February 16, 2017

Why California’s mining ban is against the law

By Jonathan Wood Attorney

If you ask a rural Westerner how he feels about federal lands, the response will likely contain plenty of four-letter words. For decades, decisions made by faraway bureaucrats to restrict the productive uses of these lands have significantly affected nearby property owners and local economies, creating a constant source of conflict.

The federal government owns 640 million acres — nearly a third of the nation’s land. It is not evenly distributed. Most Eastern states contain only a small fraction while Western states are up to 85 percent federally owned.

The long-simmering conflict most recently came to a head over President Obama’s midnight monument declarations and speculation that President Trump might reverse them. Many of these designations exceed a million acres and forbid any productive use of these lands going forward. Congressmen and officials from red states have sharply opposed them as taking land out of productive use with too little input or consideration of the impacts to local communities.

When these federal decisions are criticized, supporters respond that only the federal government can decide how “our” lands should be used. Yet blue states and environmentalists do not think that what is good for the goose is good for the gander. When Congress decides to put federal lands to productive use, they proclaim that states in which they hold political power should be able to overrule federal decisions at will.

That is precisely what has happened to mining in California. Perhaps no state owes more to this nation’s rich mining heritage than the Golden State. Yet the state’s politics today have taken a hostile turn against mining.

Almost a decade ago, California banned suction dredge mining throughout the state, including on federal lands, at the behest of environmentalists. Suction dredge mining uses a vacuum to suck up sediment from a streambed, process it through a sluice box to remove gold and other heavy metals, and return the remaining sediment to the river from which it came. It has been widely practiced in California for more than 50 years and an important source of work and income for thousands of miners.

Citing concerns that unregulated suction dredge mining could harm fish and water quality, the state imposed a blanket ban regardless of whether a particular miner’s work has any of these impacts or whether they can be mitigated. That ban irreconcilably conflicts with federal law, which encourages mining on federal land.

For more than a century, federal policy has been that federal lands should be “free and open” to mining. Clearly, California disagrees with Congress’ judgment.

But the U.S. Constitution does not permit states to simply overrule federal law. The “unavoidable consequence” of the Constitution’s Supremacy Clause, according to the Supreme Court, is that state laws that undermine federal policy are invalid.

A challenge to California’s illegal mining ban has just arrived at the nation’s highest court. California miner Brandon Rinehart, represented by Pacific Legal Foundation, has just asked the Supreme Court to declare the ban unlawful, and vindicate Congress’ policy of encouraging mining on federal lands. The principle at issue is simple:

States can impose reasonable regulations to address any environmental impacts of mining, but they cannot simply reject Congress’ decision and ban mining.

This appeal is from a decision of the California Supreme Court that broke ranks with every other court to consider the question — all of which held that states could not forbid federally encouraged activity on federal lands. According to the California decision, states are free to frustrate Congress’ policy of encouraging mining, for any reason or no reason whatsoever. Could you imagine the shrieks and howls if a court in a red state had allowed a state to similarly frustrate Congress’ decision to restrict productive use of federal lands?

The California Supreme Court’s decision is both unprecedented and unreasonable. Just as red states are stuck with Congress’ decisions to restrict the use of federal lands, so should blue states have to respect Congress’ decisions to encourage productive use of these lands. If only Congress has authority to decide how “our” lands should be used, that rule must apply across the board.

Published by The Washington Times

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