State ex rel. Andrus v. Click

• Decision Date: 24 September 1976
• Docket Number: No. 11926,11926
• Citation: 554 P.2d 969,97 Idaho 791
• Parties: , 6 Envtl. L. Rep. 20,805 STATE of Idaho ex rel. Cecil D. ANDRUS, Governor, et al., Plaintiff-Appellant, v. James CLICK, Sr., et al., Defendants-Respondents.
• Court: Idaho Supreme Court

Page 969

554 P.2d 969

97 Idaho 791, 6 Envtl. L. Rep. 20,805

STATE of Idaho ex rel. Cecil D. ANDRUS, Governor, et al., Plaintiff-Appellant, v. James CLICK, Sr., et al., Defendants-Respondents.

No. 11926.

Supreme Court of Idaho.

Sept. 24, 1976.

Wayne L. Kidwell, Atty. Gen., Terry E. Coffin, Deputy Atty. Gen., Boise, for plaintiff-appellant.

V. Frank Mendicino, Atty. Gen., Steve F. Freudenthal, Sp. Asst. Atty. Gen., Cheyenne, Wyo., as amicus curiae.

Barry Marcus, of Marcus & Marcus, Boise, for defendants-respondents.

DONALDSON, Justice.

The defendants-respondents, James Click, Sr., Eugene Weiss, and Oral (Orral) Lake, are residents of Montana doing business in Idaho as a mining partnership. They conduct a dredge mining operation upon unpatented federal public domain land within the St. Joe National Forest in Idaho under valid federal mining claims. The operation adjoins a section of Sherlock Creek, a tributary of the St. Joe River.

Respondents have conducted their mining operation without acquiring or applying for a permit from the State of Idaho to do so, as required by the Idaho Dredge and Placer Mining Protection Act, I.C. Title 47, ch. 13 (hereinafter, Dredge Mining Act). In conformance with the procedure set forth in I.C. § 47-1324 plaintiff-appellant State of Idaho, on the relation of the Board of Land Commissioners, sought to enjoin respondents' mining operation by filing an action in the Federal District Court for the State of Idaho. A counterclaim was filed by respondents requesting the district court to declare the Act unconstitutional. Although the federal court dismissed the complaint for lack of jurisdiction, a three judge court was impaneled to hear the issues presented by the counterclaim. Subsequently, however, on March 24, 1972 appellant commenced this action in First Judicial District Court whereupon the federal court abstained from further action pending the outcome.

By this action the board of land commissioners seeks to enjoin respondent miners from further mining activity on their claims until they comply with the Dredge Mining Act. ¹ A preliminary injunction was granted on December 28, 1972 restraining respondents from conducting any dredge or placer mining operations. The respondents answered and counterclaimed on February 5, 1973 asking for a declaratory judgment decreeing the Dredge Mining Act unconstitutional. Following a hearing on January 24, 1974, the district court found for the respondents, dissolved the preliminary injunction and enjoined the State of Idaho from attempting to regulate, restrict or prevent the operations of the defendants under the Idaho Dredge Mining Act. The State of Idaho appeals.

It was the conclusion of the district court that the Dredge Mining Act would interfere with the property power of Congress if applied to unpatented mining claims located on the federal public domain. Congress is granted power to manage public domain property by the Property Clause, Article IV, § 3, clause 2 of the United States Constitution. That clause gives Congress the 'Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States * * *.'

The United States Supreme Court recently pointed out that 'while the furthest reaches of the power granted by the Property Clause have not yet been definitively resolved, we have repeatedly observed that '(t)he power over the public land thus entrusted to Congress is without limitations.' * * * In short, Congress exercises the powers both of a proprietor and of a legislature over the public domain.' Kleppe v. New Mexico, -- U.S. --, --, 96 S.Ct. 2285, 2291-92, 49 L.Ed.2d 34 (1976). Most certainly then, where Congress has exercised its legislative prerogative, conflicting state laws must fall by reason of the Supremacy Clause. U.S. Const. art. VI, clause 2. Absent congressional action, however, the state retains jurisdiction over federal lands within its territory. Kleppe v. New Mexico, supra. The rule was stated in Omaechevarria v. Idaho, 246 U.S. 343, 38 S.Ct. 323, 325, 62 L.Ed. 763 (1918):

'The police power of the state extends over the federal public domain, at least when there is no legislation by Congress on the subject.'

See also McKelvey v. United States, 260 U.S. 353, 43 S.Ct. 132, 67 L.Ed. 301 (1922).

The difficulty, of course, is to determine whether there is superseding federal legislation 'on the subject.' Our determination is guided where possible by applicable principles of federal preemption. These cannot, however, provide precise guidelines 'for each case turns on the peculiarities and special features of the federal regulatory scheme in question.' City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973). Consequently, we begin with an examination of the provisions of the applicable state and federal legislation.

The foundation for federal mining law was laid by the Act of May 10, 1872, 17 Stat. 91 (codified at 30 U.S.C. § 21 et seq.). That Act provides that, in order to encourage development of mineral resources, citizens may enter and explore the public domain with the purpose of locating valuable mineral deposits. 30 U.S.C. § 22. The locator has the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, 30 U.S.C. § 26. These provisions are equally applicable to placer miners. 30 U.S.C. § 35. In addition, the locator is granted the right to remove surface vegetation and to cut timber as may be necessary for mining purposes as well as to appropriate needed water. 30 U.S.C. § 612; see also 54 Am.Jur.2d Mines and Minerals § 57 (1971). In order to retain his claim the locator is required to expend $100 of labor or improvements each year. 30 U.S.C. § 28. The locator may obtain fee title to the land by meeting the requirements necessary to obtain a patent. 30 U.S.C. § 29.

The Idaho Dredge and Placer Mining Protection Act was enacted in 1955. ² The Act is administered by the Idaho State Board of Land Commissioners which is empowered to adopt rules and regulations for its administration and to 'make such inquiries and investigations and conduct such hearings as the board shall deem advisable or necessary.' I.C. § 47-1316. In general, the Act requires operators of dredge or placer mines on lands and beds of streams in the State of Idaho to obtain a permit. In order to obtain the permit the operator must pay a set fee, I.C. § 47-1317(a), and obtain a surety bond (minimum $10,000 for ten acres or less) conditioned for faithful performance. He may post cash in lieu of the bond. I.C. § 47-1317(b). Should the applicant for the permit not be the owner of the land, the owner of the lands must endorse his approval on the application for the permit. I.C. § 47-1317(e). The board can deny an application for a permit,

'on state land, stream or river beds, or on any unpatented mining claims, upon its determination that a dredge mining operation on the land proposed would not be in the public interest, giving consideration to economic factors, recreational use for such lands, fish and wildlife habitat and other factors which in the judgment of the state land board may be pertinent.' I.C. § 47-1317(h).

Once obtained, a permit is not transferable. I.C. § 47-1317(f).

Where the permittee disturbs the ground in conducting his operation, he is required to level and smooth over such ground 'reasonably comparable with the natural contour of the ground prior to such disturbance, and to a condition conducive to the growth of verdure.' I.C. § 47-1314. This must be done 'within sixty (60) days after the disturbance of the ground * * * or such longer and reasonable period of time, not to exceed two (2) years, as may be granted by the director of the department of lands in any particular case, to meet land and watercourse restoration requirements.' I.C. § 47-1321. Should substantial topsoil have been removed the operator is required to replace topsoil and plant grass, trees and other vegetation so as to restore the land to its original condition 'insofar as is reasonably possible after the conclusion of the dredging operation.' I.C. § 47-1314. Any watercourse disturbed by the dredging must be replaced on meander lines with pool structure conducive to good fish and wildlife habitat and recreational use, I.C. § 47-1314, and where water used in mining flows into a stream the operator must construct settling ponds and use filtration processes adequate to clarify the water to conform to the standards and regulations of the state board of tealth for water quality control (noe the department of health and welfare. See I.C. § 39-105). I.C. § 47-1315.

In order to determine compliance with these provisions the state board of land commissioners is empowered to conduct periodic inspections of the operations. The cost of the inspections is to be borne by the permittee 'which such costs and expenses shall constitute a lien upon the lands specified in the permit and the minerals produced therefrom.' I.C. § 47-1317(d).

Violation of the terms of the Act can result in a termination of the permit, I.C. § 47-1318, or forfeiture of the bond, I.C. § 47-1319. In addition, a failure to comply with the Act is declared to be a misdemeanor. I.C. § 47-1321. The state board of land commissioners is also empowered to bring an action to enjoin those operators who do not hold permits. I.C. § 47-1324. Procedures for hearings and appeal are provided for by I.C. §§ 47-1318 and 47-1320.

Where there is a direct collision between state and federal legislation our task is simple, the federal legislation would preempt state legislation by reason of the supremacy clause, United States Const. art. VI, clause 2; Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 929, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963). However, state regulation which is more stringent than that under the federal legislation is not...