California Coastal Commission v. Granite Rock Co.

Justice Powell,

with whom Justice Stevens joins, concurring in part and dissenting in part.

Because I agree that this case is properly before us, I join Parts I and II of the Court’s opinion. In Part III, the Court considers the Forest Service’s approval of Granite Rock’s plan to operate its mine in a national forest. Because I cannot agree with the Court’s conclusion that Congress intended to allow California to require a state permit, I dissent from Part III.

*595l-H

A

To understand Part III of the Court’s opinion, one must have some knowledge of two groups of statutes and regulations. The first group of provisions regulates mining. As the Court explains, the basic source of federal mining law is the Mining Act of 1872, ch. 152, 17 Stat. 91, as amended, 30 U. S. C. § 22 et seq. In general, that law opens the public lands to exploration. If one discovers valuable mineral deposits, the statute grants him the right to extract and sell the minerals without paying a royalty to the United States, as well as the right — subject to certain statutory requirements — to obtain fee title to the land. See Mining Act § 1, 30 U. S. C. § 22; United States v. Locke, 471 U. S. 84, 86 (1985). As the demand for minerals has increased during the past century, Congress has emphasized that an “economically sound and stable domestic mining . . . industr[y]” is important to the economy, and to our Nation’s security. See Mining and Minerals Policy Act of 1970, §2, 30 U. S. C. §21a.1

B

The second area of federal law important to this case concerns the management of federal lands. In response to the increasing commercial importance of federal lands, as well as the awareness of the environmental values of these lands, *596Congress passed the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U. S. C. § 1701 et seq. (1982 ed. and Supp. III). That statute promotes the effective development of federal lands in two ways pertinent to this case. First, it directs the Secretary of the Interior to inventory the resources located on federal lands and to develop comprehensive plans for future development. §§ 1701(a)(2), 1711, 1712. Second, it ensures that the States’ interests in these resources will not be ignored:

“[T]he Secretary shall. . . coordinate [his plans] with the land use planning and management programs of. . . the States and local governments within which the lands are located. . . . Land use plans of the Secretary . . . shall be consistent with State and local plans to the maximum extent he finds consistent with Federal law and the purposes of this Act.” § 1712(c)(9).

Significantly, the FLPMA only requires the Secretary to listen to the States, not obey them. As the Conference Report explained: “[T]he ultimate decision as to determining the extent of feasible consistency between [the Secretary’s] plans and [state or local] plans rests with the Secretary of the Interior.” H. R. Conf. Rep. No. 94-1724, p. 58 (1976).

The surface management provisions of the FLPMA do not apply to national forest lands. 43 CFR §3809.0-5(c) (1986). Congress first provided for management of these lands in the Organic Administration Act of 1897. The current version of that statute delegates to the Secretary of Agriculture the authority to “regulate [the] occupancy and use” of national forests. 16 U. S. C. §551. The Forest Service, as the Secretary’s delegate, has promulgated regulations to control the “use” of national forests. 36 CFR §228.1 et seq. (1986). Persons wishing to mine in the national forests submit plans of operation detailing their anticipated activities. If the For*597est Service determines that the plans comply with the regulations, it approves them and authorizes the mining operation. The Court, by focusing on the Forest Service’s concern for preservation of the national forests, characterizes these regulations as “environmental” regulations, in its view something entirely different from “land use” regulations. Ante, at 587-589.

In fact, the regulation of land use is more complicated than the Court suggests. First, as is true with respect to the Secretary of the Interior, the Secretary of Agriculture has been directed to develop comprehensive plans for the use of resources located in national forests. See Forest and Range-land Renewable Resources Planning Act of 1974 (Forest Planning Act) § 3(a), as amended, 16 U. S. C. § 1601. The Forest Planning Act initially did not require the Forest Service to consider the views of state regulators. But when Congress passed the FLPMA in 1976, it also passed the National Forest Management Act (NFMA), that amended the Forest Planning Act. Of special importance, §6(a) of the NFMA requires the Secretary of Agriculture to coordinate his land management plans “with the land and resource management planning processes of State and local governments.” 16 U. S. C. § 1604(a). Section 14 specifically requires the Secretary of Agriculture to give state governments “adequate notice and an opportunity to comment upon the formulation of standards, criteria, and guidelines applicable to Forest Service programs.” § 1612(a). Thus, it is clear that the Secretary of Agriculture has the final authority to determine the best use for federal lands, and that he must consider the views of state regulators before making a decision. There is no suggestion in the statute or the legislative history that state regulators should have the final authority in determining how particular federal lands should be used.

The Forest Service also has a role in implementing the Nation’s mineral development policy. The Court shrugs off the *598importance of this obligation, noting that “ ‘the responsibility for managing [mineral] resources is in the Secretary of the Interior.’” Ante, at 588 (quoting 36 CFR §228.1 (1986)). This statement erroneously equates mineral resources management with land use management. Title 43 of the Code of Federal Regulations details the activities of the Bureau of Land Management (BLM) in this context. Generally, BLM manages the process by which rights to minerals are obtained from the United States and protected against others, the payment of royalties to the Federal Government, and the conservation of the minerals themselves. In some cases — like those of oil, gas, and coal — BLM supervises leasing of the right to extract the materials. But this case involves “hard-rock” minerals governed by the Mining Act of 1872. With respect to those minerals, BLM’s actions are limited to determining whether the land is subject to location under the mining laws; whether a mining claim is properly located and recorded; whether assessment work is properly performed; and whether the requirements for patenting a claim have been complied with. See 43 CFR pts. 3800-3870 (1986). None of these determinations is a “land use” determination in the sense of balancing mineral development against environmental hazard to surface resources. The Forest Service makes these determinations through its review of a mining plan of operation.

The Organic Administration Act of 1897 makes clear that the Forest Service must act consistently with the federal policy of promoting mineral development. Section 1 of that Act precludes the Secretary of Agriculture from taking any action that would “prohibit any person from entering upon such national forests for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof.” 16 U. S. C. §478.2 Forest Service ma*599terials confirm its duty to balance “[t]he demand for mineral development. . . against the demand for renewable resources and the land management agency’s responsibility to reasonably protect the environment.” United States Dept, of Agriculture, Forest Service Minerals Program Handbook preface (1983). See also Forest Service Manual §2802 (Dec. 1986) (stating that the Forest Service’s policy is to “ensure that exploration, development, and production of mineral and energy resources are conducted in an environmentally sound manner and that these activities are integrated with planning and management of other national forest resources”); 30 U. S. C. § 1602. In sum, although the Secretary of the Interior has a substantial responsibility for managing mineral resources, Congress has entrusted the task of balancing mineral development and environmental protection in the national forests to the Department of Agriculture, and its delegate the Forest Service.

II

The Court’s analysis of this case focuses on selected provisions of the federal statutes and regulations, to the exclusion of other relevant provisions and the larger regulatory context. First, it examines the Forest Service regulations themselves, apart from the statutes that authorize them. Because these regulations explicitly require the federal permits to comply with specified state environmental standards, the Court assumes that Congress intended to allow state enforcement of any and all state environmental standards. Careful comparison of the regulations with the authorizing statutes casts serious doubt on this conclusion. The regulations specifically require compliance with only three types of state regulation: air quality, see 36 CFR § 228.8(a) (1986); water quality, see § 228.8(b); and solid waste disposal, see § 228.8(c). But the Court fails to mention that the types of *600state regulation preserved by §228.8 already are preserved by specific nonpre-emption clauses in other federal statutes. See 42 U. S. C. § 7418(a) (Clean Air Act requires federal agencies to comply with analogous state regulations); 33 U. S. C. § 1323(a) (similar provision of the Clean Water Act); 42 U. S. C. § 6961 (similar provision of the Solid Waste Disposal Act). The Forest Service’s specific preservation of certain types of state regulation — already preserved by federal law — hardly suggests an implicit intent to allow the States to apply other types of regulation to activities on federal lands. Indeed the maxim expressio unius est exclusio alterius suggests the contrary.3

The second part of the Court’s analysis considers both the NFMA and the FLPMA. The Court assumes, ante, at 586, that these statutes “pre-emp[t] the extension of state land use plans onto unpatented mining claims in national forest lands.” But the Court nevertheless holds that the Coastal Commission can require Granite Rock to secure a state permit before conducting mining operations in a national forest. This conclusion rests on a distinction between “land use plan*601ning” and “environmental regulation.” In the Court’s view, the NFMA and the FLPMA indicate a congressional intent to pre-empt state land use regulations, but not state environmental regulations. I find this analysis unsupportable, either as an interpretation of the governing statutes or as a matter of logic.

The basis for the alleged distinction is that Congress has understood land use planning and environmental regulation to be distinct activities. The only statute cited for this proposition is § 202(c)(8) of the FLPMA, 43 U. S. C. § 1712(c)(8), that requires the Secretary of the Interior’s land use plans to “provide for compliance with applicable pollution control laws, including State and Federal air, water, noise, or other pollution standards or implementation plans.” But this statute provides little support for the majority’s analysis. A section mandating consideration of environmental standards in the formulation of land use plans does not demonstrate a general separation between “land use planning” and “environmental regulation.” Rather, § 202(c)(8) recognizes that the Secretary’s land use planning will affect the environment, and thus directs the Secretary to comply with certain pollution standards.

Nor does this section support the Court’s ultimate conclusion, that Congress intended the Secretary’s plans to comply with all state environmental regulations. As I have explained supra, at 599-600, other federal statutes require compliance with the fisted standards.4 Also, because the *602FLPMA requires compliance only with “applicable” standards, it is difficult to treat this one section as an independent and controlling command that the Secretary comply with all state environmental standards. Rather, viewing the complex of statutes and regulations as a whole, it is reasonable to view § 202(c)(8) simply as a recognition that the Secretary’s plans must comply with standards made applicable to federal activities by other federal laws.

The only other authority cited by the Court for the distinction between environmental regulation and land use planning is a Forest Service regulation stating that the Forest Service’s rules do not “provide for the management of mineral resources,” 36 CFR §228.1 (1986). From this, the Court concludes that the Forest Service enforces environmental regulation but does not engage in land use planning. This conclusion misunderstands the division of authority between the BLM and the Forest Service. As explained supra, at 597-598, the BLM’s management of minerals does not entail management of surface resources or the evaluation of surface impacts. Indeed, the Court acknowledges that the Forest Service is “responsible for the management of the surface impacts of mining on federal forest lands.” Ante, at 585. The Forest Planning Act and the NFMA direct the Secretary of Agriculture and the Forest Service to develop comprehensive plans for the use of forest resources. Similarly, the Organic Administration Act commands the Secretary of Agriculture to promulgate regulations governing the “occupancy and use” of national forests, 16 U. S. C. §551. These regulations are integral to the Forest Service’s management of national forests. To view them as limited to environmental concerns ignores both the Forest Service’s broader responsibility to manage the use of forest resources and the federal policy of making mineral resources accessible to *603development.5 The Coastal Commission has no interest in the matters within the jurisdiction of the BLM; the regulations that it seeks to impose concern matters wholly within the control of the Forest Service. Thus, this regulation does not support the Court’s distinction between environmental regulation and land use planning.

The most troubling feature of the Court’s analysis is that it is divorced from the realities of its holding. The Court cautions that its decision allows only “reasonable” environmental regulation and that it does not give the Coastal Commission a veto over Granite Rock’s mining activities. But if the Coastal Commission can require Granite Rock to secure a permit before allowing mining operations to proceed, it necessarily can forbid Granite Rock from conducting these operations. It may be that reasonable environmental regulations would not force Granite Rock to close its mine. This misses the point. The troubling fact is that the Court has given a state authority — here the Coastal Commission — the power to prohibit Granite Rock from exercising the rights granted by *604its Forest Service permit. This abdication of federal control over the use of federal land is unprecedented.6

Ill

Apart from my disagreement with the Court’s characterization of the governing statutes, its pre-emption analysis accords little or no weight to both the location of the mine in a national forest, and the comprehensive nature of the federal statutes that authorized Granite Rock’s federal permit.

One important factor in pre-emption analysis is the relative weight of the state and federal interests in regulating a particular matter. Cf. Hines v. Davidowitz, 312 U. S. 52, 66-69 (1941). The Court recognizes that the mine in this case is located in a national forest, but curiously attaches no significance to that fact. The Property Clause specifically grants Congress “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. See Utah Power & Light Co. v. United States, 243 U. S. 389, 404 (1917). This provision may not of its own force pre-empt the authority of a State to regulate activities on federal land, but it clearly empowers Congress to limit the extent to which a State may regulate in this area. In light of this clear constitutional allocation of power, the location of the mine in a national forest should make us less reluctant to find pre-emption than we are in other contexts.

The state regulation in this case is particularly intrusive because it takes the form of a separate, and duplicative, permit system. As the Court has recognized, state permit requirements are especially likely to intrude on parallel federal authority, because they effectively give the State the power to veto the federal project. See International Paper Co. v. *605Ouellette, 479 U. S. 481, 495 (1987); First Iowa Hydro-Electric Cooperative v. FPC, 328 U. S. 152, 164 (1946). Although the intrusive effect of duplicative state permit systems may not lead to a finding of pre-emption in all cases, it certainly is relevant to a careful pre-emption analysis.

The dangers of duplicative permit requirements are evident in this case. The federal permit system reflects a careful balance between two important federal interests: the interest in developing mineral resources on federal land, and the interest in protecting our national forests from environmental harm. The Forest Service’s issuance of a permit to Granite Rock reflects its conclusion that environmental concerns associated with Granite Rock’s mine do not justify restricting mineral development on this portion of a federal forest. Allowing the Coastal Commission to strike a different balance necessarily conflicts with the federal system.

Furthermore, as discussed supra, at 595-597, Congress already has provided that affected States must be afforded an opportunity to communicate their concerns to the federal regulators charged with deciding how federal lands should be used.7 Because Congress has ensured that any federal de-*606cisión will reflect the environmental concerns of affected States, a duplicative system of permits would serve no purpose. Indeed, the potential for conflict between state and federal decisions has obvious disadvantages.

> HH

In summary, it is fair to say that, commencing m 1872, Congress has created an almost impenetrable maze of arguably relevant legislation in no less than a half-dozen statutes, augmented by the regulations of two Departments of the Executive. There is little cause for wonder that the language of these statutes and regulations has generated considerable confusion. There is an evident need for Congress to enact a single, comprehensive statute for the regulation of federal lands.

Having said this, it is at least clear that duplicative federal and state permit requirements create an intolerable conflict in decisionmaking.8 In view of the Property Clause of the Constitution, as well as common sense, federal authority must control with respect to land “belonging to the United States.” Yet, the Court’s opinion today approves a system of twofold authority with respect to environmental matters. The result of this holding is that state regulators, whose views on environmental and mineral policy may conflict with the views of the Forest Service, have the power, with respect to federal lands, to forbid activity expressly authorized by the Forest Service. I dissent.

See also National Materials and Minerals Policy, Research and Development Act of 1980, § 2(a)(1), 30 U. S. C. § 1601(a)(1) (congressional finding that the availability of minerals “is essential for national security, economic well-being, and industrial production”); § 2(a)(3), 30 U. S. C. § 1601(a)(3) (congressional finding that the extraction of minerals is “closely linked with national concerns for energy and the environment”); §3, 30 U. S. C. § 1602 (“[I]t is the continuing policy of the United States to promote an adequate and stable supply of materials necessary to maintain national security, economic well-being and industrial production with appropriate attention to a long-term balance between resource production, energy use, a healthy environment, natural resources conservation, and social needs”).

More recently, congressional solicitude for development of federal mineral resources led Congress to order the President to “coordinate the responsible departments and agencies to, among other measures . . . en*599courage Federal agencies to facilitate availability and development of domestic resources to meet critical materials needs.” 80 U. S. C. § 1602(7).

The Court rests this part of its pre-emption analysis on Hillsborough County v. Automated, Medical Laboratories, Inc., 471 U. S. 707 (1985). In that case, the Court stated: “[W]e will pause before saying that the mere volume and complexity of [an agency’s] regulations indicate that the agency did in fact intend to pre-empt.” Id., at 718. Hillsborough, however, is quite different from this case. First, the state regulations were designed to ensure the health of plasma donors, an aim entirely separate from the aim of the federal regulations, to ensure the purity of the donated plasma. In this case, by contrast, federal authorities already have considered the environmental effects of Granite Rock’s mine. The California Coastal Commission seeks only to reconsider the decision of the federal authorities. In any event, the argument for pre-emption in this case does not rest on the Forest Service regulations alone, but also on the comprehensive regulatory system enacted by Congress. The Court cannot make Hillsborough controlling simply by considering the regulations separately from their statutory source. As I explain, infra, at 604-606, the complex of applicable statutes and regulations, considered as a whole, pre-empts the Coastal Commission’s permit requirement.

The Forest Service regulations discussed above mention a slightly different set of environmental standards than does the FLPMA. Both provisions specifically preserve air and water standards. The Forest Service regulations also mention solid waste disposal standards; the Land Management Act also mentions noise control standards. Cf. 42 U. S. C. § 4901(a)(3) (Noise Control Act provision stating that the “primary responsibility for control of noise rests with State and local governments”). The slight difference between the two lists of pollution standards, however, is insignificant. The feature that all the listed standards have in common is *602that other federal statutes specifically preserve a place for state regulation. See supra, at 599-600.

The lack of statutory support for the Court’s distinction is not surprising, because — with all respect — it seems to me that the distinction is one without a rational difference. As the Court puts it: “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.” Ante, at 587. This explanation separates one of the reasons for Forest Service decisions from the decisions themselves. In considering a proposed use of a parcel of land in the national forest, the Forest Service regulations consider the damage the use will cause to the environment as well as the federal interest in making resources on public lands accessible to development. The Forest Service may decide that the proposed use is appropriate, that it is inappropriate, or that it would be appropriate only if further steps are taken to protect the environment. The Court divides this decision into two distinct types of regulation and holds that Congress intended to pre-empt duplicative state regulation of one part but not the other. Common sense suggests that it would be best for one expert federal agency, the Forest' Service, to consider all these factors and decide what use best furthers the relevant federal policies.

I express no view as to the Court’s conclusion that the Coastal Zone Management Act of 1972 (CZMA), 16 U. S. C. § 1451 et seq. (1982 ed. and Supp. Ill), does not pre-empt the state regulation in this case. See ante, at 589-593.

The discussion in Part I deals primarily with the FLPMA and the NFMA. In this case, the Coastal Commission actually had yet another statutory basis for influencing the federal decisionmaking process. Because Granite Rock’s mine is near the California Coast, the Coastal Commission has a right to consistency review under the CZMA. Thus, if the Coastal Commission had voiced its concerns, the Secretary could not have approved this permit unless he determined, after a hearing, that “the activity is consistent with the objectives of [the CZMA] or is otherwise necessary in the interest of national security.” 16 U. S. C. § 1456(c)(3)(A). Although the Coastal Commission had notice of Granite Rock’s application to the Forest Service, it did not object to Granite Rock’s activities until two years after the application was approved and Granite Rock began mining pursuant to the federal permit. Because the Coastal Commission failed to make a timely complaint to the Forest Service, it forfeited its right to consistency review under the CZMA.

By noting the provision for consistency review, I do not imply that the CZMA itself pre-empts the Coastal Commission’s permit requirement. See *606n. 6, supra. I believe, however, that the provision for consistency review, considered with the other specific provisions for state participation in the federal regulatory process, indicates that Congress did not believe the States could have imposed separate permit requirements, even before passage of the CZMA.

The Court concludes that Granite Rock has failed to demonstrate a conflict because it rejects my conclusion that land use regulation and environmental regulation are indistinguishable and because it sees no harm in allowing state permit requirements to supersede the decisions of federal officials. Ante, at 593-594.