Local and Federal Regulation of Mining in a Wilderness Area
| Jurisdiction | United States,Federal |
| Citation | Vol. 10 No. 1989 Pg. 1967 |
| Pages | 1967 |
| Publication year | 1989 |
1989, October, Pg. 1967. Local and Federal Regulation of Mining in a Wilderness Area
The Mining Act of 1872 ("1872 Act") grants to the holder of a perfected but unpatented mining claim the exclusive right of possession and enjoyment. The right is conditioned on compliance with the laws of the United States and non-conflicting state, territorial and local regulations.(fn1)
When a perfected but unpatented mining claim lies on national forest land that has been designated as federal wilderness and within a county that requires a local permit prior to mining, two issues arise: (1) whether the county may regulate the mining operation and (2) to what extent the Forest Service may impose conditions in the mining permit. The U.S. Constitution forms the basis for addressing these issues. The Takings Clause of the Fifth Amendment(fn2) limits the extent to which the federal government, through operation of the Wilderness Act of 1964 ("Wilderness Act"),(fn3) may interfere with development of such a claim. Local regulation of a mining operation within a wilderness area is similarly constrained by the Takings Clause as well as by the Supremacy Clause of the Sixth Amendment.(fn4)
This article discusses the issues of local regulation and conditions imposed by the Forest Service on mining within a designated wilderness area as they affect holders of perfected but unpatented mining claims.
The Supremacy Clause invalidates local laws that interfere with, or are contrary to, the laws and intent of Congress. Numerous state courts have confronted preemption questions involving state and local permit requirements for mining operations on unpatented claims within national forests.(fn5) In general, these courts have distinguished between regulation and prohibition.
Because the 1872 Act grants to a locator the exclusive right of possession and enjoyment,(fn6) any state or local regulation that prohibits exercise of that right is in conflict with the federal law and is thus preempted. However, since the 1872 Act expressly provides for non-conflicting state and local laws, Congress could not have intended to preempt the entire field. Consequently, a state or county permit requirement may be used to impose reasonable regulations on the exercise of the federal right to mine, but may not be used to prohibit mining.
In 1987, the preemption issue was brought before the U.S. Supreme Court. In California Coastal Commission v. Granite Rock Co.,(fn7) the holder of unpatented mining claims within a national forest argued that a state permit requirement was preempted by the 1872 Act, federal land management statutes, Forest Service regulations and the Coastal Zone Management Act ("CZMA").(fn8)
The Court focused on whether state environmental regulation was permissible, assuming, without deciding, that federal land use statutes preempted the extension of state land use plans onto unpatented mining claims on national forest lands. The environmental regulation/land use planning distinction formed the first step of the Court's analysis. In examining the 1872 Act, applicable Forest Service regulations,(fn9) the Federal Land Policy and Management Act of 1976 ("FLPMA"),(fn10) the National Forest Management Act of 1976 ("NFMA")(fn11) and the CZMA, the Court found no Congressional intent to preempt all state environmental regulation.
Next, the Court delineated two tests for whether a state permit condition is permissible: (1) the environmental regulation must be reasonable and (2) it must not be so severe that the particular land use becomes commercially impracticable.(fn12)
The Granite Rock decision can be used to determine the extent to which a county may regulate a mining operation on federal wilderness land within its jurisdiction. Although Granite Rock dealt with a state permit requirement, it would be illogical to differentiate between state and local action. Counties derive their power from the state and,
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