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We are pleased to announce that Martin Stratte has joined us at Jeffer Mangels Butler & Mitchell LLP and is a member of JMBM’s Natural Resources and Mining Group, and our Construction and Building Materials Group.  Martin’s practice focuses on land use, zoning and entitlement issues and he comes to us with experience in representing the mining industry.

He represents clients in administrative enforcement actions and litigation relative to the California Environmental Quality Act (CEQA), National Environmental Policy Act (NEPA), and Endangered Species Act (ESA), among others, and is experienced in working with local jurisdictions and state, regional and federal agencies to obtain regulatory approvals.

Martin is a frequent author on legal issues of importance to the mining industry, has been a member of the editorial board of the Climate Change Law & Policy Reporter and is licensed to practice in both California and Nevada.

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By Kerry Shapiro

Last week, President Trump signed an executive order with potentially wide-ranging implications for the mining industry and many other affected stakeholders. The order directs the Department of the Interior (DOI) to review national monuments, particularly those larger than 100,000 acres, that were designated since January 1, 1996, and to recommend if any of those designations should be modified, resized or rescinded.

The Bears Ears National Monument Controversy

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BLM releases maps showing 1.3 million acres of proposed mining withdrawal

On January 13, 2017, the U.S. Bureau of Land Management (“BLM”) released maps showing the areas that BLM, on December 28, 2016, proposed to withdraw from mining. The withdrawal is designed to “protect nationally significant landscapes with outstanding cultural, biological, and scientific values” and is part of the Desert Renewable Energy Conservation Plan (“DRECP”).

What does the proposed withdrawal do?

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California Mining Update

AB 1142 and SB 209: What operators need to know about SMARA modernization
Changes will be effective January 1, 2017

by
Kerry Shapiro


This article was first published in The Conveyor magazine, a publication of CalCIMA.

On April 18, 2016, Governor Jerry Brown signed into law two bills that together provide the most significant update to the California Surface Mining and Reclamation Act (SMARA) in 25 years.  Assembly Bill (AB) 1142 (Gray) and Senate Bill (SB) 209 (Pavley) are the outgrowth of more modest changes in recent years, and of a promise by the Governor, in 2013, to reform SMARA from “top to bottom.”  Although the bills are not effective until January 1, 2017, operators must be aware of their changes and start planning for their implementation.

Most important in the near term are changes to SMARA’s inspections process, financial assurance approval process, reclamation plan requirements, and inspector qualifications.

Inspections Process

Beginning in 2017, operators must request, on their annual reports, an inspection date within 12 months of their prior inspection.  For inspections conducted in 2016, the 12-month date will be triggered for 2017.

Financial Assurances

The annual inspection date is the starting point for wholly new annual financial assurance review and approval processes.  Note the plural—under AB 1142 and SB 209, SMARA will now have (1) a process for financial assurance cost estimates (FACEs) for new or amended reclamation plans and (2) another process for annual FACE updates.  Each process sets new steps and deadlines that are tied to the annual inspection date.  Moreover, each process provides the Department of Conservation (DOC) a new right to formally consult with lead agencies and operators during the FACE review process, and to give DOC a new right to appeal a lead agency’s approval of a FACE.  Annual financial assurance review was already a SMARA requirement, but the new legislation formalizes the review process to provide greater clarity and transparency.

Corporate self-bonding is now permitted for companies worth more than $35 million, subject to regulations which will be approved by the SMGB.  Multiple operations can combine their assets to pass the financial test, but self-bonding is limited to 75% of the value of an operator’s FACE(s). Continue reading

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California Mining Update

AB 1142 and SB 209: What lead agencies need to know about SMARA Modernization
Changes will be effective January 1, 2017

by
Kerry Shapiro

 

On April 18, 2016, Governor Jerry Brown signed into law two bills that together provide the most significant update to the California Surface Mining and Reclamation Act (SMARA) in 25 years.  Assembly Bill (AB) 1142 (Gray) and Senate Bill (SB) 209 (Pavley) are the outgrowth of more modest changes in recent years, and of a promise by the Governor, in 2013, to reform SMARA from “top to bottom.”  Although the bills are not effective until January 1, 2017, lead agencies and operators must be aware of their changes and start planning for their implementation.

Most important in the near term are changes to SMARA’s inspections process, financial assurance approval process, reclamation plan requirements, and inspector qualifications.

Inspections Process

Beginning in 2017, operators will request, on their annual reports, an inspection date within 12 months of their prior inspection. (For inspections conducted in 2016, the 12-month date will be triggered for 2017.)  Lead agencies may reschedule inspections, and will have 90 days — not 30 days — to file Notices of Completion with the Department of Conservation (DOC).  However, the additional time comes with a catch: lead agencies must use their Notices to describe any problems at operations and their plans for correcting them.

Financial Assurance Approval Process

The annual inspection date is the starting point for wholly new annual financial assurance review and approval processes.  Note the plural—under AB 1142 and SB 209, SMARA will now have (1) a process for financial assurance cost estimates (FACEs) for new or amended reclamation plans and (2) another process for annual FACE updates.  Each process sets new steps and deadlines, tied to the annual inspection date.  Both processes provide DOC a new right to formally consult with lead agencies and operators during the FACE review process, and also give DOC a new right to appeal a lead agency’s approval of a FACE.  Annual financial assurance review was already a SMARA requirement, but the new legislation formalizes the review process to provide greater clarity and transparency. Continue reading

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On September 25, 2014, Governor Brown signed Assembly Bill 52 (“AB 52”), which modifies the California Environmental Quality Act (“CEQA”) to add new protections for Native American cultural resources and enhances the role of Native American tribes in the environmental review process. AB 52 is a significant amendment to CEQA that poses both challenges and opportunities for project applicants. A brief summary of the new law, which takes effect July 1, 2015, is provided below.

AB 52 Creates a New Category of Potentially-Significant Environmental Impacts

Under current CEQA law, lead agencies typically evaluate whether a project would impact historic or archaeological resources. Although impacts to Native Americans may be evaluated, AB 52 specifically mandates evaluation of whether a project will impact “tribal cultural resources” which include sites, features, places, cultural landscapes, sacred places, and objects with cultural value to tribes. If the potential for impacts to such resources exists, as with other environmental impacts, increasing levels of CEQA analysis, mitigation measures, and the consideration of alternatives is required. Input from a tribe as to what is culturally significant to that tribe will drive the analysis for a given project. These changes take effect on July 1, 2015.

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by Kerry Shapiro

This article was first published in The Conveyor, a publication of the California Construction and Industrial Materials Association.

Mining companies are subject to myriad requirements under the Surface Mining and Reclamation Act (SMARA) and implementing regulations that can trip up even the most diligent of operators from time to time. When a potential violation occurs, SMARA holds that either the lead agency or the Department of Conservation (read OMR) may initiate enforcement proceedings by issuing a notice of violation (NOV). All too often, the process results in an order to comply issued against the operator, which in turn can jeopardize the operator’s AB 3098 List eligibility. Removal from the AB 3098 List forecloses an operator’s ability to sell materials to State and/or local agencies, often a major component of many operators’ customer bases.

Enter SB 447. Under this new CalCIMA-driven legislation operators can maintain AB 3098 List eligibility while working to resolve enforcement issues required by an order to comply, and may now also negotiate the terms of, and stipulate to, such an order. These are called stipulated orders to comply.

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by Kerry Shapiro, Esq.

The recent submittal of significant proposed revisions to California’s mining law, the Surface Mining and Reclamation Act (“SMARA”), signals potentially broad-reaching changes to the statute. On February 21, 2014, Senator Fran Pavely (D) introduced SB 1270, a bill proposing to overhaul various sections of SMARA. SB 1270 proposes fundamental changes to SMARA. Click here for a copy of SB 1270.

If these changes go through, mine owners and operators will be subject to a new regulatory system under which the State will assume a far greater and centralized role in various aspects of SMARA, including mine inspections, enforcement, and establishment of financial assurance mechanisms. The mining industry also faces the likely prospect of increased carrying costs, arising from such proposals as changes to the annual reporting fee structure (proposed at a minimum of $1,000/year on a per-acre basis, and with no maximum cap), to increased ability to appeal decisions relating to the State’s “3098” list.

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by Kerry Shapiro

As reported earlier this week, the recent Ninth Circuit Court of Appeals decision in Center for Biological Diversity v. Salazar allowed a uranium mine on federal lands in Arizona to re-open after being idled for seventeen years absent any new federal approval or supplemental environmental review. This decision is notable on its own, but carries added significance in California, where it now highlights a potential conflict between federal and state law regarding idle mines and the resumption of mining operations at such mines.

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Kerry Shapiro

This three-part blog series on California SB 108, a bill which changes provisions in the Surface Mining and Reclamation Act of 1975 (SMARA) pertaining to “idle” mines, is based on a paper I first presented at the CalCIMA Conference in October 2011. If you have not yet read part one which gives background on the Interim Management Plan problem, or part two which discusses what SB 108 does and who it affects, you will want read those first.

SB 108: Unresolved Problems and Ideas to Address Them

  1. Application to Active Mines. It is arguably inappropriate to designate as “idle” an operation that is generating returns that seem adequate to support continuing operation and defray ultimate reclamation costs. One solution might be to establish a minimum annual quantity of production as a so-called “safe harbor” to qualify a mine as “active” without regard to changes in historical production level. After all, why should a mine be classified as “idle” simply because it now produces less than it used to? Future legislation could establish a minimum quantity of annual production as a “safe harbor” from classifications of “idle” or “abandoned.”

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