California can't arbitrarily ban mining

May 14, 2015 | By JONATHAN WOOD

The California Supreme Court is considering an important case concerning whether a state can frustrate federal law and deprive people of their livelihoods for no good reason. PLF filed this amicus brief in the case, joined by the Western Mining Alliance and Siskiyou County. If you’re a regular reader, you can probably guess which side we took. Of course the government can’t act so arbitrarily and lawlessly!

California bans miners from using “suction dredges” — which I gather are like mining vacuums — in any stream in the state. California has a problem, however. Federal law expressly encourages this mining. Under the Constitution’s Supremacy Clause, state law that frustrates a federal law must yield. Since numerous federal mining claims are located in stream beds that can only be worked with a dredge, the state has set up a clear conflict with federal law.

The state’s ban is surprising because the federal law goes out of its way to accommodate state interests. The state may require a permit for mining and regulate its environmental impacts. Thus federal law balances its encouragement of mining with state interests.

Apparently unsatisfied with this balanced approach, California decided to topple the scales, like a child (or attorney-blogger) who upends a board game when it’s not going his way. It banned suction dredge mining entirely, citing environmental concerns. However, it’s admitted that this mining can be environmentally beneficial (depending on when, where, and how it’s done) and its impacts regulated in other circumstances. Nonetheless, it has chosen not to regulate these impacts, even though federal law would accommodate such regulation.

It has instituted a permanent ban that can’t be lifted until a state agency adopts regulations to mitigate this mining’s impacts. The agency has told the legislature that, although it would love to adopt the regulations, it doesn’t actually have the statutory authority to do so.

Naturally the legislature promptly gave the agency the authority and everyone lived happily ever after.

Just kidding. It did nothing. For reasons known only to it, the legislature has never bothered to give the agency authority that it demands the agency exercise before miners can get back to work. Not only is that preposterously silly, it’s unconstitutional. Federal law can’t be toppled quite so easily.