it please the court my name is james and i represent the miners i want to suggest that the key to resolving this case is the granite rock case because it's so closely on point and i want to focus on the language in that case concerning the line between environmental regulation and land use planning in that case the supreme court assumed that land use planning was preempted and i don't think there was any serious dispute about that at the time nor should there be now the question is is senate bill three and we've now simplified down to senate bill three so the only question all the collateral questions are gone all that matters is the question whether oregon did designate certain areas calls essential indigenous and had some on it habitat and it can gold mineral deposits in the rivers in oregon some ninety percent of the critical gold bearing county is so called e s a trust actual these areas were being mined for gold for years and years before  without the before motorized dredge mining worthing no i think motors were used to power the pumps frequently for hydraulic mining and there were large scale things where you would build entire but this is prohibits thread mining right it mining in these rivers and it's a it's a weird discriminatory kind of mining you know because the environmental stuff about effects on salmon and they cite some federal documents about how large scale gravel mining might hurt salmon that mining is not closed down they single out the most valuable minerals the precious minerals and say what they want to get those the wisdom what organised it is not in front of us the question is whether what oregon has done is preempted by federal law correct so i don't care what studies they relied on or whether it's weird or there's a better way to do it the question is whether or not what they've done is preempted by federal law you're not claiming expressed preemption are you i am claiming expressed precisely the statutory provision that expressly pre amps this that would be the thirty u s c section twenty six and twenty eight the specific grants of exclusive rights to develop these claims the requirement expressed preemption as i understand it and maybe they are there is a federal statute that says the not regulate this area so you're claiming you're claiming conflict preemption arjuna i'm claiming both field in conflict you think that they have no authority to regulate mining in streams at all no they have plenty of authority under granite rock to have a permanent process and insist on reasonable and standards based environmental permit protein so you must be claiming can't that's why we're working down the list seems to me you must be claiming conflict because i think that in controlling uses in zoning and controlling uses they have trespassed upon the field of land use planning this is not you know it goes back to the quote from granite rock land use planning in essence chooses a particular uses for the land and vironment all regulation at its core requires only that however the land is used damage to the environment is kept within express limit this is why i think you're really making a conflict argument  saying you can't mine what you saying is that by saying the ways spike by by prescribing the ways that my need cannot occur they have made it impossible for me to use the land in the way the federal government wanted me they can they can read use you'd start out by saying thinking they can legislate in this area by imposing environmental regulations they just can't do them so much that they turn into land use that's got to be a conflict period but what we're getting to the dancing on a in these streams and why you think the federal government has a statute that permits you to mine in these streams the way you want that's the real question ok what i would say is the standard for preemption is not prohibits it is stands as an obstacle to the accomplishment of the full purposes and objectives of congress so let me know is it the percent objective of congress that you be able to mine in these streams in the way that you believe most efficient mining activity our pricing of it takes that into account it's very cheap you know you have to deal with them but we haven't nothing that are for nothing on the federal side says you can you're entitled to ignore state environmental laws so what why is there a conflict let me focus you on two statutes thirty u s c section six twelve being can't be any material interference in mining by other uses which this court is interpreted to cover environmental uses there is a carve out for state law there but only water law now the most recent federal thing is the federal land management policy act the flip my act and what the environmentalists call the heart of that act is a statement that when these activities occur you can you are supposed to limit unnecessary and undo environmental harm and that phrase in the whole context of all these statutes really should go through the mall because from the beginning from eight hundred seventy two when they granted these things they require their exploitation they protected them against environmental regulation as it arose and later they said ok we can regulate but only unnecessary and undue environmental harm it is a substantive restriction it makes this case one in which amazingly enough environmental protection is not the highest value what some of the law professor interveners have written is congress has said in these narrow little places where the valuable minerals are the highest and best use of that land is for mineral development and that is the policy choice that oregon is utterly trampling on it saying yes you have these little pockets of these valuable minerals but we think there's a higher and better use for that land and that is fish preserves and so you're only ability to if you're only practical ability that you know we just have a different policy objective and what makes it a land use provision is that they have chosen a different use for this so called fish habitat they have said we are dead that is the designated use and anything that would pose any risk to it has to be outlawed so your contention if i can rephrase it so if you accept this is that oregon is a fact if we passed a statute that says no mining will be allowed in these places because we want to preserve the fish that's correct and if the issue of fact that is that should be litigated is whether mining is possible in these areas even in the absence of such an dredge i think it's  obvious from the eighth circuit case and all the other cases that prohibiting you know going back to the days of pick and shovels or whatever is an obstacle and so i don't think you have to go back for trial but if you want to go back for trial just to prove exactly how much of an obstacle it is we can do that as we can has given you by but just when it is i'm just taking his hypothetical to the fullest and i was surprised by your answer it seems to me that there's a predicate facto land use plan that the question that's the question for the obstacle the obstacle but that would be the reason we but send it back for the trial i mean i'm sorry i hazard wrong no because it controls the use because it's zones areas and says you can't do the use there it's land use planning it looks like a land use planning statute well that's what i thought that's what it is but that's what i thought you were arguing that's why i asked the question so it doesn't matter in your view whether or not it's possible to to take out minerals because you think they've overstepped by regulating land use i have two arrows on my boat for that arrow yes ok trial or to the finding of fact that only because i think it's sufficiently obvious and because because this record makes it sufficiently obvious on this record all i have are your client's  but the problem comes of that on summary judgment i don't know whether the court gave your affidavits in your client's affidavits the sufficiency they were allowed but nonetheless it seems to me that the court ought to be able to add a hearing to determine if one can in fact find this is a facto land use plan perhaps the state will simplify your argument by admitting that minors can't work six or seven feet underwater without motors and which ca regulation if it doesn't fail on the facial part why we then parse whether how effective on a regulation it is in other words if it's if it is an environmental regulation not over and use regulation do we really have to then figure out whether or not another environmental regulation will make your client's job easier well then it's not only one question that we face i would refer your honor to section seven hundred thirty two c of flip which talks about giving some effect like the forest service regulations to state you're in water quality standards ok so what granite rock had in mind is here's the water quality standard show that you can comply with it you get your permit not we don't like that use so you know no i think you're saying the same thing i am someone trying to figure out whether we have two questions or only one whether we have a factual question or a legal one if this is a land use regulation then we have a conflict so in granite rock the state of california comes and says we don't want to prohibit it we don't want to prevent it we don't want to prohibit and then it says we just want to put in reasonable permit conditions and so the court in this sort of probably mistaken in lightened approach to federalism said you know they may have some local knowledge  the permit conditions and that's completely different than saying i think we're saying the same thing so i just want to make sure that we're not what you're saying is that this so called environmental regulation when analyzed is really a regulation correct no i'm saying that if it's an environmental regulation it does not fall within seventeen thirty two c of flip or the four service regulations it is not the sort of standard permit thing that is not prohibit to those provisions then you are making a conflict preemption argument are you not yes those provisions that the that what they're doing here even if it's not alleged use regulation conflicts with those this tell me how it conflicts with those provisions because the provisions i'm having trouble it's like a decision in ventura county where the hand ally of bake case we have authority from the federal government to go under there and get this stuff ok and the state is like no you can't do it and that is a conflict it's a simple conflict the state may say well we only want you to do it during these days or it and nobody fought with that it's when it became prohibitory that it mattered and every case up until the last like two or three years every case looked at in that said is this thing prohibitory we're starting two or three years by the way so you're not bound by what the supreme court of california did you know but we are bound by our prior decisions and where i regret rock that's why i asked the question it says if it's an environmental regulation it's ok if it's alleged use regulation it's not calling it one or the other doesn't and the inquiry you have to we have to figure out which one it is well the only that but it also said the line between them will not always be bright and that's why i'm trying to focus you it seems to me that under granite rock there is a hypothesis for your argument but it's the one which says one may hypothesize a state environmental regulation so severe that a particular land use would be commercially impracticable even though the core activity described by  phase is undoubtedly different is that where you are that is where i am if you do not accept my assertions that when you control the use with zones that land use planning whereas if you set  water and say you can't make the water more than this much cloudy that's an environmental standard now let's say that organ said you can't make the water cloudy at all and it was a special rule for mining you can't make the water cloudy at all that would be the type of environmental regulation standard based that would then bring us into this area of granite rock or become so severe that it knocks out the mining in an unreasonable way because again the hallmark of granite rock was we can allow some reasonable environmental regulation here now mr frost and his people they sued us under the e s a they sued us under the water that every environmental statute has been applied to this practice there is nothing wrong and it's the silliest dysregulation in the world they've got a problem they have an environmental regulation it's a serious environmental regulation in the world and it doesn't in effect amount to and use regulation then it's ok if they so the question for us is whether they've stopped you from doing what you what you're entitle to do under federal law that's really the question i think not not whether or not the science backs up what they but i think you're reading out two things completely out of the law which is a mistake and one is the reasonable miss requirement grant iraq and the second is the whole congressional legislation over and over again saying we've got to get the minerals out where where they are and in so doing we want to avoid unreasonable and on do environmental effects which is the flips and is the flipside of reasonableness so just because it's an environment mental red regular doesn't mean they're home free because of the overriding policy that the highest and best use the congressional purposes get these minerals out from this little place and minimise but don't eliminate every statute it's not just flip it's the mineral mining policy and you're over time but all i was reacting to was your argument that this is a so this doesn't even do anything for the environment surely surely the salmon are better off without this than they are with actually you're completely wrong ok because in fact what happens is the bottom  completely wrong because then you may lose the case you're not very good you're somewhat misinformed the bottom of some of the bottom of many of these streams becomes something called concretized ok it gets like cemented up and the miners come through and dig it up and all of a validity of the orville non of the oregon of the oregon environmental realty gating year over whether it conflicts with federal law if you think you've got to convince me that the oregon law is so irrational that it's unconstitutional you've raised your burden very high i'm not trying to we're trying to win a rush or that what you're doing is good for the salmon you're very very high trying to win a rational basis case i'm just trying to apply granite rock in a straightforward way with ventura county and all of the preemption decisions that where there is this direct conflict with federal policy i mean i think you're on a road a decision a while back about the shark fins remember and that i never remember the one all right i do remember there being a lot of people interested in right and the distinction there was there was a paramount environmental objective but there isn't a paramount environmental directive here congress has made this careful balancing of mineral needs and environmental objectives and that is the balance that organise trampling all over we ask you to strike this statute down and send them back to the drawing board to do it right thanks you for your add more than your time you can do what you want to do with your time i'm not going to but i'm not going to murder mind you that there's only five minutes left not only that but i think you're going to find that we're going to get into this you've seen the way things have gone this morning  my good colleague you know i ask you a lot of questions he's going to go right after you and neither he nor i are going to be worried about whether it's you or him most posed to be up here of course your honor all right  answer the question right so it may not be so but at this stage of the litigation i'm not sure i can conclude that it's not so so if extinguishes the miners ability to mine within essential some runs through their court ok so i think it does does that confer is there do we have a federal conflict preemption problem because the federal government has said we're giving you these leases to no two because we want you to extract valuable minerals you know your honor so well that used a minute before you say no i want you to focus on granite rocks language at five eighty seven which i quoted to him to make sure i was understanding his claim he got a little bit more carried away than that and we'll ask you about that too but they said right in granite rock and one may hypothesize a state environmental regulation so severe that a particular land use would become commercially impractica based on what we have here where the miners have especially asserted numerous affidavit says substantiate that mining in these areas is commercially impractical so i going back to the purpose and intent of the my new law i think that's the first step in the preemption analysis and what the miners want to say is that the purpose and intent is to get the minerals out of the ground that's the highest and best use of these lands but i don't think you'll find that anywhere in the text of the eight hundred seventy two million law or in the subsequent so that's so your position and explain why just left all this stuff open in rock it didn't decide it your position is that even if this law makes it for all practical purposes impossible to remove minerals from the vets from the streambeds there is still no conflict with federal law correct so that therefore there's no fact that which we can assume that fact to be true that they allege but it doesn't matter that's great you tell me why so the federal government is leasing land to people to charging them law that that has really asks people to mind these lands in return for money and if if i may if we're talking about the the claims completely we're not talking about the portion of the claim right actually covered by s three which is just the portion of the claim that's in stream so it doesn't the bill only applies to in water active so it's what you want is one of your arguments that look we haven't you can mine anywhere on placer mining and some of there is record evidence of miners in this case mining the upland areas that are completely unaffected by s p three now so i think but going back there's no been alleged use regulation of regulation is to protect the stream reaches for it and i think i think i accept that i don't write that's that's nobody thinks you have a nefarious purpose your purposes are environmental but even if your purposes environmental if you affectively prohibited you saw some you son part of the property then there's that cross over the border into into land use so if we are if the hypothetical just so i'm clear is that that these claims cannot be mined at all right i mean it seems to me i have to assume that at this point of the case because they've effect if put in affidavits that said where miners and we know all about this stuff let me be dead wrong you may have filling in the granite rock hypothetical that was left i don't think you could say their claims don't feel they have him so you're just saying even though their claims fill in that lan anyway i think looking at what what now s b three does and that to say assuming these facts to be true because we only regulate the stream it doesn't conflict and that the state has a long history of regulation of state waters of protecting fish and wildlife as an historic exercise of its police power and so therefore in conflict preemption land whether this conflicts with the purpose of the mining act which i think is assumed as you're saying the purpose have taken express consideration of state law and require compliance with state and federal environmental laws when you're on your siding to meet all of the other parts of granite rock that might be said but you're not focusing on that part of granite rock which i read to you which seems to me that part of granite rock which is pacifically open for them to yet and it seems to me that these affidavits have it so i'll and therefore how do i get around not sending it back for at least a hearing to determine whether this is really really  completely so that the stream is it's commercially impracticable now to mine in the stream granite rock left open the question of whether or not that might be a conflict that's right and so let's assume that they've that question so it's assuming they're commercially impractical why nevertheless are one thing you've said is because it's only part of the thing right seems to me sort of like a takings analysis we haven't moved all value of the property is there is there are other reasons why it would  why we assuming these facts to be true we wouldn't find a conflict i think one reason is that doing a commercially impractical analysis would require an individual look at each mining claim and would essentially make preemption entirely a case by case basis that would be that would factor in the you know the price of gold the difficulty of getting to a particular claim all of these economic factors that don't have any think have anything to do answer that says if we get to the question that the supreme court reserved we should say it doesn't matter whether it's commercial you're practicable they only want to go the right i think that's right and it is the supreme court dictate regulation of all kinds often increases the cost of doing business and some methods of mining some methods of extraction period may become commercially impractical that doesn't mean that i don't fish transform will have to decide whether legally is a problem before we decide whether the facts matter so we're still there i mean you're you're making an argument that says on on the we shouldn't go back for a hearing because on the question at the supreme court left open your answer is no you have a second argument which is we haven't made a commission completely commercially impracticable because they can mine elsewhere but that what it seems to me turns on facts your legal argument is even because this is plainly an environmental regulation that's part of it yes and it's an exercise of state's historic police power in this area and if if i may i'd like to reserve a few minutes for my  and please the court people cross for the intervenors to answer your question judge for woods related to a case that's relates to this issue it is not on point i can see where we know about it and we are closer b s p is a case in  which the court reviewed a forest service decision to deny vehicular access to section dredge placer miners that want to be used vehicles to access their mining claims in the siskiyou national forest in southwest oregon and the miners asserted that the forest service is denial of the use of vehicles would render their operations commercially invaluable and this court nonetheless upheld the forces for well but i do in fairness i want to caviar that that case was about you know access via the national forest land right not the claims them that's right so we were dealing with somebody who was who had a permit to mine that's right but but you asked the question about you know how does commercial impracticability fit in and the answer in closer is that it can be impinged it could be impinged a great deal so let's assume that for a moment that the federal government were only leasing the streams the stream bed to the miners only giving my rights to the stream bed to the miners who wasn't there wasn't dry land involved at all and oregon passed a law with valid environmental purposes which in effect made it commercially practicable to do so to my would there be a conflict there no i think we're going to has the police power to regulate certain kinds of mining that it determines to be unduly destructive of public resources in the state so i'm taking your good colleagues distinction away he says well we've only regulated the stream bed and they've that dry land they can still mine and i'm saying what if what if it mated what if only  with the subject of the federal mining permit you say it doesn't matter it also really doesn't but in the facts in this case frankly eighty percent of the rivers and streams in oregon are open to suction dredge mining subject to permit conditions the oregon legislature has made a decision that in twenty percent of its rivers and streams and frankly these flow not only through federal lands they flow through state lands and private land here is the reason and the reason that us these questions is that if in fact it depends on the facts that seems to me summary judgment is not an appropriate mechanism if it only depends on the law and summary judgment is an appropriate mechanism it may well be that some of the some of your colleagues clients have leases that are that are in areas where permits are available and all these things can occur but some of them may not and if you're asking us to sort out the facts on summary judgment that's a problem we're asking us to say it doesn't matter know we can answer that yes or no and that's why we're focusing on that as you may answer your question it doesn't matter i think there could you could hypothetically you could probably find a conflict between a state environmental regulation and a miner somewhere in this state that that miner would fill out a declaration and say this is rendering my claim commercially impracticable if it turns if it drills down to that level i don't think preemption does end can you do it one sentence answer of why it doesn't because the state can regulate destructive uses under its police powers for these lands but that seems to go directly just to just to be fair seems to go to go directly contrary to the exact situation that the supreme court left open saying that even though it's a state environmental mining inevitably involves i don't knows dredging or sledging or whatever and it always has some environmental impact i think there could be an overbroad state regulation this is narrowly focused on  purposes and objectives are not limited to the to the mining laws they include the endangered species act and the clean water act every one of the claims in this case except for one on one creek or in designated critical habitat for wild salmon and steelhead trout that are listed as threatened with extinction so there are other federal purposes that are being advanced by the states principled regulation of this form of mining in these discrete areas thank character of the law and whether it is prohibitory or regulatory whether it is consistent with affording minors an opportunity to get a permit under a standards based system or whether it just flatly says no because we think under the case law just flatly saying no transgress is granite rock and it transgresses all the federal purposes with respect to his factual contentions yes there are streams there and there are other claims and there are other parts of other claims but it's about where the gold is and where the gold is is where they have regulated us out and the reason the claims don't match the streams perfectly and there's some little pieces that stick out is because the mining laws require you to describe the claim by conforming to the pattern of rectangular surveys and in the record you will find some nice little maps for example the frost declaration exhibit c page sixty six you will see that here's the river stream and then we have these little pieces sticking out and the gold just isn't there so that that's a response to the first argument or that the other side made which is that we have a primitive mining the land and you say we've provided evidence that the only valuable place on these studies are permit is industry so then we get to the ultimate question which is that it let's assume they've done that can they do it and we say no because it's a prohibition and you can decide that the character of the law is sufficiently offensive to the congress struck by balance which requires some means of determining whether the  is unnecessary or undue in light of the principle and highest and best use of these little places of getting the minerals out thank you thank you appreciate it it's case sixteen three five two six two zero mccurry versus state of oregon is submitted and thank you all for your argument we're