Bohmker v. Oregon
172 F. Supp. 3d 1155
D. Or.2016Background
- Plaintiffs are individual miners, mining groups, and mining-related businesses challenging Oregon Senate Bill 838 (SB 838), a temporary moratorium (to Jan 2, 2021) on motorized instream mining in specified waters and riparian zones that contain essential indigenous anadromous salmonid habitat (ESH).
- SB 838 prohibits use of any motorized equipment in beds or banks up to ordinary high water and up to 100 yards upland in ESH areas, but permits limited motorized mining elsewhere and allows non-motorized mining and certain upland activity that does not disturb vegetation harming water quality.
- Plaintiffs sought declaratory relief claiming SB 838 is preempted by federal mining law (notably the Mining Act of 1872) and federal land-management regulations.
- Defendants (State of Oregon and state officials) and intervenors defended SB 838 as a reasonable state environmental regulation within state authority and not preempted by federal law.
- The court found at least one plaintiff (Jason Gill) had Article III standing (he holds claims and an approved Forest Service plan permitting motorized equipment that SB 838 would bar within 100 feet of a creek) and the dispute was ripe.
- The court granted defendants’ summary judgment and denied plaintiffs’, holding SB 838 is a valid environmental regulation not preempted by federal law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SB 838 is preempted by federal mining law (express, field, or conflict preemption) | SB 838 conflicts with the Mining Act and federal regulations by effectively barring authorized mining methods on federal claims | Federal statutes/regulations do not show intent to preempt state environmental laws; some federal rules contemplate concurrent state regulation | Not preempted; no express, field, or conflict preemption found |
| Whether SB 838 is a land‑use regulatory extension (which might be preempted) or an environmental regulation | Plaintiffs: effect is to ban practical mining and thus functions like land‑use exclusion | Defendants: SB 838 targets environmental impacts (water quality, habitat), not land‑use allocation; permits and allowances remain | Court treats SB 838 as a reasonable environmental regulation, not a land‑use preempted law |
| Whether SB 838 operates as a de facto ban on mining (and so is preempted) | SB 838 is a complete ban in protected areas, making mining commercially impracticable | SB 838 restricts only motorized instream methods in limited areas and preserves other methods/locations and permit processes | Not a total ban; court finds it narrows a method in limited areas and is distinguishable from ordinances that banned all mining |
| Whether economic/practicability burdens on miners control preemption analysis | Plaintiffs: if law makes mining commercially impracticable, it should be preempted | Defendants & U.S. amicus position: increased cost or impracticability does not alone show preemption; Congress did not intend to preempt state environmental protections because they raise costs | Court rejects a "commercially impracticable" test for preemption; economic impact alone does not preempt state law |
Key Cases Cited
- California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572 (state environmental permits not preempted by federal mining/Forest Service law)
- South Dakota Mining Ass’n v. Lawrence County, 155 F.3d 1005 (8th Cir.) (ordinance that functionally banned all surface metal mining held preempted)
- United States v. Shumway, 199 F.3d 1093 (9th Cir. 1999) (historical context for mining rights and customs)
- Chrisman v. Miller, 197 U.S. 313 (1905) (discusses locatability and economic viability of mining claims)