Public Lands for the People reply to the State of Calif PDF Print E-mail
Friday, 18 December 2009

Public Lands for the People reply to the State of Calif


EDMUND G. BROWN JR., State Bar No. 37100
Attorney General of California
ROBERT W. BYRNE, State Bar No. 213155
Supervising Deputy Attorney General
BRADLEY SOLOMON, State Bar No. 140625
BARBARA SPIEGEL, State Bar No. 144896
MICHAEL M. EDSON, State Bar No. 177858
ALLISON GOLDSMITH, State Bar No. 238263
Deputy Attorneys General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Attorneys for Defendants State of California,
Governor Arnold Schwarzenegger, California
Department of Fish & Game, and Donald Koch

 

SUMMARY OF ARGUMENT:

 

This action must be dismissed in whole or in part for a variety of reasons, including:

 

1). The Eleventh Amendment bars all of PLP’s claims against the State and DFG, bars all of PLP’s state law claims against all defendants, and bars all of PLP’s claims for damages (including those for taking of private property).

 

2). This Court lacks jurisdiction over all of PLP’s claims: PLP lacks standing to bring them because its claimed injuries are not redressable by this Court because, regardless of SB 670, the state court injunction in Hillman prohibits DFG from issuing any new suction dredge permits under its existing regulations.

 

3). Even without the Eleventh Amendment and jurisdictional bars, the Court must abstain pursuant to Younger v. Harris, 401 U.S. 37 (1971), due to the interference this action will cause to pending state proceedings in Hillman.

 

REPLY TO 1).

With regard to SB 670 statewide indefinite mining prohibitions, the state of California claims sovereign immunity under the 11th Amendment of the U.S. Constitution. The rule of state sovereign immunity is subject to an exception: where a suit seeks relief against a state agency for action contrary "to the supreme authority of the United States", it is not deemed a suit against the sovereign. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

 

The California Statehood Admission Act (Sec. 3) expressly provides; “…said State of California is admitted into the Union upon the express condition that the people of said State, through their legislature or otherwise, shall never interfere with the primary disposal of the public lands within its limits, and shall pass no law and do no act whereby the title of the United States to, and right to dispose of, the same shall be impaired or questioned…”.

 

In that California would not exist as a State, nor would its Constitution, except as provided by the Federal Enabling Act. It stands to reason that the Federal conditions imposed by the Act supersede any 11th amendment claim of sovereign immunity the state of California can assert in Federal court. Especially so when it openly defies the superior sovereign’s mandate that is shall never impair or question the right of the Federal government to dispose of applicable valuable minerals within Federal lands in California

 

The Stripping Doctrine: A state officer who acts in violation of federal law (either constitution or statute) is "stripped" of their official status and may not claim the state's sovereign immunity. Although "official capacity" suits are actually against the state, the stripping doctrine is engaged to allow enforcement of the federal supremacy clause. Federal courts may allow actions against state officers because foreclosure of such actions would ensure that no method existed of allowing enforcement of federal laws against the states. The principle is that state statutory law, in order to be valid, must be in conformity with U.S. Constitutional requirements.

 

A suit for money damages may be prosecuted against a state officer in his individual capacity for unconstitutional or wrongful conduct fairly attributable to the officer himself, so long as the relief is sought not from the state treasury but from the officer personally. Scheuer v. Rhodes, 416 U.S. 232, 237—238 (1974); Ford Motor Co. v. Department of Treasury of Ind., 323 U.S. 459, 462 (1945).

 

REPLY TO 2).

True, the state court injunction in Hillman prohibits DFG from issuing any new suction dredge permits under its existing regulations. Attorneys for the state ignore that SB 670 cancelled over 3000 valid pre existing suction dredge permits.

 

The Department of Fish and Game (DFG) is prohibited by court order (Leeon Hillman et al. v. California Dept. of Fish and Game, Super. Ct. Alameda County, Case No. RG09-43444 (order issued July 9, 2009) from expending any funds from the State of California General Fund to issue suction dredge permits pursuant to Fish and Game Code section 5653, and related regulations found in sections 228 and 228.5 of Title 14 of the California Code of Regulations. DFG has ceased issuing suction dredge permits in compliance with the Court order. The order will remain in effect as long as the Hillman lawsuit is pending or until further order of the Court. However, current permits issued prior to the order remain in effect.

 

Moreover, the Hillman injunction covers only the Klamath, Salmon & Scott river drainages. To enforce the courts order, the judge blundered, in that the injuction should have covered only permits for the Klamath, Salmon & Scott river drainages.

 

The term “vested mining right” includes both a right established by use, as well as a right established by permit. (See; TransOceanic Oil Corporation v. Santa Barbara (1948) 85 Cal.App.2d 776; Avco Community Developers, Inc. v. South Coast Regional Comm’n. (1976) 17 Cal.3d 785, 790

 

“A permit becomes a vested property right where the permittee has incurred substantial liabilities and performed substantial work in reliance on the permit“; Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519; Hansen Bros. Enterprises v. Board of Supervisors of Nevada County (1996) 12 Cal.4th 533 (“Hansen”).)

 

The state of California cannot arbitrarily “take” that “vested” property right from permit holders it cancelled, without paying compensation.

 

REPLY TO 3).

PLP’s federal suit cannot cause interference in the Hillman action, in that SB 670 prohibitions make the Hillman suit moot. Secondly, the issues differ in that the Hillman injunction prohibits the expenditure of funds, from the state general fund to issue suction dredge permits. SB 607 prohibitions are enforced by statutory implementation making the issuance of suction dredge permits unlawful under any circumstance until such time as various contingencies of SB 670 are met. Some of which may never occur.

 

_______________________

FURTHERMORE:

The Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701-1782), requires the Secretary of the United States Department of the Interior to develop and implement land use plans for the various public lands. This Act specifically gives the Secretary of the Interior the discretion to preempt state and local land use plans if they are inconsistent with the federal development scheme. 43 U.S.C. 1712(c)(9).

 

The policies contained in FLPMA explicitly state that the management, protection, disposition and disposal/withdrawal of federal lands is vested in the federal government and not with the state. In short, a state cannot dictate to the federal government, or a federal agency what specific land uses are or are not allowed on federal lands.

 

Additionally, while the Mining of Act of 1872 originally expressed no legislative intent, Congress declared its intent to retain and manage the surface resources of located unpatented mining claims when it passed the Multiple Use Mining Act. California Coastal, 480 U.S. at 582.

 

The Bureau of Land Management (BLM) is responsible for managing the mineral resources on federal lands and the USFS (under the Secretary of Agriculture) is responsible for the management of surface impacts of mining on federal lands. Id at 585. Both FLPMA and the National Forest Management Act pre-empt the "extension of state land plans onto unpatented mining claims in national forest lands." Id

 

State regulations are permissible on federal lands only to the extent they are not inconsistent with or in conflict with the United States. Brubaker v. Board of County Comm 'rs, El Paso County, 652 P.2d 1050, 1058 (Colo. 1982).

 

However, not all state regulation of mining claims is permissible, and state laws prohibiting activities authorized under federal mining laws are not permissible. South Dakota Mining Ass 'n v. Lawrence County, 977 F.Supp 1396, 1403 (D.S.D. 1997).

 

State laws that impose reasonable requirements upon the use of federal lands are permissible when directed at environmental concerns; however, the state may not deny the federal use. See, Id "The federal Government has authorized a specific use of federal lands, and cannot prohibit that use, either temporarily or permanently, in an attempt to substitute its judgment for that of Congress."

 

Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant to the Property Clause. And when Congress so acts, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause. California Coastal Comm 'n v. Granite Rock, 480 U.S. 572, 581, 107 S. Ct 1419,94 L.Ed.2d 577 (1987).

 

The Property Clause of the U.S. Constitution states that "Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." U.S. Const., Art. IV, § 3, cl. 2.

 

The Property Clause gives Congress plenary power to legislate the use of federal lands. Carden v. Kelly, 175 F.Supp.2d 1318, 1323 (2001).

 

The Property Clause is a grant of power over federal property. Kleppe v. New Mexico, 426 U.S. 529, 537-538, 96 S.Ct. 2285 (1976).

 

The States may enforce their criminal and civil laws on federal lands, but if the state laws conflict with valid legislation that has been passed pursuant to the Property Clause'" the state law must recede." Carden, 175F .Supp.2d at 1323.

 

The Property Clause empowers Congress to exercise jurisdiction over federal land if Congress chooses. Wyoming v. United States, 279 F.3d 1214, 1226 (2002). State jurisdiction over federal land does not extend to any action that is inconsistent with the full power of the United States to protect its lands, to control their use, and to prescribe in what manner other may acquire rights in federal land. Id. (emphasis added).

 

Under the Supremacy Clause, when Congress enacts federal legislation, the policies and objectives of that legislation override any state laws, policies, or objectives that conflict with it. Id.

 

Otherwise, the public domain of the U.S. would be at the mercy of the states. Kleppe, 426 U.S. at 543.

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