The following opinion is presented on-line for informational use only and does not replace the official version.

STATE OF MICHIGAN

BILL SCHUETTE, ATTORNEY GENERAL

NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION ACT:   NONFERROUS METALLIC MINERAL MINING:   PREEMPTION:

Preemption of local ordinances concerning nonferrous metallic mineral mining

Part 632 of the Natural Resources and Environmental Protection Act, MCL 324.63201 et seq., preempts any local ordinance, regulation, or resolution that regulates, controls, or requires permits for nonferrous metallic mineral mining or reclamation activities regulated under Part 632, except ordinances, regulations, or resolutions that reasonably regulate the hours at which mining may take place and routes used by vehicles in connection with mining operations.  A local unit of government may enact, maintain, and enforce ordinances, regulations, and resolutions of general applicability that incidentally affect mining operations if the ordinances, regulations, or resolutions do not duplicate, contradict, or conflict with Part 632.

2011 PA 113, by its own terms, does not affect the preemption of local government regulation of nonferrous metallic mineral mines under Part 632, nor does it expand the limited scope of local government regulation authorized by Part 632.  MCL 125.3205(6). 

Opinion No.  7269                                            

September 27, 2012

Honorable Matt Huuki

State Representative

The Capital

Lansing, Michigan 48909 

You have asked whether Part 632, Nonferrous Metallic Mineral Mining, of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.63201 et seq., preempts local government regulation of nonferrous metallic mineral mines and whether 2011 PA 113 alters Part 632’s preemption of such local regulation.

Part 632 was added to the NREPA by 2004 PA 449.  It comprehensively regulates the mining of “nonferrous metallic mineral,” which is defined as “any ore or material to be excavated from the natural deposits on or in the earth for its metallic content, but not primarily for its iron or iron mineral content, to be used for commercial or industrial purposes.”  MCL 324.63201(j).¹  In enacting Part 632, the Legislature found, among other things, that nonferrous metallic sulfide deposits are different from the iron ore deposits already being mined in Michigan and present special environmental concerns that warrant additional regulatory measures beyond those applied to iron mines.  MCL 324.63202.²  Section 63203 provides that “[the Department of Environmental Quality (DEQ)] shall administer and enforce this part in order to regulate nonferrous metallic mineral mining.”  MCL 324.63203(1) (emphasis added).  Among other things, Part 632 authorized the DEQ to promulgate rules “including standards for construction, operation, closure, postclosure monitoring, reclamation, and remediation of a nonferrous metallic mineral mine.”  Id.³  It also establishes a state permitting process administered by the DEQ for nonferrous metallic mineral mines.  See MCL 324.63205 through MCL 324.63209.

In your request you cite a local township zoning ordinance as a specific example of the type of local government regulation that would impose numerous regulatory requirements on a nonferrous metallic mineral mine, including the requirement to obtain a permit from the township zoning administrator before engaging in mining.  A section of that ordinance broadly regulates the “[m]ining of clay, gravel, sand, peat, topsoil, rock, stone, gas and oil or minerals including copper, nickel, silver, gold, uranium, and similar materials.”  Many of the ordinance’s regulatory requirements are imposed through the permitting process, such as requirements for submission and approval of hydrologic studies, operation plans and reclamation plans.  Other examples of requirements imposed by the ordinance include the potential imposition of financial guarantees for reclamation and requirements specifying methods for the protection of groundwater and surface water.

Local units of government have only the powers granted to them by the Michigan Constitution and statutes.  Mosier v Wayne County Bd of Auditors, 295 Mich 27, 29; 294 NW 85 (1940); Hanslovsky v Leland Twp, 281 Mich 652; 275 NW 720 (1937).  “[I]n the absence of state enabling legislation, a political subdivision has no inherent power to zone.”  Livonia v Dep’t of Social Services, 423 Mich 466, 493-494; 378 NW2d 402 (1985).  The Legislature has provided zoning powers to local units of government in the Michigan Zoning Enabling Act (MZEA), MCL 125.3101 et seq.⁴  In addition, townships have the power to enact ordinances “regulating the public health, safety, and general welfare of persons and property.”  MCL 41.181(1).

Your first question involves the preemption of local regulation by state statute.  In People v Llewellyn, 401 Mich 314; 257 NW2d 902 (1977), the Michigan Supreme Court outlined the factors to be considered in determining whether a local regulation is preempted.  The most applicable of these factors to your question is:  “[W]here the state law expressly provides that the state’s authority to regulate in a specified area of the law is to be exclusive, there is no doubt that municipal regulation is pre-empted.”  Id. at 323 (emphasis added).  That rule has been specifically applied with respect to local zoning ordinances.  See, e.g., Frericks v Highland Twp, 228 Mich App 575, 585-586; 579 NW2d 441 (1998). 

The express preemption test is most applicable to your question because section 63203 of Part 632, MCL 324.63203, expressly preempts local government regulation of nonferrous metallic mineral mines, subject to certain limited exceptions, as follows:

            (3)  Subject to subsections (4) and (5), a local unit of government shall not regulate or control mining or reclamation activities that are subject to this part, including construction, operation, closure, postclosure monitoring, reclamation, and remediation activities, and does not have jurisdiction concerning the issuance of permits for those activities.

(4)  A local unit of government may enact, maintain, and enforce ordinances, regulations, or resolutions affecting mining operations if the ordinances, regulations, or resolutions do not duplicate, contradict, or conflict with this part.  In addition, a local unit of government may enact, maintain, and enforce ordinances, regulations, or resolutions regulating the hours at which mining operations may take place and routes used by vehicles in connection with mining operations.  However, such ordinances, regulations, or resolutions shall be reasonable in accommodating customary nonferrous metallic mineral mining operations.

(5)  Subsections (3) and (4) do not prohibit a local unit of government from conducting water quality monitoring.  [Emphasis added.]

In other words, section 63203(3) expressly prohibits a local unit of government from requiring a nonferrous metallic mineral mine owner or operator to obtain a permit from the local unit of government to construct, operate, or close a nonferrous metallic mineral mine or to perform postclosure monitoring, reclamation, or remediation activities for such a mine.  Moreover, even if a local unit of government does not require a permit, Part 632 broadly preempts regulation of nonferrous metallic mineral mining activities by local units of government.

That preemption is “subject to” subsections (4) and (5) of the statute, which specifically authorize certain limited local government actions.  Subsection (4) authorizes the enactment, maintenance, and enforcement of local ordinances, regulations, and resolutions that merely affect nonferrous metallic mineral mining; however, such ordinances, regulations, and resolutions may not “duplicate, contradict, or conflict” with the requirements of Part 632.⁵  This “affect” language is in contrast to subsection (3)’s proscription of local government actions that would “regulate or control” nonferrous metallic mineral mining.  It is appropriate to look to the dictionary definitions of the common words “regulate,” “control,” and “affect” used in MCL 324.63203.⁶  The American Heritage College Dictionary, Third Edition (2000), defines these terms as follows: (i) “regulate” means “[t]o control or direct according to rule, principle, or law”; (ii) “control” means “[t]o exercise authoritative or dominating influence over; direct”; and (iii) “affect” means “[t]o have an influence on or effect a change in.”  Thus, the degree of impact on nonferrous metallic mineral mining activities by local regulations that “affect” mining activities is substantially less than those that “regulate” or “control” such activities.  Moreover, the use of the term “affect” in this context is consistent with the recognized principle that a law or regulation that does not seek to control, but merely has an incidental effect on an activity regulated by another statute, is not necessarily preempted by that statute.  See, e.g., Konynenbelt v Flagstar Bank, 242 Mich App 21, 33-34; 617 NW2d 706 (2000).  For example, local regulations regarding building and sanitation, applicable to all businesses, might have an affect on nonferrous metallic mineral mining but they would not be preempted by the statute.

In addition, subsection (4) expressly authorizes a local unit of government to directly regulate two mining-related activities of a nonferrous metallic mineral mine:  (i) “the hours at which mining operations may take place”; and (ii) “routes used by vehicles in connection with the mining operations.”  However, a local unit of government’s regulation of these two activities must “be reasonable in accommodating customary nonferrous metallic mineral mining operations.”  And, finally, subsection (5) allows local units of government to monitor water quality at mining sites.

Applying these principles, by example, to the local zoning ordinance mentioned in your request, it is clear that at least one section of the ordinance is preempted to the extent it requires a local permit for or otherwise regulates nonferrous metallic mineral mining, except for the reasonable regulation of vehicle routes, or the reasonable regulation of hours of operation through a mechanism other than a permit.  Examples of other requirements of the ordinance preempted include, but are not limited to, requirements for:  (i) hydrologic studies; (ii) operation plans; (iii) reclamation plans; (iv) financial assurance for reclamation; and (v) groundwater and surface water protection methods.  All of these requirements are listed as expressly preempted under Part 632 or are directly regulated under Part 632 and DEQ’s Part 632 rules, in which case they run afoul of the prohibition of duplicative local regulations.  See, e.g., MCL 324.63205(2)(b), 2006 AACS, R 425.202 (hydrology); MCL 324.63203(3) (operation, reclamation); MCL 324.63211, 2006 AACS, R 425.301 - 425.309 (financial assurance); MCL 324.63205, 2006 AACS, R 425.203 (protection of groundwater and surface water).

It is my opinion, therefore, in answer to your first question, that Part 632 of the NREPA, MCL 324.63201 et seq., preempts any local ordinance, regulation, or resolution that regulates, controls, or requires permits for nonferrous metallic mineral mining or reclamation activities regulated under Part 632, except ordinances, regulations, or resolutions that reasonably regulate the hours at which mining may take place and routes used by vehicles in connection with mining operations.  A local unit of government may enact, maintain, and enforce ordinances, regulations, and resolutions of general applicability that incidentally affect mining operations if the ordinances, regulations, or resolutions do not duplicate, contradict, or conflict with Part 632.

You next ask what effect 2011 PA 113 had on the regulation of nonferrous metallic mineral mines.  2011 PA 113 became effective on July 20, 2011, and amended section 205 of the MZEA, MCL 125.3205, by adding mining-related provisions, which provide, in part, that a zoning “ordinance shall not prevent the extraction, by mining, of valuable natural resources from any property unless very serious consequences would result from the extraction of those natural resources.”  MCL 125.3205(3) (emphasis added).  The added provisions also set forth the initial burden for challenging a zoning decision under MCL 125.3205(3) and provide for application of the standards set forth in Silva v Ada Twp, 416 Mich 153; 330 NW2d 663 (1982), overruled in Kyser v Kasson Twp, 486 Mich 514; 786 NW2d 543 (2010), along with a list factors that may be considered in determining whether “very serious consequences” would result from mining natural resources.  MCL 125.3205(4) and (5). 

Most relevant to your question, MCL 125.3205 also provides:

(6)  Subsections (3) to (5) do not limit a local unit of government’s reasonable regulation of hours of operation, blasting hours, noise levels, dust control measures, and traffic, not preempted by part 632 of the natural resources and environmental protection act, 1994 PA 451, MCL 324.63201 to 324.63223.  However, such regulation shall be reasonable in accommodating customary mining operations.

(7)  This act does not limit state regulatory authority under other statutes or rules.

The House Fiscal Agency Legislative Analysis of 2011 PA 113, dated July 26, 2011, provides the following background information on the Act:

In 2010, the Michigan Supreme Court issued an opinion in Kyser v Kasson Township that is understood to have overturned its 1982 decision in Silva v Ada Township.  In the Sylva [sic] case, a township had denied a rezoning that would have allowed the mining of gravel on land zoned for agricultural use.  In Silva, the Court had recognized a rule that zoning ordinances that prevent mining are unreasonable unless “very serious consequences” would result.  According to legal commentators, in the 2010 Kyser decision, among other things, the Court declared that rule unconstitutional because it violated the separation of powers.  Additionally, the Court held the “very serious consequence” rule had been superseded by the exclusionary zoning provision (MCL 125.297a) of the Township Zoning Act, now incorporated into the 2006 Zoning Enabling Act.  In its 2010 decision, the Court eliminated the “very serious consequences” rule and replaced it with the traditional reasonableness test that applies to all other types of land use restrictions.

House Bill 4746 would, proponents said, return to the “very serious consequences” standard that existed prior to the 2010 Supreme Court decision.  This presumably would restore a higher standard for local units of government to meet when regulating mining.

As explained in the legislative analysis of 2011 PA 113, the primary purpose of the Act was to reinstate the “very serious consequences” standard of analysis that courts formerly applied when a local unit of government sought to prohibit the extraction of natural resources within its jurisdiction.  But the “very serious consequences” standard in Silva had not been applied by a court to a nonferrous metallic mineral mine prior to the Supreme Court’s overruling of Silva in its 2010 Kyser decision, and the saving clause in MCL 125.3205(7) that the statute “does not limit state regulatory authority under other statute or rules,” makes clear that the State’s regulation of nonferrous metallic mineral mines, and the concomitant preemption of local regulation of such mines, under Part 632 are not affected by the enactment of 2011 PA 113.

MCL 125.3205(6) authorizes a local unit of government’s “reasonable regulation of hours of operation, blasting hours, noise levels, dust control measures, and traffic” for mining operations and appears to be modeled on MCL 324.63203(4).  Without the limitation of such activities to those “not preempted by Part 632,” confusion could have arisen whether the more limited areas of local regulation specifically allowed by MCL 324.63203(4) (i.e., only hours of operation and vehicle routes) were expanded by MCL 125.3205(6)’s additional inclusion of “blasting hours, noise levels, [and] dust control measures” within the subjects that may be reasonably regulated by local units of government.  The “not preempted by Part 632” provision in MCL 125.3205(6), in conjunction with the saving clause in MCL 125.3205(7), makes clear that 2011 PA 113 does not modify the regulation of nonferrous metallic mineral mines by the State under Part 632, including the preemption of local government regulation of such mines.

It is my opinion, therefore, that 2011 PA 113, by its own terms, does not affect the preemption of local government regulation of nonferrous metallic mineral mines under Part 632, nor does it expand the limited scope of local government regulation authorized by Part 632.  MCL 125.3205(6).

BILL SCHUETTE
Attorney General