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AGO 1970 No. 23 - October 27, 1970
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Slade Gorton | 1969-1980 | Attorney General of Washington

MINING - SURFACE - STATE'S PREEMPTION OF REGULATION UNDER CHAPTER 64, LAWS OF 1970 - PERMITS

(1) After the effective date of chapter 64, Laws of 1970, it will not be legal to engage in surface mining in this state solely on the basis of a license or permit issued by a county, city or town without also obtaining a permit from the state board of natural resources.  

(2) A county, city or town may not prohibit an operator to whom a state permit is issued under chapter 64, Laws of 1970, from engaging in surface mining within its jurisdiction in accordance with this permit.

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                                                                October 27, 1970

Honorable William A. Gissberg
State Senator, 39th District
Route 1, Box 41
Lake Stevens, Washington 98258

                                                                                                                 Cite as:  AGO 1970 No. 23

Dear Sir:

            By letter previously acknowledged you requested our opinion as to the extent of the state's preemption of the regulation of surface mining under chapter 64, Laws of 1970.  We paraphrase the questions raised by your request as follows:

            (1) After the effective date of chapter 64, Laws of 1970, will it be legal to engage in surface mining in this state solely on the basis of a license or permit issued by a county, city or town without also obtaining a permit from the state board of natural resources?

            (2) In the case of an operator to whom a permit to engage in surface mining is issued by the state board of natural resources on or after the effective date of chapter 64, Laws of 1970, may a county, city or town prohibit the holder of this state permit from engaging in surface mining within its jurisdiction in accordance with this permit?

            We answer both questions in the negative for the reasons set forth in our analysis.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Chapter 64, Laws of 1970, is an act providing for the regulation of "surface mining," a term which is defined in § 4 (1) (RCW 78.44.010 (1)) thereof as follows:

            "(1) 'Surface mining' shall mean all or any part of the process involved in mining of minerals by removing the overburden and mining directly from the mineral deposits thereby exposed, including open-pit mining of minerals naturally exposed at the surface of the earth, mining by the auger method, and including the production of surface mining refuse.  For the purpose of this chapter surface mining shall mean those operations described in this paragraph from which more than ten thousand tons of minerals are produced or more than two acres of land is newly disturbed within a period of twelve consecutive calendar months.  Surface mining shall not include excavation or removal of sand, gravel, clay, rock or other materials in remote areas by an owner or holder of a possessory interest in land for the primary purpose of construction or maintenance of access roads to or on such landowner's property.  Surface mining shall not include excavation or grading conducted for farming, on-site road construction or other on-site construction, but shall include adjacent or off-site borrow pits except those on landowner's property for use on access roads on such property.  Prospecting and exploration activities shall be included within the definition of surface mining when they are of such nature and extent as to exceed the qualifying sizes listed above or when collectively they disturb more than one acre per eight acres of land area."

            In accordance with the terms of § 23 of the act, all of its provisions will become effective on January 1, 1971, after which time § 9 (RCW 78.44.080) states that

            ". . . no operator shall engage in surface mining without having first obtained an operating permit from the department. . . ."

             [[Orig. Op. Page 3]]

            "Department" is defined by § 4 (9) of the act as meaning the state board of natural resources, a preexisting state agency composed of the governor, the superintendent of public instruction, the commissioner of public lands, the dean of forestry of the University of Washington and the director of agricultural sciences at Washington State University.  See, RCW 43.30.040.  Under § 5 of the act (RCW 78.44.040), it is this board which has been vested by the legislature with over-all responsibility for the administration of its provisions.  As evidenced by the excerpt from § 9, supra, the basic means of regulating surface mining under the act will be through a system of permits administered by the board in accordance with the provisions of §§ 9-20 (RCW 78.44.080 78.44.180) without which (again) ". . . no operator shall engage in surface mining . . ." after January 1, 1971.  Accordingly, in direct answer to the first portion of your inquiry, it seems quite clear that after that date it will not be legal to engage in surface mining in this state solely on the basis of a license or permit issued by a county, city or town without obtaining a permit from the state board of natural resources.

            The second question raised by your opinion request goes to the "flip-side" of the coin of preemption; i.e., once a state permit has been obtained from the state board under §§ 9-20, supra, may a county, city or town nevertheless prohibit the holder of this permit from engaging in surface mining within its jurisdiction in accordance therewith?  The analytical approach to be taken in answering this question is described inLenci v. Seattle, 63 Wn.2d 664, 669-70, 388 P.2d 926 (1964), wherein the court said:

            "We have stated that the plenary police power in regulatory matters accorded municipalities by Const. Art. 11, § 11, ceases when the state enacts a general law upon the particular subject, unless there is room for concurrent jurisdiction.  [Citations omitted.]

            "Whether there be room for the exercise of concurrent jurisdiction in a given instance necessarily depends upon the legislative intent to be derived from an analysis of the statute involved.  [Citations omitted.]  If the legislature is  [[Orig. Op. Page 4]] silent as to its intent to occupy a given field, resort must be had to the purposes of the legislative enactment and to the facts and circumstances upon which the enactment was intended to operate.  If, however, the legislature affirmatively expresses its intent, either to occupy the field or to accord concurrent jurisdiction, there is no room for doubt."1/

             In so far as the act as finally passed by the legislature is concerned, no affirmative expression of legislative intent ". . . either to occupy the field or to accord concurrent jurisdiction . . ." appears.  However, when the provisions of chapter 64, Laws of 1970, Ex. Sess., are read in the light of their legislative history, to which you have briefly referred in your letter, a very strong inference arises that the legislature which approved this act in its final formdid not intend to allow counties, cities or towns to prohibit state permittees from operating in accordance with their permits.2/

             During the 1970 legislative session, separate bills were introduced in each of the two houses to provide for state  [[Orig. Op. Page 5]] regulation of surface mining activities.  These bills were Senate Bill No. 139 and House Bill No. 15.

            As originally introduced, the senate bill contained a section, designated as § 22, providing as follows:

            "Nothing in this act shall preclude cities and counties from adopting more stringent regulations regarding surface mining operations and the reclamation of surface mining sites as provided herein.  The director of the department of environmental quality shall determine if any city or county regulations now in effect or hereafter adopted are at least as stringent as the requirements of this act and the rules and regulations adopted by the department.  Upon determination by the director that any county or city regulations are as stringent or more stringent, such county or such city regulations shall apply in lieu of the state rules and regulations."

            In the case of H.B. 15, while the original bill did not contain any such provision as § 22 of the senate bill, the house bill was amended in the house prior to final passage so as to add a section, designated as § 21, providing as follows:

            "Nothing in this act shall authorize surface mining in violation of an ordinance or resolution of the city, town or county within which the surface mining is conducted."

            Shortly after its introduction, S.B. 139 was replaced by a substitute bill, but § 22 of the original bill was retained in the substitute bill.  In this form, the substitute bill was passed by the senate and sent to the house.  At about the same time, the house bill was passed by that body and sent to the senate, with § 21 still intact.

            At that point, the house bill, as such, died; however, at approximately the same time the house amended the senate bill by deleting all of its provisions following the enacting clause and substituting therefor the text of H.B. 15, as  [[Orig. Op. Page 6]] amended through the addition of § 21,supra.  In this form, the senate bill was returned to the senate which refused to concur in the house amendment.  The house, in turn, refused to recede, and the bill was then submitted to a conference committee and ultimately to a free conference committee.  Finally, a free conference committee report was submitted to both houses; however significantly and somewhat surprisingly in view of the fact that both versions of the bill as previously considered by the two houses had contained sections allowing continued county or city regulation of surface mining activities notwithstanding the granting of state permits the bill as reported out of free conference committee contained neither the language of § 22 of the senate bill nor the language of § 21 of the house bill.  Thus, it was apparently the decision and recommendation of the free conference committee that the act shouldnot contain any provisions allowing continuing local governmental regulation of surface mining activities by state permittees.

            Following their receipt of this report (and without any recorded debate) both houses accepted this recommendation and enacted the bill in the form reported out by the conference committee.  In view of this history of the act, we believe that any attempt to argue to the courts a legislative intent to allow concurrent jurisdiction, rather than to occupy the field, would most probably be doomed to failure.

            Had the legislature intended to allow continuing county or city regulation of surface mining, it could easily have manifested this intent by retaining either of the two sections § 22 of the senate bill or § 21 of the house bill which were obviously drafted and designed to do just that; however, it did not do so.  Therefore, we feel constrained to answer the second question raised by your inquiry, as well, in the negative.  After January 1, 1971, an operator may not engage in surface mining without a state permit.  But if he obtains such a permit, no county or city may prohibit him from engaging in surface mining in accordance therewith.

            This is not to say, of course, that the board of natural resources may not properly take into consideration the nature and extent of local regulation of land use in those areas in which a prospective state permittee is seeking authorization to engage in surface mining; it is to say, however, that if the board, in the exercise of its discretion in accordance with the standards laid down in the act, sees fit to grant a permit for the proposed operation, the operator to whom the permit is thus  [[Orig. Op. Page 7]] granted will be free to proceed with his operations notwithstanding the terms of any such local land use regulations governing the area in question.

            At least this will be the result, as we view it, unless the forthcoming 1971 legislative session determines to amend the act by placing into it some provision relating to local governmental regulations, identical or similar to either § 22 of the original text of Senate Bill No. 139, or § 21 of the amended version of House Bill No. 15 as considered but apparently rejected during the 1970 session.  We would, of course, be happy to assist in the drafting of such an amendment should we be requested to do so.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

THEODORE O. TORVE
Assistant Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Article XI, § 11 of the state Constitution, referred to in this excerpt from the court's decision in the Lenci case, provides as follows:

            "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."

2/Resort to this history, in construing the act in question, is appropriate in ascertaining legislative intent because of the lack of any affirmative expression of intent as to the point in issue on the face of the act.  Accord,State ex rel. Evans v. Brotherhood Etc., 41 Wn.2d 133, 153, 247 P.2d 787 (1952);State ex rel. Bugge v. Martin, 38 Wn.2d 834, 842, 232 P.2d 833 (1951), and cases cited therein.

 

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