California Supreme Court to Decide Whether the Mining Law Preempts State Ban on Suction Dredge Mining

Court’s Decision May Affect State’s Ability to Regulate Activities on Federal Lands

The California Supreme Court recently accepted a case that may make it more difficult for the state to protect the environment from the damaging impacts of mining. At issue is the state’s ban on suction-dredge mining in streambeds. Californians engaged in suction-dredge mining have vigorously fought against the state’s ban, and a panel of the Court of Appeal recently agreed with the miners’ argument that the state ban violates federal law that generally allows mining on federal lands. The state petitioned the California Supreme Court for review, and the Court accepted the case just a couple of weeks ago. If the Court of Appeal decision stands, our rivers and streams will continue to be disturbed by this particularly damaging form of mining.

Some background: The General Mining Law of 1872 allows U.S. citizens to explore for, discover, and mine “valuable minerals” from most federal lands without paying the government for the minerals. (Today, the Mining Law applies to “hard rock” minerals such as metals, but does not apply either to fuel minerals such as coal, oil and gas, or to “common varieties” including, for example, sand and gravel for use in construction.) The Mining Law facilitated rapid development of parts of the American West by encouraging mining on federal lands, with consequences for the future health of those lands.

Over time, Congress has modernized our nation’s approach to federal land management, enacting statutes such as FLPMA and NFMA that – in general – require careful balancing of multiple uses before committing to allow particular activities. But the Mining Law has been left unchanged; its broad policy of allowing hard rock mining on federal lands can impede agencies’ ability to balance mining with other values. And while the federal government can impose various restrictions on mining activity to ensure that there is no unnecessary or undue degradation of the land and its resources, including requiring a Plan of Operations, small-scale “recreational” mining is typically allowed without any special federal permit or plan approval.

The Mining Law does, however, leave room for state and local governments to regulate mining activity, even on federal lands. It is well-established that state environmental regulatory laws can apply on federal lands where those laws are not in conflict with federal laws. State laws often, for example, require mitigation of the environmental impacts of mining activity, as well as reclamation (restoring the landscape after mining activities are completed). California has many laws that regulate mining in the state, including on federal lands. For example, since 1961, the state has required anyone engaging in suction-dredge mining to obtain a permit and to comply with permit conditions.

According to the State of California’s petition for review in this case:

Suction dredge mining is a method for mining from the bed of a water body. This method typically uses a four- to eight-inch wide motorized vacuum, though sometimes a larger vacuum is used; the vacuum is inserted into the bottom of a stream and sucks gravel and other material to the surface, where it can be processed to separate any gold that might be present. Suction dredge mining is a way to recover gold that was placed in waterways by the Nineteenth Century’s now-antiquated and highly destructive practice of hydraulic mining.

Unfortunately, suction dredge mining can negatively affect stream and river ecosystems, both because the dredging vacuums pollute the air, and because their operation creates serious disturbances in the water and the riverbed.

In 2006, a Native American tribe sued the state Department of Fish and Wildlife, claiming that the state’s suction dredge mining permit program was not environmentally-protective enough and needed to undergo environmental review for potential revision. The case was resolved through a consent decree; the Department promised to perform environmental review. The state Legislature enacted a moratorium on new permits in 2009, until the completion of the environmental review. The moratorium law has been since amended to eliminate the ending date, based on a legislative finding that such mining causes adverse impacts. And the Department of Fish and Wildlife enacted regulations that confirm the ban.  Suction-dredge mining is nonetheless still apparently common.

The miner in this case, Brandon Rinehart, holds a mining claim within the Plumas National Forest in northern California. He was cited, and charged with two misdemeanors, for suction-dredge mining in a streambed in violation of state law. He claims in his defense that the state law is preempted by federal law and thus invalid. He contends that by outlawing suction-dredge mining, the state is effectively prohibiting all profitable mining on his claim because suction-dredge mining is only mining method that would allow him to make a profit. He further contends that federal law requires that the state not eliminate his ability to make money from mining the claim.

The legal context for this case arises from a U.S. Supreme Court case, California Coastal Commission v. Granite Rock Co., 480 U.S. 572 (1987). In that case, the Supreme Court rejected a facial challenge to a California Coastal Commission requirement that a miner obtain a state permit before mining on federal land. The Court in Granite Rock found that Congress did not intend to preempt state regulatory laws when it enacted the Mining Law. The Court assumed that NFMA and FLPMA would preempt state statutes determining the land use for a particular area of federal land; it held nonetheless that held that state laws that impose reasonable environmental regulations are not preempted by those federal laws, because Congress did not enact the Mining Law with the expectation that it would prevent state and local regulation of mining practices.

In the Rinehart case, the trial court sided with the state, finding that the state law is not preempted. Mr. Rinehart appealed, and the Court of Appeal reversed the trial court decision. The Court of Appeal held that if application of state law makes a mining claim “commercially impracticable,” the Mining Law trumps state law and a state may not apply its law. In the Court of Appeal’s view, the state is, in effect, making a land-use determination to ban all mining by preventing commercially-impracticable mining, frustrating the intent of the Mining Law.  (The Court of Appeal’s order would have remanded the case to the trial court to determine whether the state in this case has, in fact, made mining commercially impracticable for Mr. Rinehart.)

The state petitioned for California Supreme Court review. Hastings law professor (and former Solicitor, or chief counsel, for the U.S. Department of Interior) John Leshy and I submitted a letter to the court in support of review. In the letter, we argue that the state’s ban on suction-dredge mining is within its authority and not preempted. As we point out in the letter, the ban is only on a particularly destructive mining method, and does not prevent less-intrusive mining methods. Granite Rock does not prevent states from regulating to prevent harmful mining methods. On the contrary, federal administrative and court decisions, as well as federal administrative guidelines and policies, support the idea that both federal and state agencies can regulate mining practices, irrespective of the impact of the regulation on the profitability of mining claims. Mr. Rinehart, of course, disagrees.

The Court accepted the case for review. The state’s opening brief is due in a few weeks. It will be interesting to see how this case progresses over the coming months.

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Reader Comments

5 Replies to “California Supreme Court to Decide Whether the Mining Law Preempts State Ban on Suction Dredge Mining”

  1. There is no proof that small scale suction dredge mining causes any permanent damage to rivers and streams.
    The State’s own studies show that the rivers and streams return to their natural state with one season’s rain storm run-off.
    The study results were hidden and suppositions to support the State’s very wrong hypothesis were interjected in place of facts. When the facts were ‘dredged up’ so to speak, it became clean the State had no case.
    Enjoying the fantasy that small scale suction dredge mining causes permanent damage to rivers and streams is a flat earther mentality. Educate yourselves.

  2. You keep making the assertion in your article that dredging is destructive. But instead of basing it in facts and solid proof, you use inadequate and even absurd statements trying to support your biased view, such as “dredging pollutes the air”. And so do cars, lawnmowers, BBQ’s, and etc. etc. Have you ever used this argument in a Court of Law to prevent these activities ? I doubt it. You include in your piece this quote from the State of California petition : “….suction dredging is a way to recover gold in waterways by the Nineteenth Century’s now antiquated and highly destructive practice of hydraulic mining…” I guess you couldn’t resist the temptation of trying to leave the impression that hydraulic and dredging are connected somehow and therefore both “highly destructive”. But the fact of the matter is that the gold that was lost to those hydraulic operations is an insignificant part of the gold modern dredges take. They recover original gold that was missed by the old timers (for the most part in pick and shovel operations) and original gold that has been removed from the banks and re deposited by the rivers during storms.

  3. From the Western Mining Alliance Newsletter:

    “The Rinehart case has been the most important mining case,
    and continues to be. On January 21st the California Supreme Court
    agreed to review the Appeals Court decision which overturned his
    conviction for dredging without a permit.

    What’s curious about the Supreme Court decision is the
    complete lack of a trial for Rinehart. He was convicted without
    being able to present his defense, which was federal law preempted
    the dredging ban and he had a right to dredge on his mining claim.
    The appeals court merely agreed. They didn’t decide the issue
    of preemption but merely returned the case to the trial court for a
    new trial: a trial in which Rinehart could present his defense.
    This trial hasn’t happened. The State pushed for a review of the
    Appeals Court decision and the Supreme Court accepted the case for

    To those inclined towards conspiracies, is this case shouldn’t be
    going to the Supreme Court; it should be going to the lower court,
    not the higher.

    Let’s boil down the legal arguments here and see if you can
    follow why we’re doing a bit of head scratching.

    Brandon Rinehart, a young miner from Antioch, California, was
    convicted in February 2013 of dredging without a permit in a
    Plumas County court. He, and his attorney, James Buchal, argued
    they should be able to present their defense, which was federal law
    preempted the state dredging ban.

    The judge in Plumas County refused to allow the Rinehart to
    present his defense and convicted him. Rinehart appealed and the
    appeals court agreed he should have been allowed to present a
    defense. Rather than allowing a trial, the State then moved to have
    the Supreme Court overturn a decision which essentially says
    Rinehart should have a fair trial.

    Follow? OK, one more time, the State is arguing they have the
    authority to deny Rinehart a fair trial, and by not allowing the case
    to go back to the trial court they have denied him this.

    The Supreme Court isn’t a trial court. No defense has been
    presented, no experts called, no arguments heard as a matter of law.
    We’re looking at a very peculiar case. The Rinehart case scares the
    hell out of the State.

    It scares them for a lot of reasons, but perhaps the most
    important is they can’t allow a 30 years kid from Antioch to take on
    the State and win. If he wins he has overturned not just one law, but
    three laws duly passed by the elected representatives. He is not just
    hand slapping the State, he’s slapping back forty years of unchecked
    regulatory zeal.

    What’s peculiar about the Rinehart case is all seven justices
    agreed to hear the case. Why is that peculiar? Rinehart never got his
    trial. Typically for a case to go the state Supreme Court there is a
    trial record. Rinehart was never allowed to present his defense,
    experts weren’t called, testimony wasn’t taken.”

    I’m not a lawyer, but shouldn’t Brandon Rinehart FIRST get his day in court to defend himself, BEFORE he goes
    to the Supreme Court?

    You guys are lawyers, so since when is a person not allowed a fair trial?

    1. Interesting question. The short answer is no, this isn’t unusual or peculiar (except in the sense that the Supreme Court takes relatively few civil cases, so every grant of review is unusual) or unfair. Appellate Courts and high courts (including the California Supreme Court and U.S. Supreme Court) often take on legal issues where there isn’t factual development, in cases where the resolution of the legal issue may either conclusively resolve the case or narrow or sharpen the range of relevant factual issues. Granite Rock v. Coastal Commission itself was an example of such a case, in the U.S. Supreme Court.

      Look at it this way: Mr. Rinehart does not contest that he performed the specific acts that are prohibited by state law. In fact, he stipulated that he did what the state law prohibits.

      So Mr. Rinehart’s defense does not contend – as in the typical criminal case – that he did not perform the acts that the law forbids. His defense is instead a legal defense based on his argument that the state law is invalid. He argues that federal law preempts the state statute where operation of the state law would make mining “commercially impracticable,” and his evidence, as I understand it, is all in support of that argument. If he’s correct, he surely will get an opportunity to try to prove that the state statute renders his mining impracticable.

      But if he’s wrong, he loses his case and that evidence wouldn’t make any difference. If the State’s legal argument is correct, its statute banning suction dredge mining is not preempted by federal law regardless of whether other forms of mining are commercially viable or economically practicable. Thus, the State alleges that there is no set of facts, and no body of expert testimony, that would provide a defense to the crime with which he is charged. (And that’s what the trial court ruled in this case.)

      There is nothing unfair or unusual about the courts deciding the legal issue first, if the case may be determined by resolution of that issue. (There are some cases – certainly a larger number – in which the resolution of the case based on an issue of law also depends on development of facts to which the law must be applied. In those cases, it does make sense to develop a factual record in the trial court first.) It’s also possible that the California Supreme Court will issue an opinion that is either in Mr. Rinehart’s favor – in which case the court will have to remand the case to the trial court to fully develop the evidence relevant to his defense – or the Court might apply some other standard that will not resolve the case fully in the state’s favor, and will require evidence to be taken.

      Moreover, the “offer of proof” presented by Mr. Rinehart is part of the record on appeal, even though the trial court didn’t admit it as evidence. The Court of Appeal specifically recited all the information that Mr. Rinehart presented. It’s all there for the Supreme Court to see as it makes its decision, if it finds that information is legally relevant.

      Finally, I don’t know why this would “scare” the state, or what that allegation even means. Of course the state has an interest in enforcing the laws passed by the Legislature. Here, as your comment notes, a win for Mr. Rinehart will overturn legislative enactments. The importance of the preemption question undoubtedly convinced the California Supreme Court that it needs to provide legal interpretation to ensure that the law of preemption is correctly and consistently applied by lower courts. And we will see how the Court addresses the issue in the coming months.

  4. I have a large jar filled with lead bullets, lead fishing weights, globs of old mercury, fish hooks, etc. All “cleaned up” from the river using my gold dredge. You will find that most gold miners are themselves “extreme environmentalists”, caring greatly about health of the river and the surroundings. I would challenge anyone that thinks hobby dredges destroys the river to go themselves and observe a hobbyist dredging operation. By the way, I also pick up all the trash from the side of the road that lines my claim. Most other gold miners do the same. It is also interesting how small fish come swarming into my dredge area looking for food that floated from moving the rocks. I help feed hundreds of fish every year! I’m not a gold miner, I’m a lead/mercury reclamation engineer.

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About Sean

Sean B. Hecht is the Co-Executive Director of the Emmett Institute on Climate Change and the Environment, Evan Frankel Professor of Policy and Practice, and Co-Director o…

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About Sean

Sean B. Hecht is the Co-Executive Director of the Emmett Institute on Climate Change and the Environment, Evan Frankel Professor of Policy and Practice, and Co-Director o…

READ more