Published on:

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

Published on:

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

Published on:

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

Published on:

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.
Published on:

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.

Published on:

On April 25, 2019, the California Construction and Industrial Materials Association (CalCIMA) filed a petition for writ of mandate and complaint for declaratory and injunctive relief (“Petition”)  in Ventura County Superior Court challenging the County of Ventura’s approval of a proposed “Habitat Connectivity and Wildlife Corridor” Project and its implementing regulations.  The Project was approved by the County Board of Supervisors in March 2019 and is intended to “discourage” development within the Project area.  The County approved the Project without completing environmental review in accordance with the California Environmental Quality Act (CEQA).

The Project is essentially an overlay zone that is several hundred thousand-acres in size and includes thousands of acres of important mineral resource deposits (construction aggregate) that have been previously identified by the California Geological Survey and, in some instances, designated by the State Mining and Geology Board (both of which are separate divisions of the Department of Conservation) as being “regionally significant” in meeting the region’s building material needs. These important mineral deposits are a protected natural resource under CEQA and are necessary for use in future housing projects, road construction and repairs, and public infrastructure projects.

Due to the importance of these mineral resources, the County previously approved a Mineral Resources Protection overlay zone intended to ensure the resources were available for future extraction, and not encumbered by incompatible land uses.  The County also enacted specific “Goals, Policies and Programs” in its General Plan to provide enhanced protection for these mineral resources.

Despite the importance of these mineral resources, the County approved the Project overlay zone without completing any CEQA review.  The County concluded that CEQA compliance was not required because the Project is intended to benefit the environment.  However, notwithstanding these potential benefits, the Project and its implementing regulations will cause significant environmental impacts that require environmental review in accordance with CEQA, including the Project’s effects on future efforts to extract critical mineral resources. Continue reading

Published on:

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.

Posted in:
Published on:
Updated:
Published on:

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

Published on:

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?

Published on:

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