California Coastal Comm’n v. Granite Rock Company – Oral Argument – December 02, 1986

Media for California Coastal Comm’n v. Granite Rock Company

Audio Transcription for Opinion Announcement – March 24, 1987 in California Coastal Comm’n v. Granite Rock Company

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William H. Rehnquist:

Mr. Masouredis, you may proceed whenever you’re ready.

Linus Masouredis:

Thank you, Mr. Chief Justice, may it please the Court.

This case is an appeal from a judgment of the Ninth Circuit which held that California’s environmental regulation under the California Coastal Act of Granite Rock’s limestone mining on federal forest lands was preempted by the Forest Service’s surface use regulations and by the 1872 Mining Act.

Now, before getting to the facts I’d like to try and summarize the three points that we hope to make in this argument:

First, the state is not seeking to prohibit all mining by Granite Rock, nor does the state claim the authority to be able to determine what are permissible and prohibited uses of federal lands.

The state accepts mining as a given federally defined and federally authorized use of this property, and it seeks to apply the environmental controls in the Coastal Act to this mining to minimize the adverse environmental effects of that given federally authorized use.

And while these environmental controls happen to be included in the Coastal Act, they’re no different than environmental and reclamation controls that many other western states have been routinely applying to private mining on federal lands over the years.

Secondly, the test for preemption in this case is not whether the state’s environmental regulation duplicates that of the Forest Service.

There are many areas where federal regulation is not intended to be exclusive and where duplicative state regulation not only doesn’t conflict with federal regulation, but actually furthers federal regulatory objectives.

We believe that this is one of those cases.

The Ninth Circuit we believe applied an erroneous preemption rule because it essentially concluded that the state’s regulation inherently undermined the Forest Service’s authority simply because the state’s regulation duplicated the Forest Service regulation.

Finally, the third point, to us it appears as if the relevant question under the Coastal Zone Management Act is not whether the lands Granite Rock is mining fall within the definition of excluded federal lands within the meaning of 16 U.S.C. Section 14531.

Rather, to us the relevant question is in excluding federal lands from the coastal zone for purposes of the coastal zone management program did Congress intend to preempt the police power authority that states otherwise have over private activities on excluded federal lands, and which states can enforce apart from the CZMA program under their police power.

Antonin Scalia:

Is this being done apart from the CZMA program?

Linus Masouredis:

Yes, it is.

The Coastal Act is an independent police power statute.

I think the Ninth Circuit found that.

The Act was enacted in 1976 and the state was enforcing it long before the coastal zone management program was approved.

And even if the state for some reason pulls out of the coastal zone management program or if the federal government terminates our authorization, the state will continue to enforce the Coastal Act.

Antonin Scalia:

Well, it may not be the same program, but it is certainly the same sort of coastal zone management scheme, as opposed to a separate environmental statute dealing with one or another type of environmental damage.

Linus Masouredis:

Well, I think again that Public Resources Code 30,008 indicates that the state will apply the environmental controls of the Coastal Act to excluded federal lands.

And a coastal zone program is something that the state devises on its own.

It can include whatever statutes that it wants in the coastal zone management program.

If those meet the federal criteria, the federal government will approve it.

But the statutes themselves aren’t enforced solely through the coastal zone management program.

They had an independent existence to begin with.

That’s how they got included in the management program.

They had to be enacted as police power statutes initially, and those statutes can be enforced wholly independent of the coastal zone management program.

It’s a voluntary program.

States aren’t required to join up, and the statutes that they include in the program don’t have to be enforced solely through the management program.

Antonin Scalia:

But if the states can do the same thing by a coastal zone, a state coastal zone management program that is not part of the federal program, what possible purpose does the exclusion of the federal lands from the federal coastal zone management program achieve?

Linus Masouredis:

As we see it, the CZMA, adds to the state’s police power.

It doesn’t detract and limit it.

And the purpose of 14531 was a Congressional judgment not to delegate to states the authority to define permissible and prohibited uses of federal lands.

The CZMA itself tells a state that it must include in its management program a definition of permissible land and water uses.

Now, that’s the equivalent of zoning.

That’s the ability to go out and say: This is a use that will occur here, this use won’t occur there.

That’s what we call land use determination power.

States don’t have that under their police power.

They can’t ordinarily do that to federal lands.

And I think Congress by enacting the excluded lands provision said, we’re going to withhold that delegation of authority and states can’t define permissible land and water uses on federal lands.

But that doesn’t mean that everything that happens to be included in the management program can’t be applied to federal lands, because for example the CZMA says that a management program must include the air and water quality requirements of the federal Clean Air and Water Act.

And we don’t understand Granite Rock or the Solicitor General to be arguing that those things which are in the management program cannot be applied to excluded federal lands.

William H. Rehnquist:

Well, this case really comes to us in quite an abstract position.

Just what sort of, if it’s possible to say from the record, what sort of questions is California going to ask in this permit proceeding?

What sort of restrictions or conditions would it put on the permit that was given to the respondent?

Linus Masouredis:

I think the things they would be looking at are reclamation for the mining that’s occurred, measures to prevent pollution into the Little Sur River.

There’s overburden stored in particular areas.

There’s a danger of erosion, runoff from the road from the overburden.

The Little Sur River runs in close proximity to this–

William H. Rehnquist:

Danger of runoff from the federal land to the other lands not owned by the federal government?

Linus Masouredis:

–Into the Little Sur River.

The mining is occurring on Mount Pico Blanco and there’s an extreme slope of about 48 degrees, and the Little Sur River is at the bottom of the canyon, about 2,000 feet from where the overburden is stored.

So there is a potential hazard.

Antonin Scalia:

In principle you, as I understand your argument, in principle you would say that damage to the federally owned land itself would justify the state environmental regulation, even though no non-federally owned land is affected by that damage?

Linus Masouredis:

That’s correct, that’s correct.

We believe that the state’s citizens use, visit, and enjoy federal lands, and that the state does have an interest in environmental degradation on site on federal lands, in addition to–

William H. Rehnquist:

But how many citizens of California want to visit a mining operation that’s mining limestone or something?

Linus Masouredis:

–Well, this particular area, the Big Sur coast of California, is very scenic and attracts roughly three million visitors a year.

So that the visitors would not be coming to see the particular mining operation, but again the operation is located in the heart of the Big Sur coast of California, in close proximity to Malara State Park, the Ventana Wilderness, the Little Sur River that runs out to the coast.

William H. Rehnquist:

And so you think it’s permissible under this scheme that we’re talking about here for the state to say that, we want this federal piece of land to be kept up to snuff and appealing to visitors, in keeping with the Big Sur countryside?

Linus Masouredis:

We think that we’re interested in having additional supplemental environmental controls to complement the Forest Service’s own surface use requirements.

And indeed, the Forest Service’s regulations incorporate a number of state police power environmental rules, such as air and water quality and public safety and public health requirements, fire laws.

And so to us it appears as if that the Forest Service itself relies upon state environmental regulation as a means to attain the Forest Service’s own surface protection interests.

It’s not simply a question of the state furthering its own interests, but we think those two were very complementary.

William H. Rehnquist:

Well, of course, to the extent that the Forest Service incorporates state regulations the state doesn’t have to worry about it, I suppose.

Linus Masouredis:

Well, under the Ninth Circuit’s decision it doesn’t appear that that is the case.

We read the Ninth Circuit’s decision as saying that it’s now discretionary with the Forest Service to pick and choose which particular environmental controls it wants to apply.

The Ninth Circuit thought that the state enforcement was the problem.

Any permit enforcement was what was prohibited, and therefore it said the Forest Service is the only one that does the enforcement.

And as a practical matter, there are very limited Forest Service personnel, thousands of claims scattered on millions of acres.

And the ranger in the field is unfamiliar with state environmental and police power requirements.

He doesn’t have the time, the familiarity, or the expertise to apply them.

And so we think that as it stands now under the Ninth Circuit’s decision we are not assured that there will be any state environmental enforcement.

Antonin Scalia:

To avoid the preemption by the Coastal Zone Management Act, you really have to rely heavily on the distinction you were drawing earlier between land use restrictions and environmental restrictions.

Is that a realistic distinction?

I mean, suppose… prohibition of strip mining, is that a land use restriction or an environmental restriction?

Linus Masouredis:

I think the difference between a land use determination type of regulation and an environmental one is in the land use context the analysis is, we’re going to define what are acceptable uses, without regard to environmental impacts.

We just make a decision that residential use or commercial use is or is not allowed in certain areas–

Antonin Scalia:

Without regard to environmental impacts?

But you make that determination usually on the basis of environmental impact, don’t you?

Linus Masouredis:

–Not really, not really.

First, land use determination is essentially a zoning type decision, and that really is without regard, whereas–

Antonin Scalia:

On what basis do you zone?

Linus Masouredis:

–Certain amenities, decisions about where the community should grow.

Antonin Scalia:

“To-mae-to, tom-mat-to”.

You call them amenities, I call them environmental impacts.

Aren’t they the same thing you’re talking about?

Linus Masouredis:

I think an environmental regulation is one that says, regardless of what the use is… and it can be any use… it has to meet certain environmental standards.

So I think analytically there is a different operation that occurs when you’re using a land use–

Antonin Scalia:

I suppose you can say, yes, you can’t break the surface of the land.

That’s an environmental regulation, right?

But if you said no strip mining, that would be a land use regulation; is that the distinction you want us to adopt?

Linus Masouredis:

–Well, if you’ve said that certain activities can’t occur because of the environmental effects, we’d agree that that might blend over.

Any time you have a Clean Air, Clean Water Act requirement, that might mean that a particular factory can’t be built because it can’t meet those standards.

And so the effects might be in certain cases similar.

But I think analytically the two kinds of analyses are different.

Antonin Scalia:

It seems to be they’re both directed to precisely the same thing.

You restrict the land use because of the environmental considerations, and to try to sever environmental laws from land use laws seems to me very artificial.

Linus Masouredis:

I think the important thing here is whether or not the state is going to absolutely prohibit the particular use we’re concerned about, which is mining.

And we’ve conceded from the very beginning of this lawsuit that the state cannot impose an absolute prohibition on mining because that’s–

Antonin Scalia:

Could it prohibit strip mining?

Linus Masouredis:

–That’s correct.

Antonin Scalia:

It could prohibit strip mining, but not mining?

Linus Masouredis:

Oh, no.

I’m sorry, I misunderstood your question.

No, the state could not prohibit mining on these federal lands.

Antonin Scalia:

I’m not saying… it isn’t prohibiting all mining; it’s just prohibiting strip mining.

You can mine so long as you do it by, you know, by subterranean methods, the breaking of the surface.

Now, that’s not prohibiting mining.

Linus Masouredis:

That’s right, but it’s defining a particular type of mining.

Yes, that’s what we’re arguing, that the state can impose certain kinds of controls.

Antonin Scalia:

So the state could prohibit strip mining?

Linus Masouredis:

Yes, a certain type of mining, but not all mining per se.

William H. Rehnquist:

That could substantially modify the value of the land use classification given by the Forest Service.

If the Forest Service says you can prospect or mine limestone on this claim and the state of California can come along and say, well, you can’t mine limestone in a particular manner, is that… do you go that far?

Linus Masouredis:

We’re not intending to interfere with any of the designations for the use of the land.

We’re seeking to apply a regulation just to control how the use is carried out.

William H. Rehnquist:

But do you really think there is that air-tight compartment… I think Justice Scalia suggested to you this in his question… between designating the use of the land on the one hand and designating the environmental aspects of the use or whatever you want to call it?

Linus Masouredis:

No, I’d agree that at a certain point there might be certain circumstances where the state’s environmental regulation could conceivably be too onerous and could affect the actual mining use, the ability to carry out the mining use on federal lands.

Linus Masouredis:

We’d agree that at that point the regulation has gone too far.

But I don’t think that that is the question that’s presented here in this case.

There is no evidence at all that Granite Rock couldn’t comply with any reasonable Coastal Commission permit requirements.

Sandra Day O’Connor:

Well, we really have nothing before us here to tell us how demanding the California Coastal Commission would be that has jurisdiction, isn’t that right?

Linus Masouredis:

That’s correct, that’s absolutely right.

Sandra Day O’Connor:

What do you think the purpose of the consistency review provisions in CZMA are if the state has this independent power to regulate that you assert?

Linus Masouredis:

Again, the consistency review provisions deal with the effects that activities on federal lands have offsite on non-federal lands.

The consistency review is limited to those offsite effects, and that is different that the kind of review the state would have over effects on-site, on federal lands.

So it’s a different scope.

And in addition, I just point out that even as to off-site effects there is some question whether the state could adequately regulate those as well under consistency, as it could under its direct police power, because there’s a particular legal test.

The state has to demonstrate for consistency purposes that the activities on-site are likely to have effects off-site.

And in the real world there are oftentimes very indirect, multi-causal relationships, so that activities on-site don’t have these direct off-site effects.

So consistency review is not a substitute, we believe, for direct permit regulation under the police power.

Sandra Day O’Connor:

Did I understand you correctly to concede that the land at issue here held under the mining claim of Granite Pock fits within the definition of CZMA which excludes lands subject to the discretion of the federal government or held in trust by the federal government?

Linus Masouredis:

Well, we believe the district correctly decided that question, but we don’t think we have to reach it here.

We think we can win this case even if these lands are excluded federal lands, because we think the question is did the CZMA–

Sandra Day O’Connor:

And you are willing to concede that they are in that definition?

Linus Masouredis:

–For purposes here, yes, we would.

We do believe that the district court correctly decided it, but we think we can win the case even if they are viewed as excluded.

Byron R. White:

Of course, if you construed the language in light of the legislative history as Congressional… a statement of Congressional intent to exclude any state regulation, the case would be over, wouldn’t it?

Linus Masouredis:

I think, but I think that question is directly answered by the federal CZMA regulations that the National Oceanic and Atmospheric Administration adopted, 15 CFR 923.

Byron R. White:

Well then, you don’t concede for this case that these lands here have been excluded under the CZMA?

Linus Masouredis:

Well, we think we can win the case even if they are excluded, because the CZMA doesn’t preempt the state’s inherent police power, and this Coastal Act is a police power statute.

Byron R. White:

Well, it could if Congress intended it to?

Linus Masouredis:

Yes, it could, it could.

But I think the evidence really in the legislative history, in the regulations, and in the express savings clause of the statute indicates–

Byron R. White:

Well, who puts out the regulations you’re talking to?

Linus Masouredis:

–This is the National Oceanic and Atmospheric Administration.

Byron R. White:

Is that in the Department of Commerce?

Linus Masouredis:

Yes, and they administer the CZMA program.

Linus Masouredis:

And that regulation directly says that, in excluding federal lands for the purposes of the CZMA program a state does not impair whatever authority it has over federal lands apart from the CZMA program.

Byron R. White:

Well, the United States… and I suppose it’s representing the Commerce Department… says you’re wrong.

Linus Masouredis:

Well, no, they didn’t mention that provision, that regulation.

Their argument is directed to the excluded lands question, not the preemptive intent behind the CZMA.

Byron R. White:

Well, their argument is a preemption argument.

Linus Masouredis:

Well, it is based on the idea that the excluded lands question–

Byron R. White:

Of course it is.

Linus Masouredis:

–controls.

William H. Rehnquist:

Well, when this action was brought in the district court by your opponents to enjoin you from exacting any sort of a permit requirement, neither the district court nor the Court of Appeals really went into what that permit requirement required, did they?

Linus Masouredis:

No, neither one.

William H. Rehnquist:

So in a sense, I suppose you’re entitled to prevail if any sort of permit requirements that might reasonably be conceived of would not be entirely preempted.

Linus Masouredis:

Yes.

We think that this Court in the takings cases in fact has addressed this, this ripeness issue, in cases like Agins, San Diego Gas & Electric, Williamson County, and McDonald, Sumner & Frates, and has said that the Court won’t consider whether the state regulation has gone too far until the state has had an opportunity to make a final decision exactly how its regulation will be applied to a particular landowner in a particular case.

William H. Rehnquist:

So in your view, if California could impose any sort of requirement at all as a condition of its permit, you want to prevail here, because that was really the only issue before the courts below?

Linus Masouredis:

That’s correct, yes.

That’s our position.

Antonin Scalia:

Permitting, to go back to the distinction you seek to draw, the validity of which I’m not so sure about, the permitting is a permitting of use, right?

You cannot use the land for mining without getting the California permit.

Linus Masouredis:

The permit is a vehicle for attaching–

Antonin Scalia:

Well, it may be a vehicle for that, but what you permit is the use.

Linus Masouredis:

–Well, we’ve conceded that we can’t deny the use.

So that’s the… we can’t deny a permit.

And so the permit is being used solely to include–

Antonin Scalia:

But of course you can deny a permit.

What’s the purpose of a permitting program unless you can deny a permit?

You mean every application for a permit has to be granted?

Linus Masouredis:

–No, only when there’s a preemption limit and when we can’t deny a particular federally authorized use.

Antonin Scalia:

But when you deny a permit you are denying a particular use.

You’re saying no mining, aren’t you?

Linus Masouredis:

Yes, that’s correct.

Linus Masouredis:

But again, we’ve conceded in this case that we cannot deny this mining company, who is operating on federal lands, a permit.

The permit is being used solely to include environmental conditions on the operation.

Antonin Scalia:

I think we’re saying the same thing.

You can deny them a permit until they shape up their environmental operation.

Linus Masouredis:

Right, yes.

The criteria for applying is whether they’ve included these environmental controls.

Now, to briefly describe the facts.

Granite Rock’s mining is occurring just inside the boundaries of the Los Padres National Forest.

The Forest Service approved the plan of operation in 1981.

The Forest Service stated in its approval of the plan and in its modifications that Granite Rock should obtain necessary state permits.

In its environmental assessment, the Forest Service also indicated that Granite Rock should obtain any necessary Coastal Commission permits.

I just wanted to touch on one additional fact and let the Court know that the 1981 plan of operation has expired.

It expired last year.

But the case is not root in our view because there is a live dispute as to the need for mitigation and reclamation conditions for the mining.

What was it that expired?

Linus Masouredis:

The plan of operation.

The Forest Service issued a plan of operation for this mining.

But the mining company has admitted doing mining after the date of the Commission’s letter informing them that they needed a permit, and therefore there is a live controversy as to the need for reclamation and mitigation conditions for the mining that occurred after the date of that letter.

I think in the remaining time I have I would just like to again emphasize that the Coastal Zone Management Act in this case is a statute which supplements the state’s police power authority.

It wasn’t intended to–

Byron R. White:

Could I go back to that point.

Is the company now mining?

Linus Masouredis:

–They’re not mining right now.

I believe they have plans to submit an application for a new plan.

Byron R. White:

To the Forest Service?

Linus Masouredis:

Yes.

And I think they’re in the early stages of preparing an environmental impact statement for future mining activities.

Byron R. White:

So this controversy isn’t dead, you say, and if this particular one is it’s going to recur very soon?

Linus Masouredis:

Yes, yes.

The CZMA is essentially a statute which adds to the state’s police power authority.

Linus Masouredis:

It’s not one that replaces it.

And I think to conclude otherwise would lead to very bizarre results.

It would mean that those inland states, like Colorado and Wyoming and Montana, which have been regularly applying environmental controls to private mining activities on federal lands can continue to do so because they’re unaffected by the CZMA, whereas those coastal states which chose to participate in the CZMA program are stripped of that police power authority.

It would also mean that, even within the state of California, there is a bizarre distinction between the state’s ability to apply regulatory controls in the inland portion of the state, federal lands in the inland portion, but that within the coastal one the state’s police power is collapsed within the confines of the CZMA program.

And we don’t see that there is any evidence of that in the legislative history or the language of the CZMA statute.

I would like to reserve the remaining balance of my time.

William H. Rehnquist:

Thank you, Mr. Masouredis.

We will hear now from you, Ms. Banke.

Barbara R. Banke:

Mr. Chief Justice and may it please the Court:

The issue in this case is not whether all environmental regulations by a state are preempted.

The issue that was presented at the court below is whether coastal development permit jurisdiction over these mining claims on federal lands is preempted.

And there is a difference, I believe, between environmental standards, which the state definitely has the right to impose and does impose via the Forest Service in the permitting process by the federal government, and a coastal development permit, which we believe is an impermissible veto power on the right of the federal government to define the use of the federal lands.

William H. Rehnquist:

Now, your opponent I don’t think agrees with you, Ms. Banke.

He says that he agrees they don’t have the right to say you can’t mine.

He says that they may want to attach conditions relating to the environment to the mining operation.

Barbara R. Banke:

Your Honor, there is no purpose for the permitting process other than an intent by the Coastal Commission to control the use of these lands, because the Coastal Commission already has the right, as does the state of California, to set environmental standards for air quality and water quality, solid waste management, fire prevention.

These standards are applied by the Forest Service through the approval process of a plan of operations, and were applied in this case.

Antonin Scalia:

Excuse me.

Is this just as a matter of grace or you think the Forest Service has to apply state environmental regulations?

Barbara R. Banke:

The Forest Service regulations state that the Forest Service is to apply state and federal standards.

Antonin Scalia:

That’s not what I asked.

I know the regulations state that.

Must they state that?

Barbara R. Banke:

I believe they–

Antonin Scalia:

Do those state laws apply ex proprio vigore, as we say?

Barbara R. Banke:

–I believe that the Forest Service does have discretion to ascertain whether those regulations are an unreasonable constraint on the use of the federal lands.

So I believe that they do have some discretion.

Antonin Scalia:

I’m not sure.

You say that they apply of their own force, unless they unduly inhibit the what?

Barbara R. Banke:

The use of the federal lands.

Antonin Scalia:

Unless they unduly inhibit the use of the federal lands.

Barbara R. Banke:

But in this case–

Antonin Scalia:

So basically, as far as the application of the state environmental laws are concerned, you don’t disagree with the state of California?

You’re just quibbling over whether this is an environmental law, that’s all.

That’s all you’re talking about.

Barbara R. Banke:

–I believe that we do quibble with the state of California over whether it may in this case impose a coastal development permit–

Antonin Scalia:

Right, okay.

Barbara R. Banke:

–on the use of these lands.

Antonin Scalia:

If they did this by ordinary application of their environmental laws and moved in on the mining company on the basis of some other statute than this particular one, you’d say exactly what the state of California says, that they can do it so long as it doesn’t unduly inhibit mining, whatever that means?

Barbara R. Banke:

Yes, through those standards, and those have been applied.

That is not what Granite Rock is quarreling about.

Antonin Scalia:

It’s a very small dispute we have before us, then, isn’t it?

Barbara R. Banke:

Well, it’s a major dispute to Granite Rock.

The reason that we’re here is because when we received the letter telling Granite Rock that it had to apply for a coastal development permit, it was already two years into its mining operation pursuant to the federal plan of operations, and it had been subjected to state and federal standards.

When it received the letter, it had a choice of either shutting down the mining operation or subjecting itself to possible coastal development penalties, which are severe and can range as much as $5,000 a day.

So this is a live controversy in our view.

William H. Rehnquist:

Well, why was it that stark?

As I read the last paragraph… we’re talking about the letter of October 17th, 1983?

Barbara R. Banke:

Yes, Your Honor.

William H. Rehnquist:

“Granite Rock is hereby notified of its obligation to submit for Coastal Commission review and approval a certification of consistency with the state’s coastal management program and for any future plan of operations. “

Is it your view that you simply could not have submitted any such certificate?

Barbara R. Banke:

Your Honor, it is not the consistency review aspect of that letter that we’re challenging.

I believe in the paragraph immediately preceding that which you read it states that Granite Rock must apply for a permit.

So they are making two requirements in that letter: One is that Granite Rock seek consistency review for any amendments to the plan of operation; and the second is that Granite Rock seek a coastal development permit.

Now, formerly at issue was whether Granite Rock had to seek consistency review, but the Coastal Commission admitted at an early stage that that was waived, because they had had actual notice of the plan of operations but did not act upon it within the time.

William H. Rehnquist:

So it’s just a permit, and we don’t know from this record what sort of conditions the Commission might have imposed in exchange for a permit?

Barbara R. Banke:

That is correct, except insofar as I believe they’re disingenuous when they say they would only apply water or air quality, because those were already applied and would already be applied in a consistency review of any future plan of operations.

What a coastal development permit is is a permit for development, and development is defined by the California Coastal Act as a change in use or the intensity of use.

And we believe that that is an impermissible power given to the state of California to control the use of these federal lands.

Harry A. Blackmun:

No consistency review was sought, was there?

Barbara R. Banke:

No consistency review was sought at the earlier stage.

We do have a new plan of operations and it is possible that it will come up in that context.

Harry A. Blackmun:

I should ask your opponent.

Do you know why none was sought?

Barbara R. Banke:

I do not know.

Actual notice was given.

Perhaps they did not have any objection to the environmental review at that time.

Antonin Scalia:

Let’s assume that we agree that California can impose its environmental laws, but cannot impose a permit.

How does it administer its environmental laws?

Are you giving the state something that’s of no value whatever?

How does it administer its environmental laws without a permitting system?

Barbara R. Banke:

It can administer its environmental laws through standards which are applied to these lands and to the mining on these lands through consistency review.

In consistency review the Congress thought that it was giving the states an incentive to enter into a state’s coastal planning process, because the state could provide the type of input into the federal approval that would give it some meaningful participation.

Antonin Scalia:

But that’s discretionary with the federal government.

I mean, the Forest Service can say, we disagree with you that this is inconsistent and we’re going to go ahead and allow the plan this way.

You’re saying the state has its own sovereign power to apply its environmental laws.

So it says, we want this in consistency review.

The Forest Service says, we won’t give it to you.

Now the state wants to apply its environmental laws.

How does it do that?

Barbara R. Banke:

I believe that the state would have a problem in that context and would have a dispute with the federal government over the standards it seeks to apply.

I do believe that the federal government has the last word.

Byron R. White:

Let’s assume that the state has given its input and the plan of action or of operation wholly satisfies the state as it is issued.

But does the state then have some independent power to enforce the terms of the federal permit?

Barbara R. Banke:

If the federal–

Byron R. White:

Suppose that they send an inspector out there and your client just isn’t living up to the permit, the federal permit.

Can they go to court?

Barbara R. Banke:

–I believe that they can go to court.

Byron R. White:

And enforce their standards?

Barbara R. Banke:

Yes, because the Forest Service has a duty to enforce the standards.

Byron R. White:

And what if the Forest Service says, you’re all wrong, Mr. Inspector, they’re completely complying with?

Then there’s a case or controversy, I suppose.

Can California then go to court and allege that and try out whether the company is complying?

Barbara R. Banke:

I believe it can if the company is not complying with the standards.

There is no allegation here that the company is not complying with the–

Antonin Scalia:

Even though the federal government, as I understood Justice White’s question, the federal government says they’re complying, but the state thinks that they’re not?

Barbara R. Banke:

–I believe that the federal government would have the last word and would prevail in that case, if in fact the company was complying with the standards.

Byron R. White:

You mean a judge wouldn’t?

A judge wouldn’t have the last word?

Barbara R. Banke:

Well, I believe that they would prevail in court.

Byron R. White:

All the United States has to do is to go in and move to dismiss the action, saying: They’re just wrong; they are in compliance?

Barbara R. Banke:

If the government of the United States could show that Granite Rock was in compliance, I believe that they would prevail.

Byron R. White:

Well, who decides?

Barbara R. Banke:

The court would decide, in my opinion.

Byron R. White:

Well, what if there is a trial and the government says they’re complying, your client says they are not?

And then the judge decides?

Barbara R. Banke:

Yes, I believe that would be the case.

Byron R. White:

And the judge could then rule and say, Mr. Forest Service, you’re dead wrong, Granite Rock is not complying?

Barbara R. Banke:

If the Forest Service was incorrect in applying the standards.

Byron R. White:

Well, who decides?

Barbara R. Banke:

At the administrative level, I believe the Forest Service would decide.

But then perhaps there would be a case or controversy where the state could take the Forest Service to court.

But that is not what we are challenging in this case.

Byron R. White:

Well, is there any allegation here that the plan of operation that was issued did not contain the state standards?

Barbara R. Banke:

No.

Byron R. White:

Is there agreement that it did?

Barbara R. Banke:

We have stated in undisputed affidavits and in the plan of operations itself, which is in the appendix, it is stated that the state standards were applied for air quality and water quality.

And there has been no allegation–

Byron R. White:

And even so, the state wants a permit?

Barbara R. Banke:

–Even so, the state wants a permit, yes.

Byron R. White:

Just so they could enforce the… why would they need… they wouldn’t need a permit to enforce those standards, I gather you say?

Barbara R. Banke:

Yes, that is my point, Justice White.

Antonin Scalia:

Well, aren’t there other environmental considerations besides air and water quality?

Barbara R. Banke:

Yes.

Antonin Scalia:

I mean, such as, you know, removing a whole hillside that’s there on the Big Sur?

That’s not a nice thing to do.

Couldn’t the state consider that an environmental concern?

Barbara R. Banke:

Technically, I believe the state could consider that an environmental concern.

But the Forest Service regulations provide that the state standards on four subjects shall be considered, and those are: air quality, water quality, solid waste management, and fire protection.

Antonin Scalia:

Shall be considered or shall be applied?

Barbara R. Banke:

Shall be applied.

Antonin Scalia:

Or shall apply?

Shall apply automatically?

Barbara R. Banke:

Shall apply, shall be applied.

I believe that the last word as to whether they have been applied and complied with is in the Forest Service, however.

John Paul Stevens:

But does that mean that if the state during the existence of a permit, after you’ve been mining for a couple of years, decided to make the standards a little more strict, would you have to comply with the more strict standard or only those that applied at the time you got the permit?

Barbara R. Banke:

Only those that applied at the time of the permit, I believe, until a new permit was sought.

John Paul Stevens:

So that the state could not change the standard?

Barbara R. Banke:

I do not believe that the state could change the standard.

Antonin Scalia:

Well, I am really confused.

I thought you said earlier that you do not contest the state’s power on its own to apply its own environmental laws.

But now you seem to be saying, in response to the more recent questions, that they can’t, that they can’t go beyond what they succeeded in getting the Forest Service to put in the Forest Service regulations, or in the permit.

Barbara R. Banke:

I believe that they cannot go beyond that.

Antonin Scalia:

It’s the latter, okay.

Barbara R. Banke:

Yes.

And the reason for that is that these are federal lands, and pursuant to the property clause Congress is to have the full authority to control the use and disposition of these lands.

I believe Justice Scalia is correct when he says the distinction between land use and environmental controls might be difficult to apply.

Perhaps the Coastal Commission might say that a large scale mining operation is not something that is a suitable use for this land.

William H. Rehnquist:

Are the mining regulations such that these people could ultimately patent this claim?

Barbara R. Banke:

Ultimately, if all goes well in the exploratory phases of the mining operation which Granite Rock is currently… was engaged in prior to the letter and would re-engage in if approval of the plan of operations is obtained, yes, ultimately they can patent.

William H. Rehnquist:

And now they have a right of occupancy and a right to pursue their mining activities?

Barbara R. Banke:

Yes, they do have a right of occupancy and to pursue the mining activities.

The Forest Service still controls the surface of the lands and those lands are still open for surface uses that are not inconsistent with the mining.

Factually, this mining operation is approximately five miles inland from the coast.

It is not visible from the coast, and it is not in an area that is widely traveled by the public.

It is in an area which is fairly remote.

The mining claimants on federal lands have historically not been subject to a state’s land use controls or zoning controls.

Byron R. White:

Suppose there was no federal coastal act and no plan of operation at all.

There was just a mining claim under which the company was occupying the claim and mining.

And the state came in and said: By the way, you’re dirtying up this river; we want you to stop it; you have to comply with our state law; let’s read it.

And the company says: Yes, we are, if that law applies, we’re violating it.

Would you say that the state was exceeding its power there?

Barbara R. Banke:

No.

If pollution of a state waterway was involved, I believe the state could enforce its laws.

Byron R. White:

And even though as far as the federal government was concerned it was mining and it was doing a permissible job of mining?

Barbara R. Banke:

If the company was engaged in what would be a nuisance, pollution of the waterway, the state could enforce it.

Byron R. White:

So you… take it then you say it’s the federal coastal zone act that does the preempting.

Barbara R. Banke:

There are several things that do the preempting in my opinion.

The clearest preemption is in the coastal zone management.

Byron R. White:

Well, the mining law by itself wouldn’t.

The mining law by itself wouldn’t.

Barbara R. Banke:

The mining law–

Byron R. White:

You just said it wouldn’t.

Barbara R. Banke:

–That is correct, it would not prohibit that type of regulation.

I believe that it would preempt the coastal development permit, because that is a permit which is related to the use of the land, and which is triggered by a change in the use of the land.

And the Forest Service regulations would also preempt.

Antonin Scalia:

Suppose they weren’t polluting a state waterway.

That makes it too easy, because the waterway normally would go off of the federal lands onto the state lands.

Suppose all they do is they strip mine and do not reclaim by reseeding what they have stripped, and the state has a law requiring reclamation of the stripped land.

Would that law be binding?

Barbara R. Banke:

I do not believe that independently it would be binding, because it is already provided for in the Forest Service regulations.

Antonin Scalia:

No, I was adopting Justice White’s forest primeval hypothesis.

You know, we have the federal mining law, but there is no federal environmental regulation whatever.

None exists.

There’s no coastal zone mining act.

No coastal zone mining act, no federal laws at all.

There is nothing out there to control people unless the state law applies.

Barbara R. Banke:

Then it might apply.

But in this case I believe that the Forest Service regulations provide for a unified application of state and federal reclamation standards.

Byron R. White:

So it really is the Act and the regulations that do the preempting primarily.

Barbara R. Banke:

Yes.

Yes, it is.

I believe that Congress has spoken and that inconsistent state laws must recede.

The Coastal Zone Management Act, however, is the clearest example of preemption, because there it states in the federal lands exclusion that federal lands are excluded from a coastal zone.

William H. Rehnquist:

So federal lands in the coastal zone are less subject to state regulation that federal lands outside the coastal zone?

Barbara R. Banke:

No, I believe that that statement is consistent with law, that it is a clear exposition of the law, that a state may not control the use and disposition of the lands.

But in that case, Congress has clearly spoken to say that permit regulation over federal lands by a state Coastal Commission is prohibited.

And the Coastal Commission has asserted that it is not just under the federal Coastal Zone Management Act and its Coastal Act.

However, it in the joint appendix has stated that its regulations… in the original coastal management program of the state of California, it stated that it was within the federal coastal zone exclusion and that it would abide by that exclusion.

It is not abiding by the exclusion any more.

Instead, it’s seeking judicial modification of what it had previously agreed to do.

Antonin Scalia:

Ms. Banke, what do you do about the regulations that, as I recall, they require that the mining company have obtained all necessary permits, which seems to refer to state permits?

Barbara R. Banke:

The regulations I don’t believe contain that statement.

That was contained in the plan of operations.

Antonin Scalia:

In the plan.

Barbara R. Banke:

And that, there are two reasons.

A necessary permit is a permit that is not preempted, and the coastal zone permit in this case is preempted by the Coastal Zone Management Act and the Forest Service regulations.

Antonin Scalia:

What permit wouldn’t be preempted?

I mean, I thought your argument was that the states have no power to require a permit, period, of mining; that the federal government has authorized mining and you don’t need a state permit.

But here is a plan that says you have to have all necessary permits, and I think it’s conceded that that includes state permits.

Barbara R. Banke:

I don’t… it is not conceded.

My second point is that I do not believe that the Forest Service operator has the right to bind the United States in that plan, when it is clear from the Forest Service regulations that there is to be a unified system of approval, with the state requirements considered before the approval is given by the Forest Service.

William H. Rehnquist:

Thank you, Ms. Banke.

We will hear now from you, Mr. Minear.

Jeffrey P. Minear:

Mr. Chief Justice and may it please the Court:

The United States submits that the CZMA provides a direct and dispositive answer to the present dispute.

The CZMA’s federal lands exclusion exempts all federally owned land from direct regulation under state coastal management programs.

The federal lands exclusion is fully applicable in this case and requires affirmance of the judgment below.

Our analysis begins, of course, with the CZMA.

The CZMA was enacted to encourage the states to develop state land use management programs for the coastal zone.

The California Coastal Act is California’s coastal zone management program, and as such it is subject to the CZMA’s federal lands exclusion set forth in Section 304, which excludes from state regulation lands the use of which is subject solely to the discretion of the federal government.

Antonin Scalia:

What if it weren’t California coastal zone management program?

Do you agree with Mr. Masouredis that this would be a different matter?

Jeffrey P. Minear:

It depends on the source of the law that California is seeking to impose.

The issue in this case deals directly with the coastal development permit required under the Coastal Act of California.

Our view is that that is the same, the very same program as the CZMA-approved program.

That was our understanding at the time we approved it.

Antonin Scalia:

Okay.

Now, just on the chance that we don’t all agree with you on that, what if California has a separate environmental law?

Jeffrey P. Minear:

Other environmental laws… California may have other environmental laws that impose permitting requirements.

In those cases, they may very well be applicable to federal lands.

That will require and individual preemption analysis depending on the requirements of that particular permit.

Antonin Scalia:

Even though they bear upon mining use and even though they require a preliminary permit?

Jeffrey P. Minear:

Yes.

Examples of these: for example, California does impose water quality permits for discharges into navigable waters.

Now, we believe that those permits could be applied to federal lands, primarily because it will have an effect off the federal lands.

There is in fact an effect, an external effect outside of the federal lands.

Antonin Scalia:

So California could essentially achieve what it wanted to do here by just putting in a different statute?

Jeffrey P. Minear:

It could with respect to what we view as pollution control requirements.

It’s a different matter with respect to land use restrictions, and we believe that there is a distinction between land use requirements and pollution control requirements.

William H. Rehnquist:

But you seem to know a good deal more about what the California Coastal Commission might require as a condition of this permit than a lot of other people in the case.

Can you be that confident that nothing it might require would be permissible?

Jeffrey P. Minear:

Well, we have to judge the statute based on what the California Coastal Act provides, and the California Coastal Act provides that any development within the coastal zone must obtain… any developer, must obtain a coastal development permit.

In order to obtain a coastal development permit, the developer has to show that his development is consistent with the local coastal program.

The local coastal program has a land use plan.

William H. Rehnquist:

But that’s been waived in this case, hasn’t it?

The consistency check?

Jeffrey P. Minear:

Well, this is something apart from the consistency review requirements.

These are the actual requirements of the California Coastal Act.

The statute itself says that in order to obtain a development permit you must show consistency with the local coastal plan, in this case the Big Sur land use plan.

Now, that plan is a land use plan.

It prescribes and prohibits particular land uses.

Now, California says at this juncture that they would not apply it in that manner, but I think we have to judge the case on the basis of what the statute in fact says.

California really contends that the federal lands exclusion in this case is inapplicable for two reasons: First, the original argument that they made was that the statutory exclusion does not apply to federal lands that are subject to a mining claim.

This contention is the contention that was set forth in the letter that was originally sent to Granite Rock, that is contained in the joint appendix at page 22 to 23.

Now, this contention I think all agree now is plainly wrong.

Federal lands that are subject to mining claims remain in federal ownership and hence are excluded lands within the meaning of the CZMA regulations.

The Coastal Commission also argues that the federal lands exclusion does not limit the Commission’s authority in this case because the Coastal Act is an exercise of the state’s inherent police power that exists independently of the CZMA.

That is the ground that’s offered primarily by the state at this juncture.

But the CZMA clearly contemplates that once a state’s coastal management program is approved it will provide a singular and complete coastal management program for the state’s coastal zone.

There is no–

Antonin Scalia:

You do not confront the problem of having inland states more restricted than coastal states by reason of the Coastal Zone Management Act.

What you say is that both inland and coastal states can apply their environmental laws; the only thing is that coastal zone acts, which are coastal zone programs, can’t conflict with the federal one or augment the federal one?

Jeffrey P. Minear:

–Justice Scalia, we suggest this is a bit of a red herring here, because a mining development 100 miles inland is subject to the same regulations of the California regime that a similar mining development inland would be subject to.

In other words, we’re talking only about the coastal zone in this case.

But California also has… its environmental laws can be applied to an inland mine, and those would be applicable in this case as well and would be outside the coastal development program which is of central concern in this case.

Sandra Day O’Connor:

Mr. Minear, the Court of Appeals opinion of course didn’t go off on the CZMA ground at all.

Jeffrey P. Minear:

Yes, that is correct.

Sandra Day O’Connor:

And I take it you are urging that we decide the case on a ground not decided or discussed in the Ninth Circuit opinion?

Jeffrey P. Minear:

That is correct, Justice O’Connor.

Jeffrey P. Minear:

We think that that is the clearest and easiest solution for this case.

Returning again to California’s statement that they have independent power to impose their Coastal Act, I think the important thing to remember here is Congress really would have had no purpose for establishing the Coastal Zone Management Act in those circumstances.

It provides federal funding and consistency review.

Those incentives are the core of the coastal zone management program.

In return, it gets compliance with the regulations that are set forth in the program.

And for example, the consistency review process would be pointless if a state could impose its regulatory regime directly as an exercise of inherent police power.

There’d simply be no point in imposing a consistency review process on federal lands.

The CZMA expressly states that federal approval of the state coastal management program is conditioned on state compliance with the federal rules and regulations that govern the CZMA programs, and those regulations include the CZMA’s federal lands exclusion.

The fact that the states may retain authority to regulate federal lands under other state statutory regimes, such as the clean water acts statute I alluded to either… earlier before, is beside the point.

The California Coastal Act is a federally approved CZMA program.

It must comply with the pertinent CZMA regulations.

Sandra Day O’Connor:

Mr. Minear, has California attempted to engage in a so-called consistency review process to make its coastal zone management provisions applicable to federal lands such as this?

Jeffrey P. Minear:

Your Honor–

Sandra Day O’Connor:

Did they make that effort through the consistency review process?

Jeffrey P. Minear:

–California waived that opportunity in this particular case, and it will have that opportunity again when Granite Rock submits a new plan of operations.

In the federal government’s view, that is a permit within the meaning of Section 307 and therefore it is subject to consistency review requirements of Section 307.3.

I think it’s also worth pointing out here that California at the time that it sought its CZMA approval expressly stated that federal lands would be excluded from the California state zone, state coastal zone.

This appears at the joint appendix, page 106.

And although California later amended its statute, that amendment, we were instructed, amounted only to a technical change, did not amount to any substantial amendment in their coastal zone program.

If it had amounted to such a change, they would have had to have sought an amendment approval from NOAA through the CZMA regulations.

These are set forth at 933.80 of the Code of Federal Regulations.

Byron R. White:

Under the Coastal Zone Act, I suppose California could have required a permit for this mining development?

Jeffrey P. Minear:

It could not have… in our view, it could not have required a land use permit.

It could have required pollution control permits of various kinds.

However, it simply does not have the power under the statutes that are already in effect that govern the Forest Service lands and the BLM lands to impose land use requirements.

It’s essential in the national interest that the federal government retain control of the ultimate use of federal lands.

I see that my time has expired.

William H. Rehnquist:

Thank you, Mr. Mienar.

Mr. Masouredis, do you have anything more?

You have four minutes remaining.

Linus Masouredis:

Yes, very briefly.

First of all, I think we have a disagreement as to what the terms are of the Coastal Act itself and the permitting process.

The Coastal Act has two types of permitting processes.

One occurs when a local coastal program has been reviewed and certified, the implementing ordinances have been approved, and then permit authority devolves upon the local government to issue permits in accordance with its local coastal program.

That’s not at issue in this case at all.

We’re dealing with the second type of permitting, which is by the Coastal Commission itself, not a local government.

The Coastal Commission is the party involved here, not the County of Monterey.

And what’s being enforced is the Coastal Act itself, not the Monterey land use plan.

The Coastal Act has a number of environmental performance standards in chapter 3 of the Act, and the Coastal Commission issues permits based upon compliance with the environmental criteria in the Coastal Act itself.

So I think there’s a misconception here as to what the permitting process is.

We’re not dealing with a local government issuing permits in accordance with the local land use plan.

Secondly, the Coastal Act is not enforced, as I tried to indicate earlier, solely through the coastal zone management program.

It’s an independent statute.

It was enacted in 1976.

Federal approval came in 1977.

The state was enforcing that act wholly apart from the CZMA program.

And if you took, for example, the assumption that the state pulls out of the Coastal Zone Management Act system… that’s a voluntary system.

The state can withdraw from it at any time.

If we pulled out of that system, this statute wouldn’t collapse, the Coastal Commission wouldn’t go out of business.

It would be enforcing this as a state statute.

So I think the Solicitor General’s attempt to tie this statute into the CZMA and say that’s the only existence to this statute is basically incorrect.

Now, in addition the argument is made that the state is bound by the federal rules under the CZMA and that we therefore have to enforce this statute in accordance with the CZMA rules.

But one of the federal CZMA regulations is 923.33(c)(2) at 15 Code of Federal Regulations.

And that very provision, which was adopted by the federal government, tells states that in excluding federal lands for purposes of the coastal zone management program they retain their police power authority over those federal lands.

And so we don’t believe that California has violated the terms of the CZMA program.

We’ve simply availed ourselves of the right to apply our police power to federal lands.

That’s something that the federal government has expressly noted, that we have that authority.

Byron R. White:

Is that regulation in your brief?

Linus Masouredis:

Yes, it is.

There was a question raised about the Forest Service regulations and about the reference to compliance with state permits.

Linus Masouredis:

That is in the actual Forest Service decision in this case.

It’s not in the regulations.

But the regulations do point out that state approvals and certifications will be accepted as compliance with parallel requirements of the Forest Service regulations.

And that’s Section 228.8(h), and that section is based on the assumption… I see that my time is expired.

William H. Rehnquist:

Thank you, Mr. Masouredis.

The case is submitted.