In Bohmker v. Oregon,the U.S. Court of Appeals for the Ninth Circuit held, in a divided opinion, that Oregon Senate Bill 3, which banned motorized mining activities in certain designated salmon and bull trout habitat, was not preempted by federal statute. We previously reported onCampbell v. Oregon Department of State Lands, 2017 WL 3367094 (D. Or. 2017), in which the U.S. District Court for the District of Oregon stayed a different preemption challenge to a related law pending the Ninth Circuit’s decision in Bohmker. [Bohmker v. Oregon, 903 F.3d 1029 (9th Cir. 2018).]

Background

SB 3’s mining ban was preceded by a moratorium. Oregon SB 838 placed a five-year moratorium on motorized precious metal mining in designated Oregon waters, including some waters located on federal land. The moratorium, scheduled to last from 2016 through 2021, applied to areas designated as “essential indigenous anadromous salmonid habitat” and/or containing “naturally reproducing populations of bull trout.” SB 838 prohibited, in these designated areas:

• . . .motorized precious metal mining from placer deposits of riverbanks or riverbeds, and from other placer deposits, where mining would cause removal or disturbance of streamside vegetation and impact water quality.

Such activities were prohibited:

• . . .up to the ‘line of ordinary high water,’ and ‘100 yards upland perpendicular to the line of ordinary high water’ located ‘above the lowest extent of the spawning habitat’ in a river containing an essential salmonid habitat or a reproducing bull trout population.

Plaintiffs, who have mining claims on federal lands in Oregon, challenged SB 838 as preempted by federal statute. On summary judgment, the district court ruled SB 838 was not preempted. Plaintiffs appealed.

After briefing on appeal was completed, the Oregon Legislature adopted Senate Bill 3, which:

• . . .repealed the moratorium imposed by Senate Bill 838 and imposed a permanent restriction on the use of motorized mining equipment in waters designated as essential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.

The parties agreed to treat the appeal as a challenge to Senate Bill 3, which the Ninth Circuit did.

Plaintiffs’ Arguments

Plaintiffs advanced three preemption arguments: 1) SB 3 is field preempted because it constitutes state “land use planning”; 2) SB 3 is conflict preempted because it is “prohibitory, not regulatory, in its fundamental character”; and 3) SB 3 is conflict preempted because it does not constitute “reasonable state environmental regulation.”

Field preemption occurs where Congress has passed comprehensive federal legislation governing a particular topic or activity. Where Congress has passed comprehensive legislation intended to occupy a particular “field,” state legislation in the same field is precluded by the doctrine of field preemption. Conflict preemption can occur where federal and state laws conflict. Because federal law is supreme under the Supremacy Clause of the U.S. Constitution, where federal and state laws impose directly conflicting requirements, or it is impossible to comply with both, the federal law trumps the state law and thus the state law is preempted, or invalidated, pursuant to the doctrine of conflict preemption.

The Ninth Circuit’s Analysis

The Court of Appeals first traced in some detail federal laws governing mining on federal lands and federal laws governing national forests. These include the Mining Act of 1872, the Surface Resources and Multiple Use Act of 1955, the Mining and Minerals Policy Act of 1970, the Organic Administration Act of 1897, the Multiple-Use and Sustained Yield Act of 1960, the National Forest Management Act of 1976, and the Federal Land Policy and Management Act of 1976. A full discussion of these laws is beyond the scope of this article, but interested readers are encouraged to reference the Ninth Circuit’s useful overview of these statutes.

Field Preemption Claim

The court next addressed plaintiffs’ field preemption argument. In California Coastal Commission v. Granite Rock Co., 480 U.S. 572 (1987), the U.S. Supreme Court:

• . . .‘assumed without deciding that ‘the combination of the [National Forest Management Act of 1976] and the [Federal Land Policy and Management Act of 1976] pre-empts the extension of state land use plans onto unpatented mining claims in national forest lands.’

The Ninth Circuit in Bohmker accepted that same assumption. However, it concluded SB 3 was not field preempted as impermissible land use planning because it was in fact “an environmental regulation.” The Court noted SB 3:

• . . .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.

De FactoProhibition Preemption Claim

The court also rejected plaintiffs’ second argument, which was based largely on South Dakota Mining Association v. Lawrence County, 155 F.3d 1005 (8th Cir. 1998). In that case, the U.S. Court of Appeals for the Eighth Circuit held a county ordinance was preempted by the Federal Mining Act of 1872 because it banned “the only practical way to ‘actually mine the valuable mineral deposits located on federal land in the area’” and was thus a de factoprohibition on mining. The Ninth Circuit rejected plaintiffs’ contention that South Dakota Miningsupported their proposed distinction between regulations that are “prohibitory” versus “regulatory” in their “fundamental character.” The court found “no indication that Congress intended to preempt state environmental regulation merely because it might be viewed as ‘prohibitory’” and rejected the argument 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.

Finally, the Court evaluated plaintiffs’ assertion that SB 3 is conflict preempted because it does not constitute “reasonable state environmental regulation.” The Ninth Circuit “ha[s] consistently held that Congress intended to permit reasonable environmental regulation of mining claims on federal lands.” While acknowledging “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,” the Court concluded “that line has not been crossed” in this instance.

The Dissent

Judge N.R. Smith dissented. A full discussion of Judge Smith’s opinion is beyond the scope of this article, but in short, Judge Smith concluded that:

• . . .[b]ecause 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.

Judge Smith found merit in plaintiffs’ arguments that SB 3:

• . . .impermissibly…identifies a particular use of the land that is prohibited without reference to an identifiable environmental standard and…renders mining within the identified zones impracticable.

Conclusion and Implications

As of this writing, supplemental briefing in Campbellis in progress. SB 3’s ban on motorized mining activities in certain designated salmon and bull trout habitat remains in effect pending the outcome of the constitutional preemption challenge in Campbell. The Ninth Circuit’s decision is available online at: http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/12/16-35262.pdf

(Alexa Shasteen)