U.S. Supreme Court Deals Oregon Small Miners A Blow
The U.S. Supreme Court (SCOTUS) has declined to review the Ninth Circuit’s decision in Bohmker v. Oregon, holding that Oregon’s five-year moratorium on the use of motorized mining equipment in rivers and streams that contain essential salmon habitat is not preempted by federal law. The Oregon law was passed following California’s revisions to California Fish and Game Code Section 5653 in 2015, which require that all small-scale miners using motorized suction pumps obtain a Clean Water Act Permit from the State Water Resources Control Board before mining in California waterways.
The Ninth Circuit’s holding in Bohmker v. Oregon is based on the rationale that Oregon’s law is not preempted by federal law because it constitutes an environmental regulation, not a state land use planning law. Miners and mining groups disagreed, arguing in their petition to SCOTUS that the Ninth Circuit’s decision conflicts with SCOTUS’s 1987 decision in California Coastal Commission v. Granite Rock Co., which held that, while federal law does not preempt “reasonable” state environmental regulations for unpatented mining claim operations on federal land, the National Forest Management Act and the Federal Land Policy and Management Act do preempt the extension of state land use plans onto unpatented mining claims in national forest lands. Mining groups also argued that federal law encourages the discovery and extraction of mineral resources on federal land and that by banning suction dredge mining, Oregon has criminalized the only profitable means of mining federal streambed claims in Oregon.
Unfortunately for the miners and mining groups, the petition was essentially their last chance to challenge Oregon’s moratorium in court, and SCOTUS’s decision not to review the Ninth Circuit’s holding means the moratorium will stand.