The Mining Act of 1872 authorizes a private citizen to enter
federal lands to explore for mineral deposits, to perfect a mining
claim, and to secure a patent to the land by complying with the
requirements of the Act and regulations promulgated thereunder.
Appellee Granite Rock Co. holds unpatented mining claims on
federally owned lands in a national forest located in California.
In accordance with federal regulations, Granite Rock obtained
approval from the Forest Service in 1981 of its 6-year plan for
mining limestone on the lands, and began to mine shortly
thereafter. In 1983, the California Coastal Commission
(Commission), acting pursuant to the California Coastal Act (CCA),
instructed Granite Rock to apply for a coastal development permit
for any mining undertaken after the date of the Commission's
letter. Under the CCA, the Commission is the State's coastal zone
management program for purposes of the federal Coastal Zone
Management Act of 1972 (CZMA), which provides for financial
assistance to States for the development of coastal zone management
programs and which defines a State's coastal zone so as to
exclude
"lands the use of which is by law subject solely to the
discretion of or which is held in trust by the Federal Government,
its officers or agents."
Granite Rock filed suit in Federal District Court for
declaratory and injunctive relief on the ground that the
Commission's permit requirement was preempted by Forest Service
Regulations, by the Mining Act of 1872, and by the CZMA. The court
denied Granite Rock's motion for summary judgment and dismissed the
action. The Court of Appeals reversed, holding that the
Commission's permit requirement, which enforced state environmental
standards, was preempted by the Mining Act of 1872 and Forest
Service regulations.
Held:
1. The case is not moot, even though Granite Rock's 6-year plan
of operations expired during the course of the litigation. Because
the Commission asserts that Granite Rock needed a Commission permit
for work undertaken after the date of the Commission's letter, the
Commission may require reclamation efforts to prevent river
pollution resulting from the mining that has already occurred.
Granite Rock disputes the Commission's authority to require such
reclamation. Also, it is likely that
Page 480 U. S. 573
Granite Rock will submit new plans of operation in the future,
and dispute would continue as to enforcement of the conditions of a
Commission permit. This Court does not have appellate jurisdiction
under 28 U.S.C. § 1264(2), because the Court of Appeals invalidated
only the Commission's exercise of authority under the CGA, not any
portion of the state statute itself, as is required under §1264(2).
However, treating the jurisdictional statement as a petition for
certiorari, the petition is granted. Pp.
480 U. S.
577-579.
2. Neither Forest Service regulations, nor federal land use
statutes, nor the CZMA preempts the Commission's imposition of a
permit requirement on operation of an unpatented mining claim in a
national forest. Pp.
480 U. S.
579-594.
(a) The Property Clause of the Constitution -- which gives
Congress plenary power to legislate the use of federal lands --
does not itself automatically conflict with all state regulation of
federal lands. The question in this case is governed by the usual
preemption analysis, whereby state law is preempted if Congress has
evidenced an intent to occupy entirely a given field or, where
Congress has not entirely displaced state regulation, if state law
actually conflict with federal law.
(b) The Forest Service regulations, governing the use of
unpatented mining claims on federal forest lands authorized by the
Mining Act of 1872 (which expressed no legislative intent on the
then rarely contemplated subject of environmental regulation), do
not justify a facial challenge to all conditions that might be
imposed by the Commission's permit requirement. It is appropriate
to expect an administrative regulation to declare any intention to
preempt state law with some specificity. The Forest Service
regulations here not only are devoid of any expression of intent to
preempt state law, but rather appear to assume that those
submitting plans of operation will comply with state environmental
protection laws. Pp.
480 U. S.
581-584.
(c) There is no merit to the contention that federal land
management statutes -- the Federal Land Policy and Management Act
and the National Forest Management Act -- demonstrate a legislative
intent to limit States to a purely advisory role in federal land
management decisions, and that the Commission permit requirement is
therefore preempted as an impermissible state land use regulation.
Even if it is assumed (without deciding the issue) that the
combination of those federal Acts preempts the extension of state
land use plans to unpatented mining claims in national forest
lands, the Commission asserts that it will use permit conditions to
impose environmental regulation, not land use planning. Congress
has indicated its understanding of land use planning and
environmental regulation as distinct activities, and thus it is
anomalous to maintain that Congress intended any state
environmental regulation
Page 480 U. S. 574
of unpatented mining claims in national forests to be
per
se preempted as an impermissible exercise of state land use
planning. In the present posture of this litigation, the
Commission's identification of a possible set of permit conditions
not preempted by federal law is sufficient to rebuff Granite Rock's
facial challenge to the permit requirement. Pp.
480 U. S.
584-589.
(d) The CZMA, by excluding federal lands from its definition of
the coastal zone, does not demonstrate a congressional intent to
preempt any possible Commission permit requirement as applied to
the mining of Granite Rock's unpatented claim. The CZMA's language
and legislative history expressly disclaim an intent to
automatically preempt all state regulation of activities on federal
lands. Congress' statements indicate that it intended the CZMA not
to be an independent cause of preemption except in cases of actual
conflict between state and federal law. Pp.
480 U. S.
589-593.
768 F.2d 1077, reversed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and BRENNAN, MARSHALL, and BLACKMUN, JJ., joined,
and in Parts I and II of which POWELL and STEVENS, JJ., joined.
POWELL, J., filed an opinion concurring in part and dissenting in
part, in which STEVENS, J., joined,
post, p.
480 U. S. 594.
SCALIA, J., filed a dissenting opinion, in which WHITE, J., joined,
post, p.
480 U. S.
607.
Page 480 U. S. 575
JUSTICE O'CONNOR delivered the opinion of the Court.
This case presents the question whether Forest Service
regulations, federal land use statutes and regulations, or the
Coastal Zone Management Act of 1972 (CZMA), 16 U.S.C. §1451
et
seq. (1982 ed. and Supp. III), preempt the California Coastal
Commission's imposition of a permit requirement on operation of an
unpatented mining claim in a national forest.
I
Granite Rock Company is a privately owned firm that mines
chemical and pharmaceutical grade white limestone. Under the Mining
Act of 1872, 17 Stat. 91,
as amended, 30 U.S.C. § 22
et seq., a private citizen may enter federal lands to
explore for mineral deposits. If a person locates a valuable
mineral deposit on federal land, and perfects the claim by properly
staking it and complying with other statutory requirements, the
claimant "shall have the exclusive right of possession and
enjoyment of all the surface included within the lines of their
locations," 30 U.S.C. § 26, although the United States retains
title to the land. The holder of a perfected mining claim may
secure a patent to the land by complying
Page 480 U. S. 576
with the requirements of the Mining Act and regulations
promulgated thereunder,
see 43 CFR § 3861.1
et
seq. (1986), and, upon issuance of the patent, legal title to
the land passes to the patent holder. Granite Rock holds unpatented
mining claims on federally owned lands on and around Mount Pico
Blanco in the Big Sur region of Los Padres National Forest.
From 1959 to 1980, Granite Rock removed small samples of
limestone from this area for mineral analysis. In 1980, in
accordance with federal regulations,
see 36 CFR § 228.1
et seq. (1986), Granite Rock submitted to the Forest
Service a 5-year plan of operations for the removal of substantial
amounts of limestone. The plan discussed the location and
appearance of the mining operation, including the size and shape of
excavations, the location of all access roads, and the storage of
any overburden. App. 27-34. The Forest Service prepared an
Environmental Assessment of the plan.
Id. at 38-53. The
Assessment recommended modifications of the plan, and the
responsible Forest Service Acting District Ranger approved the plan
with the recommended modifications in 1981.
Id. at 54.
Shortly after Forest Service approval of the modified plan of
operations, Granite Rock began to mine.
Under the California Coastal Act (CCA), Cal.Pub.Res.Code Ann. §
30000
et seq. (West 1986), any person undertaking any
development, including mining, in the State's coastal zone must
secure a permit from the California Coastal Commission. §§ 30106,
30600. According to the CCA, the Coastal Commission exercises the
State's police power and constitutes the State's coastal zone
management program for purposes of the federal CZMA, described
infra at
480 U. S.
589-590. In 1983, the Coastal Commission instructed
Granite Rock to apply for a coastal development permit for any
mining undertaken after the date of the Commission's letter.
[
Footnote 1]
Page 480 U. S. 577
Granite Rock immediately filed an action in the United States
District Court for the Northern District of California seeking to
enjoin officials of the Coastal Commission from compelling Granite
Rock to comply with the Coastal Commission permit requirement and
for declaratory relief under 28 U.S.C. § 2201 (1982 ed., Supp.
III). Granite Rock alleged that the Coastal Commission permit
requirement was preempted by Forest Service regulations, by the
Mining Act of 1872, and by the CZMA. Both sides agreed that there
were no material facts in dispute. The District Court denied
Granite Rock's motion for summary judgment, and dismissed the
action.
690 F.
Supp. 1361 (1984). The Court of Appeals for the Ninth Circuit
reversed. 768 F.2d 1077 (1986). The Court of Appeals held that the
Coastal Commission permit requirement was preempted by the Mining
Act of 1872 and Forest Service regulations. The Court of Appeals
acknowledged that the statute and regulations do not "go so far as
to occupy the field of establishing environmental standards,"
specifically noting that Forest Service regulations "recognize that
a state may enact environmental regulations in addition to those
established by federal agencies," and that the Forest Service "will
apply [the state standards] in exercising its permit authority."
768 F.2d at 1083. However, the Court of Appeals held that
"an independent state permit system to enforce state
environmental standards would undermine the Forest Service's own
permit authority, and thus is preempted."
Ibid.
The Coastal Commission appealed to this Court under 28 U.S.C. §
1264(2). We postponed consideration of the question of jurisdiction
to the hearing of the case on the merits, 476 U.S. 1094 (1986).
II
First, we address two jurisdictional issues. In the course of
this litigation, Granite Rock's 6-year plan of operations
Page 480 U. S. 578
expired. The controversy between Granite Rock and the Coastal
Commission remains a live one, however, for two reasons. First, the
Coastal Commission's 1983 letter instructed Granite Rock that a
Coastal Commission permit was required for work undertaken after
the date of the letter. App. 22-24. Granite Rock admitted that it
has done work after that date.
Id. at 83. Because the
Coastal Commission asserts that Granite Rock needed a Coastal
Commission permit for the work undertaken after the date of the
Commission's letter, the Commission may require "reclamation for
the mining that [has] occurred, measures to prevent pollution into
the Little Sur River." Tr. of Oral Arg. 8. Granite Rock disputes
the Coastal Commission's authority to require reclamation efforts.
Second, Granite Rock stated in answer to interrogatories that
its
"investments and activities regarding its valid and unpatented
mining claims require continuing operation beyond the present Plan
of Operations,"
and that it intended to conduct mining operations on the claim
at issue "as long as [Granite Rock] can mine an economically viable
and valuable mining deposit under applicable federal laws." App.
83-84. Therefore it is likely that Granite Rock will submit new
plans of operations in the future. Even if future participation by
California in the CZMA consistency review process,
see
infra at
480 U. S.
590-591, or requirements placed on Granite Rock by the
Forest Service called for compliance with the conditions of the
Coastal Commission's permit, dispute would continue over whether
the Coastal Commission itself, rather than the Federal Government,
could enforce the conditions placed on the permit. This controversy
is one capable of repetition, yet evading review.
See Wisconsin
Dept. of Industry v. Gould Inc., 475 U.
S. 282,
475 U. S. 285,
n. 3 (1986);
Dunn v. Blumstein, 405 U.
S. 330,
405 U. S. 333,
n. 2 (1972). Accordingly, this case is not moot.
The second jurisdictional issue we must consider is whether this
case is properly within our authority, under 28 U.S.C. § 1264(2),
to review the decision of a federal court
Page 480 U. S. 579
of appeals by appeal if a state statute is "held by a court of
appeals to be invalid as repugnant to the Constitution, treaties or
laws of the United States. . . ." Statutes authorizing appeals are
to be strictly construed.
Silkwood v. Kerr-McGee Corp.,
464 U. S. 238,
464 U. S. 247
(1984);
Perry Education Assn. v. Perry Local Educators'
Assn., 460 U. S. 37,
460 U. S. 43
(1983). As noted in
Silkwood, supra, at
464 U. S. 247,
"we have consistently distinguished between those cases in which a
state statute is expressly struck down" as repugnant to the
Constitution, treaties, or laws of the United States, and those
cases in which "an exercise of authority under state law is
invalidated without reference to the state statute." This latter
group of cases do not fall within this Court's appellate
jurisdiction.
In the present case, the Court of Appeals held that the
particular exercise of the Coastal Commission permit requirement
over Granite Rock's operation in a national forest was preempted by
federal law. The Court of Appeals did not invalidate any portion of
the CCA. In fact, it did not discuss whether the CCA itself
actually authorized the imposition of a permit requirement over
Granite Rock.
See Cal.Pub. Res. Code Ann. § 30008 (West
1986) (limiting jurisdiction over federal lands to that which is
"consistent with applicable federal . . . laws"). Accordingly, this
case is one in which "an exercise of authority under state law is
invalidated without reference to the state statute,"
Silkwood,
supra, at
464 U. S. 247,
and not within our § 1254(2) appellate jurisdiction. We therefore
treat the jurisdictional statement as a petition for certiorari, 28
U.S.C. § 2103, and, having done so, grant the petition and reverse
the judgment of the Court of Appeals.
III
Granite Rock does not argue that the Coastal Commission has
placed any particular conditions on the issuance of a permit that
conflict with federal statutes or regulations. Indeed, the record
does not disclose what conditions the
Page 480 U. S. 580
Coastal Commission will place on the issuance of a permit.
Rather, Granite Rock argues, as it must, given the posture of the
case, that there is no possible set of conditions the Coastal
Commission could place on its permit that would not conflict with
federal law -- that any state permit requirement is
per se
preempted. The only issue in this case is this purely facial
challenge to the Coastal Commission permit requirement.
The Property Clause provides that
"Congress shall have Power to dispose of and make all needful
Rules and Regulations respecting the Territory or other Property
belonging to the United States."
U.S.Const., Art. IV, § 3, cl. 2. This Court has "repeatedly
observed" that "
[t]he power over the public land thus entrusted
to Congress is without limitations.'" Kleppe v. New
Mexico, 426 U. S. 529,
426 U. S. 639
(1976), quoting United States v. San Francisco,
310 U. S. 16,
310 U. S. 29
(1940). Granite Rock suggests that the Property Clause not only
invests unlimited power in Congress over the use of federally owned
lands, but also exempts federal lands from state regulation,
whether or not those regulations conflict with federal law. In
Kleppe, 426 U.S. at 426 U. S. 543,
we considered "totally unfounded" the assertion that the Secretary
of the Interior had even proposed such an interpretation of the
Property Clause. We made clear that "the State is free to enforce
its criminal and civil laws" on federal land so long as those laws
do not conflict with federal law. Ibid. The Property
Clause itself does not automatically conflict with all state
regulation of federal land. Rather, as we explained in
Kleppe:
"Absent consent or cession, a State undoubtedly retains
jurisdiction over federal lands within its territory, but Congress
equally surely retains the power
to enact legislation
respecting those lands pursuant to the Property Clause.
And
when Congress so acts, the federal legislation necessarily
overrides conflicting state laws under
Page 480 U. S. 581
the Supremacy Clause."
Ibid. (citations omitted) (emphasis supplied). We agree
with Granite Rock that the Property Clause gives Congress plenary
power to legislate the use of the federal land on which Granite
Rock holds its unpatented mining claim. The question in this case,
however, is whether Congress has enacted legislation respecting
this federal land that would preempt any requirement that Granite
Rock obtain a California Coastal Commission permit. To answer this
question, we follow the preemption analysis by which the Court has
been guided on numerous occasions:
"[S]tate law can be preempted in either of two general ways. If
Congress evidences an intent to occupy a given field, any state law
falling within that field is preempted. [
Pacific Gas &
Electric Co. v. State Energy Resources Conservation &
Development Comm'n, 461 U. S. 190,]
461 U. S.
203-204 [(1983)];
Fidelity Federal Savings &
Loan Assn. v. De la Cuesta, 458 U. S. 141,
458 U. S.
153 (1982);
Rice v. Santa Fe Elevator Corp.,
331 U. S.
218,
331 U. S. 230 (1947). If
Congress has not entirely displaced 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,
Florida Lime &
Avocado Growers, Inc. v. Paul, 373 U. S.
132,
373 U. S. 142-143 (1963), or
where the state law stands as an obstacle to the accomplishment of
the full purposes and objectives of Congress,
Hines v.
Davidowitz, 312 U. S. 52,
312 U. S.
67 (1941)."
Silkwood v. Kerr-McGee Corp., supra, at
464 U. S.
248.
A
Granite Rock and the United States as
amicus have made
basically three arguments in support of a finding that any possible
state permit requirement would be preempted. First, Granite Rock
alleges that the Federal Government's environmental regulation of
unpatented mining claims in national
Page 480 U. S. 582
forests demonstrates an intent to preempt any state regulation.
Second, Granite Rock and the United States assert that indications
that state land use planning over unpatented mining claims in
national forests is preempted should lead to the conclusion that
the Coastal Commission permit requirement is preempted. Finally,
Granite Rock and the United States assert that the CZMA, by
excluding federal lands from its definition of the coastal zone,
declared a legislative intent that federal lands be excluded from
all state coastal zone regulation. We conclude that these federal
statutes and regulations do not, either independently or in
combination, justify a facial challenge to the Coastal Commission
permit requirement.
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. Brief for
Appellee 31-32. In 1955, however, Congress passed the Multiple Use
Mining Act, 69 Stat. 367, 30 U.S.C. § 601
et seq., which
provided that the Federal Government would retain and manage the
surface resources of subsequently located unpatented mining claims.
30 U.S.C. § 612(b). Congress has delegated to the Secretary of
Agriculture the authority to make "rules and regulations" to
"regulate [the] occupancy and use" of national forests. 16 U.S.C. §
551. Through this delegation of authority, the Department of
Agriculture's Forest Service has promulgated regulations so that
"use of the surface of National Forest System lands" by those such
as Granite Rock, who have unpatented mining claims authorized by
the Mining Act of 1872, "shall be conducted so as to minimize
adverse environmental impacts on National Forest System surface
resources." 36 CFR §§ 228.1, 228.3(d) (1986). It was pursuant to
these regulations that the Forest Service approved the Plan of
Operations submitted by Granite Rock. If, as Granite Rock claims,
it is the federal intent that Granite Rock conduct its mining
unhindered by any state environmental regulation,
Page 480 U. S. 583
one would expect to find the expression of this intent in these
Forest Service regulations. As we explained in
Hillsborough
County v. Automated Medical Laboratories, Inc., 471 U.
S. 707,
471 U. S. 718
(1985), it is appropriate to expect an administrative regulation to
declare any intention to preempt state law with some
specificity:
"[B]ecause agencies normally address problems in a detailed
manner and can speak through a variety of means, . . . we can
expect that they will make their intentions clear if they intend
for their regulations to be exclusive. Thus, if an agency does not
speak to the question of preemption, we will pause before saying
that the mere volume and complexity of its regulations indicate
that the agency did in fact intend to preempt."
Upon examination, however, the Forest Service regulations that
Granite Rock alleges preempt any state permit requirement not only
are devoid of any expression of intent to preempt state law, but
rather appear to assume that those submitting plans of operations
will comply with state laws. The regulations explicitly require all
operators within the national forests to comply with state air
quality standards, 36 CFR § 228.8(a) (1986), state water quality
standards, § 228.8(b), and state standards for the disposal and
treatment of solid wastes, § 228.8(c). The regulations also provide
that, pending final approval of the plan of operations, the Forest
Service officer with authority to approve plans of operation
"will approve such operations as may be necessary for timely
compliance with the requirements of Federal and
State
laws. . . ."
§ 228.5(b) (emphasis added). Finally, the final subsection of §
228.8, "[r]equirements for environmental protection," provides:
"(h) Certification or other approval issued by
State
agencies or other Federal agencies of compliance with laws and
regulations relating to mining operations will
Page 480 U. S. 584
be accepted as compliance with similar or parallel requirements
of these regulations."
(Emphasis supplied.)
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 preempt all state regulation
of unpatented mining claims in national forests. Neither Granite
Rock nor the United States contends that these Forest Service
regulations are inconsistent with their authorizing statutes.
Given these Forest Service regulations, it is unsurprising that
the Forest Service team that prepared the Environmental Assessment
of Granite Rock's plan of operation, as well as the Forest Service
officer that approved the plan of operation, expected compliance
with state as well as federal law. The Los Padres National Forest
Environmental Assessment of the Granite Rock plan stated that
"Granite Rock is responsible for obtaining any necessary permits
which may be required by the California Coastal Commission." App.
46. The Decision Notice and Finding of No Significant Impact issued
by the Acting District Ranger accepted Granite Rock's plan of
operation with modifications, stating:
"The claimant, in exercising his rights granted by the Mining
Law of 1872, shall comply with the regulations of the Departments
of Agriculture and Interior. The claimant is further responsible
for obtaining any necessary permits required by State and/or county
laws, regulations and/or ordinance."
Id. at 54.
B
The second argument proposed by Granite Rock is 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 preempted as an impermissible state land use
regulation.
Page 480 U. S. 585
In 1976, two pieces of legislation were passed that called for
the development of federal land use management plans affecting
unpatented mining claims in national forests. Under the Federal
Land Policy and Management Act of 1976 (FLPMA), 90 Stat. 2744, 43
U.S.C. § 1701
et seq. (1982 ed. and Supp. III), the
Department of the Interior's Bureau of Land Management is
responsible for managing the mineral resources on federal forest
lands; under the National Forest Management Act (NFMA), 90 Stat.
2949, 16 U.S.C. §§ 1600-1614 (1982 ed. and Supp. III), the Forest
Service, under the Secretary of Agriculture, is responsible for the
management of the surface impacts of mining on federal forest
lands. Granite Rock, as well as the Solicitor General, point to
aspects of these statutes indicating a legislative intent to limit
States to an advisory role in federal land management decisions.
For example, the NFMA directs the Secretary of Agriculture to
"develop, maintain, and, as appropriate, revise 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). The FLPMA directs that land use plans
developed by the Secretary of the Interior "shall be consistent
with State and local plans to the maximum extent the [Secretary]
finds consistent with Federal law," and calls for the Secretary,
"to the extent he finds practical," to keep apprised of state land
use plans, and to "assist in resolving, to the extent practical,
inconsistencies between Federal and non-Federal Government plans."
43 U.S.C. § 1712(c)(9).
For purposes of this discussion, and without deciding this
issue, we may assume that the combination of the NFMA and the FLPMA
preempts the extension of state land use plans onto unpatented
mining claims in national forest lands. The Coastal Commission
[
Footnote 2] asserts that it
will use permit conditions
Page 480 U. S. 586
to impose environmental regulation.
See
Cal.Pub.Res.Code Ann. § 30233 (West 1986) (quality of coastal
waters); § 30253(2) (erosion); § 30263(3) (air pollution); §
30240(b) (impact on environmentally sensitive habitat areas).
While the CCA 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. The CCA declares that the Coastal
Commission will "provide maximum state involvement in federal
activities allowable under federal law or regulations. . . ."
Cal.Pub.Res.Code Ann. § 30004 (West 1986). 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 allow the Coastal Commission to limit the
regulations it will impose in those circumstances. In the present
case, the Coastal Commission has consistently maintained that it
does not seek to prohibit mining of the unpatented claim on
national forest land.
See 768 F.2d at 1080 ("The Coastal
Commission also argues that the Mining Act does not preempt state
environmental regulation of federal land
unless the regulation
prohibits mining altogether . . .") (emphasis supplied); 590
F. Supp. at 1373 ("The [Coastal Commission] seeks not to prohibit
or
veto,' but to regulate [Granite Rock's] mining activity in
accordance with the detailed requirements of the CCA. . . . There
is no reason to find that the [Coastal Commission] will apply the
CCA's regulations so as to deprive [Granite Rock] of its rights
under the Mining Act"); Defendants' Memorandum of Points
Page 480 U. S.
587
and Authorities in Opposition to Plaintiff's Motion for
Summary Judgment in No. C-83-5137 (ND Cal.), pp. 41-42. ("Despite
Granite Rock's characterization of Coastal Act regulation as a
`veto' or ban of mining, Granite Rock has not applied for any
coastal permit, and the State . . . has not indicated that it would
in fact ban such activity. . . . [T]he question presented is merely
whether the state can regulate uses, rather than
prohibit them. Put another way, the state is not seeking
to determine basic uses of federal land; rather, it is
seeking to regulate a given mining use so that it is
carried out in a more environmentally sensitive and
resource-protective fashion").
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 indicated its understanding of land use planning and
environmental regulation as distinct activities. As noted above, 43
U.S.C. § 1712(c)(9) requires that the Secretary of the Interior's
land use plans be consistent with state plans only "to the extent
he finds practical." The immediately preceding subsection, however,
requires that the Secretary's land use plans
"provide for compliance with applicable pollution control laws,
including State and Federal air, water, noise, or other pollution
standards or implementation plans."
§ 1712(c)(8). Congress has also illustrated its understanding of
land use planning and environmental regulation as distinct
activities by delegating the authority to regulate these activities
to different agencies. The stated purpose of part 228, subpart A of
the Forest Service regulations, 36 CFR § 228.1
Page 480 U. S. 588
(1986), is to "set forth rules and procedures" through which
mining on unpatented claims in national forests "shall be conducted
so as to minimize adverse environmental impacts on National Forest
System surface resources." The next sentence of the subsection,
however, declares that
"[i]t is not the purpose of these regulations to provide for the
management of mineral resources; the responsibility for managing
such resources is in the Secretary of the Interior."
Congress clearly envisioned that, although environmental
regulation and land use planning may hypothetically overlap in some
instances, these two types of activity would in most cases be
capable of differentiation. Considering the legislative
understanding of environmental regulation and land use planning as
distinct activities, it would be anomalous to maintain that
Congress intended any state environmental regulation of unpatented
mining claims in national forests to be
per se preempted
as an impermissible exercise of state land use planning. Congress'
treatment of environmental regulation and land use planning as
generally distinguishable calls for this Court to treat them as
distinct, until an actual overlap between the two is demonstrated
in a particular case.
Granite Rock suggests that the Coastal Commission's true purpose
in enforcing a permit requirement is to prohibit Granite Rock's
mining entirely. By choosing to seek injunctive and declaratory
relief against the permit requirement before discovering what
conditions the Coastal Commission would have placed on the permit,
Granite Rock has lost the possibility of making this argument in
this litigation. Granite Rock's case must stand or fall on the
question whether
any possible set of conditions attached
to the Coastal Commission's permit requirement would be preempted.
As noted in the previous section, the Forest Service regulations do
not indicate a federal intent to preempt all state environmental
regulation of unpatented mining claims in national forests. Whether
or not state land use planning over unpatented mining claims in
national forests is preempted, the Coastal Commission
Page 480 U. S. 589
insists that its permit requirement is an exercise of
environmental regulation, rather than land use planning. In the
present posture of this litigation, the Coastal Commission's
identification of a possible set of permit conditions not preempted
by federal law is sufficient to rebuff Granite Rock's facial
challenge to the permit requirement. This analysis is not altered
by the fact that the Coastal Commission chooses to impose its
environmental regulation by means of a permit requirement. If the
Federal Government occupied the field of environmental regulation
of unpatented mining claims in national forests -- concededly not
the case -- then state environmental regulation of Granite Rock's
mining activity would be preempted, whether or not the regulation
was implemented through a permit requirement. Conversely, if
reasonable state environmental regulation is not preempted, then
the use of a permit requirement to impose the state regulation does
not create a conflict with federal law where none previously
existed. The permit requirement itself is not talismanic.
C
Granite Rock's final argument involves the CZMA, 16 U.S.C. §
1451
et seq. (1982 ed. and Supp. III), through which
financial assistance is provided to States for the development of
coastal zone management programs. Section 304(a) of the CZMA, 16
U.S.C. § 1453(1), defines the coastal zone of a State, and
specifically excludes from the coastal zone
"lands the use of which is by law subject solely to the
discretion of or which is held in trust by the Federal Government,
its officers or
Page 480 U. S. 590
agents."
The Department of Commerce, which administers the CZMA, has
interpreted § 1453(1) to exclude all federally owned land from the
CZMA definition of a State's coastal zone. 15 CFR § 923.33(a)
(1986).
Granite Rock argues that the exclusion of
"lands the use of which is by law subject solely to the
discretion of or which is held in trust by the Federal Government,
its officers or agents"
excludes all federally owned land from the CZMA definition of a
State's coastal zone, and demonstrates a congressional intent to
preempt any possible Coastal Commission permit requirement as
applied to the mining of Granite Rock's unpatented claim in the
national forest land.
According to Granite Rock, because Granite Rock mines land owned
by the Federal Government, the Coastal Commission's regulation of
Granite Rock's mining operation must be limited to participation in
a consistency review process detailed in the CZMA. Under the CZMA,
once a state coastal zone management program has been approved by
the Secretary of Commerce for federal administrative grants,
"any applicant for a required Federal license or permit to
conduct an activity affecting land or water uses in the coastal
zone of that state shall provide in the application . . . a
certification that the proposed activity complies with the state's
approved program and that such activity will be conducted in a
manner consistent with the [state] program."
16 U.S.C. § 1456(c)(3)(A). At the same time, the applicant must
provide the State a copy of the certification. The State, after
public notice and appropriate hearings, is to notify the federal
agency concerned that the State concurs or objects to the
certification. If the State fails to notify the federal agency
within six months of receiving notification, it is presumed that
the State concurs. If the State neither concurs nor is presumed to
concur, the federal agency must reject the application unless the
Secretary of Commerce finds that the application is consistent with
the objectives of the CZMA or is "otherwise necessary in the
interest of national security."
Ibid.
In order for an activity to be subject to CZMA consistency
review, the activity must be on a list that the State provides
federal agencies, which describes the type of federal permit and
license applications the State wishes to review. 16 CFR § 930.53
(1986). If the activity is unlisted, the State must, within 30 days
of receiving notice of the federal permit application,
Page 480 U. S. 591
inform the federal agency and federal permit applicant that the
proposed activity requires CZMA consistency review. § 930.54. If
the State does not provide timely notification, it waives the right
to review the unlisted activity. In the present case, it appears
that Granite Rock's proposed mining operations were not listed
pursuant to § 930.63, and that the Coastal Commission did not
timely notify the Forest Service or Granite Rock that Granite
Rock's plan of operations required consistency review. App. 17.
Therefore, the Coastal Commission waived its right to consistency
review of the 1981-1986 plan of operations.
Absent any other expression of congressional intent regarding
the preemptive effect of the CZMA, we would be required to decide,
first, whether unpatented mining claims in national forests were
meant to be excluded from the § 1453(1) definition of a State's
coastal zone, and, second, whether this exclusion from the coastal
zone definition was intended to preempt state regulations that were
not preempted by any other federal statutes or regulations.
Congress has provided several clear statements of its intent
regarding the preemptive effect of the CZMA; those statements,
which indicate that Congress clearly intended the CZMA not to be an
independent cause of preemption except in cases of actual conflict,
end our inquiry.
Title 16 U.S.C. § 1456(e)(1) provides:
"Nothing in this chapter shall be construed -- "
"(1) to diminish either Federal or state jurisdiction,
responsibility, or rights in the field of planning, development, or
control of water resources, submerged lands, or navigable waters;
nor to displace, supersede, limit, or modify any interstate compact
or the jurisdiction or responsibility of any legally established
joint or common agency of two or more states or of two or more
states and the Federal Government; nor to limit the authority of
Congress to authorize and fund projects. . . .
Page 480 U. S. 592
The Senate Report describes the above section as 'a standard
clause disclaiming intent to diminish Federal or State authority in
the fields affected by the Act,' or 'to change interstate
agreements.' S.Rep. No. 92-753, p. 20 (1972). The Conference Report
stated,"
"[t]he Conferees also adopted language which would make certain
that there is no intent in this legislation to change Federal or
state jurisdiction or rights in specified fields, including
submerged lands."
H.R.Conf.Rep. No. 92-1544, p. 14 (1972). While the land at issue
here does not appear to fall under the categories listed in 16
U.S.C. § 1466(e)(1), the section and its legislative history
demonstrate Congress' refusal to use the CZMA to alter the balance
between state and federal jurisdiction.
The clearest statement of congressional intent as to the
preemptive effect of the CZMA appears in the "Purpose" section of
the Senate Report, quoted in full:
"[The CZMA] has as its main purpose the encouragement and
assistance of States in preparing and implementing management
programs to preserve, protect, develop and whenever possible
restore the resources of the coastal zone of the United States. The
bill authorizes Federal grants-in-aid to coastal states to develop
coastal zone management programs. Additionally, it authorizes
grants to help coastal states implement these management programs
once approved, and States would be aided in the acquisition and
operation of estuarine sanctuaries. Through the system of providing
grants-in-aid, the States are provided financial incentives to
undertake the responsibility for setting up management programs in
the coastal zone.
There is no attempt to diminish state
authority through federal preemption. The intent of this
legislation is to enhance state authority by encouraging and
assisting the states to assume planning and regulatory powers over
their coastal zones."
S.Rep. No. 92-753,
supra, at 1 (emphasis supplied).
Page 480 U. S. 593
Because Congress specifically disclaimed any intention to
preempt preexisting state authority in the CZMA, we conclude that,
even if all federal lands are excluded from the CZMA definition of
"coastal zone," the CZMA does not automatically preempt all state
regulation of activities on federal lands.
IV
Granite Rock's challenge to the California Coastal Commission's
permit requirement was broad and absolute; our rejection of that
challenge is correspondingly narrow. Granite Rock argued that any
state permit requirement, whatever its conditions, was
per
se preempted by federal law. To defeat Granite Rock's facial
challenge, the Coastal Commission needed merely to identify a
possible set of permit conditions not in conflict with federal law.
The Coastal Commission alleges that it will use its permit
requirement to impose reasonable environmental regulation. Rather
than evidencing an intent to preempt such state regulation, the
Forest Service regulations appear to assume compliance with state
laws. Federal land use statutes and regulations, while arguably
expressing an intent to preempt state land use planning,
distinguish environmental regulation from land use planning.
Finally, the language and legislative history of the CZMA expressly
disclaim an intent to preempt state regulation.
Following an examination of the "almost impenetrable maze of
arguably relevant legislation,"
post at
480 U. S. 606,
JUSTICE POWELL concludes that "[i]n view of the Property Clause . .
. as well as common sense, federal authority must control. . . ."
Ibid. As noted above, the Property Clause gives Congress
plenary power over the federal land at issue; however, even within
the sphere of the Property Clause, state law is preempted only when
it conflicts with the operation or objectives of federal law, or
when Congress "evidences an intent to occupy a given field,"
Silkwood v. Kerr-McGee Corp., 464 U.S. at
464 U. S. 248.
The suggestion that traditional preemption analysis is inapt in
this context can be
Page 480 U. S. 594
justified, if at all, only by the assertion that the state
regulation in this case would be "duplicative." The description of
the regulation as duplicative, of course, is based on JUSTICE
POWELL'S conclusions that land use regulation and environmental
regulation are indistinguishable,
post at
480 U. S.
600-601, and that any state permit requirement, by
virtue of being a permit requirement rather than some other form of
regulation, would duplicate federal permit requirements,
post at
480 U. S.
604-605. Because we disagree with these assertions,
see supra, at
480 U. S.
587-588,
480 U. S. 589
we apply the traditional preemption analysis which requires an
actual conflict between state and federal law, or a congressional
expression of intent to preempt, before we will conclude that state
regulation is preempted.
Contrary to the assertion of JUSTICE POWELL that the Court today
gives States power to impose regulations that "conflict with the
views of the Forest Service,"
post at
480 U. S. 606,
we hold only that the barren record of this facial challenge has
not demonstrated any conflict. We do not, of course, approve any
future application of the Coastal Commission permit requirement
that in fact conflicts with federal law. Neither do we take the
course of condemning the permit requirement on the basis of as yet
unidentifiable conflicts with the federal scheme.
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
[
Footnote 1]
The Coastal Commission also instructed Granite Rock to submit a
certification of consistency pursuant to the consistency review
process of the CZMA, 16 U.S.C. §1466(c)(3)(A), described
infra at
480 U. S.
590-591. The Commission subsequently admitted that it
had waived its right to review the 1981-1986 plan of operation
under the CZMA consistency provision by failing to raise its right
to review in a timely manner. App. 17.
[
Footnote 2]
Although the California Coastal Act requires local governments
to adopt Local Coastal Programs, which include a land use plan and
zoning ordinance,
see Cal.Pub. Rea Code Ann. §§ 30600,
30612, 30513 (West 1986), no Local Coastal Program permit
requirement is involved in this case. The permit at issue in this
litigation is issued by the Coastal Commission directly. §§
30600(a), (c); Tr. of Oral Arg. 62 ("We're dealing with the second
type of permitting, which is by the Coastal Commission itself, not
a local government. . . . [T]he Coastal Commission issues permits
based upon compliance with the environmental criteria in the
Coastal Act itself").
JUSTICE POWELL, with whom JUSTICE STEVENS joins, concurring in
part and dissenting in part.
Because I agree that this case is properly before us, I join
Parts I and II of the Court's opinion. In Part III, the Court
considers the Forest Service's approval of Granite Rock's plan to
operate its mine in a national forest. Because I cannot agree with
the Court's conclusion that Congress intended to allow California
to require a state permit, I dissent from Part III.
Page 480 U. S. 595
I
A
To understand Part III of the Court's opinion, one must have
some knowledge of two groups of statutes and regulations. The first
group of provisions regulates mining. As the Court explains, the
basic source of federal mining law is the Mining Act of 1872, ch.
152, 17 Stat. 91,
as amended, 30 U.S.C. § 22
et
seq. In general, that law opens the public lands to
exploration. If one discovers valuable mineral deposits, the
statute grants him the right to extract and sell the minerals
without paying a royalty to the United States, as well as the right
-- subject to certain statutory requirements -- to obtain fee title
to the land.
See Mining Act § 1, 30 U.S.C. § 22;
United States v. Locke, 471 U. S. 84,
471 U. S. 86
(1985). As the demand for minerals has increased during the past
century, Congress has emphasized that an "economically sound and
stable domestic mining . . . industr[y]" is important to the
economy, and to our Nation's security.
See Mining and
Minerals Policy Act of 1970, § 2, 30 U.S.C. § 21a. [
Footnote 2/1]
B
The second area of federal law important to this case concerns
the management of federal lands. In response to the increasing
commercial importance of federal lands, as well as the awareness of
the environmental values of these lands,
Page 480 U. S. 596
Congress passed the Federal Land Policy and Management Act of
1976 (FLPMA), 43 U.S.C. § 1701
et seq. (1982 ed. and Supp.
III). That statute promotes the effective development of federal
lands in two ways pertinent to this case. First, it directs the
Secretary of the Interior to inventory the resources located on
federal lands and to develop comprehensive plans for future
development. §§1701(a)(2), 1711, 1712. Second, it ensures that the
States' interests in these resources will not be ignored:
"[T]he Secretary shall . . . coordinate [his plans] with the
land use planning and management programs of . . . the States and
local governments within which the lands are located. . . . Land
use plans of the Secretary . . . shall be consistent with State and
local plans to the maximum extent he finds consistent with Federal
law and the purposes of this Act."
§ 1712(c)(9). Significantly, the FLPMA only requires the
Secretary to listen to the States, not obey them. As the Conference
Report explained:
"[T]he ultimate decision as to determining the extent of
feasible consistency between [the Secretary's] plans and [state or
local] plans rests with the Secretary of the Interior."
H.R.Conf.Rep. No. 94-1724, p. 68 (1976).
The surface management provisions of the FLPMA do not apply to
national forest lands. 43 CFR § 3809.0-5(c) (1986). Congress first
provided for management of these lands in the Organic
Administration Act of 1897. The current version of that statute
delegates to the Secretary of Agriculture the authority to
"regulate [the] occupancy and use" of national forests. 16 U.S.C. §
551. The Forest Service, as the Secretary's delegate, has
promulgated regulations to control the "use" of national forests.
36 CFR § 228.1
et seq. (1986). Persons wishing to mine in
the national forests submit plans of operation detailing their
anticipated activities. If the Forest
Page 480 U. S. 597
Service determines that the plans comply with the regulations,
it approves them and authorizes the mining operation. The Court, by
focusing on the Forest Service's concern for preservation of the
national forests, characterizes these regulations as
"environmental" regulations, in its view something entirely
different from "land use" regulations.
Ante at
480 U. S.
587-589.
In fact, the regulation of land use is more complicated than the
Court suggests. First, as is true with respect to the Secretary of
the Interior, the Secretary of Agriculture has been directed to
develop comprehensive plans for the use of resources located in
national forests.
See Forest and Rangeland Renewable
Resources Planning Act of 1974 (Forest Planning Act) § 3(a),
as
amended, 16 U.S.C. § 1601. The Forest Planning Act initially
did not require the Forest Service to consider the views of state
regulators. But when Congress passed the FLPMA in 1976, it also
passed the National Forest Management Act (NFMA), that amended the
Forest Planning Act. Of special importance, § 6(a) of the NFMA
requires the Secretary of Agriculture to coordinate his land
management plans "with the land and resource management planning
processes of State and local governments." 16 U.S.C. § 1604(a).
Section 14 specifically requires the Secretary of Agriculture to
give state governments
"adequate notice and an opportunity to comment upon the
formulation of standards, criteria, and guidelines applicable to
Forest Service programs."
§ 1612(a). Thus, it is clear that the Secretary of Agriculture
has the final authority to determine the best use for federal
lands, and that he must consider the views of state regulators
before making a decision. There is no suggestion in the statute or
the legislative history that state regulators should have the final
authority in determining how particular federal lands should be
used.
The Forest Service also has a role in implementing the Nation's
mineral development policy. The Court shrugs off the
Page 480 U. S. 598
importance of this obligation, noting that "
the
responsibility for managing [mineral] resources is in the Secretary
of the Interior.'" Ante at 480 U. S. 588
(quoting 36 CFR § 228.1 (1986)). This statement erroneously equates
mineral resources management with land use management. Title 43 of
the Code of Federal Regulations details the activities of the
Bureau of Land Management (BLM) in this context. Generally, BLM
manages the process by which rights to minerals are obtained from
the United States and protected against others, the payment of
royalties to the Federal Government, and the conservation of the
minerals themselves. In some cases -- like those of oil, gas, and
coal -- BLM supervises leasing of the right to extract the
materials. But this case involves "hardrock" minerals governed by
the Mining Act of 1872. With respect to those minerals, BLM's
actions are limited to determining whether the land is subject to
location under the mining laws; whether a mining claim is properly
located and recorded; whether assessment work is properly
performed; and whether the requirements for patenting a claim have
been complied with. See 43 CFR pts. 3800-3870 (1986). None
of these determinations is a "land use" determination in the sense
of balancing mineral development against environmental hazard to
surface resources. The Forest Service makes these determinations
through its review of a mining plan of operation.
The Organic Administration Act of 1897 makes clear that the
Forest Service must act consistently with the federal policy of
promoting mineral development. Section 1 of that Act precludes the
Secretary of Agriculture from taking any action that would
"prohibit any person from entering upon such national forests
for all proper and lawful purposes, including that of prospecting,
locating, and developing the mineral resources thereof."
16 U.S.C. § 478. [
Footnote 2/2]
Forest Service materials
Page 480 U. S. 599
confirm its duty to balance
"[t]he demand for mineral development . . . against the demand
for renewable resources and the land management agency's
responsibility to reasonably protect the environment."
United States Dept. of Agriculture, Forest Service Minerals
Program Handbook preface (1983).
See also Forest Service
Manual § 2802 (Dec. 1986) (stating that the Forest Service's policy
is to "ensure that exploration, development, and production of
mineral and energy resources are conducted in an environmentally
sound manner, and that these activities are integrated with
planning and management of other national forest resources"); 30
U.S.C. § 1602. In sum, although the Secretary of the Interior has a
substantial responsibility for managing mineral resources, Congress
has entrusted the task of balancing mineral development and
environmental protection in the national forests to the Department
of Agriculture, and its delegate the Forest Service.
II
The Court's analysis of this case focuses on selected provisions
of the federal statutes and regulations to the exclusion of other
relevant provisions and the larger regulatory context. First, it
examines the Forest Service regulations themselves, apart from the
statutes that authorize them. Because these regulations explicitly
require the federal permits to comply with specified state
environmental standards, the Court assumes that Congress intended
to allow state enforcement of any and all state environmental
standards. Careful comparison of the regulations with the
authorizing statutes casts serious doubt on this conclusion. The
regulations specifically require compliance with only three types
of
Page 480 U. S. 600
state regulation: air quality,
see 36 CFR § 228.8(a)
(1986); water quality,
see § 228.8(b); and solid waste
disposal,
see § 228.8(c). But the Court fails to mention
that the types of state regulation preserved by § 228.8 already are
preserved by specific nonpreemption clauses in other federal
statutes.
See 42 U.S.C. § 7418(a) (Clean Air Act requires
federal agencies to comply with analogous state regulations); 33
U.S.C. § 1323(a) (similar provision of the Clean Water Act); 42
U.S.C. § 6961 (similar provision of the Solid Waste Disposal Act).
The Forest Service's specific preservation of certain types of
state regulation -- already preserved by federal law -- hardly
suggests an implicit intent to allow the States to apply other
types of regulation to activities on federal lands. Indeed, the
maxim
expressio unius est exclusio alterius suggests the
contrary. [
Footnote 2/3]
The second part of the Court's analysis considers both the NFMA
and the FLPMA. The Court assumes,
ante at
480 U. S. 585,
that these statutes "preemp[t] the extension of state land use
plans onto unpatented mining claims in national forest lands." But
the Court nevertheless holds that the Coastal Commission can
require Granite Rock to secure a state permit before conducting
mining operations in a national forest. This conclusion rests on a
distinction between "land use planning"
Page 480 U. S. 601
and "environmental regulation." In the Court's view, the NFMA
and the FLPMA indicate a congressional intent to preempt state land
use regulations, but not state environmental regulations. I find
this analysis unsupportable, either as an interpretation of the
governing statutes or as a matter of logic.
The basis for the alleged distinction is that Congress has
understood land use planning and environmental regulation to be
distinct activities. The only statute cited for this proposition is
§ 202(c)(8) of the FLPMA, 43 U.S.C. § 1712(c)(8), that requires the
Secretary of the Interior's land use plans to
"provide for compliance with applicable pollution control laws,
including State and Federal air, water, noise, or other pollution
standards or implementation plans."
But this statute provides little support for the majority's
analysis. A section mandating consideration of environmental
standards in the formulation of land use plans does not demonstrate
a general separation between "land use planning" and "environmental
regulation." Rather, § 202(c)(8) recognizes that the Secretary's
land use planning will affect the environment, and thus directs the
Secretary to comply with certain pollution standards.
Nor does this section support the Court's ultimate conclusion,
that Congress intended the Secretary's plans to comply with all
state environmental regulations. As I have explained
supra, at
480 U. S.
599-600, other federal statutes require compliance with
the listed standards. [
Footnote
2/4] Also, because the
Page 480 U. S. 602
FLPMA requires compliance only with "applicable" standards, it
is difficult to treat this one section as an independent and
controlling command that the Secretary comply with all state
environmental standards. Rather, viewing the complex of statutes
and regulations as a whole, it is reasonable to view § 202(c)(8)
simply as a recognition that the Secretary's plans must comply with
standards made applicable to federal activities by other federal
laws.
The only other authority cited by the Court for the distinction
between environmental regulation and land use planning is a Forest
Service regulation stating that the Forest Service's rules do not
"provide for the management of mineral resources," 36 CFR § 228.1
(1986). From this, the Court concludes that the Forest Service
enforces environmental regulation, but does not engage in land use
planning. This conclusion misunderstands the division of authority
between the BLM and the Forest Service. As explained
supra
at
480 U. S.
597-598, the BLM's management of minerals does not
entail management of surface resources or the evaluation of surface
impacts. Indeed, the Court acknowledges that the Forest Service is
"responsible for the management of the surface impacts of mining on
federal forest lands."
Ante at
480 U. S. 585.
The Forest Planning Act and the NFMA direct the Secretary of
Agriculture and the Forest Service to develop comprehensive plans
for the use of forest resources. Similarly, the Organic
Administration Act commands the Secretary of Agriculture to
promulgate regulations governing the "occupancy and use" of
national forests, 16 U.S.C. § 551. These regulations are integral
to the Forest Service's management of national forests. To view
them as limited to environmental concerns ignores both the Forest
Service's broader responsibility to manage the use of forest
resources and the federal policy of making mineral resources
accessible to
Page 480 U. S. 603
development. [
Footnote 2/5] The
Coastal Commission has no interest in the matters within the
jurisdiction of the BLM; the regulations that it seeks to impose
concern matters wholly within the control of the Forest Service.
Thus, this regulation does not support the Court's distinction
between environmental regulation and land use planning.
The most troubling feature of the Court's analysis is that it is
divorced from the realities of its holding. The Court cautions that
its decision allows only "reasonable" environmental regulation, and
that it does not give the Coastal Commission a veto over Granite
Rock's mining activities. But if the Coastal Commission can require
Granite Rock to secure a permit before allowing mining operations
to proceed, it necessarily can forbid Granite Rock from conducting
these operations. It may be that reasonable environmental
regulations would not force Granite Rock to close its mine. This
misses the point. The troubling fact is that the Court has given a
state authority -- here the Coastal Commission -- the power to
prohibit Granite Rock from exercising the rights granted by
Page 480 U. S. 604
its Forest Service permit. This abdication of federal control
over the use of federal land is unprecedented. [
Footnote 2/6]
III
Apart from my disagreement with the Court's characterization of
the governing statutes, its preemption analysis accords little or
no weight to both the location of the mine in a national forest,
and the comprehensive nature of the federal statutes that
authorized Granite Rock's federal permit.
One important factor in preemption analysis is the relative
weight of the state and federal interests in regulating a
particular matter.
Cf. Hines v. Davidowitz, 312 U. S.
52,
312 U. S. 66-69
(1941). The Court recognizes that the mine in this case is located
in a national forest, but curiously attaches no significance to
that fact. The Property Clause specifically grants Congress
"Power to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the United
States."
U.S.Const., Art. IV, § 3, cl. 2.
See Utah Power & Light
Co. v. United States, 243 U. S. 389,
243 U. S. 404
(1917). This provision may not of its own force preempt the
authority of a State to regulate activities on federal land, but it
clearly empowers Congress to limit the extent to which a State may
regulate in this area. In light of this clear constitutional
allocation of power, the location of the mine in a national forest
should make us less reluctant to find preemption than we are in
other contexts.
The state regulation in this case is particularly intrusive
because it takes the form of a separate, and duplicative, permit
system. As the Court has recognized, state permit requirements are
especially likely to intrude on parallel federal authority, because
they effectively give the State the power to veto the federal
project.
See International Paper Co.
v.
Page 480 U. S. 605
Ouellette, 479 U. S. 481,
479 U. S. 495
(1987);
First Iowa Hydro-Electric Cooperative v. FPC,
328 U. S. 152,
328 U. S. 164
(1946). Although the intrusive effect of duplicative state permit
systems may not lead to a finding of preemption in all cases, it
certainly is relevant to a careful preemption analysis.
The dangers of duplicative permit requirements are evident in
this case. The federal permit system reflects a careful balance
between two important federal interests: the interest in developing
mineral resources on federal land and the interest in protecting
our national forests from environmental harm. The Forest Service's
issuance of a permit to Granite Rock reflects its conclusion that
environmental concerns associated with Granite Rock's mine do not
justify restricting mineral development on this portion of a
federal forest. Allowing the Coastal Commission to strike a
different balance necessarily conflicts with the federal
system.
Furthermore, as discussed
supra at
480 U. S.
595-597, Congress already has provided that affected
States must be afforded an opportunity to communicate their
concerns to the federal regulators charged with deciding how
federal lands should be used. [
Footnote
2/7] Because Congress has ensured that any federal decision
Page 480 U. S. 606
will reflect the environmental concerns of affected States, a
duplicative system of permits would serve no purpose. Indeed, the
potential for conflict between state and federal decisions has
obvious disadvantages.
IV
In summary, it is fair to say that, commencing in 1872, Congress
has created an almost impenetrable maze of arguably relevant
legislation in no less than a half-dozen statutes, augmented by the
regulations of two Departments of the Executive. There is little
cause for wonder that the language of these statutes and
regulations has generated considerable confusion. There is an
evident need for Congress to enact a single, comprehensive statute
for the regulation of federal lands.
Having said this, it is at least clear that duplicative federal
and state permit requirements create an intolerable conflict in
decisionmaking. [
Footnote 2/8] In
view of the Property Clause of the Constitution, as well as common
sense, federal authority must control with respect to land
"belonging to the United States." Yet the Court's opinion today
approves a system of two-fold authority with respect to
environmental matters. The result of this holding is that state
regulators, whose views on environmental and mineral policy may
conflict with the views of the Forest Service, have the power, with
respect to federal lands, to forbid activity expressly authorized
by the Forest Service. I dissent.
Page 480 U. S. 607
[
Footnote 2/1]
See also National Materials and Minerals Policy,
Research and Development Act of 1980, § 2(a)(1), 30 U.S.C. §
1601(a)(1) (congressional finding that the availability of minerals
"is essential for national security, economic wellbeing, and
industrial production"); § 2(a)(3), 30 U.S.C. § 1601(a)(3)
(congressional finding that the extraction of minerals is "closely
linked with national concerns for energy and the environment"); §
3, 30 U.S.C. §1602 ("[I]t is the continuing policy of the United
States to promote an adequate and stable supply of materials
necessary to maintain national security, economic wellbeing and
industrial production with appropriate attention to a long-term
balance between resource production, energy use, a healthy
environment, natural resources conservation, and social
needs").
[
Footnote 2/2]
More recently, congressional solicitude for development of
federal mineral resources led Congress to order the President
to
"coordinate the responsible departments and agencies to, among
other measures . . . encourage Federal agencies to facilitate
availability and development of domestic resources to meet critical
materials needs."
30 U.S.C. § 1602(7).
[
Footnote 2/3]
The Court rests this part of its preemption analysis on
Hillsborough County v. Automated Medical Laboratories,
Inc., 471 U. S. 707
(1985). In that case, the Court stated:
"[W]e will pause before saying that the mere volume and
complexity of [an agency's] regulations indicate that the agency
did in fact intend to preempt."
Id. at
471 U. S. 718.
Hillsborough, however, is quite different from this case.
First, the state regulations were designed to ensure the health of
plasma donors, an aim entirely separate from the aim of the federal
regulations, to ensure the purity of the donated plasma. In this
case, by contrast, federal authorities already have considered the
environmental effects of Granite Rock's mine. The California
Coastal Commission seeks only to reconsider the decision of the
federal authorities. In any event, the argument for preemption in
this case does not rest on the Forest Service regulations alone,
but also on the comprehensive regulatory system enacted by
Congress. The Court cannot make
Hillsborough controlling
simply by considering the regulations separately from their
statutory source. As I explain,
infra at
480 U. S.
604-606, the complex of applicable statutes and
regulations, considered as a whole, preempts the Coastal
Commission's permit requirement.
[
Footnote 2/4]
The Forest Service regulations discussed above mention a
slightly different set of environmental standards than does the
FLPMA. Both provisions specifically preserve air and water
standards. The Forest Service regulations also mention solid waste
disposal standards; the Land Management Act also mentions noise
control standards.
Cf. 42 U.S.C. § 4901(a)(3) (Noise
Control Act provision stating that the "primary responsibility for
control of noise rests with State and local governments"). The
slight difference between the two lists of pollution standards,
however, is insignificant. The feature that all the listed
standards have in common is that other federal statutes
specifically preserve a place for state regulation.
See
supra at
480 U. S.
599-600.
[
Footnote 2/5]
The lack of statutory support for the Court's distinction is not
surprising, because -- with all respect -- it seems to me that the
distinction is one without a rational difference. As the Court puts
it:
"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."
Ante at
480 U. S. 587.
This explanation separates one of the reasons for Forest Service
decisions from the decisions themselves. In considering a proposed
use of a parcel of land in the national forest, the Forest Service
regulations consider the damage the use will cause to the
environment, as well as the federal interest in making resources on
public lands accessible to development. The Forest Service may
decide that the proposed use is appropriate, that it is
inappropriate, or that it would be appropriate only if further
steps are taken to protect the environment. The Court divides this
decision into two distinct types of regulation, and holds that
Congress intended to preempt duplicative state regulation of one
part, but not the other. Common sense suggests that it would be
best for one expert federal agency, the Forest Service, to consider
all these factors and decide what use best furthers the relevant
federal policies.
[
Footnote 2/6]
I express no view as to the Court's conclusion that the Coastal
Zone Management Act of 1972 (CZMA), 16 U.S.C. § 1451
et
seq. (1982 ed. and Supp. III), does not preempt the state
regulation in this case.
See ante at
480 U. S.
589-593.
[
Footnote 2/7]
The discussion in Part I deals primarily with the FLPMA and the
NFMA. In this case, the Coastal Commission actually had yet another
statutory basis for influencing the federal decisionmaking process.
Because Granite Rock's mine is near the California Coast, the
Coastal Commission has a right to consistency review under the
CZMA. Thus, if the Coastal Commission had voiced its concerns, the
Secretary could not have approved this permit unless he determined,
after a hearing, that "the activity is consistent with the
objectives of [the CZMA] or is otherwise necessary in the interest
of national security." 16 U.S.C. § 1456(c)(3)(A). Although the
Coastal Commission had notice of Granite Rock's application to the
Forest Service, it did not object to Granite Rock's activities
until two years after the application was approved and Granite Rock
began mining pursuant to the federal permit. Because the Coastal
Commission failed to make a timely complaint to the Forest Service,
it forfeited its right to consistency review under the CZMA.
By noting the provision for consistency review, I do not imply
that the CZMA itself preempts the Coastal Commission's permit
requirement.
See 480
U.S. 572fn2/6|>n. 6,
supra. I believe, however,
that the provision for consistency review, considered with the
other specific provisions for state participation in the federal
regulatory process, indicates that Congress did not believe the
States could have imposed separate permit requirements, even before
passage of the CZMA.
[
Footnote 2/8]
The Court concludes that Granite Rock has failed to demonstrate
a conflict because it rejects my conclusion that land use
regulation and environmental regulation are indistinguishable and
because it sees no harm in allowing state permit requirements to
supersede the decisions of federal officials.
Ante at
480 U. S.
593-594.
JUSTICE SCALIA, with whom JUSTICE WHITE joins, dissenting.
I agree with the Court that this case is live because of
continuing dispute over California's ability to assert a
reclamation claim,
ante at
480 U. S. 578.
[
Footnote 3/1] In my view, however,
the merits of this case must be decided on simpler and narrower
grounds than those addressed by the Court's opinion. It seems to me
ultimately irrelevant whether state environmental regulation has
been preempted with respect to federal lands, since the exercise of
state power at issue here is not environmental regulation, but land
use control. The Court errs in entertaining the Coastal
Commission's contention that "its permit requirement is an exercise
of environmental regulation,"
ante at
480 U. S. 589,
and mischaracterizes the issue when it describes it to be whether
"any state permit requirement, whatever its conditions, [is]
per se preempted by federal law,"
ante at
480 U. S. 593.
We need not speculate as to what the nature of this permit
requirement was. We are not dealing with permits in the abstract,
but with a specific permit, purporting to require application of
particular criteria, mandated by a numbered section of a known
California law. That law is plainly a land use statute, and the
permit that statute requires Granite Rock to obtain is a land use
control device. Its character
Page 480 U. S. 608
as such is not altered by the fact that the State may now be
agreeable to issuing it so long as environmental concerns are
satisfied. Since, as the Court's opinion quite correctly assumes,
ante at
480 U. S. 585,
state exercise of land use authority over federal lands is
preempted by federal law, California's permit requirement must be
invalid.
The permit at issue here is a "coastal development permit,"
required by the California Coastal Act, Cal.Pub.Res.Code Ann. §
30000
et seq. (West 1986). It is provided for by § 30600
of Chapter 7 of that Act (entitled "Development Controls"), which
states that a person wishing to undertake any "development" in the
coastal zone -- a term defined to include construction mining, and
"change in the density or intensity of use of land," § 30106 --
must obtain a coastal development permit from a local government or
the California Coastal Commission. The permit is to be granted if
the proposed development is in conformity with a state-approved
local coastal program or, where no such program yet exists, if the
proposed development
"is in conformity with the provisions of Chapter 3 . . . and . .
. will not prejudice the ability of the local government to prepare
a local coastal program that is in conformity with Chapter 3."
§ 30604. The "local coastal programs" to which these provisions
refer consist of two parts: (1) a land use plan, and (2) zoning
ordinances, zoning maps, and other implementing actions. §§
30511(b), 30512, 30513. Chapter 3 of the Act, with which these
local coastal programs must comply, consists largely of land use
prescriptions -- for example, that developments providing public
recreational opportunities shall be preferred, § 30213; that
oceanfront land suitable for recreational use shall be protected
for recreational use and development, § 30221; that commercial
recreational facilities shall have priority over private
residential, general industrial, or general commercial development,
but not over agriculture or coastal-dependent industry, § 30222;
that oceanfront land suitable for coastal-dependent aquaculture
shall be protected for that use,
Page 480 U. S. 609
§ 30222.5; that facilities serving the commercial fishing and
recreational boating industries shall be protected and, where
feasible, upgraded, § 30234; that the maximum amount of prime
agricultural land shall be maintained in agricultural production, §
30241; that all other lands suitable for agricultural use shall not
be converted to nonagricultural use except in specified
circumstances, § 30242; that conversions of coastal commercial
timberlands in units of commercial size to other uses shall be
limited to providing for necessary timber processing and related
facilities, § 30243; that the location and amount of new
development should maintain and enhance public access to the coast,
§ 30252; that coastal-dependent developments shall have priority
over other developments on or near the shoreline, § 30255; and that
coastal-dependent industrial facilities shall be encouraged to
locate or expand within existing sites, § 30260. [
Footnote 3/2]
Page 480 U. S. 610
It could hardly be clearer that the California Coastal Act is
land use regulation. To compound the certainty, California has
designated its Coastal Act as the State's coastal management
program for purposes of the Coastal Zone Management Act (CZMA), 16
U.S.C. § 1451
et seq. Cal.Pub.Res.Code Ann. § 30008 (West
1986). The requirements for such a program include "[a] definition
of what shall constitute permissible land uses and water uses
within the coastal zone," 16 U.S.C. § 1454(b)(2), and "[a]n
identification of the means by which the state proposes to exert
control over [those] land uses and water uses." § 1454(b)(4).
The § 30600 permit requirement, of course, is one of those means
of control -- and, whenever a permit application is evaluated
pursuant to the statutory standards, land (or water) use management
is afoot. Even if, as the State has argued before us and as the
Court has been willing to postulate, California intended to employ
the land use permit in this case only as a device for exacting
environmental assurances, the power to demand
that permit
nevertheless hinges upon the State's power to do what the statutory
permitting requirements authorize: to control land use. The legal
status of the matter is that Granite Rock, having received land use
approval from the Federal Government, has been requested to obtain
land use approval from the State of California. If state land use
regulation is in fact preempted in this location, there is no
justification for requiring Granite Rock to go through the motions
of complying with that
ultra vires request on the chance
that permission will be granted with no more than environmental
limitations. It is inconceivable
Page 480 U. S. 611
that, if a labor union federally certified as an authorized
bargaining agent sought injunctive or declaratory relief against a
requirement that it submit to state certification for the same
purpose, we would say that,
"[b]y choosing to seek . . . relief against the . . .
requirement before discovering what conditions the [State] would
have placed on the [certification], [the union] has lost the
possibility"
of prevailing.
Ante at
480 U. S. 588.
I see no basis for making the equivalent statement here. In the one
case as in the other, the demand for state approval is, in and of
itself, invalid. As the Ninth Circuit said in a similar case that
we summarily affirmed:
"The issue is whether [the State] has the power of ultimate
control over the Government's lessee, and this issue persists
whether or not a use permit would eventually be granted."
Ventura County v. Gulf Oil Corp., 601 F.2d 1080, 1085
(1979),
summarily aff'd, 445 U.S. 947 (1980). Even on the
assumption, therefore, that California was only using its land use
permit requirement as a means of enforcing its environmental laws,
Granite Rock was within its rights to ignore that requirement --
unless California has land use authority over the federal
lands in question.
In fact, however, this case is even more straightforward than
that, for there is no reason to believe that California was seeking
anything less than what the Coastal Act requires: land use
regulation. The Commission's letter to Granite Rock demanding a
permit application read as follows:
"Because of the significant control and authority enjoyed by
Granite Rock Company over the land subject to its mining claims at
Pico Blanco and the concommitant [
sic] significant
diminution of federal discretionary control, this land cannot be
included among the federal lands excluded from the coastal zone by
the CZMA. . . . Consequently, because the land is located seaward
of the coastal zone boundary established by the state
legislature
Page 480 U. S. 612
effective January 1, 1977, it is subject to the permit
requirements of the California Coastal Act."
"This letter will serve to notify Granite Rock of its obligation
to apply to the Coastal Commission for a coastal development permit
for any development, as defined in Section 30106 of the Coastal
Act, at the site undertaken after the date of this letter."
App. 22. This letter contains no hint that only environmental
constraints are at issue, as opposed to compliance with all of the
requirements of the State's coastal management program. Even in the
litigation stage -- both in the District Court and in the Court of
Appeals -- the argument that California was (or might be) seeking
to enforce only environmental controls was merely an alternative
position. The Commission's more sweeping contention was that the
land in question is not excluded from the CZMA, and that the CZMA
permits designated state coastal management programs to override
the Mining Act.
See App. to Juris. Statement A-4, A-12,
A-24. That argument has not been pressed here, having been rejected
by both lower courts. 768 F.2d 1077, 1080-1081 (CA9 1985);
590 F.
Supp. 1361, 1370-1371 (ND Cal.1984). It is perfectly clear,
however, that the assertion that the State is only enforcing its
environmental laws is purely a litigating position -- and a
late-asserted one at that.
On any analysis, therefore, the validity of California's demand
for permit application, and the lawfulness of Granite Rock's
refusal, depend entirely upon whether California has authority to
regulate land use at Pico Blanco. The Court is willing to assume
that California lacks such authority on account of the National
Forest Management Act of 1976 (NFMA), 16 U.S.C. § 1600
et
seq. (1982 ed. and Supp. III), and the Federal Land Policy and
Management Act of 1976 (FLPMA), 43 U.S.C. § 1701
et seq.
(1982 ed. and Supp. III).
Ante at
480 U. S. 585.
I believe that assumption is correct. Those statutes, as well as
the CZMA, require federal officials to coordinate and consult with
the States regarding use of federal
Page 480 U. S. 613
lands in order to assure consistency with state land use plans
to the maximum extent compatible with federal law and objectives.
16 U.S.C. §§ 1456(c)(3)(A), 1604(a); 43 U.S.C. § 1712(c). Those
requirements would be superfluous, and the limitation upon federal
accommodation meaningless, if the States were meant to have
independent land use authority over federal lands. The Court is
quite correct that the CZMA did not purport to change the
status quo with regard to state authority over the use of
federal lands.
Ante at
480 U. S.
589-593. But as the CZMA's federal lands exclusion, 16
U.S.C. § 1453(1), and consistency review provisions, 16 U.S.C. §
1456(c)(3)(A), clearly demonstrate, that
status quo was
assumed to be exclusive federal regulation.
Finally, any lingering doubt that exercise of Coastal Act
authority over federal lands is an exercise of land use authority
preempted by federal laws is removed by the fact that that is not
only the view of the federal agencies in charge of administering
those laws,
see Brief for United States as
Amicus
Curiae, but also was the original view of California, which
until 1978 excluded from the Coastal Act in language exactly
mirroring that of the federal lands exclusion from the CZMA, 16
U.S.C. § 1453(1),
"lands the use of which is by law subject solely to the
discretion of or which is held in trust by the federal government,
its officers or agents."
1976 Cal.Stats., ch. 1331, § 1,
as amended by 1978
Cal.Stats., ch. 1075, § 2,
codified at Cal.Pub.Res.Code
Ann. § 30008 (West 1986).
Any competent lawyer, faced with a demand from the California
Coastal Commission that Granite Rock obtain a § 30600 coastal
development permit for its Pico Blanco operations, would have
responded precisely as Granite Rock's lawyers essentially did: Our
use of federal land has been approved by the Federal Government,
thank you, and does not require the approval of the State. We
should not allow California to claim, in the teeth of the plain
language of its legislation, and in violation of the assurance it
gave to the Federal Government
Page 480 U. S. 614
by designating its Coastal Act as a coastal management program
under the CZMA, that it would use the permitting requirement to
achieve, not land use management, but only environmental controls.
We should particularly not give ear to that claim since it was not
the representation made to Granite Rock when application for the
permit was demanded. If environmental control is, as California now
assures us, its limited objective in this case, then it must simply
achieve that objective by means other than a land use control
scheme. If and when it does so, we may have occasion to decide (as
we need not today) whether state environmental controls are also
preempted. More likely, however, the question will not arise in the
future, as it has not arisen in the past, because of the Federal
Government's voluntary accommodation of state environmental
concerns -- an accommodation that could not occur here only because
California neglected to participate in the proceedings.
Ante at
480 U. S.
576-577, n. 1, 591.
I would affirm the court below on the ground that the California
Coastal Act permit requirement constitutes a regulation of the use
of federal land, and is therefore preempted by federal law.
[
Footnote 3/1]
I would not rely upon the alternative ground that the dispute
between these parties is "capable of repetition, yet evading
review."
Ante at
480 U. S. 578.
Assuming that Granite Rock submits a new 5-year plan to the Forest
Service and that California again seeks to require it to comply
with the coastal permitting requirements, I see no reason why that
action would evade our review.
See Weinstein v. Bradford,
423 U. S. 147,
423 U. S. 149
(1975). Moreover, for a dispute to be "capable of repetition,"
there must be a "reasonable expectation that the same complaining
party [will] be subjected to the same action again."
Ibid.
The Court may be correct that it is possible that California will
seek to enforce its permit requirement directly again,
ante at
480 U. S. 578;
but since California may well be able to accomplish what it wants
through the Coastal Zone Management Act's consistency review
procedures, 16 U.S.C. § 1456(c)(3)(A), I do not think it likely
that it will do so.
[
Footnote 3/2]
The State Coastal Commission is responsible for issuing coastal
development permits until the Commission has certified a local land
use plan, Cal.Pub.Res.Code Ann. § 30600.5(b) (West 1986), at which
time the responsibility devolves upon the local government,
ibid. Regardless of which governmental entity has the
authority to issue the permit, the requirements for its issuance
are those set forth in Chapter 3 of the California Coastal Act,
discussed
supra. These apply directly if a local coastal
program has not been certified, § 30604(a), or by enforcement of
the requirements of the local coastal program, § 30604(b), whose
land use plan must conform with that Chapter in order to be
certified, §§ 30512(c), 30512.1(c), 30512.2. Because local coastal
programs consist of such classic land use regulation tools as a
land use plan, zoning maps, zoning ordinances, and other
implementing devices, §§ 30511(b), 30512, permits issued upon a
showing of consistency with a local coastal program may be even
more obviously land use control devices than permits issued upon a
showing of consistency with the provisions of Chapter 3. But under
the plain terms of the statute, the latter no less than the former
are permits for land use. To establish the contrary proposition,
which is essential to its holding, the majority relies upon nothing
more substantial than the statement of counsel for the Commission,
in oral argument before us, that "[T]he Coastal Commission issues
permits based upon compliance with the environmental criteria in
the Coastal Act itself." Tr. of Oral Arg. 52, quoted
ante
at
480 U. S. 586,
n. 2. Read literally (
i.e., without inferring the adverb
"exclusively"), the statement is true (the Act does contain some
environmental criteria), but unhelpful to the majority's case. If,
however, counsel meant to imply that the Commission's permits could
not be conditioned upon compliance with the land use criteria, the
statement would not only contradict the plain language of the Act,
but would also be inconsistent with the litigating position taken
by the Commission in the previous stages of this lawsuit,
see
infra at
480 U. S.
611-612.