, and the ‘Luck’ claim, federally registered as ORMC166648, taking in approximately 3,000 feet of Sucker Creek.” Dkt. # 25, 2. Gill declares that he has “an approved Plan of Operation, granted by Siskiyou National Forest, permitting me to use a motorized excavator and trammel for mining operations on the Governor Davis claim.” /d. He claims that he has been mining a bench deposit within 50 to 100 feet of Josephine Creek and recovering significant quantities of gold. Jd. SB 838 will make his operations within 100 feet of the high water mark of the Creekillegal. /d. Bohmkerv. State, --- F.Supp.3d ---- (2016) The Court finds the declaration of Jason Gill sufficient to show an alleged injury,fairly traceable to SB’838, which will be redressed by this Court if it finds that SB 838 is preempted by federal law,as claimed bythe plaintiffs. Because the Court finds that one plaintiff has standing, it need not consider the standing ofthe otherplaintiffs. See Wait, 454 U.S. 160, 102 S.Ct. 205. This case is ripe for review because the SB 838 moratorium has goneinto effect, and plaintiffs like Jason Gill claim thatit is currently affecting their mining operations. Similarly, the prudential concerns weigh in favor of the Court exercising jurisdiction over this case to settle the issue of whether or not the state moratorium on motorized instream mining is preempted by federal law because the issue is likely to continue to arise as SB 838 is enforced by state officials. IE. Senate Bill 838 is not preempted by federal law. There are three circumstances in which state law is preempted by federal law: (1) express preemption, where Congress explicitly defines the extent to which its enactments preempt state law; (2) field preemption, where state law attempts to regulate conductin field that Congress intended the federal law exclusively to occupy; and (3) conflict preemption, where it is impossible to comply with both state and federal requirements, or where state law stands as an obstacle to the accomplishment and execution of the full purpose and objectives of Congress. Jndus. Truck Ass'n v. Henry, 125 F.3d 1305, 1309 (9th Cir. 1997) (internal citations omitted). a. Federal law has not expressly preempted, nor hasit occupied the field to preempt, nor do such lawsconflict with a state's reasonable environmental regulations, evenif the state law restricts mining operations on federal land. To argue preemption, Plaintiffs rely in large part on the Mining Act of 1872. It provides: {A]ll valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States.... 30 U.S.C. § 22. The Mining Act, as originally passed in 1872, “expressed no legislative intent on the as-yet rarely contemplated subject of environmental regulation.” California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 582, 107 S.Ct. 1419, 94 L.Ed.2d 577 (1987) (“Granite Rock’). In 1955, Congress passed the Multiple Use Act, which created a “right of the United States to manage and dispose ofthe vegetative surface resources [of post-1955 mining claims]... and to manage other surface resources thereof.” 30 U.S.C. § 612(b). The statute provided that such management was“not to endanger or materially interfere with prospecting, mining, or Processing operations or uses reasonably incidentthereto.” Id. Thestatute also provides that “nothing in this subchapter... shall be construed as affecting or intended to affect or in any wayinterfere with or modify the laws of the States... relating to the ownership,control, appropriation, use, and distribution of ground or surface waters within any unpatented mining claim.” Jd. *6 The United States Supreme Court has held that federal mining laws and environmental regulations do not preempt reasonable state environmental laws that restrict mining activities on federal land. California Coastal Comm'n v. Granite Rack Co., 480 U.S. 572, 107 $.Ct. 1419, 94 L.Ed.2d 577 (1987) ( “Granite Rock”), In Granite Rock, the state law at issue was a permitting regulation that required a mining company, which had already submitted an approved 5-year plan of operations to the Forest Service, to secure a permit from the California Coastal Commission before undertaking any development, including mining. /d. at 577, 107 S.Ct. 1419. The mining company immediately filed an action alleging that the permit requirement was preempted by federal regulations. The Court held the Mining Act of 1872 and other federal Forest Service mining regulations did not intend to preempt the imposition of reasonablestate environmental regulations on mining claims. /d. at 583, 107 S.Ct. 1419. Moreover, the Court found that the regulations “expressly contemplate coincident compliance with state law as well as with federal law.” /d. at 584, 107 S.Ct. 1419, Support forthe conclusion that states have the right to enact environmental regulations can be found in other applicable federal regulations as well. The Clean Water Act expressly recognizes and preserves state authority to regulate water pollution: “It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution ....” 33 Bohmkerv. State, --- F.Supp.3d ---- (2016) U.S.C. § 1251(b). The Clean Water Act also recognizesstate authority to adopt pollution Controls over and above those required by the Act: Except as expressly provided in this chapter, nothing in this chapter shall (1) preclude or deny the right of any State... to adopt or enforce (A) any standard or limitation respecting discharges of pollutants, or (B) any requirement respecting control or abatementofpollution; exceptthat if an effluent limitation, or other limitation... is in effect under this chapter, such State... may not adopt or enforce any effluent limitation, or other limitation .. which is less stringent than the effluent limitation... under this chapter, or (2) be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States. 33 U.S.C. § 1370 (emphasis added). In this case, as discussed in the next section, SB 838 is a reasonable environmental regulation that seeks to prevent pollution of the state's waterways. As decided by the Court in Granite Rock, federal mining laws and environmental regulations do not preemptthis type ofstate law. b. Senate Bill 838 is a reasonable environmenta! regulation, not a land use law. Plaintiffs contend that Granite Rock held that federal law would preempta state land use law that extended on to federal land to prohibit otherwise lawful miningactivity. Indeed,the Court, in dicta, did speculate on a hypothetical situation in which a state law would be preempted by federal regulations: For purposesof this discussion and without deciding this issue, we may assume that the combination of the NFMA? and the FLPMApre- empts the extension of state land use plans onto unpatented mining claims in national forest lands. Id. at 585, 107 S.Ct. 1419. However, the Court found that land use planning and environmental regulation, while theoretically could overlap in some cases, are distinct activities, capable of differentiation. Jd. at 588, 107 S.Ct. 1419. “Land use planning in essence choosesparticular uses for the land; environmental regulation, at its core, does not mandate particular uses of the land but requires only that, howeverthe land is used, damage to the environmentis kept within prescribed limits.” Jd. Because the Court found that the stated purpose of the California permitting scheme was to regulate environmental effects, not regulate land use, the Court did not reach a decision on the merits of federal land use preemption. /d. Under the Federal Land Policy Management Act of 1976 (FLPMA), the Departmentofthe Interior's Bureau of Land Management is responsible for managing the mineral resources on federal forest lands, 43 U.S.C. § 1701 et seq., and under the National Forest Management Act (NFMA), the Forest Service under the Secretary of Agriculture is responsible for the managementof the surface impacts of mining on federal forest lands, 16 U.S.C. §§ 1600 et seq. *7 Similarly, the stated purpose of SB 838 is to regulate the environmental impacts ofthe prohibited activity—in this case, motorized instream mining. Specifically, the Oregon legislature made findings that: (1) motorized methods of mining “pose significant risks to Oregon's natural resources, including fish and otherwildlife, riparian areas, water quality, the investmentsofthis state in habitat enhancementand areas of cultural significance to Indian tribes,” and (2) the incidence ofmotorized instream mining increased significantly between 2007 and 2013, “raising concerns about the cumulative environmental impacts.” Oregon Sen. Bill 838 § 1(4-5) (2013). Like the permitting scheme in Granite Rock, SB 838 does not mandate particular uses of the land, nor does it prohibit all mining altogether.It limits only one form of mining, and only in specific areas. Outsideofthe prohibited areas, SB 838 allows for permits to be issued for motorized instream mining. Id. at § 2(3). Even inside the prohibited areas, motorized miningis allowed 100 yards upland of the high water mark, as long as it does not disturb vegetation to the detriment of water quality. Jd. at § 2(1-2). Therefore the Court finds that SB 838, like the California permitting scheme,is a reasonable environmental regulation that is not preempted by federal regulations. Bohmkerv. State, --- F.Supp.3d ---- (2016) c. Senate Bill 838 is not a ban on mining. Plaintiffs argue that, even as an environmental regulation, SB 838 is distinguishable from the permitting scheme in Granite Rock becausethere are no conditions that would allow them to continue motorized instream mining. According to plaintiffs, SB 838 is a “complete ban,” and therefore, unlike Granite Rock, it is preempted. However, a court in this district has already addressed this issue and found that a ban on one particular method of mining was not equivalent to a complete ban on mining. See Pringle v. Oregon, No. 2:13-CV-00309-- SU, 2014 WL 795328 (D.Or. Feb. 25, 2014). In Pringle, an Oregon law was amended to remove authority from the Department of State Lands to issue permits for suction dredge mining within a scenic waterway. /d. at *2. Recreational placer mining and recreational prospecting were still permitted using non-motorized methods, and motorized methods other than a suction dredge. /d. The miner challenging the law argued that the law “completely frustrate[d] the mining and removal of valuable minerals located in the claim sites,” and he asserted that the claims had been “stripped of their entire economic value and it now costs more to maintain the claims than can be recovered by recreational mining.” The miner argued that the law was distinguishable from the permitting scheme in Granite Rock because the effect was “to prohibit mining altogether,” /d. at *§. The Oregon District Court found that, while the Oregon law was a ban on suction dredge mining, other methods of recreational mining werestill allowed, including other types ofmotorized equipment, non-motorized equipment, and other methods. /d. at *8. Therefore, the Court held that “[blecause [the law] is not a de facto ban onall mining in Oregon scenic waterways, it does not conflict with the General Mining Act of 1972,and therefore is not preempted.” Id. *§ Plaintiffs claim that this Court should not consider the Pringle decision persuasive because the cause of action was brought by a prose litigant, who did not make the arguments necessary for the court to grantrelief. The Court disagrees. In Pringle, the plaintiff asserted that his case wasdistinguishable from Granite Rock because, he claimed, it was more like South Dakota Mining Ass'n v. Lawrence County, 155 F.3d 1005 (8th Cir.1998) (S.D. Mining). This is the very same argumentthe plaintiffs make in the case at bar. In S.D. Mining, the defendant Lawrence County adopted an ordinance that was a per se ban on all new or amended perm its for all surface metal mining within the area. S.D, Mining Ass'n, 155 F.3d at 1011. Because the record showed that WESTLAW surface metal mining wasthe only wayforplaintiffs to mine mineral deposits on federal land in the area, the Eighth Circuit Court of Appeals found the effect of the ordinance was a de facto ban on all mining in the area. Jd. The Lawrence County ordinance did not set out reasonable environmental regulations governing miningactivities on federal lands, nor did it ban one specific method of extraction,rather it resulted in a ban on all mining. Jd. As such, the Eighth Circuit found the ordinance preempted by the General Mining Act of 1872. Id. The Pringle court consideredthis analysis before deciding that an Oregon ban on suction dredge mining was not a de facto ban on all mining in all waterways. Similarly, in this case, a ban on motorized instream mining in protected areas is not a ban on all mining in all waterways. As discussed above, SB 838 limits only one form of mining, and only in specific areas. Outside of the prohibited areas, SB 838 allows for permits to be issued for motorized instream mining. Even inside the prohibited areas, motorized miningis allowed 100 yards uplandofthe high water mark,as long asit does not disturb vegetation to the detriment of water quality. Thus, SB 838 is not a ban on mining. d. Whether or not Senate Bill 838 makes mining “commercially impracticable” does not affect the Court's preemption analysis. Finally, plaintiffs cite to a recent California case in which a miner challenged a state law banningthe use ofsuction dredge equipmenton federal mining claims. People v. Rinehart, 230 Cal.App.4th 419, 178 Cal.Rptr.3d 550 (2014) reh'g denied (Oct. 10, 2014), review granted and opinion superseded, 182 Cal. Rptr.3d 275, 340 P.3d 1044 (Cal.2015). Applying language used by the Granite Rock Court to describe the hypothetical scenario in which state regulations might be preempted by federal land-use statutes, the California Court of Appeal held that a California moratorium on suction- dredge permits was potentially preempted by federal law if it rendered development of a mining claim “commercially impracticable.” /d. at 436, 178 CalRptr.3d 550. Plaintiffs argue that the “commercially impracticable” standard should be imposed by this Court as well. The Court disagrees. First, the Supreme Court of California has vacated the Rinehart Court of Appeal opinion pending review. Second, the United States Governmenthas filed an amicus brief in that case that this Court finds persuasive. It argues that federal preemption of a state environmental regulation should not turn on thecost to an individual! miner: Bohmker v.State, --- F.Supp.3d ---- (2016) Congress did not intend topreempt all state laws that might raise the cost of extraction.If additional expenses are imposed by a State's legitimate attempt to “help assure satisfaction... of environmental needs,” 30 U.S.C. § 21a, in a manner that does not make all mining impossible, that state law does not directly conflict with the federal Mining Law. TheState's prohibition on suction dredging may have made mining considerably more difficult for Rinehart, and mayre suit in Rinehart determining that the deposit in his mining claim “no longerjustifie[s] ... the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine.” Chrisman v. Miller, 197 U.S. 313, 322, 25 S.Ct. 468, 49 L.Ed. 770 (1905). That result may have somebearing on whether the depositis locatable, butit is no basis for finding that the State's law that it is preempted by federallaw. *9 Brief for the United States as Amicus Curie Supporting Respondent, People v. Rinehart, 82 Cal. Rptr. 3d 275 (August 2015) (No. $222620) 2015 WL 5166997 at 29. Essentially, the Government argues that even if the state law makes it difficult or impossible for a miner to locate the mineral deposit of a claim, such a result is not a basis to find the law preempted./d. The Court agreesthat nothing in the Mining Act or subsequent federal regulations makesthe cost or practicability of mineral extraction a factor in whether or not a state environmental law is preempted. The Mining Act guarantees that federal lands will remain free and open to mineral discovery and development, but it does not guarantee that such discovery and developmentwill be profitable orefficient. End of Document ARLE RUM th Veer WESTLAW Co cod LPS CONCLUSION The Court agrees with the plaintiffs that the practice ofmining has a long and cherished history in the State of Oregon, and a protected place in the law. However, the Court can find no indication that such protection prevents the State of Oregon from temporarily banning the use of motorized instream equipmentas a legitimate way to protect water quality and fish habitat. The Mining Act and other federal regulations do not express an intent to preempt state environmental regulations affecting mining claims on federal land. Senate Bill 838 does not directly conflict with federal law, nor doesit stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress because, under the law, “the ‘valuable mineral deposits in lands belonging to the United States’ in Oregon remain ‘free and open’ to mineral exploration and development by meansother than the use of motorized equipment. ORDER For the forgoing reasons,the plaintiffs' motion for summary judgment (# 18) is DENIED. Defendants' motion for summary judgment (# 52) is GRANTED. It is so ORDERED and DATEDthis 25 day of March, 2016. All Citations --- F.Supp.3d ----, 2016 WL 1248729 iS Gavernment Works
