Petition for Writ of Certiorari — Joshua Caleb Bohmker, et al., Petitioners v. Oregon, et al.

No. 19_________________________________________________

IN THE SUPREME COURT OF THE UNITED

STATES

_________________________________________________

JOSHUA CALEB BOHMKER, ET AL.

Petitioners,

v.

STATE OF OREGON, ET AL.,

Respondents.

_________________________________________________

On Petition for Writ of Certiorari to The United

States Court of Appeals for the Ninth Circuit

_________________________________________________

PETITION FOR WRIT OF CERTIORARI

_________________________________________________

James L. Buchal

(Counsel of Record)

Murphy & Buchal LLP

3425 S.E. Yamhill Street,

Suite 100

Portland, OR 97214

E-mail: jbuchal@mbllp.com

Phone: 503-227-1011

Counsel for Petitioners

January 21, 2019

i

Questions Presented for Review

In California Coastal Comm’n v. Granite Rock

Co., 480 U.S. 572 (1987), this Court considered the

question whether states might assert permitting

authority over the development of minerals on

federal mining claims on federal land. Based upon

California’s assurance that it did not seek to ban the

mining, this Court held that “reasonable state

environmental regulation” was not preempted,

though state land use regulation would be. Id. at

588-89. Multiple states now assert the right to ban

mining as a use of specified federal lands

categorically, rather than provide a permit-based

process for imposing reasonable environmental

standards on federal mining operations.

The Ninth Circuit, in sharp conflict with

Granite Rock and multiple federal circuit and state

supreme courts, has upheld an Oregon statute

prohibiting any and all motorized mining on federal

land in areas Oregon deems better suited for use as

fish habitat, effectively banning the development of

minerals on such federal mining claims. This raises

the questions:

1.

Whether a state statute prohibiting any

and all motorized mining in state-designated zones

on federal land is categorically preempted under the

Supremacy Clause because Congress has occupied

the field of land use control on federal land through

the Federal Land Policy and Management Act

(FLPMA), 90 Stat. 2743 (1976), the National Forest

Management Act (NFMA), 90 Stat. 2949 (1976), and

related statutes.

ii

2.

Whether state statutes prohibiting any

and all motorized mining on federal mining claims

are preempted as an obstacle to the accomplishment

of the full purposes and objectives of Congress set

forth in multiple mining and land management

statutes.

Parties to the Proceeding and Rule 29.6 Statement

The parties to the proceeding are Joshua

Caleb Bohmker, Larry Coon, Walter R. Evens, Galice

Mining District, Jason Gill, Joel Grothe, J.O.G.

Mining LLC, Michael Hunter, Michael P. Lovett,

Millennium Diggers, Willamette Valley Miners, and

Don Van Orman, appellants below and petitioners

here (collectively, “the Miners”); the State of Oregon,

Ellen Rosenblum (in her official capacity as the

Attorney General of the State of Oregon), and Mary

Abrams (in her official capacity as the Director of the

Oregon Department of State Lands), appellees below

and respondents here (collectively, “the State”); and

Rogue Riverkeeper, Pacific Coast Federation of

Fisherman’s Associations, Institute for Fisheries

Resources, Oregon Coast Alliance, Cascadia

Wildlands, Native Fish Society, and the Center For

Biological Diversity, intervenor-appellees below and

intervenor-respondents here.

There are no parent or publicly-held

corporations involved in these proceedings, but the

small-scale miners and the entities with whom they

are associated here form a vital part of the

Congressional design for mineral development of the

federal lands, which typically begins with small-scale

mining and prospecting

operations making

iii

discoveries of valuable minerals before evolving to

larger operations associated with larger discoveries.

(See ER124.1)

1 “ER” refers to the Excerpts of Record petitioners filed with the

Ninth Circuit.

iv

TABLE OF CONTENTS

Questions Presented for Review .................................. i

Parties to the Proceeding and Rule 29.6 Statement.. ii

Table of Authorities ................................................... vi

Opinions Below ........................................................... 1

Basis for Jurisdiction in this Court ............................ 1

Statutory and Regulatory Provisions at Issue ........... 2

Statement of the Case ................................................. 3

REASONS FOR GRANTING THE WRIT ................. 6

I.

II.

THE NINTH CIRCUIT’S DECISION

CONFLICTS WITH THIS COURT’S

DECISION IN GRANITE ROCK .................... 8

A.

How the Ninth Circuit Rejected this

Court’s Granite Rock Decision ............ 11

B.

How the Ninth Circuit’s Significant

Reinterpretation of Federal Mining and

Land Management Law Threatens the

National Interest ................................. 15

THE NINTH CIRCUIT’S DECISION

CONFLICTS WITH EIGHTH CIRCUIT AND

FEDERAL CIRCUIT DECISIONS ON THE

SAME MATTER ............................................. 26

v

III.

THE NINTH CIRCUIT’S DECISION

CONFLICTS WITH STATE SUPREME

COURT RULINGS ......................................... 30

IV.

THE NINTH CIRCUIT HAS SO FAR

DEPARTED FROM THE ACCEPTED AND

USUAL COURSE OF JUDICIAL

PROCEEDINGS AS TO CALL FOR AN

EXERCISE OF THIS COURT’S

SUPERVISORY POWER ............................... 33

Conclusion ................................................................. 35

Appendix

September 12, 2018 opinion of the Ninth Circuit

reported at 903 F.3d 1029 (9th Cir. 2018) ............... 1a

October 3, 2018 order of the Ninth Circuit

granting leave to file a late petition for rehearing

en banc..................................................................... 79a

October 25, 2018 order of the Ninth Circuit

denying the petition for rehearing ......................... 81a

District Court’s order granting the State’s motion for

summary judgment reported at

172 F. Supp.3d 1155 (D. Or. 2016) ......................... 83a

The District Court’s final judgment in favor of the

Federal defendants filed on March 29, 2016........ 109a

Constitutional, Statutory and Regulatory

provisions .............................................................. 110a

vi

TABLE OF AUTHORITIES

Cases

Bagg v. New Jersey Loan Co.,

88 Ariz. 182, P.2d 40 (1960) ........................... 28

Brubaker v. Board of County Commissioners,

652 F.2d 1050 (Colo. 1982) ....................... 30, 31

Butte City Water Co. v. Baker,

196 U.S. 119 (1905) ........................................ 18

Cal. Coastal Comm’n v. Granite Rock Co.,

480 U.S. 572 (1987) .................................passim

Elliott v. Oregon Int'l Mining Co.,

654 P.2d 663 (Or. Ct. App. 1982) ................... 32

Hines v. Davidowitz,

312 U.S. 52, 67 (1941) ...................................... 7

In re Shoemaker,

110 I.B.L.A. 39 (July 13, 1989) ...................... 20

Jackson v. Roby,

109 U.S. 440 (1883) ........................................ 18

Karuk Tribe of California v. U.S. Forest Service,

681 F.3d 1006 (9th Cir. 2012)

cert. denied, 568 U.S. 1228 (2013) ................. 35

Kleppe v. New Mexico,

426 U.S. 529 (1976) .......................................... 8

vii

Medtronic, Inc. v. Lohr,

518 U.S. 470 (1996) .......................................... 8

People v. Rinehart,

1 Cal.5th 652, 377 P.3d 818 (Cal. 2016),

cert. denied sub nom.

Rinehart v. California,

138 S. Ct. 635 (2018) .......................... 10, 15, 32

Skaw v. United States,

740 F.2d 932 (Fed. Cir. 1984) .................. 29, 30

South Dakota Mining Ass’n v. Lawrence County,

155 F.3d 1005 (8th Cir. 1998) .................. 26, 27

State ex rel. Andrus v. Click,

97 Idaho 791, 554 P.2d 969 (1976)................. 31

United States v. Backlund,

689 F.3d 986 (9th Cir. 2012) .......................... 20

United States v. Locke,

471 U.S. 84 (1984) ............................................ 4

United States v. Nogueira,

403 F.2d 823 (9th Cir. 1968) .......................... 28

United States v. San Francisco,

310 U.S. 16 (1940) ............................................ 8

Utah Power & Light v. United States,

243 U.S. 389 (1917) .......................................... 8

viii

Ventura County v. Gulf Oil Corporation,

601 F.2d 1080 (9th Cir. 1979) ........................ 28

Wyeth v. Levine,

555 U.S. 555 (2009) ........................................ 25

Constitution, Statutes, and Rules

The Property Clause of the U.S. Constitution

Art. IV, § 3, cl. 2.......................................... 2, 34

The Supremacy Clause of the U.S. Constitution

Art. VI, cl. 2 ................................................ 2, 34

California Admission Act,

9 Stat. 452 (1850) ........................................... 18

Oregon Admission Act,

11 Stat. 383 (1859) ......................................... 18

Early Forestry Acts

16 U.S.C. § 472 .......................................................... 20

16 U.S.C. § 475 .......................................................... 20

16 U.S.C. § 478 .......................................................... 20

16 U.S.C. § 482 .......................................................... 20

16 U.S.C. § 551 .......................................................... 20

ix

Judiciary Acts

28 U.S.C. § 1254(1)............................................ 1, 119a

28 U.S.C. § 1331 ................................................ 6, 119a

National Forest Management Act of 1976

16 U.S.C. § 1604(a)........................................ 2, 3, 116a

16 U.S.C. § 1604(e)(1) ..................................... 21, 118a

Mining and Minerals Policy Act of 1970

30 U.S.C. § 21a .................................. 2, 3, 15, 21, 120a

The 1872 Mining Act and Amendments

30 U.S.C. § 22 ...................2, 3, 16, 17, 18, 29, 32, 121a

30 U.S.C. § 26 .......................................... 2, 3, 18, 121a

30 U.S.C. § 28 .................................................... 2, 122a

30 U.S.C. § 35 .......................................... 2, 3, 18, 125a

Surface Resources and Multiple Use Act of 1955

30 U.S.C. § 612(b).................................. 2, 19, 25, 126a

Surface Mining Control and Reclamation Act

30 U.S.C. § 1281 .............................................. 22, 127a

x

Federal Land Management and Policy Act of 1976

43 U.S.C. § 1701(a)(12) ................................... 21, 133a

43 U.S.C. § 1712(c) ............................................ 3, 134a

43 U.S.C. § 1714 .............................................. 13, 137a

43 U.S.C. § 1732(b).......................................... 21, 149a

43 U.S.C. § 1732(c) .................................... 14, 22, 150a

Oregon Statutes

ORS 196.810(1) ................................................. 5, 153a

ORS 468B.112 ................................................... 3, 157a

ORS 468B.112(3) ............................................... 5, 157a

ORS 468B.114 ................................................... 3, 158a

ORS 468B.114(2) ............................................... 5, 158a

Regulations

36 C.F.R. § 228.8 ............................................. 24, 158a

43 C.F.R. § 3809.3 ........................................... 25, 162a

Miscellaneous

H.R. Conf. Rep. No. 94-1724 (1976).......................... 25

1

The Miners respectfully petition this Court for

a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit

in this case.

Opinions Below

The September 12, 2018 opinion of the Ninth

Circuit that is the subject of this petition is reported

at 903 F.3d 1029 (9th Cir. 2018), and is reproduced

in the Appendix hereto at pages 1a-78a. The Ninth

Circuit’s October 3, 2018 order granting leave to file

a late petition for rehearing en banc is reproduced in

the Appendix at pages 79a-80a, and its October 25,

2018 order denying the petition for rehearing is

reproduced in the Appendix at pages 81a-82a.

The District Court’s order granting the State’s

motion for summary judgment (and denying the

Miners’) is reported at 172 F. Supp.3d 1155 (D. Or.

2016) and is reproduced in the Appendix at pages

85a-110a. The District Court entered final judgment

in favor of the Federal defendants on March 29,

2016, reproduced in the Appendix at page 109a.

Basis for Jurisdiction in this Court

The Ninth Circuit entered its opinion on

September 12, 2018, and denied a timely petition for

rehearing on October 25, 2018. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

2

Statutory and Regulatory Provisions at Issue

The State has, as a practical matter,

foreclosed mineral development of the Miners’

federal mining claims created under the 1872 Mining

Act, raising a question of federal preemption under:

•

The Property Clause of the U.S. Constitution

(Art. IV, § 3, cl. 2; App. 110a); and

•

The Supremacy Clause of the

Constitution (Art. VI, cl. 2; App. 110a).

U.S.

The following federal statutes principally illuminate

the question of federal preemption in this context:

▪

The 1866, 1870, and 1872 Mining Acts, as

amended, including 30 U.S.C. § 22, 26, 28 &

35 (App. 121a-126a);

•

The Surface Resources and Multiple Use Act

of 1955, including 30 U.S.C. § 612(b) (App.

126a-127a);

•

The Mining and Minerals Policy Act of 1970,

including 30 U.S.C. § 21a (App. 120a-121a);

•

The National Forest Management Act of 1976

(“NMFA”), including 16 U.S.C. § 1604(a) (App.

116a-119a);

•

The Federal Land Policy and Management Act

of 1976 (“FLPMA”), including 43 U.S.C.

3

§§ 1701(a)(12), 1712(c) & 1732(b) & (c) (App.

131a-153a); and

•

Federal

land

management

regulations

including 36 C.F.R. § 228.8 and 43 C.F.R.

§ 3809.3 (App. 156a-162a).

The State’s restriction giving rise to the suit is set

forth in Oregon Revised Statutes 468B.112 &

468B.114 (App. 157a-158a).

Statement of the Case

Beginning with the first mining legislation in

1866, and continuing through the entire sequence of

statutes cited above, Congress established a

“continuing policy of the Federal Government in the

national interest” (30 U.S.C. § 21a) to foster private

development of mineral deposits on federal lands

through the creation of private property rights in

federal mining claims (see id. §§ 22, 26 & 35).

Through multiple statutes, Congress has also

carefully limited states to an advisory role in the

regulation of the use of federal land. E.g., 16 U.S.C.

§ 1604(a); 43 U.S.C. § 1712(c).

The Miners operate small-scale suction

dredges and other motorized devices to discover and

develop underwater placer deposits of precious

metals. Nearly all of the Miners own, individually or

through their associations, federal mining claims on

federal land, some on National Forest Lands, and

others under the jurisdiction of the U.S. Bureau of

Land Management. One miner is a manufacturer of

the motorized devices; another is a prospector using

4

motorized equipment to prospect for (and hopefully

acquire) his own federal mining claims; and the

Galice Mining District is a local governing body for

and by miners in the District boundaries, including

many of the areas closed by the State’s ban.

While Miners can still pan for gold by hand,

for all practical purposes, the development of the

mineral resources on the Miners’ federal mining

claims cannot proceed without the use of motorized

equipment. (See App. 73a (dissenting opinion below

cites State’s concession to this effect).) Nor can

additional deposits and mining claims containing

underwater deposits be located without the use of

motorized equipment.

As this Court has explained, “the property

right here [granted by Congress] is a right to a flow

of income from production of the claim”. United

States v. Locke, 471 U.S. 84, 105 (1985). That right

is utterly destroyed by the State’s ban.

The mining and prospecting activities of the

Miners, as conducted under regulation prior to the

State’s ban, pose no environmental risks of any

remaining regulatory significance to rational

regulators. Prior to the State’s mining ban, the

Miners

operated

under

seasonal

operating

restrictions to prevent the largely-imaginary risk of

disturbing fish eggs in river and stream beds.

(ER122-23.) They also operated under a federal

Clean Water Act permit issued by the State to assure

compliance with State water quality standards.

(ER43-57.) Their mining activities, properly

regulated, in fact improve spawning grounds for

5

anadromous fish by creating loose gravels favored by

the fish and by removing toxins such as lead weight

and mercury. (See ER67-68.)

Nevertheless, other, politically-powerful river

user groups objected to continued mining, and

induced the Oregon Legislature, first by moratorium

and then by permanent ban, to outlaw “using any

form of motorized equipment, including but not

limited to the use of a motorized suction dredge, for

the purpose of extracting gold, silver or any other

precious metals from placer deposits of the beds or

banks of the waters of the state”. ORS 468B.112(3);

ORS 468B.114(2). The statute singles out smallscale precious metals mining for closure, while

allowing other uses of motorized equipment to

continue, including much larger operations with

correspondingly greater environmental impacts (see

ER119).

While the area of the ban was limited to socalled “essential indigenous salmonid habitat”

protection zones (ORS 468B.114(2)), in practice those

zones were drawn expansively to include many areas

inaccessible to anadromous fish (e.g., ER116-17).

The ban restricts development of a significant

portion of remaining placer deposits of gold and other

heavy minerals in the State. (See ER41 (map).) By

contrast, all motorized non-mining activities in the

so-called “essential indigenous salmon habitat,”

including removal of streambed material and even

filling in the habitat entirely, continue to be

permitted by the State. ORS 196.810(1).

6

The District Court had federal jurisdiction

over the controversy pursuant to 28 U.S.C. § 1331,

insofar as this action arises under the Constitution

and laws of the United States. Its grant of summary

judgment in favor of the State, upholding the State’s

ban, was then upheld by a divided opinion issued by

the Ninth Circuit, giving rise to this petition.

REASONS FOR GRANTING THE WRIT

This case involves issues of exceptional

importance to the national interest in mineral

development, including the balance struck by

Congress between mineral development and

environmental protection and the role Congress

intended to afford states in regulating mineral

development on federal lands. Because of the Ninth

Circuit’s unique and expansive jurisdiction over

Western lands containing most of the Nation’s

federal lands and mineral resources, this Court’s

review is especially important. Banning mining

assisted by motorized equipment is a radical step

that threatens to make continued discovery and

commercial development of the Nation’s mineral

resources impossible, and regulatory uncertainty

further cripples capital investment necessary to

discover and develop the minerals.

Under the rule established by the Ninth

Circuit, any state restriction on the use of federal

lands for any environmental reason is allowed so

long as some tiny remnant of mining use is allowed—

here panning for gold by hand (see App. 43a; cf. id. at

77a (dissent)). This result is contrary to decades of

federal preemption precedent requiring states to

7

avoid interference with the “full purposes and

objectives of Congress”. E.g., Hines v. Davidowitz,

312 U.S. 52, 67 (1941).

The Ninth Circuit’s ruling allowing a

categorical state-law ban on the development of

federal mining claims on federal land is contrary to

this Court’s decision in Granite Rock, decisions of the

United States Courts of Appeal for the Eighth and

Federal Circuits, and decisions of the Supreme

Courts of Colorado and Idaho. It is contrary to 150

years of interpretation of Congressional intent and

direction with respect to mineral development on

federal lands, and with respect to the role of states in

the management of federal lands.

By granting the writ, and reversing the Ninth

Circuit, this Court can establish a clear precedent

that states wishing to regulate the development of

federal mining claims on federal land must afford a

permit-based system in which miners have the

opportunity to comply with generally-applicable

environmental standards, rather than simply issuing

categorical bans singling out mining activity for

unique legislative hostility. Having denied a facial

challenge to a state permitting scheme in Granite

Rock, this Court should now clarify that standardless

and discriminatory prohibition of mining on federal

land is not a Constitutionally-permissible policy

choice for states.

This case also raises the important issue

whether federal courts should give a state’s

legislative assertions of environmental benefits as

controlling in weighing claims of federal preemption.

8

By affirming the grant of summary judgment to the

State, and declaring the challenged state law to be a

narrowly-tailored and reasonable environmental

regulation notwithstanding disputed material issues

of fact, and effectively refusing to consider the degree

to which the statute stood as an obstacle to the

mineral development of appellants’ federal mining

claims, the Ninth Circuit departed from procedural

norms in a way that that calls for the exercise of this

Court’s supervisory jurisdiction.

I.

THE NINTH CIRCUIT’S DECISION

CONFLICTS WITH THIS COURT’S

DECISION IN GRANITE ROCK.

Congress, through the Property Clause of the

U.S. Constitution, “exercises the powers both of a

proprietor and legislator over the public domain”.

Kleppe v. New Mexico, 426 U.S. 529, 540 (1976). It

has “power over the public lands ‘to control their

occupancy and use, to protect them from trespass

and injury and to prescribe the conditions upon

which others may obtain rights in them’”.

Id.

(quoting Utah Power & Light v. United States, 243

U.S. 389, 406 (1917)). This Court has repeatedly

observed that ‘[t]he power over the public land thus

entrusted to Congress is without limitations”. Id. at

539 (quoting United States v. San Francisco, 310

U.S. 16, 29 (1940)).

Inasmuch as the “the purpose of Congress is

the ultimate touchstone in every pre-emption case,”

Medtronic, Inc. v. Lohr, 518 U.S. 470, 585 (1996),

this Court considered some (but not all) of the

statutes identified above in Granite Rock to resolve

9

the question whether state law restricting operations

on federal mining claims was preempted by federal

law.

This Court rejected the position of petitioner

Granite Rock (and Solicitor General Charles Fried)

that state regulation of mining operations on federal

mining claims was categorically preempted by what

one (of two) dissenting opinions called “an almost

impenetrable maze of arguably relevant legislation

in no less than a half-dozen statutes, augmented by

the regulations of two Departments of the

Executive”. Granite Rock, 480 U.S. at 606 (Powell &

Stevens, JJ., dissenting).

Recognizing that the permitting requirement

might nonetheless still be preempted “as an obstacle

to the accomplishment of the full purposes and

objectives of Congress”, id. at 581, this Court allowed

California to require federal mining claim holders to

apply for permits under state law because “the

Coastal Commission's identification of a possible set

of permit conditions not pre-empted by federal law is

sufficient to rebuff Granite Rock's facial challenge to

the permit requirement.” Id. at 589; see also id. at

593.

This

Court

accepted

California’s

representation that it was “not seeking to determine

basic uses of federal land; rather it is seeking to

regulate a given mining use so that it is carried out

in a more environmentally sensitive and resourceprotective fashion”. Id. at 587 (quoting California

brief). The dissenters warned against “giv[ing] ear to

that claim,” id. at 614 (Scalia & White, JJ.,

10

dissenting), and the “intrusive effect of duplicative

state permit systems,” id. at 605 (Powell & Stevens,

JJ., dissenting).

By 2009, California had repudiated its

assurances to this Court and flatly ceased issuing

permits (albeit under a different statutory scheme).

When a miner was criminally prosecuted for want of

a permit, the California Supreme Court upheld the

refusal to issue permits against a federal preemption

challenge. People v. Rinehart, 1 Cal.5th 652 (Cal.

2016). That case produced a petition for a writ of

certiorari considered last Term (Case No. 16-970),

but the Solicitor General recommended against

granting the writ, in part because this case was

pending and would provide a superior and broader

vehicle for review of the important Constitutional

questions presented.2 This Court acted consistently

with the recommendation and denied the writ sub

nom. Rinehart v. California, 138 S. Ct. 635 (2018).

This case is that broader vehicle for review,

involving Oregon’s determination not to suspend a

permitting program, but to affirmatively outlaw any

motorized mining uses in designated areas of federal

land, including on the federal mining claims of the

Miners and others. In upholding the State’s statute

banning the mining, the Ninth Circuit repeatedly

rejected the fundamental premises of this Court’s

Granite Rock decision in a way that undermines the

2 Brief of the United States as Amicus Curiae, No. 16-970, at 22

n.7.

11

careful design of Congress occupying the field of use

regulations governing public lands, and utterly

frustrates

Congress’

mineral

development

objectives—the two classic and independent bases for

federal preemption. See Granite Rock, 480 U.S. at

581. Because of the categorical nature of Oregon’s

ban, and the Ninth Circuit’s insistence that the

State’s environmental motives were controlling as a

matter of law, this case is an ideal vehicle to consider

the exceptionally important questions of federal

preemption presented.

A.

How the Ninth Circuit Rejected this Court’s

Granite Rock Decision

In Granite Rock, this Court declared that “we

may assume that the combination of the NFMA and

the FLPMA pre-empts the extension of state land use

plans onto unpatented mining claims in the national

forests.” Id. at 585. This Court explained:

“The line between environmental

regulation and land use planning will

not always be bright; for example, one

may hypothesize a state environmental

regulation so severe that a particular

land use would become commercially

impracticable. However, the core

activity described by each phrase is

undoubtedly

different.

Land

use

planning in essence chooses particular

uses for the land; environmental

regulation, at its core, does not mandate

particular uses of the land but requires

only that, however the land is used,

12

damage to the environment is kept

within prescribed limits.”

Id. This Court held that notwithstanding substantial

land use aspects of the California statute (see

generally id. at 607-10 (Scalia & White, JJ.,

dissenting)), the challenged California law could

operate, at least in part, as an environmental

permitting statute rather than a land use regulation:

“While the [California law] gives land use as

well as environmental regulatory authority to

the Coastal Commission, the state statute also

gives the Coastal Commission the ability to

limit the requirements it will place on the

permit. . . . Since the state statute does not

detail exactly what state standards will and

will not apply in connection with various

federal activities, the statute must be

understood to allow the Coastal Commission to

limit the regulations it will impose in those

circumstances.”

Id. at 586. No such subtleties are present in the

Oregon statute; as the dissent noted, “the means of

accomplishing

the

environmental

purpose

undisputedly prohibit a particular use of the land,

without reference to an environmental standard to

be achieved.” (App. 68a.)

The Ninth Circuit avoided this Court’s

assumption that land use regulation is categorically

preempted by asserting that the statute “does not

choose or mandate land uses”. (App. 26a.) Of course,

to outlaw motorized mining as a land use is to choose

13

non-motorized mining (or really, no mining at all).

Indeed, the State has in substance mandated the use

of Miners’ federal mining claims and other federal

land as fish habitat reserves. The State’s policy

choice

overturns

the

federal

government’s

determination to designate these portions of its

property either open for mineral entry,3 or, as here,

where valuable discoveries have been found and

claimed, to designate the land for mineral

development. Simply put, the federal government

has chosen a mining use for the claims involved, and

the State has vetoed that choice in favor of use as

fish habitat.

Because

nearly

any

Congressionallyauthorized use of federal lands may be asserted to

have a significant and adverse environmental

impact, the Ninth Circuit’s ruling gives states full

control to veto nearly any federally-authorized uses

of federal land—precisely the result feared by the

dissenting justices in Granite Rock. There is every

reason to anticipate greater and greater interference

with Congressional objectives if this Court does not

grant the writ and clarify the scope of state

regulation.

The Ninth Circuit justified conflict with

Granite Rock by “assert[ing] that the Granite Rock

standard is somehow non-binding dicta (App. 63a n.2

3 Significantly, Congress has acted to restrict the authority of

the Secretary of Interior to withdraw land from mineral entry

(see 43 U.S.C. § 1714), another reason it is unreasonable to

infer Congressional intent to allow a state to withdraw, de

facto, large areas of federal land from mineral use.

14

(dissenting opinion)).

However, as the dissent

explains (and the dissent by Justices Scalia and

White in Granite Rock corroborates), this Court’s

observations on the distinction between regulating

uses and regulating environmental impacts though

reasonable permit conditions transcended mere

dicta. The Ninth Circuit’s opinion also suggested

that Oregon’s restrictions were imposed outside the

State’s general land use planning system (App. 32a);

as the dissent points out, “there are other land use

statutes outside the code sections the majority

identifies” (App. 66a).

The opinion goes further in its conflict with

Granite Rock by attacking at length this Court’s

holding that even a state restriction characterized as

“environmental regulation” may be preempted if it is

“so severe that a particular land use would become

commercially impracticable” (Granite Rock, 480 U.S.

at 587). The Ninth Circuit feared, among other

things, that “virtually every environmental

regulation will render at least some mining claims

commercially impracticable” (App. 28a), but

Congress specified a role for state air quality and

water quality standards regardless of commercial

impracticability (e.g., 43 U.S.C. § 1732(c); see also

Granite Rock, 480 U.S. at 599 (Powell & Stevens, JJ.,

dissenting; review of statutory language, including

other state standards allowed by Congress). For this

reason, the Court may wish to reconsider the Granite

Rock holding to the extent it grants independent

regulatory authority to states overriding federal

agency decisions in areas beyond those specified by

Congress. Congress never intended for states to ban

activities on federal lands that could proceed in

15

perfect

compliance

with

environmental standards.

B.

generally-applicable

How the Ninth Circuit’s Significant

Reinterpretation of Federal Mining and Land

Management Law Threatens the National

Interest.

The Ninth Circuit’s extended rejection of this

Court’s line-drawing exercise in Granite Rock

between permissible and impermissible state

regulation (App. 26a-28a & 37a-38a) was ultimately

premised on an abrupt

and unsupported

reinterpretation of federal mining and land use law.

Congress has always recognized that minerals can

only be extracted from the particular locations where

they are found, and that some degree of

environmental impact is necessary and inevitable in

that process. By denying this underlying axiom of

federal mining law and land management regulation,

the Ninth Circuit’s rule permits any parochial

interest that gains weight in a state legislature (or

even in a state agency or locality), to totally frustrate

the national interest in mineral development of

federal lands.

According to the Ninth Circuit, Congress has

always intended to allow states to prohibit mining on

federal mining claims because mineral development

is always subject to “environmental needs” (see, e.g.,

App. 15a (citing 30 U.S.C. § 21a)), and mining is

simply not the “highest and best use of federal land

wherever minerals are found” (App. 28a (citing

Rinehart, 377 P.3d at 830).) This Court’s review of

the Ninth Circuit’s remarkable reinterpretation of

16

federal mining and land use law is especially

important because most federal lands and mineral

resources lie under the jurisdiction of the Ninth

Circuit. Other Circuits are seldom presented with

the questions raised herein.

A review of the relevant statutes demonstrates

the striking and significant nature of the Ninth

Circuit’s statutory reinterpretation.

The 1872

Mining Act declared:

. . . all valuable mineral deposits in

lands belonging to the United States,

both surveyed and unsurveyed, shall be

free and open to exploration and

purchase, and the lands in which they

are found to occupation and purchase,

by citizens of the United States and

those who have declared their intention

to become such, under regulations

prescribed by law, and according to the

local customs or rules of miners in the

several mining districts, so far as the

same

are

applicable

and

not

inconsistent with the laws of the United

States.”

30 U.S.C. § 22. As discussed below, for 150 years,

the “free and open” language and related features of

federal mining law have been held to create a

powerful federal objective in mineral development

that will supersede contrary state laws standing as

an obstacle to mineral development.

17

Defying yet another aspect of Granite Rock,

however, the Ninth Circuit made a cornerstone of its

decision the holding that § 22 “expressly incorporates

state regulation of mining activity, [by] stating that

exploration authorized by the statute must occur

‘under regulations prescribed by law.’” (App. 44a

(emphasis added); see also id. at 20a (Congress

imposed a general requirement to follow state laws

through § 22).) It is obvious, as this Court observed

in Granite Rock, that the early mining laws

“expressed no legislative intent on the as yet rarely

contemplated subject of environmental regulation”.

Granite Rock, 480 U.S. at 582.

Rather, the phrase “regulations prescribed by

law” language in § 22 refers to provisions concerning

how title to mining claims is acquired and held,

which, whether enacted by states or “local customs or

rules of miners,” must be consistent with federal law.

The Ninth Circuit’s novel reinterpretation of § 22

conflicts with an entire line of earlier decisions of

this Court explaining the role and development of

§ 22 and the other early statutes with which it

18

should be interpreted in pari materia.4 See, e.g.,

Jackson v. Roby, 109 U.S. 440, 440-41 (1883); Butte

City Water Co. v. Baker, 196 U.S. 119, 125 (1905).

Until 1955, Congress granted miners such as

petitioners “the exclusive right of possession and

enjoyment of all the surface included within the lines

of their locations.” 30 U.S.C. § 26; see also 30 U.S.C.

§ 35 (same rules for placer claims). Congress then

passed the Multiple Use Act, which provides, in

pertinent part, that

Rights under any mining claim

hereafter located under the mining laws

of the United States shall be subject,

prior to issuance of patent therefor, to

the right of the United States to manage

and dispose of the vegetative surface

resources thereof and to manage other

surface resources thereof (except

mineral deposits subject to location

under the mining laws of the United

4 To assist in interpreting these cases, § 22 began in 1866 as 14

Stat. 251, ch. 262, § 1, and was later recodified as Revised

Statutes § 2319. These statutes were enacted against a

backdrop in which Congress made it clear, as Western states

like Oregon were admitted to the Union, that they “shall never

interfere with the primary disposal of the soil within the same

by the United States, or with any regulations Congress may

find necessary for securing the title in said soil to bona fide

purchasers thereof . . .”. 11 Stat. 383 (1859) (Oregon); see also 9

Stat. 452 (1850) (California). Barring the use of motorized

equipment necessary to make valuable discoveries of minerals

necessary to obtain federal mining claims plainly interferes

with the Congressional objective of these statutes as well.

19

States). Any such mining claim shall

also be subject, prior to issuance of

patent therefor, to the right of the

United States, its permittees, and

licensees, to use so much of the surface

thereof as may be necessary for such

purposes or for access to adjacent land:

Provided, however, That any use of the

surface of any such mining claim by the

United States, its permittees or

licensees, shall be such as not to

endanger or materially interfere with

prospecting, mining or processing

operations or uses reasonably incident

thereto . . . Provided further, That

nothing in this subchapter and sections

601 and 603 of this title shall be

construed as affecting or intended to

affect or in any way interfere with or

modify the laws of the States which lie

wholly or in part westward of the

ninety-eighth meridian relating to the

ownership, control, appropriation, use,

and distribution of ground or surface

waters within any unpatented mining

claim.

30 U.S.C. § 612(b) (emphasis added).

The two provisos are important in assessing

Congressional intent and federal preemption.

Regrettably, in Granite Rock, this Court did not

address the preemptive significance of either.

20

The first proviso constitutes “Congress’

prohibition on regulations that ‘endanger or

materially interfere with’ mining operations”.

United States v. Backlund, 689 F.3d 986, 996 n.9

(9th Cir. 2012); see also In re Shoemaker, 110

I.B.L.A. 39 (July 13, 1989) (U.S. Bureau of Land

Management may not engineer fish habitat

improvement interfering with mining).5

The Ninth Circuit thus infers an intent by

Congress to allow state regulation which does

materially interfere with mining operations, even as

Congress has denied such regulatory authority to

federal agencies, because Congress struck the

balance in favor of developing minerals at the

expense of necessary injury to surface resources

(including fish and wildlife).6 Later, Congress would

clarify that certain state environmental standards

could be applied, but never authorized any and all

state regulation.

5 Many earlier statutes concerning the Forest Service also show

the Congressional intent to protect and foster mineral

development. See generally 16 U.S.C. §§ 551 (limited authority

to prevent “depredations upon the public forests”) & 478

(explaining that § 551 shall not prohibit development of mineral

resources); see also id. §§ 472 (limiting Service authority over

laws affecting mining), 475 (purpose to exclude mineral lands

from forest purview) & 482 (same).

6 Federal fish and wildlife protections, such as the Endangered

Species Act, continue to apply to operations on federal mining

claims, but federal agencies confirm that small-scale motorized

mining of this sort may proceed consistently with the Act. (See

ER25.)

21

In the second proviso, Congress expressly

addressed the scope of state law in relation to federal

mining claims, ensuring that state law schemes for

water rights would not be affected. This language is

also inconsistent with any intent by Congress to give

broader effect to state law. Expressio unius est

exclusio alterius.

Language in the 1970 Mineral Policy Act cited

by the Ninth Circuit merely established national

goals for “orderly and economic development of

domestic

mineral

resources,

reserves,

and

reclamation of metals and minerals to help assure

satisfaction of industrial, security and environmental

needs . . .”. 30 U.S.C. § 21a(2). Congress wanted to

foster “the disposal, control, and reclamation of

mineral waste products, and the reclamation of

mined land” (id. § 21a(4)), not authorize general state

environmental regulation generally, much less

authorize mining bans.

When enacting the FLPMA and NFMA in

1976, Congress again made unmistakable its intent

to assure the primacy of mineral uses for mineral

lands and continued to make clear the limited and

advisory role of state law. FLMPA called upon

federal land managers to avoid “unnecessary or

undue degradation of federal lands” (43 U.S.C.

§ 1732(b); emphasis added), while managing federal

land “in a manner that recognizes the Nation’s need

for domestic sources of minerals” (id. § 1701(a)(12)).

The NMFA referred back to the Multiple-Use

Sustained Yield Act of 1960 (16 U.S.C. § 1604(e)(1)),

22

which in turn carefully limited the Forest Service’s

authority over outdoor recreation, range, timber,

watershed, wildlife and fish purposes to ensure no

interference with mineral development (see 16

U.S.C. § 528; see also statutes cited supra n. 5).

Congress has always recognized that minerals must

be extracted where found, and that some degree of

environmental degradation is necessary (and thus

not undue) in that process.

In addition, as the dissent below explains,

both NMFA and FLPMA “expressly designate the

level of state participation contemplated by federal

law” (App. 58a), generally consigning the state to a

consultative role.7 All of these and other consultative

requirements “would be superfluous . . . if the States

were meant to have independent land use authority

over federal lands”. Granite Rock, 480 U.S. 613

(Scalia & White, JJ., dissenting).

FLMPA provides that the Secretary of Interior

may require “compliance with [an] applicable State

or Federal air or water quality standard or

implementation plan” (43 U.S.C. § 1732(c)), but the

final decision for compliance is left with the

Another statute showing the Congressional intent to limit

states to advisory role is 30 U.S.C. § 1281, providing a process

for states to petition the Secretary of Interior to exclude

particular areas from mining operations where there is an

“adverse impact on lands used primarily for residential or

related purposes”. While the Ninth Circuit correctly noted that

Oregon could not utilize this statute to set aside federal land for

fish habitat (App. 16a n.4), it is further confirmation of

Congressional intent to limit states to advisory roles.

7

23

Secretary, and Oregon’s mining ban is not an “air or

water quality standard or implementation plan”. It

was because the Miners’ use of motorized equipment

on their federal mining claims could proceed in

perfect compliance with environmental standards

that the State resorted to zoning them out of

existence by special statute.

The use of the term “standards” is vital to

interpreting Congressional intent. As the dissent

explained,

“standards identify an environmental end to

be achieved and offer a means of measuring

the degree to which a particular use conflicts

with an environmental objective. They are also

facially neutral towards varying uses of the

land.”

(App. 65a.) Granting the writ and reversing the

Ninth Circuit would leave mining operations subject

to generally-applicable environmental standards

developed by state and federal agencies—standards

the Miners can meet. This Court’s clarification of

Granite Rock to afford a role for state environmental

standards will accommodate any and all legitimate

environmental

objectives,

while

restraining

Constitutionally-prohibited restrictions on uses of

federal lands.

By contrast, the radical alternative put forth

by the Ninth Circuit allows a state to veto any and

all federally-approved uses of federal land for any

environmentally-related reason it asserts. While a

24

bare majority of this Court concluded in Granite

Rock that “reasonable” environmental restrictions

would not upset the balance set forth by Congress in

the foregoing statutes, allowing categorical mining

bans (without any effective opportunity to challenge

their reasonableness once an environmental purpose

is claimed) “necessarily conflicts with the federal

system”. Granite Rock, 480 U.S. at 605 (Powell &

Stevens, JJ., dissenting).

Consistent with the foregoing statutes, Forest

Service regulations provide that mining operations

should be conducted “so as, where feasible, to

minimize adverse environmental impacts . . .”. 36

C.F.R. § 228.8 (emphasis added). This includes

compliance with state air and water quality

standards. Id. § 228.8(a) & (b). With respect to the

protection of fish habitat, miners are to take “all

practicable measures to protect” it, id. § 228.8(e), not

to cease mining when some level of impact is

unavoidable.

The Ninth Circuit pointed to language in

Granite Rock in which this Court reviewed the

Forest Service regulations and loosely characterized

them as requiring “coincident compliance with state

law as well as federal law” (App. 98a (quoting

Granite Rock, 480 U.S. at 584)), but the regulations

are lawful as requiring compliance with air and

water quality standards expressly intended to apply

by Congress. The regulations would not be lawful if

misconstrued to require compliance with any and all

state restrictions asserted to benefit the environment

25

notwithstanding material interference with mineral

development.

U.S. Bureau of Land Management regulations

cited by the Ninth Circuit do purport to require

miners to comply with any state regulation which

“requires a higher standard of protection for public

lands”. 43 C.F.R. § 3809.3. This regulation is

patently unlawful in light of the Congressional

restriction on agency authority in 30 U.S.C. § 612(b)

and the Congressional protection of mineral

development. Cf. Granite Rock, 480 U.S. at 583 (no

challenge made to Forest Service regulations).

Inasmuch as the Secretary of Interior has the

“ultimate decision” concerning uses of federal lands

(H.R. Conf. Rep. No. 94-1724, p. 58 (1976)), and is

commanded to foster mineral development while

avoiding only environment impact that is

unnecessary in that process, telling states they may

impose any level of restrictions without regard to

mining impacts is not a supportable exercise of his

regulatory discretion.

Moreover, since Granite Rock, this Court has

refined its use of federal agency regulations in

assessing questions of preemption. See generally

Wyeth v. Levine, 555 U.S. 555, 576-77 (2009) (“The

weight we accord the agency’s explanation of state

law’s impact on the federal scheme depends on its

thoroughness, consistency, and persuasiveness”).

The Ninth Circuit rejected this line of Supreme

Court authority as well through its repeated

citations of § 3809.3 (App. 20a, 51a). Neither the

Forest Service nor the U.S. Bureau of Land

26

Management has ever attempted to explain how

telling states they can prohibit mining would be

consistent with the statutes confided to their

administration.

In sum, the Ninth Circuit has misinterpreted

a whole host of federal statutes to allow any

environmental concern asserted by a state to veto

federal mineral development, casting aside the very

precise roles for states crafted by Congress with

respect to regulation of uses of federal lands.

Congress manifestly never intended to allow states

to single out and ban particular mining activities on

federal land, much less all motorized mining. Unless

this Court grants the writ and re-establishes the

balance between state and federal authority over

federal lands, mineral development and other uses of

federal land throughout the West will be crippled by

state vetoes, including uses approved by the federal

land managers charged by Congress to manage

federal lands.

II.

THE

NINTH

CIRCUIT’S

DECISION

CONFLICTS WITH EIGHTH CIRCUIT AND

FEDERAL CIRCUIT DECISIONS ON THE

SAME MATTER.

The Eighth Circuit has straightforwardly

applied Granite Rock to strike down a state law

prohibition “of any new or amended permits for

surface metal mining within the Spearfish Canyon

Area” in the famous Black Hills region. South

Dakota Mining Ass’n v. Lawrence County, 155 F.3d

1005 (8th Cir. 1998),

27

As the Eight Circuit explained:

“The ordinance's de facto ban on mining on

federal land acts as a clear obstacle to the

accomplishment of the Congressional purposes

and objectives embodied in the Mining Act.

Congress has encouraged exploration and

mining of valuable mineral deposits located on

federal land and has granted certain rights to

those who discover such minerals. Federal law

also encourages the economical extraction and

use of these minerals. The Lawrence County

ordinance

completely

frustrates

the

accomplishment of these federally encouraged

activities. A local government cannot prohibit

a lawful use of the sovereign's land that the

superior sovereign itself permits and

encourages. To do so offends both the Property

Clause and the Supremacy Clause of the

federal Constitution. The ordinance is

prohibitory, not regulatory, in its fundamental

character. The district court correctly ruled

that the ordinance was preempted.”

Id. at 1011 (emphasis added). Again, the State here

conceded at oral argument before the Ninth Circuit

that it has put forth a de facto ban on mineral

development in the restricted areas. (See App. 73a.)

The Ninth Circuit rejected the Eighth Circuit’s

simple

and

practical

distinction

between

“prohibitory” and “regulatory” actions by states. The

Ninth Circuit professed to find the Eighth Circuit’s

28

distinction “unworkable”. (App. 43a.) Far from

being unworkable, the rule easily identifies any state

law restriction that “stands as an obstacle to the

accomplishment of the full purposes and objectives of

Congress” in the mining laws, Granite Rock, 480 U.S.

at 581, even without regard to the considerations of

“commercial impracticability” discussed by this

Court.8

While the Ninth Circuit’s remarkable

reinterpretation of federal mining law allowed it to

find that Oregon’s ban “does not stand as an obstacle

to the accomplishment of the full purposes and

objectives of Congress” (App. 2a), that holding is

premised on its erroneous divination of an express

Congressional intent to allow any and all state

regulation under the 1872 Mining Act, as amended,

and its rejection of what it formerly called “the all

pervading purpose of the mining laws . . . to further

the speedy and orderly development of the mineral

resources of our country”. United States v. Nogueira,

403 F.2d 823 (9th Cir. 1968) (quoting Bagg v. New

Jersey Loan Co., 88 Ariz. 182, 354 P.2d 40, 45

(1960)).

8 The Ninth Circuit had previously and easily struck down state

veto power over oil drilling as an obstacle to the Mineral Lands

Leasing Act of 1920, explaining that “[t]he federal Government

has authorized a specific use of federal lands, and Ventura

cannot prohibit that use, either temporarily or permanently, in

an attempt to substitute its judgment for that of Congress”.

Ventura County v. Gulf Oil Co., 601 F.2d 1080, 1084 (9th Cir.

1979).

29

The United States Court of Appeals for the

Federal Circuit, in a decision preceding Granite

Rock, also found a state law banning one of the same

kinds of small-scale mining at issue in this case—

suction dredge mining to be preempted by federal

law. Skaw v. United States, 740 F.2d 932 (Fed. Cir.

1984).

In order to find that federal takings

compensation was available from federal regulatory

action, the Federal Circuit had to find an earlier

state statute restricting mining preempted, and it

did so:

“Under the Act of May 1, 1872, plaintiffs had

the property right to possess and mine to

exhaustion the minerals located on their

unpatented claims without payment of royalty.

[Citations omitted.] Since it prohibited dredge

mining on federal land, compliance with the

1977 [Idaho] Act would have made it

impossible for plaintiffs to exercise rights

theretofore granted by the mining laws. The

Idaho Supreme Court has recognized that

federal legislation necessarily overrides such a

conflicting state law. State ex rel. Andrus v.

Click, 97 Idaho 791, 554 P.2d 969, 974 (1976)

(dictum).”

Skaw, 740 F.2d at 940. This case is illustrative of

many that needed to read no further than 30 U.S.C.

§ 22 to find Constitutionally-forbidden interference

with the important federal purpose of fostering

mineral development on federal lands.

30

The Ninth Circuit distinguished Skaw and

many other contrary cases (some discussed below) as

preceding the Granite Rock holding that reasonable

state environmental restrictions might be imposed in

a permitting process. (App. 51a-52a.) That is a

distinction without a difference, because the state

statute involved in Skaw was an outright ban by the

Idaho Legislature akin to the one at issue here

(forbidding suction dredging in the St. Joe River),

and was not a permitting statute.

III.

THE

NINTH

CIRCUIT’S

CONFLICTS WITH STATE

COURT RULINGS

DECISION

SUPREME

The Ninth Circuit’s holding is flatly contrary

to the holding of the Supreme Court of Colorado in

Brubaker v. Board of County Commissioners, 652

F.2d 1050 (Colo. 1982). The Colorado Supreme Court

struck down a county’s attempt to prohibit core

drilling to determine the validity of a federal mining

claim, explaining that this

“. . . reflects an attempt by the County to

substitute its judgment for that of Congress

concerning the appropriate use of these lands.

Such a veto power does not relate to a matter

of peripheral concern to federal law, but

strikes at the central purpose and objectives of

the applicable federal law. The core drilling

program is directed to obtaining information

vital to a determination of the validity of the

appellants' mining claims. Recognition of a

power in the Board to prohibit that activity

31

would

contravene

the

Congressional

determination that the lands are ‘free and

open to exploration and purchase,’ 30 U.S.C.

§ 22, and so would ‘stand as an obstacle to the

accomplishment and execution of the full

purposes and objectives of Congress’ under the

mining laws.”

Brubaker, 652 P.2d at 1056-57.

This case, though preceding Granite Rock, is

perfectly congruent with it: the County had a

permitting system, but as applied to the mining

operation, the drilling restriction constituted a

Constitutionally-forbidden obstacle to mineral

development. The case confirms that state law

restrictions preventing citizens from obtaining

federal mining claims—like Oregon’s ban on

motorized equipment needed to demonstrate a

valuable

discovery—are

obviously

forbidden

obstacles to Congressional objectives in the mining

law.

The Ninth Circuit’s decision is also contrary to

the Idaho Supreme Court dictum cited in Skaw.

State ex rel. Andrus v. Click, 97 Idaho 791, 554 P.2d

969, 974 (1976). In the Andrus case, the Idaho

Supreme Court again anticipated Granite Rock by

upholding an Idaho permitting scheme for dredge

mining. Just as in Granite Rock, the Idaho Supreme

Court held that reclamation and other provisions of

the Idaho Act would be “unenforceable to the extent

they rendered it impossible to mine the lode deposit”

(554 P.2d at 975), but found no such evidence of

32

impossibility given the record before it and the facial

nature of the challenge (see also id. at 975 n.3).

Here, impossibility is conceded.9

In short, an entire body of law offering a

simple, common sense interpretation of when state

restrictions are a Constitutionally-forbidden obstacle

has been overturned by the Ninth Circuit. Indeed,

the Ninth Circuit’s remarkable re-interpretation of

30 U.S.C. § 22 to authorize any and all state

environmental regulation stands contrary to almost

all authority construing § 22 up until the California

Supreme Court’s 2016 decision in Rinehart. Were it

not so obvious that the states cannot constitutionally

ban mining on federal land (so that few states until

very recently attempted to do so), the decision below

would be inconsistent with far more cases.

If

the

Ninth

Circuit’s

revolutionary

reinterpretation of federal mining and land

management law is not reversed by this Court, more

and more state law prohibitions of federallyauthorized mineral and energy development

activities will be encouraged, substituting expert

agency consideration of scientific issues in

environmental statutes like the federal Clean Water

Act with categorical bans based on political

considerations. The Property Clause and Supremacy

Notwithstanding its position in this case, Oregon itself has

easily interpreted 30 U.S.C. § 22 as forbidding state-law based

restrictions on mining uses in Elliott v. Oregon Int'l Mining Co.,

60 Or. App.474, 654 P.2d 663 (Or. Ct. App. 1982).

9

33

Clause protect Congressional goals for federal land

from such obvious interference.

IV.

THE NINTH CIRCUIT HAS SO FAR

DEPARTED FROM THE ACCEPTED AND

USUAL

COURSE

OF

JUDICIAL

PROCEEDINGS AS TO CALL FOR AN

EXERCISE

OF

THIS

COURT’S

SUPERVISORY POWER.

The Ninth Circuit declared that Oregon’s

prohibition was “carefully and reasonably tailored to

achieve its environmental purpose without unduly

interfering with mining operations.” (App. 26a; see

also id. at 36a.) But as the dissent observed, such a

holding “necessarily turns on facts that are disputed

or not in evidence, including the extent to which

motorized mining negatively impacts fish habitat

and whether there are some means of motorized

mining that would not adversely impact fish

habitat”. (App. 70a.)

In upholding a grant of summary judgment for

the State, the Ninth Circuit establishes the rule that

the mere assertion of environmental benefits for

restricting the use of federal land is controlling

against any contrary factual showing. This is a

departure from the accepted and usual course of

judicial proceedings sufficient to warrant supervisory

jurisdiction. Questioning of asserted environmental

benefits may be taboo in some environmentalist

circles, but the federal courts are supposed to afford

a trial when presented with genuinely-contested

issues of material fact.

34

The Ninth Circuit’s holding allows states

throughout the Ninth Circuit to advance any

“environmental” ground to regulate uses of federal

land, while foreclosing any effective inquiry into the

degree of conflict with federal objectives.

The

Property Clause and the Supremacy Clause demand

more careful consideration.

Under the Ninth

Circuit’s rule, states may now require federal timber

to be harvested by hand with axes and horses, ban

motor vehicles from federal land, or impose any

number of parochial restrictions contrary to national

interests.

Finally, a peculiar feature of the Ninth

Circuit’s opinion is that it bolstered its lengthy

attack on this Court’s “commercial impracticability”

holding in Granite Rock with the assertion that the

Miners waived the argument. (App. 26a-27a & n.6.)

This was a sufficiently shocking distortion of the

record for the dissent to write: “Come on. That

cannot be the basis for our decision.” (App. 74a; see

also id. at 74a-75a & n.8 (citing very extensive record

evidence refuting any possible claim of waiver).)

As the dissent’s citations demonstrate, at all

relevant times, including in oral argument before the

Ninth Circuit, the Miners contended that Oregon’s

prohibition is a categorically-preempted land use

restriction, and stands as a forbidden obstacle to the

accomplishment of federal mineral development

objectives as applied to them and their federal

mining claims.

The Ninth Circuit’s repeated

mistreatment of the Miners and other natural

35

resource interests, uncorrected by this Court, tends

to “undermine public support for the independence of

the judiciary, and cause many to despair of the

promise of the rule of law”.

Karuk Tribe of

California v. U.S. Forest Service, 681 F.3d 1006,

1041 (9th Cir. 2012) (Smith, Kozinski, Ikuta &

Murguia, JJ., dissenting), cert. denied, 568 U.S. 1228

(2013).

In short, the exercise of this Court’s

supervisory jurisdiction is needed not merely to

overturn the Ninth Circuit’s attempt to subordinate

development of most of the nation’s mineral

resources to state veto, but also to correct its

departure from longstanding procedural norms.

Conclusion

For the foregoing reasons, the Petition for a

Writ of Certiorari should be granted.

Respectfully submitted,

James L. Buchal

(Counsel of Record)

Murphy & Buchal LLP

3425 S.E. Yamhill Street,

Suite 100

Portland, OR 97214

E-mail: jbuchal@mbllp.com

Phone: 503-227-1011

Counsel for Petitioners