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The U.S. Department of the Interior (“DOI”) has announced “emergency” permitting procedures to accelerate energy and critical mineral projects (DOI official announcement here) under Executive Order (“EO”) 14156, Declaring a National Energy Emergency. These changes prioritize rapid approvals for energy projects that meet eligibility criteria, with unprecedented, streamlined processes under (i) the National Environmental Policy Act, (ii) Endangered Species Act, and (iii) National Historic Preservation Act.

Applicability

The DOI’s emergency procedures apply to projects meeting two criteria:

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The Trump administration has unveiled the first 10 mining projects designated for accelerated federal permitting under Executive Order 14157, Immediate Measures to Increase American Mineral Production, which prioritizes expedited permitting, federal land leasing, and funding of mining projects (discussed in our previous blogpost here). Published by the Federal Permitting Improvement Steering Council (Permitting Council), the list — including gold, silver, copper, lithium, coal, and potash ventures — prioritizes ventures critical to reducing U.S. reliance on foreign minerals and advancing national energy and economic security goals.

The Permitting Council identified high-value projects as “transparency projects” on the FAST-41 Federal Permitting Dashboard created under the Fixing America’s Surface Transportation (FAST) Act. Notable ventures include:

  • Stibnite Gold Project (Idaho): A proposed open-pit gold mine in central Idaho, aiming to mine gold, silver, and antimony.
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Following President Trump’s March 20, 2025, Executive Order (“EO”) 14157, “Immediate Measures to Increase American Mineral Production” (discussed in our blogpost here), and recent recognition of valid existing rights to continue mining for gold and rare earth elements at the Colosseum Mine (see our blogpost here blog), the administration has now taken decisive steps to advance one of the nation’s most significant mining projects: the Resolution Copper Mine in Arizona. On April 17, 2025, the U.S. Forest Service announced its intent to issue a Final Environmental Impact Statement (FEIS) and Draft Record of Decision (Draft ROD) within 60 days for the contested land exchange critical for the project. This move underscores the administration’s commitment to leveraging federal authority to fast-track domestic mineral production, even as legal and tribal challenges loom.

The Resolution Copper project, a joint venture between Rio Tinto and BHP, aims to develop the largest copper mine in the U.S., estimated to yield 40 billion pounds of copper over its lifetime. The mine hinges on a land exchange transferring 2,422 acres of Tonto National Forest land (Oak Flat, or Chí’chil Biłdagoteel to the Apache) to Resolution Copper in exchange for private parcels. Copper, recently added to the critical minerals list under EO 14157, is essential for renewable energy infrastructure, defense systems, and consumer electronics.

The Forest Service’s notice follows years of litigation and delayed consultations under prior administrations. The project is involved in pre-existing tensions with the San Carlos Apache Tribe and environmental groups. The Supreme Court is currently considering a petition filed by Apache Stronghold, a tribal advocacy group, to halt the land transfer (Apache Stronghold v. United States, No. 24-291). The petition argues that the project violates tribal religious rights and federal preservation laws.

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This week, the U.S. Department of the Interior (“DOI”) publicly confirmed the ongoing rights of Colosseum Rare Metals, Inc. (“CRM”) to continue mining operations at the Colosseum Mine, located within the Mojave National Preserve (“MOJA”) in San Bernardino County, California.  The Department’s communication reaffirms that CRM holds “valid existing rights” pursuant to the California Desert Protection Act (“CDPA”) to conduct mine operations under its existing plan of operations, approved by the Bureau of Land Management prior to enactment of the CDPA.  These rights include the right to explore for and extract rare earth elements in addition to gold.  [See DOI News Release and X announcement here]

DOI’s recognition of Colosseum’s mining rights furthers the goals of President Donald J. Trump’s Jan. 20, 2025, Executive Order “Unleashing American Energy” promoting domestic energy and resource independence, and March 20, 2025 Executive Order (“EO”) 14157, “Immediate Measures to Increase American Mineral Production,” spotlighting and bolstering domestic mining.  [See prior JMBM Blog on EO 14157 here]  In its recent news release, DOI underscored the importance of supporting domestic mining: “The resumption of mining at Colosseum Mine, America’s second rare earth elements mine, supports efforts to bolster America’s capacity to produce the critical materials needed to manufacture the technologies to power our future. For too long, the United States has depended on foreign adversaries like China for rare earth elements for technologies that are vital to our national security. By recognizing the mine’s continued right to extract and explore rare earth elements, Interior continues to support industries that boost the nation’s economy and protect national security.”

DOI proving EO Policies are more than just words

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On the heels of President Trump’s January 20, 2025, Executive Order “Unleashing American Energy” promoting domestic energy and resource independence, he is promoting United States natural resources with Executive Order (“EO”) 14157, “Immediate Measure to Increase American Mineral Production,” issued March 20 to spotlight and bolster domestic mining. The President’s latest effort to prioritize mining, and in particular critical minerals, should come as no surprise. In a January 2025 speech, President Donald Trump framed his administration’s vision for domestic mineral production, particularly rare earth minerals, which are currently dominated by Chinese production: “We’re going to environmentally free up our rare earth minerals… We have some of the best rare earth anywhere in the world, but we’re not allowed to use it because the environmentalists got there first. They use the environment to stop progress, and we’re not going to let that happen.” [EO 14157 can be found here.]

Consistent with this vision, the March 20 EO seeks to accelerate domestic mining projects, reduce reliance on foreign supply chains, and streamline regulatory processes, including by expanding the scope of critical minerals to include gold, copper, uranium, and potash, while addressing critical bottlenecks in mine waste management. The order also permits the National Energy Dominance Council (“NEDC”), established by the President’s February 2025 Executive Order “Establishing the Energy Dominance Council“, to add other minerals to be within the scope of the order.

The EO focuses on three core mechanisms to boost domestic mineral production: (1) expedited permitting, (2) federal land leasing, and (3) funding and financing. The EO also notably addresses the uncertainty surrounding mining waste management under the Mining Act of 1872, particularly after the Ninth Circuit’s decision in Ctr. for Biological Diversity v. United States Fish & Wildlife Serv., 33 F.4th 1202 (9th Cir. 2022) (“Rosemont Decision”). Some key points under the EO, and potential implications, include the following:

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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

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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On December 9, 2020, the California Energy Commission (CEC) appointed nine members of the new Blue Ribbon Commission on Lithium Extraction in California (Lithium Valley Commission).  The appointments were made pursuant to Assembly Bill 1657 (Garcia, Chapter 271, 2020) (AB 1657), which was signed into law by Governor Newsom on September 29, 2020.

AB 1657 requires the CEC to establish the Lithium Valley Commission to review, investigate, and analyze issues and potential incentives regarding lithium extraction and use in California, and submit a report to the Legislature documenting its findings and recommendations, on or before October 1, 2022.  AB 1657 also authorizes the CEC to appoint nine of the 14 members of the Lithium Valley Commission.

The nine members appointed on December 9, 2020 include:

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Just what makes a decision “final” enough to support a Fifth Amendment takings claim?

In his article, “‘Finality’ may be the next key issue in takings litigation,” published by the Daily Journal, Daniel Quinley of JMBM’s Natural Resources and Mining Group, addresses a recent Ninth U.S. Circuit Court of Appeals’ decision that indicates that determining the “finality” of a local agency’s decision may well be the next key issue in takings litigation. He writes:

“At the very least, one can rest assured that demonstrating that a local agency has made a definitive agency decision will remain critical in bringing successful Takings claims. For now, that process will involve continued robust participation in the local agency’s decision-making, timely requests for variances or exemptions, and efforts toward clearly capturing an agency’s definitive intent regarding a specific property.”

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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