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On Tuesday, March 31, 2020, San Francisco and six other Bay Area counties and one city each issued a virtually identical Shelter-in-Place Order (collectively, the “Order”) that is, in many ways, more restrictive than (i) Governor Newsom’s March 19, 2020 Stay-Home Executive Order N-33-20, and (ii) San Francisco’s March 16, 2020 Shelter-In-Place Order.

In particular, the Order limits the scope of certain construction-related activities previously exempt under those prior orders, and mandates the implementation of new “Social Distancing Protocols” for Essential Businesses still operating, which must be in place by April 2, 2020.

Who issued the Order? The Order was issued by the following seven counties—Alameda, Contra Costa, Marin, Santa Clara, City and County of San Francisco, San Mateo, and Sonoma (who issued the Order late Tuesday evening, after the other six counties)—and one city—City of Berkeley. Although the counties and cities each independently issued an Order, the text is nearly, if not completely, identical.

What does the Order do? The Order establishes stricter limits on business operations, including a narrower scope of construction authorized to continue under the Order, and requires a business to “cease all activities” in Bay Area locations subject to the Order, unless the business qualifies as an “Essential Business”. (Although non-Essential Businesses are allowed to continue “Minimum Basic Operations” necessary to maintain certain activities such as payroll.)

How are construction materials companies affected? Construction materials companies may qualify as “Essential Businesses,” as long as those companies “support or supply” other “Essential Businesses” with “supplies necessary to operate”. Continue reading

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This blog provides important updates to the analysis in our March 20 and March 23 blogs addressing the impact on workers in the construction and industrial materials industries of Governor Newsom’s March 19, 2020 Executive Order N-33-20 (“Order”) mandating, subject to certain exceptions, that “all individuals living in the State of California to stay home.”

For background, the Order states that workers “needed to maintain continuity of operations” of 16 critical infrastructure sectors identified by the U.S. Cyber & Infrastructure Security Agency (CISA) were exempt and thus may continue to work. CISA previously identified those 16 sectors in a March 19, 2020 Memorandum entitled, “Identification of Essential Critical Infrastructure Workers During COVID-19 Response” (“CISA Memorandum”).

Although clarifications regarding the applicability of the Order to workers in the construction materials industry were issued by the State Public Health Officer on March 22 (see March 23 blog), no corresponding clarification was expressly issued with respect to the industrial materials industry.

Update affecting the industrial materials industry and its workers:

  • As we previously reported in our March 20 blog, the treatment under the CISA Memorandum of workers employed by industrial material producers and suppliers, whose materials are not used in construction materials, was somewhat unclear.
  • However, on March 28, 2020, CISA issued an Advisory Memorandum identifying an “Essential Critical Infrastructure Workforce” list, which specifically identifies “Workers necessary for the manufacturing of … industrial minerals”. The key language is shown on page 13 of 15 of the Advisory Memorandum at the first bullet point under Critical Manufacturing.
  • The Advisory Memorandum thus clarifies that the industrial materials industry and its workers are a part of the 16 critical infrastructure sectors identified by CISA, and therefore exempt from the Order’s stay-home mandate, even if the industrial materials are not used in construction materials.

Continue reading

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This blog provides important updates to the analysis in our prior blog addressing the impact on workers in the construction materials industry of Governor Newsom’s March 19, 2020 Executive Order N-33-20 (“Order”) mandating, subject to certain exceptions, that “all individuals living in the State of California to stay home.”

For background, the Order states that workers “needed to maintain continuity of operations” of 16 critical infrastructure sectors identified by the U.S. Cyber & Infrastructure Security Agency were exempt and thus may continue to work. On March 20, the State’s COVID-19 website clarified that the exemption from the Order applied to construction activity, including housing construction. Although this clarification was very helpful, the Order remained somewhat uncertain regarding the status of  construction materials industry workers. Late on Friday, March 20, the State Public Health Officer (“SPHO”) issued a list of “Essential Critical Infrastructure Workers” to be exempt from the Order, and thus allowed to continue working, to ensure “continuity of functions critical to public health and safety, as well as economic and national security.” Again, very helpful, but did not specifically address construction materials.

On Sunday, March 22, 2020, the SPHO issued important updates (“Updates”) to the list of “Essential Critical Infrastructure Workers” directly addressing the construction materials industry. Specifically, the Updates confirm that:

    1. Essential Workforce for Public Works includes construction materials suppliers; and
    2. Essential Workforce for Community-Based Government Operations and Essential Functions include workers who provider services related to construction materials sources.

Continue reading

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On March 19, 2020, Governor Newsom issued Executive Order N-33-20 (“Order”) “ordering all individuals living in the State of California to stay home or at their place of residence”.  As discussed below, the Order allows workers in certain industry sectors to continue working.

There are several categories of workers who may continue to work under the Order.

  • The Order states that workers “needed to maintain continuity of operations” of 16 critical infrastructure sectors identified by the U.S. Cyber & Infrastructure Security Agency (“CISA”) may continue to work.
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An Overview of CalCIMA’s Current Judicial, Legislative, and Regulatory Activities

by Kerry Shapiro, General Counsel to CalCIMA and Chair of JMBM’s Natural Resources and Mining Group
and
Martin Stratte, Attorney in JMBM’s Government, Land Use, Environment & Energy Group

This article was first published in the Summer 2019 issue of The Conveyor, a publication of the 
California Construction and Industrial Materials Association (CalCIMA), and is published with permission.

2019 has been an active year for CalCIMA, as its members remain busy supplying the materials necessary to build our homes, roads, and critical public infrastructure projects.  To ensure its members may continue to do so successfully, CalCIMA has stepped forward in response to a number of legal, legislative and regulatory developments that threaten to increase the challenges facing its members doing business in California.

Below is an overview, from the perspective of CalCIMA’s legal counsel, of some of CalCIMA’s most important legal activities undertaken in 2019.  They include the following:

  • Ventura County Habitat Connectivity and Wildlife Corridor Litigation
  • John D. Sweeney v. State Water Resources Control Board and San Francisco Regional Water Quality Control Board Amicus Brief
  • Waters of the State Rulemaking Proceedings
  • Pending Amendments to Riverside County Mining Ordinance
  • Point San Pedro Road Coalition v. County of Marin (San Rafael Rock Quarry, Inc.) Amicus Letter of Support
  • Various Legislative Activities

Litigation Challenging Ventura County Habitat Connectivity and Wildlife Corridor

At the top of the list is CalCIMA’s efforts to protect regionally significant mineral resources through proactive litigation.  In March 2019, Ventura County adopted its Habitat Connectivity and Wildlife Corridor Project, which amends its general plan and zoning code and imposes new land use restrictions, including restrictions on land located within 200 feet of “surface water features”.  The reported purpose of the Project is to protect wildlife, namely mountain lions, by restricting land use and development on public and private lands that have been included within the Project’s overlay zone.  In total, the Project includes more than 160,000 acres of land.

The Project also overlaps onto more than 13,000 acres of mineral resources that were previously classified and/or designated by the California Geological Survey (CGS) and State Mining and Geology Board (SMGB), respectively.  Notably, the SMGB designation process was subject to environmental review under the California Environmental Quality Act (CEQA) and therefore, required the preparation of an environmental impact report and related studies.

Despite the Project’s inclusion of 13,000+ acres of classified and/or designated mineral resources, which are a natural resource protected under CEQA (like air, water, and wildlife), the County approved the Project without (i) consulting with either CGS or SMGB in accordance with sections 2762 and 2763 of the Surface Mining and Reclamation Act (SMARA), or (ii) undertaking a CEQA analysis of the Project’s environmental impacts, including the impacts to mineral resources.

In approving the Project without environmental review, the County invoked the class 7 and 8 CEQA exemptions for projects intended to protect natural resources and the environment.  (14 CCR §§ 15307, 15308.)  The County also rejected multiple written requests from CGS to discuss the Project and its potential impacts to important mineral resources prior to approval.

During the public hearing process in early 2019, CalCIMA submitted two detailed comment letters outlining its concerns with the County’s lack of compliance with SMARA and CEQA.  However, the County maintained its position that the Project was exempt from CEQA and that consultation with CGS regarding the potential impacts to the 13,000+ acres of classified and/or designated mineral resources was not required. Continue reading

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A multinational mining company with operations in one or more Latin American countries – countries with diverse cultures and widely different stages of social and economic development – is invariably faced with significant challenges that dictate the need for periodic legal checkups or diagnoses of its projects on a case by case basis.

Challenges Faced by Multinational Mining Companies

Some of the challenges multinational mining companies face in Latin America include the following:

  • Communication problems with the company’s Latin American offices, often as a result of language barriers and/or the failure of in-country personnel to recognize critical timing requirements, may make it difficult to obtain complete and accurate information on the status of in-country operations.
  • The locations of the company’s Latin American offices – often far removed from the company’s home office – frequently result in host country personnel making decisions on their own, without seeking appropriate senior management input or approval.
  • Home office executives and their North American counsel may be unaware of potential problems faced in a given Latin American country and the consequences imposed by the host country’s legal system. All Latin American countries operate in civil law jurisdictions (there are a variety of types of civil codes), which may be unfamiliar to North American common law
  • Legal documents in Latin America may be extremely formalistic and rigid, in large measure because they are based on civil law. These documents tend to be sparsely worded, often accompanied by unacceptable explanations that omitted items are “understood” or “unnecessary.”
  • The laws in a given Latin American country may provide severe remedies (g., prejudgment attachment of bank accounts, pretrial detention or even criminal proceedings) that can significantly disrupt or paralyze a Company’s in-country operations.

Goals of an Effective Mining Legal Diagnosis

Some of the goals sought to be achieved in connection with an effective mining legal diagnosis of a mining company’s Latin American operations include: Continue reading

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Effective Diagnosis for Mining Companies to Achieve a Social License to Operate: Who should perform the diagnosis? What to do after the investigation?

Final in a series of articles about mining companies achieving an effective social license to operate

by Jordi Ventura

See Part 1: What is a Social License to Operate (SLO) and How Do Mining Companies Achieve an SLO?

See Part 2: Effective Diagnosis of Social License to Operate – Off-site preparation and on-site investigation

What happens after the investigation?

It is imperative that a follow-up SLO diagnosis report be prepared as soon as practicable after the on-site visit (and, as a time and cost saving measure, perhaps the SLO diagnosis report should be initiated during the visit). The SLO diagnosis report should contain, at a minimum, the following:

  • a description of the scope and methodology employed in conducting the on-site investigative work SLO diagnosis;
  • the on-site investigative work findings and conclusions (making sure that they are duly supported);
  • concrete recommendations for correcting problems/issues encountered during the on-site investigative work; and
  • with the input and assistance of experts in the sustainability concepts, proposals for the adoption of key concepts.

Continue reading

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Effective Social License to Operate: Off-site preparation and on-site investigation

Second in a series of articles about mining companies achieving an effective social license to operate

by Jordi Ventura

See Part 1: What is a Social License to Operate (SLO) and how do mining companies achieve an SLO?

See Part 3: How Mining Companies Can Achieve an Effective License to Operate in South America – Who should do the diagnosis?

 

An effective diagnosis for a Social License to Operate (SLO) will include off-site preparatory work as well as on-site investigation.

Off-site preparatory work

In order to ensure a quick, successful and cost-effective investigation, the SLO diagnosis initially involves preparatory work that takes place away from the proposed mining project and prior to any significant presence of the mining company on the ground. This preparatory work consists of, at a minimum, the following:

  • meeting with relevant members of the company’s senior management team to:
    • ascertain what, if any, endeavors have already been conducted by the company or additional companies (mining or otherwise) concerning the SLO and related matters, and obtain any copies of all documentation;
    • discuss any particular areas of concern that the company may have; and
    • agree to an overall game plan that includes expected deliverables, deadlines and costs.

Continue reading

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We are pleased to announce that Jordi Ventura has joined the Natural Resources and Mining Group at Jeffer Mangels Butler & Mitchell LLP (JMBM), as Of Counsel. Jordi’s practice focuses on the legal needs of the mining industry, with an emphasis on representation in Latin America.

His in-depth knowledge of the legal, business and financial aspects of the mining industry strengthens our firm’s mining practice, and his wide-ranging experience with mining projects in Latin America brings tremendous value to our mining clients.

Read Jordi’s professional biography here. He is licensed in Utah and Colorado; he is not licensed in California.

Today, we bring you the first in a series of articles in which Jordi Ventura explains how mining companies can achieve an effective social license to operate.

Kerry Shapiro, Chair, JMBM’s Natural Resources & Mining Group

HOW MINING COMPANIES CAN ACHIEVE AN EFFECTIVE “SOCIAL LICENSE TO OPERATE” IN LATIN AMERICA – PART 1

What is a Social License to Operate (SLO) and How Do Mining Companies Achieve an SLO?

First in a series of articles about mining companies achieving an effective social license to operate

by Jordi Ventura

See Part 2: The Effective Social License to Operate – Off-site preparation and on-site investigation

See Part 3: How Mining Companies Can Achieve an Effective Social License to Operate in Latin America- Who should do the diagnosis?

When embarking on a new project in Latin America, a multinational mining company needs to understand it is entering into a pre-existing yet dynamic environment, with established histories and cultures. Complex political, social and economic relations among indigenous groups and other local communities can be thrown into disarray by the introduction of a mining project and the development process that accompanies it. Community relations can become politicized and complicated, and can create conflicts that ultimately cost the company time, money and PR problems.

This is not news to mining companies. In Ernst & Young’s “top risks facing mining and metals in 2019-20,” license to operate is listed as the #1 risk, up from #7 the year prior.

Continue reading

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On May 1, 2019, Petitioner San Joaquin Tributaries Authority, a Joint Powers Authority (Petitioner/Authority) filed a petition for writ of mandate in Sacramento County Superior Court against the State Water Resources Control Board (SWRCB).  The Authority includes the City and County of San Francisco as petitioners.  The petition challenges SWRCB’s approval of the “State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State” (Procedures) on April 2, 2019.

SWRCB released the Procedures in January 2019, shortly after President Trump announced his plan to rescind and replace the Obama Administration’s 2015 definition of “Waters of the U.S.”  President Trump’s proposed definition of Waters of the U.S. is more narrow, and would reduce the scope of waters subject to federal regulation under the Clean Water Act, including activities within those waters, such as the discharge of dredge and fill material.

The SWRCB’s Procedures are intended to, among other things, codify California’s regulatory authority over the discharge of dredge and fill material into waters being proposed for exclusion from federal regulation through Trump’s proposed definition.  The Procedures also seek to regulate dredge and fill activities within all “Waters of the State”, which is broadly defined to include “any surface water or groundwater, including saline waters, within the boundaries of the state.”  This broad definition includes all natural wetlands, modified wetlands, and even some artificial wetlands.