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How do we fight this???

Power to Regulate

The power to regulate stems from the power to prohibit. The individual action must be legitimately identified as "bad," harmful, dangerous or injurious to the public. Legislation may then either:

Prohibit the action entirely;

Require mitigation of its "evils;" or

Regulate or supervise the performance of the action through imposition of rules.

Regulated action is, therefore, "permitted" action that could otherwise be legitimately prohibited, deriving its authority solely as a privilege granted by government.

Crowley v. Christensen, 137 U.S. 86 (1890):

"It is undoubtedly true that it is the right of every citizen of the United States to pursue any lawful trade or business, under such restrictions as are imposed upon all persons of the same age, sex, and condition. But the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. ... And, as to the enjoyment of property, the rule is general that it must be accompanied with such limitations as will not impair the equal enjoyment by others of their property. Sic utere tuo ut alienum non loedas is the maxim of universal application. For the pursuit of any lawful trade or business the law imposes similar conditions. Regulations respecting them are almost infinite, varying with the nature of the business. Some occupations by the noise made in their pursuit, some by the odors they engender, and some by the dangers accompanying them, require regulations as to the locality in which they shall be conducted. Some by the dangerous character of the articles used, manufactured, or sold, require also special qualifications in the parties permitted to use, manufacture, or sell them."...

..."The police power of the state is fully competent to regulate the business, to mitigate its evils, or to suppress it entirely. There is no inherent right in a citizen to thus sell intoxicating liquors by retail. It is not a privilege of a citizen of the state or of a citizen of the United States. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils. The manner and extent of regulation rest in the discretion of the governing authority. That authority may vest in such officers as it may deem proper the power of passing upon applications for permission to carry it on, and to issue licenses for that purpose. It is a matter of legislative will only.".  


I'll have to re-read the case again, but this case is about selling liquor which at that time as it is now a regulated business and this place of business had a less then desirable character as found:

If there were no property holders in the block, the discretionary authority would be exercised finally by the police commissioners, and their refusal to grant the license is not a matter for review by this court, as it violates no principle of federal law. We however find in the return a statement which would fully justify the action of the commissioners. It is averred that in the conduct of the liquor
business the petitioner was assisted by his wife, and that she was twice arrested for larcenies committed from persons visiting his saloon, and in one case convicted of the offence and sentenced to be imprisoned, and in the other held to answer. These larcenies alone were a sufficient indication of the character of the place in which the business was conducted, for the exercise of the discretion of the police commissioners in refusing a further license to the petitioner.

I maybe be wrong but believe this finding is from the result of a Regulated business.

Also the character became of question from 2 previous larcenies

This all impaired equal enjoyment.

So I don't see how this ruling could come to affect the exclusive right of possession and enjoyment of all surface included with in the of there locations as stated in the 1872 act, imho its comparing apples to oranges.......2 different issues.


I was just using this as an example.......but this is what California has done with it is possibly harmful to the public w/mercury.
So they say???

Power to Regulate

The power to regulate stems from the power to prohibit. The individual action must be legitimately identified as "bad," harmful, dangerous or injurious to the public. Legislation may then either:

Prohibit the action entirely;

Require mitigation of its "evils;" or

Regulate or supervise the performance of the action through imposition of rules.

Regulated action is, therefore, "permitted" action that could otherwise be legitimately prohibited, deriving its authority solely as a privilege granted by government.

Got ya (hopefully you didn't take offense)
Heres a posting from Boxy on the GPAA forum (also under Woof! post):
You can only sue for damages if you have actually been damaged.
Although there is a dredging "ban" passed by the legislature no one has been ticketed or prevented from dredging.
If some one were to be ticketed for dredging and chose to challenge that ticket based on a superior and precedent right under the Mineral Estate Grant they would be extremely likely to win that challenge. Even then the only damage would amount to the cost of that challenge to that one person. All other dredgers would still be undamaged.

That is why no tickets have been written.

All the actual damages you may have suffered at this point are the result of your own free choice not to dredge. That choice not to dredge has damaged retailers and manufacturers of dredging equipment. Those retailers and manufacturers can not sue you for not buying from them.

Real miners dredge when that method of mining is appropriate for the valuable mineral deposit. Others may choose to complain about an unenforceable "ban".

I encourage everyone to read and understand the Mining Acts. They explain your right to mine... including dredging.

Please do support PLP. They are a fine organization. Please also be aware that PLP has already sued on the matter of damages resulting from the "ban" and lost on that matter for the very reasons I outlined above

Heres a copy from wikipedia on liquid mercury:
Elemental mercuryQuicksilver (liquid metallic mercury) is poorly absorbed by ingestion and skin contact. It is hazardous due to its potential to release mercury vapor. Animal data indicate that less than 0.01% of ingested mercury is absorbed through the intact gastrointestinal tract; though it may not be true for individuals suffering from ileus. Cases of systemic toxicity from accidental swallowing are rare, and attempted suicide via intravenous injection does not appear to result in systemic toxicity.[13] Though not studied quantitatively, the physical properties of liquid elemental mercury limit its absorption through intact skin and in light of its very low absorption rate from the gastrointestinal tract, skin absorption would not be high.[15] Some mercury vapor is absorbed dermally but uptake by this route is only approximately 1% of that by inhalation.[16]

In humans, approximately 80% of inhaled mercury vapor is absorbed via the respiratory tract, where it enters the circulatory system and is distributed throughout the body.[17] Chronic exposure by inhalation, even at low concentrations in the range 0.7–42 μg/m3, has been shown in case control studies to cause effects such as tremors, impaired cognitive skills, and sleep disturbance in workers.[18][19]

Acute inhalation of high concentrations causes a wide variety of cognitive, personality, sensory, and motor disturbances. The most prominent symptoms include tremors (initially affecting the hands and sometimes spreading to other parts of the body), emotional lability (characterized by irritability, excessive shyness, confidence loss, and nervousness), insomnia, memory loss, neuromuscular changes (weakness, muscle atrophy, muscle twitching), headaches, polyneuropathy (paresthesia, stocking-glove sensory loss, hyperactive tendon reflexes, slowed sensory and motor nerve conduction velocities), and performance deficits in tests of cognitive function.[15]

As you can see....mercury vapor is Highly toxic and readily taken in by the body, liquid mercury is 1 percent of vapor (I include a way for you to make a conversion to ppm if you want) thus the reason there are no persay "Love Canals" in regards to toxicity in California that I know of.


My comment on 1 percent is incorrect....please refer to what I posted from wikipedia (mine would be a higher level than that of wikipedia, my initial interpitation was wrong)


Ultimately The Grant(alone by itself) and data on Liquid Mercury(again its a play on public fear(this I know of for I was a Nuclear Power plant operator for the Navy and public fear of Nuclear Power was a major concern)) there should be no concern of miners using gold suction mining devices.


This is an interesting discussion.  I believe the answer may lie in how you pursue the issue.  If you want to argue a case based on private property the realm of the discussion takes on a whole new meaning.  If on the other hand the issue is an activity on "Public domain" the phrase "private property" may not have any bearing.  As I recall there is language that the activity of a miner can not adversely effect the adjoining lands.

So far the discussion may be being undertaken by a non-jurisdictional authority that has NO authority.

At issue will also be the venue of the process.  A court of piers or a hearings process.  What can be entered as "heard" evidence/status/legal is relevant to how the case is argued.  State Rights?  What right does a State have to adjudicate a mining law issue?  Where is this even a method "allowable".

I have not studied the specific case.  But after a discussion with Woof  he may say one needs to get down to the very foundation (fundatio peficiens?) and basics and stay away from all the attempts of even discussing such an issue in a venue that has no merit.  But the venue method of such a case is very important.

Currently the Calif dredging case is being argued by attorneys who are in a realm not pertinent to the very issues presented in the mining laws......and the court may not even hear relevent evidence.  But remember there is one venue by which such a case can be heard....and that specific language is in the mining laws/acts.

There has to be very important meaning to our lesson on the States authority.  But it would be up to the State to PROVE the issue of mercury hazards rersulting from dredging,  That one issue was not proved, as I understand it........and the State would have to prove that in a court with authority to hear the case.

But the whole Calif case is being argued in a venue that is simply non-relevant to hearing such a case.  I believe Woof will acknowledge that the Calif dredge ban issue is simply gone "where no man should go" (Star Trek).  

Woof may suggerst the case needs to be taken to a NEW realm that is valid to hearing the case.
He might say.  So what if it does, what right do you have to even discuss the issue, this case needs to be adjudicated in a court that has the power to hear the isssue discussed.

He may suggest the demurer approach and get the case heard properly on valid issues in the proper venue.

I am probably speaking where I am not expert enough to give advice.  But if we were to keep focusing on the classroom we may get enough knowledge to answer such questions.  Everyone keeps jumping ahead tryong to answer questions we need more knowledge to address.

I'll let Woof jump in here when he gets some time to do so.  Don't stress the issues yet.  Lets gain more knowledge so we comprehend the solution and can discuss the solution in a manner that we all feel confident in.  Maybe I am lacking such knowledge and some have advanced beyond mine.

But I would like to hear of a Calif. citation beiong issued and the method by which that citation would be adjudicated.  Feel free to clue me in, no harm in my lack of knowledge.  But keep it down in the foundation.  I can't even think about advancing beyond the basics yet into all the layers of attempted authority.


I agree bejay and I hope we are about to continue on our learning process for us and all new members(this has I hope opened the door) I for one will try(though maybe wrong) but none the less as some I know hope to continue down the road we have started.


Justia > US Law > US Case Law > US Federal Case Law > US Courts of Appeals Cases > F.3d > Volume 155 > 155 F.3d 1005 - South Dakota Mining Association, Inc.; ...
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155 F.3d 1005: South Dakota Mining Association, Inc.; Homestake Miningcompany, of California; Wharf Resources, a Montana Generalpartnership; Golden Reward Mining Company Limitedpartnership; Naneco Minerals, Inc.; Fred J. Gali; Iwalanai. Gali, Plaintiffs-appellees, v. Lawrence County, a Political Subdivision of the State Ofsouth Dakota, Defendant-appellee,jack Cole, Intervenor-appellant
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United States Court of Appeals, Eighth Circuit. - 155 F.3d 1005
Submitted April 20, 1998.Decided Sept. 16, 1998

Marvin D. Truhe, Rapid City, SD, argued (John Fitzgerald, Deadwood, SD, Rogert D. Hofer and David Pfeifle, Pierre, SD, Roger A. Tellinghuisen, Spearfish, SD, Linden R. Evans, Rapid City, SD, on the brief), for appellees.

William G. Taylor, Sioux Falls, SD, argued, for appellant.

Before McMILLIAN, LOKEN, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Jack Cole appeals the district court's1 grant of summary judgment in favor of the South Dakota Mining Association, Inc., Homestake Mining Company of California, Wharf Resources, Golden Reward Mining Company, L.P., Naneco Minerals, Inc., Fred J. Gali, and Iwalana I. Gali (collectively, the plaintiffs), and its order permanently enjoining enforcement of a Lawrence County, South Dakota, ordinance prohibiting the issuance of any new or amended permits for surface metal mining within the Spearfish Canyon Area. The district court ruled that the ordinance was preempted by the Federal Mining Act of 1872, 30 U.S.C. §§ 21-26 (1994). See South Dakota Mining Ass'n v. Lawrence County, 977 F.Supp. 1396, 1405-07 (D.S.D.1997). Cole, who intervened on the side of defendant Lawrence County, argues that the ordinance is not preempted. We affirm.I. Background

On November 5, 1996, a 51 percent majority of the voters of Lawrence County, South Dakota, approved an initiated ordinance that amended Lawrence County's zoning laws.2 The voter-approved ordinance adds the following language to the county's zoning provisions: "No new permits or amendments to existing permits may be issued for surface metal mining extractive industry projects in the Spearfish Canyon Area." The Spearfish Canyon Area defined in the ordinance includes approximately 40,000 acres of Lawrence County, encompassing about 10 percent of the total land area of the county. Approximately 90 percent of the area is within the Black Hills National Forest and is under the supervision and control of the United States Department of Agriculture's Forest Service, and the United States Department of Interior's Bureau of Land Management. This public land contains unpatented mining claims or properties which are open to the public for mineral developments. The remaining 10 percent of the area contains privately owned patented mining claims. The area is also home to "some of the most beautiful land in the Black Hills." South Dakota Mining Ass'n, 977 F.Supp. at 1398.

The following three paragraphs, containing the undisputed factual background, come from the district court's opinion.

Five mining companies have had active surface mining operations within Lawrence County in the past fifteen years. Two of the plaintiffs, Wharf Resources (Wharf) and Golden Reward Mining Company, L.P. (Golden), either had or currently have active surface mining operations. Both Wharf and Golden have patented and unpatented mining claims within the area defined in the ordinance. Some of Wharf's and Golden's unpatented mineral properties are undergoing active mineral exploration. Wharf is also conducting active surface mining on some privately owned patented mining claims within the area.

Two members of the South Dakota Mining Association who are not plaintiffs, LAC Minerals (U.S.A.) Inc. (LAC Minerals), and Brohm Mining Corp. (Brohm), also either had, or currently have, surface mining operations. LAC Minerals owns or controls patented and unpatented mineral properties within the Spearfish Canyon Area as defined in the ordinance. From 1988 to the fall of 1993, LAC Minerals operated the Richmond Hill Mine which was an active gold and silver surface mining operation. The mine was undergoing reclamation activities at the time of this action. Brohm owns or controls the Gilt Edge Mine, an active gold and silver surface mining operation.

Plaintiff Homestake Mining Company (Homestake) has both patented and unpatented mining claims within the area defined in the ordinance. Plaintiff Naneco Minerals, Inc., (Naneco) holds a state surface mine permit, but has not yet begun mining in the Spearfish Canyon Area. Naneco also owns or controls patented mining claims on privately owned land located within the Area. Plaintiffs Fred and Iwalana Gali own patented mining claims within the area defined as Spearfish Canyon. The Galis lease these mineral rights to mining companies while retaining a royalty.

The record shows that surface metal mining is the only mining method that has been used to mine gold and silver deposits located in the vicinity of the Spearfish Canyon Area in the past 20 years. (J.A. at 151, 158.) Although underground and other types of gold and silver mining are prevalent in parts of South Dakota, the record here discloses that surface metal mining is the only mining method that can actually be used to extract these minerals in the Spearfish Canyon Area. (Id. at 151-52, 158-59.) This is because the gold and silver deposits within the Spearfish Canyon Area are geologically located at the earth's surface. (Id. at 151-52, 159.) The plaintiff mining companies have also made substantial investments of both time and money to explore the area for mineral deposits and to develop plans for mining that conform to federal, state, and local permitting laws.

On February 24, 1997, the plaintiffs filed suit in federal district court against Lawrence County, alleging, among other claims, that federal and state mining laws preempted the county ordinance banning surface metal mining within the Spearfish Canyon Area. The plaintiffs sought a declaratory judgment to this effect and an injunction barring enforcement of the ordinance. On March 24, 1997, the plaintiffs filed a motion for summary judgment on their claim that federal and state mining laws preempted the ordinance. The plaintiffs and the county stipulated that no material facts were in dispute and that discovery was unnecessary pending the district court's resolution of the summary judgment motion.

On April 28, 1997, Jack Cole, a private landowner within the Spearfish Canyon Area, filed a motion to intervene and defend the ordinance. The plaintiffs did not object to Cole intervening, and the district court granted the motion. The court also granted the State of South Dakota and Action for the Environment (Action) leave to file amicus curiae briefs regarding the summary judgment motion. The state filed a brief in support of the plaintiffs' summary judgment motion and Action filed a brief opposing the motion. Cole joined in Action's brief.

Prior to any ruling on the summary judgment motion, the district court ordered the parties to brief the issue of whether the case presented a justiciable controversy. The court noted that even though the case was brought as a declaratory judgment action pursuant to 28 U.S.C. §§ 2201 and 2202, the action must be ripe for a federal court to resolve it. The parties then submitted briefs and affidavits regarding the ripeness issue.

The district court ruled that the action was ripe and that it would therefore decide the case on the merits. See South Dakota Mining Assoc., 977 F.Supp. at 1400. The court granted the plaintiffs' motion for summary judgment, ruling that the Federal Mining Act of 1872, 30 U.S.C. §§ 21-26, preempted the Lawrence County ordinance and ordered a permanent injunction barring enforcement of the ordinance. See id. at 1407. Cole appeals.3

Although not raised by the parties in this appeal, we first analyze whether the present action is ripe for federal court adjudication. We have explained that "[r]ipeness is demonstrated by a showing that a live controversy exists such that the plaintiffs will sustain immediate injury from the operation of the challenged provisions." Employers Ass'n, Inc. v. United Steelworkers, 32 F.3d 1297, 1299 (8th Cir.1994). This means that "[a] plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). A plaintiff does not have to "await consummation of threatened injury" before bringing a declaratory judgment action. Id. at 298, 99 S.Ct. 2301 (internal quotation omitted). Instead, an action is ripe for adjudication if the plaintiff faces injury that "is certainly impending." Id. (internal quotations omitted).

The plaintiffs here have shown a realistic danger of sustaining an immediate, direct injury as a result of the operation or enforcement of the challenged Lawrence County ordinance. Plaintiffs Homestake, Wharf, Golden, Naneco, and Fred and Iwalana Gali all own patented or unpatented mining claims within the Spearfish Canyon Area as defined in the Lawrence County ordinance. Plaintiff South Dakota Mining Association also has members who own patented or unpatented mining claims within the area. Under the plain text of the Lawrence County ordinance, none of the plaintiffs may be granted a new or amended permit for surface metal mining on any of their mining claims within the Spearfish Canyon Area. Because applying for and being denied a county permit for surface metal mining would be an exercise in futility, we will not require plaintiffs to do so before they may challenge the ordinance. See Sammon v. New Jersey Bd. of Med. Examiners, 66 F.3d 639, 643 (3d Cir.1995) ("Litigants are not required to make such futile gestures to establish ripeness."). We agree with the district court and conclude that the plaintiffs' preemption claim is ripe.

Having determined that the plaintiffs' preemption claim is ripe, we now address Cole's challenge to the district court's order declaring the Lawrence County ordinance preempted by federal law and enjoining its enforcement. Cole argues that the Lawrence County ordinance is not preempted by the Federal Mining Act because the ordinance is a reasonable environmental regulation of mining on federal lands. Specifically, Cole claims that because the ordinance only bans one type of mining, surface metal mining, and does so only within a limited area, the ordinance does not prevent the accomplishment of the purposes and objectives of federal mining law.4

"We review the district court's grant of summary judgment de novo, applying the same standards as the district court." Mayard v. Hopwood, 105 F.3d 1226, 1227 (8th Cir.1997). Summary judgment is appropriate if the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We view the facts and the reasonable inferences to be drawn from them in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The Supreme Court has set forth the analysis we must apply to determine if a state law is preempted by federal law:

State 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.

California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 581, 107 S.Ct. 1419, 94 L.Ed.2d 577 (1987) (emphasis added) (citations and internal quotations omitted); see also U.S. Const. art. VI, cl. 2 (supremacy clause). The same preemption analysis applies when a court is determining if federal law preempts a county ordinance. Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985).

In this case, we must determine whether the Lawrence County ordinance is preempted because it conflicts with federal law. Specifically, we address whether the ordinance conflicts with the Federal Mining Act because it "stands as an obstacle to the accomplishment of the full purposes and objectives of Congress" embodied in the Act. Granite Rock, 480 U.S. at 581, 107 S.Ct. 1419 (internal quotation omitted). Thus, in analyzing whether the ordinance is preempted, we must first determine the purposes and objectives of Congress that are embodied in the Mining Act. Second, we must determine whether the ordinance stands as an obstacle to the accomplishment of these Congressional purposes and objectives.

To determine the purposes and objectives that are embodied in the Mining Act, we first look to the text and structure of statute itself. Peters v. Union Pac. R.R. Co., 80 F.3d 257, 261 (8th Cir.1996). Congress has codified its declaration of the federal government's policy towards mining:

The Congress declares that it is the continuing policy of the Federal Government in the national interest to foster and encourage private enterprise in (1) the development of economically sound and stable domestic mining, minerals, metal and mineral reclamation industries, (2) the orderly and economic development of domestic mineral resources, reserves, and reclamation of metals and minerals to help assure satisfaction of industrial, security and environmental needs, (3) mining, mineral, and metallurgical research, including the use and recycling of scrap to promote the wise and efficient use of our natural and reclaimable mineral resources, and (4) the study and development of methods for the disposal, control, and reclamation of mineral waste products, and the reclamation of mined land, so as to lessen any adverse impact of mineral extraction and processing upon the physical environment that may result from mining or mineral activities.

30 U.S.C. § 21a.

The Mining Act provides for the free and open exploration of public lands for valuable mineral deposits. Specifically, the statute states:

Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.

30 U.S.C. § 22. The Supreme Court has stated that the Congressional intent underlying this section is to reward and encourage the discovery of economically valuable minerals located on public lands. United States v. Coleman, 390 U.S. 599, 602, 88 S.Ct. 1327, 20 L.Ed.2d 170 (1968). Congress has further provided that the "locators" of mineral deposits on federal lands under § 22 shall have the exclusive right to extract those minerals if they comply with federal law and state and local laws that do not conflict with federal law. See 30 U.S.C. § 26. The Mining Act establishes a system whereby a prospector can "go out into the public domain, search for minerals and upon discovery establish a claim to the lands upon which the discovery was made." United States v. CurtisNevada Mines, Inc., 611 F.2d 1277, 1281 (9th Cir.1980).

Thus, as shown in the text and structure of the statute, Congress has set out several purposes and objectives in the Mining Act. These include the encouragement of exploration for and mining of valuable minerals located on federal lands, providing federal regulation of mining to protect the physical environment while allowing the efficient and economical extraction and use of minerals, and allowing state and local regulation of mining so long as such regulation is consistent with federal mining law. Having determined the purposes and objectives of the Mining Act, we next examine the second step of the preemption analysis--whether the Lawrence County ordinance stands as an obstacle to these purposes and objectives.

Both parties cite the Supreme Court's decision in Granite Rock to support their positions, and an examination of the case would aid us in applying the second step of our preemption analysis. In Granite Rock, a mining company brought a "purely facial" challenge to a California state law making it unlawful to mine on federal lands without first obtaining a permit from the state Coastal Commission. 480 U.S. at 580, 107 S.Ct. 1419. The mining company claimed that the state permit requirement was preempted by federal mining laws. Because the company had not applied for a permit, and it was unclear what requirements the company would have to meet to obtain a permit, the issue faced by the Supreme Court was relatively narrow: "whether Congress has enacted legislation respecting this federal land that would pre-empt any requirement that [the company] obtain a California Coastal Commission permit." Id. at 581, 107 S.Ct. 1419. Significant to this case, the Court stressed that the Coastal Commission did not argue that it had the authority to ban all mining. Id. at 586, 107 S.Ct. 1419 ("[T]he Coastal Commission has consistently maintained that it does not seek to prohibit mining of the unpatented claim on national forest land."). Instead, the Coastal Commission merely claimed that it could require the company to comply with certain reasonable regulatory requirements designed to protect the environment prior to obtaining a permit. Id. at 586-87, 107 S.Ct. 1419. In rejecting the company's argument that the permit requirement was preempted because it was an impermissible land use regulation, the Court first assumed without deciding that state land use regulations, which it defined as laws that "in essence choose[ ] particular uses for the land," were preempted. Id. at 587, 107 S.Ct. 1419. Second, the Court held that state environmental regulations, laws that "do[ ] not mandate particular uses of land but require[ ] only that, however the land is used, damage to the environment is kept within prescribed limits," would not always be preempted. Id. Because the Coastal Commission had identified "a possible set of permit conditions not pre-empted by federal law," conditions which would not prohibit the company from mining on federal land, the Court rejected the company's facial challenge and upheld the state permit law. Id. at 589, 107 S.Ct. 1419.

We initially note that, as in Granite Rock, the plaintiffs in this case bring a facial challenge to a local permit law. However, unlike Granite Rock, we are not confronted with uncertainty regarding what conditions must be met to obtain a permit for surface metal mining in the Spearfish Canyon area. The Lawrence County ordinance is a per se ban on all new or amended permits for surface metal mining within the area. Because the record shows that surface metal mining is the only practical way any of the plaintiffs can actually mine the valuable mineral deposits located on federal land in the area, the ordinance's effect is a de facto ban on mining in the area. Thus, unlike Granite Rock, we are not faced with a local permit law that sets out reasonable environmental regulations governing mining activities on federal lands.

The ordinance's de facto ban on mining on federal land acts as a clear obstacle to the accomplishment of the Congressional purposes and objectives embodied in the Mining Act. Congress has encouraged exploration and mining of valuable mineral deposits located on federal land and has granted certain rights to those who discover such minerals. Federal law also encourages the economical extraction and use of these minerals. The Lawrence County ordinance completely frustrates the accomplishment of these federally encouraged activities. A local government cannot prohibit a lawful use of the sovereign's land that the superior sovereign itself permits and encourages. To do so offends both the Property Clause and the Supremacy Clause of the federal Constitution. The ordinance is prohibitory, not regulatory, in its fundamental character. The district court correctly ruled that the ordinance was preempted.

Finally, we note that in his reply brief, Cole points out that the Spearfish Canyon Area defined in the ordinance includes privately owned land that is outside the purview of the Federal Mining Act. Cole contends that the district court "erred in failing to separately analyze the ordinance's effect on the privately owned land." (Appellant's Reply Br. at 4.) Because Cole did not raise this argument in his initial brief, he has not preserved this error, and we do not address the claim. See United States v. Darden, 70 F.3d 1507, 1549 n. 18 (8th Cir.1995) ("Appellants generally must raise and brief all issues in their opening brief."), cert. denied, 517 U.S. 1149, 116 S.Ct. 1449, 134 L.Ed.2d 569 (1996).

Accordingly, we affirm the judgment of the district court.

The Honorable Richard H. Battey, Chief Judge, United States District Court for the District of South Dakota

The Lawrence County Board of County Commissioners did not draft the proposed ordinance. The Commissioners merely placed the proposed ordinance on the ballot pursuant to South Dakota state law after backers obtained the requisite number of signatures in favor of the ordinance. See S.D. Codified Laws § 7-18A-13 (Michie 1993). The ordinance became law when it was approved by a majority of the voters in Lawrence County. See id. § 7-18A-14

Lawrence County did not appeal the district court's ruling and has filed a brief in this court arguing in support of the district court's order invalidating the ordinance and enjoining its enforcement. Accordingly, Lawrence County is designated as an appellee before this court

We note that Cole also urges us to remand the case to the district court to allow further discovery regarding the purposes and policies underlying the ordinance. We reject this argument because these purposes and policies are immaterial to the preemption analysis here. See Perez v. Campbell, 402 U.S. 637, 651-52, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971) (holding that "any state legislation which frustrates the full effectiveness of federal law is rendered invalid by the Supremacy Clause" regardless of the underlying purpose of its enactors)

From what I read in this case I posted above, the dredge ban by any state is illegal, as dredging is the cheapest most efficient way to mine the gold from a river.  See item 29 above, Big Al

Hi Big Al,

Welcome to the forum. Cole/Spearfish is a good case and as you can see from reading just the decision it follows a long line (150 years) of consistent decisions by the courts.

You need to see the differences in any case to understand how they could apply or not.

In Cole the ordinance prohibited all surface mining. The dredge ban only prohibits one method of mining.

In Cole there was no dispute about whether the claims in question were valuable mineral deposits.

The recent suits by PLP and 49ers claim there has been a "taking" of the claim holder's property. There are several major problems with this approach - all of which will lead to failure.

The Supreme Court has ruled that a property interest in a mineral claim does not accrue until the mineral claimant has proven a valid mineral deposit exists. Without a verifiable discovery the miner has no property interest and thus there is no "taking".

In a fatal and ignorant error neither the PLP nor the 49ers have any indication in their suits that the claims involved contain valid mineral discoveries. Without a valid and verifiable mineral discovery the claimants have only a possessory interest. Loss of that possessory interest does not arise to a "takings" in the eyes of the law.

Even if the PLP crosses their fingers and get an ignorant judge that rules for their takings plea dredging will not be resumed by the court.

The remedy for a takings "win" would be monetary compensation for the claimants loss - not a return to dredging. Proving that loss is even more difficult than you can imagine. The courts have consistently ruled that a partial taking of mineral extraction methods does not diminish the value of an in situ mineral deposit. If you do not have an ongoing, prudent and marketable mining in process with verifiable production and sales history your check will amount to $0.

The proper way to get a clear win on a case is to present the facts and the controlling law. Relying on a few lines of a previous case can lead to disaster. The opinion of a court on a single mineral estate case means nothing to the next court unless the issues are the same. See McClure for an example of stare decisis on a court. Same issue same circumstances.

In Cole the issue was the attempted prohibition on all mining in one area. In the dredging cases the issue will revolve around the use of one tool in one type of mining in an entire State for one specified period of time. Apples to Oranges.

There are some very well established principles stated in Cole. Find those principles used in a court decision with the same issues as the dredging cases and you need only visit the court once for a guaranteed win. Without a prior identical case to point the court to you would find your time much better spent presenting the facts and the law.

Just one man's opinion.

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