IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MEDFORD DIVISION 

JOSHUA CALEB BOHMKER, et al, 

Plaintiffs, 

Case No. 1:15-cv-01975-CL 

v. 

STATE OF OREGON, et al, 

Defendants, 

v. 

ROGUE RIVERKEEPER, et al, 

Intervenor-defendants. 

CLARKE, Magistrate Judge 

ORDER 

This case comes before the Court on the parties' cross-motions for summary judgment 

(#18, #52). Plaintiffs are individual miners, mining groups and associations, and businesses 

related to the mining industry. Collectively, they bring this cause of action against the 

defendants, the State of Oregon, Ellen Rosenblum in her official capacity as the Attorney 

General of the State of Oregon, and Mary Abrams in her official capacity as the Director of the 

Oregon Department of State Lands, claiming that Oregon Senate Bill 838 (SB 838) is preempted 

by federal law. SB 838, with some exceptions, temporarily prohibits instream mining that uses 

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Case 1:15-cv-01975-CL Document 67 Filed 03/25/16 Page 1 of 17
any form of motorized equipment within certain limited areas including the beds or banks of the 

waters of the state containing essential indigenous anadromous salmonid habitat ("ESH"). 

Plaintiffs request declaratory relief to prevent enforcement of SB 83 8, which went into effect on 

January 2, 2016. Intervenor defendants are groups and associations that support SB 838, and 

they oppose the plaintiffs' motion. For the reasons below, plaintiffs' motion (#18) is DENIED 

and defendants' motion (#52) is GRANTED. 

LEGAL STANDARD 

Summary judgment shall be granted when the record shows that there is no genuine 

dispute as to any material of fact and that the moving party is entitled to judgment as a matter of 

law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The 

moving party has the initial burden of showing that no genuine issue of material fact exists. 

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Devereaux v. Abbey, 263 F.3d 1070, 1076 

(9th Cir. 2001) (en bane). The court cannot weigh the evidence or determine the truth but may 

only determine whether there is a genuine issue of fact. Playboy Enters., Inc. v. Welles, 279 F.3d 

796, 800 (9th Cir. 2002). An issue of fact is genuine "ifthe evidence is such that a reasonable 

jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. 

When a properly supported motion for summary judgment is made, the burden shifts to 

the opposing party to set forth specific facts showing that there is a genuine issue for trial. Id. at 

250. Conclusory allegations, unsupported by factual material, are insufficient to defeat a motion 

for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the 

opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts 

which show there is a genuine issue for trial. Devereaux, 263 F.3d at 1076. In assessing whether 

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a party has met its burden, the court views the evidence in the light most favorable to the nonmoving party. Allen v. City of Los Angeles, 66 F.3d 1052, 1056 (9th Cir. 1995). 

INTRODUCTION 

The tradition of small scale prospecting and mining has a rich heritage in this country, 

dating back to the early days of the American frontier. Early miners developed their own rules 

and customs, which evolved in the local miners' meetings, and "were used to govern mining 

camps before any official government existed at these remote locations." United States v. 

Shumway, 199 F.3d 1093, 1097 (9th Cir. 1999). Mining has been particularly important to the 

history and economic development of southwest Oregon. Even though most of the gold in the 

[California gold rush of 1849] and other western gold rushes was found on federal land, the 

federal government adopted a mining law scheme late, long after the customs of ownership by 

discovery and extraction had been established. Id. at 1098. Plaintiffs, miners and mining 

associations, who are passionate about both the history and the future of their industry, properly 

point to significant mining rights granted them by Congress in the Mining Act of 1872, which 

provides that "all valuable mineral deposits in lands belonging to the United States, both 

surveyed and unsurveyed, shall be free and open to exploration and purchase." 30 U.S.C. § 22. 

However, the Mining Act must be viewed in the context of the extensive federal and state 

regulations that have been enacted since 1872 to govern mining and competing interests on 

federal land, such as the Multiple Use Act, 30 U.S.C. § 611-612, and the Mining and Minerals 

Policy Act, 30 U.S.C. § 21a. The Court understands that plaintiffs are frustrated by the 

complexities of the mining regulations, and it is far from clear from the record before the Court 

whether most of them have in fact complied with federal law. 

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On the other side of this dispute are the groups and individual citizens who are 

understandably increasingly concerned about the impact that mining activities have on the 

natural environment. These concerns have their place in the law as well, as reflected by the 

federal and state regulatory schemes that have developed to manage and protect land, surface 

resources, waterways, and animal habitats. See, e.g., Clean Air Act, 42 U.S.C. §§ 7401 et seq.; 

Clean Water Act, 33 U.S.C. §§ 1251 et seq.; Nat. Environ. Policy Act, 42 U.S.C. §§ 4321 et seq.; 

Oregon Air Toxics Program, Oregon Admin. Rules 340-246-0010 et seq. 

Both of these groups have important, but conflicting interests. Federal and state laws 

attempt to balance these conflicting interests, and the task is made more challenging by the 

interaction between different, complicated regulatory schemes. The basic question in this case, 

however, is simple: Can a state temporarily ban all motorized forms of instream mining in 

certain areas, out of concern for the environment, or is such a law preempted by the federal 

regulations that apply? 

SUMMARY 

Plaintiffs have standing and this dispute is ripe for adjudication by this court. SB 838 is a 

temporary ban on instream motorized mining. It does not preclude all forms of mining. The 

Court finds, consistent with the extensive regulations cited above and case law including 

California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572 (1987), and Pringle v. Oregon, 

No. 2:13-CV-00309-SU, 2014 WL 795328 (D. Or. Feb. 25, 2014), it is a valid state 

environmental regulation that is not preempted by federal law. 

STATUTORY LANGUAGE OF SENATE BILL 838 

On August 14, 2013, Oregon Governor John Kitzhaber signed into law Senate Bill 838. 

The legislative findings of the bill state: 

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1. Prospecting, small scale mining and recreational mining are 

part of the unique heritage of the State of Oregon. 

2. Prospecting, small scale mining and recreational mining 

provide economic benefits to the State of Oregon and local 

communities and support tourism, small businesses and 

recreational opportunities, all of which are economic drivers in 

Oregon's rural communities. 

3. Exploration of potential mine sites is necessary to discover the 

minerals that underlie the surface and inherently involves 

natural resource disturbance. 

4. Mining that uses motorized equipment in the beds and banks of 

the rivers of Oregon can pose significant risks to Oregon's 

natural resources, including fish and other wildlife, riparian 

areas, water quality, the investments of this state in habitat 

enhancement and areas of cultural significance to Indian tribes. 

5. Between 2007 and 2013, mining that uses motorized 

equipment in the beds and banks of the rivers of Oregon 

increased significantly, raising concerns about the cumulative 

environmental impacts. 

6. The regulatory system related to mining that uses 

motorized equipment in the beds and banks of the rivers of 

Oregon should be efficient and structured to best protect 

environmental values. 

Oregon Senate Bill 838 § 1(1-6) (2013). Therefore, the first sentence of SB 838 

provides: 

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 precious metal from placer deposits 

of the beds or banks of 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 that may impact water 

quality. 

Id. at § 2(1 ). "Waters of this state" is defined in ORS 196.800 to include essentially all water 

bodies in the State. "Beds or banks" are not defined by statute, but the rules of the Division of 

State Lands provide: 

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"Beds or Banks" means the physical container of the waters of this 

state, bounded on freshwater bodies by the ordinary high water line 

or bankfull stage, and in tidal bays and estuaries by the limits of 

the highest measured tide. The "bed" is typically the horizontal 

Case 1:15-cv-01975-CL Document 67 Filed 03/25/16 Page 5 of 17
section and includes non-vegetated gravel bars. The 'bank' 1s 

typically the vertical portion. 

The second sentence of SB 838 provides additional parameters for the moratorium: 

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 salmon 

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 naturally reproducing 

populations of bull trout due to a naturally occurring or lawfully 

placed physical barrier to fish passage. 

SB 838 at§ 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." ORS 196.810(1 )(g)(B). 

SB 83 8 also provides for permits to be issued for motorized mining outside of the 

prohibited areas: 

In areas where the moratorium does not apply as described in 

subsection (1) of this section, the Department of State Lands shall 

limit the individual permits issued under ORS 196.810 and the 

general authorizations issued under ORS 196.850 to not more than 

850 permits and authorizations for mining described in this section 

at any time during the moratorium period. The Department of State 

Lands shall give priority, to the greatest extent practicable, to 

persons who held permits or authorizations for the longest period 

of time before January 1, 2014. 

SB 838 § 2(3). 1 

Ill 

1 Section 2(2) of SB 838 provides, "The moratorium does not apply to any mining for which the State Department of 

Geology and Mineral Industries issues an operating permit under ORS 517. 702 to 517 .989. This regulatory scheme 

governs surface mining, defined to include "the process of mining minerals by the removal of overburden and the 

extraction of natural mineral deposits thereby exposed by any method by which more than 5,000 cubic yards of 

minerals are extracted or by which at least one acre ofland is affected within a period of 12 consecutive calendar 

months". ORS 517.750(15). None of the plaintiffs have mining operations of this scale, and the permitting scheme 

is not at issue in this litigation. 

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DISCUSSION 

I. Plaintiffs have standing, and the case is ripe for adjudication. 

"The Article III case or controversy requirement limits federal courts' subject matter 

jurisdiction by requiring, inter alia, that plaintiffs have standing and that claims be 'ripe' for 

adjudication." Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1121 (9th Cir. 2010). 

"Standing addresses whether the plaintiff is the proper party to bring the matter to the court for 

adjudication ... [whereas] ripeness is a means by which federal courts may dispose of matters 

that are premature for review because the plaintiff's purported injury is too speculative and may 

never occur." Id. at 1122. In addition to the Article III standing and ripeness requirements, 

federal courts have also imposed additional prudential standing and ripeness requirements that 

further limit the scope of cases federal courts will entertain. See City of Los Angeles v. County of 

Kern, 581 F.3d 841, 845 (9th Cir. 2009). 

Standing requires three elements: (1) injury in fact, (2) the injury has to be fairly 

traceable to the challenged action of the defendant, and not the result of the independent action 

of some third party not before the court, and (3) it must be likely, as opposed to merely 

speculative, that the injury will be redressed by a favorable decision. Id. at 560-561 (internal 

citations omitted). The court "need only find that one petitioner has standing to allow a case to 

proceed." Pub. Citizen v. Dep't ofTransp., 316 F.3d 1002, 1014-15 (9th Cir. 2003) rev'd on other 

grounds, 541 U.S. 752 (2004); see also Watt v. Energy Action Educ. Found., 454 U.S. 151, 160 

(1981) ("Because we find [one plaintiff] has standing, we do not consider the standing of the 

other plaintiffs"); Chief Probation Officers v. Shalala, 118 F.3d 1327, 1331 (9th Cir.1997) 

(White, Justice, by designation) (evaluation of the standing of a second plaintiff is "unnecessary 

to resolution of the case"). 

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Defendants assert that the federal environmental and mining regulations prevent the 

plaintiffs' mining activities unless the plaintiffs have received approval from either the Forest 

Service or the BLM, depending on the location of their mining claim. Defendants assert that 

plaintiffs have not proven that they have received this approval, therefore their alleged injuries 

are not fairly traceable to SB 838, nor can they be redressed by this court. The Court disagrees. 

SB 838 prevents all motorized methods of mining: 

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 precious metal from placer deposits 

of the beds or banks of 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 that may impact water 

quality. 

By contrast, the federal regulations give the Forest Service and the BLM authority to determine 

on a site-specific basis whether or not a person's particular motorized mining operation is 

allowed. E.g. 36 C.F.R. § 228.4(a)(l)(v). For example, under Forest Service regulations, even 

when a person submits a notice of intent to operate, the regulations simply require the District 

Ranger to notify the operator within 15 days if approval of a plan of operations is required before 

operations begin. 36 C.F.R. § 228.4(a)(l)(vii)(2). If the operator is not contacted, he or she is 

free to operate without such a plan. 

Regulations with such an informal and flexible approval process are very unlikely to 

completely overlap with a moratorium like SB 838. While defendants would like this Court to 

find that federal law prevents all of the plaintiffs' mining operations, certainly a set of 

circumstances must exist in which an individual mining operation would be allowed under 

federal law and disallowed under SB 838. 

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In this case, Plaintiff Jason Gill has asserted facts that give him standing to bring this 

claim. His declaration states that he owns "the 'Governor Davis' claim, federally registered as 

ORMC161726, taking in approximately 2,000 feet of Josephine Creek, and the 'Luck' claim, 

federally registered as ORMC166648, taking in approximately 3,000 feet of Sucker Creek." 

Dkt. #25, 2. Gill declares that he has "an approved Plan of Operation, granted by Siskiyou 

National Forest, permitting me to use a motorized excavator and trammel for mining operations 

on the Governor Davis claim." Id. He claims that he has been mining a bench deposit within 50 

to 100 feet of Josephine Creek and recovering significant quantities of gold. Id. SB 838 will 

make his operations within 100 feet of the high water mark of the Creek illegal. Id. 

The Court finds the declaration of Jason Gill sufficient to show an alleged injury, fairly 

traceable to SB 838, which will be redressed by this Court if it finds that SB 838 is preempted by 

federal law, as claimed by the plaintiffs. Because the Court finds that one plaintiff has standing, 

it need not consider the standing of the other plaintiffs. See Watt, 454 U.S. 160. 

This case is ripe for review because the SB 838 moratorium has gone into effect, and 

plaintiffs like Jason Gill claim that it is currently affecting their mining operations. Similarly, 

the prudential concerns weigh in favor of the Court exercising jurisdiction over this case to settle 

the issue of whether or not the state moratorium on motorized instream mining is preempted by 

federal law because the issue is likely to continue to arise as SB 838 is enforced by state 

officials. 

II. Senate Bill 838 is not preempted by federal law. 

There are three circumstances in which state law is preempted by federal law: (1) express 

preemption, where Congress explicitly defines the extent to which its enactments preempt state 

law; (2) field preemption, where state law attempts to regulate conduct in a field that Congress 

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intended the federal law exclusively to occupy; and (3) conflict preemption, where it is 

impossible to comply with both state and federal requirements, or where state law stands as an 

obstacle to the accomplishment and execution of the full purpose and objectives of Congress. 

Indus. TruckAss'n v. Henry, 125 F.3d 1305, 1309 (9th Cir.1997) (internal citations omitted). 

a. Federal law has not expressly preempted, nor has it occupied the field to preempt, 

nor do such laws conflict with a state's reasonable environmental regulations, even 

if the state law restricts mining operations on federal land. 

To argue preemption, Plaintiffs rely in large part on the Mining Act of 1872. It provides: 

[A]ll 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 .... 

30 U.S.C. § 22. The Mining Act, as originally passed in 1872, "expressed no legislative intent 

on the as-yet rarely contemplated subject of environmental regulation." California Coastal 

Comm'n v. Granite Rock Co., 480 U.S. 572, 582 (1987) ("Granite Rock:'). 

In 1955, Congress passed the Multiple Use Act, which created a "right of the United 

States to manage and dispose of the vegetative surface resources [ofpost-1955 mining claims] .. 

. and to manage other surface resources thereof." 30 U.S.C. § 612(b). The statute provided that 

such management was "not to endanger or materially interfere with prospecting, mining, or 

processing operations or uses reasonably incident thereto." Id. The statute also provides that 

"nothing 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 ... relating to the ownership, control, 

appropriation, use, and distribution of ground or surface waters within any unpatented mining 

claim." Id. 

The United States Supreme Court has held that federal mining laws and environmental 

regulations do not preempt reasonable state environmental laws that restrict mining activities on 

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federal land. California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572 (1987) ("Granite 

Roe~'). In Granite Rock, the state law at issue was a permitting regulation that required a 

mining company, which had already submitted an approved 5-year plan of operations to the 

Forest Service, to secure a permit from the California Coastal Commission before undertaking 

any development, including mining. Id. at 577. The mining company immediately filed an 

action alleging that the permit requirement was preempted by federal regulations. The Court 

held the Mining Act of 1872 and other federal Forest Service mining regulations did not intend 

to preempt the imposition of reasonable state environmental regulations on mining claims. Id. at 

583. Moreover, the Court found that the regulations "expressly contemplate coincident 

compliance with state law as well as with federal law." Id. at 584. 

Support for the conclusion that states have the right to enact environmental regulations 

can be found in other applicable federal regulations as well. The Clean Water Act expressly 

recognizes and preserves state authority to regulate water pollution: "It is the policy of the 

Congress to recognize, preserve, and protect the primary responsibilities and rights of States to 

prevent, reduce, and eliminate pollution .... " 33 U.S.C. § 1251(b). The Clean Water Act also 

recognizes state authority to adopt pollution controls over and above those required by the Act: 

Except as expressly provided in this chapter, nothing in this 

chapter shall (1) preclude or deny the right of any State ... to 

adopt or enforce (A) any standard or limitation respecting 

discharges of pollutants, or (B) any requirement respecting 

control or abatement of pollution; except that if an effluent 

limitation, or other limitation .. .is in effect under this chapter, such 

State ... may not adopt or enforce any effluent limitation, or other 

limitation ... which is less stringent than the effluent limitation ... 

under this chapter; or (2) be construed as impairing or in any 

manner affecting any right or jurisdiction of the States with respect 

to the waters (including boundary waters) of such States. 

33 U.S.C. § 1370 (emphasis added). 

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In this case, as discussed in the next section, SB 838 is a reasonable environmental 

regulation that seeks to prevent pollution of the state's waterways. As decided by the Court in 

Granite Rock, federal mining laws and environmental regulations do not preempt this type of 

state law. 

b. Senate Bill 838 is a reasonable environmental regulation, not a land use law. 

Plaintiffs contend that Granite Rock held that federal law would preempt a state land use 

law that extended on to federal land to prohibit otherwise lawful mining activity. Indeed, the 

Court, in dicta, did speculate on a hypothetical situation in which a state law would be preempted 

by federal regulations: 

For purposes of this discussion and without deciding this issue, we 

may assume that the combination of the NFMA 2 and the FLPMA 

pre-empts the extension of state land use plans onto unpatented 

mining claims in national forest lands. 

Id. at 585. However, the Court found that land use planning and environmental regulation, while 

theoretically could overlap in some cases, are distinct activities, capable of differentiation. Id. at 

588. "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." Id. 

Because the Court found that the stated purpose of the California permitting scheme was to 

regulate environmental effects, not regulate land use, the Court did not reach a decision on the 

merits of federal land use preemption. Id. 

2 Under the Federal Land Policy Management Act of 1976 (FLPMA), the Department of the Interior's 

Bureau of Land Management is responsible for managing the mineral resources on federal forest lands, 43 

U.S.C. § 1701 et seq., and under the National Forest Management Act (NFMA), the Forest Service under 

the Secretary of Agriculture is responsible for the management of the surface impacts of mining on 

federal forest lands, 16 U.S.C. §§ 1600 et seq. 

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Similarly, the stated purpose of SB 838 is to regulate the environmental impacts of the 

prohibited activity - in this case, motorized instream mining. Specifically, the Oregon 

legislature made findings that: (1) motorized methods of mining "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," and (2) the incidence of motorized instream mining increased significantly between 2007 

and 2013, "raising concerns about the cumulative environmental impacts." Oregon Sen. Bill 838 

§ 1(4-5) (2013). 

Like the permitting scheme in Granite Rock, SB 838 does not mandate particular uses of 

the land, nor does it prohibit all mining altogether. It limits only one form of mining, and only in 

specific areas. Outside of the prohibited areas, SB 838 allows for permits to be issued for 

motorized instream mining. Id. at§ 2(3). Even inside the prohibited areas, motorized mining is 

allowed 100 yards upland of the high water mark, as long as it does not disturb vegetation to the 

detriment of water quality. Id. at§ 2(1-2). Therefore the Court finds that SB 838, like the 

California permitting scheme, is a reasonable environmental regulation that is not preempted by 

federal regulations. 

c. Senate Bill 838 is not a ban on mining. 

Plaintiffs argue that, even as an environmental regulation, SB 83 8 is distinguishable from 

the permitting scheme in Granite Rock because there are no conditions that would allow them to 

continue motorized instream mining. According to plaintiffs, SB 838 is a "complete ban," and 

therefore, unlike Granite Rock, it is preempted. However, a court in this district has already 

addressed this issue and found that a ban on one particular method of mining was not equivalent 

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to a complete ban on mining. See Pringle v. Oregon, No. 2:13-CV-00309-SU, 2014 WL 795328 

(D. Or. Feb. 25, 2014). 

In Pringle, an Oregon law was amended to remove authority from the Department of 

State Lands to issue permits for suction dredge mining within a scenic waterway. Id. at 2. 

Recreational placer mining and recreational prospecting were still permitted using non-motorized 

methods, and motorized methods other than a suction dredge. Id. The miner challenging the law 

argued that the law "completely frustrate[d] the mining and removal of valuable minerals located 

in the claim sites," and he asserted that the claims had been "stripped of their entire economic 

value and it now costs more to maintain the claims than can be recovered by recreational 

mining." The miner argued that the law was distinguishable from the permitting scheme in 

Granite Rock because the effect was "to prohibit mining altogether." Id. at 8. The Oregon 

District Court found that, while the Oregon law was a ban on suction dredge mining, other 

methods of recreational mining were still allowed, including other types of motorized equipment, 

non-motorized equipment, and other methods. Id. at 8. Therefore, the Court held that "[b ]ecause 

[the law] is not a de facto ban on all mining in Oregon scenic waterways, it does not conflict with 

the General Mining Act of 1972, and therefore is not preempted." Id. 

Plaintiffs claim that this Court should not consider the Pringle decision persuasive 

because the cause of action was brought by a pro se litigant, who did not make the arguments 

necessary for the court to grant relief. The Court disagrees. In Pringle, the plaintiff asserted that 

his case was distinguishable from Granite Rock because, he claimed, it was more like South 

Dakota Mining Ass'n v. Lawrence County, 155 F.3d 1005 (8th Cir.1998) (S.D Mining). This is 

the very same argument the plaintiffs make in the case at bar. 

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In S.D. Mining, the defendant Lawrence County adopted an ordinance that was a per se 

ban on all new or amended permits for all surface metal mining within the area. S.D. Mining 

Ass'n, 155 F.3d at 1011. Because the record showed that surface metal mining was the only way 

for plaintiffs to mine mineral deposits on federal land in the area, the Eighth Circuit Court of 

Appeals found the effect of the ordinance was a de facto ban on all mining in the area. Id. The 

Lawrence County ordinance did not set out reasonable environmental regulations governing 

mining activities on federal lands, nor did it ban one specific method of extraction, rather it 

resulted in a ban on all mining. Id. As such, the Eighth Circuit found the ordinance preempted 

by the General Mining Act of 1872. Id. The Pringle court considered this analysis before 

deciding that an Oregon ban on suction dredge mining was not a de facto ban on all mining in all 

waterways. 

Similarly, in this case, a ban on motorized instream mining in protected areas is not a ban 

on all mining in all waterways. As discussed above, SB 838 limits only one form of mining, and 

only in specific areas. Outside of the prohibited areas, SB 838 allows for permits to be issued for 

motorized instream mining. Even inside the prohibited areas, motorized mining is allowed 100 

yards upland of the high water mark, as long as it does not disturb vegetation to the detriment of 

water quality. Thus, SB 838 is not a ban on mining. 

d. Whether or not Senate Bill 838 makes mining "commercially impracticable" does 

not affect the Court's preemption analysis. 

Finally, plaintiffs cite to a recent California case in which a miner challenged a state law 

banning the use of suction dredge equipment on federal mining claims. People v. Rinehart, 230 

Cal. App. 4th 419, (2014) reh'g denied (Oct. 10, 2014), review granted and opinion superseded, 

340 P.3d 1044 (Cal. 2015). Applying language used by the Granite Rock Court to describe the 

hypothetical scenario in which state regulations might be preempted by federal land-use statutes, 

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the California Court of Appeal held that a California moratorium on suction-dredge permits was 

potentially preempted by federal law if it rendered development of a mining claim 

"commercially impracticable." Id. at 436. 

Plaintiffs argue that the "commercially impracticable" standard should be imposed by 

this Court as well. The Court disagrees. First, the Supreme Court of California has vacated the 

Rinehart Court of Appeal opinion pending review. Second, the United States Government has 

filed an amicus brief in that case that this Court finds persuasive. It argues that federal 

preemption of a state environmental regulation should not tum on the cost to an individual 

mmer: 

Congress did not intend to preempt all state laws that might raise 

the cost of extraction. If additional expenses are imposed by a 

State's legitimate attempt to "help assure satisfaction. . . of 

environmental needs," 30 U.S.C. § 21a, in a manner that does not 

make all mining impossible, that state law does not directly 

conflict with the federal Mining Law. The State's prohibition on 

suction dredging may have made mining considerably more 

difficult for Rinehart, and may result in Rinehart determining that 

the deposit in his mining claim "no longer justifie[ s] ... the further 

expenditure of his labor and means, with a reasonable prospect of 

success, in developing a valuable mine." Chrisman v. United 

States, 197 U.S. 313, 322 (1905). That result may have some 

bearing on whether the deposit is locatable, but it is no basis for 

finding that the State's law that it is preempted by federal law. 

Brief for the United States as Amicus Curie Supporting Respondent, People v. Rinehart, 82 Cal. 

Rptr. 3d 275 (August 2015) (No. S222620) 2015 WL 5166997 at 29. Essentially, the 

Government argues that even if the state law makes it difficult or impossible for a miner to locate 

the mineral deposit of a claim, such a result is not a basis to find the law preempted. Id. 

The Court agrees that nothing in the Mining Act or subsequent federal regulations makes 

the cost or practicability of mineral extraction a factor in whether or not a state environmental 

law is preempted. The Mining Act guarantees that federal lands will remain free and open to 

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mineral discovery and development, but it does not guarantee that such discovery and 

development will be profitable or efficient. 

CONCLUSION 

The Court agrees with the plaintiffs that the practice of mining has a long and cherished 

history in the State of Oregon, and a protected place in the law. However, the Court can find no 

indication that such protection prevents the State of Oregon from temporarily banning the use of 

motorized instream equipment as a legitimate way to protect water quality and fish habitat. The 

Mining Act and other federal regulations do not express an intent to preempt state environmental 

regulations affecting mining claims on federal land. Senate Bill 838 does not directly conflict 

with federal law, nor does it stand as an obstacle to the accomplishment and execution of the full 

purposes and objectives of Congress because, under the law, "the 'valuable mineral deposits in 

lands belonging to the United States' in Oregon remain 'free and open' to mineral exploration 

and development by means other than the use of motorized equipment. 

ORDER 

For the forgoing reasons, the plaintiffs' motion for summary judgment (#18) is DENIED. 

Defendants' motion for summary judgment (#52) is GRANTED. 

It is so ORDERED and DATED this 25. 

United States Magistrate Judge 

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