No. 16-35262 IN THE UNITED STATES COURT OF APPEALS FOR … · 2016-10-10 · No. 16-35262 IN THE...

No. 16-35262

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSHUA CALEB BOHMKER et al.,

Plaintiffs-Appellants,

v.

STATE OF OREGON et al.,

Defendants-Appellees,

ROGUE RIVERKEEPER et al.,

Intervenors-Appellees.

On Appeal from the United States District Court for the District of Oregon No. 1:15-cv-01975-CL

Hon. Mark D. Clarke, Magistrate Judge

BRIEF OF THE STATES OF CALIFORNIA AND WASHINGTON AS AMICI CURIAE IN SUPPORT OF

DEFENDANTS-APPELLEES AND AFFIRMANCE ROBERT W. FERGUSON Attorney General of Washington 1125 Washington Street SE P.O. Box 40100 Olympia, WA 98504-0100 Telephone: (360) 753-6200

KAMALA D. HARRIS Attorney General of California ROBERT W. BYRNE Senior Assistant Attorney General JOSHUA A. KLEIN Deputy Solicitor General GAVIN G. MCCABE Supervising Deputy Attorney General MARC N. MELNICK (SBN 168187) Deputy Attorney General P.O. Box 70550 Oakland, CA 94612-0550 Telephone: (510) 879-0750 Fax: (510) 622-2270 Email: [email protected]

Case: 16-35262, 10/21/2016, ID: 10169409, DktEntry: 38, of 44

TABLE OF CONTENTS

Page

i

Interest and Authority .................................................................................... 1 Summary of Argument .................................................................................. 2 Argument ....................................................................................................... 4

I. Congress’s Purposes and Objectives in Enacting the Mining Act of 1872 Do Not Require Displacement of Oregon’s Law ............................................................................ 4 A. The Federal Statute’s Fundamental Concern—

Settling Property Rights—Is Unaffected by Oregon’s Law ................................................................. 4

B. A Presumption Against Preemption Applies Even When Construing Congress’s Intent as to Statutes Enacted Under the Property Clause ................................ 9

C. Substantial Weight Should Be Given to Federal Agencies’ Determination that Statutes Like Oregon’s Pose No Risk to Federal Goals ..................... 13

D. A “Commercial Impracticability” Test Would Be Unworkable and Would Call Into Doubt State Regulations that Courts Have Approved ...................... 19

II. Bohmker’s Cases and Other Federal Statutes Do Not Support Preemption Here ........................................................ 23 A. Bohmker Relies on Superseded and Inapposite

Precedents ..................................................................... 23 B. The Surface Mining and Reclamation Act, Federal

Land Policy and Management Act, and 30 U.S.C. § 612(b) Do Not Support Bohmker’s Preemption Claim ............................................................................. 26

III. California’s Experience Shows that Oregon’s Moratorium Is a Reasonable Response to the Significant Environmental Risks Posed by Suction Dredge Mining ........ 30

Conclusion ................................................................................................... 33


TABLE OF CONTENTS (continued)

Page

ii

Certificate of Compliance ............................................................................ 34


TABLE OF AUTHORITIES

Pages

iii

CASES

Bates v. Dow Agrosciences LLC 544 U.S. 431 (2005)........................................................................... 10

Brubaker v. Board of County Commissioners 652 P.2d 1050 (Colo. 1982) ............................................................... 26

California Coastal Commission v. Granite Rock Co. 480 U.S. 572 (1987).................................................................... passim

Center for Competitive Politics v. Harris 784 F.3d 1307 (9th Cir. 2015) ........................................................... 29

Chae v. SLM Corp. 593 F.3d 936 (9th Cir. 2010) ............................................................. 16

Chamber of Commerce v. Whiting 563 U.S. 582 (2011)............................................................................. 6

Chrysler Corp. v. Brown 441 U.S. 281 (1979)........................................................................... 14

Commonwealth Edison Co. v. Montana 453 U.S. 609 (1981)............................................................................. 8

County of Sutter v. Nichols 152 Cal. 688 (1908) ..................................................................... 12, 22

County of Yuba v. Kate Hayes Mining Co. 141 Cal. 360 (1903) ........................................................................... 12

CSX Transp. Inc. v. Easterwood 507 U.S. 658 (1993)............................................................................. 6

Don’t Tear It Down, Inc. v. Pennsylvania Ave. Dev. Corp. 642 F.2d 527 (D.C. Cir 1980) ...................................................... 10, 11


TABLE OF AUTHORITIES (continued)

Pages

iv

Elliott v. Oregon International Mining Co. 654 P.2d 663 (Or. Ct. App. 1982) ..................................................... 26

English v. General Elec. Co. 496 U.S. 72 (1990)........................................................................... 4, 6

Forbes v. Gracey 94 U.S. 762 (1876)............................................................................. 21

Granite Rock Co. v. Cal. Coastal Comm’n 768 F.2d 1077 (9th Cir. 1985) ........................................................... 25

Jennison v. Kirk 98 U.S. 453 (1878)............................................................................... 7

Jones v. Rath Packing Co. 430 U.S. 519 (1977)........................................................................... 10

Karuk Tribe of Cal. v. U.S. Forest Serv. 681 F.3d 1006 (9th Cir. 2012) (en banc) ........................................... 30

Lacoste v. Dep’t of Conservation 263 U.S. 545 (1924)........................................................................... 12

McDaniel v. Wells Fargo Investments, LLC 717 F.3d 668 (9th Cir. 2013) ....................................................... 11, 12

O’Donnell v. Glenn 19 P. 302 (Mont. 1888) ...................................................................... 30

Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n 461 U.S. 190 (1983)............................................................................. 8

Pacific Merchant Shipping Association v. Goldstene 639 F.3d 1154 (9th Cir. 2011) ........................................................... 12



Pages

v

People v. Gold Run Ditch & Mining Co. 66 Cal. 138 (1884) ............................................................................. 21

People v. Rinehart 377 P.3d 818 (Cal. 2016) ............................................................ passim

Rodriguez v. United States 480 U.S. 522 (1987)............................................................................. 8

Seven Up Pete Venture v. Montana 114 P.3d 1009 (Mont. 2005) .............................................................. 15

Skaw v. United States 740 F.2d 932 (Fed. Cir. 1984) ........................................................... 26

South Dakota Mining Association, Inc. v. Lawrence County 155 F.3d 1005 (8th Cir. 1998) ............................................... 23, 24, 25

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg. Planning Agency 535 U.S. 302 (2002)........................................................................... 24

United States v. Backlund 689 F.3d 986 (9th Cir. 2012) ............................................................. 28

United States v. Cal. State Water Res. Control Bd. 694 F.2d 1171 (9th Cir. 1982) ........................................................... 10

United States v. Locke 529 U.S. 89 (2000)............................................................................. 11

United States v. Shumway 199 F.3d 1093 (9th Cir. 1999) ........................................................... 29

Ventura County v. Gulf Oil Corp. 601 F.2d 1080 (9th Cir. 1979) ..................................................... 25, 26



Pages

vi

Woodruff v. Bloomfield Gravel Mining Co. 18 F. 753 (C.C.D. Cal. 1884) ................................................... 7, 13, 21

Wyeth v. Levine 555 U.S. 555 (2009).................................................................... passim

Wyoming v. United States 279 F.3d 1214 (10th Cir. 2002) ......................................................... 10

Yuba County v. Kate Hayes Mining Co. 141 Cal. 360 (1903) ........................................................................... 12

FEDERAL STATUTES

United States Code, title 30 § 21a ..................................................................................................... 8 § 22 ............................................................................................ 4, 5, 30 § 22 et seq. ..................................................................................... 4, 17 § 26 .................................................................................................. 4, 6 § 28 .................................................................................................. 4, 5 § 29 ...................................................................................................... 5 § 35 ...................................................................................................... 4 § 37 ...................................................................................................... 5 § 43 ...................................................................................................... 5 § 601 et seq. ....................................................................................... 17 § 612(b) .................................................................................. 28, 29, 30 § 613 .................................................................................................. 29 § 1255(a) ............................................................................................ 26 § 1281 ................................................................................................ 26

United States Code, title 33 § 661 et seq. ....................................................................................... 21

United States Code, title 43 § 1712(c)(9) ....................................................................................... 28



Pages

vii

An Act of March 1, 1893, ch. 183, 27 Stat. 507 ..................................... 22

FEDERAL REGULATIONS

Code of Federal Regulations, title 36 § 228.5(b) ........................................................................................... 18 § 228.8 ............................................................................................... 18

Code of Federal Regulations, title 43 § 3715.5(b) ......................................................................................... 18 § 3802.3-2(a)-(c) ................................................................................ 18 § 3809.3 ............................................................................................. 14

CALIFORNIA STATUTES

Cal. Fish and Game Code § 5653 ................................................................................................ 32 § 5653.1 ............................................................................................. 32

1893 Cal. Stat., ch. 223, § 1, at p. 337 .................................................... 12

2009 Cal. Stat., ch. 62 ............................................................................. 32

2015 Cal. Stat., ch. 680 ........................................................................... 32

COURT RULES

Federal Rules of Appellate Procedure Rule 29(a) ............................................................................................ 1

OTHER AUTHORITIES

Brief of United States as Amicus Curiae, People v. Rinehart, 2015 WL 5166997 ...................................................................................... 15

Clarification as to When a Notice of Intent To Operate and/or Plan of Operation Is Needed for Locatable Mineral Operations on National Forest System Lands, 70 Fed. Reg. 32713 (June 6, 2005) ................ 14



Pages

viii

George C. Coggins & Robert L. Glicksman, Public Natural Resources Law (2d ed. 2007 & 2016 Supp.) ................................................ 26, 28

Great Basin Mine Watch, 146 IBLA 248 (1998) ................................... 18

House Report No. 84-730 (1955) ........................................................... 29

House Report No. 84-1096 (1955) ........................................................ 29

Mining Claims Under the General Mining Laws; Surface Management, 64 Fed. Reg. 6422 (Feb. 9, 1999) ............................... 14

Mining Claims Under the General Mining Laws; Surface Management, 65 Fed. Reg. 69998 (Nov. 21, 2000) .............. 13, 14, 15

Senate Report No. 50-1944 (1888) ......................................................... 22

23 Cong. Rec. 6344 (1892) ..................................................................... 22


1

INTEREST AND AUTHORITY

The States of California and Washington submit this brief pursuant to

Rule 29(a) of the Federal Rules of Appellate Procedure.

California has long experience with, and a substantial interest in, the

issues in this case. Mining has been an important industry in California

since the State’s Gold-Rush-era founding. California’s regulation of mining

has long been cognizant of the need to respect and comply with rights

conferred under federal mining law. California has experience in balancing

the needs of mining with the need to protect the State’s citizens, fish,

wildlife, and agriculture from environmental harm.

California has extensive experience with the particular mining practice

regulated by the Oregon statute at issue in this case. California has regulated

suction dredge mining since 1961. Recent study has led California’s

Legislature to a conclusion similar to Oregon’s: that suction dredge mining

has significant environmental impacts, requiring a temporary moratorium on

the practice so that scientifically appropriate regulations can be devised to

mitigate and control the harm. See pp. 30-32, infra. California has engaged

in extensive litigation regarding its resulting statute, which the California

Supreme Court recently upheld against a federal preemption claim in People

v. Rinehart, 377 P.3d 818 (Cal. 2016).


2

Although Washington regulates mining in streams and waterways

differently from Oregon and California, Washington also recognizes the

potential adverse environmental impacts of such activities, including their

potential impacts on Indian treaty fishing rights. Washington has a strong

interest in preserving state regulatory options for minimizing or mitigating

those impacts.

SUMMARY OF ARGUMENT

Careful examination of the text, structure, and legislative history of the

Mining Act of 1872 shows that Congress’s central concern was with

defining the property rights between the United States and miners, who

without the legislation would have been considered trespassers. State

regulation of mining on federal land does not interfere with these goals, and

Congress intended to preserve—not eliminate—such state regulatory power.

Although the federal statute is clear on this point, any ambiguity would

be settled by the presumption against preemption, which applies to

Congress’s exercise of its Property Clause powers and notwithstanding the

federal government’s history of mining regulation. Moreover, under both

general preemption principles and the Supreme Court’s specific instruction

as to mining laws, substantial weight is due to the view of the relevant

federal agency, whose regulation specifically recognizes States’ ability to


3

impose higher environmental protections, including bans on a particular

method of mining, so long as state law does not make it impossible to

comply with federal law. Amici supporting Bohmker have proposed a

different test, which would preempt all state laws that render mining a

particular claim unprofitable. But that test has no support in the statute,

creates an unworkable standard, and would call into question a broad range

of state laws that courts and Congress have deemed fully compatible with

Congress’s purposes.

The precedents on which Bohmker relies to support broader preemption

not only are inapposite but also have been superseded by intervening

authority: the Supreme Court decision in California Coastal Commission v.

Granite Rock Co., 480 U.S. 572 (1987), and the federal agency’s assessment.

Bohmker’s attempt to rest broad preemption on other federal statutes

relating to mining likewise fails.

Finally, California’s extensive study of suction dredge mining

demonstrates that Oregon’s statute responds to a significant environmental

problem in a reasonable way.


4

ARGUMENT

I. CONGRESS’S PURPOSES AND OBJECTIVES IN ENACTING THE MINING ACT OF 1872 DO NOT REQUIRE DISPLACEMENT OF OREGON’S LAW

A. The Federal Statute’s Fundamental Concern—Settling Property Rights—Is Unaffected by Oregon’s Law

Preemption is a question of congressional intent. English v. General

Elec. Co., 496 U.S. 72, 78-79 (1990). Bohmker’s argument for preemption

primarily rests on the federal Mining Act of 1872, codified at 30 U.S.C. § 22

et seq. See Opening Brief 20-29. Oregon’s statute should be upheld,

because the Act, as evidenced by its text, structure, and history, reveals no

intent to preempt state environmental regulation of destructive mining

practices.

1. The Mining Act was recently examined in detail by the California

Supreme Court in People v. Rinehart, 377 P.3d 818 (Cal. 2016). As that

case noted, the Act “allows citizens to enter federal land freely and explore

for valuable minerals.” Id. at 824; see 30 U.S.C. § 22. The statute provides

a mechanism by which prospectors may “obtain a right to possess and

develop the area around their claim, with title remaining with the United

States.” 377 P.3d at 824; see 30 U.S.C. §§ 26, 35. By taking further steps,


5

the miner may acquire “not only possession, but formal title—a patented

claim.” 377 P.3d at 824; see 30 U.S.C. §§ 29, 37.

As Rinehart observed, the statute’s text focuses on “the delineation of

the real property interests of miners vis-à-vis each other and the federal

government.” 377 P.3d at 824.

The provisions of the 1872 law identify in detail the conditions for obtaining, and extent of, a right of occupancy (30 U.S.C. §§ 26-27), the conditions for obtaining complete title (id., §§ 29, 37), the size of claims (id., §§ 23, 35), the marking and recordation of claims (id., §§ 28, 34), how disputes between claimants are to be resolved (id., § 30), and so on.

Id. In short, “the act as a whole is devoted entirely to the allocation of real

property interests among those who would exploit the mineral wealth of the

nation’s lands, not regulation of the process of exploitation—the mining—

itself.” Id.

Far from displacing state law, the Mining Act envisions considerable

local control over mining activities. See 30 U.S.C. § 43 (approving state-law

regulation of mining claim sales); id. § 22 (mineral exploration on federal

land shall occur “under regulations prescribed by law, and according to the

local customs or rules of miners in the several mining districts, so far as the

same are applicable and not inconsistent with the laws of the United

States”); id. § 28 (allowing miners to adopt local rules, not in conflict with


6

“the laws of the State,” regarding possession of mining claims). A miner’s

right of possession is expressly conditioned on compliance with all state

laws that do not contradict the federal law’s provisions governing possessory

title. See id. § 26 (mining locators have possessory rights “so long as they

comply with the laws of the United States, and with State, territorial, and

local regulations not in conflict with the laws of the United States governing

their possessory title”). These “express acknowledgements of the

application of state and local law to federal mining claims suggest an

apparent willingness on the part of Congress to let federal and state

regulation broadly coexist, especially insofar as those state laws relate to

matters other than a miner’s ‘possessory title.’” Rinehart, 377 P.3d at 824-

825.

“Implied preemption analysis does not justify a ‘freewheeling judicial

inquiry into whether a state statute is in tension with federal objectives.’”

Chamber of Commerce v. Whiting, 563 U.S. 582, 607 (2011). Rather,

“[e]vidence of pre-emptive purpose is sought in the text and structure of the

statute at issue.” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664

(1993). Because Congress has spoken explicitly as to the validity of state

law, “the courts’ task is an easy one”—Oregon’s statute should be upheld.

English, 496 U.S. at 79.


7

2. Legislative history confirms this interpretation. For years after the

discovery of gold in California and other parts of the West, prospectors

mined on federal land despite a lack of congressional sanction of their

activities. Rinehart, 377 P.3d at 825. After the Civil War, Congress’s

attention to the subject led to two competing proposals. One proposal would

have put public land up for auction, “selling out from under miners the

[federal] territory they had explored and developed.” Id. In contrast, under

the other proposal, “miners would be granted a right to occupy and, for a

small fee, acquire title to the land they mined.” Id. at 825-826. That latter

proposal is the approach Congress chose in the 1866 mining law. Id. at 826.

And the 1866 law’s approach, and much of its text, in turn formed the

Mining Act of 1872. Id. The “[g]eneral purpose of the act … was to give

the sanction of the government to possessory rights acquired under the local

customs, laws, and decisions of the courts,” Jennison v. Kirk, 98 U.S. 453,

461 (1878), thus legalizing what previously had been considered trespass,

Woodruff v. Bloomfield Gravel Mining Co., 18 F. 753, 773-774 (C.C.D. Cal.

1884).

Congress undoubtedly aimed to encourage the development of the

nation’s mineral resources and granted certain privileges for that purpose.

But neither congressional intent to encourage an activity nor the granting of


8

a federal privilege necessarily preempts state laws that adversely affect such

activity. See Commonwealth Edison Co. v. Montana, 453 U.S. 609, 633-634

(1981) (upholding state regulations that affected coal mining conducted

under the federal Mineral Lands Leasing Act); Pacific Gas & Elec. Co. v.

State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 221-223

(1983) (upholding state restrictions on nuclear power plants licensed under

the federal Atomic Energy Act, notwithstanding congressional goal to

“promot[e] … nuclear power”).

“[N]o legislation pursues its purposes at all costs,” and “it frustrates

rather than effectuates legislative intent simplistically to assume that

whatever furthers the statute’s primary objective must be the law.”

Rodriguez v. United States, 480 U.S. 522, 525-526 (1987). That is

particularly true here, given that Congress has more recently included

environmental protection as part of the “continuing policy of the Federal

Government” with respect to mining. 30 U.S.C. § 21a; see Rinehart, 377

P.3d at 825 (section 21a “convey[s] that Congress did not, and does not,

intend mining to be pursued at all costs,” but rather “acknowledge[s] mining

must be done in an ‘orderly’ fashion and account for ‘environmental needs’

and ‘any adverse impact’ on ‘the physical environment’”).


9

The Mining Act’s focus and the incentive structure it created

encouraged mining by settling property rights—not by guaranteeing miners

a right to be free from state regulation. “[T]he main inducement offered”

was a “system for the allocation of real property rights,” which served to

protect miners “against the threatened exercise by Congress of its latent

property clause power to sell land” that the miners were working. Rinehart,

377 P.3d at 826 (discussing legislative history). “The mining laws were

neither a guarantee that mining would prove feasible nor a grant of

immunity against local regulation, but simply an assurance that the ultimate

original landowner, the United States, would not interfere by asserting its

own property rights.” Id. at 826-827. Because Oregon’s statute does not

interfere with these purposes and objectives, it is not preempted.

B. A Presumption Against Preemption Applies Even When Construing Congress’s Intent as to Statutes Enacted Under the Property Clause

Any ambiguity as to what Congress intended is settled by the

presumption against preemption. In “all pre-emption cases, and particularly

in those in which Congress has legislated in a field which the States have

traditionally occupied,” courts “start with the assumption that the historic

police powers of the States were not to be superseded by the Federal Act

unless that was the clear and manifest purpose of Congress.” Wyeth v.


10

Levine, 555 U.S. 555, 565 (2009) (internal quotation marks and ellipses

omitted). Thus, if two readings of a federal statute are plausible, courts

“have a duty to accept the reading that disfavors pre-emption.” Bates v.

Dow Agrosciences LLC, 544 U.S. 431, 449 (2005). This high standard

“provides assurance that ‘the federal-state balance’ will not be disturbed

unintentionally by Congress or unnecessarily by the courts.’” Jones v. Rath

Packing Co., 430 U.S. 519, 525 (1977) (citation omitted).

As a result, the presumption applies even when interpreting what

Congress intended in its regulation of federal land under the Property

Clause. See, e.g., Wyoming v. United States, 279 F.3d 1214, 1231 (10th Cir.

2002) (no preemption of “Wyoming’s historical police powers to manage

wildlife on federal lands within its borders ‘unless that was the clear and

manifest purpose of Congress’”); United States v. Cal. State Water Res.

Control Bd. 694 F.2d 1171, 1172 n.1, 1174-1176 (9th Cir. 1982) (applying

the presumption against preemption in case regarding reclamation project on

federal land controlled by the Department of Interior, where Congress was

exercising its Property Clause power). Bohmker does not prove the contrary

through his citation to Don’t Tear It Down, Inc. v. Pennsylvania Avenue

Development Corp., 642 F.2d 527 (D.C. Cir. 1980). See Opening Brief 18.

That case concerned whether the District of Columbia’s historical


11

preservation law could restrict a federal entity’s actions in razing and

rebuilding federally owned buildings. See 642 F.2d at 528-530. The court’s

judgment that Congress likely had intended not to allow such interference

with the federal government’s proprietary development of federal property

does not undercut the applicability of the presumption against preemption

when determining whether Congress intended to preempt state laws

concerning the activities of private actors on federal land.1

Noting the longstanding federal regulation of mining, Bohmker cites

United States v. Locke, 529 U.S. 89 (2000), to argue that this presumption

does not apply in fields where the federal government has played an

important historical role. Opening Brief 18. But the Supreme Court has

more recently made clear that the presumption against preemption depends

upon the “historic presence of state law,” not “the absence of federal

regulation.” Wyeth, 555 U.S. at 565 n.3. Accordingly, in McDaniel v. Wells

Fargo Investments, LLC, 717 F.3d 668 (9th Cir. 2013), this Court rejected

the argument that Congress’s long regulation of securities markets rendered

the presumption against preemption inapplicable in a suit testing whether the

1 Nor was there any ambiguity for a presumption to resolve in Don’t Tear it Down, where the federal statute prohibited the District of Columbia from “‘modify[ing], or depart[ing]’” from the federal entity’s congressionally mandated development plan. 642 F.2d at 533.


12

federal securities laws preempted state labor law. See id. at 675 (“[W]hether

Congress has regulated the securities industry comprehensively for fifty

years or only interstitially for five is irrelevant.”). And Pacific Merchant

Shipping Association v. Goldstene, 639 F.3d 1154 (9th Cir. 2011), applied

the presumption against preemption when considering whether state

environmental regulations were preempted by federal laws concerning

maritime commerce. See id. at 1167 (although the challenged state

regulations “operate in fields historically occupied by the federal

government,” they “implicate the prevention and control of air pollution”—

an area of traditional state concern).

Protection of fish and wildlife, water resources, and the environment is

a core state power. See Rinehart, 377 P.3d at 823; Lacoste v. Dep’t of

Conservation, 263 U.S. 545, 551 (1924) (“Protection of the wildlife of the

state is peculiarly within the police power ….”). States have long exercised

their power to further these interests by preventing harmful mining activity.

See, e.g., County of Sutter v. Nicols, 152 Cal. 688 (1908) (injunction against

hydraulic mining); County of Yuba v. Kate Hayes Mining Co., 141 Cal. 360

(1903) (injunction against ground-sluice mining); 1893 Cal. Stat. ch. 223,

§ 1, at p. 337 (requiring hydraulic mining to be practiced without harm to

streams or adjacent lands). The imposition of such limitations under


13

California law received federal approval soon after the 1872 Mining Act’s

passage. See pp. 21-22, infra (discussing history and aftermath of Woodruff,

18 F. 753 (upholding state-nuisance-law injunction against hydraulic mining

due to environmental effects)). Given that Congress has not clearly

indicated an intent to preempt these powers by the federal mining law,

Oregon’s statute should stand.

C. Substantial Weight Should Be Given to Federal Agencies’ Determination that Statutes Like Oregon’s Pose No Risk to Federal Goals

Federal agencies’ analyses confirm that Oregon’s temporary ban on one

method of mining poses no threat to the Mining Act’s goals.

1. The Bureau of Land Management (BLM), which is responsible for

administering federal mining law, has concluded that the objectives of the

federal mining laws are not harmed by state laws which require a higher

level of environmental protection or bar a particular form of mining. In

BLM’s view, “States may apply their laws to operations on public lands.”

Mining Claims Under the General Mining Laws; Surface Management, 65

Fed. Reg. 69998, 70008 (Nov. 21, 2000). State law or regulation “is

preempted only to the extent that it specifically conflicts with Federal law,”

which occurs “only when it is impossible to comply with both Federal and

State law at the same time.” Id. at 70008-70009. “[N]o conflict exists if the


14

State regulation requires a higher level of environmental protection.” Id. at

70008; see 43 C.F.R. § 3809.3 (“[T]here is no conflict if the State law or

regulation requires a higher standard of protection for public lands than this

subpart.”).

BLM’s regulation, which was adopted by notice-and-comment

rulemaking and has the force of law, see Chrysler Corp. v. Brown, 441 U.S.

281, 301-303 (1979), responds to the Supreme Court’s encouragement for

federal agencies to address preemption in their mining regulations, see

Mining Claims Under the General Mining Laws; Surface Management, 64

Fed. Reg. 6422, 6427 (Feb. 9, 1999) (discussing California Coastal Comm’n

v. Granite Rock Co., 480 U.S. 572 (1987)). It reflects BLM’s consistent

view over several decades. See id. (quoting preamble to 1980 regulations).2

BLM made special note of a Montana statute. 65 Fed. Reg. at 70009.

That statute banned one method of mining—cyanide leaching-based

2 The U.S. Forest Service has similarly stated that “[i]t is entirely

possible that both the Forest Service and a State can permissibly regulate suction dredge mining operations for locatable minerals occurring on [Forest Service] lands,” and that “[s]tate regulation … is pre-empted when it conflicts with Federal law.” Clarification as to When a Notice of Intent To Operate and/or Plan of Operation Is Needed for Locatable Mineral Operations on National Forest System Lands, 70 Fed. Reg. 32713, 32722 (June 6, 2005).


15

operations—which miners argued was the only economically viable way to

mine. Id.; see Seven Up Pete Venture v. Montana, 114 P.3d 1009, 1015-

1016 (Mont. 2005). Applying the principles above, BLM concluded that the

Montana statute “provide[d] a higher standard of protection” and was not

preempted. See 65 Fed. Reg. at 70009 (“BLM believes that this is consistent

with [the Federal Land Policy and Management Act], the mining laws, and

the [Supreme Court’s] decision in the Granite Rock case.” (italics added)).

As the district court here noted (ER 22), the United States’ view was

recently confirmed in the Rinehart case. See Brief of United States as

Amicus Curiae in People v. Rinehart, available at 2015 WL 5166997.

2. BLM’s view deserves respect both under general principles of

preemption and under specific Supreme Court precedent about mining law

preemption.

Courts “attend[] to an agency’s explanation of how state law affects the

regulatory scheme,” because federal agencies “have a unique understanding

of the statutes they administer and an attendant ability to make informed

determinations about how state requirements may pose an ‘obstacle to the

accomplishment and execution of the full purposes and objectives of

Congress.’” Wyeth, 555 U.S. at 577. Of course, deference is not warranted

where there are shortcomings in the “thoroughness, consistency, and


16

persuasiveness” of the agency’s view, as was the case in Wyeth itself. Id.

This Court has explained that the lack of deference to the agency’s

preemption views in Wyeth resulted from two factors: “all evidence of

congressional intent pointed away from” the agency’s position, and the

agency “had recently, abruptly, and sweepingly changed its view.” Chae v.

SLM Corp., 593 F.3d 936, 949-950 (9th Cir. 2010). Neither of those factors

is present here—and unlike in Wyeth, the agency has provided its views on

preemption in a formal rule “with the force of law.” Wyeth, 555 U.S. at 580.

With respect to federal mining laws in particular, Granite Rock makes

clear that the views of the federal agencies that implement those laws play a

central role in the determination of those laws’ preemptive effect. In

Granite Rock, a company owned unpatented mining claims on federal land

and had a plan of operations approved by the U.S. Forest Service. Granite

Rock, 480 U.S. at 576. After the California Coastal Commission instructed

the company to apply for a coastal development permit for its mining

activities, the company sued, claiming that the state-law permit requirement

was preempted. Id. at 576-577. The Supreme Court rejected that challenge,

holding that the state requirement to apply for a permit did not conflict with

federal law. Id. at 593-594; see id. at 582-584 (examining preemption under


17

the Mining Act of 1872, 30 U.S.C. § 22 et seq., and the Multiple Use Mining

Act of 1955, 30 U.S.C. § 601 et seq.).

Noting the mining company’s “conce[ssion] that the Mining Act of

1872, as originally passed, expressed no legislative intent on the as yet rarely

contemplated subject of environmental regulation,” the Supreme Court

reasoned that “[i]f … it is the federal intent that [miners] conduct [their]

mining unhindered by any state environmental regulation, one would expect

to find the expression of this intent in [federal agency] regulations.” Granite

Rock, 480 U.S. at 582-583. Indeed, the Court said, it would be “appropriate

to expect an administrative regulation to declare any intention to pre-empt

state law with some specificity.” Id. at 583.

Granite Rock determined that the federal mining regulations then in

effect “not only are devoid of any expression of intent to pre-empt state law,

but rather appear to assume that those submitting plans of operations [to

mine on federal land] will comply with state laws.” 480 U.S. at 583. As

examples, the Court noted federal regulatory provisions (which remain in

place today) requiring compliance with state air quality, water quality, and


18

solid waste standards, as well as with general state environmental protection

laws. See id. at 583-584 (citing 36 C.F.R. §§ 228.5(b), 228.8).3

The Court rejected the dissent’s position that federal law could not

permit a regime whereby “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.” Compare 480 U.S. at 606 (Powell, J.,

concurring and dissenting), with id. at 594 (majority opinion). And it

rejected the argument that preemption was required because the state

regulations were invalidly “duplicative” of federal requirements. Id. at 593-

594.

The text and history of the Mining Act have not changed since Granite

Rock, and federal agency regulations continue to “assume that those

submitting plans of operations [to mine on federal land] will comply with

3 See also 43 C.F.R. §§ 3715.5(b) (requiring miners to comply with

“all applicable … state environmental standards”); id. § 3802.3-2(a)-(c) (requiring compliance with state air, water quality, and solid waste disposal standards); Great Basin Mine Watch, 146 IBLA 248, 256 (1998) (in determining whether a federal mining claim is “valuable” and therefore valid, “the costs of compliance with all applicable Federal and State laws (including environmental laws) are properly considered”; “[u]nder no circumstances can compliance be waived merely because failing to do so would make mining of the claim unprofitable”).


19

state laws.” 480 U.S. at 583. Indeed, the regulatory context supports a

finding of no preemption here even more strongly than in Granite Rock—

because federal agencies have responded to the Supreme Court’s invitation

by issuing a regulation which affirmatively approves of the kind of state law

at issue here. See pp. 13-15, supra.

D. A “Commercial Impracticability” Test Would Be Unworkable and Would Call Into Doubt State Regulations that Courts Have Approved

Amici Curiae the Pacific Legal Foundation (p. 13) and American

Exploration & Mining Association (pp. 22-24) suggest that, instead of

adhering to the Mining Act’s original purpose and the federal agencies’

current view, this Court should hold that federal law preempts any state

environmental regulation that makes mining unprofitable or “commercially

impracticable.” That test is unadministrable and would lead to nonsensical

results, including the potential invalidation of scores of state laws which

Congress has shown a desire to preserve.

In mining as elsewhere, commercial success depends on the balance

between costs and revenues. Profitability will vary based on factors such as

the location of the mining claim and the skill of the miner. It will also

depend on the market price of gold, which Federal Reserve data show has


20

ranged from under $300 to over $1,800 per ounce over the last thirty years.4

Under a “commercial impracticability” standard, a regulation affecting a

particular claim might be preempted one month but not the next, based on

the changing price of gold. It could be preempted when one miner owns the

claim, but not when it is sold to another, more skilled miner. The least

viable mining claims would be specially exempt from state regulation,

resulting in a counterproductive preference for less efficient mines.

Moreover, mining is subject to multiple regulations, concerning subjects

such as water pollution, air quality, fuel discharge, explosives, streambed

protections, coastal protections, nuisances, and noise. Where multiple

regulations apply to a single claim, Amici’s standard would require courts to

decide the order in which to apply those regulations, and which of them

should be invalidated for tipping the scales to commercial impracticability.

Moreover, a rule making the enforceability of state law dependent on

the effect on a particular mining claim’s profitability could have effects well

beyond the environmental context, casting doubt on state laws governing

torts, contracts, insurance, and working conditions. Indeed, Amici’s logic

4 See http://research.stlouisfed.org/fredgraph.png?g=qni. During just

2010 to 2014, the price of gold nearly doubled, then fell roughly 35%. See http://research.stlouisfed.org/fred2/series/GOLDPMGBD230NLBM.


21

would also seem to cast doubt on the ability of States to enforce their tax

laws over mining claims, even though the U.S. Supreme Court ruled long

ago (and promptly after the enactment of the Mining Act of 1872) that

miners must pay state taxes on federal mining claims. Forbes v. Gracey, 94

U.S. 762 (1876).

A commercial practicability test could cast doubt upon one of

California’s most venerable mining regulations—the State’s long-standing

restriction of the highly destructive practice of hydraulic mining. See

generally Rinehart, 377 P.3d at 827-829. Shortly after the Mining Act’s

passage, California residents brought suit to enjoin hydraulic mining

operations under California nuisance law, because of the severe

environmental harm that the practice caused to those downstream.

Woodruff, 18 F. at 756. The federal court, after analyzing the text, history,

and purpose of the 1866 and 1872 Mining Acts, concluded that Congress did

not intend to give miners an absolute right to mine regardless of

environmental consequences. Id. at 770-777, 799-803. The federal court

issued a permanent injunction against the hydraulic mining at issue, id. at

809, and the California Supreme Court ruled similarly soon after, People v.

Gold Run Ditch & Mining Co., 66 Cal. 138 (1884).


22

Congress was acutely aware of these decisions and their effect on

mining. See, e.g., S. Rep. No. 50-1944, at 2 (1888); 23 Cong. Rec. 6344

(1892) (“Some ten years ago, through a decision of the Federal court,

hydraulic mining in California was suppressed; injunctions were issued

against the mines, and one of the largest and most important industries in the

State of California was paralyzed.”). Congress did not act to prevent such

injunctions; instead, it established a “Debris Commission” to which

hydraulic miners would submit plans and apply for a permit, in the hope that

this procedure would result in mining plans that did not cause the harms that

triggered the Woodruff injunction. See An Act of March 1, 1893, ch. 183, 27

Stat. 507 (codified at 33 U.S.C. § 661 et seq.); County of Sutter, 152 Cal. at

695-696. Congress’s reaction to California’s regulation of hydraulic mining

implicitly rejects Amici’s “commercial practicability” theory of preemption.

See Wyeth, 555 U.S. at 575 (“‘The case for federal pre-emption is

particularly weak where Congress has indicated its awareness of the

operation of state law in a field of federal interest, and has nonetheless

decided to stand by both concepts and to tolerate whatever tension there [is]

between them.’”).


23

II. BOHMKER’S CASES AND OTHER FEDERAL STATUTES DO NOT SUPPORT PREEMPTION HERE

A. Bohmker Relies on Superseded and Inapposite Precedents

1. Of the cases cited by Bohmker (Opening Brief 21-25), only South

Dakota Mining Association, Inc. v. Lawrence County, 155 F.3d 1005 (8th

Cir. 1998), postdates Granite Rock. South Dakota Mining involved a local

initiative that amended a county zoning law to ban new or amended permits

for “surface metal mining extractive industry projects” in a 40,000 acre

portion of the county, of which approximately 90% was federal land. Id. at

1007. The county stipulated that surface mining was the only practical

means of mining in that area, and supported the plaintiffs’ attempt to

invalidate the initiative. Id. at 1007-1008 & n.3. The Eighth Circuit found

the initiative preempted because it interfered with the Mining Act’s policy of

encouraging mining on federal land. Id. at 1011.

The law challenged in South Dakota Mining is nothing like the Oregon

statute at issue here. The South Dakota Mining law effectively banned all

surface mining. Oregon’s law still allows mining under reasonable

conditions in rivers, streams, and lakes, as well as in upland areas above fish

habitat; it just prohibits the use of motorized suction dredges. The law in

South Dakota Mining overwhelmingly targeted federal land, whereas


24

Oregon’s statute applies also on state-owned and private land. And the

ordinance in South Dakota Mining banned surface mining permanently.

Oregon’s law is a temporary moratorium—a common, “essential tool” used

to allow investigation of an issue and the development of a permanent

solution. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg. Planning

Agency, 535 U.S. 302, 337-338 & nn.31-34 (2002). Because such a

moratorium is best viewed as a delay in the permitting process, id. at 337

n.31, Oregon’s law survives under Granite Rock’s holding that state

permitting processes related to mining are not preempted by federal law.

In any event, South Dakota Mining did not consider key factors. It did

not analyze the federal mining laws’ text and history. It viewed the federal

goal of promoting mining as decisive, without considering the principle that

congressional encouragement of an activity by itself does not provide a basis

for preemption. See pp. 7-8, supra. It ignored the presumption against

preemption, and did not have the benefit of the relevant federal agencies’

views. Finally, South Dakota Mining applied Granite Rock’s analysis of

preemption by federal land use statutes, rather than that case’s analysis of

preemption under federal mining laws. See 155 F.3d at 1011 (citing Granite

Rock, 480 U.S. at 587-589). In short, South Dakota Mining has little

persuasive value here. See Rinehart, 377 P.3d at 830.


25

2. Bohmker’s other cases, which likewise do not address the federal

agencies’ views or the presumption against preemption, suffer from an

additional flaw: they preceded Granite Rock and relied on the theory (later

rejected by Granite Rock) that state laws are preempted whenever they

prevent mining that is federally permitted. Compare Granite Rock, 480 U.S.

at 594, with id. at 606 (Powell, J., concurring and dissenting).

Ventura County v. Gulf Oil Corp., 601 F.2d 1080 (9th Cir. 1979),

exemplifies this problem. Ventura County struck down application of a

local permitting requirement, because “[t]he federal Government has

authorized a specific use of federal lands, and Ventura cannot prohibit that

use, either temporarily or permanently, in an attempt to substitute its

judgment for that of Congress.” Id. at 1084. This Court cited Ventura

County and relied on that holding when it found preemption in the Granite

Rock case. Granite Rock Co. v. Cal. Coastal Comm’n, 768 F.2d 1077, 1082

(9th Cir. 1985); see also Granite Rock, 480 U.S. at 611 (Scalia, J.,

dissenting) (citing Ventura County). But the Supreme Court reversed in

Granite Rock, holding that there was no preemption because states could

regulate mining even if that mining had a federal approval, so long as there

was no “actual conflict.” 480 U.S. at 593-594. As a result, “the Granite

Rock opinion as a whole apparently reduces [Ventura County’s] precedential


26

value to nil.” 1 George C. Coggins & Robert L. Glicksman, Public Natural

Resources Law § 5:28 (2d ed. 2007 & 2016 Supp.).5

B. The Surface Mining and Reclamation Act, Federal Land Policy and Management Act, and 30 U.S.C. § 612(b) Do Not Support Bohmker’s Preemption Claim

Bohmker’s arguments for preemption under other federal statutes are

equally erroneous.

1. The Surface Mining Control and Reclamation Act expressly

preserves state law, providing that “[n]o state law or regulation … shall be

superseded by any provision of this chapter or any regulation issued

pursuant thereto, except insofar as such State law or regulation is

inconsistent with the provisions of this chapter.” 30 U.S.C. § 1255(a).

Bohmker maintains that Oregon’s statute is preempted nevertheless because

it is inconsistent with 30 U.S.C. § 1281, which allows States to petition the

Secretary of the Interior to completely withdraw federal lands from mining.

5 Skaw v. United States, 740 F.2d 932, 940 (Fed. Cir. 1984), and

Brubaker v. Board of County Commissioners, 652 P.2d 1050, 1056-1059 (Colo. 1982), likewise relied on Ventura County’s now-discredited theory and are no longer good law. See 1 Coggins & Glicksman, supra, § 5:28 (“Because it preceded Granite Rock, and for other reasons, Skaw probably has little value as precedent.” (footnote omitted)). Elliott v. Oregon International Mining Co., 654 P.2d 663 (Or. Ct. App. 1982), and Brubaker are also distinguishable because they involved local zoning ordinances, not statewide environmental laws focused on mining equipment and methods.


27

Opening Brief 34. But nothing in section 1281 indicates that such petitions

are the exclusive means for States to protect federal lands within their

jurisdiction. There is good reason why a complete withdrawal of federal

land from all mining requires a process that is not required for regulation of

a single mining method.

2. Bohmker also seeks support from the Federal Land Policy and

Management Act (FLPMA). In Granite Rock, “[f]or purposes of [its]

discussion and without deciding [the] issue,” the Court “assume[d] that the

combination of [the FLPMA and the National Forest Management Act] pre-

empts the extension of state land use plans onto unpatented mining claims in

national forest lands.” 480 U.S. at 585. The assumption made no difference

in Granite Rock, because the Court concluded that the state laws at issue

were environmental laws rather than land use laws and hence would not be

preempted regardless of the assumption’s validity. Id. at 586-587. Neither

Granite Rock nor any other decision holds that the FLPMA, alone or with

other federal statutes, in fact preempts state laws—and any such conclusion

would conflict with Granite Rock’s underlying premises.6 That is perhaps

6 Under Granite Rock, “‘the State is free to enforce its criminal and

civil laws’ on federal lands so long as those laws do not conflict with federal law.” Granite Rock, 480 U.S. at 580. Thus, there is no preemption unless a

(continued…)


28

not surprising since the FLPMA requires that federal agencies “coordinate

the land use inventory, planning, and management activities of … [public]

lands” with states and local governments, and that federal land use plans

“shall be consistent with State and local plans to the maximum extent …

consistent with Federal law and purposes of this Act.” 43 U.S.C.

§ 1712(c)(9). In any event, the Oregon statute at issue here is an

environmental law, not a land use law. See Rogue Riverkeeper Brief 22-25.

3. Bohmker argues that his claim is supported by two Multiple Use Act

of 1955 provisions in 30 U.S.C. § 612(b). Opening Brief 29-32.

The first states that “use of the surface of any such mining claim by the

United States, its permittees or licensees, shall be such as not to endanger or

materially interfere with prospecting, mining or processing operations or

uses reasonably incident thereto.” § 612(b) (emphasis added). But that

provision says nothing about state law, and the cases applying section 612

do so to scrutinize federal action. See United States v. Backlund, 689 F.3d

(…continued) federal land use plan directly conflicts with a state land use plan. This has led one treatise to question whether the FLPMA would ever in fact preempt state land use plans, given that, in the FLPMA, “Congress apparently sought accommodation with, not preemption of, state law.” 1 Coggins & Glicksman, supra, § 5:28.


29

986 (9th Cir. 2012); United States v. Shumway, 199 F.3d 1093 (9th Cir.

1999). Congress enacted section 612 out of concern about people who used

spurious mining claims to gain control of land and profit from non-mining

surface uses such as logging. See H.R. Rep. No. 84-730, at 6 (1955). The

statute provides a means to settle rights between miners on the one hand, and

federal agencies and contractors on the other. 30 U.S.C. § 613.7

Bohmker also relies on section 612(b)’s proviso that “nothing in this

subchapter … shall be construed as affecting … [state] laws … relating to

the ownership, control, appropriation, use, and distribution of ground or

surface waters.” See Opening Brief 31. This language, which preserves

state priority of water rights between various water users, prevents the

federal government from taking control of water that states had allocated to

miners, whether or not that water was necessary to the mining operation.

See H.R. Rep. No. 84-1096, at 3 (1955) (Conf. Rep.). Bohmker’s argument

that this implies an intent to allow only state water law to survive on federal

mining claims is unpersuasive, given the presumption against preemption

7 Congress often limits federal agencies, while leaving States free to

make their own choices. See, e.g., Center for Competitive Politics v. Harris (9th Cir. 2015) 784 F.3d 1307, 1318-1319 (statute prohibiting federal agency from disclosing tax returns to state governments does not preempt State from requiring the taxpayer to disclose the return to the State directly).


30

and 30 U.S.C. § 22’s requirement that miners comply with “regulations

prescribed by law.”8 Moreover, Bohmker’s argument would effectively bar

States from all non-water regulation, whereas Granite Rock, which

considered section 612(b), see 480 U.S. at 582, held that States properly

have a regulatory role.

III. CALIFORNIA’S EXPERIENCE SHOWS THAT OREGON’S MORATORIUM IS A REASONABLE RESPONSE TO THE SIGNIFICANT ENVIRONMENTAL RISKS POSED BY SUCTION DREDGE MINING

Bohmker maintains that Oregon’s moratorium responds to a non-

existent problem (Opening Brief 42-43), notwithstanding this Court’s

observation that suction dredge mining may affect endangered salmon

species in critical habitat, Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d

1006, 1028-1029 (9th Cir. 2012) (en banc). In fact, Oregon’s statute reflects

a scientific consensus about the serious environmental risks posed by suction

dredge mining and the need for adequate regulation.

The California Department of Fish and Wildlife, which has regulated

suction dredge mining since 1961, recently spent several years and millions

8 See O’Donnell v. Glenn, 19 P. 302, 306 (Mont. 1888) (“[t]he

expression, ‘under regulations prescribed by law,’” in Rev. Stat. 23l9, which is now codified at 30 U. S .C. § 22, “is ample enough to embrace, not only the laws of [C]ongress, but also those of the territory”).


31

of dollars studying its environmental effects.9 The Department reviewed

hundreds of published studies, commissioned additional studies, engaged in

inter-agency consultations, convened a public advisory committee for

technical issues, and considered multiple rounds of public comments. The

study found that suction dredge mining causes a range of significant

environmental harms.

Suction dredge mining can harm fish, including endangered salmonids,

by disrupting spawning, creating unstable tailings, and killing eggs and

larvae. See Draft Subsequent Environmental Impact Report (“DSEIR”), ch.

4.3, at 23-24, 29 (Feb. 2011), available at https://www.wildlife.ca.gov/

Licensing/Suction-Dredge-Permits.10 It can destroy and alter cold-water

pools that are necessary for reproductive success, while creating alternative

pools that may not function well for fish. Id. at 40-41. Suction dredge

miners remove boulders and woody debris that are essential for protection

from predation and for the development of food sources. Id. at 41-45.

9 See generally https://www.wildlife.ca.gov/Licensing/Suction-

Dredge-Permits (reports and materials from 2011 through 2014). 10 The final report adopted the draft report on the points discussed

here without significant alteration. See https://nrm.dfg.ca.gov/ FileHandler.ashx?DocumentID=43703&inline, at 5-61 to 65.


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Based on a peer-reviewed study conducted by the U.S. Geological

Survey, the Department also found that suction dredge mining could

increase levels of highly dangerous mercury and other toxic chemicals in

California waters. DSEIR, supra, ch. 4.2, at 14-24, 33-59. That is because

the streambeds that suction dredge miners vacuum for the gold-remnants left

from Nineteenth Century mining also contain the buried toxic chemicals that

were used in that mining. Id.11

The California Legislature has found that “suction or vacuum dredge

mining results in various environmental impacts to protected fish species,

the water quality of this state, and the health of the people of this state.”

2009 Cal. Stat., ch. 62, § 2. California, like Oregon, has deemed the

problem serious enough to require a temporary moratorium on suction

dredge mining, until adequate regulations can be imposed. See id. § 1

(original version); Cal. Fish & Game Code §§ 5653, 5653.1 (current

version); 2015 Cal. Stat., ch. 680, § 1 (additional findings). Oregon’s

conclusion that suction dredge mining raises serious risks requiring

environmental protection is thus confirmed by California’s independent

11 California’s State Water Resources Control Board is devising a

permitting process to address these water quality effects. See http://www. swrcb.ca.gov/water_issues/programs/npdes/suction_dredge_mining.shtml.


33

review of the issue. Oregon’s statute is the kind of “higher level of

environmental protection” that, as BLM concluded, Congress intended not to

preempt under federal law. See pp. 13-15, supra.

CONCLUSION

The district court’s decision should be affirmed.

Dated: October 21, 2016 ROBERT W. FERGUSON Attorney General of Washington

Respectfully Submitted, KAMALA D. HARRIS Attorney General of California ROBERT W. BYRNE Senior Assistant Attorney General JOSHUA A. KLEIN Deputy Solicitor General GAVIN G. MCCABE Supervising Deputy Attorney General /s/ Marc N. Melnick MARC N. MELNICK Deputy Attorney General


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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 6,888 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the

typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements

of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally

space typeface using Microsoft Word Professional Plus 2010 version

14.0.6023.1000 (32-bit) 14-point Times New Roman.

Dated: October 21, 2016

KAMALA D. HARRIS Attorney General of California /s/ Marc N. Melnick MARC N. MELNICK Deputy Attorney General Attorneys for Amicus Curiae State of California


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