## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3861

___________ South Dakota Mining Association, * Inc.; Homestake Mining Company, of * California; Wharf Resources, a * Montana General Partnership; Golden * Reward Mining Company Limited * Partnership; Naneco Minerals, Inc.; * Fred J. Gali; Iwalana I. Gali, * Appeal from the United States Plaintiffs - Appellees, * District of South Dakota.

v. * Lawrence County, a Political * Subdivision of the State of South * Dakota, * Defendant - Appellee, * Jack Cole, * Intervenor - Appellant. * * District Court for the

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___________ Submitted: April 20, 1998 Filed: September 16, 1998

___________ Before McMILLIAN, LOKEN, and HANSEN, Circuit Judges.

___________ HANSEN, Circuit Judge.The Honorable Richard H. Battey, Chief Judge, United States District Court for 1 the District of South Dakota. Th e Lawrence County Board of County Commissioners did not draft th e 2 proposed ordinance. The Commissioners merely placed the proposed ordinance on the ballot pursuant to South Dakota state law after backers obtained the requisite number of sign atures in favor of the ordinance. See S.D. Codified Laws § 7-18A-13 (Michie 1993). The ordinance became law when it was approved by a majority of the voters in Lawrence County. See id. § 7-18A-14. -2- Jack Cole appeals the district court’s grant of summary judgment in favor of the 1 So uthDakota Mining Association, Inc., Homestake Mining Company of California , Wharf Resources, Golden Reward Mining Company, L.P., Naneco Minerals , Inc., Fred J. Gali, and Iwalana I. Gali (collectively, the plaintiffs), and its order permanentl y enjoining enforcement of a Lawrence County, South Dakota, ordinance prohibiting the issuance of any new or amended permi ts for surface metal mining within the Spearfish Canyon Area. The district court ruled that the ordinance was p reempted by the Federal Mining Ac t of 1872, 30 U.S.C. §§ 21-26 (1994). See South Dakota Mining Ass’n v. Lawrence County , 977 F. Supp. 1396, 1405-07 (D.S.D. 1997). Cole, who intervened on the side of defendant Lawrence County, argues that the ordinance is not preempted. We affirm.
I. Background
On November 5, 1996, a 51 percent majority of the voters of Lawrence County, South Dakota, approved an initiated ordinance that amended Lawrence County’ s zoning laws. The voter-approved ordinance adds the following language to th e

2 county’s zoni ng provisions: “No new permits or amendments to existing permits may be issued for surface metal mining extractive i ndustry projects in the Spearfish Canyon Area.” The Spearfish Canyon Area defined in the ordinance includes approximately 40,000 acres of Lawrence County, encompassing about 10 percent of the total land area-3-

of the county. Approximately 90 percent of the area is within the Black Hills National Forest and is under the supervision and control of the United States Department o f Agriculture's Forest Service, a nd the United States Department of Interior’s Bureau of Land Management. This public land contains unpatented mining claims or properties which are open to the public for mineral developments. The remaining 10 percent of the area contains privately owned patented mining claims. The area is also home t o “some of the most beautiful land in the Black Hills .” South Dakota Mining Ass’n , 977 F. Supp. at 1398.

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

Fi ve mining companies have had active surface mining operations withi n Lawr ence County in the past fifteen years. Two of the plaintiffs, Wharf Resource s (Wharf) and Golden Reward Mining Company, L.P. (Golden), either had or currently hav e active surface mining operations. Both Wharf and Golden have patented an d unpa tented mining claims within the area defined in the ordinance. Some of Wharf’s and Golden’s unpatented mineral properties are u ndergoing active mineral exploration. Wharf is a lso conducting active surface mining on some privately owned patente d mining claims within the area.

Two members of the South Dakota Mining Association who are not plaintiffs, LAC Minerals (U.S.A.) Inc. (LA C Minerals), and Brohm Mining Corp. (Brohm), also eith er had, or currently have, surface mining operations. LAC Minerals owns o r controls patented and unpatented minera l properties within the Spearfish Canyon Area as defined in the ordinance. From 1988 to the fall of 19 93, LAC Minerals operated the Rich mond

Hill Mine which was an active gold and silver surface mining operation

. The mine was undergoing reclamation activities at the time o f this action. Brohm owns or controls the Gilt Edge Mine, an active gold and silver surface mining operation.-4-

Plainti ff Homestake Mining Company (Homestake) has both patented an d unpat entedmining claims within the area defined in the ordinance. Plaintiff Nanec o Minerals, Inc., (Naneco) holds a state surface mine permit, but has not yet begu n mining in the Spearfish Canyon Area. Naneco also owns or controls patented mining claims on privately owned land located within the Area. Plaintiffs Fred and Iwalana Ga liown patented mining claims within the area defined as Spearfish Canyon. Th e Galis lease these mineral rights to mining companies while retaining a royalty.

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

On Fe bruary 24, 1997, the plaintiffs filed suit in federal district court agains t La wrence County, alleging, among other claims, that federal and state mining law s preem pted the county ordinance banning surface metal mining within the Spearfis h Canyon Ar ea. The plaintiffs sought a declaratory judgment to this effect and a n injunctionbarring enforcement of the ordinance. On March 24, 1997, the plaintiff s filed a motion for summ ary judgment on their claim that federal and state mining laws preempted the ordinance. The plaintiffs and the county stip ulated that no material facts
were in dispute and that discovery was unnecessary pending the district court’ s resolution of the summary judgment motion.Lawrence County did n ot appeal the district court’s ruling and has filed a brief 3 in this court arguing in support of the district court’s order invalidating the ordinance and enjoin ing its enforcement. Accordingly, Lawrence County is designated as a n appellee before this court. -5- On April 28, 1997, Jack Cole, a priv ate landowner within the Spearfish Canyon Area, fil ed a motion to intervene and defend the ordinance. The plaintiffs did no t object to C ole intervening, and the district court granted the motion. The court als o granted the State of South Dakota and Action for the Environment (Ac tion) leave to file amicus curiae briefs regarding the summary judgment motion. The state filed a brief in support of the plaintiffs' summary judgment motion and Action filed a brief opposing the motion. Cole joined in Action’s brief.

Prio r to any ruling on the summary judgment motion, the district court ordered the parti es to brief the issue of whether the case presented a justiciable controversy

. The court noted that even though the case was brought as a declaratory ju dgment action pursuant to 28 U.S.C. §§ 2201 and 2202, the action must be ripe for a federal court to resolve it. The parties then submitted briefs and affida vits regarding the ripeness issue.
The district court ruled that the action was ripe and that it would th erefore decide the case on

the merits. See South Dakota Mining Assoc. , 977 F. Supp. at 1400. The court gran ted the plaintiffs’ motion for summary judgment, ruling that the Federa l Mining Act of 1 872, 30 U.S.C. §§ 21-26, preempted the Lawrence County ordinance andordered a permanent injunction barring enforcement of the ordinance. See id. at 1407. Cole appeals. 3
II. Analysis
A. Ripeness-6-

Althoug h not raised by the parties in this appeal, we first analyze whether th e present action is ripe for federal court adjudication. We have explain ed that “[r]ipeness is demonstrated by a showing that a live controversy exists such that the plaintiffs will sustain immediate injury from the operation of the challenged provisions.” Employers Ass’n, Inc. v. United Steelworkers , 32 F.3d 1297, 1299 (8th Cir. 1994). This means that “[a] p laintiff who challenges a statute must demonstrate a realistic danger o f sustaining a direct injury as a result of the statute’s operation or enforcement.” Babbit v. United Farm Work

ers Nat’l Union , 442 U.S. 289, 298 (1979). A plaintiff does not ha ve to “await consummation of threatened injury” before bringing a declaratory judgment action. Id. at 298 (internal quotation omitted). Instead, an action is ripe for adju dicationif the plaintiff faces injury that “is certainly impending.” Id. (interna l quotations omitted).

The p laintiffs here have shown a realistic danger of sustaining an immediate , dire ctinjury as a result of the operation or enforcement of the challenged Lawrenc e Cou nty ordinance. Plaintiffs Homestake, Wharf, Golden, Naneco, and Fred an d Iwalana Gali all own patented or unpatented mining claims within the Spear fish Canyon Are aas defined in the Lawrence County ordinance. Plaintiff South Dakota Minin g Associat ion also has members who own patented or unpatented mining claims within the area. Under the plain text of the Lawrence Countyordinance, none of the plaintiffs may be gran ted a new or amended permit for surface metal mining on any of thei r mini ng claims within the Spearfish Canyon Area. Because applying for and bein g denied a co unty permit for surface metal mining would be an exercise in futility, w e will no t require plaintiffs to do so before they may challenge the ordinance. Se e Sammon v. N ew Jersey Bd. of Med. Examiners , 66 F.3d 639, 643 (3d Cir. 1995 ) (“Litigants are not required to make such futile gestures to establish ripeness.”). We agree with the

district court and conclude that the plaintiffs’ preemption claim is ripe.

B. PreemptionWe note that Cole also urges us to remand the cas e to the district court to allow 4 furthe r discovery regarding the purposes and policies underlying the ordinance. W e reject this argument because these purposes and policies are immaterial to th e preemptionanalysis here. See Perez v. Campbell , 402 U.S. 637, 651-52 (1971 ) (holding that “any state legislation which fru strates the full effectiveness of federal law is rendered invali d by the Supremacy Clause” regardless of the underlying purpose of its enactors). -7- Having determined that the plaintiff s’ preemption claim is ripe, we now address Cole’s challenge to the district court’s order declaring the Lawrence County ordinance preempt ed by federal law and enjoining its enforcement. Cole argues that th e Lawrenc e County ordinance is not preempted by the Federal Mining Act because the ordinance is a reasonable environmental regulation of mining on federal lands

. Specif ically, Cole claims that because the ordinance only bans one type of mining , sur face metal mining, and does so only within a limited area, the ordinance does no t prevent the accomplishment of the purposes and objectives of federal mining law. 4

“We review the district court’s grant of summary judgment de novo, applyin g the same standards as the district court.” Mayard v. Hopwood , 105 F.3d 1226, 1227 (8th Cir. 1997). Summary judgment is appropriate if the record “show[s] that there is
no genu ine issue as to any material fact and that the moving party is entitled to a judgme nt as a matter of law.” Fed. R. Civ. P. 56(c). We view the facts and th e
reasona ble inferences to be drawn from them in the light most favorable to th e nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). “Only disputes over facts that might affect the outcome of the suit under the governinglaw will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 248 (1986).
The Supreme Court has set forth the analysis we must apply to determine if a state law is preempted by federal law:-8-

St ate law can be pre-empted in either of two general ways. If Congress evidenc es an intent to occupy a given field, any state law falling withi n that field is pre-empted. If Congress has not entirely displaced stat e regulation over the

matter in question, state law is still pre-empted to the extent it actu ally conflicts with federal law, that is, when it is impossible to c omply with both state and federal law, or where the state law stands as an obstac le to the accomplishment of the full purposes and objectives of Congress

. California Coastal Comm’n v. Granite R ock Co. , 480 U.S. 572, 581 (1987) (emphasis added) ( citations and internal quotations omitted); see also U.S. Const. art. VI, cl. 2 (supremacy clause). The same preemption analysis applies when a court is determining if federal law preempts a county ordinance. Hillsborough County v. Automated Med. Labs., Inc. , 471 U.S. 707, 713 (1985).

In t his case, we must determine whether the Lawrence County ordinance i s preempted because it confl icts with federal law. Specifically, we address whether the ordinance conflicts with the Federal Mining Act because it “stands as an obstacle to the accomplishment of the full purposes and obje ctives of Congress” embodied in the Act. Granite Rock , 480 U.S. at 581 (internal quotation omitted). Thus, i n analyzing whether the o rdinance is preempted, we must first determine the purposes and objectives o f Congress that are embodied in the Mining Act. Second, we must determine whether the ordinance stands as an obstacle to the accomplishment of these Congressiona l purposes and objectives.
To determine the purposes and objectives that are embodied in the Mining Act, we first look to the text and structure of statute itself. Peters v. Union Pac. R.R. Co. , 80 F. 3d 257, 261 (8th Cir.1996). Congress has codified its declaration of the federal government’s policy towards mining:

The Co ngress declares that it is the continuing policy of the Federa l Government in the national interest to foster and encourage private-9-

enterp rise in (1) the development of economically sound and stabl e domestic mini ng, minerals, metal and mineral reclamation industries, (2) the orderly and economic development of domestic mineral resources , reserve s, and reclamation of metals and minerals to help assur e satisfaction of industrial, security and environmental needs, (3) mining , min eral, and metallurgical research, including the use and recycling o f scrap to promote the wise and efficient use of our natural and reclaimable mineral resources, a

nd (4) the study and development of methods for the disposal, control, and reclamation of mineral waste products, and th e reclamation of mined

land, so as to lessen any adverse impact of mineral extraction an d processing upon the physical environment that may result from mining or mineral activities.
30 U.S.C. § 21a.
The Mining Act provides for the free and open exploratio n of public lands for valuable mineral deposits. Specifically, the statute states:
Except as otherwise provided, all valuable mineral deposits in land s belongi ng to the United States, both surveyed and unsurveyed, shall b e free and open to exploration and purchase, and the lands in which they are foun d to occupation and purchase, by citizens of the United States an d those who have declared their intention to become such, u nder regulations prescribe d 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. The Supreme Court has stated that the Congressional inten t underlying this section is to reward and encourage the discover y of economically valuable minerals lo cated on public lands. United States v. Coleman , 390 U.S. 599, 602 (1968 ). Congress has further provided that the “locators” of mineral deposits on federal lands under § 22 shall have the exclusive right to extrac t thoseminerals if they comply with federal law and state and local laws that do-10-

not conflict with f

ederal law. See 30 U.S.C. § 26. The Mining Act establishes a system whereby a prospector can “go out-11-

into the public domain, search for minerals an d upon discovery establish a claim to th e lands upon which the discovery was made.” United States v. Curtis

Nevada Mines, Inc. , 611 F.2d 1277, 1281 (9th Cir. 1980).
Thus, as shown in the text and structure of the statute, Congress has set out several purposes and objectives in the Mining Act. These include th e encourage ment

of exploration for and mining of valuable minerals located o n federa llands, providing federal regulation of mining to protect the physica l environment while allowing the efficient and economical extraction and use of mine rals, and allowing state and local regulation of mining so long as suc h regu lationis consistent with federal mining law. Having determined th e purposes and objectives of th e Mining Act, we next examine the second step of the preemption analysis—whether the Lawrence County ordinance stands as an obstacle to these purposes and objectives.
Both parties cite the Supreme Court’s decision in Granite Rock to support thei r positions, and an examination of the case would aid us in applying th e second ste p of our preemption analysis. In Granite Rock , a mining compan y brought a “purel y facial” challenge to a California state law making it unlawful to mine on federal lands without first obtaining a permit from the state Coastal Commi ssion. 480 U.S. at 580. The mining company claimed that the stat e permitrequirement was preempted by federal mining laws. Because th e company had not applied for a permit, and it was unclear what requirements the company would have to meet to obtain a perm it, the issue faced by the Supreme Court was relatively narrow: “whether Congress has enacted legislatio n respect ing this federal land that would pre-empt any requirement that [th e compan y] obtain a California Coastal Commission permit.” Id. at 581

. Significant to this case, the Court stressed that the Coastal Commission did not arg ue that it had the authority to ban all mining. Id. at 586 (“[T]he Coasta l Commission has consistently maintaine d that it does not seek to prohibit mining of the unpatented claim on national forest land.”). Instead, the Coasta l-12-

Commissionmerely claimed that it could require the company to comply with certain reasonable regulatory requirements designed to protect-13-

the environment prior to obtaining a permit. Id. at 586-87. In rejecting th e company’s argument that the permit requirement was preempted because it was an im permissible land use regulation, the Court first assumed without deciding that state land use regulations, which it defined as laws th at “in essence choose[] part icular uses for the land,” were preempted. Id. at 587. Second, the Cour t held that state environmental regulat ions, laws that “do[] not mandate particular
uses of lan d but require[] only that, however the land is used, damage to th e environment is k

ept within prescribed limits,” would not always be preempted. Id. Be cause the Coastal Commission had identified “a possible set of permi t conditions not pre-empted by federal law,” conditions which would not prohibit the compan y from mining on federal land, the Court rejected the company’ s facial challenge and upheld the state permit law. Id. at 589.
We initially note t

hat, as in Granite Rock , the plaintiffs in this case bring a facial challenge to a local permit law. However, unlike Granite Rock , we are not confronted with uncertainty regarding what co nditions must be met to obtain a permit for surfac e metal mining in the Spearfish Canyon area. The Lawrence Cou nty ordinance is a per se ban on all new or amended permits for surfac e metal mining within the area. Because the record shows that surface meta l mining is t he only practical way any of the plaintiffs can actually mine th e
va luable mineral deposits located on federal land in the area, the ordinance’ s effect is a de facto ban on mining in the area. Thus, unlik e Granite Rock , we are not faced with a local permit law that sets out reasonable environmenta l regulations governing mining activities on federal lands.

The ordinanc e’s de facto ban on mining on federal land acts as a clear obstacle to the accomplishment of the Congressional purposes and objective s embodied in the Mining Ac t. Congress has encouraged exploration and mining of valuab le mineral deposits located on federal land and has granted certai n ri ghts to those who discover such minerals. Federal law also encourages th e economic al extraction and use of these minerals. The Lawrence County-14-

or dinance completely frustrates the accomplishment of these federall y encouraged activities. A local government cannot prohibit a lawful-15-

us e of the sovereign's land that the superior sovereign itself permits an d
enco urages. To do so offends both the Property Clause and the Supremac y Clause of the federal Constitution. The ordinance is prohibitory, not regulatory, in its fundamental character. The district court correctly ruled that th e ordinance was preempted.
Finally, we n ote that in his reply brief, Cole points out that the Spearfish Canyon Area defined in the ordinance includes privately owned land that i s outside the purview of the Federal Mining Act. Cole contends that the district court “erred in failing to separately analyze the ordinance’s effect on th e privately owned land.” (Appellant’s Reply Br. at 4.) Because Cole did not raise this argument in his initial brief, he has not preserved this error, and we do not address the claim. See United States v. Darden , 70 F.3d 1507, 1549 n.18 (8th Cir. 1995) (“Appellants generally must ra ise and brief all issues in their opening brief.”), cert. denied , 517 U.S. 1149 (1996).

III. Conclusion
Accordingly, we affirm the judgment of the district court.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT