Articles Posted in Legislation

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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

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 and Martin Stratte

On January 20, 2021, President Biden’s first day in office, Acting Secretary of the Interior Scott de la Vega issued Secretarial Order No. 3395 (Order), which temporarily suspends decision-making authority delegated to Department of the Interior (DOI) Bureaus and Offices, such as the Bureau of Land Management. The Order will be in effect for at least 60 days.

According to the DOI website, the Order, while in effect, reserves decision-making authority for “Department leadership” described in the Order as “confirmed or Acting official[s]” who hold certain positions enumerated in the Order. The positions to which decision-making authority is reserved include the Secretary, Deputy Secretary, Solicitor, and six Assistant Secretaries identified in the Order.

Thus, the Order suspends the decision-making authority of DOI Bureaus and Offices, and restricts such authority to a select few high-level DOI officials who have been or will be put in place by the Biden Administration, until after the Administration has had at least 60 days to appoint new, and evaluate existing, officials within DOI Bureaus and Offices. Continue reading

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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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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.

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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.

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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

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