South Dakota Min. Ass'n, Inc. v. Lawrence County

• Decision Date: 16 September 1998
• Docket Number: No. 97-3861,97-3861
• Citation: 155 F.3d 1005
• Parties: 29 Envtl. L. Rep. 20,043 SOUTH DAKOTA MINING ASSOCIATION, INC.; Homestake Mining Company, of California; Wharf Resources, a Montana General Partnership; Golden Reward Mining Company Limited Partnership; Naneco Minerals, Inc.; Fred J. Gali; Iwalana I. Gali, Plaintiffs-Appellees, v. LAWRENCE COUNTY, a Political Subdivision of the State of South Dakota, Defendant-Appellee, Jack Cole, Intervenor-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1005

155 F.3d 1005

29 Envtl. L. Rep. 20,043

SOUTH DAKOTA MINING ASSOCIATION, INC.; Homestake Mining Company, of California; Wharf Resources, a Montana General Partnership; Golden Reward Mining Company Limited Partnership; Naneco Minerals, Inc.; Fred J. Gali; Iwalana I. Gali, Plaintiffs-Appellees, v. LAWRENCE COUNTY, a Political Subdivision of the State of South Dakota, Defendant-Appellee Jack Cole, Intervenor-Appellant.

No. 97-3861.

United States Court of Appeals Eighth Circuit.

Submitted April 20, 1998.

Decided Sept. 16, 1998.

Marvin D. Truhe, Rapid City, SD, argued (John Fitzgerald, Deadwood, SD, Rogert D. Hofer and David Pfeifle, Pierre, SD, Roger A. Tellinghuisen, Spearfish, SD, Linden R. Evans, Rapid City, SD, on the brief), for appellees.

William G. Taylor, Sioux Falls, SD, argued, for appellant.

Before McMILLIAN, LOKEN, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Jack Cole appeals the district court's ¹ grant of summary judgment in favor of the South Dakota Mining Association, Inc., Homestake Mining Company of California, Wharf Resources, Golden Reward Mining Company, L.P., Naneco Minerals, Inc., Fred J. Gali, and Iwalana I. Gali (collectively, the plaintiffs), and its order permanently enjoining enforcement of a Lawrence County, South Dakota, ordinance prohibiting the issuance of any new or amended permits for surface metal mining within the Spearfish Canyon Area. The district court ruled that the ordinance was preempted by the Federal Mining Act of 1872, 30 U.S.C. §§ 21-26 (1994). See South Dakota Mining Ass'n v. Lawrence County, 977 F.Supp. 1396, 1405-07 (D.S.D.1997). Cole, who intervened on the side of defendant Lawrence County, argues that the ordinance is not preempted. We affirm.

I. Background

On November 5, 1996, a 51 percent majority of the voters of Lawrence County, South Dakota, approved an initiated ordinance that amended Lawrence County's zoning laws. ² The voter-approved ordinance adds the following language to the county's zoning provisions: "No new permits or amendments to existing permits may be issued for surface metal mining extractive industry projects in the Spearfish Canyon Area." The Spearfish Canyon Area defined in the ordinance includes approximately 40,000 acres of Lawrence County, encompassing about 10 percent of the total land area of the county. Approximately 90 percent of the area is within the Black Hills National Forest and is under the supervision and control of the United States Department of Agriculture's Forest Service, and the United States Department of Interior's Bureau of Land Management. This public land contains unpatented mining claims or properties which are open to the public for mineral developments. The remaining 10 percent of the area contains privately owned patented mining claims. The area is also home to "some of the most beautiful land in the Black Hills." South Dakota Mining Ass'n, 977 F.Supp. at 1398.

The following three paragraphs, containing the undisputed factual background, come from the district court's opinion.

Five mining companies have had active surface mining operations within Lawrence County in the past fifteen years. Two of the plaintiffs, Wharf Resources (Wharf) and Golden Reward Mining Company, L.P. (Golden), either had or currently have active surface mining operations. Both Wharf and Golden have patented and unpatented mining claims within the area defined in the ordinance. Some of Wharf's and Golden's unpatented mineral properties are undergoing active mineral exploration. Wharf is also conducting active surface mining on some privately owned patented mining claims within the area.

Two members of the South Dakota Mining Association who are not plaintiffs, LAC Minerals (U.S.A.) Inc. (LAC Minerals), and Brohm Mining Corp. (Brohm), also either had, or currently have, surface mining operations. LAC Minerals owns or controls patented and unpatented mineral properties within the Spearfish Canyon Area as defined in the ordinance. From 1988 to the fall of 1993, LAC Minerals operated the Richmond Hill Mine which was an active gold and silver surface mining operation. The mine was undergoing reclamation activities at the time of this action. Brohm owns or controls the Gilt Edge Mine, an active gold and silver surface mining operation.

Plaintiff Homestake Mining Company (Homestake) has both patented and unpatented mining claims within the area defined in the ordinance. Plaintiff Naneco Minerals, Inc., (Naneco) holds a state surface mine permit, but has not yet begun mining in the Spearfish Canyon Area. Naneco also owns or controls patented mining claims on privately owned land located within the Area. Plaintiffs Fred and Iwalana Gali own patented mining claims within the area defined as Spearfish Canyon. The Galis lease these mineral rights to mining companies while retaining a royalty.

The record shows that surface metal mining is the only mining method that has been used to mine gold and silver deposits located in the vicinity of the Spearfish Canyon Area in the past 20 years. (J.A. at 151, 158.) Although underground and other types of gold and silver mining are prevalent in parts of South Dakota, the record here discloses that surface metal mining is the only mining method that can actually be used to extract these minerals in the Spearfish Canyon Area. (Id. at 151-52, 158-59.) This is because the gold and silver deposits within the Spearfish Canyon Area are geologically located at the earth's surface. (Id. at 151-52, 159.) The plaintiff mining companies have also made substantial investments of both time and money to explore the area for mineral deposits and to develop plans for mining that conform to federal, state, and local permitting laws.

On February 24, 1997, the plaintiffs filed suit in federal district court against Lawrence County, alleging, among other claims, that federal and state mining laws preempted the county ordinance banning surface metal mining within the Spearfish Canyon Area. The plaintiffs sought a declaratory judgment to this effect and an injunction barring enforcement of the ordinance. On March 24, 1997, the plaintiffs filed a motion for summary judgment on their claim that federal and state mining laws preempted the ordinance. The plaintiffs and the county stipulated that no material facts were in dispute and that discovery was unnecessary pending the district court's resolution of the summary judgment motion.

On April 28, 1997, Jack Cole, a private landowner within the Spearfish Canyon Area, filed a motion to intervene and defend the ordinance. The plaintiffs did not object to Cole intervening, and the district court granted the motion. The court also granted the State of South Dakota and Action for the Environment (Action) leave to file amicus curiae briefs regarding the summary judgment motion. The state filed a brief in support of the plaintiffs' summary judgment motion and Action filed a brief opposing the motion. Cole joined in Action's brief.

Prior to any ruling on the summary judgment motion, the district court ordered the parties to brief the issue of whether the case presented a justiciable controversy. The court noted that even though the case was brought as a declaratory judgment action pursuant to 28 U.S.C. §§ 2201 and 2202, the action must be ripe for a federal court to resolve it. The parties then submitted briefs and affidavits regarding the ripeness issue.

The district court ruled that the action was ripe and that it would therefore decide the case on the merits. See South Dakota Mining Assoc., 977 F.Supp. at 1400. The court granted the plaintiffs' motion for summary judgment, ruling that the Federal Mining Act of 1872, 30 U.S.C. §§ 21-26, preempted the Lawrence County ordinance and ordered a permanent injunction barring enforcement of the ordinance. See id. at 1407. Cole appeals. ³

II. Analysis

A. Ripeness

Although not raised by the parties in this appeal, we first analyze whether the present action is ripe for federal court adjudication. We have explained that "[r]ipeness is demonstrated by a showing that a live controversy exists such that the plaintiffs will sustain immediate injury from the operation of the challenged provisions." Employers Ass'n, Inc. v. United Steelworkers, 32 F.3d 1297, 1299 (8th Cir.1994). This means that "[a] plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). A plaintiff does not have to "await consummation of threatened injury" before bringing a declaratory judgment action. Id. at 298, 99 S.Ct. 2301 (internal quotation omitted). Instead, an action is ripe for adjudication if the plaintiff faces injury that "is certainly impending." Id. (internal quotations omitted).

The plaintiffs here have shown a realistic danger of sustaining an immediate, direct injury as a result of the operation or enforcement of the challenged Lawrence County ordinance. Plaintiffs Homestake, Wharf, Golden, Naneco, and Fred and Iwalana Gali all own patented or unpatented mining claims within the Spearfish Canyon Area as defined in the Lawrence County ordinance. Plaintiff South Dakota Mining Association also has members who own patented or unpatented mining claims within the area. Under the plain text of the Lawrence County ordinance, none of the plaintiffs may be granted a new or amended permit for surface metal mining on any of their mining claims within the Spearfish Canyon Area. Because applying for and being denied a county permit for surface metal mining would be an exercise in futility, we will not require plaintiffs to do so before they may challenge the ordinance. See Sammon v. New Jersey Bd. of Med. Examiners, 66 F.3d 639, 643 (3d Cir.1995) ("Litigants are not required to make such futile gestures to establish ripeness."). We agree with the...