17 ELR 10276 | Environmental Law Reporter | copyright © 1987 | All rights reserved

Judicial Nationalism vs. Dual Regulation on Public Lands: Granite Rock's Uneasy Compromises

Sally Fairfax and Richard Cowart

Editors' Summary: Fully one-third of the country — including nearly half of California — is owned by the federal government. Nonetheless, a shroud of mystique surrounds the public lands, the history of which is inextricably intertwined with the history of westward expansion. The very concept of federal ownership of land physically located within sovereign states logically leads to conflict concerning rights, responsibilities, and powers. Surprisingly, the Supreme Court has only rarely had to directly face state/federal conflicts involving the public lands. In its recent decision in California Coastal Commission v. Granite Rock Co., the Supreme Court delved for the first time in a decade into the sensitive issue of the extent of state authority on public lands. The Court held that the State of California could regulate mining in a national forest located along the scenic Big Sur coast. This Article examines the case itself and its relationship to the broader concerns posed by states' increasing involvement in the regulation of environmental quality. The authors conclude that although welcome as a verification of dual state/federal regulation of private activities on the public lands, the decision fails to resolve many questions concerning the application of the Court's preemption doctrine to the public lands area.

Sally Fairfax is a Professor of Natural Resources Policy and Law at the College of Natural Resources at the University of California at Berkeley. Richard Cowart is Assistant Professor of Planning and Environmental Law, College of Environmental Design, University of California, Berkeley, and is a Fellow of the Lincoln Institute of Land Policy.

[17 ELR 10276]

California Coastal Commission v. Granite Rock Co.1 gave the Supreme Court a rare opportunity to apply patterns evolving in recent preemption decisions to the public lands. The decision is a narrow victory for advocates of concurrent state regulation of private activities on the public lands. However, the majority opinion fails to clarify either the Court's general preemption doctrine or its application in the public lands arena. The decision is clear and welcome on one point: it reemphasizes the Court's 10-year-old holding in Kleppe v. New Mexico2 that the Property Clause does not by itself confer unrestrainable federal authority over the public lands, as the Ninth Circuit and others have urged upon us.3 Granite Rock reaffirms Kleppe's support for the more moderate and historically correct congressional endorsement of dual federal-state regulation on the public lands. Hence, the Court found that standard concepts of preemption analysis are applicable in public lands cases.4 Not surprisingly, the Court was fractured5 and its arguments murky where the decision turned to the peculiar and evolving relationship between federal and state governments regarding the former public domain.6 That relationship appears to us to require particular care in the application of the preemption doctrine.

The purpose of this Article is to put the sequence of Granite Rock decisions into the context of emerging patterns in preemption analysis and historic trends in federal lands management. This Article first discusses the facts of the case and the district court, court of appeals, and Supreme Court holdings. The lower court decisions are of special interest because they evince the major divisions that have confused public lands preemption analysis for more than a decade. The district court adopted the "regulation-but-not-prohibition" approach, characteristic of several recent state court decisions in public lands cases.7 The Ninth Circuit Court of Appeals took a decidedly more nationalistic approach, applying the logic of a previous Supreme Court decision in the hydroelectric power context in which the Court held that the Federal Power Act preempted any state permit requirement.8 The circuit court extended the reasoning of First Iowa Hydroelectric Cooperative v. Federal Power Commission to hardrock [17 ELR 10277] mining in Granite Rock as it had earlier done in oil and gas leasing issues raised by Ventura County v. Gulf Oil Corp.9 In so doing, the Ninth Circuit opened the way for the Supreme Court to look helpful and moderate simply by putting carefully proscribed constraints on the Ninth Circuit's rush toward judicial nationalism.

However helpful this return to the original parameters of Kleppe may be, the Supreme Court's decision may yield more confusion than clarity. The majority based its arguments on fine-grained distinctions rather than basic principles. The decision rests, at least hypothetically, on the presumed distinction between land use planning and environmental regulation.10 Because that distinction is at best "not always bright,"11 and may in fact be non-existent, it is not clear where this new category of preemption analysis leads. Moreover, the Court muddied but ultimately ducked one serious consequence of this judicial imagining: it suggested,12 assumed,13 and otherwise hinted14 that state land use planning is preempted on federal lands. But it neither said so clearly nor discussed the matter.15 This presents significant questions for on-the-ground managers and all others who must act and plan in the context of this new decision.

In reaching a decision based on minute semantic distinctions, the Court left unresolved the two key issues that need to be addressed in the context of public lands preemption cases. First, how can courts apply traditional preemption formulas, commonly used in single-agency/single-statute cases, in public lands cases, which involve multiple federal agencies, a wide mix of statutory goals expressed in numerous congressional enactments spanning a century, and a pattern of cooperative administrative traditions practiced informally even when not formally ratified? Second, will courts require Congress to express clearly any intention to exclude concurrent state regulation of those activities preempted? The Granite Rock decision offers little guidance on either topic.

The second section of this paper reflects upon the sequence of Granite Rock decisions in two public lands policy contexts. First, it offers two hypotheses regarding the judiciary's confusion in approaching public lands preemption cases. In so doing it places the issue into the context of historic trends in public lands law. The second half of the section extends that discussion into the detail of public lands management, and Forest Service minerals management in particular, to note that Congress has traditionally relied upon dual regulation to achieve an expanding set of goals on the public lands.

The Article then evaluates the likely effects of the Supreme Court's decision on public lands management. The Court has misconstrued both the nature of the conflict and the administrative realities of public lands management, and Congress' intentions regarding dual regulation. Viewing both the immediate dispute and public lands history as a conflict between federal and state sovereigns, the Court has ignored the policy justifications, management imperatives, and congressional commitments that support dual regulation and management of the public lands. As a correction of the direction taken by the Ninth Circuit in Ventura County and Granite Rock, the Supreme Court's Granite Rock holding is welcome. Nevertheless, the decision continues to threaten both state and congressional policies by offering to shield private developments from state regulation merely because they are operating on federal lands. This, we conclude, would create serious gaps in environmental and resource management in the western states.

Facts and Decisions Below

Facts

Granite Rock Company is engaged in commercial mining16 of chemical grade white limestone on an unpatented mining claim pursuant to the Mining Act of 1872.17 The claim is located in the Big Sur area of the California coast, near the Ventana Wilderness Area, the drainage of the Little Sur River, the Pfeiffer Big Sur State Park, and scenic resources of uncontested national and international significance.18 The national forest site is but one property in the immediate area to which Granite Rock Company holds [17 ELR 10278] rights, but the only one that it is presently developing.19 In February 1981, following preparation of an environmental assessment (EA) and a finding of no significant impact (FONSI) pursuant to the requirements of the National Environmental Policy Act (NEPA),20 the Forest Service approved the company's plan of operations for the years 1981-86.21 Despite the fact that the Forest Service circulated a standard notice of decision regarding plan approval to pertinent state and local agencies and interest groups, the comment period passed without challenge to the action. Indeed, more than three years passed before the California Coastal Commission (CCC) informed Granite Rock that its operations were located within the California coastal zone. The CCC stated, first, that the plan of operations was subject to a consistency review under § 307(c)(3) of the federal Coastal Zone Management Act (CZMA)22 and second, that Granite Rock was required to secure a permit for its mining operations from the CCC.

Granite Rock sued to enjoin both the consistency review and the permit requirement. The CCC later conceded that it had waited too long to initiate the consistency review23 and the case focused thereafter on the permit requirement alone.

District Court Opinion

The district court upheld the Coastal Commission, concluding that Congress did not intend to "shield from direct state regulation purely private activity … on federal land."24 The court found that hardrock mining claims are not excluded from the coastal zone,25 nor are the state regulations preempted by federal mining or public lands law. Distinguishing the instant regulatory context from the Ninth Circuit's preemption of an ordinance in Ventura County, the court concluded that "[a]s long as the state's permit requirement does not render plaintiff's exercise of rights under the Mining Act impossible, no impermissible conflict exists."26

The district court's "regulation-but-not-prohibition" approach relies upon, and is consistent with, a line of similar public lands preemption decisions that create a doctrinal compromise to preserve cooperative state-federal regulatory arrangements from third-party attacks. These decisions are based on a perceived distinction between acceptable state regulation and impermissible state prohibition of an activity authorized or encouraged by the federal government. Cases adopting this approach assume that states have concurrent jurisdiction over federally regulated private activities unless state regulation is clearly prohibited by federal law.27 Occupation of the field will not be presumed unless the Court discerns that this is the "clear and manifest purpose of Congress."28 Nor will prohibition of concurrent regulation be implied merely because the exercise of state authority arguably could frustrate one of the purposes of a federal program. The leading case in the public lands context is the Idaho Supreme Court's decision in State ex rel. Andrus v. Click.29

[17 ELR 10279]

The trial court rejected the state's argument that "the CZMA converts the state Coastal Act into a federal standard that has the dignity of a federal law in a cooperative federalism program."30 Nevertheless, it supported the CCC's permit requirement, noting that "conflict will not be presumed" and actual conflict between federal and state requirements could not be assessed because the plaintiff had not attempted to comply with the state's regulations.31 It further noted that the Forest Service regulations had not only not "occupied the field," they in fact required compliance with applicable state standards for air and water quality and waste disposal.32 The court noted that the Forest Service approval of the plan of operations "expressly stated that Granite Rock is responsible for obtaining any necessary permits which may be required by the California Coastal Commission."33

Thus, Granite Rock follows recent cases in which courts have refused to find federal preemption of concurrent state regulation, outlining instead a policy of judicial accommodation and an understanding of the policies of the "clear statement rule."34

The Ninth Circuit Decision

First Iowa and State Permitting: On appeal, the Ninth Circuit largely ignored the facts of the case and returned to principles derived from the Supreme Court's decisions in First Iowa Hydro-Electric Cooperative v. Federal Power Commission35 and Kleppe v. New Mexico.36 In First Iowa, the Court held that the Federal Power Act37 preempted an Iowa statute requiring a state permit for a hydroelectric facility. The Court found that Congress intended the Act to create a "complete scheme of national regulation which would promote the comprehensive development of the water resources of the Nation," and that the Act's detailed provisions "[left] no room or need for conflicting state controls."38 The Court reached this conclusion despite § 9(b) of the Act, which directs each license applicant to submit to the Federal Power Commission (FPC) "satisfactory evidence of compliance with state laws as to bed and banks and … the appropriation, diversion and use of water for power purposes."39 The Court reasoned that Congress intended § 9(b) only to secure "adequate information" for the FPC; therefore, it did not exempt from preemption either the procedural or substantive requirements of the Iowa statute.40 First Iowa is the head of a line of natural resource federalism decisions holding that concurrent state permit requirements are facially invalid.41

In Granite Rock, the court of appeals rejected the Click line of dual regulation cases, noting that First Iowa made no distinction between a permitted state regulation and an unacceptable state prohibition of a federally permitted action. Nor did it inquire into the reasonableness of state regulations, finding that the state permit system "was preempted simply because it would undermine the federal permit authority."42 The circuit court opinion also established a novel standard for deciding when First Iowa reasoning should be applied. First, the Court inquired "whether federal law establishes authority in a federal agency to prohibit or permit mining in national forests" and, if so, "whether the state permit authority exercised in this case intrudes into that sphere of authority."43 Having found a mere intrusion the Court found no need to look for actual conflict or state unreasonableness.44

The Ninth Circuit further constrained the state's role by continuing to misread Kleppe, as it had in Ventura County. In Kleppe,45 the Supreme Court held that the federal Wild Free-Roaming Horses and Burros Act46 applied to wild burros on the federal public lands despite conflicts with New Mexico's Estray Law.47 The Court's opining that "[t]he power over the public land thus entrusted to Congress is without limitations"48 has led observers to either embrace or criticize Kleppe as a broad assertion of "plenary" federal authority and a sharp departure from earlier, more accommodating holdings.49 Nevertheless, the [17 ELR 10280] Court deferred to Congress on the question whether the federal act was a "needful" regulation "respecting" the public lands50 and found that it necessarily preempted the state law under the Supremacy Clause.

Thus, Kleppe does not hold that federal constitutional power automatically ousts concurrent state authority over the federal public lands; rather, it reiterates that concurrent state authority applies unless it is preempted by a valid federal statute or rule.51

Ventura County: Kleppe Runs Amok in the Ninth Circuit: In deciding Ventura County,52 the Ninth Circuit seriously misconstrued Kleppe. It held that the Mineral Leasing Act of 1920 preempted a Ventura County, California, ordinance regulating private oil and gas operations in the Los Padres National Forest.53 The court first addressed the county's contention that "Congress lacked the power to preempt local regulation" of private activities on federal land, rejecting this argument out of hand as "legally frivolous."54 This is consistent with the Supreme Court's holdings in public lands cases over the years that Congress' authority over the public lands is potentially "without limitations."55

The Ventura County decision is entirely deficient, however, in its evaluation of whether Congress had exercised that power. The court makes much of the "extensive federal scheme" governing oil and gas leases on the national forests,56 apparently concluding that since the Bureau of Land Management (BLM) and Forest Service environmental regulations are extensive, they are necessarily preemptive. Since Gulf Oil had never applied for a local permit, the court never considered whether the local regulations and the federal lease stipulations could be harmonized. Nor did it consider whether either the Mineral Leasing Act or the federal regulations implementing it evidenced congressional intent to preempt concurrent state regulation.57

The second factor in the court's Ventura decision is an unwarranted elevation of the status of the private lessees operating on public lands. Rather than viewing the federal minerals management regime as merely permissive, the court views the private operator as a federal instrumentality: "The federal Government has authorized a specific use of federal lands, and Ventura cannot prohibit that use … in an attempt to substitute its judgment for that of Congress."58 This conclusion is incorrect on two counts. First, it assumes that Congress intended to preempt concurrent state regulation even though Congress had not explicitly done so. Second, it assumes that agency leasing decisions embody the "judgment of Congress" in all aspects of a particular land use decision, including the decision to displace local environmental regulation. Although the Ventura court recognized in passing that federal oil and gas management depends almost entirely on state regulations concerning well spacing, field unitization, pumping, and other issues,59 it nevertheless swept aside any state regulations that the court found would prohibit what the federal land managers would allow.60

Granite Rock: Adding Insult to Injury in the Ninth Circuit: In Granite Rock, the Ninth Circuit went even further. It found the general purpose it attributes to the 1872 Mining Act, "to encourage mining on federal lands," to preempt state law.61 Since state law is preempted where it "stands as an obstacle to the accomplishment of the full purposes and objectives of Congress,"62 the court's characterization of congressional purposes is crucial. There are two problems with the Ninth Circuit's approach to this matter. First, although public lands management is not unique in the fact that policy is governed by multiple statutes, it is an extreme case.63 It is entirely too simplistic to focus [17 ELR 10281] on a single congressional enactment in determining congressional intent. The Ninth Circuit acknowledges this, noting that in the 1970s Congress "also declared its fidelity to the additional goal of lessening any adverse environmental impact from such mining."64 The court did not, however, weigh those additional federal purposes guiding the multiple-use management regimes that are set out in dozens of public land and other environmental statutes.65

Second, although it simplistically drew congressional intent from but one of a multiplicity of goals and priorities in statutes enacted over more than a century,66 the Ninth Circuit nevertheless took note of statutory complexity: the court equated it with a congressional intent to preempt. This appears in the Ninth Circuit analyses to be related to the weight of federal planning documents. The Ninth Circuit appears to conclude, when confronted by numerous agencies, statutes, and analyses, that the federal purpose which the court chooses to emphasize is so extensive that it occupies the field by implication. This conclusion ignores the fact that federal management programs may be extensive without being exclusive, a fact recently emphasized by the Supreme Court in another case, Hillsborough County v. Automated Medical Laboratories, Inc.:

To infer preemption whenever an agency deals with a problem comprehensively is virtually tantamount to saying that whenever a federal agency decides to step into a field, its regulations will be exclusive. Such a role, of course, would be inconsistent with the federal-state balance embodied in our Supremacy Clause jurisprudence.67

Undaunted, and absent the relatively explicit purposes of the Mineral Leasing Act and the agency land use decisions implicit in that statute,68 the Ninth Circuit found preemption in the face of the federal agency's explicit reliance on state law.

The Supreme Court Decision

The Supreme Court's decision is welcome in spite of its fractures and narrowness because it backs off from the Ninth Circuit's invasive reading of federal authority and leaves room, at least in theory, for the state to regulate private developers operating on federal public lands. On the preemption issue, the majority opinion rejects the Ninth Circuit's blanket "no state permit" approach, employing instead the close case-by-case analysis followed in the Supreme Court's recent preemption cases. The opinion cites the now-familiar array of preemption tests:

[S]tate law can be pre-empted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted. If Congress has not entirely displaced state regulation over the matter in question, state law is still pre-empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.69

The Court responded to the first of Granite Rock's three allegations, "that the Federal Government's environmental regulation of unpatented mining claims in national forests demonstrates an intent to pre-empt any state regulation,"70 by deferring to the Forest Service's minerals management regulations. The Court stated that to be preemptive, administrative regulations should "declare any intention to preempt state law with some specificity."71 Citing Hillsborough County:

[B]ecause agencies normally address problems in a detailed manner and can speak through a variety of means, … we can expect that they will make their intentions clear if they intend for their regulations to be exclusive. Thus, if an agency does not speak to the question of pre-emption, we will pause before saying that the mere volume and complexity of its regulations indicate that the agency did in fact intend to pre-empt.72

The Court concluded that the Forest Service regulations were not only "devoid of any expression of intent to preempt state law," they "appear to assume that those submitting plans of operations will comply with state laws."73

Granite Rock's second assertion was that Congress intended to confine states to a "purely advisory" role in public land management decisions. Therefore, Granite Rock argued, the Coastal Commission's permit requirement was "an impermissible state land use regulation."74

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In responding to this issue, the Court distinguished land use planning for the public lands from environmental regulation of development activities. The majority assumed, without deciding, that state land use planning would be preempted when the National Forest Management Act (NFMA) and the Federal Land Policy and Management Act (FLPMA) are considered together.75 Citing the fact that FLPMA requires "the Secretary's land use plans to be consistent with state plans only 'to the extent he finds practical'" while an adjacent section of FLPMA requires the plans to "provide for compliance with applicable pollution control laws,"76 the Court concluded that "Congress has indicated its understanding of land use planning and environmental regulation as distinct activities."77

The Court then rejected Granite Rock's second claim, arguing that

Considering the legislative understanding of environmental regulation and land use planning as distinct activities, it would be anomalous to maintain that Congress intended any state environmental regulation of unpatented mining claims in national forests to be per se pre-empted as an impermissible exercise of state land use planning. Congress' treatment of environmental regulation and land use planning as generally distinguishable calls for this Court to treat them as distinct, until an actual overlap between the two is demonstrated in a particular case."78

Finally, the Court dismissed the defendant's argument that "the CZMA, by excluding federal lands from its definition of the coastal zone, declared a legislative intent that federal lands be excluded from all state coastal zone regulation."79

It is significant that the Court looked for preemptive intent in the CZMA rather than the 1872 Mining Act in which the Ninth Circuit found so compelling a federal purpose. The Court found no such purpose in the 1872 Act and based its holding on its reading of the CZMA,80 rather than on the more complex analysis of the Mining Act found in the district court opinion.81

The Supreme Court Decision: A Preliminary Evaluation From the States' Perspective

The Supreme Court's holding in Granite Rock is helpful in advancing the continuing collaboration between state and federal resource managers for two reasons. First, the Court reiterates the necessity of finding "actual conflict" between federal and state schemes before preempting concurrent state regulations. The Court rejected the Ninth Circuit's efforts to find congressional intent to preempt in the complexity of the statutory matrix in a policy area, in the gross tonnage of federal analyses, in the presence or absence of a permit requirement in the state scheme,82 or in an alleged but ill-defined duplication of regulatory schemes. Without, for no apparent reason, explicitly disavowing Ventura, the Granite Rock Court reined in the Ninth Circuit and reiterated its decade-old holding in Kleppe.

To lose this case would have been unfortunate for advocates of state authority. Nevertheless, the decision is not the resolution that they sought for at least three reasons. First, the Court meticulously put the narrowest possible framework on the issues. Because Granite Rock chose to challenge the Coastal Commission's authority to regulate rather than apply for a permit and then litigate a specific conflict with federal law, the Court noted first that "Granite Rock's challenge to the California Coastal Commission's permit requirement was broad and absolute." It then reiterated that its "rejection of that challenge is correspondingly narrow."83 The Court concluded:

[W]e hold only that the barren record of this facial challenge has not demonstrated any conflict. We do not, of course, approve any future application of the Coastal Commission permit requirement that in fact conflicts with federal law. Neither do we take the course of condemning the permit requirement on the basis of as yet unidentifiable conflicts with the federal scheme.84

Second, and in addition to the first reason, the distinction between land use planning and environmental regulation probably does not exist in reality, nor does it define clear lines or criteria for deciding when state regulations are applicable. For that we probably have to await one or more additional Supreme Court decisions.

Worse, perhaps, in the process of constructing the distinction the Court brushed against complex issues of great import to public lands and other resource managers: consistency and land use planning. Justice Powell's dissent argues that "the regulation of land use is more complicated than the Court suggests,"85 while Justice Scalia argues that the issue is "simpler and narrower" than the distinction suggests.86 Nevertheless, all three opinions muddied [17 ELR 10283] the issue without discussing or deciding the meaning of the cooperative planning and consistency provisions of NFMA and FLPMA. Sweeping phrases such as "FLPMA only requires the Secretary to listen to the States, not obey them,"87 could seriously undercut the intent and practice of consistency compliance without adequate analysis or understanding. At bottom, much of the dicta evinces a serious misunderstanding at the Supreme Court of public lands history, policy, and law.

Preemption and Evolving Public Land Policy

Sources of Confusion

There are two major sources of confusion that could explain why the Supreme Court appears to have encountered unusual difficulties applying emergent preemption doctrine to federal lands.

The Bare Fact of Federal Land Ownership: The first, and probably the major, confusing factor in public lands preemption cases is the bare fact of the federal ownership of the land. Justice Powell explicitly states the confusion. Referencing the Property Clause of the United States Constitution, he notes: "[i]n light of this clear constitutional allocation of power, the location of the mine in a national forest should make us less reluctant to find pre-emption than we are in other contexts."88 Although there is no discussion of this point, it appears that the presumed89 "federalness" of the public lands invites the Court to ignore or downplay Congress' consistent efforts to achieve dual regulation of the public lands.

Federal ownership also appears to encourage a related tendency on the part of the courts to confuse state regulation of private activity on public lands with state regulation of the federal agency itself. Direct state regulation of the federal land agency would undoubtedly be preempted except where authorized by federal law.90 But such regulation is rarely attempted and is not at issue in any of the cases discussed in this Article. The federal government's ownership of the land seems to conceal the fact that most of the cases, including First Iowa, Ventura, and Granite Rock, concern the attempted application of state law to private resource users.

An assumption that federal land ownership requires preemption would distort both constitutional law and sound principles of judicial preemption policy. Public lands held by the federal government under the Property Clause are no more subject to exclusive federal jurisdiction than economic activities regulated by the Commerce Clause. The Court stated in Kleppe that "a state undoubtedly retains jurisdiction over federal lands within its territory";91 preemption questions thus turn on congressional action and intent, not on the bare fact of federal ownership. The fact that the Constitution contains a separate provision allowing the federal government to obtain exclusive jurisdiction over certain acquired lands lends emphasis to the point.92

Contrary to Justice Powell's assertion,93 courts should be less willing to infer federal preemption of concurrent state regulation in the public lands context than in other fields. Statutory preemption turns on the court's interpretation of congressional intent. This is difficult enough where Congress has spoken in a single, internally integrated statute interpreted and administered by a single federal agency.94 But public lands planning and management decisions are governed by numerous statutes focusing on competing goals, administered by a variety of federal agencies.95 In the absence of a clear congressional statement of intent in any of these statutes to preempt state law, determining whether a state program "stands as an obstacle to the accomplishment of the full purposes and objectives of Congress"96 depends entirely on which part of which statute the court chooses to focus on. Where Congress has itself not chosen among these competing goals, and where it has not clearly excluded concurrent state programs balancing them, it is entirely inappropriate for a court to impose its policy selection on either Congress (which has not made the choice) or on a state (which has made a contrary choice).97 In this complex statutory arena, respect for the [17 ELR 10284] political branches and for the states commands adoption of a strong clear statement rule.98 Courts should refuse to find concurrent state regulations on public lands preempted unless Congress has clearly stated its intention to exclude them.99

The Newness of Public Lands Preemption: A second source of confusion is the newness of the preemption issue in the public lands context. Modern analysts of preemption theory will be surprised to discover how recently the conflict has evolved. There are in fact only a handful of reported cases in the past century.100

At least three factors are responsible for the newness and rarity of public lands preemption. First, for much of the nation's history it was presumed that large-scale federal landholdings would be temporary, pending disposition to states, corporations, and individuals. Consequently, it was customary to view the federal government as a mere proprietor, and the state government as having primary responsibility for regulating use of the lands.101 The state-federal conflicts that occurred arose over proprietary questions such as which government could give clear title.102 Other cases raised the question of whether any federal authority at all existed to protect the lands pending disposition.103

Thus, the federal role as sovereign land manager, rather than as a mere proprietor or temporary landholder, has only been established and elaborated relatively recently.104 So too, therefore, is the federal government's tendency to enter fields of concurrent regulation occupied by the states, which would give rise to preemption controversies.

A second explanation for the lack of public lands preemption cases is that prior to 1970 the state governments almost never sought to control public lands resources more strictly than the federal government. This situation has been radically altered by the increasing urbanization and managerial sophistication of the public lands states,105 by the "environmental decade" of the 1970s, and by the federal government's massive programs for developing energy resources on the public lands following the Arab oil embargo of 1973 and later oil price escalations.106 The major result of all of these events has been a shift in the public lands states toward aggressive programs to control fiscal and environmental impacts of federal land management decisions.107

A final explanation for the historical rarity of public lands preemption cases lies in the management styles of the federal agencies themselves. Public lands management has traditionally been responsive to the political will of resource users with power at both the state and federal levels. Conflicts have typically been resolved within the land agencies, or when necessary, among the political branches of government.

The ability of federal land managers to resolve conflicts with resource users, the state and local governments, and other interested parties was severely diminished by the rapid development of federal public lands policies in the [17 ELR 10285] 1970s and 1980s. On the one hand, traditional resource users have been increasingly affected by the agencies' attention to new environmental and multiple-use planning programs mandated by statutes such as NEPA, NFMA, and FLPMA.108 On the other hand, the potential for management clashes between the state and federal governments has been highlighted and exacerbated by federal programs to exploit the immense energy resources of the public lands. This effort began with President Nixon's "Project Independence"109 in 1973 and continues to the present day. All of these factors have contributed to an increasing concern throughout the public lands states over federal public lands policies, and to increasing assertions of concurrent state authority in public lands decisions that affect state and local communities.

Management Gaps

Preemption is thus a new issue in an area where, because of the federal ownership of the land, the courts seem unusually inclined to resolve apparent federal-state conflicts in favor of the federal government. However, preempting state programs could seriously weaken carefully developed federal/state accommodations in Congress' public land management scheme by creating gaps110 in authority and administrative capabilities. Without significant participation of state and local governments in forest planning and management, the Forest Service is neither authorized to nor capable of achieving congressional and public expectations for national forest management. Two factors combine to make these management gaps more than a theoretical possibility.

The Tradition of Dual Regulation: The first and most significant factor is longstanding congressional policy. The courts generally fail to recognize that Congress has consistently chosen to rely on state and private activities to manage the federal lands. It has not established federal commodity development operations in hardrock mineral and coal mining, oil and gas extraction, range livestock production, or timber harvesting.111 It relies instead on private entrepreneurs and corporations, acting in conformity with government plans and regulations, to develop public resources. Congress has also chosen not to develop complete federal regulatory programs, but to rely on and defer to state management in many critical aspects of resource management and environmental protection. This deference to state programs includes the familiar hierarchy of federal standards for approval of state regulatory programs in the air pollution, water pollution, and solid waste management fields.112 It also includes less well-known programs such as oil and gas conservation: federal oil lessees are subject to the full gamut of state requirements regarding well spacing, production quotas, and field unitization, which antedated passage of the 1920 Mineral Leasing Act.113

NFMA, mandating detailed plans for local national forest management, continues this same pattern of reliance on states. In many vital areas of national forest management, the Forest Service incorporates state standards, regulations, and permits,114 and in addition has mandated close cooperation with state and local officials in setting direction for public land management. This congressional deference is intended not merely to assure that impacts of national forest management on state and local economies and environments will be considered in the process of federal planning and decisionmaking. It also protects diverse state resource management programs, which are not duplicated within the federal agencies and on which Congress has assumed and/or directed that federal land management agencies rely.

More specifically, the authority that Congress has chosen to exercise directly over hardrock minerals development on the national forests is limited and divided. The Forest Service is responsible for protecting surface resources from the impacts of minerals development; BLM is responsible for managing the minerals themselves.115 Moreover, BLM's authority and ability to do so is limited and only recently granted.116 If mineral developers are exempted from state requirements simply because they are operating on federal lands, then significant gaps will be created in the congressional scheme.117

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Managerial Limitations of the Federal Land Agencies: It is also incorrect to assume that the Forest Service can fill any gaps that the courts might create. The agency has neither the authority, the personnel, nor the budgetary resources to replicate the states' planning and management capabilities118 and is unlikely to have them in the future given the current ideological and fiscal climate of restraint.

In Ventura County, the Ninth Circuit appeared convinced by the bulk of Forest Service documents that the national forest plan was intended to be and actually was comprehensive. The court was wrong on the intent, as the consultation and deference requirements of NFMA and the agency's own regulations amply demonstrate.119 What may be masked by the sheer tonnage of paper, however, is the agency's institutional incapacity to do detailed minerals planning.

Observers should not be misled by conceptions of planning based on the traditional land use planning and zoning practices of local governments.120 In fact, the Forest Service has never prepared and is not now preparing detailed multi-use land use plans that include minerals developments, nor has it "zoned" the forests for minerals development. The agency's minerals plans are essentially procedural and reactive, simply stating how the agency will respond to minerals proposals presented to it by private developers and the BLM. It is therefore erroneous to state that either Congress or the Forest Service has affirmatively determined that a particular mineral deposit should be developed in a particular location. These proposals are brought to the agencies on the initiative of private operators, and the Forest Service's role is restricted to impact mitigation.121

Furthermore, neither BLM nor the Forest Service undertakes the assessments necessary to evaluate the full range of social and economic impacts of a proposed development on a particular ecosystem and socioeconomic system. The Forest Service is dominated by foresters and engineers engaged in road design.122 It has long been a matter of considerable debate whether this mix of personnel is appropriate to the tasks of the Forest Service;123 it has never been asserted, for good reason, that these same personnel are capable of undertaking the diverse environmental protection and socioeconomic planning duties of state and local agencies in addition to their current responsibilities.124

These institutional incapacities can be amply illustrated in the context of Granite Rock. Nowhere, at the national, regional, or forest plan level, is there any substantive discussion of national demands for minerals in general or limestone in particular, the Forest Service's role in filling that demand, or the general, specific, or cumulative effects of minerals or limestone extraction on any real or abstracted forest environment or state or local economy.125

[17 ELR 10287]

This does not suggest, and is not intended to suggest, that the Forest Service planning documents are legally, morally, or technically inadequate. It does suggest, however, that the federal agency has not produced an integrated, multi-resource analysis.126 The mere acre-feet or gross tonnage of planning documents cannot be taken as an indication that a comprehensive federal analysis or plan exists. The agency's analysis is neither so complete nor so compelling that state efforts to complement the planning effort, which are invited and indeed required by federal law, would undermine the limited authority that Congress has chosen to exercise in this area.

Conclusion

The Supreme Court's decision in Granite Rock does not present a power struggle between two levels of government over management of the public lands. Such disputes are obviously resolved by the courts in favor of the federal government. Nor is this a case in which layers of legitimate federal and state programs intertwine to create needless duplication. Granite Rock is an ordinary case in which a third party seeks to simulate conflict between sovereigns in order to avoid regulation. There is enough verbiage in First Iowa and Ventura and enough uncertainty about congressional policy toward the public lands to suggest to private developers of public resources that this ploy is worth trying. And the growing willingness of states to regulate public land activities that cut increasingly to the heart of state environmental quality and economic life suggests that the ploy will be tried frequently.

However, we have argued that the courts should not legitimize private parties' self-serving cries of federal supremacy. To do so would create serious gaps in what has been and increasingly must become a dual regulatory scheme. The Supreme Court used Granite Rock to remind the Ninth Circuit, and others, that on the public lands state law will not be preempted automatically. However, that is all it tells us. Further clarification from the courts, attentive to the critical and evolving relationship between federal and state governments in public lands policy, will be required if congressional commitment to dual regulation is to achieve Congress' goals.

1. 17 ELR 20563 (U.S. Mar. 24, 1987). The lower court opinions appear at 768 F.2d 1077, 15 ELR 20919 (9th Cir. 1985) and 590 F. Supp. 1361, 14 ELR 20911 (N.D. Cal. 1984).

2. Kleppe v. New Mexico, 426 U.S. 529, 6 ELR 20545 (1976).

3. E.g., Ventura County v. Gulf Oil Corp., 601 F.2d 1080, 9 ELR 20653 (9th Cir. 1979), aff'd mem., 445 U.S. 947 (1980); Brubaker v. Board of County Commissioners, 652 P.2d 1050 (Colo. 1982).

4. See infra note 69 and accompanying text.

5. The Justices delivered three opinions. The majority opinion, authored by Justice O'Connor, was joined by Justices Rehnquist, Brennan, Marshall (who wrote Kleppe) and Blackmun. Justices Powell and Stevens dissented on the preemption question, largely on the ground that "duplicative" state permit requirements are an unwarranted intrusion into "federal control over the use of federal land." 17 ELR at 20571. Justices Scalia and White dissented on the narrower ground that the California law "is plainly a land use statute," application of which is preempted by federal law. 17 ELR at 20572.

6. Although none of the Granite Rock decisions make the connection, it is helpful to view the hardrock mining case in relation to other resource management regimes operating on the federal lands. The Court has been pointing clearly in the direction of greater state participation in a number of key cases. See, e.g., United States v. California, 438 U.S. 645, 8 ELR 20593 (1978) (Bureau of Reclamation must comply with California water allocation law unless it conflicts with specific declarations of congressional policy); Commonwealth Edison Co. v. Montana, 453 U.S. 609 (1981) (Montana's severance tax on coal extracted by federal coal lessees upheld despite plaintiff's claims that tax would frustrate energy promotion purposes of the federal coal leasing program; United States v. New Mexico, 438 U.S. 696, 8 ELR 20564 (1978) (congressional deference to state water law affirmed and implied reserved water rights for the national forests limited).

7. For a discussion of such cases, see infra notes 27-29 and accompanying text.

8. First Iowa Hydro-Electric Cooperative v. Federal Power Commission, 328 U.S. 152 (1946). See infra text at notes 35-44.

9. 601 F.2d 1080, 9 ELR 20653.

10. 17 ELR at 20566-68; see also Justice Scalia's dissent, 17 ELR at 20572-74. This alleged distinction strikes us as familiar old wine — the regulation but not prohibition theme — which in the Supreme Court's Granite Rock decision emerged in a particularly unenlightening new sack. See infra notes 27-29 and 76-79. The Court's distinction between land use planning and environmental regulation appears to depend on a simplistic and unrealistic notion of land use planning equivalent to zoning. See 17 ELR at 20567: "Land use planning in essence chooses particular uses for the land." Justice Scalia stated in his dissent that "[e]ven if … the land use permit [is] only … a device for exacting environmental assurances, the power to demand that permit nevertheless hinges upon the State's power … to control land use." 17 ELR at 20573 (emphasis in original). See also infra note 120.

11. 17 ELR at 20567.

12. "Federal land use statutes and regulations … arguably express] [ an intent to pre-empt state land use planning." 17 ELR at 20569.

13. "For purposes of this discussion and without deciding the issue, we may assume that the combination of the [National Forest Management Act] and the [Federal Land Policy Management Act] preempt the extension of state land use plans onto unpatented mining claims in national forest lands." 17 ELR at 20567.

14. Id.

15. Id.

16. Granite Rock's activities include "blasting and opening a quarry, constructing and improving roads, building a bridge, boring test holes and conducting core drilling, improving a water storage system, and dumping rock waste in a disposal area." 590 F. Supp. at 1366, 14 ELR at 20913.

17. 30 U.S.C. §§ 22-48. The Act established terms and conditions for granting miners access to federal minerals. It is similar to dozens of 19th-century statutes in which the dominant congressional goal was to dispose of the public lands. See infra note 96-99 and accompanying text. Moreover, it is part of the continuing congressional policy of relying on private entrepreneurs to develop public lands resources. See S. FAIRFAX & C. YALE, FEDERAL LANDS: A GUIDE TO PLANNING, MANAGEMENT AND STATE REVENUES ch. 4 (1987) for a brief introduction to the 1872 Act. A miner who locates a "valuable deposit" and complies with other "rules of discovery" gains rights of pedis possessio, the right to enter and develop a claim without paying rent or royalty to the government. The Act also allows the miner to take title to the land under specified procedures and conditions. The 1872 Act does not establish a federal regulatory scheme, but simply acquiesces in established practices of western minerals development as previously codified in state law for establishing private rights to public resources. Subsequent elaboration of conflicting federal goals, notably those of land retention, environmental protection, and amenity management, has not interrupted either the basic disposition scheme or the continuing pattern of reliance on state programs for significant aspects of both minerals and environmental regulation. See generally J. LESHY, THE MINING LAW: A STUDY IN PERPETUAL MOTION (1987).

18. The files marked "Do Not Staple — Ansel Adams photographs enclosed" were a striking feature of researching this case.

19. U.S. FOREST SERVICE, LOS PADRES NATIONAL FOREST ENVIRONMENTAL ASSESSMENT, FILE 1950 (1980) [hereinafter ENVIRONMENTAL ASSESSMENT]. Other company sites are located on adjacent private land. The one disputed fact in the case is whether the company's claim has been perfected under the 1872 Act. The district court, without citation, asserted that "there is no dispute that [Granite Rock] has perfected its mining claims." 590 F. Supp. at 1366, 14 ELR at 20913. However, the parties do not appear to be in harmony on that issue. The unpatented status of the federal claim and the propinquity of private Granite Rock properties are significant for two reasons. First, one could argue that Granite Rock is working only its federal site because the unpatented federal claim is arguably not subject to state regulation, which is clearly applicable on the company's private sites. Hence this litigation creates an opportunity to prevent regulation of mining from occuring. Below, we call this a "management gap." See note 109 and accompanying text.

Second, the fact that the claim is unpatented raises the possibility that compliance with environmental protection regulations could invalidate the claim under the Department of the Interior's "marketability" test implementing the "prudent man rule," which defines a discovery of a valuable deposit under the 1872 Act. If the claim is challenged, is the cost of complying with state and/or federal environmental protection stipulations included in the calculation of what is marketable at a profit? As noted above, a claimant who has located a valuable deposit has a valid mining claim and rights of pedis possessio. See supra note 17. A claimant with no "valuable" (marketable at a profit) deposit has no rights. See Fairfax & Andrews, Debate Within and Debate Without: NEPA and the Redefinition of the Prudent Man Rule, 19 NAT. RESOURCES J. 505 (1979). See also Leshy, supra note 17, ch. 8.

20. 42 U.S.C. §§ 4321-4361, ELR STAT. 41009.

21. See the district court opinion, 590 F. Supp. at 1366, 14 ELR at 20913, for a synopsis of the conditions imposed. The Forest Service requires that any person proposing to mine in a national forest submit a plan of operation for any work that is likely to disturb surface resources. See 36 C.F.R. § 228 (1980).

22. 16 U.S.C. § 1456(c)(3), ELR STAT. 41704:1. The consistency review process is described in detail in the Supreme Court's decision, 17 ELR at 20568. Basically, if the state rejects the applicant's certification that the proposed action is consistent with an approved coastal management plan, the federal agency involved must reject the application absent a finding by the Secretary of Commerce that the application is either consistent with CZMA goals or "otherwise necessary in the interest of National Security." CZMA § 307(c)(3)(A), 16 U.S.C. § 1456(c)(3)(A), ELR STAT. 41704:1.

23. Hence, we emphasize the pedagogical import of the case because it probably never should have happened, and it will not decide the fate of the Big Sur coast. Had there been a consistency review, all the issues could have been resolved during that process. See supra note 22. Similarly, environmentalists belatedly initiated a NEPA challenge to the FONSI. After considerable motions and cross motions on the timeliness question, that suit was settled. The settlement contained stipulations regarding conduct under the already approved plan of operations including, inter alia, the stipulation that operations would cease during periods when the roads would not withstand heavy vehicle use due to weather conditions, and that Granite Rock will be required to to do reclamation work deemed necessary after the plan of operations ended, to be completed within one year of termination of the plan. Moreover, because it became clear that the plan of operations would expire in early 1986, the Forest Service agreed that it would do a fall EIS on any proposed plan of operations subsequently submitted by Granite Rock, and that the EIS would consider, among other things, "the cumulative impact of past, present, and reasonably foreseeable future actions" related to the proposed plan. Big Sur Foundation v. Block, No. 84-6784, Stipulation and Order of Dismissal at 3 (N.D. Cal. Oct. 31, 1985).

For the same reason, the Court had to argue past the assertion that the issue was moot to reach the merits. See 17 ELR at 20564-65. The Forest Service is amply on notice now that a full blown environmental impact statement (EIS) under intense public scrutiny will inevitably precede a renewal of Granite Rock's plan. Thus, the fate of Big Sur does not rest with the Supreme Court's decision in the current litigation.

24. 590 F. Supp. at 1370, 14 ELR at 20915.

25. 590 F. Supp. at 1372-73, 14 ELR at 20916.

26. 590 F. Supp. at 1373, 14 ELR at 20916.

27. An excellent analysis of this "clear statement rule" can be found in Tribe, California Declines the Nuclear Gamble: Is Such a State Choice Pre-empted?, 7 ECOLOGY L.Q. 679 (1979).

28. This language is contained in several Supreme Court decisions. See, e.g., Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 8 ELR 20255, 20256 (1978) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

29. State ex rel. Andrus v. Click, 97 Idaho 791, 554 P.2d 969, 6 ELR 20805 (1976). In Click, the Idaho Board of Land Commissioners sought to enjoin mining activity on an unpatented federal mining claim until the miners obtained a permit under the state's Dredge and Placer Mining Protection Act. IDAHO CODE §§ 47-134 (1985). The Idaho Supreme Court upheld the state law against the miners' claim that it was preempted by the federal Mining Act, finding that the 1872 Act and the Forest Service's mining regulations did not occupy the field of environmental management of mining operations on federal lands. 554 P.2d at 976, 6 ELR at 20807. The Court held that there was no actual conflict since the state's stricter requirements were "in harmony with the federal legislation." 554 P.2d at 978, 6 ELR at 20808. Nevertheless, the scope permitted the state regulations is limited: "where a right is granted by the federal legislation, state regulation which rendered it impossible to exercise that right would be in conflict." 554 P.2d at 974, 6 ELR at 20806.

The regulation/prohibition distinction has been employed in other state court decisions both to strike down and to uphold concurrent state and local regulation of private activities on federal lands. See, e.g., Brubaker v. Board of County Commissioners, 652 P.2d 1050 (Colo. 1982) (preempting local government's denial of drilling permit); State ex rel. Cox v. Hibbard, 570 P.2d 1190, 8 ELR 20127 (Or. Ct. App. 1977) (upholding a state law requiring a permit before removing material from a stream bed).

30. 590 F. Supp. at 1370, 14 ELR at 20915 (citing the state's brief at 14).

31. The Supreme Court made much of this same point. See infra notes 83-84 and accompanying text.

32. 590 F. Supp. at 1374, 14 ELR at 20917.

33. Id.

34. See Tribe, supra note 27.

35. 328 U.S. 152 (1946).

36. 426 U.S. 529, 6 ELR 20545 (1976).

37. 16 U.S.C. §§ 791a-825r (1985).

38. 328 U.S. at 182.

39. 16 U.S.C. § 802(b).

40. 328 U.S. at177.

41. Ventura County, 601 F.2d 1080, 9 ELR 20653, is one of the more recent progeny. See infra text at notes 52-60.

42. 768 F.2d at 1082, 15 ELR at 20921.

43. 768 F.2d at 1083, 15 ELR at 20921.

44. 768 F.2d at 1083, 15 ELR at 20922.

45. 426 U.S. 529, 6 ELR 20545.

46. 16 U.S.C. §§ 1331-1340, ELR STAT. 41834.

47. N. MEX. STAT ANN. § 77 13-1-13-10 (1978).

48. 426 U.S. at 539, 6 ELR at 20547 (quoting, inter alia, United States v. San Francisco, 310 U.S. 16, 29 (1940)).

49. See, e.g., Engdahl, Federalism and Energy: State and Federal Power Over Federal Property, 18 ARIZ. L. REV. 283 (1976). Engdahl has noted a related tendency to cloak Article IV public domain lands with the "exclusive legislation" provision governing Article I lands. Compare U.S. CONST. art. IV, § 3, cl. 2 ("The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States") with U.S. CONST. art. I, § 8, cl. 17 ("Congress shall have power to exercise exclusive Legislation … [over the seat of government], and to exercise like Authority over all Places purchased by the Consent of the Legislature of [a] State"). Coggins and Wilkinson note, however, that a key aspect of Kleppe was that the conflict between federal and state law was "irreconcilable." New Mexico law provided that the burros be rounded up, sold, and killed. Federal law "prohibited harassment, sale and killing. Seldom is the incompatibility so clear cut." G. COGGINS & C. WILKINSON, FEDERAL PUBLIC LAND AND RESOURCE LAW 182 (1st ed. 1980).

50. 426 U.S. at 536, 6 ELR at 20546.

51. 426 U.S. at 543, 6 ELR at 20548-49.

52. 601 F.2d 1080, 9 ELR 20653.

53. 601 F.2d at 1083, 9 ELR at 20654. Perhaps significantly, this case arose at a peak in the 1970s energy crisis.

54. 601 F.2d at 1083, 9 ELR at 20653-54.

55. United States v. San Francisco, 310 U.S. 16, 29 (1940), (quoted in Kleppe, 426 U.S. at 539, 6 ELR at 20547). This concept can be seen in Supreme Court cases beginning at least as early as Camfield v. United States, 167 U.S. 518 (1897).

56. 601 F.2d at 1084, 9 ELR at 20654.

57. In a footnote, without elaboration, the court concludes that the mere existence of the local ordinance "strikes at the heart" of the federal management program: "The issue is whether Ventura has the power of ultimate control over the Government's lessee, and this issue persists whether or not a use permit would eventually be granted." 601 F.2d at 1084-85, 9 ELR at 20654.

58. 601 F.2d at 1084, 9 ELR at 20654.

59. The opinion notes that concurrent state regulations on well spacing and forced pooling are valid, citing Texas Oil and Gas Corp. v. Phillips Petroleum Co., 277 F. Supp. 366, 369 (W.D. Okla. 1967), aff'd, 406 F.2d 1303, 1304 (10th Cir. 1969). See also infra notes 101 and 113 and accompanying text.

60. 601 F.2d at 1083, 9 ELR at 20653-54.

61. 768 F.2d at 1081, 15 ELR at 20921 (citations omitted). One potentially positive outcome of the Supreme Court decision in Granite Rock is that it may place the 1872 Act into a more realistic perspective. The Ninth Circuit stated flatly that "[t]he purpose of the Mining Act is to encourage mining on federal lands," and found that purpose preemptive. Id. Congress' words are significantly different: "to promote the Development of the Mining Resources of the United States." This goal was primarily accomplished by acknowledging and authorizing widespread trespass on federal property and theft of federally owned minerals. Justice Powell correctly noted, in dissent, that "[i]n general, that law opens the public lands to exploration." 17 ELR at 20569. Arguably, the Supreme Court has put the realities ofthe 1872 Act back into view. See LESHY, supra note 17, chs. 3, 10.

62. 768 F.2d at 1080, 15 ELR at 20920 (citing Silkwood v. Kerr-McGee, 464 U.S. 238, 14 ELR 20077 (1984)).

63. First Iowa, for example, involved one federal agency (the Federal Power Commission), one statute (the Federal Power Act), and one overarching federal goal (the generation of hydroelectric power). Minerals management on national forest lands typically involves a minimum of seven federal agencies in four federal departments. The agencies involved are the Forest Service in the Department of Agriculture; the BLM, the Fish and Wildlife Service, the Minerals Management Service, and the United States Geological Survey in the Department of the Interior; the National Oceanic and Atmospheric Administration in the Department of Commerce; and numerous divisions of the Environmental Protection Agency. Some of the numerous major statutes involved include the Mining Act of 1872, 30 U.S.C. §§ 21-48; Forest Reserve Act, ch. 2, 30 Stat. 11 (1897) (codified in various sections of 16, 24, 30, and 43 U.S.C.); Mineral Lands Leasing Act of 1920, 30 U.S.C. §§ 181-263, ELR STAT. 41407; Common Varieties Act of 1955, 30 U.S.C. §§ 611-615; National Environmental Policy Act, 42 U.S.C. §§ 4321-4361, ELR STAT. 41009; Multiple Use Sustained Yield Act, 16 U.S.C. §§ 528-531, ELR STAT. 41406; Endangered Species Act, 16 U.S.C. §§ 1531-1543, ELR STAT. 41825; Forest and Rangeland Renewable Resources Act, 16 U.S.C. §§ 1600-1676, ELR STAT. 41433; Federal Land Policy and Management Act (FLPMA), 43 U.S.C. §§ 1701-1782, ELR STAT. 41458; National Forest Management Act (NFMA), 16 U.S.C. §§ 1600-1676, ELR STAT. 41433; Wilderness Act of 1964, 16 U.S.C. §§ 1131-1136, ELR STAT. 41411; Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271-1287, ELR STAT. 41421; National Historic Preservation Act, 16 U.S.C. §§ 470-470w-6, ELR STAT. 42435; Mining and Minerals Policy Act of 1970, 30 U.S.C. § 21a, ELR STAT. 41407. See also other environmental statutes listed infra at note 65.

All of these statutes state clear federal purposes that are frequently inconsistent. Moreover, because many congressional enactments have directed or encouraged state governments to establish their own programs and agencies, the issues frequently involve an equivalent number of state statutes and actors. Powell's discussion of the "almost impenetrable maze of arguably relevant legislation," is partial and misleading. See 17 ELR at 20572. His assertion that Congress needs to pass a single law to govern all federal lands, id., further suggests that this critical distinction between public lands preemption and more typical single-agency/single-statute cases has been inadequately addressed. As we have suggested elsewhere, cooperative, federal/state and local management and decisionmaking is increasingly the norm in this policy arena. See Cowart, Fairfax & Wilson, Beyond the Sagebrush Rebellion, 84 J. FORESTRY 11 (Nov. 1986) and Cowart & Fairfax, Beyond the Sagebrush Rebellion, 14 ECOLOGY L.Q. __ (forthcoming 1987). For a discussion of the multiplicity of statutes, actors, and changing positions in a different public lands context, see Fairfax, Andrews & Buchsbaum, Federalism in the Wild and Scenic Rivers Act: Now You See It, Now You Don't, 59 WASH. L. REV. 417 (1984).

64. 768 F.2d at 1081, 15 ELR at 20921.

65. See supra note 63, for a partial list of public lands statutes. Other pertinent environmental statutes include, e.g., the Clean Air Act, 42 U.S.C. §§ 7401-7642, ELR STAT. 42201; the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1376, ELR STAT. 42101; and the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6987, ELR STAT. 42001.

66. The Ninth Circuit found the alleged purposes of the 1872 Act preemptive in spite of the fact that, as the Supreme Court has observed, a general federal purpose to encourage a particular activity does not preempt state regulation which incidentally prohibits that activity through regulation in an area where the state regulation is not otherwise prohibited. See Silkwood v. Kerr-McGee, 464 U.S. 238, 14 ELR 20077 (1984); Pacific Gas and Electric Co. v. State Energy Resources Comervation and Development Commission, 461 U.S. 190, 13 ELR 20519 (1983).

67. 471 U.S. 707, 718 (1985).

68. See supra note 17 for a description of the 1872 Act's location system, which allows miners to lay claim to mining sites without any prior consultation with federal officials. Compare with the Mineral Leasing Act analyzed in Ventura, which gives the Secretary of the Interior control over the location, timing, and intensity of development. See S. FAIRFAX & C. YALE, supra note 17, ch. 4 for a brief description of the Mineral Leasing Act.

69. 17 ELR at 20565 (citations omitted).

70. 17 ELR at 20566.

71. Id.

72. Id., quoting Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 718 (1985).

73. Id.

74. Id.

75. 17 ELR at 20567.

76. Id., citing first FLPMA § 202(c)(9) and then § 202(c)(8). The latter section specifically lists "[s]tate and Federal air, water, noise, or other pollution standards or implementation plans," 43 U.S.C. §§ 1712(c)(8), (c)(9), ELR STAT. 41461.

77. 17 ELR at 20567.

78. Id.

79. 17 ELR at 20568.

80. "Because Congress specifically disclaimed any intention to pre-empt pre-existing state authority in the CZMA, we conclude that … the CZMA does not automatically pre-empt all state regulation of activities on federal lands." Id.

81. The Court recites and relies upon statutory language and the Department of Commerce's regulations regarding the standards and procedures for a CZMA consistency review in the process of rejecting Granite Rock's argument that "because [it] mines land owned by the Federal Government, the Coastal Commission's regulation of Granite Rock's mining operation must be limited to participation in a consistency review process detailed in the CZMA." Id. Thus the Court appears to have ignored not only the district court's effort to transcend Commerce Department regulations but the regulations themselves. On this point, the CZMA regulations would appear to support Granite Rock's position. The Court noted that, "the Department of Commerce, which administers the CZMA, has interpreted § 1453(1) to exclude all federally-owned land from the CZMA definition of a state's coastal zone," but then ignored the regulations. Id. Considering the deference given to the Forest Service's regulations in evaluating the preemptive effect of the Mining Act, it is difficult to discern the importance of the case for deference to an agency's interpretations of its own authority.

82. The Court quite correctly concludes that "[t]he permit requirement itself is not talismanic," ending a line of fruitless speculation over the difference between substantive and procedural compliance with state regulatory requirements. Id.

83. 17 ELR at 20568-69.

84. 17 ELR at 20569.

85. 17 ELR at 20570.

86. 17 ELR at 20572. Justice Scalia argues:

It seems to me ultimately irrelevant whether state environmental regulation has been pre-empted with respect to federal lands, since the exercise of state power at issue here is not environmental regulation but land use control. The Court errs in entertaining the Coastal Commission's contention "that its permit requirement is an exercise of environmental regulation"; and mischaracterizes the issue when it describes it to be whether "any state permit requirement, whatever its conditions, [is] per se pre-empted by federal law." We need not speculate as to what the nature of this permit requirement was. We are not dealing with permits in the abstract, but with a specific permit, purporting to require application of particular criteria, mandated by a numbered section of a known California law. That law is plainly a land use statute, and the permit that statute requires Granite Rock to obtain is a land use control device. Its character as such is not altered by the fact that the State may now be agreeable to issuing it so long as environmental concerns are satisfied. Since, as the Court's opinion quite correctly assumes, state exercise of land use authority over federal lands is pre-empted by federal law, California's permit requirement must be invalid.

Id. (citations to majority opinion omitted).

87. 17 ELR at 20569 (Powell, J., dissenting). Given the deference shown Forest Service regulations in this decision, the Court's disinterest in the BLM's interpretation of FLPMA's consistency regulations is puzzling. Moreover, the tendency of the Court to speak collectively about federal land management statutes is distressing as NFMA and FLPMA are significantly different on key aspects of this issue. See supra notes 12-14.

88. 17 ELR at 20571-20572.

89. The courts are not alone in making this mistake. Traditionally, these lands were known as the "public lands"; only recently have courts, scholars, and politicans come to call them "federal lands." See P. GATES, HISTORY OF PUBLIC LAND LAW DEVELOPMENT ch. 2 (1968); P. ONUF, THE ORIGINS OF THE FEDERAL REPUBLIC; JURISDICTIONAL CONTROVERSIES IN THE UNITED STATES 1775-1787 (1983); S. Fairfax, Federalism As If States Mattered: Resource Revenues and the Public Lands (Aug. 1986) (paper presented at the American Political Science Association Convention in Washington, D.C.).

90. See Hancock v. Train, 426 U.S. 167, 6 ELR 20555 (1976).

91. Kleppe v. New Mexico, 426 U.S. at 543, 6 ELR at 20548.

92. Under the Jurisdiction Clause, U.S. CONST. art. I, § 8, cl. 17, the federal government exercises "exclusive legislation" over federal enclaves, sites acquired by the federal government after a cession of authority by the state legislature for specific purposes such as arsenals or post offices. This is different from the Property Clause in article IV which authorizes Congress to make "all needful rules" governing the territories. U.S. CONST. art. IV, § 3, cl.2. See Engdahl, supra note 49 for a fuller discussion of these issues.

93. See supra text at note 88.

94. The difficulties of interpreting Congress' preemptive intentions in the Atomic Energy Act and the Federal Communications Act are good examples.

95. See supra notes 63 and 65.

96. 768 F.2d at 1080, 15 ELR at 20920 (citing Silkwood v. Kerr-McGee, 464 U.S. 238, 14 ELR 20077 (1984)). Professor Susan Foote of the University of California at Berkeley has argued, although, that the absence of a clear statement regarding Congress' preemptive intent is arguably not material in pre-1970s statutes, because since that time Congress has developed clear and unambiguous language for expressing itself and failure to include such statements should be read as indicative of intent. (personal communication with authors, Berkeley, California).

97. Not only does Justice Powell's position suggest a legislating role fundamentally improper for the courts, it is also likely to lead to ill-informed policy choices. What justification, for example, does a court have to elevate the purpose of the Mining Act to promote mining over the purpose of NFMA to protect renewable resources? Attempting to simplify a complex policy mix, the court is likely to notice the trunk and miss the elephant.

98. See supra note 27 and accompanying text.

99. This is the most extreme formulation of three categories of "administrative preemption." When both Congress and agency regulations are silent on preemptive intent, the Supreme Court has concluded that the Court will not infer preemption from the mere volume and complexity of regulations. When an agency chooses a preemptive strategy in spite of congressional silence on the issue, one commentator has argued that "because of the nonrepresentative nature of agencies and the importance of federal structure issues" the courts should not automatically defer to agencies' expansive interpretation of their own authorities. Foote, Regulatory Vacuums: Federalism, Deregulation and Judicial Review, 19 U.C. DAVIS L. REV. 113, 151 (1985).

The Ninth Circuit's Granite Rock decision presents a third category: in the absence of congressional preemption, if an agency chooses to defer to state law, the court forces them to preempt. Thankfully, the Supreme Court has said no to that. But, although the preemptive outcome is the same in all three cases — state law is deferred to in the absence of clearly stated congressional intent to preempt — the degree of deference to agency regulations varies. In the middle case, which Foote documents, agency regulations ought not to be given deference. This is both because Congress, rather than arguably self-interested bureaucrats, ought to make the decision to preempt and because deference to administrative interpretations of an agency's own authority is based in presumptions about an agency's technical expertise that are not necessarily warranted when the issue isfederal-state relations.

100. See, e.g., Utah Power and Light Co. v. United States, 243 U.S. 389 (1917); McKelvey v. United States, 260 U.S. 353 (1922); Hunt v. United States, 278 U.S. 96 (1928); and United States v. San Francisco, 310 U.S. 16 (1940). See also G. COGGINS & C. WILKINSON, FEDERAL PUBLIC LAND AND RESOURCE LAW 194 (2d ed. 1987). One early compilation of public lands cases, thoroughly indexed, contains detailed entries on nuisance, title, access, and so on, but does not even include preemption as a public lands issue. J. LEWIS, A COLLECTION OF LEADING CASES ON THE PUBLIC LAND LAWS OF THE UNITED STATES (1879).

101. State action antedates federal efforts to regulate, for example, oil and gas production. Generally, state statutes in this area establish a regulatory body with broad discretion to conserve resources by control of drilling and production practices, spacing of wells, and reporting of output. Although the potential for federal preemption of state programs is everpresent, since passage of the Mineral Leasing Act in 1920 federal agencies have relied upon state regulation in this area. See UNITED STATES PUBLIC LAND LAW REVIEW COMMISSION, 3 ENERGY FUEL MINERAL RESOURCES OF THE PUBLIC LANDS 5-53 (1970) (prepared by the Rocky Mountain Mineral Law Foundation) [hereinafter PUBLIC LAND LAW REVIEW COMMISSION].

102. See, e.g., Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212 (1845).

103. See, e.g., Camfield v. United States, 167 U.S. 518 (1897); Light v. United States, 220 U.S. 523 (1911).

104. The modern era of retention and management is occasionally said to have begun as early as 1872 with the establishment of Yosemite National Park; nevertheless, the disposition era did not officially end until the passage of FLPMA in 1976. In FLPMA, Congress finally clearly stated that the unreserved unentered public domain would be retained and managed by the federal government. FLPMA § 102(a)(1), 43 U.S.C. § 1701(a)(1), ELR STAT. 41459. But see E. PEFFER, THE CLOSING OF THE PUBLIC DOMAIN (1951). See generally P. GATES, supra note 89; see also DANA & S. FAIRFAX, FOREST AND RANGE POLICY: ITS DEVELOPMENT IN THE UNITED STATES (1980).

105. Which states are included in the category "public lands states" varies. One well-known public lands casebook includes the eleven westernmost states in the continental United States and Alaska: Arizona (44.1 percent federally owned); California (45.7 percent); Colorado (35.95 percent); Idaho (65.1 percent); Montana (29.3 percent); Nevada (85.4 percent); New Mexico (33.3 percent); Oregon (52.3 percent); Utah (63.3 percent); Washington (28.4 percent); Wyoming (49.2 percent); Alaska (87.9 percent). See COGGINS & WILKINSON, supra note 100, at 11.

106. A thorough history of the 1970s energy crises and the federal government's energy programs can be found in CONGRESSIONAL QUARTERLY, INC., ENERGY POLICY (2nd ed. 1981).

107. See Cowart, Fairfax & Wilson, supra note 63. Many of the relevant state programs parallel well-known federal environmental programs enacted since the 1970s. Indeed, many of them were stimulated or mandated by national legislation. See Brief for Amici Curiae, The Big Sur Foundation, Natural Resources Defense Council, Inc., the Sierra Club, and the Wilderness Society in Support of Appellants at 2-12, California Coastal Commission v. Granite Rock Co., 17 ELR 20563 (No. 85-1200).

108. See statutes listed supra at note 63.

109. CONGRESSIONAL QUARTERLY, INC., supra note 106.

110. We see these gaps, areas where Congress has clearly intended for regulation to occur which go unattended to as a result of administrative incapacity or erroneous judicial constriction of state authority relied upon by federal agencies, as different from the regulatory vacuums described by Foote. In her analysis of a different administrative setting, a "vacuum" is created when a federal agency deregulates and "assert[s] power to prevent states from filling the void." Foote, supra note 99, at 113.

111. In addition, the federal government relies on concessionaires for recreation and other amenity development. See FAIRFAX & YALE, supra note 17, at 8, 14-17 for a discussion of the changing role ofthe private entrepreneur and the rise of bureaucratic planning.

112. See, e.g., United States v. California, 438 U.S. 645, 8 ELR 20593 (1978) (state can impose conditions on water distributed from federal reclamation projects built pursuant to the 1902 Reclamation Act unless the state rule conflicts with clear congressional policy). See generally ANDREWS & SANSONE, WHO RUNS THE RIVERS (1983).

113. PUBLIC LAND LAW REVIEW COMMISSION, supra note 101. The fact that Congress could displace such programs is irrelevant given the fact that it has not done so. A similar pattern of reliance on states is visible in the evolution of Forest Service programs since the early 1900s: federal assistance to and cooperation with states in forestry "dates back to 1911 for fire protection, to 1924 for the provision of planting stock and state extension services, to 1937 for afforestation subsidies, to 1940 for research, and to 1974 for state forest resource planning and assessment. Romm & Fairfax, The Backwaters of Federalism: Receding Reserved Water Rights and the Management of National Forests, 5 POL'Y STUDIES REV. 431 (1985).

114. The Forest Service is often bound to incorporate such standards. See the Ninth Circuit's own opinion in Sierra Club v. Peterson, 705 F.2d 1475, 13 ELR 20585 (9th Cir. 1983) (Forest Service required to obtain state permit to apply pesticides in national forests).

115. See supra note 17 for a description of the 1872 Mining Law.

116. It was not until 1976, for example, that Congress even required prospectors or mining claimants to inform BLM of their activities. See FLPMA § 314, 43 U.S.C. § 1744, ELR STAT. 41468. See also Locke v. United States, 471 U.S. 84 (1985) (upholding and discussing claim registration requirement). Prior to that time, the rules of discovery required the miner to report the location of the claim in an appropriate local jurisdiction.

117. Perhaps it aids in distinguishing dual regulation on federal lands from the duplicative regulation that seems to have especially concerned Justices Powell and Stevens to think in terms of an analogy to principles long settled in discussions of intergovernmental immunities. See 17 ELR at 20572 (Powell, J., dissenting). Justice Holmes noted that efforts to protect federal licensees from state interference could not confer "a general immunity from state law." To hold otherwise would require Congress to provide "a comprehensive body of rules to govern all the rights and obligations of all those who act on its behalf, including the mode of turning at the corners of the streets." Johnson v. Maryland, 254 U.S. 51, 56-57 (1920), cited in a generally useful discussion of the general subject in Tribe, Intergovernmental Immunities in Litigation, Taxation, and Regulation, 89 HARV. L. REV. 682, 702 (1976) and applied in the public domain context in Fairfax, supra note 89. See also United States v. County of Fresno, 429 U.S. 452 (1977) and discussion of this case in COGGINS & WILKINSON, supra note 100, at 189-90.

118. Indeed, it is insufficiently recognized that Forest Service capabilities have been declining. Although Reagan era declines in Forest Service budgets bottomed at $922.8 million in 1984, recent increases to pre-1980s levels may be misleading, as much of the apparent gain appears tied to roadbuilding and timber. See EXEC. OFFICE OF THE PRES., OFFICE OF MANAGEMENT AND BUDGET, BUDGET OF THE UNITED STATES GOVERNMENT FISCAL YEAR 1988 APPENDIX. H. DOC. 100-4, 100 Cong., 1st Sess. (allotting $1.5 billon for 1987). Real budget declines for forest plan implementation may have as yet unexplored legal and practical consequences for the forest planning process now underway. For example, the preferred alternative analyzed in the draft plan for the Tahoe National Forest in California anticipates a doubling of budget resources available to the forest; forest planners more realistically estimate, however, that during the current fiscal crises in Washington, forest service resources will be halved, resulting in 25 percent of revenues originally anticipated to implement the plan. More striking, perhaps, is the steady erosion of Forest Service professionals throughout the 1980s. Since 1980, the total has dropped 15.7 percent. (S. Laner, Management Analyst Group, Pacific Southwest Forest and Range Experimental Station, personal communication with authors.)

Thus, although the Reagan Administration's ideological emphasis on returning authority to states may not have found universal favor, responsibility for resource management and environmental protection has fallen to the states as federal agency budgets are cut back. To bar states from carrying out their traditional role in public resource management on constitutional grounds means simply that growing congressional and public expectations regarding environmental planning and management will not be met. See O'Toole, Reduced Budget Threatens Forest Plans, FOREST WATCH 18 (June 1986).

119. See, e.g., 36 C.F.R. §§ 228.4(e); 228.5(a); 228.8(a)-(c), (h); 228.9; 228.11.

120. Most of the members of the Court appear to have such a model of location-based, comprehensive planning in mind. The majority distinguishes land use planning and environmental regulation, concluding that "[l]and use planning in essence chooses particular uses for the land." 17 ELR at 20567. Justices Scalia and White find the California Coastal Act to be preempted because it is an "exercise of land use authority pre-empted by federal laws." 17 ELR at 20572. Both opinions assume that the Forest Service planning process designates particular sites for particular mineral developments and that state interference with such designations would be preempted. Justices Powell and Stevens argue that there is no real distinction between land use planning and environmental land use management (land use permitting) because they both manage uses of the land. 17 ELR at 20570. They would hold that state management of land uses is preempted in either case.

121. See R. COWART, Managing Minerals in a Renewable Resources System: Planning and Permitting on the National Forests, in MINERAL ECONOMICS AND PLANNING IN PUBLIC AGENCIES (Berck and Dale eds. 1984) (University of California Experiment Station Bull. No. 1912).

122. Foresters, engineers, forest technicians, and engineering technicians comprise 49 percent of the total general schedule (GS) payroll of the agency. Foresters and forestry technicians account for 39 percent of current GS employees. S. Laner, supra note 118, personal communication. That is down from foresters comprising 90 percent of forest service professionals in 1958, 65 percent in 1970, and 50 percent in 1973. See G. ROBINSON, THE FOREST SERVICE, at 34 (1975).

123. See, REICH, BUREAUCRACY AND THE FORESTS (1962), an early entry in a long line of critiques. See also D. BARNEY, THE LAST STAND (1974); Clawson, The National Forests, 191 SCIENCE 762 (1976); DANA & S. FAIRFAX, FOREST AND RANGE POLICY 179 (1980).

124. Among its four recommendations, the archaeological survey of Pico Blanco, Appendix B to the FONSI, notes the need for a permit from the Monterey Air Pollution Control District. Significantly, that permit "is needed in order to understand and meet Federal and California air quality standards." ENVIRONMENTAL ASSESSMENT, supra note 19, at § V-B (emphasis supplied).

125. The plans relevant to the Granite Rock case demonstrate this reality. Forest Service planning is "tiered," including a national level plan, a set of guidelines for the region in which the forest is located, a local plan for each forest, and an EA or EIS for specific projects. If the EA results in a FONSI, no EIS is done. The national level Forest Service plan, the 1985 Resources Planning Act Update, states minerals management goals only in general terms of "activity levels" associated with the "timely processing of permit and lease applications and operating plans" without any attempt to tie such processing to impacts or management problems. U.S. FOREST SERVICE, A RECOMMENDED RENEWABLE RESOURCES PROGRAM: 1985-2030 at 15 (July 1986).

The generalities continue in the Regional Guide and accompanying EIS. The guide contains a mere three lines of "guidance" regarding minerals resource goals: "Complete processing activities on mineral proposals in a timely manner. Fully integrate proposals and resulting activities with other resource plans and needs. Give priority to proposals relating to energy minerals." U.S. FOREST SERVICE, PACIFIC SOUTHWEST REGION, REGIONAL GUIDE FOR THE PACIFIC SOUTHWEST 3-23 (August 1984). See also REGIONAL GUIDE 2-28 to 2-32 and U.S. FOREST SERVICE, PACIFIC SOUTHWEST REGION, FINAL IMPACT STATEMENT FOR PACIFIC SOUTHWEST REGIONAL GUIDE 2-25, 4-34, -35 (Aug. 1984).

Neither the plan nor the EIS for the Los Padres National Forest where Granite Rock's claims are located analyzes the impacts of the company's plan of operations. The forest planning documents appear to mention Granite Rock's operations only twice. Both are references to demand for limestone production. See U.S. FOREST SERVICE, LAND AND RESOURCE MANAGEMENT PLAN/LOS PADRES NATIONAL FOREST DRAFT FOREST PLAN 3-2 (June 1986), and U.S. FOREST SERVICE, DRAFT ENVIRONMENTAL IMPACT STATEMENT LAND AND RESOURCE MANAGEMENT PLAN: LOS PADRES NATIONAL FOREST 3-3 (June 1986). The plan asserts that "[t]he management area prescriptions, which are the basis of the Plan, provide a resolution" to the issue of how to balance minerals management and environmental protection. LAND AND RESOURCE MANAGEMENT PLAN, supra at 2-1. Yet the "management area prescriptions" for the areas most likely affected by the Granite Rock operations make no mention of the mining. Furthermore, the list of "management practices" in Appendix A to the plan contains no mention of practices apparently related to mining or mine impact mitigation.

The EA and FONSI contain a total of three pages of analysis of "Effects of Implementation." Much of that space is taken up by mere description, e.g., "[v]egetation on the project site is predominated by annual grasses growing among the rock outcrops. California Laurel (umbelli laria californiia) and scrub oak (Quercus dumoso) are lightly scattered throughout the area." The archaeological survey of Pico Blanco, Appendix B to the FONSI, contains two additional pages purporting to analyze specific impacts, but it too is confined primarily to a discussion of the geology of the area. In any event the material is clearly marked "NOT SUBJECT TO PUBLIC REVIEW." The description and generalities are not irrelevant to an environmental analysis, but they do not substitute for one either.

126. For a more detailed analysis of the strengths and weaknesses of Forest Service minerals management see D. Chambers, The Use of Mineral Resource Information For Minerals Planning on National Forests Lands (1985) (Ph. D dissertation, U.C. Berkeley College of Environmental Design).

17 ELR 10276 | Environmental Law Reporter | copyright © 1987 | All rights reserved