Filed 9/23/14 P. v. Rinehart CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Plumas)
                                                            ----


THE PEOPLE,                                                                                  C074662

                   Plaintiff and Respondent,                                     (Super. Ct. No. M1200659)

         v.

BRANDON LANCE RINEHART,

                   Defendant and Appellant.




         In this case, we are asked to consider whether provisions of California Fish and
Game Code sections 5653 and 5653.1 (unless otherwise stated, statutory references that
follow are to the Fish and Game Code), as applied, are preempted by federal law because
they “stand[] as an obstacle to the accomplishment [and execution] of the full purposes
and objectives of Congress.” (California Coastal Commission et al. v. Granite Rock Co.
(1987) 480 U.S. 572, 581 [94 L.Ed.2d 577, 592] (Granite Rock); Viva! Internat. Voice for
Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 936
(Viva!).) On this record, we are unable to make that determination and we remand the
matter to the trial court for further proceedings on the issue of federal preemption.


                                                             1
                                FACTS AND PROCEEDINGS

       On August 30, 2012, the District Attorney of Plumas County filed a criminal
complaint charging defendant with a violation of section 5653, subdivision (a) in that he
used vacuum and suction dredge equipment in a river, stream, or lake without a permit
(Count I) and with a violation of section 5653, subdivision (d) in that he possessed a
vacuum and suction dredge within an area closed to the use of that equipment and within
100 yards of waters closed to the use of that equipment (Count II).
       On October 30, 2012, defendant demurred to the complaint arguing that, in light of
section 5653.1 as amended, the state has “indefinitely suspended the issuance of all
permits for suction dredging, closing all waters of the state to” that use. On
December 18, 2012, the trial court overruled the demurrer.
       On May 15, 2013, defendant waived his right to a jury and agreed to a court trial
regarding the violations with which he was charged. The parties stipulated to the
following facts:
       “1.    On or about June 16, 2012 Defendant Brandon L. Rinehart did use vacuum
and suction dredge equipment in the County of Plumas in a river or stream in the Plumas
National Forest in an area closed to suction dredge mining by the State of California, and
did not then possess a valid permit issued by the California Department of Fish and
Wildlife, then known as the Department of Fish and Game, to use his vacuum and suction
dredge equipment.
       “2.    On or about June 16, 2012 Defendant Brandon L. Rinehart did possess
vacuum and suction dredge equipment in the County of Plumas in the Plumas National
Forest, and within 100 yards of an area closed to suction dredge mining by the State of
California.
       “3.    The conduct identified in Paragraphs 1 and 2 occurred within the
boundaries of the ‘Nugget Alley’ placer mining claim owned by Defendant, and



                                             2
registered with the U.S. Bureau of Land Management [(BLM)] with Serial Number
CAMC0297113.”
       The court and the parties next turned to the defendant’s assertion of the affirmative
defense that section 5653 is unenforceable against him because the statute, as applied, is
preempted by federal law.
       Defendant made an offer of proof arguing that, if the evidence in the offer of proof
was allowed to come before the court, it would establish that section 5653 was
unenforceable under the circumstances presented here. The offer of proof was as
follows:
       1.     Defendant would testify that he was working in the water within the
boundaries of the “Nugget Alley” mining claim, one of two contiguous mining claims
owned by he and his father and four other locators. He would testify that he and his
father obtained the claims by making a discovery of a valuable locatable mineral, posting
a Notice of Location on the claim as required by law, filing the Location Notice with
Plumas County and then transmitting a copy of the file-stamped Location Notice to the
U.S. Bureau of Land Management. He would offer as evidence a true copy of the
Location Notice. He would testify that the Location Notice identifies, and establishes,
upon acceptance by BLM, the boundaries of the claim. He would offer pictures of the
claim, and areas where gold is to be found, together with a picture of substantial
quantities of gold recovered from the claim.
       2.     Defendant would testify that BLM accepted the Location Notice and
registered the Nugget Alley claim with Serial Number CAMC297113, and offer a true
copy of a printout from the BLM LR2000 system, showing that this claim (and the
adjacent claims) are in good standing with the United States, all required fees having
been paid to all governmental entities. He would testify that the Nugget Alley Claim,
though located on land which the federal government has legal title (within the Plumas
National Forest), is private property on which he and the other owners pay real estate

                                               3
taxes to Plumas County, and offer a true copy of the most recent tax bill from Plumas
County.
       3.     He would offer a map of the area and testify that at the time he was cited by
the game warden, he was within the boundaries the claim.
       4.     Defendant would testify that placer claims, by their nature, contain gold
deposited by water bodies. He would testify that much of California has already been
subject to significant mining activity that has extracted the gold near to, but outside of,
flowing waters, and that the Nugget Alley claim has been hydraulically mined in the past
to remove such gold.
       5.     He would testify that he excavated test pits outside the water-covered areas
of the claim to survey for the presence of recoverable gold and found no economically-
significant quantity of gold outside the water-covered areas. He would testify that the
gold remaining on the claim, and additional gold brought from upstream sources, has
been concentrated by flowing waters and may be found beneath the waters of the claim.
       6.     He would testify that the only economically-feasible method by which gold
can be extracted from the Nugget Alley claim, and indeed most placer claims in
California, is by utilizing a suction dredge to extract the gold-bearing streambed material
underwater. He would testify that based on a typical day of five hours/day in the water,
he has recovered roughly one-half an ounce of gold per day, roughly $750, but on better
days, he would recover an excess of an ounce, and that there is a continuing hope of
hitting richer pockets which might lead to recoveries many times that amount.
       7.     Defendant would testify that he attempted to use hand shovels and buckets
to shovel out gravel from under the flowing water, which would then be processed
outside the water by another miner using a highbanker to recover the gold. He would
testify that this process was very difficult to accomplish because, among other things, the
flowing water blew most of the gravel off the shovel, and visibility in the hole he was
working would diminish to the point where it became unsafe to work. He attempted one

                                              4
eight-hour day of this activity, laboriously filling 30 buckets of gravel, and this
backbreaking labor produced less than a tenth of an ounce of gold.
       8.     He would testify that, by contrast, the suction dredge moves and processes
the gravel simultaneously without having to lift it out of the water, which is a much faster
process in addition to recovering a greater quantity of gold. By way of comparison, it
takes two men eight hours each to recover one-tenth an ounce of gold or less by hand,
while a single person working the suction dredge for five hours can recover half an ounce
or more. For this reason, working by hand may be regarded as at least sixteen times less
efficient than using the suction dredge.
       9.     Defendant would testify that the alternative of digging by hand underwater
is not a commercially-viable alternative, insofar as the backbreaking labor cannot be
sustained for extended periods and the economic return makes it unprofitable to pursue
such an activity. For all these reasons, defendant would opine that the State’s refusal to
issue a permit to operate his suction dredge is in substance a prohibition on mining his
claim, and certainly represents material interference with his mining activities.
       10.    Gerald Hobbs would offer evidence that he has been a miner and prospector
for over thirty years, has mined extensively throughout the Western United States, and
holds mining claims in California. He would testify that he has previously testified in
litigation as an expert witness regarding suction dredge mining and evaluating stream
deposits, and that he has previously taught suction dredge mining techniques and
methods not only in California, but in other Western states and abroad.
       11.    He would testify that he is the President and Founder of Public Lands for
the People, Inc. (PLP), a 501(c)(3) nonprofit educational organization of small and
medium size miners and prospectors, with constituent members totally roughly 40,000
people. He would testify that as a result of his personal mining experience and role with
PLP, he has knowledge of both the methods and economics of small and medium-scale
mining, and the regulatory system of the State of California and the federal government.

                                              5
       12.     He would testify that much of California has already been subject to
significant mining activity that has extracted placer deposits of gold, and that early
miners tended to mine the banks of California rivers and streams, but not underwater
deposits. In particular, the technique of hydraulic mining (using a high pressure hose to
wash soil deposits near rivers and streams into a sluice) removed much of the gold
deposited adjacent to water bodies, but much gold was lost in the process, washed into
the rivers and streams, and remains there for subsequent miners. In addition, lode
deposits continue to erode and release gold into the rivers and streams, replenishing in
stream deposits.
       13.     Hobbs would testify that he has not yet had an opportunity to visit
defendant’s claim (but intends to do so if the trial is continued beyond and he is permitted
to testify at trial), but has examined photographs of the claim and spoken with defendant
concerning its nature.
       14.     He would testify that assuming the truth of defendant’s statements, the only
commercially-significant deposits of gold likely present on the claim are located
underwater, and that the only practical method of recovering those deposits is to vacuum
the gravel up with a suction dredge. In particular, he would confirm that suction dredges
are much more efficient at removing and processing gold-bearing gravels, and that
mining by hand generally will not produce an economic return because, among other
things, the richest deposits that could be profitably mined by hand are long gone. He
would also testify that theoretical alternatives such as damming and redirecting entire
rivers to expose the river bottom for land-based equipment are not economically - or
legally - feasible.
       15.     He would testify that the typical four-inch suction dredge costs
approximately $3,000 or more. Additional support gear, such as a wet-suit, diving gear,
weight belts, pry bars, winching gear, chains, tools, and other needed items can cost
easily an additional $1,000 or more. The typical small scale placer suction dredge miner

                                              6
has easily $4-5,000 or more invested in equipment alone. The mining industry as a
whole has substantial investment in equipment for suction dredging.
       16.    He would testify that the State’s refusal to issue permits for suction
dredging makes all this mining capital worth substantially less, and materially interferes
with the development of California mineral resources on federal lands and elsewhere as a
general matter, and amounts to a prohibition against the mining of the vast majority of
federal placer gold claims in Northern California and Southwest Oregon, including
defendant’s claim.
       17.    Thomas Kitchar would testify that he has been employed in the field of
gold mining as his primary source of income since December of 1979 when he was
employed by the Homestake Mining Company (HMC) in Lead, S.D. for nearly four years
at depths of over 6800 feet as a hard rock underground gold miner. During that period, he
rose through the ranks gaining MSHA certification as an Underground Miner 1st Class,
Motorman 1st Class, LHD Operator 1st Class, and Cager 2nd Class. While working for
the HMC, in his spare time, he taught himself the practices of the placer gold miner,
located claims of his own, and became familiar with, among other things, the U.S. Forest
Service mining regulations at 36 C.F.R. 228.
       18.    He would testify that in the fall of 1984, he ceased working for HMC, and
by the fall of 1985 had outfitted himself with small-scale placer mining equipment,
including a suction dredge, and moved to SW Oregon with the intent of locating valuable
placer gold mining claims and then working them full-time as his sole source of income.
       19.    He would testify that after several years of prospecting and searching for
ground rich enough to work and claim, by 1987 he had located claims along a
historically-rich creek near the California border a dozen or so miles from the nearest
town. He moved onto one of these claims, and has lived on this claim year-round (26
years) to this day while working this and other nearby and adjacent claims. In the course



                                             7
of his mining work, he has become knowledgeable in the mining techniques employed by
defendants and other small scale miners.
       20.    Kitchar would testify that in response to baseless environmentalist attacks
upon suction dredge mining, in about the year 2000 he joined and got involved with the
Waldo Mining District (WMD) to help fight against these threats. In June of 2001, he
was elected president of the WMD, and continues to hold that office to this day. WMD
was established through self-initiation on April 4, 1852, and later pursuant to provisions
of the U.S. Mining Law of 1872, and is a federally recognized mining district with certain
governmental authority over mining within the boundaries of the District. The purpose of
the WMD is to preserve, protect, and promote mining within the District and elsewhere.
The District is based in Cave Junction, Oregon.
       21.    Both as a miner and as president of the WMD, he has become familiar with
the regulatory provisions concerning suction dredge mining. He has published a book
entitled “The Gold Prospector’s Guide to Researching and Locating Mining Claims,” and
has testified in numerous judicial and regulatory proceedings concerning suction dredge
mining at both the state and federal level.
       22.    He would testify that much of Southwest Oregon and Northern California
has already been subject to significant mining activity that has extracted placer deposits
of gold, and that earlier miners tended to mine the banks of rivers and streams, and
sometimes even the beds of those streams if they were not too deep, but that they could
not mine the deeper underwater deposits. In particular, the technique of hydraulic mining
(using a high pressure hose or monitor to wash soil deposits near rivers and streams into a
sluice) removed much of the gold deposited adjacent to water bodies, but much of the
gold was lost in the process, washed into the rivers and streams with the tailings where it
has been reconcentrated and deposited, and remains there for subsequent miners. In
addition, upland lode and placer deposits continue to erode and release gold into the
rivers and streams, replenishing in-stream deposits.

                                              8
       23.    He would testify that gold, because of its high specific gravity, tends to
deposit in certain areas of live running streams, and has the tendency to sink down though
the bed materials until it reaches some impervious layer, usually the underlying bedrock.
In general, the closer the miner gets to the bedrock, more gold will be recovered with the
best pay being found on the bedrock or in cracks in the bedrock. The modern suction
dredge is the most efficient tool yet devised, and the only practical tool, for recovering
gold from underwater bedrock cracks.
       24.    He would testify that he has not visited defendant’s claim, but has
examined photographs of the claim.
       25.    He would testify that assuming the truth of defendant’s statements, the only
commercially-significant deposits of gold likely present on the claim are located
underwater, and that the only practical method of recovering those deposits is to vacuum
the gravel up with a suction dredge. In particular, he would confirm that suction dredges
are much more efficient at removing and processing instream gold-bearing gravels, and
that mining by hand generally will not produce an economic return because, among other
things, the richest deposits that could be profitably mined by hand are long gone or too
far underwater. He would also testify that theoretical alternatives such as damming and
redirecting entire rivers to expose the river bottom for land-based equipment are not
economically - or legally - feasible.
       26.    He would testify that the typical four-inch suction dredge costs
approximately $3,000 or more. Additional support gear, such as a wet-suit, diving gear,
weight belts, pry bars, winching gear, chains, tools, and other needed items can cost
easily an additional $1,000 or more. The typical small scale placer suction dredge miner
has easily $4-5,000 or more invested in equipment alone. The mining industry as a
whole has substantial investment in equipment for suction dredging.
       27.    He would testify that the State’s refusal to issue permits for suction
dredging makes all this mining capital worth substantially less, and materially interferes

                                              9
with the development of California mineral resources on federal lands and elsewhere as a
general matter, and amounts to a prohibition against the mining of the vast majority of
federal placer gold claims in California, including defendant’s claim.
       The parties stipulated that defendant had permits as required by the law when they
were available and would have continued to apply for such permits if permits were being
issued. The parties further stipulated that the court could accept into evidence a
document entitled “California Department of Fish and Wildlife Report to the Legislature
Regarding Instream Suction Dredge Mining Under the Fish and Game Code” dated
April 1, 2013.
       After extensive argument by both parties and questioning by the court, the trial
court held that prosecution of defendant for violations of section 5653, subdivisions (a)
and (d) was not barred on the grounds that the provisions of the statute, and therefore its
enforcement, are preempted by federal law. The court allowed into evidence defendant’s
proposed testimony set forth in paragraphs 1 through 5 of the offer of proof, but, based
upon the court’s ruling on the affirmative defense of preemption, excluded the testimony
set forth in paragraphs 6 through 9, and excluded the proposed testimony of Hobbs and
Kitchar.
       The court found defendant guilty of Count I and Count II of the complaint,
suspended imposition of sentence, and ordered that defendant be placed on three years
summary probation. The court also ordered defendant to pay certain fines and fees but
stayed payment of the fines pending successful completion of probation.
       On August 15, 2013, the appellate division of the Superior Court of Plumas
County certified this case for transfer to this court pursuant to rule 8.1005, California
Rules of Court. On October 4, 2013, this court transferred the matter to this court for
purposes of appeal.
       On appeal, defendant contends the trial court erred when it rejected his defense
that enforcement of the provisions of Fish and Game Code sections 5653 and 5653.1,

                                             10
operating together, are preempted by federal law. He further contends the trial court
erred by excluding evidence that the state’s de facto refusal to issue suction dredge
mining permits required by section 5653 results in an unconstitutional interference with
his federally-protected mining rights. As noted earlier, we will reverse the judgment and
remand the matter to the trial court for further proceedings on the issue of federal
preemption.

                                         DISCUSSION

                                               I

                      Fundamental Principles of Federal Preemption

       We turn first to certain fundamental principles of the law of federal preemption as
they relate to Congress’ authority over federal lands.
       The Property Clause of the United States Constitution “provides 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 United States Supreme Court has “ ‘repeatedly observed’ that ‘ [the] power
over the public land thus entrusted to Congress is without limitations.’ ” (Kleppe v. New
Mexico (1976) 426 U.S. 529, 535, 539 [49 L.Ed.2d 34, 41, 43], quoting United States v.
San Francisco (1940) 310 U.S. 16, 29 [84 L.Ed.1050, 1059-1060].)
       Even so, “ ‘the State is free to enforce its criminal and civil laws’ on federal land
so long as those laws do not conflict with federal law. [Citation.] The Property Clause
itself does not automatically conflict with all state regulation of federal land. Rather, . . .
‘[a]bsent 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.’ [Citation.]” (California Coastal Comm’n v. Granite Rock (1987) 480 U.S. 572,


                                              11
580-581 [94 L.Ed.2d 577, 591] citing Kleppe v. New Mexico, supra, at p. 543 (Granite
Rock; italics added.) Put differently, “[T]he Property Clause gives Congress plenary
power over . . . federal land . . .; however, even within the sphere of the Property Clause,
state law is pre-empted only when it conflicts with the operation or objectives of federal
law . . . [Citation.]” (Id. at p. 593 [94 L.Ed.2d at pp. 599-600].)
        “[S]tate 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. [Citations.] 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
[citation] or where the state law stands as an obstacle to the accomplishment of the full
purposes and objectives of Congress, [citation].” (Silkwood v. Kerr-McGee Corp. (1984)
464 U.S. 238, 248 [78 L.Ed.2d 443, 452]; see also, Viva!, supra, 41 Cal.4th at pp. 935-
936.)

                                              II

                                    Federal Mining Law

        The federal government’s policy relating to mining and minerals is set forth at
Title 30 United States Code section 22. “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 . . . under regulations
prescribed by law, and according to the local customs and 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.”
        We deal here mainly with the Mining Act of 1872.




                                              12
       “Under the Mining Act of 1872, 17 Stat. 91, as amended, 30 USC § 22 et seq., a
private citizen may enter federal lands to explore for mineral deposits. If a person locates
a valuable mineral deposit on federal land, and perfects the claim by properly staking it
and complying with other statutory requirements, the claimant ‘shall have the exclusive
right of possession and enjoyment of all the surface included within the lines of their
locations,’ [citation], although the United States retains title to the land. The holder of a
perfected mining claim may secure a patent to the land by complying with the
requirements of the Mining Act and regulations promulgated thereunder [citation] and,
upon issuance of the patent, legal title to the land passes to the patent holder.” (Granite
Rock, supra, at pp. 575- 576 [94 L.Ed.2d at p. 588].)
       The United States Supreme Court has recognized that the intent of Congress in
passing the mining laws “was to reward and encourage the discovery of minerals that are
valuable in an economic sense.” (United States v. Coleman (1968) 390 U.S. 599, 602 [20
L.Ed.2d 170, 174-175].)
       Constitutionally speaking, under most circumstances, the states are free to enact
environmental statutes and regulations binding on those holding unpatented mining
claims on federal lands so long as those statutes and regulations do not rise to the level of
impermissible state land use regulations. (See Granite Rock, supra, 480 U.S. 572 [94
L.Ed.2d 577].) “The line between environmental regulation and land use planning will
not always be bright; for example, one may hypothesize a state environmental regulation
so severe that a particular land use would become commercially impracticable. However,
the core activity described by each phrase is undoubtedly different. Land use planning in
essence chooses particular uses for the land; environmental regulation, at its core, does
not mandate particular uses of the land but requires only that, however the land is used,
damage to the environment is kept within prescribed limits.” (Id. at p. 587 [94 L.Ed.2d at
pp. 595-596].)



                                              13
                                              III

                 California Fish and Game Code Sections 5653 and 5653.1

        In 1961, the State of California enacted section 5653 directing the California
Department of Fish and Wildlife (formerly known as the Department of Fish and Game)
(Department) to issue permits if it determined the particular vacuum or suction dredge
mining operation “will not be deleterious to fish.” (Stats. 1961, ch. 1816, § 1.) Suction
dredging is the use of a suction system to remove and return materials from the bottom of
a stream, river or lake for the extraction of minerals. (Cal. Code Regs., tit. 14, § 228.)
        In 1988, amendments to the statute made it a misdemeanor to possess a vacuum or
suction dredge in or within 100 yards of waters closed to the activity. (Stats. 1988, ch.
1037, § 1.)
        In August 2009, the Governor signed Senate Bill No. 670, prohibiting the
Department from issuing any new permits under section 5653, and imposing a statewide
moratorium on instream suction dredge mining to remain in effect pending completion of
the Department’s administrative proceedings undertaken pursuant to section 5653.1.
(Stats. 2009, ch. 62, § 1, adding former Fish & G. Code, § 5653.1, eff. Aug. 6, 2009.)
        In 2011, the Legislature amended section 5653.1 to state that the statutory
moratorium would end on the earlier of June 30, 2016, or the Department’s certification
that the following five conditions had been satisfied:
        “(1) The [D]epartment has completed the environmental review of its existing
[1994] suction dredge mining regulations. . . .
        “(2) The [D]epartment has transmitted for filing with the Secretary of State . . . a
certified copy of new regulations adopted, as necessary, pursuant to . . . the Government
Code.
        “(3) The new regulations described in paragraph (2) are operative.




                                              14
       “(4) The new regulations described in paragraph (2) fully mitigate all identified
significant environmental impacts.
       “(5) A fee structure is in place that will fully cover all costs to the [D]epartment
related to the administration of the program.” (See former Fish & G. Code, § 5653.1,
subd. (b), later amended by Stats. 2012, ch. 39, § 7, eff. June 27, 2012.)
       Section 5653.1 “applies solely to vacuum and suction dredging activities
conducted for instream mining purposes,” but “does not expand or provide new authority
for the [D]epartment to close or regulate suction dredging conducted for regular
maintenance of energy or water supply management infrastructure, flood control, or
navigational purposes governed by other state or federal law.” (§ 5653.1, subd. (d).)
Section 5653.1 “does not prohibit or restrict nonmotorized recreational mining activities,
including panning for gold.” (§ 5653.1, subd. (e).)
       A subsequent amendment to the statute repealed the June 30, 2016 date, such that
the moratorium now ends when the Department certifies that all five conditions have
been satisfied. (Stats. 2012, ch. 39, § 7, eff. June 27, 2012.)
       Defendant argues that, because of a lack of funding, the Department is unable for
financial reasons to fulfill the conditions set forth in section 5653.1 which results in a
continuing, if not permanent, moratorium on suction dredge mining permits. This, he
argues, stands as an obstacle to federal Congressional intent. To the argument that such
permits may be issued again at some point in the future, defendant responds that, in any
event, to accept that argument would be to allow any moratorium to stand on the promise
that it would be lifted in the future. Defendant also argues that, where the Government
has authorized a specific use of federal lands, a state may not prohibit that use, either
temporarily or permanently, in an attempt to substitute its judgment for that of Congress.




                                              15
                                             IV

                                 Resolution of this Appeal

       The question presented here is whether sections 5653 and 5653.1 of the Fish and
Game Code, as presently applied, stand as an obstacle to the accomplishment of the full
purposes and objectives of Congress in passing the federal mining laws.
       We first note that section 5653 requiring a permit from the state before persons
may conduct suction dredge mining operations does not, standing alone, contravene
federal law. (See Granite Rock, supra, 480 U.S. 572 [94 L.Ed.2d 57].) Granite Rock
establishes that the requirement of a state permit to conduct certain activities on federal
land is not categorically prohibited. The issue turns instead on the conditions attending
the permit.
       The question here is whether the requirements of section 5653.1, which
requirements, defendant argues, cannot at the present time be met by the state, in fact
operate to prohibit the issuance of a permit under section 5653. That is, according to
defendant, there is at the current time a de facto ban on suction dredge mining in
California imposed by the state through the operation of sections 5653 and 5653.1.
Moreover, according to defendant, there is no economically feasible way to extract
valuable mineral deposits at the sight of his claim. Put simply, according to defendant,
this combination of circumstances has the practical effect of the state taking away from
him what the federal government has granted. Therefore, he argues, the state statutes are
unenforceable because their operation, as to defendant, is preempted by federal law.
       In addressing this question, we find particularly useful the opinion of the United
States Court of Appeals for the Eighth Circuit in South Dakota Mining Ass’n Inc. v.
Lawrence County 155 F.3d 1005 (8th Cir. 1998) (South Dakota Mining). Indeed, South
Dakota Mining is nearly directly on point here.




                                             16
       In South Dakota Mining, the voters of Lawrence County, South Dakota enacted an
ordinance prohibiting the issuance of new or amended permits for surface metal mining
in what was known as the Spearfish Canyon Area. Plaintiffs in the action to permanently
enjoin enforcement of the ordinance included mining companies that held federally
patented and unpatented mining claims in the area and had conducted surface mining
operations consistent with federal law within Lawrence County for the 15 years before
the ordinance was enacted. (Id. at p. 1007.)
       The record in the district court showed that surface metal mining was the only
mining method that had been used to mine gold and silver deposits in the area for the
previous 20 years. The record also showed that surface metal mining was the only
mining method that could extract gold and silver within the Spearfish Canyon area even
though, in other parts of South Dakota, underground and other types of gold and silver
mining were prevalent. Surface metal mining in the Spearfish Canyon area was the only
mining method available, as a practical matter, because the gold and silver deposits in
that area were located, geologically, at the earth’s surface. The record showed that the
mining companies had invested substantial time and money to explore the area for
mineral deposits and to develop mining plans that conformed to federal, state, and local
permitting laws. (South Dakota Mining, supra, at pp. 1007 to 1008.)
       The district court permanently enjoined enforcement of the ordinance holding that
the Federal Mining Act of 1872 preempted the ordinance. (South Dakota Mining, supra,
at p. 1008.)
       The Eighth Circuit Court of Appeals affirmed the district court’s order. The court
first found that the purposes and objectives of the Congress in passing the Mining Act of
1872 included “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,



                                               17
and allowing state and local regulation of mining so long as such regulation is consistent
with federal mining law.” (South Dakota Mining, supra, at p. 1010.)
       The court then found that “[t]he 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. [¶] . . . [¶]
       “The ordinance’s de facto ban on mining 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 the 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.”
(South Dakota Mining, supra, at p. 1011.)
       The matter before us is distinguishable from South Dakota Mining in that sections
5653 and 5653.1 of the Fish and Game Code, read together or alone, do not expressly
prohibit the issuance of suction dredge mining permits. But in the last analysis, that has
no bearing on the result we reach here. While the sections at issue in the Fish and Game
Code do not expressly ban suction dredge mining, they do require a state permit for such
mining and, arguably, California law as embodied in the words and application of section
5653.1 acts to prevent the issuance of such permits. Defendant argues that, in practical
operation, sections 5653 and 5653.1, have, since 2009, banned suction dredge mining in
California. Since, according to defendant, there is no commercially viable way to

                                              18
discover and extract the gold or other minerals lying within defendant’s mining claims
other than suction dredge mining, the effect of the statutory scheme is to deprive him of
rights granted to him under federal law.
       Put differently, and in the language of the hypothetical used by the Court in
Granite Rock, if sections 5653 and 5653.1 are environmental regulations that are “so
severe that a particular land use [in this case mining] . . . become[s] commercially
impracticable” (Granite Rock, supra, at p. 587), then they have become de facto land use
planning measures that frustrate rights granted by the federal mining laws and, thus, have
become obstacles to the realization of Congress’ intent in enacting those laws. If that is
the case, as defendant alleges, the Fish and Game Code provisions at issue here are
unenforceable as preempted by federal mining law.
       While defendant has made a colorable argument to that end, we cannot determine
on this record that, as a matter of law, the criminal provisions of section 5653, read in
light of the provisions of section 5653.1, are rendered unenforceable because the
California statutes have rendered the exercise of rights granted by the federal mining laws
“commercially impracticable.” (Granite Rock, supra, at p. 587.)
       The trial court held that the relevant Fish and Game Code sections were not
preempted by federal law and disallowed evidence relevant to the question before us.
Having no evidence in the record relevant to the operative issues bearing on defendant’s
affirmative defense, we must return the matter to the trial court for further proceedings on
the issue of preemption, admitting whatever evidence, and hearing whatever argument,
the trial court, in its discretion, deems relevant and then ruling accordingly. Specifically,
the trial court must address at least these two questions: (1) Does section 5653.1, as
currently applied, operate as a practical matter to prohibit the issuance of permits required
by section 5653; and (2) if so, has this de facto ban on suction dredge mining permits
rendered commercially impracticable the exercise of defendant’s mining rights granted to
him by the federal government?

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       Remand is not only necessary because these questions cannot be answered by a
review of the record of trial we have before us but also because it is fair to the defendant
and to the People as each party may have evidence beyond the offer of proof and
argument it wishes to offer beyond that which has thus far been offered in the trial court
on the issue of federal preemption.

                                        DISPOSITION

       The judgment is reversed and the cause is remanded to the trial court for further
proceedings.



                                                        HULL                   , Acting P. J.



We concur:



      ROBIE                 , J.



      HOCH                  , J.




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