572

5

Opinion of POWELL, J.

development. 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

"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.

its Forest Service permit. This abdication of federal control over the use of federal land is unprecedented."

III

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.

*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. III), does not pre-empt the state regulation in this case. See ante, at 589-593.

Ouellette, 479 U. S. 481, 495 (1987); First Iowa HydroElectric 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. Because Congress has ensured that any federal de

'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

Opinion of POWELL, J.

480 U. S. cision 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.

IV

In summary, it is fair to say that, commencing in 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.

8

Having said this, it is at least clear that duplicative federal and state permit requirements create an intolerable conflict in decisionmaking. 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.

n. 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.

8 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.

JUSTICE SCALIA, with whom JUSTICE WHITE joins, dissenting.

I agree with the Court that this case is live because of continuing dispute over California's ability to assert a reclamation claim, ante, at 578. In my view, however, the merits of this case must be decided on simpler and narrower grounds than those addressed by the Court's opinion. It seems to me ultimately irrelevant whether state environmental regulation has been pre-empted with respect to federal lands, since the exercise of state power at issue here is not environmental regulation but land use control. The Court errs in entertaining the Coastal Commission's contention that "its permit requirement is an exercise of environmental regulation," ante, at 589; and mischaracterizes the issue when it describes it to be whether "any state permit requirement, whatever its conditions, [is] per se pre-empted by federal law," ante, at 593. We need not speculate as to what the nature of this permit requirement was. We are not dealing with permits in the abstract, but with a specific permit, purporting to require application of particular criteria, mandated by a numbered section of a known California law. That law is plainly a land use statute, and the permit that statute requires Granite Rock to obtain is a land use control device. Its character

'I would not rely upon the alternative ground that the dispute between these parties is "capable of repetition yet evading review." Ante, at 578. Assuming that Granite Rock submits a new 5-year plan to the Forest Service and that California again seeks to require it to comply with the coastal permitting requirements, I see no reason why that action would evade our review. See Weinstein v. Bradford, 423 U. S. 147, 149 (1975). Moreover, for a dispute to be "capable of repetition," there must be a "reasonable expectation that the same complaining party [will] be subjected to the same action again." Ibid. The Court may be correct that it is possible that California will seek to enforce its permit requirement directly again, ante, at 578; but since California may well be able to accomplish what it wants through the Coastal Zone Management Act's consistency review procedures, 16 U. S. C. § 1456(c)(3)(A), I do not think it likely that it will do so.