Joshua Bohmker v. State of Oregon ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSHUA CALEB BOHMKER; LARRY No. 16-35262
COON; WALTER R. EVENS; GALICE
MINING DISTRICT; JASON GILL; D.C. No.
MICHAEL HUNTER; MICHAEL P. 1:15-cv-01975-CL
LOVETT; JOEL GROTHE;
MILLENNIUM DIGGERS;
WILLAMETTE VALLEY MINERS; OPINION
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
2 BOHMKER V. STATE OF OREGON
SOCIETY; CENTER FOR BIOLOGICAL
DIVERSITY,
Intervenor-Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Mark D. Clarke, Magistrate Judge, Presiding
Argued and Submitted March 8, 2018
Portland, Oregon
Filed September 12, 2018
Before: Raymond C. Fisher, N. Randy Smith
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Fisher;
Dissent by Judge N.R. Smith
BOHMKER V. STATE OF OREGON 3
SUMMARY*
Mining Law / Preemption
Affirming the district court’s summary judgment in favor
of defendants, the panel held that mining restrictions set forth
in Oregon Senate Bill 3 are not preempted by federal law.
To protect threatened fish populations, Senate Bill 3
prohibits the use of motorized mining equipment in rivers and
streams containing essential salmon habitat. The restrictions
apply throughout the state, including on rivers and streams
located on federal lands. Plaintiffs have mining claims on
federal land in Oregon.
Assuming without deciding that federal law preempts the
extension of state land use plans onto unpatented mining
claims on federal land, the panel held that Senate Bill 3 is not
preempted because it constitutes an environmental regulation,
not a state land use planning law. In addition, Senate Bill 3
does not stand as an obstacle to the accomplishment of the
full purposes and objectives of Congress. The panel
concluded that reasonable state environmental restrictions
such as those found in Senate Bill 3 are consistent with, rather
than at odds with, the purposes of federal mining and land use
laws. The panel held that Senate Bill 3 therefore is neither
field preempted nor conflict preempted.
Dissenting, Judge N.R. Smith wrote that the National
Forest Management Act and the Federal Land Policy and
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 BOHMKER V. STATE OF OREGON
Management Act occupy the field of land use planning
regulation on federal lands. He wrote that because the
permanent ban on motorized mining in Oregon Senate Bill 3
does not identify the 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.
COUNSEL
James L. Buchal (argued), Murphy & Buchal LLP, Portland,
Oregon, for Plaintiffs-Appellants.
Carson Leonard Whitehead (argued), Assistant Attorney
General; Benjamin Gutman, Solicitor General; Ellen F.
Rosenblum, Attorney General; Oregon Department of Justice,
Salem, Oregon; for Defendants-Appellees.
Peter M.K. Frost (argued), Western Environmental Law
Center, Eugene, Oregon; Roger Flynn, Western Mining
Action Project, Lyons Colorado; for Intervenor-Defendants-
Appellees.
Julio N. Colomba, Jonathan Wood, and Damien M. Schiff,
Pacific Legal Foundation, Sacramento, California, for Amici
Curiae Pacific Legal Foundation and Western Mining
Alliance.
Sean Patrick Smith, Mountain States Legal Foundation,
Lakewood, Colorado, for Amicus Curiae American
Exploration & Mining Association.
Lane N. McFadden, Attorney; John C. Cruden, Assistant
Attorney General; Environment & Natural Resources
BOHMKER V. STATE OF OREGON 5
Division, United States Department of Justice, Washington,
D.C.; Kendra Nitta and Roy W. Fuller, Office of the Solicitor,
United States Department of the Interior, Washington, D.C.;
John Eichhorst, Deputy Regional Attorney, Office of the
General Counsel, Pacific Region, United States Department
of Agriculture, San Francisco, California; for Amicus Curiae
United States of America.
Marc N. Melnick, Deputy Attorney General; Gavin G.
McCabe, Supervising Deputy Attorney General; Joshua A.
Klein, Deputy Solicitor General; Robert W. Byrne, Senior
Assistant Attorney General; Office of the Attorney General,
Oakland, California; Robert W. Ferguson, Attorney General;
Office of the Attorney General, Olympia, Washington; for
Amici Curiae States of California and Washington.
Nicholas Stevens Bryner and Sean B. Hecht, UCLA School
of Law, Los Angeles, California; Eric Biber, UC Berkeley
School of Law, Berkeley, California; for Amici Curiae
Western Public Land Law Professors.
6 BOHMKER V. STATE OF OREGON
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 3 are consistent with, rather than at odds with, the
purposes of federal mining and land use laws. See Cal.
Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 588–89
(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
BOHMKER V. STATE OF OREGON 7
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.
(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.
8 BOHMKER V. STATE OF OREGON
(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,
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
BOHMKER V. STATE OF OREGON 9
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 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
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, 377 P.3d 818, 820 (Cal. 2016).
10 BOHMKER V. STATE OF OREGON
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 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
BOHMKER V. STATE OF OREGON 11
rivers and streams 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 & 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 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
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.
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,
12 BOHMKER V. STATE OF OREGON
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 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:
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).
BOHMKER V. STATE OF OREGON 13
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
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.
14 BOHMKER V. STATE OF OREGON
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
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 . . . .
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
BOHMKER V. STATE OF OREGON 15
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 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.
16 BOHMKER V. STATE OF OREGON
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
or licensees, shall be such as not to endanger or materially
interfere with 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
BOHMKER V. STATE OF OREGON 17
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 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 ninety-
eighth 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.
18 BOHMKER V. STATE OF OREGON
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 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.
BOHMKER V. STATE OF OREGON 19
30 U.S.C. § 21a (emphasis added).4
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).
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. § 1281(a)–(b).
The plaintiffs do not suggest this provision presented an option for Oregon
here.
20 BOHMKER V. STATE OF OREGON
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).
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
BOHMKER V. STATE OF OREGON 21
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 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.
22 BOHMKER V. STATE OF OREGON
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 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.
BOHMKER V. STATE OF OREGON 23
4. The Granite Rock Decision
The Supreme Court addressed this line drawing in
California Coastal Commission v. Granite Rock Co.,
480 U.S. 572 (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.
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 pre-
empted 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 (1984)).
24 BOHMKER V. STATE OF OREGON
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 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.
BOHMKER V. STATE OF OREGON 25
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 pre-empted 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
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
26 BOHMKER V. STATE OF OREGON
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 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 pre-empted.” 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
BOHMKER V. STATE OF OREGON 27
claims in national forest lands.” 480 U.S. at 585. We make
the same 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 mining claims commercially
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.
28 BOHMKER V. STATE OF OREGON
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 26–27. Because
“[v]irtually all forms of . . . regulation 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,
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.
BOHMKER V. STATE OF OREGON 29
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.
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
30 BOHMKER V. STATE OF OREGON
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
7
Like the permit requirement in Granite Rock, moreover, Senate
Bill 3 is not a “ban” or “prohibition” on mining. See 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-
BOHMKER V. STATE OF OREGON 31
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 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
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.
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)?
32 BOHMKER V. STATE OF OREGON
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.
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. §§ 197.005–197.860,
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
anadromous salmonids and habitat essential to the recovery
9
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.
BOHMKER V. STATE OF OREGON 33
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 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
34 BOHMKER V. STATE OF OREGON
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
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
BOHMKER V. STATE OF OREGON 35
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, 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 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, self-serving 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,
36 BOHMKER V. STATE OF OREGON
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 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.
BOHMKER V. STATE OF OREGON 37
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
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 that mining method to an environmental
standard. Despite these similarities, however, we treat the
two arguments as distinct. The plaintiffs’ field preemption
38 BOHMKER V. STATE OF OREGON
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:
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
BOHMKER V. STATE OF OREGON 39
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 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.
Id. § 22. In light of these statutes, the Eighth Circuit
concluded the Mining Act embodies several congressional
purposes, including
40 BOHMKER V. STATE OF OREGON
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:
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
BOHMKER V. STATE OF OREGON 41
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 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
42 BOHMKER V. STATE OF OREGON
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.
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
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”).
BOHMKER V. STATE OF OREGON 43
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 law.” Id.12 Nothing in the
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 (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 (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”).
44 BOHMKER V. STATE OF OREGON
Mining Act suggests a categorical distinction between
“prohibitory” and “regulatory” state laws.
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 mining claims on national forest lands
to use nondestructive methods of prospecting, where the
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.
BOHMKER V. STATE OF OREGON 45
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
our natural and reclaimable mineral resources,
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 ninety-eighth meridian
relating to the ownership, control, appropriation, use,
and distribution of ground or surface waters within any
unpatented mining claim.
30 U.S.C. § 612(b).
46 BOHMKER V. STATE OF OREGON
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 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
BOHMKER V. STATE OF OREGON 47
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. at582–93. 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
mining in the portions of rivers and streams containing
essential habitat for threatened and endangered salmonids.14
14
This conclusion is consistent with the California Supreme Court’s
recent decision in Rinehart, 377 P.3d 818, cert. denied sub nom. Rinehart
v. California, 138 S. Ct. 635 (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.
48 BOHMKER V. STATE OF OREGON
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 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
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.
BOHMKER V. STATE OF OREGON 49
Commissioners, El Paso County, 652 P.2d 1050 (Colo. 1982),
State ex rel. Andrus v. Click, 554 P.2d 969 (Idaho 1976), and
Elliott v. Oregon International Mining Co., 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 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
50 BOHMKER V. STATE OF OREGON
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
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
BOHMKER V. STATE OF OREGON 51
a reasonableness standard applies here, but they argue that
Senate Bill 3 is preempted because it constitutes an
unreasonable environmental regulation.
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.
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
52 BOHMKER V. STATE OF OREGON
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 judgment of the district court
is therefore affirmed.
AFFIRMED.
16
Contrary to the dissent, we do not today question the validity of as-
applied preemption challenges. Dissent 66 & n.7.
BOHMKER V. STATE OF OREGON 53
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
(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 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
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.
54 BOHMKER V. STATE OF OREGON
inference that Congress left no room for the States to
supplement it.” Nat’l Fed’n 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 (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 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
BOHMKER V. STATE OF OREGON 55
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 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,
56 BOHMKER V. STATE OF OREGON
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 regulation or ordinance onto federal lands. Arizona
v. United States, 567 U.S. 387, 401 (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
BOHMKER V. STATE OF OREGON 57
regulation so severe that a particular land use would become
commercially impracticable.” Id.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[]” 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
58 BOHMKER V. STATE OF OREGON
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”).
Granite Rock, 480 U.S. at 587.2 To the majority, this
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
BOHMKER V. STATE OF OREGON 59
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
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.
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)).
3
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.
60 BOHMKER V. STATE OF OREGON
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 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
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.
BOHMKER V. STATE OF OREGON 61
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 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.
62 BOHMKER V. STATE OF OREGON
Rev. Stat.§ 390.308 (authorizing land use planning to
complete the “Oregon Coast Trail”); Or. Rev. Stat. § 390.112(“The State Parks 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 environmental
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.
BOHMKER V. STATE OF OREGON 63
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 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
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.
64 BOHMKER V. STATE OF OREGON
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.
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
BOHMKER V. STATE OF OREGON 65
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 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 non-motorized
66 BOHMKER V. STATE OF OREGON
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 as-applied
preemption challenges that turn on the effect in operation of
the allegedly preempted state law. Gade v. Nat’l Solid Wastes
Mgmt. Ass’n, 505 U.S. 88, 105 (1992) (“Although ‘part of the
pre-empted 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 (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
7
Many other cases recognize as-applied preemption challenges. See,
e.g., Gobeille v. Liberty Mut. Ins. Co., 136 S. Ct. 936, 943–45 (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 WL 6873294, at
BOHMKER V. STATE OF OREGON 67
Granite Rock expressly recognized this possibility in the
context of state environmental regulation versus land use
planning. 480 U.S. at 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.
*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).
68 BOHMKER V. STATE OF OREGON
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 under Granite Rock that federal law
preempts Senate Bill 3).8
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
BOHMKER V. STATE OF OREGON 69
The majority next rejects the merits of an as-applied
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 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
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.
70 BOHMKER V. STATE OF OREGON
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 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
BOHMKER V. STATE OF OREGON 71
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 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.