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President Donald Trump has nominated Kathleen M. Sgamma, a 20-year advocate of the oil and gas industry, as the Director of the Bureau of Land Management (BLM). BLM, an agency within the U.S. Department of the Interior (DOI), is responsible for administering 245 million acres of federal public land and nearly 700 million acres of federal and state subsurface mineral estates. Sgamma notably was a member of the Royalty Policy Committee during Trump’s first term which advised the administration to streamline the permitting and review process for drilling on public lands and lower royalty rates on drillers and miners. Her nomination was announced on the Congressional Record Vol. 171, No. 28 on February 11, 2025.

Sgamma currently heads Western Energy Alliance, an oil and gas trade group representing 300 oil and natural gas companies, known for challenging regulatory restrictions on the oil and gas industry. Several past lawsuits brought by Western Energy Alliance against DOI, likely reflective of Sgamma’s policy stance, have sought to limit DOI leasing rules that raised royalty rates, challenge pauses on oil and gas leasing, and compel BLM to hold quarterly lease sales for federal minerals.

Sgamma recently showed enthusiastic support for the President’s “Unleashing American Energy” executive order, that called for unleashing “America’s affordable and reliable energy,” including oil and gas and domestic mining. Sgamma also worked on the energy section of the 900-page Project 2025 “Mandate for Leadership” plan, specifically on the chapter “Restoring American Energy Dominance,” which called for rolling back Biden regulations and restoring oil, gas and mining leases in Alaska, Wyoming and Montana where leases had been suspended.

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By Kerry Shapiro and Daniel Quinley

On January 20, 2025, President Donald J. Trump issued the “Unleashing American Energy” Executive Order to, among other things, establish the United States as a “leading producer and processor of non-fuel minerals.” (“Executive Order”) The Executive Order emphasizes key energy policies, including the removal of EV-mandates and other actions to push forward the development of domestic energy. The Executive Order goes on to set forth several important policy directives focusing on mineral development, especially critical minerals. Broadly speaking, the Executive Order seeks to (1) promote domestic development of mineral resources; (2) cut significant red-tape by removing regulations and encouraging streamlined permitting, and (3) reevaluate historic withdrawals of public land for mineral and resource development. The following are among the litany of actions aimed at “unleashing” American energy and natural resources:

  • Comprehensive agency review of existing regulations that impose an “undue burden” on the development and production of domestic energy and mineral resources, and development of “action plans” to address same within 30 days of this Executive Order;
  • Eliminate all permitting delays, where possible, by utilizing tools such as “general permitting” or “permit by rule,” as well as “emergency authorities,” for projects deemed “essential for the Nation’s economy or national security;”
  • Prepare recommendations for legislative permitting reform, to be presented to Congress;
  • Reassessment of public land withdrawals;
  • Commence updated surveying and mapping for critical mineral resources;
  • Review and revise the National Environmental Policy Act (“NEPA”) and its implementing regulations, to facilitate compliance with the Executive Order and “prioritize efficiency and certainty over any other objectives, including those of activist groups” and avoid “delays and ambiguity” in federal permitting;
  • Limit environmental review to only “legislated requirements for environmental considerations,” and prohibit the use of “arbitrary or ideologically motivated” methodologies;
  • Immediate revocation and/or revision of numerous executive orders and regulations from the prior administration.

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By Kerry Shapiro and Daniel Quinley

On May 25, 2023, the United States Supreme Court issued its ruling in Sackett v. Environmental Protection Agency, narrowing the scope of the Environmental Protection Agency’s (EPA) regulatory authority under the Clean Water Act (CWA). The court held that the EPA’s authority under the CWA extends only to wetlands and permanent bodies of water with a “continuous surface connection” to “traditional interstate navigable waters.”

Sackett addressed the scope of EPA’s authority to regulate wetlands under the CWA, which generally prohibits discharging pollutants into “the waters of the United States.” 33 U.S.C. §1362(7). The Sacketts petitioned the Supreme Court for review of the Ninth Circuit’s decision upholding the scope of EPA’s authority. The Sacketts had purchased a lot upon which they planned to build a home and began backfilling this lot with dirt in preparation. However, the EPA sought to exercise jurisdiction, based on the assertion that the lot contained wetlands and backfilling it violated the CWA. At issue for the Court was whether these wetlands were, in fact, “waters of the United States” subject to regulation under the CWA.

The Supreme Court’s decision resolves ambiguity in the CWA over the meaning of “waters of the United States” within the context of the statute. Justice Alito, in his opinion, described the current confusion stemming from the ambiguity of the CWA’s language: “[W]hat does that phrase mean? Does the term encompass any backyard that is soggy enough for some minimum period of time? Does it reach ‘mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [or] playa lakes?’ How about ditches, swimming pools, and puddles?”

This jurisdictional ambiguity has existed, in part, since the plurality split in the Court’s decision in Rapanos v. United States (2006) 547 U.S. 715, which articulated two tests for lower courts to use in determining whether the CWA applies: Justice Scalia’s bright-line rule, covering only wetlands next to “relatively permanent, standing or continuously flowing bodies of water”; and Justice Kennedy’s broader interpretation, protecting wetlands that were part of a “significant nexus” with a navigable body of water. Continue reading

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By Kerry Shapiro and Daniel Quinley

On March 9, 2023, the US District Court for the Eastern District of California issued its ruling in Friends of the Inyo, et al., v. U.S. Forest Service, et al., in favor of the Forest Service and JMBM client KORE Mining Limited, in a challenge under the National Environmental Policy Act (“NEPA”) against the Forest Service’s approval of KORE’s small-scale, mineral exploration plan, brought by multiple environmental groups, including Friends of the Inyo and Center for Biological Diversity.

The case concerned a challenge to the Forest Service’s approval of KORE’s limited exploration project on mining claims located in the Inyo National Forest. KORE originally filed a plan of operations in the summer of 2020, proposing a small-scale mineral exploration project, comprising less than 1 acre of disturbance across twelve drill pads, and construction of a third of a mile of temporary access roads. The exploration project would be completed in under a year.

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By Kerry Shapiro and Daniel Quinley

The last month has seen a flurry of activity related to the California and Federal Endangered Species Acts, including:

  1. The California Supreme Court’s denial of review in the Almond Alliance of California v. California Fish and Game Commission litigation
  2. Governor Gavin Newsom’s appointment of a fifth member of the California Fish and Game Commission
  3. That Commission’s October 9, 2022 hearing, where consideration of the petition to list the western Joshua tree (WJT) as a threatened species was continued for a second time
  4. The United States Fish and Wildlife Service’s proposed listing of the Bay-Delta longfin smelt on October 7

First, on September 21, 2022, the California Supreme Court denied a petition to review a ruling by the 3rd District Court of Appeal in Almond Alliance of California v. Fish & Game Com., (2022) 79 Cal.App.5th 337. This denial lets stand the decision by the Court of Appeal, allowing the listing of four bumble bee species under the California Endangered Species Act (CESA). In that decision, issued in May of this year, the Court of Appeal reversed the decision of the trial court, reasoning that the Fish and Game Commission could list insects because the California legislature – despite evidence accepted by the trial court that the legislative committees that wrote CESA’s language explicitly believe insects were ineligible for listing – found that “the term of art employed by the Legislature in the definition of fish is not … limited” to aquatic species. Continue reading

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By Kerry Shapiro and Dan Quinley

After more than a year of scientific study on the status of the western Joshua tree (“WJT”), the California Department of Fish and Wildlife (“CDFW”) has just completed its status review (“Status Review”) of the WJT and determined that the best available science on the species does not warrant listing it as threatened under the California Endangered Species Act (“CESA”). CDFW’s conclusion mirrors the conclusion independently made in a Population Study prepared on behalf of JMBM client California Construction and Industrial Materials Association (“CalCIMA”) and also submitted to CDFW and the California Fish and Game Commission (“Commission”) for consideration in the Commission’s final determination on whether or not to list the species. CalCIMA’s Population Study was submitted pursuant to Title 14, section 670.1(h) of the California Code of Regulations on April 5, 2022, and therefore must be considered by the Commission in making a final listing determination.

In making its recommendation to not list the WJT, CDFW found, based on “the best scientific information available to the Department” that the species “is not in serious danger of becoming extinct throughout all, or a significant portion, of its range,” and that “special protection and management efforts required by CESA” were not required for the species. Continue reading

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By Kerry Shapiro

On August 30, 2021, the U.S. District Court for the District of Arizona issued an order in Pasqua Yaqui Tribe, et al. v. U.S. EPA, et al., vacating the Navigable Waters Protection Rule (“NWPR”) and remanding the rule back to the Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) (collectively, the “Agencies”) for further review. The NWPR was enacted during the Trump administration and represents the EPA’s latest attempt to define the term “waters of the United States” (“WOTUS”). The NWPR represented a categorical approach to Clean Water Act (“CWA”) jurisdiction (i.e. certain water features were categorically excluded from jurisdiction under the CWA, including ephemeral streams), and it significantly narrowed the scope of such jurisdiction. Following the court’s ruling, EPA announced the Agencies would halt implementation of the NWPR and instead interpret WOTUS consistent with the broader jurisdictional scope of the pre-2015 regulatory regime until further notice. The National Stone, Sand, and Gravel Association (“NSSGA”), among several business interests, intervened into the case, arguing that a return to the pre-2015 regulatory regime would increase regulatory uncertainty, including, as discussed below, a likely increase in 404 permitting.

In this case, the plaintiffs alleged that the NWPR exceeds the EPA’s statutory authority and is contrary to the CWA’s text and objectives, which require broad protection of all of the U.S.’s waters, because the NWPR excludes certain waters from the protections required by the CWA. The NWPR can be viewed here. The plaintiffs, several federally recognized Native American tribes, also alleged that the EPA failed: (1) to explain its decision to reverse prior regulations; and (2) to consider important aspects of that prior decision, including the effects on water quality and aquatic ecosystems, the ecological importance of protecting the excluded waters, and the effects of the reversal of prior regulations on the CWA. Plaintiffs moved for summary judgment in the case, and in response the Agencies filed a motion asking for voluntary remand of the NWPR without vacating it. This would have allowed the Agencies under the Biden administration to continue to implement the NWPR as the Agencies simultaneously worked to draft a replacement. Plaintiffs agreed that the NWPR should be remanded, but also argued for vacatur and implementation of the pre-2015 regulatory regime, asserting that intermittent and ephemeral streams in Arizona would otherwise be left unprotected. Continue reading

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By Kerry Shapiro and Dan Quinley

On September 9, 2021, the House Environmental and Natural Resources (“ENR”) Committee finished its mark-up of the $3.5 trillion reconciliation budget measure. Inserted at the very end of the 117-page mark-up is Section 70807: Hardrock Mining, which is a quiet attempt to reform the Mining Law of 1872.

The ENR Committee’s change would, for the first time, impose fixed royalties on all locatable minerals mined on Federal land. Under the terms of the proposed legislation, minerals, mineral concentrates, or products derived from locatable minerals, would be subject to royalty fees at the following rates:

  • 8% for all new mining operations
  • 8% for all new federal land added by plan modification to existing mining operations
  • 4% for mining operations with an existing approved plan of operations, or who submitted a plan of operations prior to the effective date of the legislation

All royalty percentages would be calculated based on gross income derived from mining. Continue reading

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By Kerry Shapiro

Last week, the California Supreme Court handed down an important decision on prevailing wage law favorable to industry. On August 16, 2021, the California Supreme Court issued its decision in Mendoza v. Fonseca McElroy Grinding Co., Inc. S253574, answering the question whether prevailing wage must be paid for mobilization work, which involved transporting heavy machinery to and from a public works site under Labor Code section 1772. The Court held that section 1772 does not expand the categories of public work that trigger obligation to pay at least the prevailing wage and that under this theory, prevailing wage did not need to be paid for mobilization work. In so far as there may be some other statutory basis for compensating mobilization and travel time at the prevailing rate, those issues were beyond the scope of the Court’s decision. The Court’s decision is consistent with the positions argued in the case by Fonseca, and by JMBM client California Construction and Industrial Materials Association (“CalCIMA”), which had filed an Amicus Brief in support of Fonseca. Continue reading

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State Water  Board Announces Intent to Enforce 2019 Procedures for Discharges of Dredged or Fill Material as “State Policy”

By Kerry Shapiro, Martin Stratte, and Daniel Quinley

On February 3, 2021, the State Water Resources Control Board (“SWRCB”) issued a “Notice of Opportunity to Comment and Notice of Public Hearing and Consideration of Adoption” (“Notice”) of a resolution “to confirm that the State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State (Procedures) are in effect as state policy for water quality control.”  The Notice states that SWRCB will consider the resolution at a public video/teleconference meeting on April 6, 2021.

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