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

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UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

March 8, 2018, Argued and Submitted, Portland,

Oregon; September 12, 2018, Filed

No. 16-35262

JOSHUA CALEB BOHMKER; LARRY COON;

WALTER R. EVENS; GALICE MINING

DISTRICT; JASON GILL; MICHAEL HUNTER;

MICHAEL P. LOVETT; JOEL GROTHE;

MILLENNIUM DIGGERS; WILLAMETTE

VALLEY MINERS; DON VAN ORMAN; J.O.G.

MINING LLC,

Plaintiffs-Appellants,

v.

STATE OF OREGON; ELLEN ROSENBLUM, in

her official capacity as the Attorney General of

the State of Oregon; MARY ABRAMS, in her

official capacity as the Director of the Oregon

Department of State Lands,

Defendants-Appellees,

ROGUE RIVERKEEPER; PACIFIC COAST

FEDERATION OF FISHERMAN'S

ASSOCIATIONS; INSTITUTE FOR FISHERIES

RESOURCES; OREGON COAST ALLIANCE;

CASCADIA WILDLANDS; NATIVE FISH

SOCIETY; CENTER FOR BIOLOGICAL

DIVERSITY, Intervenor-Defendants-Appellees.

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Before: Raymond C. Fisher, N. Randy Smith and

Andrew D. Hurwitz, Circuit Judges. Opinion by

Judge Fisher; N.R. SMITH, Circuit Judge,

dissenting.

Opinion by: Raymond C. Fisher

Opinion

FISHER, Circuit Judge:

To protect threatened fish populations, Oregon

prohibits the use of motorized mining equipment

in rivers and streams containing essential salmon

habitat. The restrictions, adopted into law as

Senate Bill 3, apply throughout the state,

including on rivers and streams located on federal

lands. The district court concluded the

restrictions are not preempted by federal law, and

we agree. Assuming without deciding that federal

law preempts the extension of state land use

plans onto unpatented mining claims on federal

lands, Senate Bill 3 is not preempted, because it

constitutes an environmental regulation, not a

state land use planning law. Senate Bill 3,

moreover, does not stand as an obstacle to the

accomplishment of the full purposes and

objectives of Congress. As the United States

points out in its amicus brief opposing the

plaintiffs' preemption challenge, reasonable

environmental restrictions such as those found in

Senate Bill are consistent with, rather than at

odds with, the purposes of federal mining and

land use laws. See Cal. Coastal Comm'n v.

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Granite Rock Co., 480 U.S. 572, 588-89, 107 S. Ct.

1419, 94 L. Ed. 2d 577 (1987) (rejecting the

proposition that federal law preempts the

application of reasonable state environmental

regulations to the operation of unpatented mining

claims on federal lands).

BACKGROUND

The Oregon legislature adopted Senate Bill

838 in 2013. The Bill's legislative findings

recognize both the state's rich tradition of small

scale prospecting and mining and its

environmental interest in protecting water

quality and fish habitat. The findings 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.

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(4) Mining that uses motorized equipment in

the beds and banks of the 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

banks of the rivers of Oregon should be

efficient and structured to best protect

environmental values.

2013 Or. Laws ch. 783, § 1.

Consistent with these findings, the law

imposed a five-year moratorium, beginning in

2016, on motorized mining techniques in areas

designated as essential fish habit:

A moratorium is imposed until January 2,

2021, on mining that uses any form of

motorized equipment for the purpose of

extracting gold, silver or any other precious

metal from placer deposits of the beds or

banks of the waters of this state, as defined in

ORS 196.800, or from other placer deposits,

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that results in the removal or disturbance of

streamside vegetation in a manner that may

impact water quality. 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 salmonid

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

natural reproducing populations of bull trout

due to a naturally occurring or lawfully placed

physical barrier to fish passage.

Id. § 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." Or. Rev.

Stat. § 196.810(1)(g)(B).

The plaintiffs filed this action in October 2015,

three months before the moratorium was to take

effect. The 12 plaintiffs have mining claims on

federal lands in Oregon and use a form of

motorized mining known as suction dredge

mining to search for and extract

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gold deposits from rivers and streams.1 The

plaintiffs alleged that many of their mining

claims were located in "essential indigenous

anadromous salmonid habitat" and that the

moratorium on motorized mining imposed by

Senate Bill 838 would prevent them from mining

these claims. They argued that Senate Bill 838

was preempted by federal law because it

"interfere[d] with the federal purpose of fostering

and encouraging mineral development on federal

property, and st[ood] as an obstacle to the

accomplishment and execution of the purposes

and objectives of Congress." Compl. ¶ 49. The

plaintiffs sought an injunction restraining the

state from enforcing Senate Bill 838 and a

declaration that the Bill was preempted by

federal law. Compl. 14.

The district court granted the state's motion

for summary judgment, ruling that, because

Senate Bill 838 was a reasonable environmental

regulation, it was not preempted. After the court

1 Suction dredging is

a technique used by miners to remove matter from the

bottom of waterways, extract minerals, and return the

residue to the water. A high-powered suction hose

vacuums loose material from the bottom of a streambed.

Heavier matter, including gold, is separated at the

surface by passage through a floating sluice box, and

the excess water, sand, and gravel is discharged back

into the waterway.

People v. Rinehart, 1 Cal. 5th 652, 206 Cal. Rptr. 3d 571,

377 P.3d 818, 820 (Cal. 2016).

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entered judgment in favor of the state, the

plaintiffs timely appealed.

After briefing in this court was completed, the

Oregon legislature adopted Senate Bill 3. Senate

Bill 3 repealed the moratorium imposed by

Senate Bill 838 and imposed a permanent

restriction on the use of motorized mining

equipment in waters designated as essential

indigenous anadromous salmonid habitat. It

states:

In order to protect indigenous anadromous

salmonids and habitat essential to the

recovery and conservation of Pacific lamprey,

motorized in-stream placer mining may not be

permitted to occur up to the line of ordinary

high water in any river in this state containing

essential indigenous anadromous salmonid

habitat, from the lowest extent of essential

indigenous anadromous salmonid habitat to

the highest extent of essential indigenous

anadromous salmonid habitat.

2017 Or. Laws ch. 300, § 4(2). Although the

restrictions imposed by Senate Bill 3 differ in

some respects from those in Senate Bill 838, both

laws prohibit motorized mining in rivers and

streams

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designated as essential salmon habitat.2 The

parties therefore agree that the adoption of

Senate Bill 3 does not moot this appeal. See Ne.

Fla. Chapter of the Associated Gen. Contractors

of Am. v. City of Jacksonville, Fla., 508 U.S. 656,

662, 113 S. Ct. 2297, 124 L. Ed. 2d 586 & n.3

(1993) (holding that the repeal of a challenged

ordinance and its replacement with a different

ordinance did not render the plaintiff's claims

moot where the ordinance had not been

"sufficiently altered so as to present a

substantially different controversy from the one

the District Court originally decided" and the two

ordinances "disadvantage[d] [the plaintiff] in the

same fundamental way"). The parties also agree

that we should treat this appeal as a challenge to

Senate Bill 3. We now proceed to do so.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291.

Because at least some of the plaintiffs have

standing to pursue this appeal, we need not

address the standing of additional plaintiffs. See

Nat'l Ass'n of Optometrists & Opticians

LensCrafters, Inc. v. Brown, 567 F.3d 521, 523

(9th Cir. 2009) ("As a general rule, in an

2 Unlike Senate Bill 838, for example, Senate Bill 3 does

not prohibit motorized mining in bull trout habitat. In

addition, although the moratorium imposed by Senate Bill

838 extended to mining in areas up to 100 yards from

waterways, the restrictions on motorized mining in

Senate Bill 3 apply only within rivers and streams

themselves.

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injunctive case this court need not address

standing of each plaintiff if it concludes that one

plaintiff has standing.")3 Our review is de novo.

See Lopez-Valenzuela v. Arpaio, 770 F.3d 772,

777 (9th Cir. 2014) (en banc) (grant or denial of

summary judgment); Ting v. AT&T, 319 F.3d

1126, 1135 (9th Cir. 2003) (federal preemption).

DISCUSSION

A. Background Legal Principles

1. Federal Laws Governing Mining on

Federal Lands

We begin with an overview of the federal laws

respecting mining on federal lands. We consider

only those laws the parties have identified as

relevant to the preemption issues presented in

this appeal.

"Historically, the Federal mining law has been

designed to encourage individual prospecting,

exploration, and development of the public

domain." H.R. Rep. No. 84-730 (1955), as

3 We therefore need not address whether plaintiffs Galice

Mining District, Millennium Diggers and Willamette Valley

Miners have established standing, either in their own right

or on behalf of their members. See Associated Gen.

Contractors of Am., San Diego Chapter, Inc. v. Cal. Dep't of

Transp., 713 F.3d 1187, 1194 (9th Cir. 2013) (explaining

that, to establish associational standing, a plaintiff must

provide specific allegations showing that at least one

identified member has suffered or would suffer harm).

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reprinted in 1955 U.S.C.C.A.N. 2474, 2476.

"Under these laws, prospectors may go out on the

public domain not otherwise withdrawn, locate a

mining claim, search out its mineral wealth and,

if discovery of mineral is made, can then obtain a

patent." Id.

The Mining Act of 1872, 17 Stat. 91, for

example, provides that:

Except as otherwise provided, 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 (emphasis added). Under this Act,

prospectors could acquire unpatented mining

claims by discovering valuable mineral resources

on federal lands, marking the location of their

claims and recording their claims in accordance

with state law:

Rights to mineral lands, owned by the United

States, are initiated by prospecting, that is,

searching for minerals thereon, and, upon the

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discovery of mineral, by locating the lands

upon which such discovery has been made, or

lands which the prospector believes to be

valuable for minerals. A location is made by

staking the corners of the claim, posting a

notice of location thereon, and complying with

the State laws regarding the recording of the

location in the county recorder's office,

discovery work, etc.

H.R. Rep. No. 84-730, 1955 U.S.C.C.A.N. at 2477.

Once the prospector staked out a claim, "the

locator, without further requirement under

Federal law, as of that moment, acquire[d] the

immediate right to exclusive possession, control,

and use of the land within the corners of his

location stakes." Id. at 2478. As the Mining Act

explains:

The locators of all mining locations made on

any mineral vein, lode, or ledge, situated on

the public domain, their heirs and assigns,

where no adverse claim existed on the 10th

day of May 1872 so long as they comply with

the laws of the United States, and with State,

territorial, and local regulations not in conflict

[**13] with the laws of the United States

governing their possessory title, shall have the

exclusive right of possession and enjoyment of

all the surface included within the lines of

their locations, and of all veins, lodes, and

ledges throughout their entire depth . . . .

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30 U.S.C. § 26 (emphasis added). To protect this

right to exclusive possession, a locator annually

must perform $100 worth of labor or carry out

improvements worth $100 in value. See id. § 28.

The locator of an unpatented mining claim

either "may remove the minerals from the land

without first proceeding to patent," H.R. Rep. No.

84-730, 1955 U.S.C.C.A.N. at 2478, or may obtain

a patent by, inter alia, filing an application under

oath, showing that $500 worth of labor has been

expended or improvements made with respect to

the claim and making a payment to the proper

officer of $5 per acre, see 30 U.S.C. § 29. Although

"[a]n 'unpatented' claim is a possessory interest in

a particular area solely for the purpose of

mining," the owner of a patented claim "gets a fee

simple interest from the United States." Clouser

v. Espy, 42 F.3d 1522, 1525 n.2 (9th Cir. 1994).

The mining claims at issue in this case are

unpatented.

By 1955, Congress had become increasingly

aware of "abuses under the general mining laws

by those persons who locate[d] mining claims on

public lands for purposes other than that of

legitimate mining activity." H.R. Rep. No. 84-730,

1955 U.S.C.C.A.N. at 2478. Sham claims, for

example, "could be used for selling timber from

national forests, or obtaining free residential or

agricultural land." United States v. Shumway,

199 F.3d 1093, 1101 (9th Cir. 1999) (citing United

States v. Curtis Nev. Mines, Inc., 611 F.2d 1277,

1282 (9th Cir. 1980)). Congress was also

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concerned that according the holders of

unpatented mining claims exclusive surface

rights prevented the "efficient management and

administration of the surface resources of the

public lands." H.R. Rep. No. 84-730, 1955

U.S.C.C.A.N. at 2474. Mining locations made

under existing law, for example,

frequently block[ed] access: to water needed in

grazing use of the national forests or other

public lands; to valuable recreational areas; to

agents of the Federal Government desiring to

reach adjacent lands for purposes of managing

wild-game habitat or improving fishing

streams so as to thwart the public harvest and

proper management of fish and game

resources on the public lands generally, both

on the located lands and on adjacent lands.

Id. at 2478-79.

To address these concerns, Congress adopted

the Surface Resources and Multiple Use Act of

1955, Pub. L. No. 84-167, 69 Stat. 367 (1955).

This law prohibits the location of any mining

claim for purposes other than mining, see 30

U.S.C. § 612(a), and reserves in the United States

- rather than granting to locators - the right to

manage the surface resources of unpatented

mining claims located after 1955, subject to the

important proviso that "any use of the surface of

any such mining claim by the United States, its

permittees [*1036] or licensees, shall be such as

not to endanger or materially interfere with

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prospecting, mining or processing operations or

uses reasonably incident thereto," id. § 612(b).

The law states:

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 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 if at

any time the locator requires more timber for

his mining operations than is available to

him from the claim after disposition of

timber therefrom by the United States,

subsequent to the location of the claim, he

shall be entitled, free of charge, to be

supplied with timber for such requirements

from the nearest timber administered by the

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disposing agency which is ready for

harvesting under the rules and regulations

of that agency and which is substantially

equivalent in kind and quantity to the

timber estimated by the disposing agency to

have been disposed of from the claim:

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 ninetyeighth meridian relating to the ownership,

control, appropriation, use, and distribution

of ground or surface waters within any

unpatented mining claim.

Id. § 612(b) (emphasis added). The legislation

sought to "encourage mining activity on . . . public

lands compatible with utilization, management,

and conservation of surface resources such as

water, soil, grass, timber, parks, monuments,

recreation areas, fish, wildlife, and waterfowl."

H.R. Rep. No. 84-730, 1955 U.S.C.C.A.N. at 2475.

In 1970, Congress adopted the Mining and

Minerals Policy Act of 1970, Pub. L. No. 91-631,

84 Stat. 1876 (1970). This law declares it the

policy of the United States to foster the

development of an "economically sound and stable

domestic mining" industry, but subject to

"environmental needs," 30 U.S.C. § 21a, making

clear that "Congress did not, and does not, intend

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mining to be pursued at all costs," Rinehart, 377

P.3d at 825. It states:

The Congress declares that it is the continuing

policy of the Federal Government in the

national interest to foster and encourage

private enterprise in (1) the development of

economically sound and stable domestic

mining, minerals, metal and mineral

reclamation industries, (2) the 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,

(3) mining, mineral, and metallurgical

research, including the use and recycling of

scrap to promote the wise and efficient use of

our natural and reclaimable mineral

resources, and (4) the study and development

of methods for the disposal, control, and

reclamation of mineral waste products, and

the reclamation of mined land, so as to lessen

any adverse impact of mineral extraction and

processing upon the physical environment that

may result from mining or mineral activities.

30 U.S.C. § 21a (emphasis added).4

4 In 1977, Congress adopted the Surface Mining Control and

Reclamation Act of 1977, Pub. L. No. 95-87, 91 Stat. 445

(1977). In relevant part, this law allows the governor of a

state to ask the Secretary of the Interior to designate lands

as unsuitable for mining on the ground that "mining

operations would have an adverse impact on lands used

primarily for residential or related purposes." 30 U.S.C. §

17a

2. Federal Laws Governing National Forests

The Organic Administration Act, 30 Stat. 11,

35-36 (1897), provides that nothing in 16 U.S.C.

§§ 473-82 and 551 "shall . . . prohibit any person

from entering upon . . . national forests for all

proper and lawful purposes, including that of

prospecting, locating, and developing the mineral

resources thereof." 16 U.S.C. § 478. It also

provides, however, that "[s]uch persons must

comply with the rules and regulations covering

such national forests." Id. The Organic Act,

moreover, requires the Secretary of Agriculture to

"make provisions for the protection against

destruction by fire and depredations upon the

public forests and national forests," and it

authorizes the Secretary to "make such rules and

regulations" regarding "occupancy and use" as

may be necessary "to preserve the forests thereon

from destruction." Id. § 551.

Under this rulemaking authority, the U.S.

Forest Service has promulgated rules regulating

mining on national forest lands. These

regulations require mining operators to comply

with applicable federal and state air quality

standards, water quality standards and standards

for the disposal and treatment of solid wastes. See

36 C.F.R. § 228.8(a)-(c).

1281(a)-(b). The plaintiffs do not suggest this provision

presented an option for Oregon here.

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The Multiple-Use and Sustained-Yield Act of

1960, Pub. L. No. 86-517, 74 Stat. 215 (1960),

directs the Secretary of Agriculture "to develop

and administer the renewable surface resources

of the national forests for multiple use and

sustained yield." 16 U.S.C. § 529. After declaring

it "the policy of the Congress that the national

forests are established and shall be administered

for outdoor recreation, range, timber, watershed,

and wildlife and fish purposes," the Act states

that "[n]othing herein shall be construed as

affecting the jurisdiction or responsibilities of the

several States with respect to wildlife and fish on

the national forests." Id. § 528. It further states

that "[n]othing herein shall be construed so as to

affect the use or administration of the mineral

resources of national forest lands or to affect the

use or administration of Federal lands not within

national forests." Id.

The National Forest Management Act of 1976

(NFMA), Pub. L. No. 94-588, 90 Stat. 2949 (1976),

requires the Secretary of Agriculture to "develop .

. . land and resource management plans for units

of the National Forest System, coordinated with

the land and resource management planning

processes of State and local governments and

other Federal agencies." 16 U.S.C. § 1604(a). In

developing such plans, the Secretary shall assure

that they "provide for multiple use and sustained

yield of the products and services obtained

therefrom in accordance with the Multiple-Use

Sustained-Yield Act of 1960." Id. § 1604(e)(1).

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In addition, federal lands, including those

falling outside national forests, are governed by

the Federal Land Policy and Management Act of

1976 (FLPMA), Pub. L. No. 94-579, 90 Stat. 2743

(1976). FLPMA requires the Secretary of the

Interior to develop land use plans for public

lands, see 43 U.S.C. § 1712(a), and to "manage

the public lands under principles of multiple use

and sustained yield," id. § 1732(a). FLPMA

directs that, "[i]n managing the public lands the

Secretary shall, by regulation or otherwise, take

any action necessary to prevent unnecessary or

undue degradation of the lands." Id. § 1732(b).

This "unnecessary or undue degradation"

mandate applies not only to land use generally

but also to the regulation of mining operations in

particular. See id. (providing that nothing in

FLPMA, other than the provision establishing the

"unnecessary or undue degradation" standard,

"shall in any way amend the Mining Law of 1872

or impair the rights of any locators or claims

under that Act, including, but not limited to,

rights of ingress and egress"). FLPMA further

provides that "nothing in this Act shall be

construed as . . . enlarging or diminishing the

responsibility and authority of the States for

management of fish and resident wildlife." Id.

Under FLPMA, the Bureau of Land

Management (BLM) has issued regulations

requiring mining operators to "comply with

applicable Federal and state" air quality

standards, water quality standards and standards

for the disposal and treatment of solid wastes. 43

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C.F.R. § 3809.420(b)(4)-(6). Another BLM

regulation requires mining operators to comply

with state environmental regulations that do not

conflict with federal law: "If State laws or

regulations conflict with this subpart regarding

operations on public lands, you must follow the

requirements of this subpart. However, there is

no conflict if the State law or regulation requires

a higher standard of protection for public lands

than this subpart." Id. § 3809.3.

3. Overview of Applicable Federal Laws

The foregoing laws, in the aggregate, reflect

Congress' intent to foster a productive mining

industry but also its intent to protect the

environment. These laws declare many federal

lands "free and open" to exploration, 30 U.S.C. §

22, preclude the United States from using the

surface area of certain mining claims in a manner

that would "endanger or materially interfere"

with the underlying mining claims, id. § 612(b),

declare it to be the policy of the United States to

foster "the development of economically sound

and stable domestic mining . . . industries," id. §

21a, and preserve a role for prospecting and

mining in national forests, see 16 U.S.C. §§ 478,

528. At the same time, these laws require miners

to comply with state laws, see 30 U.S.C. § 22,

including state environmental laws, see, e.g., 36

C.F.R. § 228.8; 43 C.F.R. §§ 3809.3, 3809.420(b),

declare it the policy of the United States to assure

that mining satisfies the nation's "environmental

needs," 30 U.S.C. § 21a, require the Secretary of

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Agriculture to protect national forests from

"depredations" and "destruction," 16 U.S.C. § 551,

require the Secretary of the Interior to protect

public lands from "unnecessary or undue

degradation," 43 U.S.C. § 1732(b), and recognize

the states' broad authority to manage fish and

wildlife, see 16 U.S.C. § 528; 43 U.S.C. § 1732(b).

In light of these provisions, it is common ground

among the parties that the holders of unpatented

mining claims do not have an "unfettered" right to

explore and mine federal lands, unencumbered by

federal and state environmental regulation. Nor

does anyone argue that states' environmental

regulatory authority in this area is unbounded.

Congress plainly intended to draw a line between

these two extremes.

4. The Granite Rock Decision

The Supreme Court addressed this line

drawing in California Coastal Commission v.

Granite Rock Co., 480 U.S. 572, 107 S. Ct. 1419,

94 L. Ed. 2d 577 (1987). After the Granite Rock

Company secured unpatented mining claims on

national forest land and the Forest Service

approved the company's plan of operations for the

removal of limestone, the California Coastal

Commission instructed the company to apply for a

permit under the California Coastal Act, which

prohibits any development, including mining, in

the state's coastal zone without a permit. See id.

at 575-76. The company sued to enjoin the

enforcement of the permit requirement, arguing

federal preemption. See id. at 577.

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The Supreme Court rejected the company's

claims. The Court began by observing that

[S]tate law can be pre-empted in either of two

general ways. If Congress evidences an intent

to occupy a given field, any state law falling

within that field is pre-empted. If Congress

has not entirely displaced state regulation

over the matter in question, state law is still

preempted to the extent it actually conflicts

with federal law, that is, when it is impossible

to comply with both state and federal law, or

where the state law stands as an obstacle to

the accomplishment of the full purposes and

objectives of Congress.

Id. at 581 (alteration in original) (citations

omitted) (quoting Silkwood v. Kerr-McGee Corp.,

464 U.S. 238, 248, 104 S. Ct. 615, 78 L. Ed. 2d 443

(1984)).

The Court next summarily rejected the

proposition that the Mining Act of 1872

demonstrates an intent to preempt any state

environmental regulation on federal lands. As the

Court explained, "Granite Rock concedes that the

Mining Act of 1872, as originally passed,

expressed no legislative intent on the as yet

rarely contemplated subject of environmental

regulation." Id. at 582.

Next, the Court rejected Granite Rock's

argument that "the Federal Government's

environmental regulation of unpatented mining

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claims in national forests demonstrates an intent

to pre-empt any state regulation." Id. at 581-82.

The Court concluded that

the Forest Service regulations that Granite

Rock alleges pre-empt any state permit

requirement not only are devoid of any

expression of intent to pre-empt state law, but

rather appear to assume that those submitting

plans of operations will comply with state

laws. . . . It is impossible to divine from these

regulations, which expressly contemplate

coincident compliance with state law as well

as with federal law, an intention to pre-empt

all state regulation of unpatented mining

claims in national forests.

Id. at 583-84 (emphasis added) (citing 36 C.F.R.

§§ 228.5(b), 228.8(a)-(c), (h)). The Court added

that "[n]either Granite Rock nor the United

States contends that these Forest Service

regulations are inconsistent with their

authorizing statutes." Id. at 584.

The Court then turned to Granite Rock's

argument that "federal land management

statutes demonstrate a legislative intent to limit

States to a purely advisory role in federal land

management decisions, and that the Coastal

Commission permit requirement is therefore preempted as an impermissible state land use

regulation." Id. The Court assumed arguendo that

"the combination of the NFMA and the FLPMA

pre-empts the extension of state land use plans

24a

onto unpatented mining claims in national forest

lands." Id. at 585. But even under this

assumption, the Court held that only "state land

use plans" would be preempted, not state

"environmental regulation." Id. at 585-86.

The Court did not define the terms "land use

planning" and "environmental regulation," but it

offered some guidance as to the distinction

between the two:

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,

damage to the environment is kept within

prescribed limits. Congress has indicated its

understanding of land use planning and

environmental regulation as distinct activities.

Id. at 587.

The Court suggested that a state's decision to

"prohibit" or "ban" mining would constitute land

use planning, and hence would be preempted. See

id. at 586-87. It further intimated that a law

25a

would be preempted if, although couched as

environmental regulation, its "true purpose" was

to prohibit mining. Id. at 588. At bottom,

however, the Court made clear that "reasonable

state environmental regulation is not preempted." Id. at 589; see also id. at 593.

B. The Plaintiffs' Arguments

The plaintiffs argue: (1) Senate Bill 3 is field

preempted because it constitutes state "land use

planning" under Granite Rock; (2) Senate Bill 3 is

conflict preempted because it is "prohibitory, not

regulatory, in its fundamental character," S.D.

Mining Ass'n v. Lawrence County, 155 F.3d 1005,

1011 (8th Cir. 1998); (3) Senate Bill 3 is conflict

preempted because it does not constitute

"reasonable state environmental regulation"; and

(4) genuine issues of material fact preclude the

entry of summary judgment in favor of the state.

We address these arguments in turn.

1. Field Preemption: The Plaintiffs'

Argument That Senate Bill 3

Constitutes State Land Use Planning

Granite Rock assumed without deciding that

"the combination of the NFMA and the FLPMA

pre-empts the extension of state land use plans

onto unpatented mining claims in national forest

lands." 480 U.S. at 585. We make the same

26a

assumption here.5 But like the Supreme Court in

Granite Rock, we reject the plaintiffs' preemption

claim. Senate Bill 3 is an environmental

regulation rather than a land use planning law. It

does not choose or mandate land uses, has an

express environmental purpose of protecting

sensitive fish habitat, is not part of Oregon's land

use system and is carefully and reasonably

tailored to achieve its environmental purpose

without unduly interfering with mining

operations. Senate Bill 3 is precisely the kind of

reasonable state environmental regulation that

the Supreme Court recognized in Granite Rock

properly supplements rather than displaces

federal land use planning decisions. To be sure,

by restricting motorized suction dredge mining in

rivers and streams designated as essential

habitat for threatened salmonids, Senate Bill 3

will adversely impact the ability of some miners

to extract gold deposits from their mining claims.

But these impacts are the unavoidable

consequences of a federal scheme that seeks to

foster both the development of valuable mineral

resources and proper stewardship and protection

of the nation's natural resources.

The plaintiffs do not argue that Senate Bill 3

becomes a land use law under Granite Rock

simply because it may render some of their

5 We view the application of this assumption, as do the

parties, as a question of field preemption rather than

conflict preemption. But, even if we were to view it as a

question of conflict preemption, we would find no conflict,

because Senate Bill 3 is not a land use law.

27a

mining claims commercially impracticable.6 We

agree with the United States that the preemption

inquiry does not turn on profitability:

To be sure, there will be miners (including

some Plaintiffs) who cannot profitably extract

certain minerals from their mining claims

without the use of motorized equipment in the

water. But . . . specific limitations on specific

mining methods or activities have long been

part of the business of mining. A State law

cannot be deemed preempted solely on the

basis that the cost of mining in compliance

with the law makes a particular miner unable

to profit from a particular mining claim.

Brief of the United States as Amicus Curiae 2627. Because "[v]irtually all forms of . . . regulation

6 The dissent contends the plaintiffs have made a commercial

impracticability argument. Dissent 68. We have, however,

carefully reviewed their opening and reply briefs on appeal,

and no such argument exists there. The plaintiffs argue

Senate Bill 3 is preempted because it prohibits mining, not

because it renders their claims unprofitable. As the plaintiffs

make clear, "[t]his appeal is not about profitability, but about

prohibition." Reply Br. 41. The plaintiffs have therefore

waived the argument. See Indep. Towers of Wash. v.

Washington, 350 F.3d 925, 929 (9th Cir. 2003) ("[W]e will not

consider any claims that were not actually argued in

appellant's opening brief."); Smith v. Marsh, 194 F.3d 1045,

1052 (9th Cir. 1999) ("[A]rguments not raised by a party in its

opening brief are deemed waived."); Greenwood v. Fed.

Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994) ("We will

not manufacture arguments for an appellant . . . ."). This rule

applies with particular force where, as here, the plaintiffs

have expressly disclaimed the argument in question.

28a

of mining claims — for instance, limiting the

permissible methods of mining and prospecting in

order to reduce incidental environmental damage

— will result in increased operating costs,"

Clouser, 42 F.3d at 1530, virtually every

environmental regulation will render at least

some mining claims commercially impracticable,

and virtually every environmental regulation

would therefore be preempted under a

commercial impracticability test, a proposition

that is impossible to reconcile with Granite Rock's

central holding that "reasonable state

environmental regulation is not pre-empted,"

Granite Rock, 480 U.S. at 589 (emphasis added).

A commercial impracticability theory, moreover,

would require the preemption analysis to turn on

each miner's individual financial circumstances:

the law would be preempted as to some miners

but not as to others. Indeed, a commercial

impracticability test would give the greatest

protection to the least profitable mining

operations, and it would handcuff regulators from

restricting even the most environmentally

destructive mining methods. So long as a

particularly destructive method of mining — such

as blasting — presented the only commercially

practicable means of extracting minerals,

regulators would be barred from restricting that

practice. We do not read Granite Rock as

supporting that result. As the California Supreme

Court has explained, federal law does not show

that Congress "viewed mining as the highest and

best use of federal land wherever minerals were

found." Rinehart, 377 P.3d at 830.

29a

Rather, the plaintiffs contend that Senate Bill

3 constitutes a state land use planning law

because it "prohibits" a particular "use" of the

land (motorized mining methods) in particular

"zones" (rivers and streams designated as

essential salmonid habitat). The plaintiffs base

this argument on language in Granite Rock

explaining that

the core activity described by [environmental

regulation and land use planning] 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,

damage to the environment is kept within

prescribed limits.

480 U.S. at 587. The plaintiffs argue Senate Bill 3

is state land use planning under this language

because (1) it chooses particular uses of the land

and (2) does not prescribe limits on

environmental damage by, for example,

promulgating a pollution standard.

We disagree. First, Senate Bill 3 does not

"choose[]" or "mandate particular uses of the

land." Id. It simply restricts one method of

mining.7

Granite Rock, moreover,

Senate Bill 3 is not a "ban" or "prohibition" on mining. See

7 Like the permit requirement in

30a

Second, Senate Bill 3 does not constitute land

use planning simply because it prohibits a

particular mining method rather than

"prescrib[ing] limits" on environmental damage

by adopting a pollution standard. Granite Rock

480 U.S. at 586-87. Senate Bill 3 does not prohibit the

plaintiffs' mining operations. Many of the plaintiffs engage

in upland mining, mine in rivers and streams that are not

designated as essential habitat or use non-motorized

mining methods such as gold panning. Plaintiff Larry Coon,

for example, did not testify that all of his mining claims are

located in essential salmon habitat, and he contends only

that the legislation will significantly limit his mining

operations, not eliminate them. Coon decl. ¶¶ 2, 5. Only half

of plaintiff Millennium Diggers' mining claims are located

within essential salmon habitat. Darnell decl. ¶ 4. Some of

its members, moreover, "utilize non-motorized techniques,

such as gold panning." Id. ¶ 3. Plaintiff Jason Gill's mining

operations occur between 50 and 300 feet from a creek. Gill

decl. ¶¶ 3-4. These operations would not be affected by

Senate Bill 3, which applies solely to in-stream mining. The

deposits associated with plaintiff Joel Grothe's claim fall not

only within the creek bottom but also within 100 yards of

the creek. Grothe decl. ¶ 7. Only some of plaintiff

Willamette Valley Miners' mining claims are located in

essential salmon habitat. Hunter decl. ¶ 9. Its members'

mining, moreover, includes "non-motorized techniques, such

as gold panning." Id. ¶ 8. Plaintiff Michael Lovett testified

that Senate Bill 3 would significantly limit his mining

operations, but not that it would eliminate them. Lovett

decl. ¶ 4. We take seriously the plaintiffs' contentions that

Senate Bill 3 will seriously impact their mining operations

with respect to at least some of their mining claims. But the

plaintiffs' own declarations make clear that Senate Bill 3 is

not a ban on mining.

31a

does not hold that only standards, not restrictions

on activities, are permissible environmental

regulation. On the contrary, Granite Rock says

only that "environmental regulation, at its core,

does not mandate particular uses of the land but

requires only that, however the land is used,

damage to the environment is kept within

prescribed limits." 480 U.S. at 587 (emphasis

added).8 It does not purport to define the entire

universe of environmental regulation as

consisting solely of limit-prescribing standards.

That formalistic approach ignores the practical

reality that environmental regulation may take

several forms, and it would make no sense, given

that regulations imposing pollution standards can

impact mining operations every bit or even more

than regulations restricting particular mining

methods. The plaintiffs concede, for example, that

"Oregon's water quality standard for turbidity"

constitutes a permissible, non-preempted

"environmental regulation" under Granite Rock.

8 The dissenting opinion characterizes us as treating this

language as "non-binding dicta (Dissent 58 n.2)," but that is

not the case. In addition, the dissent's theory that a

distinction between regulations dictating "uses" and

regulations dictating "standards" would provide a "clear line

between land use planning and environmental regulation"

(Dissent 58) eludes us. Would a regulation limiting the size of

suction dredge hoses prohibit a "use" (of larger hoses) or

prescribe a "standard" (on the size of the hose and,

consequently, the volume of material to be dredged)? Would a

regulation limiting the size of the vehicles miners could use to

reach their claims prohibit a "use" (of heavy vehicles) or

prescribe a "standard" (on the weight of vehicles and the

resulting damage to the surface of the forest)?

32a

A stringent turbidity standard, however, might

have a greater adverse impact on the plaintiffs'

mining operations than Senate Bill 3's targeted

restrictions on motorized mining.

Senate Bill 3 also is not part of Oregon's

extensive and distinct land use system. That

system requires the development of

comprehensive plans by local governments,

implemented through zoning, and reviewed by the

Oregon Land Conservation and Development

Commission. Those decisions, in turn, are

reviewed by a State Land Use Board of Appeals,

which has developed significant land use case

law. See generally Or. Rev. Stat. §§ 197.005197.860, 215.010-215.990. Senate Bill 3 stands

apart from that regime.

The plaintiffs' argument, moreover, overlooks

Senate Bill 3's obvious and important

environmental purpose.9 The Oregon legislature

adopted Senate Bill 3's restrictions on motorized

mining "[i]n order to protect indigenous

Although the plaintiffs contend Oregon's purpose in

adopting Senate Bill 3 is irrelevant to the preemption

analysis, our case law is to the contrary. See Puente Ariz. v.

Arpaio, 821 F.3d 1098, 1106 n.8 (9th Cir. 2016) (rejecting

the proposition "that the state's purpose in passing a

statute is not relevant to our preemption analysis, as both

this court and the Supreme Court have analyzed purpose in

preemption cases"). In Granite Rock, moreover, the

Supreme Court expressly considered whether the state's

"true purpose in enforcing a permit requirement [was] to

prohibit [the plaintiff's] mining entirely." Granite Rock, 480

U.S. at 588.

9

33a

anadromous salmonids and habitat essential to

the recovery and conservation of Pacific lamprey."

2017 Or. Laws ch. 300, § 4(2). "'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." Or. Rev. Stat. §

196.810(1)(g)(B). "'Indigenous anadromous

salmonid' means chum, sockeye, Chinook and

Coho salmon, and steelhead and cutthroat trout,

that are members of the family Salmonidae and

are listed as sensitive, threatened or endangered

by a state or federal authority." Id. §

196.810(1)(g)(C).

Similarly, in Senate Bill 838, the legislature

found that "[m]ining that uses motorized

equipment in the beds and banks of the 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." 2013 Or. Laws ch. 783, § 1(4). The

legislature found that, "[b]etween 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." Id. § 1(5). It

found that "[t]he regulatory system related to

mining that uses motorized equipment in the

beds and banks of the rivers of Oregon should be

34a

efficient and structured to best protect

environmental values." Id. § 1(6).

The plaintiffs' attempts to cast doubt on

Senate Bill 3's environmental purpose are

unconvincing. They contend that Senate Bill 3's

restrictions were not "required to advance any

bona fide environmental interest of the State of

Oregon" and instead were "primarily motivated

by objections from other users of the waterways."

Their evidence, however, fails to substantiate

these broad claims.

They rely, first, on two Oregon statutes, but

neither one undermines the Oregon legislature's

determination that restrictions on motorized

mining are necessary to protect fish habitat. The

first of these statutes, former Or. Rev. Stat. §

517.123(3), adopted in 1999, simply found that

"prospecting, small scale mining and recreational

mining . . . [c]an be conducted in a manner that is

not harmful and may be beneficial to fish habitat

and fish propagation." 1999 Or. Laws ch. 354, §

2(3). There is, of course, no inconsistency between

the general finding that small scale mining can be

conducted in a non-harmful manner and Senate

Bill 3's conclusion that it was necessary, "[i]n

order to protect indigenous anadromous

salmonids and habitat essential to the recovery

and conservation of Pacific lamprey," to restrict

one particular type of small scale mining "motorized in-stream placer mining" - in certain

environmentally sensitive areas. 2017 Or. Laws

ch. 300, § 4(2). In any event, the Oregon

35a

legislature repealed the 1999 finding in 2013,

noting a "significant[]" increase in motorized

mining between 2007 and 2013 that "pose[d]

significant risks to Oregon's natural resources,

including fish and other wildlife." 2013 Or. Laws

ch. 783, §§ 1(4)-(5), 10. The 1999 finding,

therefore, does nothing to undermine Senate Bill

3's avowed and self-evident environmental

purpose.

The second statute upon which the plaintiffs

rely, Or. Rev. Stat. § 517.005, says only that

Technological advances in the mining

industry, coupled with reclamation efforts,

have greatly reduced the environmental

impacts of mining operations. The size and

scope of modern operations is such that the

operations do not cause interference with

other natural resource uses, particularly in

an area as vast as eastern Oregon.

Or. Rev. Stat. § 517.005(4). Because this provision

pertains to mining generally, and not to the

particular environmental concerns addressed by

Senate Bill 3, it too does nothing to undermine

the validity of Senate Bill 3's stated

environmental purpose.

Beyond these two statutes, the plaintiffs'

evidence regarding Senate Bill 3's purpose

consists solely of a single statement in the record

by plaintiff Michael Hunter. Hunter testified that,

"[i]n [the Willamette Valley Miners'] experience,

36a

the State of Oregon regulates in utter disregard

to the National interest in mineral development,

instead seeking to placate other user groups who

resent, and desire to eliminate the presence of

miners on public lands." Hunter decl. ¶ 12. Even

granting this statement may reflect Hunter's

sincere personal opinion, it is wholly lacking in

the specific factual support that would be needed

to create a genuine issue of material fact [**37]

as to Senate Bill 3's purpose. See FTC v. Publ'g

Clearing House, Inc., 104 F.3d 1168, 1171 (9th

Cir. 1997) (as amended) ("A conclusory, selfserving affidavit, lacking detailed facts and any

supporting evidence, is insufficient to create a

genuine issue of material fact.").

In sum, because Senate Bill 3 has a clear

environmental purpose, is tailored to that

purpose, and does not prohibit mining, choose

land uses or fall within Oregon's distinct land use

planning system, we hold that it is an

environmental regulation rather than a state land

use planning law. Thus, even assuming for

purposes of our analysis that federal law

preempts the extension of state land use plans on

federal lands, Senate Bill 3 is not preempted.

Our dissenting colleague takes the view that

any state environmental regulation — whether in

the form of a "use" restriction or a "standard" constitutes a "de facto land use regulation

preempted by federal law" whenever it renders

regulated mining claims commercially

impracticable. Dissent 70-71. Where a conflict

37a

exists between regulated mining claims and a

need to protect the environment, the mining

claims must always take precedence.

The dissent assures us that a commercial

practicability test would not undermine

environmental protection because it would affect

only state regulation, not federal regulation.

Dissent 69 ("Even if federal law preempts

Oregon's attempt to apply Senate Bill 3 to federal

lands, the miners must still comply with all

environmental laws and standards imposed

expressly by federal statutes and regulations.").

But this is not how environmental protection on

federal lands is achieved. As Granite Rock

recognizes, the federal scheme relies on the states

to provide environmental regulation of mining

claims on federal lands. Because federal law

"expressly contemplate[s] coincident compliance

with state as well as with federal law," Granite

Rock, 480 U.S. at 584, "reasonable state

environmental regulation is not pre-empted," id.

at 589. That is why the U.S. Departments of

Agriculture and the Interior, which are the

federal agencies charged with management and

environmental protection of the federal lands

impacted by Senate Bill 3, have joined this case

on the side of Oregon, urging us to uphold Senate

Bill 3 against the plaintiffs' preemption challenge.

Under the dissent's commercial

impracticability test, even a patently destructive

method of mining would be permitted as long as it

represented the only commercially viable means

38a

of extracting minerals from the ground,

irrespective of the havoc it would wreak on

wildlife and habitat. This is the mining "at all

costs" approach that the plaintiffs expressly

disclaim. Reply Br. 29. We can find no support for

that approach in federal mining law or case law.

On the contrary, federal mining law, see, e.g., 30

U.S.C. § 21a, the Supreme Court and the United

States as amicus curiae all agree that mining

must be pursued consistent with environmental

needs, not irrespective of environmental cost.

That is why "reasonable state environmental

regulation is not pre-empted." Granite Rock, 480

U.S. at 589. We respectfully decline the dissent's

suggestion to hold that reasonable state

environmental regulation is preempted merely

because it renders regulated mining claims

unprofitable. That approach cannot be reconciled

with the balance Congress has sought to achieve.

2. Conflict Preemption: The Plaintiffs'

Argument That Senate Bill 3 Is Preempted

Because It Is "Prohibitory" Rather Than

"Regulatory"

We next consider the plaintiffs' contention

that Senate Bill 3 is conflict preempted because it

is "prohibitory" rather than "regulatory" in its

fundamental character. There is, of course, some

overlap between this argument and the field

preemption argument we have just addressed. In

both instances, the plaintiffs contend Senate Bill

3 is preempted because it prohibits a particular

mining method rather than merely subjecting

39a

that mining method to an environmental

standard. Despite these similarities, however, we

treat the two arguments as distinct. The

plaintiffs' field preemption argument is based on

Granite Rock's distinction between land use

planning on the one hand and environmental

regulation on the other. By contrast, their current

argument — finding a distinction between

"prohibitory" and "regulatory" state

environmental regulation and deeming the former

conflict preempted — is largely based on South

Dakota Mining Association v. Lawrence County,

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

In South Dakota Mining, county voters

approved an ordinance that amended the county's

zoning laws to prohibit the issuance of new or

amended permits for surface metal mining in the

40,000-acre Spearfish Canyon Area, 90 percent of

which fell within a national forest. See id. at

1006-07. The plaintiffs argued the ordinance was

preempted because it stood as an obstacle to the

accomplishment of the full purposes and

objectives of Congress embodied in the Mining Act

of 1872. See id. at 1009.

"To determine the purposes and objectives

that are embodied in the Mining Act," the Eighth

Circuit considered the language of the Mining and

Minerals Policy Act of 1970, 30 U.S.C. § 21a, and

the Mining Act itself, 30 U.S.C. § 22. As noted, §

21a states:

40a

The Congress declares that it is the

continuing policy of the Federal Government

in the national interest to foster and

encourage private enterprise in (1) the

development of economically sound and

stable domestic mining, minerals, metal and

mineral reclamation industries, (2) the

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, (3) mining, mineral,

and metallurgical research, including the use

and recycling of scrap to promote the wise

and efficient use of our natural and

reclaimable mineral resources, and (4) the

study and development of methods for the

disposal, control, and reclamation of mineral

waste products, and the reclamation of

mined land, so as to lessen any adverse

impact of mineral extraction and processing

upon the physical environment that may

result from mining or mineral activities.

30 U.S.C. § 21a. The Mining Act, in turn, states:

Except as otherwise provided, all valuable

mineral deposits in [**42] 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

41a

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.

Id. § 22. In light of these statutes, the Eighth

Circuit concluded the Mining Act embodies

several congressional purposes, including

the encouragement of exploration for and

mining of valuable minerals located on

federal lands, providing federal regulation of

mining to protect the physical environment

while allowing the efficient and economical

extraction and use of minerals, and allowing

state and local regulation of mining so long

as such regulation is consistent with federal

mining law.

South Dakota Mining, 155 F.3d at 1010.

The Eighth Circuit next considered whether

the challenged ordinance stood as an obstacle to

these purposes and objectives. At the outset, the

court observed that, because surface metal

mining was the only practical way to "actually

mine the valuable mineral deposits located on

federal land in the area," the ordinance was "a de

facto ban on mining in the area." Id. at 1011. The

court then held that, as a de facto ban on mining,

the ordinance was preempted:

42a

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. (emphasis added).

The plaintiffs discern from South Dakota

Mining, and from federal statutes governing

mining, a general principle that state

environmental regulations are preempted,

categorically, whenever they are "prohibitory"

rather than "regulatory" in their "fundamental

character." "Even prohibitions on the use of

particular mining methods," they say, "create an

43a

obstacle to the full accomplishment of

Congressional purposes." We disagree.

Like the United States, "[w]e would agree that

were a state to completely prohibit all mining

activity on federal lands, federal mining law

would preempt the ban." Brief of the United

States as Amicus Curiae 21. We cannot agree

with the plaintiffs, however, that conflict

preemption in this area turns on whether a state

environmental regulation could be viewed as

"prohibitory" or "regulatory" in its "fundamental

character." For one thing, as the government

explains, the distinction likely would be

unworkable:

It is unclear how this Court would determine

whether [Senate Bill 3] is "prohibitory . . . in

its fundamental character." South Dakota

Mining, 155 F.3d at 1005. Certainly it

prohibits some very specific types of mining

activity in very specific places . . . , but in the

process of identifying where its prohibitions

apply it seems "regulatory" in nature. In a

sense, [Senate Bill 3] is both regulatory and

prohibitory, but whether that makes it

preempted is a question to be answered by

long-established preemption law. Regardless

of whether a state regulatory prohibition is

considered "prohibitory" or "regulatory," it is

permissible so long as it does not pose an

obstacle to Congressional purposes or make

compliance with federal law physically

impossible.

44a

Id. at 22.10

We are not persuaded, moreover, that federal

statutes governing mining evince a congressional

purpose to preempt, categorically, state

environmental regulations that are "prohibitory"

in their "fundamental character."11 The Mining

Act of 1872, upon which the plaintiffs heavily

rely, states only that "all valuable mineral

deposits in lands belonging to the United States. .

. shall be free and open to exploration and

purchase." 30 U.S.C. § 22. The plaintiffs contend

that this statute's "free and open" language

"create[s] a Congressional mining objective

inconsistent with state-law based prohibitions of

mining activity." But the Mining Act expressly

incorporates state regulation of mining activity,

stating that exploration authorized by the statute

must occur "under regulations prescribed by

10 We have drawn a distinction between "regulatory" and

"prohibitory" laws in other contexts, but those analyses are

not helpful here. E.g., United States v. Dotson, 615 F.3d

1162, 1168 (9th Cir. 2010) (Assimilative Crimes Act).

11 This conclusion is a consistent with a leading treatise on

mining law. See 5 American Law of Mining § 174.04[2][c]

(2d ed. 2018) (noting that "state law requirements

prohibiting a federally authorized activity on federal land

are less likely to be upheld," but" the Granite Rock decision

indicates that state law requirements that can be

harmonized with federal regulations may be enforceable").

45a

law." Id.12 Nothing in the Mining Act suggests a

categorical distinction between "prohibitory" and

"regulatory" state laws.

12 Although the phrase "under regulations prescribed by

law" applies to state as well as federal law — a conclusion

that follows from § 22's later reference to "laws of the

United States," see Corley v. United States, 556 U.S. 303,

315, 129 S. Ct. 1558, 173 L. Ed. 2d 443 (2009) - the

plaintiffs suggest it incorporates only state property law,

not state environmental law, pointing out that a separate

provision of the Mining Act incorporates state law only

with respect to possessory title. See 30 U.S.C. § 26

(granting rights of possession and enjoyment to locators

who "comply with the laws of the United States, and with

State, territorial, and local regulations not in conflict with

the laws of the United States governing their possessory

title" (emphasis added)). But there is nothing surprising

in the fact that § 26, a provision addressing possessory

title, refers only to state laws respecting title. This tells us

nothing about the scope of the state law incorporated by §

22, which deals with the much broader subject of making

federal lands free and open to exploration. Indeed, that §

26 expressly limits the incorporation of state law to laws

respecting "possessory title," and § 22 does not, supports

the conclusion that the scope of state laws incorporated by

§ 22 is not limited to those respecting title. See Russello v.

United States, 464 U.S. 16, 23, 104 S. Ct. 296, 78 L. Ed.

2d 17 (1983) ("[W]here Congress includes particular

language in one section of a statute but omits it in

another section of the same Act, it is generally presumed

that Congress acts intentionally and purposely in the

disparate inclusion or exclusion." (alteration in original)

(quoting United States v. Wong Kim Bo, 472 F.2d 720,

722 (5th Cir. 1972))); see also Rinehart, 377 P.3d at 824

(explaining that § 22's "express acknowledgement[] of the

application of state and local law to federal mining claims

suggest[s] an apparent willingness on the part of

Congress to let federal and state regulation broadly

coexist").

46a

We likewise find no support for the plaintiffs'

position in the Surface Resources and Multiple

Use Act of 1955. This law gives the United States

the right to manage surface resources on

unpatented mining claims, subject to the

important proviso 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." 30 U.S.C. § 612(b)

(emphasis added). As with the Mining Act of

1872, nothing in this law suggests Congress

intended to draw a distinction between

"prohibitory" and "regulatory" measures. We

have, moreover, already held that this law

permits environmental regulations, such as

Senate Bill 3, that prohibit the use of particular

mining methods. See United States v. Richardson,

599 F.2d 290, 291, 295 (9th Cir. 1979) (holding

the Forest Service could, without running afoul of

§ 612(b), require the locators of unpatented

The plaintiffs' reliance on 30 U.S.C. § 28 is similarly

unpersuasive. That provision requires locators to perform

annual work on their unpatented claims to maintain their

exclusive rights. See 30 U.S.C. § 28. Nothing in Senate

Bill 3 precludes miners from performing work on or

making improvements to their claims, and to the extent

miners elect not to perform work because state

environmental regulation makes working or improving

their claims unprofitable, that scenario is as likely to

arise from a "regulatory" measure as it is from a

"prohibitory" one.

47a

mining claims on national forest lands to use

nondestructive methods of prospecting, where the

locators' utilization of blasting and bulldozing was

destructive to the surface resources).13

The plaintiffs' argument similarly finds no

support in the Mining and Minerals Policy Act of

1970. Under this law:

The Congress declares that it is the continuing

policy of the Federal Government in the

national interest to foster and encourage

private enterprise in (1) the development of

economically sound and stable domestic

mining, minerals, metal and mineral

reclamation industries, (2) the 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,

(3) mining, mineral, and metallurgical

research, including the use and recycling of

scrap to promote the wise and efficient use of

13

We also find nothing in the 1955 law to suggest Congress intended to

limit state environmental regulation. On its face, § 612(b) imposes

limits on only the federal government, not states, and it expressly

preserves state water quality controls:

[N]othing in this subchapter . . . 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 ninetyeighth 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).

48a

our natural and reclaimable mineral

resources, and (4) the study and development

of methods for the disposal, control, and

reclamation of mineral waste products, and

the reclamation of mined land, so as to lessen

any adverse impact of mineral extraction and

processing upon the physical environment that

may result from mining or mineral activities.

30 U.S.C. § 21a (emphasis added).

The plaintiffs read this statutory language to

suggest that Congress intended to meet the

nation's environmental needs solely through the

process of reclamation, not through regulation of

mining itself. This reading, however, lacks any

basis in the statutory text or in case law. The

plaintiffs alternatively look to the statute's

reference to "lessen[ing]" adverse environmental

impacts. They contend "[l]essening impact is a

regulatory action," distinct from prohibiting

mining activities. We again disagree. The

statute's reference to lessening impacts relates

solely to reclamation. In any event, regulators can

lessen impacts through either "prohibitory" or

"regulatory" action. E.g., Richardson, 599 F.2d at

295.

The plaintiffs' reliance on the Surface Mining

Control and Reclamation Act of 1977 is equally

flawed. This law allows a state to ask the

Secretary of the Interior to declare residential

areas unsuitable for mining. See 30 U.S.C. § 1281.

The plaintiffs contend that "Congress' provision of

this and other federal processes for resolving

49a

state/federal conflict over mining on federal land

is utterly inconsistent with any Congressional

intent to allow states to simply prohibit the

mining themselves." We agree, of course, that

states cannot simply prohibit mining on federal

lands. But nothing in § 1281 suggests Congress

intended to preempt environmental regulations

prohibiting particular mining methods in

specified, environmentally sensitive areas.

The plaintiffs' reliance on federal land

management statutes suffers from similar

problems. The Supreme Court has examined

these statutes and concluded that Congress did

not intend by these laws to preempt reasonable

state environmental regulation. See Granite

Rock, 480 U.S. at 582-93. Nothing in these

statutes, moreover, suggests a distinction

between "prohibitory" and "regulatory" state

environmental regulation.

In sum, the plaintiffs' proposed distinction

between regulations that are "prohibitory" or

"regulatory" in their "fundamental character" is

neither workable nor grounded in the federal

statutes upon which the plaintiffs rely. We find in

these statutes no indication that Congress

intended to preempt state environmental

regulation merely because it might be viewed as

"prohibitory." We therefore reject the plaintiffs'

contention that Senate Bill 3 stands as an

obstacle to the accomplishment of the full

purposes and objectives of Congress merely

because it "prohibits" a particular method of

50a

mining in the portions of rivers and streams

containing essential habitat for threatened and

endangered salmonids.14

This conclusion does not place us at odds with

South Dakota Mining. Although the Eighth

Circuit drew a distinction between "prohibitory"

and "regulatory" measures, it did so in the context

of a county ordinance amounting to a "de facto

ban on mining" that applied broadly and

indiscriminately to federal lands within the

county. 155 F.3d at 1011. The ordinance at issue

effectively prohibited mining, covered 40,000

acres, targeted federal lands (90 percent of the

land affected by the ban was in a national forest),

lacked any environmental purpose and was part

of the county's zoning law. Senate Bill 3, by

contrast, is not part of Oregon's zoning law, is not

a de facto ban on mining, has an express

environmental purpose, does not single out

federal land and carefully targets only designated

essential salmonid habitat. Whereas the

ordinance in South Dakota Mining was an

attempt by county voters to overrule federal land

14 This conclusion is consistent with the California Supreme

Court's recent decision in Rinehart, 1 Cal. 5th 652, 206 Cal.

Rptr. 3d 571, 377 P.3d 818, cert. denied sub nom. Rinehart v.

California, 138 S. Ct. 635, 199 L. Ed. 2d 525 (2018). In

rejecting a conflict preemption challenge to a California law

prohibiting suction dredge mining in order to protect

endangered coho salmon habitats, Rinehart concluded that

"[t]he federal statutory scheme does not prevent states from

restricting the use of particular mining techniques based on

their assessment of the collateral consequences for other

resources." Id. at 829.

51a

use decisions, Senate Bill 3 complements those

decisions by playing the traditional role served by

state environmental regulation. See, e.g., 36

C.F.R. § 228.8(a)-(c); 43 C.F.R. §§ 3809.3,

3809.420(b)(4)-(6). Were Senate Bill 3 an

encroachment on federal land use decisions, we

would expect the United States to say so. The

United States, however, takes the position that

Senate Bill 3 "is not preempted by federal law."

Brief of the United States as Amicus Curiae 28.15

The plaintiffs' reliance on Skaw v. United

States, 740 F.2d 932 (Fed. Cir. 1984), Ventura

County v. Gulf Oil Corp., 601 F.2d 1080 (9th Cir.

1979), Brubaker v. Board of County

Commissioners, El Paso County, 652 P.2d 1050

(Colo. 1982), State ex rel. Andrus v. Click, 97

Idaho 791, 554 P.2d 969 (Idaho 1976), and Elliott

v. Oregon International Mining Co., 60 Ore. App.

474, 654 P.2d 663 (Or. Ct. App. 1982), does not

require a different conclusion. Each case predates

the Supreme Court's holding in Granite Rock that

reasonable state environmental regulation is not

preempted by federal law. See Granite Rock, 480

U.S. at 589; Rinehart, 377 P.3d at 829. Similar to

South Dakota Mining, moreover, most of these

cases involved improper attempts by local

governments to displace, rather than supplement,

federal land use decisions. See Ventura County,

601 F.2d at 1084-85 (precluding the county from

15 The United States' amicus brief is filed on behalf of the U.S.

Department of the Interior, the U.S. Department of

Agriculture and the U.S. Department of Justice's

Environment and Natural Resources Division.

52a

applying "land use planning controls" "in an

attempt to substitute its judgment for that of

Congress"); Brubaker, 652 P.2d at 1059 ("This is

not denial of a permit because of failure to comply

with reasonable regulations supplementing the

federal mining laws, but reflects simply a policy

judgment as to the appropriate use of the land.");

Elliott, 654 P.2d at 665, 668 (barring the

application of county zoning laws prohibiting

mining because they did "not simply supplement

federal mining law"). In addition, Ventura County

involved the Mineral Lands Leasing Act of 1920,

not the laws at issue here, and, in contrast to the

case before us, the drilling operations at issue in

Ventura County were subject to "detailed [federal]

supervision" and an "extensive federal scheme

reflecting concern for the local environment." 601

F.2d at 1084.

3. Conflict Preemption: The Plaintiffs' Argument

That Senate Bill 3 Does Not Constitute

Reasonable Environmental Regulation

We have consistently held that Congress

intended to permit reasonable environmental

regulation of mining claims on federal lands. In

United States v. Weiss, 642 F.2d 296 (9th Cir.

1981), for example, after considering the purposes

underlying the Mining Act of 1872 and the

Organic Act of 1897, including 16 U.S.C. §§ 475,

478 and 551, we concluded:

The Secretary of Agriculture has been given

the responsibility and the power to maintain

53a

and protect our national forests and the lands

therein. While prospecting, locating, and

developing of mineral resources in the national

forests may not be prohibited nor so

unreasonably circumscribed as to amount to a

prohibition, the Secretary may adopt

reasonable rules and regulations which do not

impermissibly encroach upon the right to the

use and enjoyment of placer claims for mining

purposes.

642 F.2d at 299. In United States v. Shumway,

199 F.3d 1093 (9th Cir. 1999), where we

considered not only the Mining Act and the

Organic Act but also the "endanger or materially

interfere" standard embodied in 30 U.S.C. §

612(b), we once again held that "the Forest

Service may regulate use of National Forest lands

by holders of unpatented mining claims . . . to the

extent that the regulations are 'reasonable' and

do not impermissibly encroach on legitimate uses

incident to mining and mill site claims." 199 F.3d

at 1107.

Congress, moreover, clearly intended

reasonable state environmental regulation to

govern mining on federal lands. In Granite Rock,

the Supreme Court held that "reasonable state

environmental regulation is not pre-empted." 480

U.S. at 589; see also id. at 593. The plaintiffs do

not dispute that a reasonableness standard

applies here, but they argue that Senate Bill 3 is

preempted because it constitutes an unreasonable

environmental regulation.

54a

The plaintiffs' arguments regarding

unreasonableness echo those we have already

considered. They contend Senate Bill 3 is an

unreasonable regulation because it prohibits a

particular method of mining in designated

habitat, rather than subjecting that mining to a

"prescribed limit" or pollution standard, and

because it allegedly was "enacted for reasons

expressly beyond protection of the environment."

We have already addressed these arguments. The

preemption analysis does not turn on a

formalistic distinction between "prohibitory" and

"regulatory" measures, and the plaintiffs'

evidence does not create a genuine dispute as to

Senate Bill 3's important environmental purpose.

We recognize that unreasonable, excessive or

pretextual state environmental regulation that

unnecessarily interferes with development of

mineral resources on federal land may stand as

an obstacle to the accomplishment of the full

purposes and objectives of Congress. We agree

with the United States, however, that in this case

that line has not been crossed. As the government

explains, "[a] state law such as [Senate Bill 3]

that is clearly intended to protect the natural

environment by prohibiting the use of particular

mining methods or equipment in carefully[]

designated locations is not so at odds with

Congress's purposes that it is preempted by

federal law." Brief of the United States as Amicus

Curiae 2-3.

55a

4. The Plaintiffs' Argument That Genuine Issues

of Material Fact Preclude Summary Judgment

The plaintiffs argue that genuine issues of

material fact preclude summary judgment in

favor of the state. For purposes of our de novo

review of the summary judgment record, however,

we have viewed the evidence in the light most

favorable to the plaintiffs, and we have assumed

— solely for purposes of determining whether

Oregon is entitled to judgment as a matter of law

— that Senate Bill 3 will have a significant

adverse impact on the mining operations of the

plaintiffs, making it effectively impossible for at

least some of them to recover the valuable

mineral deposits present on their claims. The only

material dispute is whether, assuming these

facts, Senate Bill 3 is preempted. Because that

issue is one of law, summary judgment is

appropriate. See Inland Empire Chapter of

Associated Gen. Contractors of Am. v. Dear, 77

F.3d 296, 299 (9th Cir. 1996) (holding a "finding

of no preemption is a legal question").16

CONCLUSION

The district court properly rejected the

plaintiffs' preemption claims. We hold that Senate

Bill 3 is not preempted by federal law. The

16 Contrary to the dissent, we do not today question the

validity of as-applied preemption challenges. Dissent 66 &

n.7.

56a

judgment of the district court is therefore

affirmed.

AFFIRMED.

N.R. SMITH, Circuit Judge, dissenting:

The National Forest Management Act of 1976

(NFMA), Pub. L. No. 94-588, 90 Stat. 2949 (1976),

and the Federal Land Policy and Management

Act of 1976 (FLPMA), Pub. L. No. 94-579, 90 Stat.

2743 (1976), occupy the field of land use planning

regulation on federal lands. Because the

permanent ban on motorized mining in Oregon

Senate Bill 3 does not identify an environmental

standard to be achieved but instead restricts a

particular use of federal land, it must be deemed

a land use regulation preempted by federal law.

See Cal. Coastal Comm'n v. Granite Rock Co., 480

U.S. 572, 586-88, 107 S. Ct. 1419, 94 L. Ed. 2d

577 (1987). Therefore, I must dissent.

I.

Although technically an open question, there

is little dispute that Congress has occupied the

field of land use planning on federal lands

through its enactment of NFMA and FLPMA.1

See id. at 585 ("For purposes of this discussion

and without deciding this issue, we may assume

1 The majority (like the court in Granite Rock) assumes this point

without deciding it. I address the merits of the issue because it is

necessary to my determination that federal law preempts Senate

Bill 3.

57a

that the combination of the NFMA and the

FLPMA pre-empts the extension of state land use

plans onto unpatented mining claims in national

forest lands."); id. at 612-13 (Scalia, J., dissenting)

("The Court is willing to assume that California

lacks such authority on account of [NFMA] and

[FLPMA]. I believe that assumption is correct.").

Field preemption arises when "federal law so

thoroughly occupies a legislative field as to make

reasonable the inference that Congress left no

room for the States to supplement it." Nat'l Fedn.

of the Blind v. United Airlines, Inc., 813 F.3d 718,

733 (9th Cir. 2016) (internal quotation marks

omitted) (quoting Cipollone v. Liggett Grp., Inc.,

505 U.S. 504, 516, 112 S. Ct. 2608, 120 L. Ed. 2d

407 (1992)). "The essential field preemption

inquiry is whether the density and detail of

federal regulation merits the inference that any

state regulation within the same field will

necessarily interfere with the federal regulatory

scheme." Id. at 734. To make this determination,

our cases require first "delineat[ing] the pertinent

regulatory field." Id. We have "emphasized the

importance of delineating the pertinent area of

regulation with specificity before proceeding with

the field preemption inquiry." Id. Here the

pertinent field involves any land use regulation of

federal lands.

The next step in our analysis requires us to

"survey the scope of the federal regulation within

th[is] field." Id. Here, the relevant statutes are

NFMA and FLPMA. Taken together, these

58a

statutes establish a comprehensive regulatory

regime for land use planning on federal lands,

including the role of states in the planning

process. First, NFMA vests the authority to enact

federal land use plans with respect to forest

service lands in the Secretary of Agriculture, and

FLPMA vests the authority to enact federal land

use plans with respect to all other federal land in

the Secretary of the Interior. 16 U.S.C. § 1604(a)

("[T]he Secretary [of Agriculture] shall develop,

maintain, and, as appropriate, revise land and

resource management plans for units of the

National Forest System . . . ."); 43 U.S.C. §

1712(a) ("The Secretary [of the Interior] shall,

with public involvement and consistent with the

terms and conditions of this Act, develop,

maintain, and, when appropriate, revise land use

plans which provide by tracts or areas for the use

of the public lands. Land use plans shall be

developed for the public lands regardless of

whether such lands previously have been

classified, withdrawn, set aside, or otherwise

designated for one or more uses.").

Second, NFMA and FLPMA expressly

designate the level of state participation

contemplated by federal law. See 16 U.S.C. §

1604(a); 43 U.S.C. § 1712(c)(9). NFMA requires

"coordin[ation] with the land and resource

management planning processes of State and

local governments and other Federal agencies." 16

U.S.C. § 1604(a). FLPMA requires similar

coordination with states, but the requirement is

limited "to the extent consistent with the laws

59a

governing the administration of public lands." 43

U.S.C. § 1712(c)(9). Moreover, FLPMA directs

that the Secretary of the Interior

shall, to the extent he finds practical, keep

apprised of State, local, and tribal land use

plans; assure that consideration is given to

those State, local, and tribal plans that are

germane in the development of land use plans

for public lands; assist in resolving, to the

extent practical, inconsistencies between

Federal and non-Federal Government plans,

and shall provide for meaningful public

involvement of State and local government

officials, both elected and appointed, in the

development of land use programs, land use

regulations, and land use decisions for public

lands, including early public notice of proposed

decisions which may have a significant impact

on non-Federal lands.

Id. (emphasis added). As Justice Scalia noted in

Granite Rock, agreeing (in his dissent) with the

majority's assumption of preemption, these

"requirements would be superfluous, and the

limitation upon federal accommodation

meaningless, if the States were meant to have

independent land use authority over federal

lands." 480 U.S. at 613 (Scalia, J., dissenting).

Thus, the combination of NFMA and FLPMA

occupy the field of land use regulation on federal

lands. Accordingly, federal law preempts the

extension of any state land use planning

60a

regulation or ordinance onto federal lands.

Arizona v. United States, 567 U.S. 387, 401, 132

S. Ct. 2492, 183 L. Ed. 2d 351 (2012) ("Where

Congress occupies an entire field . . . even

complementary state regulation is impermissible.

Field preemption reflects a congressional decision

to foreclose any state regulation in the area, even

if it is parallel to federal standards.").

II.

Assuming that NFMA and FLPMA occupied

the field of federal land use regulation, Granite

Rock identified the legal framework for

determining whether state environmental

regulation impermissibly enters the

congressionally occupied field of federal land use

planning. First, the Court identified the dividing

line between environmental regulation and land

use planning. "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, damage to

the environment is kept within prescribed limits."

Granite Rock, 480 U.S. at 587. The Court also

made clear that the inquiry requires examination

not simply of the text of the law, but of its

practical effect. "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." Id.

61a

The plaintiff miners and mining organizations

(collectively "the miners") challenge Senate Bill 3

on both grounds. They assert that Senate Bill 3

impermissibly (A) identifies a particular use of

the land that is prohibited without reference to an

identifiable environmental standard and (B)

renders mining within the identified zones

impracticable. Both arguments have merit.

A.

Granite Rock instructs that "environmental

regulation, at its core, . . . requires only that,

however the land is used, damage to the

environment is kept within prescribed limits." Id.

(emphasis added) By contrast land use regulation

identifies or restricts "particular uses" of land. Id.

A brief review of the text of Senate Bill 3

reveals its true character as a land use

regulation. The operative language reads

"motorized in-stream placer mining may not be

permitted to occur up to the line of ordinary high

water in any river in this state containing

essential indigenous anadromous salmonid

habitat, from the lowest extent of essential

indigenous anadromous salmonid habitat to the

highest extent of essential indigenous

anadromous salmonid habitat." 2017 Or. Laws ch.

300, § 4(2). The operative language identifies

particular tracts of land and prohibits a

particular use of these lands. The operative

language does not identify a "prescribed limit[]"

62a

on "damage to the environment" that must be

avoided "however the land is used." Granite Rock,

480 U.S. at 587. Accordingly, federal law

preempts Senate Bill 3 as an improper attempt to

extend a state land use regulation onto federal

land.

The majority disagrees for four reasons: (1)

Senate Bill 3 permits non-motorized mining, (2) it

is not located in the land use section of the

Oregon state code, (3) it has an environmental

purpose, and (4) it is reasonably tailored to

accomplish the environmental purpose without

unduly interfering with mining operations. The

majority's arguments lack merit for the reasons

set forth below.

1.

The majority first asserts (without any citation

or authority) that, because Senate Bill 3 restricts

only one type of mining, it is not a land use

planning regulation. The majority's analysis not

only conflicts with Supreme Court precedent in

Granite Rock, but it also erases any clear line

between land use planning and environmental

regulation.

The majority criticizes the Granite Rock

principle that environmental regulation "at its

core" "prescribe[s] limits" on "damage to the

environment" ("however the land is used").

63a

Granite Rock, 480 U.S. at 587.2 To the majority,

this distinction is "formalistic" and "make[s] no

sense." Maj. at 31. Yet, a line must be drawn,

because "Congress has indicated its

understanding of land use planning and

2 The majority goes so far as to assert that the

Granite Rock

standard is somehow non-binding dicta. See Maj. at 31

("Granite Rock does not hold that only standards, not

restrictions on activities, are permissible environmental

regulation."). Granite Rock fully analyzed the distinction

between environmental regulation and land use planning,

and the framework it announced was necessary to its holding.

480 U.S. at 585-89. Because the court assumed that land use

planning regulation was preempted, it was necessary to

decide whether California's permitting system was a land use

planning regulation or an environmental regulation. Id. at

586. The Court applied the Granite Rock framework and

determined that California's permit system was a means of

identifying environmental standards to be applied to the

mining operation, not an attempt to regulate particular uses

of the land at issue. See id. at 586 ("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." (emphasis

added)). This is plainly sufficient to bind our decision here. Cf.

Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th Cir. 2004)

("[W]here a panel confronts an issue germane to the eventual

resolution of the case, and resolves it after reasoned

consideration in a published opinion, that ruling becomes the

law of the circuit, regardless of whether doing so is necessary

in some strict logical sense." (citation omitted)).

64a

environmental regulation as distinct activities."

Granite Rock, 480 U.S. at 587.

Far from being nonsense, the formalism of the

Granite Rock line makes it clear and easy to

apply in deciding facial challenges to state

environmental laws.3 Moreover, the majority

offers no alternative standard for drawing a line

between environmental regulation (not ordinarily

preempted) and land use regulation (always

preempted). Without a standard, the majority has

no basis to reject the miners' challenge.

Specifically, the majority's suggestion that the

law is permissible because it regulates only one

means of mining begs the question of the

appropriate level of generality at which a law

must prohibit a particular use to be deemed a

land use planning regulation. Does land use

planning involve only broad categories of uses, for

example commercial versus noncommercial uses?

Or can land use planning also include dividing

tracts for commercial fishing from those for

commercial mining? Would a law prohibiting the

use of any mining tools (motorized or not) within

identified zones amount to environmental

regulation or land use planning? What if the law

also required miners to tie one hand behind their

backs? The majority's bare assertion that

The suction hose size and vehicle weight hypotheticals

raised by the majority are not difficult cases under the clear

line drawn in Granite Rock. Neither regulation identifies an

environmental standard to be achieved.

3

65a

prohibiting a type of mining does not amount to

regulating "particular uses for the land" fails to

articulate a meaningful standard and flies in the

face of framework set forth in Granite Rock. 480

U.S. at 587.4

The premise of the majority's insistence that

the Granite Rock line is nonsense also lacks

merit. See Maj. at 31. In addition to being clear,

the line drawn in Granite Rock serves important

functions. For example, 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. The majority is right

that environmental regulations certainly can

impact mining practicability. But the Supreme

Court made clear that this impact matters only in

4 The majority notes that many of the miners are still able to

mine other portions of their claims or are still permitted to

mine by hand in the zones covered by the law. I know of no

authority for the proposition that a law ceases to be a land use

plan simply because it governs only a subset of land, and not

all land. Indeed, most land use plans divide land into different

zones prescribing a different set of permissible uses for each

zone. Accordingly, the fact that some miners have in-stream as

well as out-of-stream operations (or operations inside and

outside of essential salmonid habitat) matters not at all in our

determination of whether Senate Bill 3 is a land use

regulation. Likewise, the fact that the law permits mining by

hand does not mean its prohibition on motorized mining is not

a land use ordinance. Land use plans regulate particular uses

all the time. For example, a land use plan might specify that

within a residential neighborhood in-home businesses are

permitted, but office buildings are not.

66a

the exceptional circumstance where an

environmental standard is "so severe" as to

render any mining within an identified zone

"commercially impracticable." See Granite Rock,

480 U.S. at 587. The possibility of a narrow

exception, does not eliminate the value of the

general rule. I address this narrow exception in

greater detail in Part II.B.

The Supreme Court meaningfully considered

the difficult issue of how to discern land use

regulations from environmental ones. The

majority errs in failing to follow its instruction.

Applying the Granite Rock framework here,

Senate Bill 3 is a land use regulation that is

preempted as applied to federal lands.

2.

The majority next asserts that Senate Bill 3 is

not a land use regulation, because it is codified

outside the sections of the Oregon Code governing

land use planning. However, I know of no canon

of construction (and the majority cites none) that

suggests that a law's placement within the code

can override the substantive import of its text.

Further, there are other Oregon land use statutes

outside the code sections the majority identifies.

See, e.g., Or. Rev. Stat. § 390.250 (authorizing

land use planning "to promote the public scenic,

park and recreational use of lands along Bear

Creek"); Or. Rev. Stat.§ 390.308 (authorizing land

use planning to complete the "Oregon Coast

Trail"); Or. Rev. Stat. § 390.112 ("The State Parks

67a

and Recreation Department shall propose to the

State Parks and Recreation Commission

additional criteria for the acquisition and

development of new historic sites, parks and

recreation areas.").

3.

The majority next asserts that Senate Bill 3 is

an environmental regulation because of its

"obvious and important environmental purpose."

Maj. at 32. To be sure, the prefatory language in

Senate Bill 3 identifies an environmental purpose

"to protect indigenous anadromous salmonids and

habitat essential to the recovery and conservation

of Pacific lamprey." 2017 Or. Laws ch. 300, §

4(2).5 But many land use plans have

5 The majority also cites legislative findings that "[m]ining

that uses motorized equipment in the beds and banks of the

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." 2013 Or. Laws ch. 783, § 1(4). Maj. at 33. Yet there

is little substance to this finding. The legislature identified

only the possibility of environmental harm because it used

the language "can pose significant risks." Id. (emphasis

added). Almost anything "can pose significant risks" to the

environment. Nothing in these findings suggests that any

form of motorized mining necessarily causes an adverse

effect on wildlife resources. Like the prefatory language in

Senate Bill 3, this language does not purport to identify an

environmental standard to be achieved. The same is true for

the majority's other citations to Oregon law. See Maj. at 32.

68a

environmental purposes as well.6 Systems of

national parks, state parks, and designated

wilderness areas are prime examples of land use

planning aimed at accomplishing obvious and

important environmental purposes.

Here, the means of accomplishing the

environmental purpose undisputedly prohibit a

particular use of the land, without reference to an

environmental standard to be achieved. Unlike

the permit system in Granite Rock, this law does

not involve a flexible regime that "must be

understood to allow [Oregon] to limit the

regulations it will impose" in a manner consistent

with allowing permissible federal mining to

continue. See Granite Rock, 480 U.S. at 586.

In contrast to Senate Bill 3, the federal

regulations governing mining on public lands

cited by the majority are good examples of

standards based environmental regulation. Maj.

at 22. Each identifies environmental standards to

be achieved, rather than particular uses to be

prohibited. See, e.g., 36 C.F.R. § 228.8 (identifying

federal and state air, water, and solid waste

standards that must be complied with and

requiring operators to "take all practicable

measures to maintain and protect fisheries and

wildlife habitat which may be affected by the

6 As the majority notes, purpose is certainly relevant to our

preemption analysis. See Maj. at 32 n.9. But nothing in our cases

suggests that a genuine purpose can innoculate a law that

substantively intrudes on a field preempted by Congress. The

majority's emphasis on purpose proves too little.

69a

operations" (emphasis added)); 43 C.F.R. § 3809.3

(requiring operators to follow "a higher standard"

under state law if one has been enacted (emphasis

added)); 43 C.F.R. § 3809.420(b) (identifying

federal and state air, water, and solid waste

standards that must be complied with and

requiring operators to "take such action as may be

needed to prevent adverse impacts to threatened

or endangered species, and their habitat which

may be affected by operations" (emphasis added)).

Simply, the environmental purpose behind

Senate Bill 3 does not identify an environmental

standard. Indeed, nothing in the law's text (or the

record in this case) indicates that motorized

mining—in any form or at any scale—necessarily

causes harm to indigenous anadromous salmonids

or Pacific lamprey. On its face, Senate Bill 3

would prohibit a motorized mining operation

irrespective of the miner's compliance with all

state and federal environmental standards,

including the federal Endangered Species Act,

National Environmental Policy Act, and Clean

Water Act. This remains true, even if federal (or

state) environmental review determines that the

net effect of a motorized-mining operation is

positive for anadromous salmonids and Pacific

lamprey. Senate Bill 3 simply mandates that—

irrespective of the actual environmental impact—

motorized mining is a prohibited use of land in

the identified zones. Congress has preempted this

type of intrusion into the field of federal land use

planning.

70a

4.

Lastly, the majority persistently makes the

bare assertion that federal law does not preempt

Senate Bill 3, because it is "tailored to" its

environmental purpose. See Maj. at 27 (asserting

(without elaboration) that the law is "tailored to

achieve its environmental purpose without

unduly interfering with mining operations"); Maj.

at 35 (concluding that Senate Bill 3 "is tailored" to

its environmental purpose). The majority cites no

legal authority (and I am aware of none) for the

proposition that federal preemption analysis

includes an assessment of the fit between the

substance of a state law and its stated purpose.

Further, the majority fails to explain how it

reaches its reasonably tailored conclusion. As to

the merits of the majority's conclusion that the

law is reasonably tailored, I have my doubts.

First, the parties have not argued the issue one

way or the other.

Second, the tailoring issue 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. A tailoring

analysis would involve actually assessing the

degree to which a law advances its stated purpose

(i.e. the state's interest). Cf., e.g., Italian Colors

Rest. v. Becerra, 878 F.3d 1165, 1178 (9th Cir.

2018) (discussing narrow tailoring as an analysis

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focused on the degree of fit between ends and

means). Yet, the majority appears to use the laws'

stated purpose as the premise for its reasonable

tailoring conclusion. Good intentions are never

enough to establish that a law is properly

tailored. Cf. id. (striking down a commercial

speech restriction because there were alternatives

that "would restrict less speech and would more

directly advance California's asserted interest in

preventing consumer deception").

It remains unclear to me how a tailoring

analysis aids us in deciding the preemption

question. But to the extent the inquiry is

relevant, the obvious and less restrictive

regulation here would be to simply require that

mining activity in essential habitat areas be

conducted in a manner that does not adversely

affect fish habitat—thus prohibiting nonmotorized mining adverse to fish populations and

permitting motorized mining that can be

conducted consistent with requirement to

preserve essential habitat.

B.

Federal law not only preempts Senate Bill 3 on

its face, but the miners also identified disputed

issues of material fact precluding summary

judgment on their Granite Rock as-applied

preemption challenge. Contrary to the majority's

suggestion, Maj. at 50, the law recognizes asapplied preemption challenges that turn on the

effect in operation of the allegedly preempted

72a

state law. Gade v. Nat'l Solid Wastes Mgmt.

Ass'n, 505 U.S. 88, 105, 112 S. Ct. 2374, 120 L.

Ed. 2d 73 (1992) ("Although 'part of the preempted field is defined by reference to the

purpose of the state law in question, . . . another

part of the field is defined by the state law's

actual effect.'" (alterations in original) (quoting

English v. Gen. Elec. Co., 496 U.S. 72, 84, 110 S.

Ct. 2270, 110 L. Ed. 2d 65 (1990))); id. ("In

assessing the impact of a state law on the federal

scheme, we have refused to rely solely on the

legislature's professed purpose and have looked as

well to the effects of the law.").7

Granite Rock expressly recognized this

possibility in the context of state environmental

regulation versus land use planning. 480 U.S. at

7 Many other cases recognize as-applied preemption

challenges. See, e.g., Gobeille v. Liberty Mut. Ins. Co., 136 S.

Ct. 936, 943-45, 194 L. Ed. 2d 20 (2016) (identifying factual

issues like the "'acute, albeit indirect, economic effects' of [a]

state law" as one mechanism for showing a state law is

preempted by ERISA (citation omitted)); Adrian & Blissfield

R.R. Co. v. Vill. of Blissfield, 550 F.3d 533, 540 (6th Cir. 2008)

(identifying circumstances for proving a law is "preempted as

applied" and "requir[ing] a factual assessment" (emphasis in

original, internal quotation marks and citations omitted));

New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321,

332 (5th Cir. 2008) (same). Compare Puente Arizona v.

Arpaio, 821 F.3d 1098, 1110 (9th Cir. 2016) (remanding a case

for consideration of the as-applied preemption challenge),

with Puente Arizona v. Arpaio, No. CV-14-01356-PHX-DGC,

2016 U.S. Dist. LEXIS 162990, 2016 WL 6873294, at *7-13

(D. Ariz. Nov. 22, 2016) (conducting an as-applied preemption

analysis and concluding that the law was field preempted as

applied to a narrow set of prohibited conduct).

73a

587. As the court noted, "[t]he 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." Id. The Court went

on to endorse "reasonable state environmental

regulation" as not preempted by federal law. Id.

at 589. Whether dicta or holding, these

statements by the Supreme Court reach the

correct conclusion. Because Congress has

occupied the field of land use planning, federal

law preempts any environmental regulation that

(when applied to federal land) has the effect of

prohibiting (for all practical purposes) a

particular land use in the regulated zone. To hold

otherwise would allow an end-run around federal

preemption.

Here, the miners contend that mining without

motors is (if not impossible) entirely impracticable

within the in-stream zones governed by Senate

Bill 3. Thus, they argue the law has the effect of

prohibiting mining within the regulated area. At

oral argument, the State essentially conceded this

fact. United States Court of Appeals for the Ninth

Circuit, 16-35262 Joshua Bohmker v. State of

Oregon, YouTube (Mar. 8, 2018),

https://youtu.be/IrC_pz9CNh4 , at 21:09 to 21:15,

24:00 to 25:00 (acknowledging that Senate Bill 3

effectively prohibits mining in the in-stream

areas governed by the law). Thus, the miners

argue that entry of summary judgment is

inappropriate.

74a

The majority suggests that the miners waived

this challenge because they "do not argue that

Senate Bill 3 is preempted simply because it may

render some of their mining claims commercially

impracticable." Maj. at 27-28. Come on. That

cannot be the basis for our decision. The record

amply establishes that the miners have

consistently raised both a facial and as-applied

challenge to Senate Bill 3 before the district court

and on appeal. Excerpts of R. at 102, 106-07, 118,

121, 124, 130, 135, 143, 150 (identifying

declaration testimony by the miners regarding

the impact of the law on practicability of mining

in the zones governed by Senate Bill 3 that was

provided to the district court in opposition to

summary judgment); Excerpts of R. at 21-23

(identifying the district court's rejection of the

miners' Granite Rock commercial impracticability

standard); Appellants' Opening Br. at 45-48

(identifying Granite Rock commercial

impracticability standard and asserting the

Oregon law is not a reasonable environmental

regulation); Appellants' Opening Br. at 52-57

(identifying the record evidence establishing

disputed issues of material fact regarding the

impact of the Oregon law on the practicability of

mining in the regulated zones); United States

Court of Appeals for the Ninth Circuit, 16-35262

Joshua Bohmker v. State of Oregon, YouTube

(Mar. 8, 2018), https://youtu.be/IrC_pz9CNh4, at

8:30 to 17:30 (identifying the argument by the

miners' counsel that the practicability of mining

is an alternative basis for the court to conclude

75a

under Granite Rock that federal law preempts

Senate Bill 3).8

The majority next rejects the merits of an asapplied theory of preemption, asserting that

considerations of commercial practicability would

endanger every environmental regulation. Not so.

We are presented with a narrow but important

issue of preemption. Even if federal law preempts

Oregon's attempt to apply Senate Bill 3 to federal

lands, the miners must still comply with all

environmental laws and standards imposed

expressly by federal statutes and regulations. The

Granite Rock practicability exception does not

apply to federal regulation. Cf., e.g., Clouser v.

Espy, 42 F.3d 1522, 1530 (9th Cir. 1994)

(affirming forest service access regulation that

diminished value of mining claims). Moreover,

Oregon remains free to coordinate its land use

8 The majority doubles down on its erroneous conclusion

that the miners have waived an as-applied challenge to

Senate Bill 3. In support of its conclusion, the majority cites

a single line in the miners' reply stating that "[t]his appeal

is not about profitability, but about prohibition." Maj. at 28

n.6 (citing Reply Br. at 41). Nothing in the quoted language

forecloses the argument that Senate Bill 3 effectively

functions as a prohibition in the regulated zones. Waiver

requires an "intentional relinquishment of a known right."

E.g., Oelbermann v. Toyo Kisen Kabushiki Kaisha, 3 F.2d 5,

5 (9th Cir. 1925) (citation omitted). The miners have

consistently argued that Senate Bill 3 makes it effectively

impossible to remove minerals from their claims. In

concluding that the issue is waived, the majority simply

ignores the substantial briefing and argument cited above.

76a

plans with the relevant federal agencies in

seeking an outright federal prohibition on mining

within essential habitat on federal lands. Oregon

may also amend its statute to incorporate an

environmental standard to require mining

activity in essential habitat be conducted in a

manner that avoids damage to fish habitat. In

short, a win for the miners is not likely to lead to

environmental disaster as the majority portends.

Second, commercial practicability is a

judicially manageable standard. "[V]irtually every

environmental regulation" is not at risk. See Maj.

at 28-29. Contrary to the majority's assertion,

nothing in Granite Rock suggests a case-by-case,

miner-by-miner assessment of commercial

practicability. Rather, Granite Rock suggests an

approach focused on the overall effect of the state

regulation on mining practicability. See Granite

Rock, 480 U.S. at 586-89.

The exception applies only where the

regulation's effect is "so severe" that it renders

mining on the regulated lands "commercially

impracticable" as a general matter. The finances

or circumstances of individual miners are not

relevant to the analysis. A court simply examines

the effect of the regulation on the scope of

commercial mining operations that could

permissibly be employed in the absence of the

regulation. Where a state environmental

regulation eliminates all previously permissible

means of commercial mining on federal land, it

runs afoul of the Granite Rock exception. If viable

77a

means of commercial mining remain available in

most (if not all) tracts of land governed by the

regulation, it falls within the general rule that

"reasonable state environmental regulation is not

pre-empted . . . ." Id. at 589.

Here, the miners identified sufficient factual

support for the proposition that Senate Bill 3

renders mining commercially impracticable

within the areas regulated by the statute. I

cannot agree with the majority's assertion that

Senate Bill 3 is not a de facto ban on mining

because it allows non-motorized mining (i.e.

panning for gold by hand). This would be similar

to saying to a man that he is not prohibited from

building a house on his property, he is only

prohibited from using any power tools, trucks, or

other motorized equipment in doing so. In an

imaginary world, it is certainly still possible that

over the course of his life he could dig the

foundation, mix the concrete, haul the lumber,

and construct a house eventually. Nonetheless,

such a law would render the man's right to build

a house a nullity. If the miners proved

impracticability on remand, I would conclude that

the Oregon law is a de facto land use regulation

preempted by federal law.

III.

In short, there are two alternative grounds to

reverse the district court. First, the miners are

entitled to summary judgment because federal

law preempts Oregon's impermissible attempt to

78a

regulate particular uses of federal land under

Senate Bill 3. Alternatively, I would recognize the

as-applied theory for establishing preemption

outlined in Granite Rock. Federal law preempts

environmental regulation that is so severe that it

operates as a de facto land use plan by rendering

a particular use of the regulated land utterly

impracticable. The miners put on sufficient

evidence to establish at least a genuine issue for

trial on this theory. Accordingly, I respectfully

dissent from the majority's decision to affirm

summary judgment in favor of the State of

Oregon.

79a

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

October 3, 2018, Filed

No. 16-35262

JOSHUA CALEB BOHMKER; LARRY COON;

WALTER R. EVENS; GALICE MINING

DISTRICT; JASON GILL; MICHAEL HUNTER;

MICHAEL P. LOVETT; JOEL GROTHE;

MILLENNIUM DIGGERS; WILLAMETTE

VALLEY MINERS; DON VAN ORMAN; J.O.G.

MINING LLC,

Plaintiffs-Appellants,

v.

STATE OF OREGON; ELLEN ROSENBLUM, in

her official capacity as the Attorney General of

the State of Oregon; MARY ABRAMS, in her

official capacity as the Director of the Oregon

Department of State Lands,

Defendants-Appellees,

ROGUE RIVERKEEPER; PACIFIC COAST

FEDERATION OF FISHERMAN'S

ASSOCIATIONS; INSTITUTE FOR FISHERIES

RESOURCES; OREGON COAST ALLIANCE;

CASCADIA WILDLANDS; NATIVE FISH

SOCIETY; CENTER FOR BIOLOGICAL

DIVERSITY,

Intervenor-Defendants-Appellees.

Judges: Before: FISHER, N.R. SMITH and

HURWITZ, Circuit Judges.

80a

ORDER

The court sua sponte grants appellants leave to

file a late petition for rehearing en banc. The

petition (Dkt. 91) has been filed.

The motion to strike the petition, filed October 3,

2018 (Dkt. 94), is denied as moot.

81a

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

October 25, 2018, Filed

No. 16-35262

JOSHUA CALEB BOHMKER; LARRY COON;

WALTER R. EVENS; GALICE MINING

DISTRICT; JASON GILL; MICHAEL HUNTER;

MICHAEL P. LOVETT; JOEL GROTHE;

MILLENNIUM DIGGERS; WILLAMETTE

VALLEY MINERS; DON VAN ORMAN; J.O.G.

MINING LLC,

Plaintiffs-Appellants,

v.

STATE OF OREGON; ELLEN ROSENBLUM, in

her official capacity as the Attorney General of

the State of Oregon; MARY ABRAMS, in her

official capacity as the Director of the Oregon

Department of State Lands,

Defendants-Appellees,

ROGUE RIVERKEEPER; PACIFIC COAST

FEDERATION OF FISHERMAN'S

ASSOCIATIONS; INSTITUTE FOR FISHERIES

RESOURCES; OREGON COAST ALLIANCE;

CASCADIA WILDLANDS; NATIVE FISH

SOCIETY; CENTER FOR BIOLOGICAL

DIVERSITY,

Intervenor-Defendants-Appellees.

82a

Judges: Before: FISHER, N.R. SMITH and

HURWITZ, Circuit Judges.

Order

Judge Hurwitz has voted to deny the petition for

rehearing en banc, and Judge Fisher has so

recommended. Judge N.R. Smith has

recommended granting the petition for rehearing

en banc.

The full court has been advised of the petition for

rehearing en banc and no judge has requested a

vote on whether to rehear the matter en banc.

Fed. R. App. P. 35.

Appellants' petition for rehearing en banc, filed

September 27, 2018 (Dkt. 91), is denied.

83a

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF OREGON, MEDFORD DIVISION

March 25, 2016, Decided; March 25, 2016, Filed

Case No. 1:15-cv-01975-CL

JOSHUA CALEB BOHMKER, et al,

Plaintiffs,

v.

STATE OF OREGON, et al,

Defendants,

ROGUE RIVERKEEPER, et al,

Intervenor-defendants.

Judge: MARK D. CLARKE, United States

Magistrate Judge.

ORDER

CLARKE, Magistrate Judge

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 her

official capacity as the Attorney General of the

State of Oregon, and Mary Abrams in her official

84a

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 anadromous

salmonid habitat ("ESH"). Plaintiffs request

declaratory relief to prevent enforcement of SB

838, which went into effect on January 2, 2016.

Intervenor defendants are groups and

associations that support SB 838, and they oppose

the plaintiffs' motion. For the reasons below,

plaintiffs' motion (#18) is DENIED and

defendants' motion (#52) is GRANTED.

LEGAL STANDARD

Summary judgment shall 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 whether there is a genuine issue of

fact. Playboy Enters., Inc. v. Welles, 279 F.3d 796,

85a

800 (9th Cir. 2002). An issue of fact is genuine "if

the evidence is such that a reasonable jury could

return a verdict for the nonmoving party."

Anderson, 477 U.S. at 248.

When a properly supported motion for

summary judgment is made, the burden shifts to

the opposing party to set forth specific facts

showing that there is a genuine issue for trial. Id.

at 250. 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 for trial.

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-moving party. Allen v. City of Los

Angeles, 66 F.3d 1052, 1056 (9th Cir. 1995).

INTRODUCTION

The tradition of small scale prospecting and

mining has a 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 camps

before any official government existed at these

remote locations." United States v. Shumway, 199

F.3d 1093, 1097 (9th Cir. 1999). Mining has been

particularly important to the history and

86a

economic development of southwest Oregon. Even

though most of the gold in the [California gold

rush of 1849] and other western gold rushes was

found on federal land, the federal government

adopted a mining law scheme late, long after the

customs of ownership by discovery and extraction

had been established. Id. at 1098. Plaintiffs,

miners and mining associations, who are

passionate about both the history and the future

of their industry, properly point to significant

mining rights granted them by Congress in 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.

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 understands that

plaintiffs 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.

On the other side 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 concerns have their place in

87a

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 340-2460010 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 v. 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, 2013

U.S. Dist. LEXIS 185435, 2014 WL 795328 (D.

88a

Or. Feb. 25, 2014), it is a valid state

environmental regulation that is not preempted

by federal law.

STATUTORY LANGUAGE OF SENATE BILL

838

On August 14, 2013, Oregon Governor John

Kitzhaber signed 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 of the rivers of Oregon can

pose significant risks to Oregon's natural

resources, including fish and other wildlife,

riparian areas, water quality, the investments

89a

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

banks of the rivers of Oregon should be

efficient and structured to best protect

environmental values.

Oregon Senate Bill 838 § 1(1-6) (2013). Therefore,

the first sentence of SB 838 provides:

A moratorium is imposed until January 2,

2021, on mining that 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 or disturbance of

streamside vegetation that may impact water

quality.

Id. at § 2(1). "Waters of this state" is defined in

ORS 196.800 to include essentially all water

bodies in the State. "Beds or banks" are not

defined by statute, but the rules of the Division of

State Lands provide:

90a

"Beds or Banks" means the physical container

of the waters of this 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.

The second sentence of SB 838 provides

additional parameters for the moratorium:

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

91a

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).1

1 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 of the plaintiffs have

mining operations of this scale, and the permitting scheme

92a

DISCUSSION

I. Plaintiffs have standing, and the case is ripe

for adjudication.

"The Article III 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." Id. at 1122. In addition to the Article III

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

is not at issue in this litigation.

93a

likely, as opposed to merely speculative, that the

injury will be redressed by a favorable decision.

Id. 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 we find [one plaintiff ] has standing, we

do not consider the standing of the other

plaintiffs"); Chief Probation Officers v. Shalala,

118 F.3d 1327, 1331 (9th Cir.1997) (White,

Justice, by designation) (evaluation of the

standing of a second plaintiff 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, depending on the

location of their 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:

94a

A moratorium is imposed until January 2,

2021, on mining that 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 or disturbance 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 approval of a plan of operations is required

before operations begin. 36 C.F.R.

§ 228.4(a)(1)(vii)(2). If the operator is not

contacted, he or she 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 must

exist in which an individual mining operation

95a

would be allowed under federal law and

disallowed under SB 838.

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." Id. He claims that he

has been mining a bench deposit within 50 to 100

feet of Josephine Creek and recovering significant

quantities of gold. Id. SB 838 will make his

operations within 100 feet of the high water mark

of the Creek illegal. Id.

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 by the plaintiffs. Because

the Court finds that one plaintiff has standing, it

need not consider the standing of the other

plaintiffs. See Watt, 454 U.S. at 160.

This case is ripe for review because the SB 838

moratorium has gone into effect, and plaintiffs

like Jason Gill claim that it is currently affecting

96a

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.

II. 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 conduct in a 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. Indus. Truck Ass'n v.

Henry, 125 F.3d 1305, 1309 (9th Cir.1997)

(internal citations omitted).

a. Federal law has not expressly preempted,

nor has it occupied the field to preempt, nor

do such laws conflict with a state's

reasonable environmental regulations,

even if the state law restricts mining

operations on federal land.

97a

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 of the 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 incident thereto."

Id. The statute also provides that "nothing in this

subchapter. . . shall be construed as affecting or

intended to affect or in any way interfere 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." Id.

98a

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 Rock Co., 480 U.S. 572, 107 S. 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. Id. at 577. 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 reasonable state

environmental regulations on mining claims. Id.

at 583. Moreover, the Court found that the

regulations "expressly contemplate coincident

compliance with state law as well as with federal

law." Id. at 584.

Support for the 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

99a

responsibilities and rights of States to prevent,

reduce, and eliminate pollution . . .." 33 U.S.C. §

1251(b). The Clean Water Act also recognizes

state 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 abatement

of pollution; except that 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 preempt this type of state law.

100a

b. Senate Bill 838 is a reasonable

environmental regulation, not a land use

law.

Plaintiffs contend that Granite Rock held that

federal law would preempt a state land use law

that extended on to federal land to prohibit

otherwise lawful mining activity. Indeed, the

Court, in dicta, did speculate on a hypothetical

situation in which a state law would be

preempted by federal regulations:

For purposes of this discussion and without

deciding this issue, we may assume that the

combination of the NFMA2 and the FLPMA

pre-empts the extension of state land use

plans onto unpatented mining claims in

national forest lands.

Id. at 585. However, the Court found that land

use planning and environmental regulation, while

theoretically could overlap in some cases, are

distinct activities, capable of differentiation. Id. at

588. "Land use planning in essence chooses

particular uses for the land; environmental

2 Under the Federal Land Policy Management Act of 1976

(FLPMA), the Department of the 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 management of the

surface impacts of mining on federal forest lands, 16

U.S.C. §§ 1600 et seq.

101a

regulation, at its core, does not mandate

particular uses of the land but requires only that,

however the land is used, damage to the

environment is kept within prescribed limits." Id.

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. Id.

Similarly, the stated purpose of SB 838 is to

regulate the environmental impacts of the

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

other wildlife, riparian areas, water quality, the

investments of this state in habitat enhancement

and areas of cultural significance to Indian

tribes," and (2) the incidence of motorized

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. Outside of the prohibited areas, SB

838 allows for permits to be issued for motorized

instream mining. Id. at § 2(3). Even inside the

prohibited areas, motorized mining is allowed 100

102a

yards upland of the high water mark, as long as it

does not disturb vegetation to the detriment of

water quality. Id. 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.

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 because there 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-CV00309-SU, 2013 U.S. Dist. LEXIS 185435, 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. 2013 U.S. Dist. LEXIS

185435, [WL] at *2. Recreational placer mining

and recreational prospecting were still permitted

using non-motorized methods, and motorized

methods other than a suction dredge. Id. The

miner challenging the law argued that the law

"completely frustrate[d] the mining and removal

103a

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." 2013

U.S. Dist. LEXIS 185435, [WL] at *8. The Oregon

District Court found that, while the Oregon law

was a ban on suction dredge mining, other

methods of recreational mining were still allowed,

including other types of motorized equipment,

non-motorized equipment, and other methods.

2013 U.S. Dist. LEXIS 185435, [WL] at *8.

Therefore, the Court held that "[b]ecause [the

law] is not a de facto ban on all 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 pro se

litigant, who did not make the arguments

necessary for the court to grant relief. The Court

disagrees. In Pringle, the plaintiff asserted that

his case was distinguishable 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 argument the plaintiffs make in

the case at bar.

104a

In S.D. Mining, the defendant Lawrence

County adopted an ordinance that was a per se

ban on all new or amended permits for all surface

metal mining within the area. S.D. Mining Ass'n,

155 F.3d at 1011. Because the record showed that

surface metal mining was the only way for

plaintiffs 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. Id. The Lawrence

County ordinance did not set out reasonable

environmental regulations governing mining

activities on federal lands, nor did it ban one

specific method of extraction, rather it resulted in

a ban on all mining. Id. As such, the Eighth

Circuit found the ordinance preempted by the

General Mining Act of 1872. Id. The Pringle court

considered this 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 mining is allowed 100

yards upland of the high water mark, as long as it

does not disturb vegetation to the detriment of

water quality. Thus, SB 838 is not a ban on

mining.

105a

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

banning the use of suction dredge equipment on

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." Id. at 436.

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 Government has 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 the cost to an individual miner:

Congress did not intend to preempt all state

laws that might raise the cost of extraction. If

106a

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. The

State's prohibition on suction dredging may

have made mining considerably more difficult

for Rinehart, and may result in Rinehart

determining that the deposit in his mining

claim "no longer justifie[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 some bearing on

whether the deposit is locatable, but it is no

basis for finding that the State's law that it is

preempted by federal law.

Brief for the United States as Amicus Curie

Supporting Respondent, People v. Rinehart, 182

Cal. Rptr. 3d 275, 340 P.3d 1044 (August 2015)

(No. S222620) 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. Id.

The Court agrees that nothing in the Mining

Act or subsequent federal regulations makes the

cost or practicability of mineral extraction a factor

in whether or not a state environmental law is

107a

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 development

will be profitable or efficient.

CONCLUSION

The Court agrees with the plaintiffs that the

practice of mining 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 equipment as 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 does it 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 means other than the use of

motorized equipment.

ORDER

For the forgoing reasons, the plaintiffs' motion for

summary judgment (#18) is DENIED.

108a

Defendants' motion for summary judgment (#52)

is GRANTED.

It is so ORDERED and DATED this 25 day of

March, 2016.

/s/ Mark D. Clarke

MARK D. CLARKE

United States Magistrate Judge

109a

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF OREGON, MEDFORD DIVISION

March 29, 2016, Filed

Case No. 1:15-cv-01975-CL

JOSHUA CALEB BOHMKER, et al,

Plaintiffs,

v.

STATE OF OREGON, et al,

Defendants,

ROGUE RIVERKEEPER, et al,

Intervenor-defendants.

Judge: MARK D. CLARKE, United States

Magistrate Judge.

JUDGMENT

Judgment is entered in accordance with the

Court’s order (#67) in favor of the defendants.

DATED this 29th day of March 2016.

MARK D. CLARKE

United States Magistrate Judge

110a

The Property Clause of the U.S. Constitution

(Art. IV, § 3, cl. 2)

The Congress shall have power to dispose of and

make all needful rules and regulations respecting

the territory or other property belonging to the

United States; and nothing in this constitution

shall be so construed as to prejudice any claims of

the United States, or of any particular state.

The Supremacy Clause of the U.S. Constitution

(Art. VI, cl. 2)

This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof;

and all Treaties made, or which shall be made,

under the Authority of the United States, shall be

the supreme Law of the Land; and the Judges in

every State shall be bound thereby, any Thing in

Constitution or Laws of any State to the Contrary

notwithstanding.

California Admission Act, 9 Stat. 452, ch. 50, § 3

(1850)

That the said State of California is admitted into

the Union upon the express condition that the

people of said State, through their legislature or

otherwise, shall never interfere with the primary

disposal of the public lands within its limits, and

shall pass no law and do no act whereby the title

of the United States to, and right to dispose of,

the same shall be impaired or questioned; and

111a

that they shall never lay any tax or assessment of

any description whatsoever upon the public

domain of the United States, and in no case shall

non-resident proprietors, who are citizens of the

United States, be taxed higher than residents;

and that all the navigable waters within the said

State shall be common highways, and forever

free, as well to the inhabitants of said State as to

the citizens of the United States, without any tax,

impost, or duty therefor. Provided, That nothing

herein contained shall be construed as

recognizing or rejecting the propositions tendered

by the people of California as articles of compact

in the ordinance adopted by the convention which

formed the constitution of that State.

Oregon Admission Act, 11 Stat. 383, ch. 33, § 4

(1859)

That the following propositions be, and the same

are hereby, offered to the said people of Oregon

for their free acceptance or rejection, which, if

accepted, shall be obligatory on the United States

and upon the said State of Oregon, to wit: First,

That sections numbered sixteen and thirty-six in

every township of public lands in said State, and

where either of said sections, or any part thereof,

has been sold or otherwise been disposed of, other

lands equivalent thereto, and as contiguous as

may be, shall be granted to said State for the use

of schools. Second, That seventy-two sections of

land shall be set apart and reserved for the use

and support of a State university, to be selected

by the governor of said State, subject to the

112a

approval of the Commissioner of the General

Land-Office, and to be appropriated and applied

in such manner as the legislature of said State

may prescribe for the purpose aforesaid, but for

no other purpose. Third. That ten entire sections

of land, to be selected by the governor of said

State, in legal subdivisions, shall be granted to

said State for the purpose of completing the

public buildings, or for the erection of others at

the seat of government, under the direction of the

legislature thereof. Fourth. That all salt springs

within said State, not exceeding twelve in

number, with six sections of land adjoining, or as

contiguous as may be to each, shall be granted to

said State for its use, the same to be selected by

the governor thereof within one year after the

admission of said State, and when so selected, to

be used or disposed of on such terms, conditions,

and regulations as the legislature shall direct:

Provided, That no salt spring or land, the right

whereof is now vested in any individual or

individuals, or which may be hereafter confirmed

or adjudged to any individual or individuals, shall

by this article be granted to said State. Fifth.

That five per centum of the net proceeds of sales

of all public lands lying within said State which

shall be sold by Congress after the admission of

said State into the Union, after deducting all the

expenses incident to the same, shall be paid to

said State, for the purpose of making public roads

and internal improvements, as the legislature

shall direct: Provided, That the foregoing

propositions, hereinbefore offered, are on the

condition that the people of Oregon shall provide

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by an ordinance, irrevocable without the consent

of the United States, that said State 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; and that in no case shall nonresident proprietors be taxed higher than

residents. Sixth. And that the said State shall

never tax the lands or the property of the United

States in said State: Provided, however, That in

case any of the lands herein granted to the State

of Oregon have heretofore been confirmed to the

Territory of Oregon for the purposes specified in

this act, the amount so confirmed shall be

deducted from the quantity specified in this act.

16 U.S.C.

§ 472. Laws affecting national forest lands

The Secretary of the Department of Agriculture

shall execute or cause to be executed all laws

affecting public lands reserved under the

provisions of section 471 of this title, or sections

supplemental to and amendatory thereof, after

such lands have been so reserved, excepting such

laws as affect the surveying, prospecting,

locating, appropriating, entering, relinquishing,

reconveying, certifying, or patenting of any of

such lands.

§ 475. Purposes for which national forests may be

established and administered

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All public lands designated and reserved prior to

June 4, 1897, by the President of the United

States under the provisions of section 471 of this

title, the orders for which shall be and remain in

full force and effect, unsuspended and unrevoked,

and all public lands that may hereafter be set

aside and reserved as national forests under said

section, shall be as far as practicable controlled

and administered in accordance with the

following provisions. No national forest shall be

established, except to improve and protect the

forest within the boundaries, or for the purpose of

securing favorable conditions of water flows, and

to furnish a continuous supply of timber for the

use and necessities of citizens of the United

States; but it is not the purpose or intent of these

provisions, or of said section, to authorize the

inclusion therein of lands more valuable for the

mineral therein, or for agricultural purposes,

than for forest purposes.

§ 478. Egress or ingress of actual settlers;

prospecting

Nothing in sections 473 to 478, 479 to 482 and

551 of this title shall be construed as prohibiting

the egress or ingress of actual settlers residing

within the boundaries of national forests, or from

crossing the same to and from their property or

homes; and such wagon roads and other

improvements may be constructed thereon as may

be necessary to reach their homes and to utilize

their property under such rules and regulations

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as may be prescribed by the Secretary of

Agriculture. Nor shall anything in such sections

prohibit any person from entering upon such

national forests for all proper and lawful

purposes, including that of prospecting, locating,

and developing the mineral resources thereof.

Such persons must comply with the rules and

regulations covering such national forests.

§ 482. Mineral lands; restoration to public

domain; location and entry

Upon the recommendation of the Secretary of the

Interior, with the approval of the President, after

sixty days’ notice thereof, published in two papers

of general circulation in the State or Territory

wherein any national forest is situated, and near

the said national forest, any public lands

embraced within the limits of any such forest

which, after due examination by personal

inspection of a competent person appointed for

that purpose by the Secretary of the Interior,

shall be found better adapted for mining or for

agricultural purposes than for forest usage, may

be restored to the public domain. And any

mineral lands in any national forest which have

been or which may be shown to be such, and

subject to entry under the existing mining laws of

the United States and the rules and regulations

applying thereto, shall continue to be subject to

such location and entry, notwithstanding any

provisions contained in sections 473 to 478, 479 to

482 and 551 of this title

116a

§ 551. Protection of national forests; rules and

regulations

The Secretary of Agriculture shall make

provisions for the protection against destruction

by fire and depredations upon the public forests

and national forests which may have been set

aside or which may be hereafter set aside under

the provisions of section 471 of this title, and

which may be continued; and he may make such

rules and regulations and establish such service

as will insure the objects of such reservations,

namely, to regulate their occupancy and use and

to preserve the forests thereon from destruction;

and any violation of the provisions of this section,

sections 473 to 478 and 479 to 482 of this title or

such rules and regulations shall be punished by a

fine of not more than $500 or imprisonment for

not more than six months, or both. Any person

charged with the violation of such rules and

regulations may be tried and sentenced by any

United States magistrate judge specially

designated for that purpose by the court by which

he was appointed, in the same manner and

subject to the same conditions as provided for in

section 3401 (b) to (e) of title 18.

§ 1604 National Forest System land and resource

management plans

(a) Development, Maintenance, and Revision by

Secretary of Agriculture as Part of Program;

Coordination

117a

As a part of the Program provided for by section

1602 of this title, the Secretary of Agriculture

shall develop, maintain, and, as appropriate,

revise land and resource management plans for

units of the National Forest System, coordinated

with the land and resource management planning

processes of State and local governments and

other Federal agencies.

(b) Criteria

In the development and maintenance of land

management plans for use on units of the

National Forest System, the Secretary shall use a

systematic interdisciplinary approach to achieve

integrated consideration of physical, biological,

economic, and other sciences.

(c) Incorporation of standards and guidelines by

Secretary; time of completion; progress

reports; existing management plans

The Secretary shall begin to incorporate the

standards and guidelines required by this section

in plans for units of the National Forest System

as soon as practicable after October 22, 1976, and

shall attempt to complete such incorporation for

all such units by no later than September 30,

1985. The Secretary shall report to the Congress

on the progress of such incorporation in the

annual report required by section 1606(c) of this

title. Until such time as a unit of the National

Forest System is managed under plans developed

in accordance with this subchapter, the

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management of such unit may continue under

existing land and resource management plans.

(d) Public participation in management plans;

availability of plans; public meetings

The Secretary shall provide for public

participation in the development, review, and

revision of land management p

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