The Supreme Court has “repeatedly observed” that the Property Clause gives Congress plenary authority over all 640 million acres of federal land—nearly 30% of the nation. Both Congress and the courts have generally accommodated state interests by allowing states to regulate activities on these lands also. But questions remain about how far that supplemental regulatory authority extends. It “exist[s,]” under current precedent, “only ‘in so far as [its] exercise may be not incompatible with, or restrained by, the rights conveyed to the federal government by the constitution.”
Courts have struggled to convert that principle into an administrable test. Bohmker v. Oregon, a case that has been petitioned to the Supreme Court, asks the court to clarify things. The case concerns Oregon’s ban on “motorized in-stream placer mining” in rivers or streams deemed by the state to be “essential” salmon habitat, much of which is federal land. This ban sets up a potential conflict, as the federal Mining Law of 1872 (which remains largely intact 147 years later) declares these lands “free and open” to mining. Who wins when Congress thinks some use of federal land should be encouraged but a state thinks it should be forbidden?
The chief Supreme Court precedent on this question is California Coastal Commission v. Granite Rock Co., but it’s no beacon of clarity. In that case, a mining company challenged California’s requirement that it seek a permit, arguing that the state is categorically forbidden from regulating mining on federal land. The Court squarely rejected that broad preemption theory, although over sharp dissents by Justices Powell, Stevens, Scalia, and White. According to the majority:
Granite Rock's challenge to the California Coastal Commission's permit requirement was broad and absolute; our rejection of that challenge is correspondingly narrow. Granite Rock argued that any state permit requirement, whatever its conditions, was per se preempted by federal law. To defeat Granite Rock's facial challenge, the Coastal Commission needed merely to identify a possible set of permit conditions not in conflict with federal law.
Although the majority could imagine reasonable environmental regulations that would be upheld, it offered lower courts some guidance about what wouldn’t be. First, states may not engage in “land use planning” (choosing particular uses for the land) but may impose “environmental regulation,” which “requires only that, however the land is used, damage to the environment is kept within prescribed limits.” Second, states may not impose environmental regulation “so severe that a particular land use would become commercially impracticable.”
In Bohmker, a panel of the Ninth Circuit upheld Oregon’s mining ban against a challenge asserting that it violates both standards, deepening an existing circuit split on whether these standards are binding and how they should be applied. A majority of the panel rejected Granite Rock’s guidance, arguing that the majority’s “formalistic approach” to distinguishing land use planning from environmental regulation “make[s] no sense[.]” Further, these standards “would handcuff regulators” to an extent deemed inadvisable by the majority.
Perhaps unsurprisingly, that disregard of Supreme Court guidance evoked dissent. Judge N. Randy Smith criticized the majority for giving too little credit to Granite Rock’s analysis. “Far from being nonsense,” Granite Rock’s land-use-planning vs. environmental regulation test is “clear and easy to apply in deciding facial challenges to state environmental laws.” Oregon’s law “identifies particular tracts of land and prohibits a particular use of these lands[;]” it “does not identify a ‘prescribed limit’ on ‘damage to the environment’ that must be avoided ‘however the land is used.’” Despite rejecting the Supreme Court’s standard, the dissent explained, “the majority offers no alternative standard for drawing a line between environmental regulation (not ordinarily preempted) and land use regulation (always preempted).”
More is at stake than western mining policy. Feuding over federal lands is a bipartisan sport. These lands are a political football in every government shutdown fight, especially our national parks. And, increasingly, they are a focus of federal-state conflict.
Several states complain that the federal government owns too much land within their borders. And, as a policy matter, they may have a point. The feds control roughly 85% of Nevada and 65% of Utah, the two states with the greatest concentration of federal lands. This may limit the states’ ability to foster economic growth and raise tax revenue for local services. In 2012, Utah passed a bill demanding the federal government relinquish most of its holdings within the state and a lawsuit to force that result has long been rumored.
In 2017, California enacted the near opposite law, passing a bill that proclaimed “the policy of the State of California to discourage conveyances that transfer ownership of federal lands in California from the federal government.” The bill pursues this policy by forbidding anyone from recording a deed for land transferred from the federal government without first giving the state a right of first refusal on the same terms that the land was transferred from federal ownership. The United States has sued the state and, so far, California’s law is not faring well in that case.
The federal government is unlikely to reduce its holdings anytime soon. If anything, they will likely increase. Thus, federal-state conflicts will also likely continue. Guidance from the Supreme Court on just how states can go would be helpful.