Bohmker v. Oregon

• Decision Date: 12 September 2018
• Docket Number: No. 16-35262,16-35262
• Parties: Joshua Caleb BOHMKER; Larry Coon; Walter R. Evens; Galice Mining District; Jason Gill; Michael Hunter; Michael P. Lovett; Joel Grothe; Millennium Diggers; Willamette Valley Miners ; Don Van Orman; J.O.G. Mining LLC, Plaintiffs-Appellants, v. State of OREGON; Ellen Rosenblum, in her official capacity as the Attorney General of the State of Oregon; Mary Abrams, in her official capacity as the Director of the Oregon Department of State Lands, Defendants-Appellees, Rogue Riverkeeper; Pacific Coast Federation of Fisherman’s Associations; Institute for Fisheries Resources; Oregon Coast Alliance; Cascadia Wildlands ; Native Fish Society; Center for Biological Diversity, Intervenor-Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

903 F.3d 1029

Joshua Caleb BOHMKER; Larry Coon; Walter R. Evens; Galice Mining District; Jason Gill; Michael Hunter; Michael P. Lovett; Joel Grothe; Millennium Diggers; Willamette Valley Miners ; Don Van Orman; J.O.G. Mining LLC, Plaintiffs-Appellants,

v. State of OREGON; Ellen Rosenblum, in her official capacity as the Attorney General of the State of Oregon; Mary Abrams, in her official capacity as the Director of the Oregon Department of State Lands, Defendants-Appellees,Rogue Riverkeeper; Pacific Coast Federation of Fisherman’s Associations; Institute for Fisheries Resources; Oregon Coast Alliance; Cascadia Wildlands ; Native Fish Society; Center for Biological Diversity, Intervenor-Defendants-Appellees.

No. 16-35262

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 8, 2018—Portland, Oregon

Filed September 12, 2018

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 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.

Before: Raymond C. Fisher, N. Randy Smith and Andrew D. Hurwitz, Circuit Judges.

Dissent by Judge N.R. Smith

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, 107 S.Ct. 1419, 94 L.Ed.2d 577 (1987) (rejecting the proposition that federal law preempts the application of reasonable state environmental regulations to the operation of unpatented mining claims on federal lands).

BACKGROUND

The Oregon legislature adopted Senate Bill 838 in 2013. The Bill’s legislative findings recognize both the state’s rich tradition of small scale prospecting and mining and its environmental interest in protecting water quality and fish habitat. The findings state:

(1) Prospecting, small scale mining and recreational mining are part of the unique heritage of the State of Oregon.

(2) Prospecting, small scale mining and recreational mining provide economic benefits to the State of Oregon and local communities and support tourism, small businesses and recreational opportunities, all of which are economic drivers in Oregon’s rural communities.

(3) Exploration of potential mine sites is necessary to discover the minerals that underlie the surface and inherently involves natural resource disturbance.

(4) Mining that uses motorized equipment in the beds and banks of the rivers of Oregon can pose significant risks to Oregon’s natural resources, including fish and other wildlife, riparian areas, water quality, the investments of this state in habitat enhancement and areas of cultural significance to Indian tribes.

(5) Between 2007 and 2013, mining that uses motorized equipment in the beds and banks of the rivers of Oregon increased significantly, raising concerns about the cumulative environmental impacts.

(6) The regulatory system related to mining that uses motorized equipment in the beds and banks of the rivers of Oregon should be efficient and structured to best protect environmental values.

2013 Or. Laws ch. 783, § 1.

Consistent with these findings, the law imposed a five-year moratorium, beginning in 2016, on motorized mining techniques in areas designated as essential fish habit:

A moratorium is imposed until January 2, 2021, on mining that uses any form of motorized equipment for the purpose of extracting gold, silver or any other precious metal from placer deposits of the beds or banks of the waters of this state, as defined in ORS 196.800, or from other placer deposits, that results in the removal or disturbance of streamside vegetation in a manner that may impact water quality. The moratorium applies up to the line of ordinary high water, as defined in ORS 274.005, and 100 yards upland perpendicular to the line of ordinary high water that is located above the lowest extent of the spawning habitat in any river and tributary thereof in this state containing essential indigenous anadromous salmonid habitat, as defined in ORS 196.810, or naturally reproducing populations of bull trout, except in areas that do not support populations of anadromous salmonids or natural reproducing populations of bull trout due to a naturally occurring or lawfully placed physical barrier to fish passage.

Id. § 2(1). " ‘Essential indigenous anadromous salmonid habitat’ means the habitat that is necessary to prevent the depletion of indigenous anadromous salmonid species during their life history stages of spawning and rearing." Or. Rev. Stat. § 196.810(1)(g)(B).

The plaintiffs filed this action in October 2015, three months before the moratorium was to take effect. The 12 plaintiffs have mining claims on federal lands in Oregon and use a form of motorized mining known as suction dredge mining to search for and extract gold deposits from rivers and streams.¹ The plaintiffs alleged that many of their mining claims were located in "essential indigenous anadromous salmonid habitat" and that the moratorium on motorized mining imposed by Senate Bill 838 would prevent them from mining these claims. They argued that Senate Bill 838 was preempted by federal law because it "interfere[d] with the federal purpose of fostering and encouraging mineral development on federal property, and st[ood] as an obstacle to the accomplishment and execution of the purposes and objectives of Congress." Compl. ¶ 49. The plaintiffs sought an injunction restraining the state from enforcing Senate Bill 838 and a declaration that the Bill was preempted by federal law. Compl. 14.

The district court granted the state’s motion for summary judgment, ruling that, because Senate Bill 838 was a reasonable environmental regulation, it was not preempted. After the court entered judgment in favor of the state, the plaintiffs timely appealed.

After briefing in this court was completed, the Oregon legislature adopted Senate Bill 3. Senate Bill 3 repealed the moratorium imposed by Senate Bill 838 and imposed a permanent restriction on the use of motorized mining equipment in waters designated as essential indigenous anadromous salmonid habitat. It states:

In order to protect indigenous anadromous salmonids and habitat essential to the recovery and conservation of Pacific lamprey, motorized in-stream placer mining may not be permitted to occur up to the line of ordinary high water in any river in this state containing essential indigenous anadromous salmonid habitat, from the lowest extent of essential indigenous anadromous salmonid habitat to the highest extent of essential indigenous anadromous salmonid habitat.

2017 Or. Laws ch. 300, § 4(2). Although the restrictions imposed by Senate Bill 3 differ in some respects from those in Senate Bill 838, both laws prohibit motorized mining in rivers and streams 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, 113 S.Ct. 2297, 124 L.Ed.2d 586 (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"...