FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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

No. 16-35262

D.C. No.

1:15-cv-01975-CL

OPINION
2 BOHMKER V. STATE OF OREGON

SOCIETY; CENTER FOR BIOLOGICAL

DIVERSITY,

Intervenor-Defendants-Appellees.

Appeal from the United States District Court

for the District of Oregon

Mark D. Clarke, Magistrate Judge, Presiding

Argued and Submitted March 8, 2018

Portland, Oregon

Filed September 12, 2018

Before: Raymond C. Fisher, N. Randy Smith

and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Fisher;

Dissent by Judge N.R. Smith
BOHMKER V. STATE OF OREGON 3

SUMMARY*

Mining Law / Preemption

Affirming the district court’s summary judgment in favor

of defendants, the panel held that mining restrictions set forth

in Oregon Senate Bill 3 are not preempted by federal law.

To protect threatened fish populations, Senate Bill 3

prohibits the use ofmotorized mining equipment in rivers and

streams containing essential salmon habitat. The restrictions

apply throughout the state, including on rivers and streams

located on federal lands. Plaintiffs have mining claims on

federal land in Oregon.

Assuming without deciding that federal law preempts the

extension of state land use plans onto unpatented mining

claims on federal land, the panel held that Senate Bill 3 is not

preempted because it constitutes an environmental regulation,

not a state land use planning law. In addition, Senate Bill 3

does not stand as an obstacle to the accomplishment of the

full purposes and objectives of Congress. The panel

concluded that reasonable state 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. The panel held that Senate Bill 3 therefore is neither

field preempted nor conflict preempted.

Dissenting, Judge N.R. Smith wrote that the National

Forest Management Act and the Federal Land Policy and

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
4 BOHMKER V. STATE OF OREGON

Management Act occupy the field of land use planning

regulation on federal lands. He wrote that because the

permanent ban on motorized mining in Oregon Senate Bill 3

does not identify the 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.

COUNSEL

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, AttorneyGeneral; Oregon Department ofJustice,

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-DefendantsAppellees.

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
BOHMKER V. STATE OF OREGON 5

Division, United States Department of Justice, Washington,

D.C.; Kendra Nitta and RoyW. 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.
6 BOHMKER V. STATE OF OREGON

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

(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
BOHMKER V. STATE OF OREGON 7

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.
8 BOHMKER V. STATE OF OREGON

(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 fiveyear 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
BOHMKER V. STATE OF OREGON 9

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

1

 Suction dredging is

a technique used by miners to remove matter from the

bottom of waterways, extract minerals, and return the

residue to the water. A high-powered suction hose

vacuums loose material from the bottom of a

streambed. Heavier matter, including gold, is separated

at the surface by passage through a floating sluice box,

and the excess water, sand, and gravel is discharged

back into the waterway.

People v. Rinehart, 377 P.3d 818, 820 (Cal. 2016).
10 BOHMKER V. STATE OF OREGON

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
BOHMKER V. STATE OF OREGON 11

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 (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” and the two ordinances

“disadvantage[d] [the plaintiff] in the same fundamental

way”). The parties also agree that we should treat this appeal

as a challenge to Senate Bill 3. We now proceed to do so.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. Because at

least some of the plaintiffs have standing to pursue this

appeal, we need not address the standing of additional

plaintiffs. See Nat’l Ass’n of Optometrists & Opticians

LensCrafters, Inc. v. Brown, 567 F.3d 521, 523 (9th Cir.

2009) (“As a general rule, in an injunctive case this court

need not address standing of each plaintiff if it concludes that

one plaintiff has standing.”).3 Our review is de novo. See

2 Unlike Senate Bill 838, for example, Senate Bill 3 does not prohibit

motorized mining in bull trout habitat. In addition, although the

moratorium imposed by Senate Bill 838 extended to mining in areas up to

100 yards from waterways, the restrictions on motorized mining in Senate

Bill 3 apply only within rivers and streams themselves.

3 We therefore need not address whether plaintiffs Galice Mining

District, Millennium Diggers and Willamette Valley Miners have

established standing, either in their own right or on behalf of their

members. See Associated Gen. Contractors of Am., San Diego Chapter,
12 BOHMKER V. STATE OF OREGON

Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 777 (9th Cir.

2014) (en banc) (grant or denial of summary judgment); Ting

v. AT&T, 319 F.3d 1126, 1135 (9th Cir. 2003) (federal

preemption).

DISCUSSION

A. Background Legal Principles

1. Federal Laws Governing Mining on Federal Lands

We begin with an overview of the federal laws respecting

mining on federal lands. We consider only those laws the

parties have identified as relevant to the preemption issues

presented in this appeal.

“Historically, the Federal mining law has been designed

to encourage individual prospecting, exploration, and

development of the public domain.” H.R. Rep. No. 84-730

(1955), as reprinted in 1955 U.S.C.C.A.N. 2474, 2476. 

“Under these laws, prospectors may go out on the public

domain not otherwise withdrawn, locate a mining claim,

search out its mineral wealth and, if discovery of mineral is

made, can then obtain a patent.” Id.

The Mining Act of 1872, 17 Stat. 91, for example,

provides that:

Inc. v. Cal. Dep’t of Transp., 713 F.3d 1187, 1194 (9th Cir. 2013)

(explaining that, to establish associational standing, a plaintiff must

provide specific allegations showing that at least one identified member

has suffered or would suffer harm).
BOHMKER V. STATE OF OREGON 13

Except as otherwise provided, all valuable

mineral deposits in lands belonging to the

United States, both surveyed and unsurveyed,

shall be free and open to exploration and

purchase, and the lands in which they are

found to occupation and purchase, by citizens

of the United States and those who have

declared their intention to become such, under

regulations prescribed by law, and according

to the local customs or rules of miners in the

several mining districts, so far as the same are

applicable and not inconsistent with the laws

of the United States.

30 U.S.C. § 22 (emphasis added). Under this Act,

prospectors could acquire unpatented mining claims by

discovering valuable mineral resources on federal lands,

marking the location of their claims and recording their

claims in accordance with state law:

Rights to mineral lands, owned by the United

States, are initiated by prospecting, that is,

searching for minerals thereon, and, upon the

discovery of mineral, by locating the lands

upon which such discovery has been made, or

lands which the prospector believes to be

valuable for minerals. A location is made by

staking the corners of the claim, posting a

notice of location thereon, and complying

with the State laws regarding the recording of

the location in the county recorder’s office,

discovery work, etc.

H.R. Rep. No. 84-730, 1955 U.S.C.C.A.N. at 2477.
14 BOHMKER V. STATE OF OREGON

Once the prospector staked out a claim, “the locator,

without further requirement under Federal law, as of that

moment, acquire[d] the immediate right to exclusive

possession, control, and use of the land within the corners of

his location stakes.” Id. at 2478. As the Mining Act

explains:

The locators of all mining locations made on

any mineral vein, lode, or ledge, situated on

the public domain, their heirs and assigns,

where no adverse claim existed on the 10th

day of May 1872 so long as they comply with

the laws of the United States, and with State,

territorial, and local regulations not in conflict

with the laws of the United States governing

their possessory title, shall have the exclusive

right of possession and enjoyment of all the

surface included within the lines of their

locations, and of all veins, lodes, and ledges

throughout their entire depth . . . .

30 U.S.C. § 26 (emphasis added). To protect this right to

exclusive possession, a locator annually must perform $100

worth of labor or carry out improvements worth $100 in

value. See id. § 28.

The locator of an unpatented mining claim either “may

remove the minerals from the land without first proceeding to

patent,” H.R. Rep. No. 84-730, 1955 U.S.C.C.A.N. at 2478,

or may obtain a patent by, inter alia, filing an application

under oath, showing that $500 worth of labor has been

expended or improvements made with respect to the claim

and making a payment to the proper officer of $5 per acre,

see 30 U.S.C. § 29. Although “[a]n ‘unpatented’ claim is a
BOHMKER V. STATE OF OREGON 15

possessory interest in a particular area solely for the purpose

of mining,” the owner of a patented claim “gets a fee simple

interest from the United States.” Clouser v. Espy, 42 F.3d

1522, 1525 n.2 (9th Cir. 1994). The mining claims at issue in

this case are unpatented.

By 1955, Congress had become increasingly aware of

“abuses under the general mining laws by those persons who

locate[d] mining claims on public lands for purposes other

than that of legitimate mining activity.” H.R. Rep. No. 84-

730, 1955 U.S.C.C.A.N. at 2478. Sham claims, for example,

“could be used for selling timber from national forests, or

obtaining free residential or agricultural land.” United States

v. Shumway, 199 F.3d 1093, 1101 (9th Cir. 1999) (citing

United States v. Curtis Nev. Mines, Inc., 611 F.2d 1277, 1282

(9th Cir. 1980)). Congress was also concerned that according

the holders of unpatented mining claims exclusive surface

rights prevented the “efficient management and

administration of the surface resources of the public lands.” 

H.R. Rep. No. 84-730, 1955 U.S.C.C.A.N. at 2474. Mining

locations made under existing law, for example,

frequently block[ed] access: to water needed

in grazing use of the national forests or other

public lands; to valuable recreational areas; to

agents of the Federal Government desiring to

reach adjacent lands for purposes of managing

wild-game habitat or improving fishing

streams so as to thwart the public harvest and

proper management of fish and game

resources on the public lands generally, both

on the located lands and on adjacent lands.

Id. at 2478–79.
16 BOHMKER V. STATE OF OREGON

To address these concerns, Congress adopted the Surface

Resources and Multiple Use Act of 1955, Pub. L. No. 84-167,

69 Stat. 367 (1955). This law prohibits the location of any

mining claim for purposes other than mining, see 30 U.S.C.

§ 612(a), and reserves in the United States – rather than

granting to locators – the right to manage the surface

resources of unpatented mining claims located after 1955,

subject to the important proviso that “any use of the surface

of any such mining claim by the United States, its permittees

or licensees, shall be such as not to endanger or materially

interfere with prospecting, mining or processing operations or

uses reasonably incident thereto,” id. § 612(b). The law

states:

Rights under any mining claim hereafter

located under the mining laws of the United

States shall be subject, prior to issuance of

patent therefor, to the right of the United

States to manage and dispose of the vegetative

surface resources thereof and to manage other

surface resources thereof (except mineral

deposits subject to location under the mining

laws of the United States). Any such mining

claim shall also be subject, prior to issuance

of patent therefor, to the right of the United

States, its permittees, and licensees, to use so

much of the surface thereof as may be

necessary for such purposes or for access to

adjacent land: Provided, however, That any

use of the surface of any such mining claim by

the United States, its permittees or licensees,

shall be such as not to endanger or materially

interfere with prospecting, mining or

processing operations or uses reasonably
BOHMKER V. STATE OF OREGON 17

incident thereto: Provided further, That if at

any time the locator requires more timber for

his mining operations than is available to him

from the claim after disposition of timber

therefrom by the United States, subsequent to

the location of the claim, he shall be entitled,

free of charge, to be supplied with timber for

such requirements from the nearest timber

administered by the disposing agency which

is ready for harvesting under the rules and

regulations of that agency and which is

substantially equivalent in kind and quantity

to the timber estimated by the disposing

agency to have been disposed of from the

claim: Provided further, That nothing in this

subchapter and sections 601 and 603 of this

title shall be construed as affecting or

intended to affect or in any way interfere with

or modify the laws of the States which lie

wholly or in part westward of the ninetyeighth meridian relating to the ownership,

control, appropriation, use, and distribution

of ground or surface waters within any

unpatented mining claim.

Id. § 612(b) (emphasis added). The legislation sought to

“encourage mining activity on . . . public lands compatible

with utilization, management, and conservation of surface

resources such as water, soil, grass, timber, parks,

monuments, recreation areas, fish, wildlife, and waterfowl.” 

H.R. Rep. No. 84-730, 1955 U.S.C.C.A.N. at 2475.
18 BOHMKER V. STATE OF OREGON

In 1970, Congress adopted the Mining and Minerals

Policy Act of 1970, Pub. L. No. 91-631, 84 Stat. 1876 (1970). 

This law declares it the policy of the United States to foster

the development of an “economically sound and stable

domestic mining” industry, but subject to “environmental

needs,” 30 U.S.C. § 21a, making clear that “Congress did not,

and does not, intend mining to be pursued at all costs,”

Rinehart, 377 P.3d at 825. It states:

The Congress declares that it is the continuing

policy of the Federal Government in the

national interest to foster and encourage

private enterprise in (1) the development of

economically sound and stable domestic

mining, minerals, metal and mineral

reclamation industries, (2) the orderly and

economic development of domestic mineral

resources, reserves, and reclamation of metals

and minerals to help assure satisfaction of

industrial, security and environmental needs,

(3) mining, mineral, and metallurgical

research, including the use and recycling of

scrap to promote the wise and efficient use of

our natural and reclaimable mineral resources,

and (4) the study and development of methods

for the disposal, control, and reclamation of

mineral waste products, and the reclamation

of mined land, so as to lessen any adverse

impact of mineral extraction and processing

upon the physical environment that may result

from mining or mineral activities.
BOHMKER V. STATE OF OREGON 19

30 U.S.C. § 21a (emphasis added).4

2. Federal Laws Governing National Forests

The Organic Administration Act, 30 Stat. 11, 35–36

(1897), provides that nothing in 16 U.S.C. §§ 473–82 and 551

“shall . . . prohibit any person from entering upon . . . national

forests for all proper and lawful purposes, including that of

prospecting, locating, and developing the mineral resources

thereof.” 16 U.S.C. § 478. It also provides, however, that

“[s]uch persons must comply with the rules and regulations

covering such national forests.” Id. The Organic Act,

moreover, requires the Secretary of Agriculture to “make

provisions for the protection against destruction by fire and

depredations upon the public forests and national forests,”

and it authorizes the Secretary to “make such rules and

regulations” regarding “occupancy and use” as may be

necessary “to preserve the forests thereon from destruction.” 

Id. § 551.

Under this rulemaking authority, the U.S. Forest Service

has promulgated rules regulating mining on national forest

lands. These regulations require mining operators to comply

with applicable federal and state air quality standards, water

quality standards and standards for the disposal and treatment

of solid wastes. See 36 C.F.R. § 228.8(a)–(c).

4

In 1977, Congress adopted the Surface Mining Control and

Reclamation Act of 1977, Pub. L. No. 95-87, 91 Stat. 445 (1977). In

relevant part, this law allows the governor of a state to ask the Secretary

of the Interior to designate lands as unsuitable for mining on the ground

that “mining operations would have an adverse impact on lands used

primarily for residential or related purposes.” 30 U.S.C. § 1281(a)–(b). 

The plaintiffs do not suggest this provision presented an option for Oregon

here.
20 BOHMKER V. STATE OF OREGON

The Multiple-Use and Sustained-Yield Act of 1960, Pub.

L. No. 86-517, 74 Stat. 215 (1960), directs the Secretary of

Agriculture “to develop and administer the renewable surface

resources of the national forests for multiple use and

sustained yield.” 16 U.S.C. § 529. After declaring it “the

policy of the Congress that the national forests are established

and shall be administered for outdoor recreation, range,

timber, watershed, and wildlife and fish purposes,” the Act

states that “[n]othing herein shall be construed as affecting

the jurisdiction or responsibilities of the several States with

respect to wildlife and fish on the national forests.” Id. § 528. 

It further states that “[n]othing herein shall be construed so as

to affect the use or administration of the mineral resources of

national forest lands or to affect the use or administration of

Federal lands not within national forests.” Id.

The National Forest Management Act of 1976 (NFMA),

Pub. L. No. 94-588, 90 Stat. 2949 (1976), requires the

Secretary of Agriculture to “develop . . . land and resource

management plans for units of the National Forest System,

coordinated with the land and resource management planning

processes of State and local governments and other Federal

agencies.” 16 U.S.C. § 1604(a). In developing such plans,

the Secretary shall assure that they “provide for multiple use

and sustained yield of the products and services obtained

therefrom in accordance with the Multiple-Use SustainedYield Act of 1960.” Id. § 1604(e)(1).

In addition, federal lands, including those falling outside

national forests, are governed by the Federal Land Policy and

Management Act of 1976 (FLPMA), Pub. L. No. 94-579, 90

Stat. 2743 (1976). FLPMA requires the Secretary of the

Interior to develop land use plans for public lands, see

43 U.S.C. § 1712(a), and to “manage the public lands under
BOHMKER V. STATE OF OREGON 21

principles of multiple use and sustained yield,” id. § 1732(a). 

FLPMA directs that, “[i]n managing the public lands the

Secretary shall, by regulation or otherwise, take any action

necessary to prevent unnecessary or undue degradation of the

lands.” Id. § 1732(b). This “unnecessary or undue

degradation” mandate applies not only to land use generally

but also to the regulation of mining operations in particular. 

See id. (providing that nothing in FLPMA, other than the

provision establishing the “unnecessary or undue

degradation” standard, “shall in any way amend the Mining

Law of 1872 or impair the rights of any locators or claims

under that Act, including, but not limited to, rights of ingress

and egress”). FLPMA further provides that “nothing in this

Act shall be construed as . . . enlarging or diminishing the

responsibility and authority of the States for management of

fish and resident wildlife.” Id.

Under FLPMA, the Bureau of Land Management (BLM)

has issued regulations requiring mining operators to “comply

with applicable Federal and state” air quality standards, water

quality standards and standards for the disposal and treatment

of solid wastes. 43 C.F.R. § 3809.420(b)(4)–(6). Another

BLM regulation requires mining operators to comply with

state environmental regulations that do not conflict with

federal law: “If State laws or regulations conflict with this

subpart regarding operations on public lands, you must follow

the requirements of this subpart. However, there is no

conflict if the State law or regulation requires a higher

standard of protection for public lands than this subpart.” Id.

§ 3809.3.
22 BOHMKER V. STATE OF OREGON

3. Overview of Applicable Federal Laws

The foregoing laws, in the aggregate, reflect Congress’

intent to foster a productive mining industry but also its intent

to protect the environment. These laws declare many federal

lands “free and open” to exploration, 30 U.S.C. § 22,

preclude the United States from using the surface area of

certain mining claims in a manner that would “endanger or

materially interfere” with the underlying mining claims, id.

§ 612(b), declare it to be the policy of the United States to

foster “the development of economically sound and stable

domestic mining . . . industries,” id. § 21a, and preserve a role

for prospecting and mining in national forests, see 16 U.S.C.

§§ 478, 528. At the same time, these laws require miners to

comply with state laws, see 30 U.S.C. § 22, including state

environmental laws, see, e.g., 36 C.F.R. § 228.8; 43 C.F.R.

§§ 3809.3, 3809.420(b), declare it the policy of the United

States to assure that mining satisfies the nation’s

“environmental needs,” 30 U.S.C. § 21a, require the

Secretary of Agriculture to protect national forests from

“depredations” and “destruction,” 16 U.S.C. § 551, require

the Secretary of the Interior to protect public lands from

“unnecessary or undue degradation,” 43 U.S.C. § 1732(b),

and recognize the states’ broad authority to manage fish and

wildlife, see 16 U.S.C. § 528; 43 U.S.C. § 1732(b). In light

of these provisions, it is common ground among the parties

that the holders of unpatented mining claims do not have an

“unfettered” right to explore and mine federal lands,

unencumbered by federal and state environmental regulation. 

Nor does anyone argue that states’ environmental regulatory

authority in this area is unbounded. Congress plainly

intended to draw a line between these two extremes.
BOHMKER V. STATE OF OREGON 23

4. The Granite Rock Decision

The Supreme Court addressed this line drawing in

California Coastal Commission v. Granite Rock Co.,

480 U.S. 572 (1987). After the Granite Rock Company

secured unpatented mining claims on national forest land and

the Forest Service approved the company’s plan of operations

for the removal of limestone, the California Coastal

Commission instructed the company to apply for a permit

under the California Coastal Act, which prohibits any

development, including mining, in the state’s coastal zone

without a permit. See id. at 575–76. The company sued to

enjoin the enforcement of the permit requirement, arguing

federal preemption. See id. at 577.

The Supreme Court rejected the company’s claims. The

Court began by observing that

[S]tate law can be pre-empted in either of two

general ways. If Congress evidences an intent

to occupy a given field, any state law falling

within that field is pre-empted. If Congress

has not entirelydisplaced state regulation over

the matter in question, state law is still preempted to the extent it actually conflicts with

federal law, that is, when it is impossible to

comply with both state and federal law, or

where the state law stands as an obstacle to

the accomplishment of the full purposes and

objectives of Congress.

Id. at 581 (alteration in original) (citations omitted) (quoting

Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984)).
24 BOHMKER V. STATE OF OREGON

The Court next summarily rejected the proposition that

the Mining Act of 1872 demonstrates an intent to preempt

any state environmental regulation on federal lands. As the

Court explained, “Granite Rock concedes that the Mining Act

of 1872, as originally passed, expressed no legislative intent

on the as yet rarely contemplated subject of environmental

regulation.” Id. at 582.

Next, the Court rejected Granite Rock’s argument that

“the Federal Government’s environmental regulation of

unpatented mining claims in national forests demonstrates an

intent to pre-empt any state regulation.” Id. at 581–82. The

Court concluded that

the Forest Service regulations that Granite

Rock alleges pre-empt any state permit

requirement not only are devoid of any

expression of intent to pre-empt state law, but

rather appear to assume that those submitting

plans of operations will comply with state

laws. . . . It is impossible to divine from these

regulations, which expressly contemplate

coincident compliance with state law as well

as with federal law, an intention to pre-empt

all state regulation of unpatented mining

claims in national forests.

Id. at 583–84 (emphasis added) (citing 36 C.F.R. §§ 228.5(b),

228.8(a)–(c), (h)). The Court added that “[n]either Granite

Rock nor the United States contends that these Forest Service

regulations are inconsistent with their authorizing statutes.” 

Id. at 584.
BOHMKER V. STATE OF OREGON 25

The Court then turned to Granite Rock’s argument that

“federal land management statutes demonstrate a legislative

intent to limit States to a purely advisory role in federal land

management decisions, and that the Coastal Commission

permit requirement is therefore pre-empted as an

impermissible state land use regulation.” Id. The Court

assumed arguendo that “the combination of the NFMA and

the FLPMA pre-empts the extension of state land use plans

onto unpatented mining claims in national forest lands.” Id.

at 585. But even under this assumption, the Court held that

only “state land use plans” would be preempted, not state

“environmental regulation.” Id. at 585–86.

The Court did not define the terms “land use planning”

and “environmental regulation,” but it offered some guidance

as to the distinction between the two:

The line between environmental

regulation and land use planning will not

always be bright; for example, one may

hypothesize a state environmental regulation

so severe that a particular land use would

become commercially impracticable. 

However, the core activity described by each

phrase is undoubtedly different. Land use

planning in essence chooses particular uses

for the land; environmental regulation, at its

core, does not mandate particular uses of the

land but requires only that, however the land

is used, damage to the environment is kept

within prescribed limits. Congress has
26 BOHMKER V. STATE OF OREGON

indicated its understanding of land use

planning and environmental regulation as

distinct activities.

Id. at 587.

The Court suggested that a state’s decision to “prohibit”

or “ban” mining would constitute land use planning, and

hence would be preempted. See id. at 586–87. It further

intimated that a law would be preempted if, although couched

as environmental regulation, its “true purpose” was to

prohibit mining. Id. at 588. At bottom, however, the Court

made clear that “reasonable state environmental regulation is

not pre-empted.” Id. at 589; see also id. at 593.

B. The Plaintiffs’ Arguments

The plaintiffs argue: (1) Senate Bill 3 is field preempted

because it constitutes state “land use planning” under Granite

Rock; (2) Senate Bill 3 is conflict preempted because it is

“prohibitory, not regulatory, in its fundamental character,”

S.D. Mining Ass’n v. Lawrence County, 155 F.3d 1005, 1011

(8th Cir. 1998); (3) Senate Bill 3 is conflict preempted

because it does not constitute “reasonable state environmental

regulation”; and (4) genuine issues of material fact preclude

the entry of summary judgment in favor of the state. We

address these arguments in turn.

1. Field Preemption: The Plaintiffs’ Argument That

Senate Bill 3 Constitutes State Land Use Planning

Granite Rock assumed without deciding that “the

combination of the NFMA and the FLPMA pre-empts the

extension of state land use plans onto unpatented mining
BOHMKER V. STATE OF OREGON 27

claims in national forest lands.” 480 U.S. at 585. We make

the same assumption here.5 But like the Supreme Court in

Granite Rock, we reject the plaintiffs’ preemption claim. 

Senate Bill 3 is an environmental regulation rather than a land

use planning law. It 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. 

Senate Bill 3 is precisely the kind of reasonable state

environmental regulation that the Supreme Court recognized

in Granite Rock properly supplements rather than displaces

federal land use planning decisions. To be sure, by restricting

motorized suction dredge mining in rivers and streams

designated as essential habitat for threatened salmonids,

Senate Bill 3 will adversely impact the ability of some miners

to extract gold deposits from their mining claims. But these

impacts are the unavoidable consequences of a federal

scheme that seeks to foster both the development of valuable

mineral resources and proper stewardship and protection of

the nation’s natural resources.

The plaintiffs do not argue that Senate Bill 3 becomes a

land use law under Granite Rock simply because it may

render some of their mining claims commercially

5 We view the application of this assumption, as do the parties, as a

question of field preemption rather than conflict preemption. But, even if

we were to view it as a question of conflict preemption, we would find no

conflict, because Senate Bill 3 is not a land use law.
28 BOHMKER V. STATE OF OREGON

impracticable.6 We agree with the United States that the

preemption inquiry does not turn on profitability:

To be sure, there will be miners (including

some Plaintiffs) who cannot profitably extract

certain minerals from their mining claims

without the use of motorized equipment in the

water. But . . . specific limitations on specific

mining methods or activities have long been

part of the business of mining. A State law

cannot be deemed preempted solely on the

basis that the cost of mining in compliance

with the law makes a particular miner unable

to profit from a particular mining claim.

Brief of the United States as Amicus Curiae 26–27. Because

“[v]irtually all forms of . . . regulation of mining claims – for

instance, limiting the permissible methods of mining and

prospecting in order to reduce incidental environmental

damage – will result in increased operating costs,” Clouser,

6 The dissent contends the plaintiffs have made a commercial

impracticability argument. Dissent 68. We have, however, carefully

reviewed their opening and reply briefs on appeal, and no such argument

exists there. The plaintiffs argue Senate Bill 3 is preempted because it

prohibits mining, not because it renders their claims unprofitable. As the

plaintiffs make clear, “[t]his appeal is not about profitability, but about

prohibition.” Reply Br. 41. The plaintiffs have therefore waived the

argument. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929

(9th Cir. 2003) (“[W]e will not consider any claims that were not actually

argued in appellant’s opening brief.”); Smith v. Marsh, 194 F.3d 1045,

1052 (9th Cir. 1999) (“[A]rguments not raised by a party in its opening

brief are deemed waived.”); Greenwood v. Fed. Aviation Admin., 28 F.3d

971, 977 (9th Cir. 1994) (“We will not manufacture arguments for an

appellant . . . .”). This rule applies with particular force where, as here,

the plaintiffs have expressly disclaimed the argument in question.
BOHMKER V. STATE OF OREGON 29

42 F.3d at 1530, virtually every environmental regulation will

render at least some mining claims commercially

impracticable, and virtually every environmental regulation

would therefore be preempted under a commercial

impracticability test, a proposition that is impossible to

reconcile with Granite Rock’s central holding that

“reasonable state environmental regulation is not preempted,” Granite Rock, 480 U.S. at 589 (emphasis added). 

A commercial impracticability theory, moreover, would

require the preemption analysis to turn on each miner’s

individual financial circumstances: the law would be

preempted as to some miners but not as to others. Indeed, a

commercial impracticability test would give the greatest

protection to the least profitable mining operations, and it

would handcuff regulators from restricting even the most

environmentally destructive mining methods. So long as a

particularly destructive method of mining – such as blasting

– presented the only commercially practicable means of

extracting minerals, regulators would be barred from

restricting that practice. We do not read Granite Rock as

supporting that result. As the California Supreme Court has

explained, federal law does not show that Congress “viewed

mining as the highest and best use of federal land wherever

minerals were found.” Rinehart, 377 P.3d at 830.

Rather,the plaintiffs contend that Senate Bill 3 constitutes

a state land use planning law because it “prohibits” a

particular “use” of the land (motorized mining methods) in

particular “zones” (rivers and streams designated as essential

salmonid habitat). The plaintiffs base this argument on

language in Granite Rock explaining that

the core activity described by [environmental

regulation and land use planning] is
30 BOHMKER V. STATE OF OREGON

undoubtedly different. Land use planning in

essence chooses particular uses for the land;

environmental regulation, at its core, does not

mandate particular uses of the land but

requires only that, however the land is used,

damage to the environment is kept within

prescribed limits.

480 U.S. at 587. The plaintiffs argue Senate Bill 3 is state

land use planning under this language because (1) it chooses

particular uses of the land and (2) does not prescribe limits on

environmental damage by, for example, promulgating a

pollution standard.

We disagree. First, Senate Bill 3 does not “choose[]” or

“mandate particular uses of the land.” Id. It simply restricts

one method of mining.

7

7 Like the permit requirement in Granite Rock, moreover, Senate

Bill 3 is not a “ban” or “prohibition” on mining. See 480 U.S. at 586–87. 

Senate Bill 3 does not prohibit the plaintiffs’ mining operations. Many of

the plaintiffs engage in upland mining, mine in rivers and streams that are

not designated as essential habitat or use non-motorized mining methods

such as gold panning. Plaintiff Larry Coon, for example, did not testify

that all of his mining claims are located in essential salmon habitat, and he

contends only that the legislation will significantly limit his mining

operations, not eliminate them. Coon decl. ¶¶ 2, 5. Only half of plaintiff

Millennium Diggers’ mining claims are located within essential salmon

habitat. Darnell decl. ¶ 4. Some of its members, moreover, “utilize nonmotorized techniques, such as gold panning.” Id. ¶ 3. Plaintiff Jason

Gill’s mining operations occur between 50 and 300 feet from a creek. Gill

decl. ¶¶ 3–4. These operations would not be affected by Senate Bill 3,

which applies solely to in-stream mining. The deposits associated with

plaintiff Joel Grothe’s claim fall not only within the creek bottom but also

within 100 yards of the creek. Grothe decl. ¶ 7. Only some of plaintiff

Willamette Valley Miners’ mining claims are located in essential salmon

habitat. Hunter decl. ¶ 9. Its members’ mining, moreover, includes “non-
BOHMKER V. STATE OF OREGON 31

Second, Senate Bill 3 does not constitute land use

planning simply because it prohibits a particular mining

method rather than “prescrib[ing] limits” on environmental

damage by adopting a pollution standard. Granite Rock does

not hold that only standards, not restrictions on activities, are

permissible environmental regulation. On the contrary,

Granite Rock says only that “environmental regulation, at its

core, does not mandate particular uses of the land but requires

only that, however the land is used, damage to the

environment is kept within prescribed limits.” 480 U.S. at

587 (emphasis added).8

It does not purport to define the

entire universe of environmental regulation as consisting

solely of limit-prescribing standards. That formalistic

approach ignores the practical reality that environmental

regulation may take several forms, and it would make no

sense, given that regulationsimposing pollution standards can

motorized techniques, such as gold panning.” Id. ¶ 8. Plaintiff Michael

Lovett testified that Senate Bill 3 would significantly limit his mining

operations, but not that it would eliminate them. Lovett decl. ¶ 4. We

take seriously the plaintiffs’ contentions that Senate Bill 3 will seriously

impact their mining operations with respect to at least some of their

mining claims. But the plaintiffs’ own declarations make clear that Senate

Bill 3 is not a ban on mining.

8 The dissenting opinion characterizes us as treating this language as

“non-binding dicta (Dissent 58 n.2),” but that is not the case. In addition,

the dissent’s theory that a distinction between regulations dictating “uses”

and regulations dictating “standards” would provide a “clear line between

land use planning and environmental regulation” (Dissent 58) eludes us. 

Would a regulation limiting the size of suction dredge hoses prohibit a

“use” (of larger hoses) or prescribe a “standard” (on the size of the hose

and, consequently, the volume of material to be dredged)? Would a

regulation limiting the size of the vehicles miners could use to reach their

claims prohibit a “use” (of heavy vehicles) or prescribe a “standard” (on

the weight of vehicles and the resulting damage to the surface of the

forest)?
32 BOHMKER V. STATE OF OREGON

impact mining operations every bit or even more than

regulations restricting particular mining methods. The

plaintiffs concede, for example, that “Oregon’s water quality

standard for turbidity” constitutes a permissible, nonpreempted “environmental regulation” under Granite Rock. 

A stringent turbidity standard, however, might have a greater

adverse impact on the plaintiffs’ mining operations than

Senate Bill 3’s targeted restrictions on motorized mining.

Senate Bill 3 also is not part of Oregon’s extensive and

distinct land use system. That system requires the

development of comprehensive plans by local governments,

implemented through zoning, and reviewed by the Oregon

Land Conservation and Development Commission. Those

decisions, in turn, are reviewed by a State Land Use Board of

Appeals, which has developed significant land use case law. 

See generally Or. Rev. Stat. §§ 197.005–197.860,

215.010–215.990. Senate Bill 3 stands apart from that

regime.

The plaintiffs’ argument, moreover, overlooks Senate

Bill 3’s obvious and important environmental purpose.9 The

Oregon legislature adopted Senate Bill 3’s restrictions on

motorized mining “[i]n order to protect indigenous

anadromous salmonids and habitat essential to the recovery

9 Although the plaintiffs contend Oregon’s purpose in adoptingSenate

Bill 3 is irrelevant to the preemption analysis, our case law is to the

contrary. See Puente Ariz. v. Arpaio, 821 F.3d 1098, 1106 n.8 (9th Cir.

2016) (rejecting the proposition “that the state’s purpose in passing a

statute is not relevant to our preemption analysis, as both this court and the

Supreme Court have analyzed purpose in preemption cases”). In Granite

Rock, moreover, the Supreme Court expressly considered whether the

state’s “true purpose in enforcing a permit requirement [was] to prohibit

[the plaintiff’s] mining entirely.” Granite Rock, 480 U.S. at 588.
BOHMKER V. STATE OF OREGON 33

and conservation of Pacific lamprey.” 2017 Or. Laws ch.

300, § 4(2). “‘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). “‘Indigenous anadromous

salmonid’ means chum, sockeye, Chinook and Coho salmon,

and steelhead and cutthroat trout, that are members of the

family Salmonidae and are listed as sensitive, threatened or

endangered by a state or federal authority.” Id.

§ 196.810(1)(g)(C).

Similarly, in Senate Bill 838, the legislature found that

“[m]ining 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.” 2013 Or. Laws ch. 783, § 1(4). The

legislature found that, “[b]etween 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.” Id. § 1(5). It found that

“[t]he 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.” Id. § 1(6).

The plaintiffs’ attempts to cast doubt on Senate Bill 3’s

environmental purpose are unconvincing. They contend that

Senate Bill 3’s restrictions were not “required to advance any

bona fide environmental interest of the State of Oregon” and

instead were “primarily motivated by objections from other
34 BOHMKER V. STATE OF OREGON

users of the waterways.” Their evidence, however, fails to

substantiate these broad claims.

They rely, first, on two Oregon statutes, but neither one

undermines the Oregon legislature’s determination that

restrictions on motorized mining are necessary to protect fish

habitat. The first of these statutes, former Or. Rev. Stat.

§ 517.123(3), adopted in 1999, simply found that

“prospecting, small scale mining and recreational mining . . .

[c]an be conducted in a manner that is not harmful and may

be beneficial to fish habitat and fish propagation.” 1999 Or.

Laws ch. 354, § 2(3). There is, of course, no inconsistency

between the general finding that small scale mining can be

conducted in a non-harmful manner and Senate Bill 3’s

conclusion that it was necessary, “[i]n order to protect

indigenous anadromous salmonids and habitat essential to the

recovery and conservation of Pacific lamprey,” to restrict one

particular type of small scale mining – “motorized in-stream

placer mining” – in certain environmentally sensitive areas. 

2017 Or. Laws ch. 300, § 4(2). In any event, the Oregon

legislature repealed the 1999 finding in 2013, noting a

“significant[]” increase in motorized mining between 2007

and 2013 that “pose[d] significant risks to Oregon’s natural

resources, including fish and other wildlife.” 2013 Or. Laws

ch. 783, §§ 1(4)–(5), 10. The 1999 finding, therefore, does

nothing to undermine Senate Bill 3’s avowed and self-evident

environmental purpose.

The second statute upon which the plaintiffs rely, Or.

Rev. Stat. § 517.005, says only that

Technological advances in the mining

industry, coupled with reclamation efforts,

have greatly reduced the environmental
BOHMKER V. STATE OF OREGON 35

impacts of mining operations. The size and

scope of modern operations is such that the

operations do not cause interference with

other natural resource uses, particularly in an

area as vast as eastern Oregon.

Or. Rev. Stat. § 517.005(4). Because this provision pertains

to mining generally, and not to the particular environmental

concerns addressed by Senate Bill 3, it too does nothing

to undermine the validity of Senate Bill 3’s stated

environmental purpose.

Beyond these two statutes, the plaintiffs’ evidence

regarding Senate Bill 3’s purpose consists solely of a single

statement in the record by plaintiff Michael Hunter. Hunter

testified that, “[i]n [the Willamette Valley Miners’]

experience, the State of Oregon regulates in utter disregard to

the National interest in mineral development, instead seeking

to placate other user groups who resent, and desire to

eliminate the presence of miners on public lands.” Hunter

decl. ¶ 12. Even granting this statement may reflect Hunter’s

sincere personal opinion, it is wholly lacking in the specific

factual support that would be needed to create a genuine issue

of material fact as to Senate Bill 3’s purpose. See FTC v.

Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir.

1997) (as amended) (“A conclusory, self-serving affidavit,

lacking detailed facts and any supporting evidence, is

insufficient to create a genuine issue of material fact.”).

In sum, because Senate Bill 3 has a clear environmental

purpose, is tailored to that purpose, and does not prohibit

mining, choose land uses or fall within Oregon’s distinct land

use planning system, we hold that it is an environmental

regulation rather than a state land use planning law. Thus,
36 BOHMKER V. STATE OF OREGON

even assuming for purposes of our analysis that federal law

preempts the extension of state land use plans on federal

lands, Senate Bill 3 is not preempted.

Our dissenting colleague takes the view that any state

environmental regulation – whether in the form of a “use”

restriction or a “standard” – constitutes a “de facto land use

regulation preempted by federal law” whenever it renders

regulated mining claims commerciallyimpracticable. Dissent

70–71. Where a conflict exists between regulated mining

claims and a need to protect the environment, the mining

claims must always take precedence.

The dissent assures us that a commercial practicability

test would not undermine environmental protection because

it would affect only state regulation, not federal regulation. 

Dissent 69 (“Even if federal law preempts Oregon’s attempt

to apply Senate Bill 3 to federal lands, the miners must still

comply with all environmental laws and standards imposed

expressly by federal statutes and regulations.”). But this is

not how environmental protection on federal lands is

achieved. As Granite Rock recognizes, the federal scheme

relies on the states to provide environmental regulation of

mining claims on federal lands. Because federal law

“expressly contemplate[s] coincident compliance with state

as well as with federal law,” Granite Rock, 480 U.S. at 584,

“reasonable state environmental regulation is not preempted,” id. at 589. That is why the U.S. Departments of

Agriculture and the Interior, which are the federal agencies

charged with management and environmental protection of

the federal lands impacted by Senate Bill 3, have joined this

case on the side of Oregon, urging us to uphold Senate Bill 3

against the plaintiffs’ preemption challenge.
BOHMKER V. STATE OF OREGON 37

Underthe dissent’s commercial impracticabilitytest, even

a patently destructive method of mining would be permitted

as long as it represented the only commercially viable means

of extracting minerals from the ground, irrespective of the

havoc it would wreak on wildlife and habitat. This is the

mining “at all costs” approach that the plaintiffs expressly

disclaim. Reply Br. 29. We can find no support for that

approach in federal mining law or case law. On the contrary,

federal mining law, see, e.g., 30 U.S.C. § 21a, the Supreme

Court and the United States as amicus curiae all agree that

miningmust be pursued consistent with environmental needs,

not irrespective of environmental cost. That is why

“reasonable state environmental regulation is not preempted.” Granite Rock, 480 U.S. at 589. We respectfully

decline the dissent’s suggestion to hold that reasonable state

environmental regulation is preempted merely because it

renders regulated mining claims unprofitable. That approach

cannot be reconciled with the balance Congress has sought to

achieve.

2. Conflict Preemption: The Plaintiffs’ Argument That

Senate Bill 3 Is Preempted Because It Is

“Prohibitory” Rather Than “Regulatory”

We next consider the plaintiffs’ contention that Senate

Bill 3 is conflict preempted because it is “prohibitory” rather

than “regulatory” in its fundamental character. There is, of

course, some overlap between this argument and the field

preemption argument we have just addressed. In both

instances, the plaintiffs contend Senate Bill 3 is preempted

because it prohibits a particular mining method rather than

merely subjecting that mining method to an environmental

standard. Despite these similarities, however, we treat the

two arguments as distinct. The plaintiffs’ field preemption
38 BOHMKER V. STATE OF OREGON

argument is based on Granite Rock’s distinction between land

use planning on the one hand and environmental regulation

on the other. By contrast, their current argument – finding a

distinction between “prohibitory” and “regulatory” state

environmental regulation and deeming the former conflict

preempted – is largely based on South Dakota Mining

Association v. Lawrence County, 155 F.3d 1005 (8th Cir.

1998).

In South Dakota Mining, county voters approved an

ordinance that amended the county’s zoning laws to prohibit

the issuance of new or amended permits for surface metal

mining in the 40,000-acre Spearfish Canyon Area, 90 percent

of which fell within a national forest. See id. at 1006–07. 

The plaintiffs argued the ordinance was preempted because

it stood as an obstacle to the accomplishment of the full

purposes and objectives of Congress embodied in the Mining

Act of 1872. See id. at 1009.

“To determine the purposes and objectives that are

embodied in the Mining Act,” the Eighth Circuit considered

the language of the Mining and Minerals Policy Act of 1970,

30 U.S.C. § 21a, and the Mining Act itself, 30 U.S.C. § 22. 

As noted, § 21a states:

The Congress declares that it is the continuing

policy of the Federal Government in the

national interest to foster and encourage

private enterprise in (1) the development of

economically sound and stable domestic

mining, minerals, metal and mineral

reclamation industries, (2) the orderly and

economic development of domestic mineral

resources, reserves, and reclamation of metals
BOHMKER V. STATE OF OREGON 39

and minerals to help assure satisfaction of

industrial, security and environmental needs,

(3) mining, mineral, and metallurgical

research, including the use and recycling of

scrap to promote the wise and efficient use of

our natural and reclaimable mineral resources,

and (4) the study and development of methods

for the disposal, control, and reclamation of

mineral waste products, and the reclamation

of mined land, so as to lessen any adverse

impact of mineral extraction and processing

upon the physical environment that may result

from mining or mineral activities.

30 U.S.C. § 21a. The Mining Act, in turn, states:

Except as otherwise provided, all valuable

mineral deposits in lands belonging to the

United States, both surveyed and unsurveyed,

shall be free and open to exploration and

purchase, and the lands in which they are

found to occupation and purchase, by citizens

of the United States and those who have

declared their intention to become such, under

regulations prescribed by law, and according

to the local customs or rules of miners in the

several mining districts, so far as the same are

applicable and not inconsistent with the laws

of the United States.

Id. § 22. In light of these statutes, the Eighth Circuit

concluded the Mining Act embodies several congressional

purposes, including
40 BOHMKER V. STATE OF OREGON

the encouragement of exploration for and

mining of valuable minerals located on

federal lands, providing federal regulation of

mining to protect the physical environment

while allowing the efficient and economical

extraction and use of minerals, and allowing

state and local regulation of mining so long as

such regulation is consistent with federal

mining law.

South Dakota Mining, 155 F.3d at 1010.

The Eighth Circuit next considered whether the

challenged ordinance stood as an obstacle to these purposes

and objectives. At the outset, the court observed that,

because surface metal mining was the only practical way to

“actually mine the valuable mineral deposits located on

federal land in the area,” the ordinance was “a de facto ban on

mining in the area.” Id. at 1011. The court then held that, as

a de facto ban on mining, the ordinance was preempted:

The ordinance’s de facto ban on mining

on federal land acts as a clear obstacle to the

accomplishment of the Congressional

purposes and objectives embodied in the

Mining Act. Congress has encouraged

exploration and mining of valuable mineral

deposits located on federal land and has

granted certain rights to those who discover

such minerals. Federal law also encourages

the economical extraction and use of these

minerals. The Lawrence County ordinance

completely frustrates the accomplishment of

these federally encouraged activities. A local
BOHMKER V. STATE OF OREGON 41

government cannot prohibit a lawful use of

the sovereign’s land that the superior

sovereign itself permits and encourages. To

do so offends both the Property Clause and

the Supremacy Clause of the federal

Constitution. The ordinance is prohibitory,

not regulatory, in its fundamental character. 

The district court correctly ruled that the

ordinance was preempted.

Id. (emphasis added).

The plaintiffs discern from South Dakota Mining, and

from federal statutes governing mining, a general principle

that state environmental regulations are preempted,

categorically, whenever they are “prohibitory” rather than

“regulatory” in their “fundamental character.” “Even

prohibitions on the use of particular mining methods,” they

say, “create an obstacle to the full accomplishment of

Congressional purposes.” We disagree.

Like the United States, “[w]e would agree that were a

state to completely prohibit all mining activity on federal

lands, federal mining law would preempt the ban.” Brief of

the United States as Amicus Curiae 21. We cannot agree

with the plaintiffs, however, that conflict preemption in this

area turns on whether a state environmental regulation could

be viewed as “prohibitory” or “regulatory” in its

“fundamental character.” For one thing, as the government

explains, the distinction likely would be unworkable:

It is unclear how this Court would determine

whether [Senate Bill 3] is “prohibitory . . . in

its fundamental character.” South Dakota
42 BOHMKER V. STATE OF OREGON

Mining, 155 F.3d at 1005. Certainly it

prohibits some very specific types of mining

activity in very specific places . . . , but in the

process of identifying where its prohibitions

apply it seems “regulatory” in nature. In a

sense, [Senate Bill 3] is both regulatory and

prohibitory, but whether that makes it

preempted is a question to be answered by

long-established preemption law. Regardless

of whether a state regulatory prohibition is

considered “prohibitory” or “regulatory,” it is

permissible so long as it does not pose an

obstacle to Congressional purposes or make

compliance with federal law physically

impossible.

Id. at 22.10

We are not persuaded, moreover, that federal statutes

governingmining evince a congressional purpose to preempt,

categorically, state environmental regulations that are

“prohibitory” in their “fundamental character.”11 The Mining

Act of 1872, upon which the plaintiffs heavily rely, states

10 We have drawn a distinction between “regulatory” and

“prohibitory” laws in other contexts, but those analyses are not helpful

here. E.g., United States v. Dotson, 615 F.3d 1162, 1168 (9th Cir. 2010)

(Assimilative Crimes Act).

11 This conclusion is a consistent with a leading treatise on mining

law. See 5 American Law of Mining § 174.04[2][c] (2d ed. 2018) (noting

that “state law requirements prohibiting a federally authorized activity on

federal land are less likely to be upheld,” but “the Granite Rock decision

indicates that state law requirements that can be harmonized with federal

regulations may be enforceable”).
BOHMKER V. STATE OF OREGON 43

only that “all valuable mineral deposits in lands belonging to

the United States. . . shall be free and open to exploration and

purchase.” 30 U.S.C. § 22. The plaintiffs contend that this

statute’s “free and open” language “create[s] a Congressional

mining objective inconsistent with state-law based

prohibitions of mining activity.” But the Mining Act

expressly incorporates state regulation of mining activity,

stating that exploration authorized by the statute must occur

“under regulations prescribed by law.” Id.12 Nothing in the

12 Although the phrase “under regulations prescribed by law” applies

to state as well as federal law – a conclusion that follows from § 22’s later

reference to “laws of the United States,” see Corley v. United States,

556 U.S. 303, 315 (2009) – the plaintiffssuggest it incorporates only state

property law, not state environmental law, pointing out that a separate

provision of the Mining Act incorporates state law only with respect to

possessory title. See 30 U.S.C. § 26 (granting rights of possession and

enjoyment to locators who “comply with the laws of the United States,

and with State, territorial, and local regulations not in conflict with the

laws of the United States governing their possessory title” (emphasis

added)). But there is nothing surprising in the fact that § 26, a provision

addressing possessory title, refers only to state laws respecting title. This

tells us nothing about the scope of the state law incorporated by § 22,

which deals with the much broader subject of making federal lands free

and open to exploration. Indeed, that § 26 expressly limits the

incorporation of state law to laws respecting “possessory title,” and § 22

does not, supports the conclusion that the scope ofstate laws incorporated

by § 22 is not limited to those respecting title. See Russello v. United

States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes particular

language in one section of a statute but omits it in another section of the

same Act, it is generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.” (alteration in original)

(quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.

1972))); see also Rinehart, 377 P.3d at 824 (explaining that § 22’s

“express acknowledgement[] of the application of state and local law to

federal mining claims suggest[s] an apparent willingness on the part of

Congress to let federal and state regulation broadly coexist”).
44 BOHMKER V. STATE OF OREGON

Mining Act suggests a categorical distinction between

“prohibitory” and “regulatory” state laws.

We likewise find no support for the plaintiffs’ position in

the Surface Resources and Multiple Use Act of 1955. This

law gives the United States the right to manage surface

resources on unpatented mining claims, subject to the

important proviso that “any use of the surface of any such

mining claim by the United States, its permittees or licensees,

shall be such as not to endanger or materially interfere with

prospecting, mining or processing operations or uses

reasonably incident thereto.” 30 U.S.C. § 612(b) (emphasis

added). As with the Mining Act of 1872, nothing in this law

suggests Congress intended to draw a distinction between

“prohibitory” and “regulatory” measures. We have,

moreover, already held that this law permits environmental

regulations, such as Senate Bill 3, that prohibit the use of

particular mining methods. See United States v. Richardson,

599 F.2d 290, 291, 295 (9th Cir. 1979) (holding the Forest

Service could, without running afoul of § 612(b), require the

locators of unpatented mining claims on national forest lands

to use nondestructive methods of prospecting, where the

The plaintiffs’ reliance on 30 U.S.C. § 28 is similarly unpersuasive. 

That provision requires locators to perform annual work on their

unpatented claims to maintain their exclusive rights. See 30 U.S.C. § 28. 

Nothing in Senate Bill 3 precludes miners from performing work on or

making improvements to their claims, and to the extent miners elect not

to perform work because state environmental regulation makes working

or improving their claims unprofitable, that scenario is as likely to arise

from a “regulatory” measure as it is from a “prohibitory” one.
BOHMKER V. STATE OF OREGON 45

locators’ utilization of blasting and bulldozing was

destructive to the surface resources).13

The plaintiffs’ argument similarly finds no support in the

Mining and Minerals Policy Act of 1970. Under this law:

The Congress declares that it is the continuing

policy of the Federal Government in the

national interest to foster and encourage

private enterprise in (1) the development of

economically sound and stable domestic

mining, minerals, metal and mineral

reclamation industries, (2) the orderly and

economic development of domestic mineral

resources, reserves, and reclamation of metals

and minerals to help assure satisfaction of

industrial, security and environmental needs,

(3) mining, mineral, and metallurgical

research, including the use and recycling of

scrap to promote the wise and efficient use of

our natural and reclaimable mineral resources,

13 We also find nothing in the 1955 law to suggest Congress intended

to limit state environmental regulation. On its face, § 612(b) imposes

limits on only the federal government, not states, and it expressly

preserves state water quality controls:

[N]othing in this subchapter . . . shall be construed as

affecting or intended to affect or in any way interfere

with or modify the laws of the States which lie wholly

or in part westward of the ninety-eighth meridian

relating to the ownership, control, appropriation, use,

and distribution of ground or surface waters within any

unpatented mining claim.

30 U.S.C. § 612(b).
46 BOHMKER V. STATE OF OREGON

and (4) the study and development of methods

for the disposal, control, and reclamation of

mineral waste products, and the reclamation

of mined land, so as to lessen any adverse

impact of mineral extraction and processing

upon the physical environment that may result

from mining or mineral activities.

30 U.S.C. § 21a (emphasis added).

The plaintiffs read this statutory language to suggest that

Congress intended to meet the nation’s environmental needs

solely through the process of reclamation, not through

regulation of mining itself. This reading, however, lacks any

basis in the statutory text or in case law. The plaintiffs

alternatively look to the statute’s reference to “lessen[ing]”

adverse environmental impacts. They contend “[l]essening

impact is a regulatory action,” distinct from prohibiting

mining activities. We again disagree. The statute’s reference

to lessening impacts relates solely to reclamation. In any

event, regulators can lessen impacts through either

“prohibitory” or “regulatory” action. E.g., Richardson,

599 F.2d at 295.

The plaintiffs’ reliance on the Surface MiningControl and

Reclamation Act of 1977 is equally flawed. This law allows

a state to ask the Secretary of the Interior to declare

residential areas unsuitable for mining. See 30 U.S.C.

§ 1281. The plaintiffs contend that “Congress’ provision of

this and other federal processes for resolving state/federal

conflict over mining on federal land is utterly inconsistent

with any Congressional intent to allow states to simply

prohibit the mining themselves.” We agree, of course, that

states cannot simply prohibit mining on federal lands. But
BOHMKER V. STATE OF OREGON 47

nothing in § 1281 suggests Congress intended to preempt

environmental regulations prohibiting particular mining

methods in specified, environmentally sensitive areas.

The plaintiffs’ reliance on federal land management

statutes suffers from similar problems. The Supreme Court

has examined these statutes and concluded that Congress did

not intend by these laws to preempt reasonable state

environmental regulation. See Granite Rock, 480 U.S. at

582–93. Nothing in these statutes, moreover, suggests a

distinction between “prohibitory” and “regulatory” state

environmental regulation.

In sum, the plaintiffs’ proposed distinction between

regulations that are “prohibitory” or “regulatory” in their

“fundamental character” is neither workable nor grounded in

the federal statutes upon which the plaintiffs rely. We find in

these statutes no indication that Congress intended to preempt

state environmental regulation merely because it might be

viewed as “prohibitory.” We therefore reject the plaintiffs’

contention 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.14

14 This conclusion is consistent with the California Supreme Court’s

recent decision in Rinehart, 377 P.3d 818, cert. denied sub nom. Rinehart

v. California, 138 S. Ct. 635 (2018). In rejecting a conflict preemption

challenge to a California law prohibiting suction dredge mining in order

to protect endangered coho salmon habitats, Rinehart concluded that

“[t]he federal statutory scheme does not prevent states from restricting the

use of particular mining techniques based on their assessment of the

collateral consequences for other resources.” Id. at 829.
48 BOHMKER V. STATE OF OREGON

This conclusion does not place us at odds with South

Dakota Mining. Although the Eighth Circuit drew a

distinction between “prohibitory” and “regulatory” measures,

it did so in the context of a county ordinance amounting to a

“de facto ban on mining” that applied broadly and

indiscriminately to federal lands within the county. 155 F.3d

at 1011. The ordinance at issue effectively prohibited

mining, covered 40,000 acres, targeted federal lands

(90 percent of the land affected by the ban was in a national

forest), lacked any environmental purpose and was part of the

county’s zoning law. Senate Bill 3, by contrast, is not part of

Oregon’s zoning law, is not a de facto ban on mining, has an

express environmental purpose, does not single out federal

land and carefully targets only designated essential salmonid

habitat. Whereas the ordinance in South Dakota Mining was

an attempt by county voters to overrule federal land use

decisions, Senate Bill 3 complements those decisions by

playing the traditional role served by state environmental

regulation. See, e.g., 36 C.F.R. § 228.8(a)–(c); 43 C.F.R.

§§ 3809.3, 3809.420(b)(4)–(6). Were Senate Bill 3 an

encroachment on federal land use decisions, we would expect

the United States to say so. The United States, however,

takes the position that Senate Bill 3 “is not preempted by

federal law.” Brief of the United States as Amicus Curiae

28.15

The plaintiffs’ reliance on Skaw v. United States, 740 F.2d

932 (Fed. Cir. 1984), Ventura County v. Gulf Oil Corp.,

601 F.2d 1080 (9th Cir. 1979), Brubaker v. Board of County

15 The United States’ amicus brief is filed on behalf of the U.S.

Department of the Interior, the U.S. Department of Agriculture and the

U.S. Department of Justice’s Environment and Natural Resources

Division.
BOHMKER V. STATE OF OREGON 49

Commissioners, El Paso County, 652 P.2d 1050 (Colo. 1982),

State ex rel. Andrus v. Click, 554 P.2d 969 (Idaho 1976), and

Elliott v. Oregon International Mining Co., 654 P.2d 663 (Or.

Ct. App. 1982), does not require a different conclusion. Each

case predates the Supreme Court’s holding in Granite Rock

that reasonable state environmental regulation is not

preempted by federal law. See Granite Rock, 480 U.S. at

589; Rinehart, 377 P.3d at 829. Similar to South Dakota

Mining, moreover, most of these cases involved improper

attempts by local governments to displace, rather than

supplement, federal land use decisions. See Ventura County,

601 F.2d at 1084–85 (precluding the county from applying

“land use planning controls” “in an attempt to substitute its

judgment for that of Congress”); Brubaker, 652 P.2d at 1059

(“This is not denial of a permit because of failure to comply

with reasonable regulations supplementing the federal mining

laws, but reflects simply a policy judgment as to the

appropriate use of the land.”); Elliott, 654 P.2d at 665, 668

(barring the application of county zoning laws prohibiting

mining because they did “not simply supplement federal

mining law”). In addition, Ventura County involved the

Mineral Lands Leasing Act of 1920, not the laws at issue

here, and, in contrast to the case before us, the drilling

operations at issue in Ventura County were subject to

“detailed [federal] supervision” and an “extensive federal

scheme reflecting concern for the local environment.” 

601 F.2d at 1084.

3. Conflict Preemption: The Plaintiffs’ Argument That

Senate Bill 3 Does Not Constitute Reasonable

Environmental Regulation

We have consistently held that Congress intended to

permit reasonable environmental regulation of mining claims
50 BOHMKER V. STATE OF OREGON

on federal lands. In United States v. Weiss, 642 F.2d 296 (9th

Cir. 1981), for example, after considering the purposes

underlying the Mining Act of 1872 and the Organic Act of

1897, including 16 U.S.C. §§ 475, 478 and 551, we

concluded:

The Secretary of Agriculture has been given

the responsibility and the power to maintain

and protect our national forests and the lands

therein. While prospecting, locating, and

developing of mineral resources in the

national forests may not be prohibited nor so

unreasonably circumscribed as to amount to a

prohibition, the Secretary may adopt

reasonable rules and regulations which do not

impermissibly encroach upon the right to the

use and enjoyment of placer claims for mining

purposes.

642 F.2d at 299. In United States v. Shumway, 199 F.3d 1093

(9th Cir. 1999), where we considered not only the Mining Act

and the Organic Act but also the “endanger or materially

interfere” standard embodied in 30 U.S.C. § 612(b), we once

again held that “the Forest Service may regulate use of

National Forest lands by holders of unpatented mining claims

. . . to the extent that the regulations are ‘reasonable’ and do

not impermissibly encroach on legitimate uses incident to

mining and mill site claims.” 199 F.3d at 1107.

Congress, moreover, clearly intended reasonable state

environmental regulation to govern mining on federal lands. 

In Granite Rock, the Supreme Court held that “reasonable

state environmental regulation is not pre-empted.” 480 U.S.

at 589; see also id. at 593. The plaintiffs do not dispute that
BOHMKER V. STATE OF OREGON 51

a reasonableness standard applies here, but they argue that

Senate Bill 3 is preempted because it constitutes an

unreasonable environmental regulation.

The plaintiffs’ arguments regarding unreasonableness

echo those we have already considered. They contend Senate

Bill 3 is an unreasonable regulation because it prohibits a

particular method of mining in designated habitat, rather than

subjecting that mining to a “prescribed limit” or pollution

standard, and because it allegedly was “enacted for reasons

expressly beyond protection of the environment.” We have

already addressed these arguments. The preemption analysis

does not turn on a formalistic distinction between

“prohibitory” and “regulatory” measures, and the plaintiffs’

evidence does not create a genuine dispute as to Senate

Bill 3’s important environmental purpose. We recognize 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. We agree with the United States, however, that in

this case that line has not been crossed. As the government

explains, “[a] state law such as [Senate Bill 3] that is clearly

intended to protect the natural environment by prohibiting the

use of particular mining methods or equipment in carefully[]

designated locations is not so at odds with Congress’s

purposes that it is preempted by federal law.” Brief of the

United States as Amicus Curiae 2–3.

4. The Plaintiffs’ Argument That Genuine Issues of

Material Fact Preclude Summary Judgment

The plaintiffs argue that genuine issues of material fact

preclude summary judgment in favor of the state. For
52 BOHMKER V. STATE OF OREGON

purposes of our de novo review of the summary judgment

record, however, we have viewed the evidence in the light

most favorable to the plaintiffs, and we have assumed –

solely for purposes of determining whether Oregon is entitled

to judgment as a matter of law – that Senate Bill 3 will have

a significant adverse impact on the mining operations of the

plaintiffs, making it effectively impossible for at least some

of them to recover the valuable mineral deposits present on

their claims. The only material dispute is whether, assuming

these facts, Senate Bill 3 is preempted. Because that issue is

one of law, summary judgment is appropriate. See Inland

Empire Chapter of Associated Gen. Contractors of Am. v.

Dear, 77 F.3d 296, 299 (9th Cir. 1996) (holding a “finding of

no preemption is a legal question”).16

CONCLUSION

The district court properly rejected the plaintiffs’

preemption claims. We hold that Senate Bill 3 is not

preempted by federal law. The judgment of the district court

is therefore affirmed.

AFFIRMED.

16 Contrary to the dissent, we do not today question the validity of asapplied preemption challenges. Dissent 66 & n.7.
BOHMKER V. STATE OF OREGON 53

N.R. SMITH, Circuit Judge, dissenting:

The National Forest Management Act of 1976 (NFMA),

Pub. L. No. 94-588, 90 Stat. 2949 (1976), and the Federal

Land Policy and Management Act of 1976 (FLPMA), Pub. L.

No. 94-579, 90 Stat. 2743 (1976), occupy the field of land use

planning regulation on federal lands. Because 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. See Cal.

Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 586–88

(1987). Therefore, I must dissent.

I.

Although technically an open question, there is little

dispute that Congress has occupied the field of land use

planning on federal lands through its enactment of NFMA

and FLPMA.1See id. at 585 (“For purposes of this discussion

and without deciding this issue, we may assume that the

combination of the NFMA and the FLPMA pre-empts the

extension of state land use plans onto unpatented mining

claims in national forest lands.”); id. at 612–13 (Scalia, J.,

dissenting) (“The Court is willing to assume that California

lacks such authority on account of [NFMA] and [FLPMA]. I

believe that assumption is correct.”).

Field preemption arises when “federal law so thoroughly

occupies a legislative field as to make reasonable the

1 The majority (like the court in Granite Rock) assumes this point

without deciding it. I address the merits ofthe issue because it is necessary

to my determination that federal law preempts Senate Bill 3.
54 BOHMKER V. STATE OF OREGON

inference that Congress left no room for the States to

supplement it.” Nat’l Fed’n of the Blind v. United Airlines

Inc., 813 F.3d 718, 733 (9th Cir. 2016) (internal quotation

marks omitted) (quoting Cipollone v. Liggett Grp., Inc.,

505 U.S. 504, 516 (1992)). “The essential field preemption

inquiry is whether the density and detail of federal regulation

merits the inference that any state regulation within the same

field will necessarily interfere with the federal regulatory

scheme.” Id. at 734. To make this determination, our cases

require first “delineat[ing] the pertinent regulatory field.” Id.

We have “emphasized the importance of delineating the

pertinent area of regulation with specificitybefore proceeding

with the field preemption inquiry.” Id. Here the pertinent field

involves any land use regulation of federal lands.

The next step in our analysis requires us to “survey the

scope of the federal regulation within th[is] field.” Id. Here,

the relevant statutes are NFMA and FLPMA. Taken together,

these statutes establish a comprehensive regulatoryregime for

land use planning on federal lands, including the role of states

in the planning process. First, NFMA vests the authority to

enact federal land use plans with respect to forest service

lands in the Secretary of Agriculture, and FLPMA vests the

authority to enact federal land use plans with respect to all

other federal land in the Secretary of the Interior. 16 U.S.C.

§ 1604(a) (“[T]he Secretary [of Agriculture] shall develop,

maintain, and, as appropriate, revise land and resource

management plans for units of the National Forest System

. . . .”); 43 U.S.C. § 1712(a) (“The Secretary [of the Interior]

shall, with public involvement and consistent with the terms

and conditions of this Act, develop, maintain, and, when

appropriate, revise land use plans which provide by tracts or

areas for the use of the public lands. Land use plans shall be

developed for the public lands regardless of whether such
BOHMKER V. STATE OF OREGON 55

lands previously have been classified, withdrawn, set aside,

or otherwise designated for one or more uses.”).

Second, NFMA and FLPMA expresslydesignate the level

of state participation contemplated by federal law. See

16 U.S.C. § 1604(a); 43 U.S.C. § 1712(c)(9). NFMA requires

“coordin[ation] with the land and resource management

planning processes of State and local governments and other

Federal agencies.” 16 U.S.C. § 1604(a). FLPMA requires

similar coordination with states, but the requirement is

limited “to the extent consistent with the laws governing the

administration of public lands.” 43 U.S.C. § 1712(c)(9).

Moreover, FLPMA directs that the Secretary of the Interior

shall, to the extent he finds practical, keep

apprised of State, local, and tribal land use

plans; assure that consideration is given to

those State, local, and tribal plans that are

germane in the development of land use plans

for public lands; assist in resolving, to the

extent practical, inconsistencies between

Federal and non-Federal Government plans,

and shall provide for meaningful public

involvement of State and local government

officials, both elected and appointed, in the

development of land use programs, land use

regulations, and land use decisions for public

lands, including early public notice of

proposed decisions which may have a

significant impact on non-Federal lands.

Id. (emphasis added). As Justice Scalia noted in Granite

Rock, agreeing (in his dissent) with the majority’s assumption

of preemption, these “requirements would be superfluous,
56 BOHMKER V. STATE OF OREGON

and the limitation upon federal accommodation meaningless,

if the States were meant to have independent land use

authority over federal lands.” 480 U.S. at 613 (Scalia, J.,

dissenting).

Thus, the combination of NFMA and FLPMA occupy the

field of land use regulation on federal lands. Accordingly,

federal law preempts the extension of any state land use

planning regulation or ordinance onto federal lands. Arizona

v. United States, 567 U.S. 387, 401 (2012) (“Where Congress

occupies an entire field . . . even complementary state

regulation is impermissible. Field preemption reflects a

congressional decision to foreclose any state regulation in the

area, even if it is parallel to federal standards.”).

II.

Assuming that NFMA and FLPMA occupied the field of

federal land use regulation, Granite Rock identified the legal

framework for determining whether state environmental

regulation impermissibly enters the congressionally occupied

field of federal land use planning. First, the Court identified

the dividing line between environmental regulation and land

use planning. “Land use planning in essence chooses

particular uses for the land; environmental regulation, at its

core, does not mandate particular uses of the land but requires

only that, however the land is used, damage to the

environment is kept within prescribed limits.” Granite Rock,

480 U.S. at 587. The Court also made clear that the inquiry

requires examination not simply of the text of the law, but of

its practical effect. “The line between environmental

regulation and land use planning will not always be bright;

for example, one may hypothesize a state environmental
BOHMKER V. STATE OF OREGON 57

regulation so severe that a particular land use would become

commercially impracticable.” Id.

The plaintiff miners and mining organizations

(collectively “the miners”) challenge Senate Bill 3 on both

grounds. They assert that Senate Bill 3 impermissibly

(A) identifies a particular use of the land that is prohibited

without reference to an identifiable environmental standard

and (B) renders mining within the identified zones

impracticable. Both arguments have merit.

A.

Granite Rock instructs that “environmental regulation, at

its core, . . . requires only that, however the land is used,

damage to the environment is kept within prescribed limits.”

Id. (emphasis added) By contrast land use regulation

identifies or restricts “particular uses” of land. Id.

A brief review of the text of Senate Bill 3 reveals its true

character as a land use regulation. The operative language

reads “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). The operative language

identifies particular tracts of land and prohibits a particular

use of these lands. The operative language does not identify

a “prescribed limit[]” on “damage to the environment” that

must be avoided “however the land is used.” Granite Rock,

480 U.S. at 587. Accordingly, federal law preempts Senate
58 BOHMKER V. STATE OF OREGON

Bill 3 as an improper attempt to extend a state land use

regulation onto federal land.

The majority disagrees for four reasons: (1) Senate Bill 3

permits non-motorized mining, (2) it is not located in the land

use section of the Oregon state code, (3) it has an

environmental purpose, and (4) it is reasonably tailored to

accomplish the environmental purpose without unduly

interferingwith mining operations. The majority’s arguments

lack merit for the reasons set forth below.

1.

The majority first asserts (without any citation or

authority) that, because Senate Bill 3 restricts only one type

of mining, it is not a land use planning regulation. The

majority’s analysis not only conflicts with Supreme Court

precedent in Granite Rock, but it also erases any clear line

between land use planning and environmental regulation.

The majority criticizes the Granite Rock principle that

environmental regulation “at its core” “prescribe[s]limits” on

“damage to the environment” (“however the land is used”).

Granite Rock, 480 U.S. at 587.2 To the majority, this

2 The majority goes so far as to assert that the Granite Rock standard

is somehow non-binding dicta. See Maj. at 31 (“Granite Rock does not

hold that only standards, not restrictions on activities, are permissible

environmental regulation.”). Granite Rock fully analyzed the distinction

between environmental regulation and land use planning, and the

framework it announced was necessary to its holding. 480 U.S. at 585–89.

Because the court assumed that land use planning regulation was

preempted, it was necessary to decide whether California’s permitting

system was a land use planning regulation or an environmental regulation.

Id. at 586. The Court applied the Granite Rock framework and determined
BOHMKER V. STATE OF OREGON 59

distinction is “formalistic” and “make[s] no sense.” Maj. at

31. Yet, a line must be drawn, because “Congress has

indicated its understanding of land use planning and

environmental regulation as distinct activities.” GraniteRock,

480 U.S. at 587.

Far from being nonsense, the formalism of the Granite

Rock line makes it clear and easy to apply in deciding facial

challenges to state environmental laws.3 Moreover, the

majority offers no alternative standard for drawing a line

between environmental regulation (not ordinarily preempted)

and land use regulation (always preempted). Without a

standard, the majority has no basis to reject the miners’

challenge.

that California’s permit system was a means of identifying environmental

standards to be applied to the mining operation, not an attempt to regulate

particular uses of the land at issue. See id. at 586 (“While the [California

law] gives land use as well as environmental regulatory authority to the

Coastal Commission, the state statute also gives the Coastal Commission

the ability to limit the requirements it will place on the permit. . . . Since

the state statute does not detail exactly what state standards will and will

not apply in connection with various federal activities, the statute must be

understood to allowthe Coastal Commission to limit the regulations it will

impose in those circumstances.” (emphasis added)). This is plainly

sufficient to bind our decision here. Cf. Cetacean Cmty. v. Bush, 386 F.3d

1169, 1173 (9th Cir. 2004) (“[W]here a panel confronts an issue germane

to the eventual resolution of the case, and resolves it after reasoned

consideration in a published opinion, that ruling becomes the law of the

circuit, regardless of whether doing so is necessary in some strict logical

sense.” (citation omitted)).

3 The suction hose size and vehicle weight hypotheticals raised by the

majority are not difficult cases under the clear line drawn in Granite Rock.

Neither regulation identifies an environmental standard to be achieved.
60 BOHMKER V. STATE OF OREGON

Specifically, the majority’s suggestion that the law is

permissible because it regulates only one means of mining

begs the question of the appropriate level of generality at

which a law must prohibit a particular use to be deemed a

land use planning regulation. Does land use planning involve

only broad categories of uses, for example commercial versus

noncommercial uses? Or can land use planning also include

dividing tracts for commercial fishing from those for

commercial mining? Would a law prohibiting the use of any

mining tools (motorized or not) within identified zones

amount to environmental regulation or land use planning?

What if the law also required miners to tie one hand behind

their backs? The majority’s bare assertion that prohibiting a

type of mining does not amount to regulating “particular uses

for the land” fails to articulate a meaningful standard and flies

in the face of framework set forth in Granite Rock. 480 U.S.

at 587.4

The premise of the majority’s insistence that the Granite

Rock line is nonsense also lacks merit. See Maj. at 31. In

4 The majority notes that many of the miners are still able to mine

other portions of their claims or are still permitted to mine by hand in the

zones covered by the law. I know of no authority for the proposition that

a law ceases to be a land use plan simply because it governs only a subset

of land, and not all land. Indeed, most land use plans divide land into

different zones prescribing a different set of permissible uses for each

zone. Accordingly, the fact that some miners have in-stream as well as

out-of-stream operations (or operations inside and outside of essential

salmonid habitat) matters not at all in our determination of whether Senate

Bill 3 is a land use regulation. Likewise, the fact that the law permits

mining by hand does not mean its prohibition on motorized mining is not

a land use ordinance. Land use plans regulate particular uses all the time.

For example, a land use plan might specify that within a residential

neighborhood in-home businesses are permitted, but office buildings are

not.
BOHMKER V. STATE OF OREGON 61

addition to being clear, the line drawn in Granite Rock serves

important functions. For example, standards identify an

environmental end to be achieved and offer a means of

measuring the degree to which a particular use conflicts with

an environmental objective. They are also facially neutral

towards varying uses of the land. The majority is right that

environmental regulations certainly can impact mining

practicability. But the Supreme Court made clear that this

impact matters only in the exceptional circumstance where an

environmental standard is “so severe” as to render anymining

within an identified zone “commercially impracticable.” See

Granite Rock, 480 U.S. at 587. The possibility of a narrow

exception, does not eliminate the value of the general rule. I

address this narrow exception in greater detail in Part II.B.

The Supreme Court meaningfully considered the difficult

issue of how to discern land use regulations from

environmental ones. The majority errs in failing to follow its

instruction. Applying the Granite Rock framework here,

Senate Bill 3 is a land use regulation that is preempted as

applied to federal lands.

2.

The majority next asserts that Senate Bill 3 is not a land

use regulation, because it is codified outside the sections of

the Oregon Code governing land use planning. However, I

know of no canon of construction (and the majority cites

none) that suggests that a law’s placement within the code

can override the substantive import of its text. Further, there

are other Oregon land use statutes outside the code sections

the majority identifies. See, e.g., Or. Rev. Stat. § 390.250

(authorizing land use planning “to promote the public scenic,

park and recreational use of lands along Bear Creek”); Or.
62 BOHMKER V. STATE OF OREGON

Rev. Stat.§ 390.308 (authorizing land use planning to

complete the “Oregon Coast Trail”); Or. Rev. Stat. § 390.112

(“The State Parks and Recreation Department shall propose

to the State Parks and Recreation Commission additional

criteria for the acquisition and development of new historic

sites, parks and recreation areas.”).

3.

The majority next asserts that Senate Bill 3 is an

environmental regulation because of its “obvious and

important environmental purpose.” Maj. at 32. To be sure,

the prefatory language in Senate Bill 3 identifies an

environmental purpose “to protect indigenous anadromous

salmonids and habitat essential to the recovery and

conservation of Pacific lamprey.” 2017 Or. Laws ch. 300,

§ 4(2).5 But many land use plans have environmental

5

 The majority also cites legislative findings that “[m]ining 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.” 

2013 Or. Laws ch. 783, § 1(4). Maj. at 33. Yet there is little substance to

this finding. The legislature identified only the possibility of

environmental harm because it used the language “can pose significant

risks.” Id. (emphasis added). Almost anything “can pose significant risks”

to the environment. Nothing in these findings suggests that any form of

motorized mining necessarily causes an adverse effect on wildlife

resources. Like the prefatory language in Senate Bill 3, this language does

not purport to identify an environmental standard to be achieved. The

same is true for the majority’s other citations to Oregon law. See Maj. at

32.
BOHMKER V. STATE OF OREGON 63

purposes as well.6 Systems of national parks, state parks, and

designated wilderness areas are prime examples of land use

planning aimed at accomplishing obvious and important

environmental purposes.

Here, the means of accomplishing the environmental

purpose undisputedly prohibit a particular use of the land,

without reference to an environmental standard to be

achieved. Unlike the permit system in Granite Rock, this law

does not involve a flexible regime that “must be understood

to allow [Oregon] to limit the regulations it will impose” in

a manner consistent with allowing permissible federal mining

to continue. See Granite Rock, 480 U.S. at 586.

In contrast to Senate Bill 3, the federal regulations

governing mining on public lands cited by the majority are

good examples of standards based environmental regulation.

Maj. at 22. Each identifies environmental standards to be

achieved, rather than particular uses to be prohibited. See,

e.g., 36 C.F.R. § 228.8 (identifying federal and state air,

water, and solid waste standards that must be complied with

and requiring operators to “take all practicable measures to

maintain and protect fisheries and wildlife habitat which may

be affected by the operations” (emphasis added)); 43 C.F.R.

§ 3809.3 (requiring operators to follow “a higher standard”

under state law if one has been enacted (emphasis added));

43 C.F.R. § 3809.420(b) (identifying federal and state air,

water, and solid waste standards that must be complied with

6 As the majority notes, purpose is certainly relevant to our

preemption analysis. See Maj. at 32 n.9. But nothing in our cases suggests

that a genuine purpose can innoculate a law that substantively intrudes on

a field preempted by Congress. The majority’s emphasis on purpose

proves too little.
64 BOHMKER V. STATE OF OREGON

and requiring operators to “take such action as may be needed

to prevent adverse impacts to threatened or endangered

species, and their habitat which may be affected by

operations” (emphasis added)).

Simply, the environmental purpose behind Senate Bill 3

does not identify an environmental standard. Indeed, nothing

in the law’s text (or the record in this case) indicates that

motorized mining—in any form or at any scale—necessarily

causes harm to indigenous anadromous salmonids or Pacific

lamprey. On its face, Senate Bill 3 would prohibit a

motorized mining operation irrespective of the miner’s

compliance with all state and federal environmental

standards, including the federal Endangered Species Act,

National Environmental Policy Act, and Clean Water Act.

This remains true, even if federal (or state) environmental

review determines that the net effect of a motorized-mining

operation is positive for anadromous salmonids and Pacific

lamprey. Senate Bill 3 simply mandates that—irrespective of

the actual environmental impact—motorized mining is a

prohibited use of land in the identified zones. Congress has

preempted this type of intrusion into the field of federal land

use planning.

4.

Lastly, the majority persistently makes the bare assertion

that federal law does not preempt Senate Bill 3, because it is

“tailored to” its environmental purpose. See Maj. at 27

(asserting (without elaboration) that the law is “tailored to

achieve its environmental purpose without unduly interfering

with mining operations”); Maj. at 35 (concluding that Senate

Bill 3 “is tailored” to its environmental purpose). The

majority cites no legal authority (and I am aware of none) for
BOHMKER V. STATE OF OREGON 65

the proposition that federal preemption analysis includes an

assessment of the fit between the substance of a state law and

its stated purpose.

Further, the majority fails to explain how it reaches its

reasonably tailored conclusion. As to the merits of the

majority’s conclusion that the law is reasonably tailored, I

have my doubts. First, the parties have not argued the issue

one way or the other.

Second, the tailoring issue necessarily turns on facts that

are disputed or not in evidence, including the extent to which

motorized mining negativelyimpacts fish habitat and whether

there are some means of motorized mining that would not

adversely impact fish habitat. A tailoring analysis would

involve actually assessing the degree to which a law advances

its stated purpose (i.e. the state’s interest). Cf., e.g., Italian

Colors Rest. v. Becerra, 878 F.3d 1165, 1178 (9th Cir. 2018)

(discussing narrow tailoring as an analysis focused on the

degree of fit between ends and means). Yet, the majority

appears to use the laws’ stated purpose as the premise for its

reasonable tailoring conclusion. Good intentions are never

enough to establish that a law is properly tailored. Cf. id.

(striking down a commercial speech restriction because there

were alternatives that “would restrict less speech and would

more directly advance California’s asserted interest in

preventing consumer deception”).

It remains unclear to me how a tailoring analysis aids us

in deciding the preemption question. But to the extent the

inquiry is relevant, the obvious and less restrictive regulation

here would be to simply require that mining activity in

essential habitat areas be conducted in a manner that does not

adverselyaffect fish habitat—thus prohibiting non-motorized
66 BOHMKER V. STATE OF OREGON

mining adverse to fish populations and permitting motorized

mining that can be conducted consistent with requirement to

preserve essential habitat.

B.

Federal law not only preempts Senate Bill 3 on its face,

but the miners also identified disputed issues of material fact

precluding summary judgment on their Granite Rock asapplied preemption challenge. Contrary to the majority’s

suggestion, Maj. at 50, the law recognizes as-applied

preemption challenges that turn on the effect in operation of

the allegedly preempted state law. Gade v. Nat’l Solid Wastes

Mgmt. Ass’n, 505 U.S. 88, 105 (1992) (“Although ‘part of the

pre-empted field is defined by reference to the purpose of the

state law in question, . . . another part of the field is defined

by the state law’s actual effect.’” (alterations in original)

(quoting English v. Gen. Elec. Co., 496 U.S. 72, 84 (1990)));

id. (“In assessing the impact of a state law on the federal

scheme, we have refused to rely solely on the legislature’s

professed purpose and have looked as well to the effects of

the law.”).7

7 Many other cases recognize as-applied preemption challenges. See,

e.g., Gobeille v. Liberty Mut. Ins. Co., 136 S. Ct. 936, 943–45 (2016)

(identifying factual issues like the “‘acute, albeit indirect, economic

effects’ of [a] state law” as one mechanism for showing a state law is

preempted by ERISA (citation omitted)); Adrian & Blissfield R.R. Co. v.

Vill. of Blissfield, 550 F.3d 533, 540 (6th Cir. 2008) (identifying

circumstances for proving a law is “preempted as applied” and

“requir[ing] a factual assessment” (emphasis in original, internal quotation

marks and citations omitted)); New Orleans & Gulf Coast Ry. Co. v.

Barrois, 533 F.3d 321, 332 (5th Cir. 2008) (same). Compare Puente

Arizona v. Arpaio, 821 F.3d 1098, 1110 (9thCir. 2016) (remanding a case

for consideration of the as-applied preemption challenge), with Puente

Arizona v. Arpaio, No. CV-14-01356-PHX-DGC, 2016 WL 6873294, at
BOHMKER V. STATE OF OREGON 67

Granite Rock expressly recognized this possibility in the

context of state environmental regulation versus land use

planning. 480 U.S. at 587. As the court noted, “[t]he line

between environmental regulation and land use planning will

not always be bright; for example, one may hypothesize a

state environmental regulation so severe that a particular land

use would become commercially impracticable.” Id. The

Court went on to endorse “reasonable state environmental

regulation” as not preempted by federal law. Id. at 589.

Whether dicta or holding, these statements by the Supreme

Court reach the correct conclusion. Because Congress has

occupied the field of land use planning, federal law preempts

any environmental regulation that (when applied to federal

land) has the effect of prohibiting (for all practical purposes)

a particular land use in the regulated zone. To hold otherwise

would allow an end-run around federal preemption.

Here, the miners contend that mining without motors is (if

not impossible) entirely impracticable within the in-stream

zones governed by Senate Bill 3. Thus, they argue the law has

the effect of prohibiting mining within the regulated area. At

oral argument, the State essentially conceded this fact. United

States Court of Appeals for the Ninth Circuit, 16-35262

Joshua Bohmker v. State of Oregon, YouTube (Mar. 8, 2018),

https://youtu.be/IrC_pz9CNh4, at 21:09 to 21:15, 24:00 to

25:00 (acknowledging that Senate Bill 3 effectively prohibits

mining in the in-stream areas governed by the law). Thus, the

miners argue that entry of summary judgment is

inappropriate.

*7–13 (D. Ariz. Nov. 22, 2016) (conducting an as-applied preemption

analysis and concluding that the law was field preempted as applied to a

narrow set of prohibited conduct).
68 BOHMKER V. STATE OF OREGON

The majority suggests that the miners waived this

challenge because they “do not argue that Senate Bill 3 is

preempted simply because it may render some of their mining

claims commercially impracticable.” Maj. at 27–28. Come

on. That cannot be the basis for our decision. The record

amply establishes that the miners have consistently raised

both a facial and as-applied challenge to Senate Bill 3 before

the district court and on appeal. Excerpts of R. at 102, 106-

07, 118, 121, 124, 130, 135, 143, 150 (identifying declaration

testimony by the miners regarding the impact of the law on

practicability of mining in the zones governed by Senate

Bill 3 that was provided to the district court in opposition to

summary judgment); Excerpts of R. at 21–23 (identifying the

district court’s rejection of the miners’ Granite Rock

commercial impracticability standard); Appellants’ Opening

Br. at 45–48 (identifying Granite Rock commercial

impracticability standard and asserting the Oregon law is not

a reasonable environmental regulation); Appellants’ Opening

Br. at 52–57 (identifying the record evidence establishing

disputed issues of material fact regarding the impact of the

Oregon law on the practicability of mining in the regulated

zones); United States Court of Appeals for the Ninth Circuit,

16-35262 Joshua Bohmker v. State of Oregon, YouTube

(Mar. 8, 2018), https://youtu.be/IrC_pz9CNh4, at 8:30 to

17:30 (identifying the argument by the miners’ counsel that

the practicability of mining is an alternative basis for the

court to conclude under Granite Rock that federal law

preempts Senate Bill 3).8

8 The majority doubles down on its erroneous conclusion that the

miners have waived an as-applied challenge to Senate Bill 3. In support

of its conclusion, the majority cites a single line in the miners’ reply

stating that “[t]his appeal is not about profitability, but about prohibition.”

Maj. at 28 n.6 (citing Reply Br. at 41). Nothing in the quoted language
BOHMKER V. STATE OF OREGON 69

The majority next rejects the merits of an as-applied

theory of preemption, asserting that considerations of

commercial practicability would endanger every

environmental regulation. Not so.

We are presented with a narrow but important issue of

preemption. Even if federal law preempts Oregon’s attempt

to apply Senate Bill 3 to federal lands, the miners must still

comply with all environmental laws and standards imposed

expressly by federal statutes and regulations. The Granite

Rock practicability exception does not apply to federal

regulation. Cf., e.g., Clouser v. Espy, 42 F.3d 1522, 1530 (9th

Cir. 1994) (affirming forest service access regulation that

diminished value of mining claims). Moreover, Oregon

remains free to coordinate its land use plans with the relevant

federal agencies in seeking an outright federal prohibition on

mining within essential habitat on federal lands. Oregon may

also amend its statute to incorporate an environmental

standard to require mining activity in essential habitat be

conducted in a manner that avoids damage to fish habitat. In

short, a win for the miners is not likely to lead to

environmental disaster as the majority portends.

Second, commercial practicability is a judicially

manageable standard. “[V]irtually every environmental

regulation” is not at risk. See Maj. at 28–29. Contrary to the

forecloses the argument that Senate Bill 3 effectively functions as a

prohibition in the regulated zones. Waiver requires an “intentional

relinquishment of a known right.” E.g., Oelbermann v. Toyo Kisen

Kabushiki Kaisha, 3 F.2d 5, 5 (9th Cir. 1925) (citation omitted). The

miners have consistently argued that Senate Bill 3 makes it effectively

impossible to remove minerals from their claims. In concluding that the

issue is waived, the majority simply ignores the substantial briefing and

argument cited above.
70 BOHMKER V. STATE OF OREGON

majority’s assertion, nothing in Granite Rock suggests a caseby-case, miner-by-miner assessment of commercial

practicability. Rather, Granite Rock suggests an approach

focused on the overall effect of the state regulation on mining

practicability. See Granite Rock, 480 U.S. at 586–89.

The exception applies only where the regulation’s effect

is “so severe” that it renders mining on the regulated lands

“commercially impracticable” as a general matter. The

finances or circumstances of individual miners are not

relevant to the analysis. A court simply examines the effect

of the regulation on the scope of commercial mining

operations that could permissibly be employed in the absence

of the regulation. Where a state environmental regulation

eliminates all previously permissible means of commercial

mining on federal land, it runs afoul of the Granite Rock

exception. If viable means of commercial mining remain

available in most (if not all) tracts of land governed by the

regulation, it falls within the general rule that “reasonable

state environmental regulation is not pre-empted . . . .” Id. at

589.

Here, the miners identified sufficient factual support for

the proposition that Senate Bill 3 renders mining

commercially impracticable within the areas regulated by the

statute. I cannot agree with the majority’s assertion that

Senate Bill 3 is not a de facto ban on mining because it allows

non-motorized mining (i.e. panning for gold by hand). This

would be similar to saying to a man that he is not prohibited

from building a house on his property, he is only prohibited

from using any power tools, trucks, or other motorized

equipment in doing so. In an imaginary world, it is certainly

still possible that over the course of his life he could dig the

foundation, mix the concrete, haul the lumber, and construct
BOHMKER V. STATE OF OREGON 71

a house eventually. Nonetheless, such a law would render the

man’s right to build a house a nullity. If the miners proved

impracticability on remand, I would conclude that the Oregon

law is a de facto land use regulation preempted by federal

law.

III.

In short, there are two alternative grounds to reverse the

district court. First, the miners are entitled to summary

judgment because federal law preempts Oregon’s

impermissible attempt to regulate particular uses of federal

land under Senate Bill 3. Alternatively, I would recognize the

as-applied theory for establishing preemption outlined in

GraniteRock. Federal law preempts environmental regulation

that is so severe that it operates as a de facto land use plan by

rendering a particular use of the regulated land utterly

impracticable. The miners put on sufficient evidence to

establish at least a genuine issue for trial on this theory.

Accordingly, I respectfully dissent from the majority’s

decision to affirm summary judgment in favor of the State of

Oregon.