CALIFORNIA COASTAL COMMISSION, ET AL., APPELLANTS V. GRANITE ROCK COMPANY No. 85-1200 In the Supreme Court of the United States October Term, 1986 On Appeal from the United States Court of Appeals for the Ninth Circuit Brief for the United States as Amicus Curiae Supporting Appellee TABLE OF CONTENTS Question Presented Interest of the United States Statement Introduction and summary of argument Argument: The California Coastal Commission cannot impose state land use requirements upon a quarry operator that conducts mining operations on federal land A. The Coastal Zone Management Act's federal lands exclusion exempts federal mining claims from regulation under state coastal management programs B. Even in the absence of the CZMA's federal lands exclusion, the California Coastal Commission could not apply its coastal management permitting requirements to federally authorized activities conducted on federal lands Conclusion QUESTION PRESENTED Whether the California Coastal Commission can require a quarrry operator that conducts federally authorized mining activities on federal land to obtain a state coastal development permit under California's coastal zone management plan. INTEREST OF THE UNITED STATES The United States encourages state development of coastal zone management programs through the Coastal Zone Management Act of 1972, 16 U.S.C. (& Supp. II) 1451 et seq. In addition, the United States manages federal lands through various statutes, including the Federal Land Policy and Management Act of 1976, 43 U.S.C. (& Supp. II) 1701 et seq., the National Forest Management Act of 1976, 16 U.S.C. 1600 et seq., and the Forest and Rangeland Renewable Resources Planning Act of 1974, 16 U.S.C. 1600 et seq. It specifically encourages hardrock mining on federal lands through the Mining Act of 1872, 30 U.S.C. 22 et seq. STATEMENT Congress enacted the Coastal Zone Management Act of 1972 (CZMA), 16 U.S.C. (& Supp. II) 1451 et seq., to encourage state development of coastal zone management programs. California later enacted the California Coastal Act of 1976 (Coastal Act), Cal. Pub. Res. Code Sections 30000 et seq. (West 1977 & Supp. 1986), which "shall constitute California's coastal zone management program within the coastal zone for purposes of the (CZMA)" (Section 30008 (Supp. 1986)). The issue in this case is whether Granite Rock Company, a quarry operator that conducts limestone mining operations within the Los Padres National Forest in accordance with the Mining Act of 1872, 30 U.S.C. 22 et seq., and Forest Service regulations, 36 C.F.R. Pt. 228, is subject to the California Coastal Act's permitting requirements. The district court concluded that it is. The court of appeals reversed, holding that federal law precludes the application of state permitting requirements. 1.a. The CZMA was enacted to encourage prudent use of coastal resources through the development and implementation of state management programs for the "coastal zone" (Section 303, 16 U.S.C. 1452). Section 304(a) of the CZMA defines the "coastal zone" to include coastal waters and submerged lands extending "seaward to the outer limit of the United States territorial sea" and shorelands extending "inland from the shorelines only to the extent necessary to control shorelands, the uses of which have a direct and significant impact on the coastal waters" (16 U.S.C. 1453(1)). Section 304(a) further states (ibid.): Excluded from the coastal zone are lands the use of which is by law subject solely to the discretion of or which is held in trust by the Federal Government, its officers or agents. Department of Commerce regulations interpreting Section 304(a) require the states to exclude all federally-owned land from their coastal management programs. /1/ The CZMA authorizes the Secretary of Commerce to provide financial assistance to the states for development of their coastal zone management programs (Section 305, 16 U.S.C. 1454). The state program must be submitted for approval to the Secretary of Commerce (Section 305(h), 306(c), 16 U.S.C. 1454(h), 1455(c)), who assures that the views of the federal agencies principally affected have been adequately considered (Section 307(b), 16 U.S.C. 1456(b)). Once the state management program is approved, federal activities "affecting" the coastal zone are subject to various CZMA consistency requirements (Section 307(c), 16 U.S.C. 1456(c)). /2/ b. The California Coastal Act represents, in part, a response to the CZMA's coastal management incentives. The Coastal Act is intended to protect, enhance, and ensure orderly development of California's coastal zone resources (Coastal Act Sections 30001-30002). It specifically requires that, "(i)n addition to obtaining any other permit required by law * * * , any person wishing to perform or undertake any development in the coastal zone (other than certain facilities), shall obtain a coastal development permit" (Section 30600 (Supp. 1986)). The Act creates the California Coastal Commission and six regional coastal commissions that implement the coastal management provisions (Coastal Act Sections 30300-30305). Each local government within the coastal zone must prepare a "local coastal program" (Sections 30510-30525) which consists of the "local government's (a) land use plans, (b) zoning ordinances, (c) zoning district maps, and (d) within sensitive coastal resources areas, other implementing actions, which, when taken together, meet the requirements of" the Coastal Act at the local level (Section 30108.6 (Supp. 1986)). Once the California Coastal Commission certifies the local coastal program, the local government is responsible for issuing (or declining to issue) coastal development permits (Section 30600(d) (Supp. 1986)). The local government may issue a permit only if "the proposed development is in conformity with the certified local coastal program" (Section 30604(b) (Supp. 1986). A permit is not required for developments that lie outside the coastal zone (Section 30604(d) (Supp. 1986)). The California legislature specified that the Coastal Act "shall constitute California's coastal zone management program within the coastal zone for purposes of the (CZMA)" (Coastal Act Section 30008 (Supp. 1986)). California submitted the Coastal Act, together with other state laws and programs, to the Secretary of Commerce for CZMA review. On November 7, 1977, the Secretary of Commerce approved California's coastal zone management program. 42 Fed. Reg. 60585. See American Petroleum Institute v. Knecht, 456 F. Supp. 889, 915 (C.D. Cal. 1978), aff'd, 609 F.2d 1306 (9th Cir. 1979). 2. Granite Rock is a California corporation engaged in the business of mining chemical grade white limestone. It presently holds unpatented federal mining claims under the Mining Act of 1872, 30 U.S.C. 22 et seq., on federally owned lands within the Los Padres National Forest. J.S. App. A2. /3/ Granite Rock first proposed to develop its mining claims in 1980. The company submitted a five-year plan of operations to the Forest Service in accordance with federal regulations, set forth at 36 C.F.R. Pt. 228, governing mining activities on national forest lands (J.A. 25-34). /4/ The Forest Service consulted with state agencies, conducted an environmental assessment, and approved a modified plan of operations in 1981 (id. at 35-57). Granite Rock initiated its open pit mining operations shortly thereafter. The California Coastal Commission received notice of Granite Rock's proposed plan of operations, but did not raise timely consistency objections, under Section 307(c)(3)(A) of the CZMA, to Granite Rock's proposal. Appellant's Br. 14, n.21; J.A. 17. 3. On October 17, 1983, the California Coastal Commission advised Granite Rock that the company's mining activities occur within California's coastal zone boundary and are therefore subject to regulation under the California Coastal Act (J.A. 22-23). It instructed Granite Rock "to apply to the Coastal Commission for a coastal development permit for any development, as defined in Section 30106 of the Coastal Act, at the site undertaken after the date of this letter" (ibid.). /5/ Granite Rock immediately filed an action in the United States District Court for the Northern District of California requesting, inter alia, a declaration that the Coastal Commission has no authority to regulate Granite Rock's mining activities within the Los Padres National Forest (id. at 7-14). The district court held that Granite Rock is subject to the Coastal Act's permitting requirements (J.S. App. A11-A32). The court first concluded that the CZMA's federal lands exclusion does not prevent Coastal Commission regulation (id. at A17-A23), stating that Congress "did not mean to shield from direct state regulation purely private activity such as commercial mining operations on federal land which are not subject to ultimate federal control" (id. at A23). The court then upheld the state permitting requirements under a general preemption analysis, reasoning that states possess concurrent authority to regulate activities on the federal lands in question (id. at A23-A31). The court stated that "(a)s long as the state's permit requirement does not render plaintiff's exercise of rights under the Mining Act impossible, no impermissible conflict exists" (id. at A28). The court of appeals reversed (J.S. App. A1-A10). It stated that "even if we assume that the land in question falls within the coastal zone, the legislative history and certain provisions of the CZMA conclusively demonstrate that Congress intended the CZMA not to change the status quo with respect to the allocation of state and federal power over lands within the coastal zone" (id. at A6). Applying federal preemption principles, the court concluded that "Forest Service regulations mandate that the power to prohibit the initiation or continuation of mining in national forests for failure to abide by applicable environmental requirements lies with the Forest Service" and that "an independent state permit system to enforce state environmental standards would undermine the Forest Service's own permit authority and thus is preempted" (id. at A9). It noted that its conclusion "is bolstered by the fact that even the Forest Service is limited in the amount of regulation it may impose as a condition of mining in national forests because of the federal policy to encourage mining on federal lands" (ibid.). The California Coastal Commission appealed to this Court under 28 U.S.C. 1254(2). /6/ INTRODUCTION AND SUMMARY OF ARGUMENT The California Coastal Commission contends that Granite Rock Company -- a quarry operator conducting mining operations on federal land pursuant to a federal mining claim and in accordance with federal regulations -- is subject to the land use permitting requirements of California's coastal zone management program. We disagree. The Property Clause vests Congress with the 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, Section 3, Cl. 2). Congress has not authorized -- and, indeed, has forbidden -- the California Coastal Commission's application of state coastal management requirements to federal lands. The Coastal Commission's proposed regulation is specifically prohibited by the CZMA's federal lands exclusion. It is also inconsistent with federal land use principles and the existing programs for managing mining activities on federal lands. The CZMA directly answers the Coastal Commission's contentions. Section 304(a) of the CZMA provides that states must exclude from their coastal zone management programs "lands the use of which is by law subject solely to the discretion of * * * the Federal Government, its officers or agents". The Department of Commerce -- the expert agency charged with implementation of the CZMA -- has reasonably interpreted Section 304(a) to require that states exclude all lands "owned, leased, held in trust or whose use is otherwise by law subject solely to the discretion of the Federal Government" (15 C.F.R. 923.33(a)). Thus, California's coastal zone management program cannot be applied to federally-owned lands. Indeed, the CZMA specifically provides for state input to federal land use decisions affecting the coastal zone through the "consistency review" process (Section 307(c), 16 U.S.C. 1456(c)). This further corroborates that the California Coastal Commission has no authority to regulate directly activities -- including federally authorized mining activities -- that occur on federal lands. The CZMA's provisions reflect general principles of public land law that would preclude the Coastal Commission's proposed application of permitting requirements even in the absence of the CZMA's specific federal lands exclusion. The Property Clause gives Congress "power over the public lands 'to control their occupancy and use, to protect them from trespass and injury and to prescribe the conditions upon which others may obtain rights in them * * *.'" Kleppe v. New Mexico, 426 U.S. 529, 540 (1976) (quoting Utah Power & Light Co. v. United States, 243 U.S. 389, 405 (1917)). Congress, in turn, has given the Department of the Interior and other federal agencies broad authority to manage the federal lands. These agencies, rather than the states, are charged with primary responsibility for federal land management. Congress has recognized the value of federal-state cooperation in managing the vast public domain. It has therefore employed a variety of mechanisms to give the states a voice in federal land use determinations. For example, the Federal Land Policy and Management Act authorizes the Secretary of the Interior to develop federal land use plans, for Bureau of Land Management lands, in coordination with state and local governments (43 U.S.C. 1712(c)(9)). The Forest and Rangeland Renewable Resources Planning Act contains similar coordination provisions (16 U.S.C. 1604(a)), and, as previously mentioned, the CZMA expressly requires consistency review. Furthermore, Congress, while encouraging private mining activities on federal lands through the Mining Act of 1872, has provided a specific mechanism for accommodating state land use interests. Section 601 of the Surface Mining Control and Reclamation Act authorizes the Secretary of the Interior to review, at the request of a Governor or an affected person, whether federal lands may be unsuitable for mining operations based on certain adverse impacts on adjoining lands (30 U.S.C. 1281). In the present case, both Congress and the Forest Service have attempted to accommodate legitimate state interests. But the fact remains that federal law, rather than state law, ultimately governs the use of federal lands. Federal law -- as expressed in the CZMA, the federal land management statutes, the Mining Act of 1872, Section 601 of the Surface Mining Control and Reclamation Act, and the Forest Service regulations -- neither authorizes nor leaves room for the California Coastal Commission to apply its coastal zone management permitting requirements to mining activities occurring on national forest lands. ARGUMENT THE CALIFORNIA COASTAL COMMISSION CANNOT IMPOSE STATE LAND USE REQUIREMENTS UPON A QUARRY OPERATOR THAT CONDUCTS MINING OPERATIONS ON FEDERAL LAND A. The Coastal Zone Management Act's federal lands exclusion exempts federal mining claims from regulation under state coastal management programs The CZMA provides a direct and conclusive answer to the present case. Section 304(a) of the CZMA excludes from the state coastal zone regulation "lands the use of which is by law subject solely to the discretion of or which is held in trust by the Federal Government, its officers or agents" (16 U.S.C. 1453(1)). The Department of Commerce -- the expert agency charged with implementing the CZMA -- has concluded in its implementing regulations that Section 304(a) exlcudes federally-owned land from state regulation (15 C.F.R. 923.33(a)). There is no serious doubt that the Department's regulation is a reasonable interpretation of Section 304(a), that California has agreed to administer its state coastal management program in compliance with this regulation, and that the exclusion applies to all federally-owned lands. The CZMA accordingly prohibits the California Coastal Commission from applying its permitting requirements to Granite Rock's mining activities within the Los Padres National Forest. 1. The Commerce Department has correctly interpreted Section 304(a) of the CZMA to exclude all federally-owned lands from state coastal management program regulation. The import of Section 304(a)'s language, while not completely free from ambiguity, is fairly discernible. It provides that, if the federal government has "sole() * * * discretion" over the use of the lands in question, those lands are excluded from the state coastal management program. By its plain terms, it excludes lands that are subject to federal -- rather than state -- land use control. The exclusion must include, at a minimum, all federally-owned lands. Congress, by virtue of the Property Clause, has "'complete power'" over their use. See, e.g., Kleppe v. New Mexico, 426 U.S. 529, 540 (1976) (quoting United States v. City of San Francisco, 310 U.S. 16, 30 (1940) (footnote omitted)). /7/ The CZMA's legislative history supports that interpretation. Section 304(a)'s federal lands exclusion originated in the Senate bill's definition of the coastal zone. See S. 3507, 92d Cong., 2d Sess. Section 304(a) (1972). The accompanying Senate report explained (S. Rep. 92-753, 92d Cong., 2d Sess. 9 (1972)): The coastal zone is meant to include the non-Federal coastal waters and the non-Federal land beneath the coastal waters, and the adjacent non-Federal shorelands including the waters therein and thereunder. The report observed that, as a result of the bill's consistency requirements, "(a)ll federal agencies conducting or supporting activities in the coastal zone are required to administer their programs consistent with approved state management programs" (ibid.). It added, however, that the bill would not "extend state authority to land subject solely to the discretion of the Federal Government, such as national parks, forests and wildlife refuges, Indian reservations and defense establishments" (ibid. (emphasis added)). The Senate's federal lands exclusion was included in the conference bill. The conference report explained (H.R. Conf. Rep. 92-1544, 92d Cong., 2d Sess. 12 (1972)): The Conferees also adopted the Senate language * * * which made it clear that Federal lands are not included within a state's coastal zone. As to the use of such lands which would affect a state's coastal zone, the provisions of section 307(c) (the CZMA consistency provisions) would apply. The report added that "those lands traditionally managed by the Department of Interior or the Department of Defense, such as parks, wildlife refuges, military reservations, and other such areas covered by existing legislation, were specifically excluded from the coverage of the bill" (id. at 13). Furthermore, during the debate on the conference bill, Rep. Mosher, a member of the conference committee, stated that the bill "in no way affects the jurisdictional responsibilities of the Environmental Protection Agency, any other Federal agency, or the Department of the Interior in regard to the administration of Federal lands, since the conferees have specifically eliminated those land areas from the definition of coastal zone" (118 Cong. Rec. 35548 (1972)). /8/ Thus, the legislative history of Section 304(a) fully supports -- indeed, probably compels -- the Commerce Department's interpretation of the federal lands exclusion. That interpretation finds further support in an informal opinion from the Justice Department's Office of Legal Counsel (OLC), issued in 1976 (prior to the promulgation of the regulations), at the request of the General Counsel of the National Oceanic and Atmospheric Administration (NOAA) (J.A. 85-95). /9/ The OLC opinion reviews the language and legislative history of Section 304(a) in light of established principles of federal land law, concluding (J.A. 94): In short, the plain language of the statute appears to exclude all lands owned by the United States, since the United States has full power over the use of such lands and "sole discretion" with respect to such use. This conclusion is supported by the legislative history of the Act. Nowhere is there any suggestion that Congress intended to exclude some federal land from the Coastal Zone, and hence from State regulation, while including other such land within the Zone. Finally, the Commerce Department's interpretation is consistent with the provision's apparent purpose -- to preserve the independence of federal land use management decisions. /10/ Section 304(a) protects the federal government's established prerogatives over federally-owned lands. See, e.g., Kleppe v. New Mexico, 426 U.S. 529, 539-540 (1976). "'A different rule,' as was said in Camfield v. United States, (167 U.S. 518, 526 (1897)), 'would place the public domain of the United States completely at the mercy of state legislation.'" Utah Power & Light Co. v. United States, 243 U.S. 389, 405 (1917). The Commerce Department's interpretation is, moreover, strongly supported by this Court's opinion in Secretary of the Interior v. California, 464 U.S. 312 (1984). The Court, in the course of describing the CZMA, gave Section 304(a) its natural reading, stating that the federal lands exclusion would "reach federal parks, military installations, Indian reservations, and other federal lands that would lie within the coastal zone but for the fact of federal ownership" (464 U.S. at 323). In sum, the Commerce Department's interpretation of the CZMA's federal lands exclusion is consistent with the plain language of Section 304(a). To the extent that the statutory language is ambiguous, the agency's interpretation is reasonable and entitled to deference from the courts. /11/ 2. The district court, at the California Coastal Commission's urging, concluded that the CZMA's federal lands exclusion should not apply in this case because federal lands subject to mining claims are not "lands the use of which is by law subject solely to the discretion of * * * the Federal Government" (16 U.S.C. 1453(1)). See J.S. App. A17-A23; see also J.A. 22-23. The court of appeals did not reach that question. We note, in the event that the issue arises here, that the Coastal Commission's position is incorrect. /12/ The scope of the federal lands exclusion has already been conclusively determined by the Commerce Department's unambiguous and authoritative regulatory construction, which the district court failed even to acknowledge. The Commerce Department has excluded, without qualification, all federally owned lands (15 C.F.R. 923-33), the CZMA requires California to comply with that regulation (16 U.S.C. 1455(c)(1)), and California has previously agreed that "all lands owned by the Federal government are excluded from the California Coastal zone" (J.A. 106). California must adhere to the Commerce Department's settled interpretation of the federal lands exclusion. In all events, California's competing interpretation is inconsistent with the language, legislative history, and purpose of Section 304(a). Congress, in the exercise of its "complete power" over federal land use (see page 11, supra), may open federal lands to private mining, as it did in the Mining Act of 1872. That action, prescribing an allowable land use, does not curtail the federal government's "sole() * * * discretion" (16 U.S.C. 1453(1)) over the lands in question. The government retains sole power to dictate the land's use. See United States v. Coleman, 390 U.S. 599, 602 (1968). ("Under the mining laws Congress has made public lands available to people for the purpose of mining valuable mineral deposits and not for other purpose." (footnote omitted)). A person who acquires a mining claim receives certain rights of possession (30 U.S.C. 26), but neither he nor any other entity shares the government's discretion to prescribe how the land shall be used. The claimant is entitled to use the property only for the purposes specified by Congress, and he is divested of his rights if he fails to take necessary steps toward those ends. See 30 U.S.C. 28; 43 U.S.C. 1744(a); see generally 2 Rocky Mountain Mineral Law Foundation, American Law of Mining chs. 45-46 (2d ed 1985). Thus, the plain language of Section 304(a) supports the conclusion that the federal lands exclusion remains applicable to lands subject to a mining claim. /13/ The legislative history of Section 304(a) indicates that the federal lands exclusion extends, without qualification, to all federally-owned lands. As the OLC opinion notes (J.A. 94), "Nowhere is there any suggestion that Congress intended to exclude some federal land from the Coastal Zone, and hence from State regulation, while including other such land within the Zone." The legislative reports contain no suggestion that the federal lands exclusion dissipates if federally-owned lands are opened to non-federal development. They focus solely on whether the acreage in question is "Federal" or "non-Federal" land. Ses H.R. Conf. Rep. 92-1544, supra, at 12; S. Rep. 92-753, supra, at 9. See also 118 Cong. Rec. 35548 (1972) (the bill does not affect the "administration of Federal lands"). The congressional committees are, of course, familiar with federal lands terminology. They undoubtedly understood that federally-owned lands subject to mining claims are "federal" lands. See United States v. Fickett, 205 F. 134 (9th Cir. 1913); 1 Rocky Mountain Mineral Law Foundation, American Law of Mining Section 3.02 (2d ed. 1985). The purposes of Section 304(a) are best served by exclusion of all federally owned lands, whether or not subject to mining claims. As previously explained (pages 13-14, supra), the federal lands exclusion is intended to preserve the independence of federal land use management decisions. Federal management of public domain, multiple-use lands such as those held by the Forest Service and the Bureau of Land Management, is, in large part, a determination of where, and under what conditions, private members of the general public will be allowed to use those lands. These management decisions may result in limited property interests such as leaseholds, easements, or, as in this case, mining claims. /14/ The creation of limited private rights in the use of public domain lands is a normal and expected result of federal management of those lands. If the creation of such private rights negated the CZMA's federal land exclusion and subjected the affected federal lands to state management and control, the independence of federal land management, as well as the need for any CZMA consistency review, would be effectively eliminated. /15/ Furthermore, the application of California's Coastal Act permitting requirements would, at best, simply duplicate other regulatory requirements. As the Coastal Commission repeatedly concedes (Br. 15, 38, 45), it cannot apply the Act to prohibit mining on federal lands; instead, it seeks to impose its permitting requirements as "an administrative vehicle for attaching non-prohibitory environmental conditions for mining" (id. at 38). /16/ But the federal regulatory regime already protects state coastal management and environmental interests. In our view, the CZMA's consistency requirements apply fully to the Forest Service's approval of a mine operator's plan of operations affecting a land or water use of California's coastal zone. See 15 C.F.R. 930.51. California is free to invoke this congressionally authorized mechanism to protect its legitimate interests. The imposition of a separate state regulatory regime, with its attendant expenses and delays, would likely hamper the congressional goal of encouraging mining on federal lands. Thus, we submit that the CZMA's federal lands exclusion applies with dispositive force in this case and precludes the California Coastal Commission from applying its coastal management permit requirements to mining activities conducted on federal lands. B. Even in the absence of the CZMA's federal lands exclusion, the California Coastal Commission could not apply its coastal management permitting requirements to federally authorized activities conducted on federal lands The California Coastal Commission does not address the CZMA's federal lands exclusion. Instead, it characterizes the issue here as whether ordinary federal preemption principles require displacement of state "environmental regulation" (Br. i, 18). But this is not an ordinary preemption case. And the issue is not simply whether the state may impose pollution controls. The question here is whether federally owned land is subject to local land use planning (see note 16, supra). The Property Clause vests Congress with the power to determine appropriate uses of federal lands. Congress, exercising this plenary power, has enacted both comprehensive federal land use regimes and specific laws governing mining that provide mechanisms for federal-state consultation and coordination. Accordingly, even if the CZMA's federal lands exclusion and consistency review provisions were ignored, federal law would preclude direct application of local land use permitting requirements. 1. Congress, through the Property Clause, "exercises the powers both of a proprietor and of a legislature over the public domain." Kleppe v. New Mexico, 426 U.S. at 540. It has "power over the public lands 'to control their occupancy and use, to protect them from trespass and injury and to prescribe the conditions upon which others may obtain rights in them * * * .'" Ibid. (quoting Utah Power & Light v. United States, 243 U.S. at 405). This Court has "repeatedly observed that '(t)he power over the public land thus entrusted to Congress is without limitations.'" Kleppe, 426 U.S. at 539 (quoting San Francisco, 310 U.S. at 29). The Property Clause "permit(s) 'an exercise of the complete power which Congress has over particular public property * * * .'" Kleppe, 426 U.S. at 540 (quoting San Francisco, 310 U.S. at 30). The federal government's legislative and proprietary power over federal lands necessarily limits the states' authority to regulate those lands. /17/ This Court has not given precise definition to the preemptive qualities of the Property Clause. However, it is clear that federal lands are not "subject to the jurisdiction, powers and laws of the State in the same way and to the same extent as are similar lands of others." Utah Power & Light Co., 243 U.S. at 404. State law "does not extend to any matter that is not consistent with full power in the United States to protect its lands, to control their use, and to prescribe in what manner others may acquire rights in them" (ibid.). /18/ It is not necessary in this case to determine whether the Property Clause, of its own force, precludes application of state land use regimes to federal lands. The Clause, "in broad terms, gives Congress the power to determine what are 'needful' rules 'respecting' the public lands." Kleppe, 426 U.S. at 539. Congress, in response, has enacted federal land management statutes (in addition to specific mining laws) that specify the state role in the federal land use planning process. See Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1701 et seq.; National Forest Management Act of 1976 (NFMA) and Forest and Rangeland Renewable Resources Planning Act of 1974 (FRRRPA), 16 U.S.C. 1600 et seq. These statutes, like the CZMA (see pages 11-18, supra), demonstrate that the federal government, rather than the states, controls land use decision-making over the public domain. The FLPMA establishes a federal land use management program for "public lands" (43 U.S.C. 1702(e)) within the jurisdiction of the Department of the Interior's Bureau of Land Management (BLM). Section 202(a) of the FLPMA authorizes the Secretary of the Interior to "develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands" (43 U.S.C. 1712(a)). It specifically directs the Secretary, in developing these plans, to coordinate federal planning and management activities with the programs of state and local government, to keep apprised of state and local plans and to provide meaningful involvement for state and local officials (43 U.S.C. 1712(c)(9)). Section 202 further provides (ibid.): Land use plans of the Secretary under this section shall be consistent with State and local plans to the maximum extend he finds consistent with Federal law and the purposes of this Act. Thus, the FLPMA specifically defines the state's role in the authorized federal land use planning process. The federal government retains ultimate control over federal land, but the policies of local land use plans will be reflected in federal plans to the extent that it is consistent with federal objectives to do so. /19/ The National Forest System is subject to a similar federal land management scheme. At the time of the FLPMA's enactment, Congress, through the FRRRPA, had already established a comprehensive land use planning regime for these lands. /20/ Congress therefore concluded that it was unnecessary to extend the FLPMA's land use planning provisions to National Forest System lands. See 122 Cong. Rec. 23448-23450 (1976). Congress, instead, supplemented and revised the FRRRPA through the NFMA. The NFMA/FRRRPA regime, like the FLPMA scheme, provides a well-defined role for the states in federal land use planning. Section 6(a) directs the Secretary of Agriculture to "develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System, coordinated with the land and resource management planning processes of State and local governments and other Federal agencies" (16 U.S.C. 1604(a)). Section 7 instructs the Secretary to share the information that he develops with the states so that they may "plan() for the protection, use, and management of renewable resources on non-Federal land" (16 U.S.C. 1605). Thus, Congress again designed a comprehensive federal land use program that provides for federal-state cooperation. It again recognized the states' right to plan the use of non-Federal lands, but limited the states to an advisory role in federal land management decisions. /21/ Congress, through the FLPMA and the NFMA/FRRRPA regimes, and the federal land management agencies, through congressionally authorized regulations, /22/ verify what is implicit in the Property Clause -- federal land management can justly be characterized as a field "in which the 'federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.'" Hillsborough County v. Automated Medical Labs., Inc., No. 83-1925 (June 3, 1985), slip op. 5 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). The use of federal lands is "'intimately blended and intertwined with responsibilities of the national government'" (Hillsborough County, slip op. 11 (quoting Hines v. Davidowitz, 312 U.S. 52, 66 (1941)). The states' role is correspondingly limited. See Utah Power & Light Co., 243 U.S. at 404-405. /23/ The presence or absence of express congressional authorization of direct state land use control takes on special significance in this context. State land use requirements have no application to federal lands "save as they may have been adopted or made applicable by Congress" (id. at 405). 2. The Coastal Commission urges that the Mining Act of 1872 authorizes application of its land use permitting requirements. We disagree. The Act, designed to encourage mineral development, /24/ is based on a fundamental premise that "(e)xcept as otherwise provided, all valuable mineral deposits in lands belonging to the United States * * * shall be free and open to exploration and purchase * * * " (30 U.S.C. 22). The Act adopts state law in three basic areas. First, Section 26 provides that state law, to the extent that it is consistent with federal law, governs a miners' "possessory title" (30 U.S.C. 26). Second, Section 51 provides that state law shall govern acquisition of water (30 U.S.C. 51). And third, Section 43 states that "(a)s a condition of sale, (state law) may provide rules for working mines, involving easements, drainage, and other necessary means to their complete development, and those conditions shall be fully expressed in the patent" (30 U.S.C. 43). Plainly, Sections 26 and 51 do not implicate land use concerns. /25/ We therefore turn our attention to Section 43. Section 43 permits the states, in the absence of federal legislation, to impose necessary easements and other interests for the development of patented working mines in the district. See, e.g., Amador Queen Mining Co. v. Dewitt, 73 Cal. 482 (1887). The western states generally implemented this legislation by "prescribing methods of obtaining easements and rights of way for mining purposes and providing for condemnation proceedings * * * ." 1 C. Lindley, Mines Section 252 (3d ed. 1914). See, e.g., Baillie v. Larson, 138 F. 177 (D. Ida. 1905). Notably, Section 43 applies only to patented lands that have been severed from the public domain; thus, it does not expressly address the states' power to prescribe rules while the lands remain in federal ownership. But even if Section 43 permits state regulation of mining claims, it has no application in this case. The historical evidence indicates that Section 43 serves the limited purpose of permitting the state to burden one miner's operations for the purpose of allowing a neighboring miner fully to develop his mine. Typically, when one miner located a valuable lode discovery, other miners would soon locate adjacent claims. See, e.g., Calhoun Gold Mining Co. v. Ajax Gold Mining Co., 182 U.S. 499, 502 (1901). Section 43 was apparently designed to permit state designation of easements regulating access to claims, transportation or ore, and adits for drainage, allowing each miner a full opportunity to develop his mine (see 182 U.S. at 509). Viewed in this light, Section 43 plainly does not authorize the Coastal Commission's proposed general land use regulation. Section 43 permits the states to regulate the competing interests of miners in the development of their respective mines; it does not authorize the states to conduct wholesale regulation of mining on federal lands as part of a regional or local land use management scheme. /26/ Absent a clearer statement of congressional intent or an historical record of interpretation supporting general state land use power over mining claims, Section 43 cannot be read as a congressional adoption or incorporation of such authority. /27/ In short, the Mining Act of 1872 does not address conflicts between mining activities on federal lands and state land use planning. However, recent mining legislation does deal directly with this issue. Section 601 of the Surface Mining Control and Reclamation Act authorizes the Secretary of the Interior to review whether an area "may be unsuitable for mining operations" because of "an adverse impact on lands used primarily for residential or related purposes" (30 U.S.C. 1281(a) and (b)). The Governor of a state or "(a)ny person having an interest which is or may be adversely affected" may initiate the review process (30 U.S.C. 1281(c)). If the Secretary determines that the benefits resulting from a designation outweigh the benefits of mineral development, he may either withdraw the area from mineral entry or limit mining operations (30 U.S.C. 1281(f)). Valid existing rights, however, are not to be affected (30 U.S.C. 1281(d)). Thus, Congress has recognized that there may be conflicts between mineral development on federal lands and other activities on non-federal lands. Congress, in turn, has provided a federal solution. The creation of a federal process for resolving the conflict demonstrates that federal law, rather than state law, controls land use decisions affecting mining on federal lands. Furthermore, it demonstrates once again that Congress is sensitive to state interests in the use and management of the public domain. 3. A consistent theme runs throughout the law governing management of federal lands: the federal government has sole authority to determine the appropriate use of the public domain. Congress has provided that federal land managers shall consult and coordinate activities with the states. But the federal government ultimately controls federal land use decisions. There is simply no place for application of the Coastal Commission's land use planning requirements to activities occurring on federal property. The Coastal Commission will be afforded substantial participation in any approval of a future plan of operations for Granite Rock's mining activities on Pico Blanco. The Forest Service has already agreed to prepare an Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act, 42 U.S.C. 4321 et seq., prior to approving any new plan of operations that Granite Rock might submit. The Forest Service, in accordance with Council on Environmental Quality regulations that implement NEPA (40 C.F.R. 1503.1(a)(2)), will solicit comments from affected state agencies in the course of preparing such a statement. Additionally, the Forest Service's approval of a plan of operations is subject to the consistency requirements of Section 307(c)(3)(A) of the CZMA to the extent that the plan affects a land or water use in the coastal zone. The State of California and the Coastal Commission thus have ample opportunity both to obtain information about, and to control, the environmental consequences of Granite Rock's mining activities. /28/ In sum, Congress has ensured that state land use interests and concerns receive careful attention within the federal land management framework. But it has also retained the federal government's ultimate control over the use of the public domain. The California Coastal Commission has no authority to apply state land use permitting requirements to Granite Rock's mining activities occurring on federal lands. CONCLUSION The judgment of the court of appeals should be affirmed. /29/ Respectfully submitted, CHARLES FRIED Solicitor General F. HENRY HABICHT II Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General JEFFREY P. MINEAR Assistant to the Solicitor General PETER R. STEENLAND, JR. ANNE S. ALMY Attorneys AUGUST 1986 /1/ The pertinent regulation provides (15 C.F.R. 923.33(a)): Requirement. States must exclude from their coastal management zone those lands owned, leased, held in trust or whose use is otherwise by law subject solely to the discretion of the Federal Government, its officers or agents. /2/ Section 307(c)(1) of the CZMA specifically provides that federal agencies "conducting or supporting activities directly affecting the coastal zone shall conduct or support those activities in a manner which is, to the maximum extent practicable, consistent with approved state management programs" (16 U.S.C. 1456(c)(1)). Department of Commerce regulations implementing this provision require federal agencies to prepare a "consistency determination" identifying the direct effects of the federal activity and explaining how the agency has tailored its activity to achieve consistency with the state program. See 15 C.F.R. Pt. 930. Section 307(c)(3)(A) imposes consistency requirements on most federal licensees and permittees. Applicants for federal licenses or permits are required to supply consistency certifications for any "activity affecting land or water uses in the coastal zone" (16 U.S.C. 1456(c)(3)(A)). The state is then given an opportunity to concur in the certification. If the appropriate state authorities decline to concur, the federal agency from whom the license or permit is sought must reject the application (ibid.). The state's veto can be overridden by the Secretary of Commerce, however, if the Secretary finds that the applicant's proposed activity is consistent with the CZMA or is otherwise necessary to support national security (ibid.). /3/ The Mining Act states that, "(e)xcept as otherwise provided, all valuable mineral deposits in lands belonging to the United States * * * 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" (30 U.S.C. 22). Persons who locate valuable mineral interests and properly stake their claims "shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations" (30 U.S.C. 26). A mining claim is a vested possessory right comparable to an easement. Black v. Elkhorn Mining Co., 163 U.S. 445, 450 (1896). The holder of a perfected mining claim may obtain a federal patent to the land by verifying his location of a valuable mining claim, complying with various notice and recording requirements, and paying required fees. See 30 U.S.C. 29; 43 C.F.R. Pt. 3860. The federal government retains broad power over lands subject to mining claims. See United States v. Locke, No. 83-1394 (Apr. 1, 1985), slip op. 20. For example, the United States retains the right to protect the land from trespass or waste. United States v. Nogueira, 403 F.2d 816, 824 (9th Cir. 1968); Teller v. United States, 113 F. 273, 280-281 (8th Cir. 1901). The United States also retains extensive authority to regulate the activity of the mining claimant on its unpatented claims. United States v. Goldfield Deep Mines Co., 644 F.2d 1307 (9th Cir. 1981); United States v. Weiss, 642 F.2d 296 (9th Cir. 1981). Finally, lands subject to an unpatented mining claim "remain open for public use except for the restrictions imposed where actual mining or prospecting operations are taking place." United States v. Curtis-Nevada Mines, Inc., 611 F.2d 1277, 1285 (9th Cir. 1980) (footnote omitted). /4/ The Forest Service promulgated its mining regulations as an exercise of its general authority for management of the national forests. See Organic Administration Act of 1897, 16 U.S.C. 478, 551; see also 30 U.S.C. 612. The regulations, which are intended to "minimize adverse environmental impacts on National Forest System surface resources" (36 C.F.R. 228.1), require that holders of unpatented mining claims submit a mining plan describing the precise scope of proposed operations. 36 C.F.R. 228.4-228.5. The regulations also specify environmental quality, safety, restoration, fire prevention, access, and bonding requirements. See 36 C.F.R. 228.8-228.13. The regulations specifically require compliance with federal and state air quality, water quality, solid waste disposal, and fire prevention standards. 36 C.F.R. 228.8, 228.11. /5/ The Coastal Commission also instructed Granite Rock "to prepare and submit for Coastal Commission review and approval a certification of consistency" in accordance with Section 307(c)(3) of the CZMA. J.A. 22-23. The Commission has since conceded that its failure to raise timely consistency objections resulted in a waiver of its rights under the CZMA consistency provisions. Appellants' Br. 14, n.21; J.A. 17. /6/ We suggest that this Court does not have appellate jurisdiction under 28 U.S.C. 1254(2). The court of appeals did not declare any portion of the California Coastal Act "invalid as repugnant to the Constitution, treaties or laws of the United States" (ibid.). Instead, "an exercise of authority under state law (was) invalidated without reference to the state statute" (Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 247 (1984)). See Minnesota v. Alexander, 430 U.S. 977 (1977) (dismissing, for want of jurisdiction, an appeal from a decision holding that Army Corps of Engineers dredging projects are exempt from state permitting authority); see also Hancock v. Train, 426 U.S. 167 (1976) (reviewing an invalidation of state permitting authority by writ of certiorari). And contrary to the Coastal Commission's contentions (Br. 3-4), an invalidation of state law was not the "necessary predicate" for the court's ruling. The California legislature apparently structured its Coastal Act to extend state jurisdiction over federal lands only to the extent that federal law would permit. See Coastal Act Section 30008 ("within federal lands excluded from the coastal zone * * * the State of California shall, consistent with applicable federal and state laws, continue to exercise the full range of powers, rights, and privileges it now possesses or which may be granted") (emphasis added). Thus, the court of appeals' conclusion that federal law precludes state regulation does not invalidate the state statute. The Court may, of course, treat the appeal as a petition for certiorari. 28 U.S.C. 2103. We note another potential jurisdictional defect in this case. Granite Rock's five-year plan of operations expired on February 26, 1986 (J.A. 54), and the company has not submitted a new plan for Forest Service review. Once a plan is submitted, Forest Service approval is neither automatic nor immediate; moreover, the California Coastal Commission may object, under the CZMA's consistency provisions, to the proposed plan. Hence, the past dispute in this case is arguably moot and any future dispute is arguably unripe. On the other hand, this Court could conclude that the questions presented by the parties should be resolved now because Granite Rock seeks declaratory relief, the issue may recur, and its resolution would materially aid Granite Rock in planning its future development activities. See Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm'n, 461 U.S. 190, 200-201 (1983). The Coastal Commission briefly discussed the mootness question (Br. 12 n.17). Should the Court desire further guidance on this question, we suggest that it order supplemental briefing by the parties and the United States. /7/ "True, for many purposes a State has civil and criminal jurisdiction over lands within its limits belonging to the United States, but this jurisdiction does not extend to any matter that is not consistent with full power in the United States to protect its lands, to control their use and to prescribe in what manner others may acquire rights in them." Utah Power & Light Co. v. United States, 243 U.S. 389, 404 (1917) (emphasis added). /8/ The repeated observation by the conferees that Section 304(a) would exclude "federal lands" is significant. The term "federal lands" is generally used to describe all lands to which the United States holds title. See, e.g., Alaska National Interest Lands Conservation Act, 16 U.S.C. 3102(2); Surface Mining Control and Reclamation Act, 30 U.S.C. 1291(4). See also U.S. Dep't of the Interior Bureau of Land Management, Public Land Statistics 1985, at 109; 1 Rocky Mountain Mineral Law Foundation, American Law of Mining Section 3.02(1) (2d ed. 1985). Thus, the conferees presumably intended that Section 304(a) would exclude, at a minimum, all federally-owned lands. The Department of Commerce has concluded that Section 304(a)'s exclusion of lands "the use of which is by law subject solely to the discretion" of the federal government, ecompasses lands leased to the federal government as well. See 15 C.F.R. 923.33. /9/ Congress has provided that executive agencies may request the Attorney General to render an opinion "on questions of law" arising in the administration of their departments (28 U.S.C. 512). The Attorney General has delegated authority to provide informal opinions to OLC (28 C.F.R. 0.25.). In this instance, the General Cousnel of NOAA sought guidance whether the federal lands exclusion applied to all federally-owned lands or only to those lands subject to federal legislative jurisdiction pursuant to Article I, Section 8 of the Constitution. See J.A. 86. /10/ As the OLC opinion notes (J.A. 93-94), Section 304(a)'s language apparently originated in a Senate bill designed to encourage national land use planning. See S. 3354, 91st Cong., 2d Sess. Section 305(b)(1)(A) (1970), reprinted in S. Rep. 91-1435, 91st Cong., 2d Sess. 10 (1970). Like the CZMA, that bill specified as a requirement for federal funding, that state land use plans exclude "lands the use of which is by law subject solely to the discretion of or which is held in trust by the Federal Government, its officers or agents" (ibid.). The Senate report explained (id. at 38-39): Federal lands and Federal trust-Indian lands are excluded in order that the Federal Government's independence in the management of its lands will not be compromised. The Committee acknowledges the need for improved Federal land use policies * * * but feels that the comprehensive substantive planning responsibilities of the Federal Government with respect to Federal lands should be considered spearately from the present legislation, in which the primary substantive responsibilities are vested in State agencies. The Senate bill did not pass. Congress, however, ultimately did address federal land management through the Federal Lad Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1701, et seq., the National Forest Management Act of 1976, and the Forest and Rangeland Renewable Resources Planning Act of 1974, 16 U.S.C. 1600 et seq. See pages 21-25, infra. /11/ See, e.g., Japan Whaling Ass'n v. American Cetacean Society, No. 85-954 (June 30, 1986), slip op. 11; Young v. Community Nutrition Institute, No. 85-664 (June 17, 1986), slip op. 5-7; FDIC v. Philadelphia Gear Corp., No. 84-1972 (May 27, 1986), slip op. 13; United States v. Riverside Bayview Homes, Inc., No. 84-701 (Dec. 4, 1985), slip op. 9-10; Chemical Manufacturers Ass'n v. NRDC, No. 83-1013 (Feb. 27, 1985), slip op. 9-10; Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 843 (1984). /12/ The California Coastal Commission recently subscribed to its novel interpretation of Section 304(a) in approving the Local Coastal Program for the Big Sur Coast of Monterey County. That local coastal program states: As provided by the Federal Coastal Zone Management Act of 1972 (CZMA), lands subject to exclusive federal jurisdiction, such as the Naval Facility at Pt. Sur, are not subject to Coastal Commission or County jurisdiction. However, when federally owned lands are opened to non-federal development, such developments are subject to coastal permit requirements. Accordingly, the land use designations shown for federal lands are for the purpose of regulating future non-federal development, if any. Federal projects on excluded lands will be addressed by the federal consistency process as provided by the CZMA. Big Sur Coast, Land Use Plan, Local Coastal Program, Monterey County, California 81 (approved April 10, 1986). This plan plainly departs from the Commerce Department's regulations and the Coastal Commission's prior representations that "all lands owned by the Federal government are excluded from the California coastal zone" (J.A. 106). It has not been submitted to the Department of Commerce for approval as an amendment to the California Coastal Zone Management program. See 16 U.S.C. 1455(g); 15 C.F.R. 923.80. The Coastal Commission's unilateral redefinition of the federal lands exclusion is inappropriate in light of the CZMA's requirement that state programs comply "with rules and regulations promulgated by the Secretary" (16 U.S.C. 1455(c)(1)). The CZMA cannot function effectively if the states, upon program approval, engage in creative reinterpretation of the CZMA's basic terms. /13/ Congress has authorized a variety of other possessory interests in federal lands, including oil and gas leases issued pursuant to the Mineral Leasing Act, 30 U.S.C. 181 et seq., term permits for public recreation facilities in National Forests issued pursuant to 16 U.S.C. 497, and permanent rights of way across federal lands that are available under a variety of statutes. See, e.g., Ventura County v. Gulf Oil Corp. 601 F.2d 1080 (9th Cir. 1979), aff'd, 445 U.S. 947 (1980); Union Oil Co. v. Morton, 512 F.2d 743 (9th Cir. 1975) (oil and gas leases); Wilson v. Block, 708 F.2d 735, 756-760 (D.C. Cir. 1983) (recreation facility permit); Wilderness Society v. Morton, 479 F.2d 842, 853-854 (D.C. Cir. 1973) (pipeline right-of-way). Some of these possessory rights are property within the meaning of the Fifth Amendment. But in each case, the federal government retains title in fee to the underlying land, the right to restrict the grantee's use of the property to the limitations and purposes of the grant, and the right to manage the property for other purposes not inconsistent with the granted rights. See United States v. Curtis-Nevada Mines, Inc., 611 F.2d 1277, 1285 (9th Cir. 1980); see also United States v. Gates of the Mountains Lakeshore Homes, Inc., 732 F.2d 1411 (9th Cir. 1984). In each case, the government retains sole discretion over ultimate land use. /14/ See note 13, supra. The federal management action may also result in permits or licenses to use federal property that do not rise to the status of property rights but are nevertheless subject to revocation by the federal government only if certain procedural guarantees are respected. See, e.g., 5 U.S.C. 558(c); Holland Livestock Ranch v. United States, 655 F.2d 1002 (9th Cir. 1981). Cf. United States v. Fuller, 409 U.S. 488 (1973). Or the result may be the creation of contractual rights to take or harvest the resources of the public domain. See 16 U.S.C. 472a (permitting the sale of "trees, portions of trees, or forest products located on National Forest System lands"). /15/ Congress has expressly recognized the national interest in encouraging mining activities. See Mining and Mineral Policy Act of 1970, 30 U.S.C. 21a; see also FLPMA, 43 U.S.C. 1701(a)(12); National Materials and Minerals Policy, Research, and Development Act, 30 U.S.C. 1601 et seq. Federal lands must be managed in light of the competing federal policies of mineral development and environmental protection. The federal government, rather than an individual state, should strike the balance between potentially conflicting national goals. /16/ Although the Coastal Commission disclaims any intention to prohibit mining, it presumably would refuse to issue a permit -- and thereby impose a mining prohibition -- if Granite Rock failed to comply with its "non-prohibitory environmental conditions." Thus, the Commission would exercise what are, in effect, prohibitory powers. See Hancock v. Train, 426 U.S. 167, 180 (1976). Notably, it is far from clear that a coastal development permit is either needed or can function effectively as an "administrative vehicle." A coastal development permit is issued "(i)n addition to * * * any other permit required by law" (Coastal Act Section 30600) and is issued only if "the proposed development is in conformity with the certified local coastal program" (Section 30604(b)). Hence, a coastal development permit has the singular purpose of assuring consistency with local coastal land-use plans and is unmistakably a land-use permit. The California courts have repeatedly stated that a coastal development permit is a land-use permit and that judicial review of the permitting decisions is pursuant to the state law standards for review of adjudicatory land-use decisions. See, e.g., Liberty v. California Coastal Comm'n, 113 Cal. App. 3d 491, 498, 170 Cal. Rptr. 247, 251 (1980) (parking regulation); Patterson v. Central Coast Regional Coastal Zone Conservation Comm'n, 58 Cal. App. 3d 833, 130 Cal. Rptr. 169 (1976) (subdivision requirements). See also Rea Enterprises v. California Coastal Zone Conservation Comm'n, 52 Cal. App. 3d 596, 617-618 n.4, 125 Cal. Rptr. 201, 215-216 n.4 (1975) (Ashby, J., dissenting) (residential construction). /17/ See, e.g., Hancock v. Train, 426 U.S. 167, 179 (1976) ("where 'Congress does not affirmatively declare its instrumentalities or property subject to regulation,' 'the federal function must be left free'") (quoting Mayo v. United States, 319 U.S. 441, 447, 448 (1943) (footnote omitted)). /18/ The Property Clause plainly forbids the states from authorizing the use of unoccupied federal lands. "(T)he settled course of legislation, congressional and state, and repeated decisoin of this court have gone upon the theory that the power of Congress is exclusive and that only through its exercise in some form can rights in lands belonging to the United States be acquired." Utah Power & Light Co., 243 U.S. at 404. The degree to which the Property Clause correspondingly limits the states' power to restrict the use of federal lands, however, has never been definitively settled. This Court suggested in Omaechevarria v. Idaho, 246 U.S. 343 (1918), that states may have power to restrict incidentally private uses of federal land where Congress has not spoken and the purpose of the regulation is otherwise within the legitimate powers of the state. It upheld an Idaho statute that prohibited grazing sheep on public lands that had been used for grazing cattle, emphasizing that the federal government had not actively managed the land, that the statute did not attempt to grant a right to use the lands, and that the state provision was "enacted primarily to prevent breaches of the peace." Id. at 352. /19/ The legislative history of Section 202 demonstrates that Congress intended to preserve exclusive federal control over federal land use decisions. The Conference Report states (H.R. Rep. 94-1724, 94th Cong., 2d Sess. 58 (1976)): The conferees adopted a consolidation of the Senate and House provisions for coordination of BLM land use planning with Federal, State, local governments, and Indian tribes, with revisions making clear that the ultimate decision as to determining the extent of feasible consistency between BLM plans and such other plans rests with the Secretary of the Interior. This affirmed the need to maintain the integrity of governing Federal laws and Congressional policies. See also H.R. Rep. 94-1163, 94th Cong., 2d Sess. 5, 7 (1976); S. Rep. 94-583, 94th Cong., 1st Sess. 45 (1975). FLPMA, by contrast, does require that federal land use plans comply with state "pollution control laws" (43 U.S.C. 1712(c)(8)). And FLPMA provides that federally granted rights-of-way shall "require compliance with State standards for public health and safety, environmental protection, and siting, construction, operation, and maintenance of or for rights-of-way for similar purposes if those standards are more stringent than applicable Federal standards" (43 U.S.C. 1765(a) (emphasis added)). Thus, when Congress wished to subject federal lands to state law, it made that intention manifest. Likewise the Department of Agriculture and the Department of the Inteior both expressed their understanding that Section 202's coordination provisions were intended to provide coordination between federal land management plans on federal lands and state land management programs on non-federal lands. See S. Rep. 94-583, supra at 100, 103. Finally, we note that Section 204 of FLPMA gives the Secretary of the Interior specific authority to withdraw lands from location under the mining laws. 43 U.S.C. 1714. /20/ See 16 U.S.C. 1604. Indeed, it provided a model for FLPMA's land use planning provisions. See H.R. Rep. 94-1163, supra, at 5. The FRRRPA, in turn, grew out of previous statutes providing for federal management of national forest lands. See, e.g., Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. 528 et seq. See also S. Rep. 93-686, 93d Cong., 2d Sess. 2-3 (1974). As the Department of Agriculture explained, "Land use and resource planning are, of course, integral to the management of the National Forest System and have long been a routine component of National Forest System administration" (id. at 27). /21/ The legislative history, repeatedly emphasizing the Forest Service's responsibility for comprehensive land management planning, fully supports this interpretation. See, e.g., H.R. Rep. 94-1735, 94th Cong., 2d Sess. 19 (1976) (NFMA); H.R. Rep. 94-1478, 94th Cong., 2d Sess., Pt. 1, at 10 (1976) (NFMA); S. Rep. 94-893, 94th Cong., 2d Sess. 34-35 (1976) (NFMA); H.R. Rep. 93-1163, supra, at 2-3 (FRRRPA); S. Rep. 93-686, supra, at 5 (FRRRPA). Although the legislative history acknowledges the states' responsibility for land use planning on non-federal lands (id. at 13), it nowhere suggests that states would have land use planning authority over federal lands. /22/ Both the FLPMA and the NFMA vest substantial discretion in Executive Branch agencies to develop and refine federal land use policy. These agencies have given further clarification to the role of state law in federal land management programs. See 43 C.F.R. Pt. 1600 (BLM); 36 C.F.R. Pt. 219 (Forest Service). The land use planning process specifically considers whether particular lands are suitable for mining activities. See 43 C.F.R. 1610.7-1; 36 C.F.R. 219.22. The BLM and the Forest Service have also promulgated regulations governing specific operations -- such as private mining -- on federal lands. See, e.g., 43 C.F.R. Pt. 3809 (BLM regulations governing surface management of mining activities on public lands); 36 C.F.R. Part 228 (Forest Service regulations governing national forest lands). These regulations, responsive to the congressional goal of federal-state cooperation, permit joint administration and enforcement of environmental requirements (see, e.g., 43 C.F.R. 3809.3-1(c)) and frequently require that mining activities be conducted in compliance with state environmental standards (see, e.g., 36 C.F.R. 228.8). They nevertheless preserve federal control over land use decisions on federal lands, "(c)oordinat(ing), to the greatest extent possible, with appropriate State agencies," mechanisms to protect affected lands (43 C.F.R. 3809.0-2(c) (emphasis added)). /23/ As Governor Babbitt has stated, "Federal lands in the West are generally not subject to any form of state management or administration. State planning and zoning laws stop dead at the federal fence." Babbitt, Federalism and the Environment: An Intergovernmental Perspective of the Sagebrush Rebellion, 12 Envtl. Law 847, 853 (1982). /24/ See Creede & Cripple Creek Mining & Milling Co. v. Uinta Tunnel Mining and Transportation Co., 196 U.S. 337, 351 (1905); Steel v. Smelting Co., 106 U.S. 447, 449-450 (1882). See also 30 U.S.C. 21a; 43 U.S.C. 1701(a)(12). /25/ Section 26 authorizes the states to prescribe various rules concerning the posting, content and recording of the location of mining claims, and the means of giving notice or recording of annual assessment work, as conditions for maintaining the individual miner's possessory title. See 1 C. Lindley, Mines Section 250 (3d ed. 1914). This Court has found such supplemental state legislation valid and enforceable. Butte City Water Co. v. Baker, 196 U.S. 119, 125-126 (1905). Indeed, as this Court recognized in United States v. Locke, No. 83-1394 (Apr. 1, 1985), federal law contained no recording requirements for mining claims prior to 1976; the recording systems were solely creatures of state law. Granite Rock has apparently complied with all state recording requirements. Likewise, it is undisputed that Section 51 requires Granite Rock to acquire water rights in accordance with state law. See Andrus v. Charlestone Stone Products Co., 436 U.S. 604 (1978); see also 16 U.S.C. 481. /26/ The "hydraulic mining" cases cited by the Coastal Commission (Br. 23-24) do not support a different result. In those cases, the United States, private plaintiffs, and California sought to enjoin particularly destructive mining practices that resulted in pollution and obstruction of navigable waters. See United States v. North Bloomfield Gravel Mining Co., 53 F. 625 (N.D. Cal. 1892); Woodruff v. North Bloomfield Gravel Mining Co., 45 F. 129 (N.D. Cal. 1891); Woodruff v. North Bloomfield Gravel Mining Co., 18 F. 753 (D. Cal. 1884); People v. Gold Run Ditch & Mining Co., 66 Cal. 138 (1884). Those cases indicate that miners are subject to nuisance actions, at least to restrain deposit of debris (or pollutants) into a state's waters. But they do not support the application of local land use regulations to mining activities on federal lands. Indeed, hydraulic mining was ultimately subjected to federal regulation under the Caminetti Act, 33 U.S.C. 661 et seq. See North Bloomfield Gravel Mining Co. v. United States, 88 F. 664 (9th Cir. 1898). /27/ Accordingly, both federal and state courts have held that local governments cannot apply land use requirements to federal mineral development activities. See, e.g., Ventura County v. Gulf Oil Corp., 601 F.2d 1080 (9th Cir. 1979), aff'd, 445 U.S. 947 (1980) (prohibiting application of a county's open space use permit requirements to oil and gas drilling on national forest lands); Elliott v. Oregon International Mining Co., 654 P.2d 663 (Or. 1982) (prohibiting enforcement of county surface mining ordinances to reserved federal mineral interests); Brubaker v. Board of County Commissioners, 652 P.2d 1050, 1056 (Colo. 1982) (prohibiting denial of a special use permit for mining activities that were alleged to be "inconsistent with the long-range plan of the county and with existing surrounding uses"). The Coastal Commission contends (Br. 29-30) that state land use regulation is permissible provided that the state does not prohibit mining activities, noting that several state courts have allowed local regulation of mining claims on federal lands. But permitting requirements are inherently prohibitory -- failure to comply with specific requirements will result in denial of the permit. See Hancock, 426 U.S. at 180. We submit that the proper distinction turns on the substance rather than the effect of state regulation. A state cannot determine the appropriate use of federal lands; however, it may impose certain valid, neutrally prescribed pollution control standards to mining activities. See, e.g., 36 C.F.R. 228.8. Indeed, the cases permitting local regulation of mining of federal lands have typically invovled pollution control regulations rather than land use requirements. See State ex rel. Cox v. Hibbard, 570 P.2d 1190 (Or. 1977) (dredge and fill permit); State ex rel. Andrus v. Click, 554 P.2d 969 (Idaho 1976) (dredge permit). See also Mt. Emmons Mining Co. v. Town of Crested Butte, 690 P.2d 231 (Colo. 1984). /28/ The Coastal Commission concedes (Br. 38) that its coastal development permitting process cannot be applied to Granite Rock's activities in the manner in which the permit requirement is normally applied -- to determine whether the proposed use of land is compatible with the coastal program. See, e.g., Bel Mar Estates v. California Coystal Comm'n, 115 Cal. App. 3d 936, 171 Cal. Rptr. 773 (1981) (real estate development). It wishes to use the coastal development permit as an "administrative vehicle" (Br. 38) for imposing environmental (as opposed to land use) regulations. That permit would be both different in substance from the "coastal development permit" described in the Coastal Act and duplicative of the requirements of other authorities under state and federal law. See note 16, supra. A party subject to the state coastal zone requirements must obtain a coastal development permit "(i)n addition to obtaining any other permit required by law * * * ." Coastal Act Section 30600(a) (1977). The County Air Pollution Control District can require a permit for, inter alia, operating equipment resulting in air emissions (Cal. Health & Safety Code Sections 40100, 42300 (West 1979)). The California Regional Water Quality Control Board may specify "discharge requirements" for addition of pollutants into surface waters, which are deemed equivalent to a permit under California law (Cal. Water Code Sections 13200, 13203, 13263(f), 13374 (West 1971 & Supp. 1986)). California law also requires registration prior to hauling hazardous waste (Cal. Health & Safety Code Section 25163(a) (West 1977)). Finally, pursuant to the terms of a Memorandum of Understanding with the Forest Service, California may apply the reclamation features of its Surface Mining and Reclamation Act of 1975, Cal. Pub. Res. Code Section 2710 et seq. (West 1984) to non-coal mining such as Granite Rock's limestone quarry. Thus, California law provides ample authority to issue appropriate permits. /29/ See also note 6, supra.