United States District Court, D. Oregon, Pendleton Division
ROY CAMPBELL, an individual, CHAD MARMOLEJO, an individual, TOMMY PARTEE, an individual, and OREGON MINING ASSOCIATION, an Oregon nonprofit corporation, Plaintiffs,
OREGON DEPARTMENT OF STATE LANDS, OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY, OREGON DEPARTMENT OF GEOLOGY AND MINERAL INDUSTRIES, JIM PAUL, in his official capacity as Director, Oregon Department of State Lands, PETE SHEPHERD, in his official capacity as Acting Director, Department of Environmental Quality, and BRAD AVY, in his official capacity as State Geologist, Department of Geology and Mineral Industries, Defendants.
OPINION AND ORDER
PATRICIA SULLIVAN United States Magistrate Judge
action, plaintiffs Roy Campbell, Chad Marmolejo, Tommy
Partee, and the Oregon Mining Association challenge Oregon
Senate Bill 838 (“SB 838”) as preempted under the
Supremacy and Property Clauses of the U.S. Constitution, art.
VI, cl. 2 & art. IV, § 3, cl. 2, by various federal
mining laws. Defendants are Oregon state departments and
their directors. Defendants have moved to dismiss
plaintiffs' Amended Complaint for failure to state a
claim. (Docket No. 6). The Court heard oral argument on March
15, 2017 (Docket No. 17), and received supplemental briefing
(Docket Nos. 18, 19).
following reasons, the Court STAYS this action pending a
decision by the U.S. Court of Appeals for the Ninth Circuit
in Bohmker v. Oregon, 16-35262 (9th Cir. 2017).
I. The Parties
individual plaintiff is a “small-scale miner”
with a “valid federal recorded mining claim.” Am.
Compl. ¶¶ 7, 8, 16, 17, 26, 27 (Docket 1-1).
Plaintiffs allege that it is “physically and
financially infeasible to explore, develop, and extract
minerals” from their mining claims “with
non-motorized equipment such as a pick, shovel, and gold pan,
” id. ¶¶ 13, 24, 32, and
“physically and financial infeasible” for
plaintiff Marmolejo “to use hand tools . . . to explore
and develop minerals . . . without the [use] of a motorized
suction dredge, ” id. ¶ 21. Plaintiff
Oregon Mining Association is a non-profit that
“represents the interests of miners.”
Id. ¶ 35.
Oregon Department of State Lands administers, and has adopted
rules to implement, SB 838. Id. ¶ 36. It has
also “delineated Essential Salmonid Habitat governing
the prohibition of mining under SB 838.” Id.
Defendant Oregon Department of Environmental Quality
administers permits governing small-scale placer and precious
metal mining operations as to disposal of wastewater and
extraction from streambeds. Id. ¶ 38. Defendant
Oregon Department of Geology and Mineral Industries regulates
surface mining and administers mining permits. Id.
¶ 40. The individual defendants are the directors, or
acting directors, of these departments, each sued in his
official capacity. Id. ¶¶ 37, 39, 41.
Senate Bill 838
places a five-year moratorium on motorized precious metal
mining in and around the beds and banks of certain Oregon
waterways, including waterways on federal land. Am. Compl.
¶ 1; see also Defs. Mot. Dismiss, Ex. A (Docket
No. 6) (text of SB 838). The moratorium applies to areas
designated “essential indigenous anadromous salmonid
habitat” or areas “containing . . . naturally
reproducing populations of bull trout.” SB 838 §
2(1). Within these protected areas, SB 838 prohibits
motorized precious metal mining from placer deposits of
riverbanks or riverbeds, and from other placer deposits,
where mining would cause removal or disturbance of streamside
vegetation and impact water quality. Id. These
mining activities are prohibited only up to the “line
of ordinary high water, ” and “100 yards upland
perpendicular to the line of ordinary high water”
located “above the lowest extent of the spawning
habitat” in a river containing an essential salmonid
habitat or a reproducing bull trout population. Id.
The moratorium went into effect January 2, 2016, and lasts
until January 2, 2021. Id. §§ 3-4. SB 838
also limits the number of operating mining permits the
Department of Geology and Mineral Industries may issue.
commenced this action in Oregon state court on July 27, 2016.
Notice of Removal, Ex. 1, at 29-55 (Docket No. 1-1). In their
original Complaint, plaintiffs sought declaratory judgment
regarding SB 838 on two counts: “Preemption under the
Supremacy and Property Clauses as a facial challenge, ”
and “Preemption under the Supremacy and Property
Clauses as applied to plaintiffs.” Id., at 45,
49. Plaintiffs also sought an injunction against defendants
from enforcing SB 838. Id., at 54. Plaintiffs filed
an Amended Complaint, dated the same day, asserting the same
claims, and seeking the same relief. Id., Ex. 1, at
2-28. On August 19, 2016, defendants removed the action to
this Court on the basis of federal question jurisdiction, 28
U.S.C. §§ 1331, 1441(a). (Docket No. 1). On
September 23, 2016, defendants moved to dismiss the Amended
Complaint for failure to state a claim. (Docket No. 6).
Court heard oral argument on defendants' Motion to
Dismiss on March 15, 2017. (Docket No. 17). At the hearing,
the Court raised whether it should stay this action pending
the Ninth Circuit's decision in Bohmker v.
Oregon, 16-35262 (9th Cir. 2017), which likewise
concerns a constitutional preemption challenge to SB 838
based on federal mining law. The parties submitted
supplemental briefing on whether to stay this action, and
also on the viability of as-applied, as opposed to facial,
preemption challenges. (Docket Nos. 18, 19).
district court has the inherent power to stay its
proceedings. Landis v. N. Am. Co., 299 U.S. 248,
254-55 (1936) (“[T]he power to stay proceedings is
incidental to the power inherent in every court to control
the disposition of the causes on its docket with economy of
time and effort for itself, for counsel, and for litigants.
How this can best be done calls for ...