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: The California Supreme Court’s denial of review in the Almond Alliance of California v. California Fish and Game Commission litigation Governor Gavin Newsom’s appointment of a fifth member of the California Fish and Game Commission 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 The United States Fish and Wildlife Ser ..read more

By Kerry Shapiro and Dan Quinley After more than a year of scientific study on the status of the western Joshua tree (“WJT”), the California Department of Fish and Wildlife (“CDFW”) has just completed its status review (“Status Review”) of the WJT and determined that the best available science on the species does not warrant listing it as threatened under the California Endangered Species Act (“CESA”). CDFW’s conclusion mirrors the conclusion independently made in a Population Study prepared on behalf of JMBM client California Construction and Industrial Materials Association (“CalCIMA”) and a ..read more

By Kerry Shapiro and Sarah Taylor 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 Cle ..read more

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 ..read more

By Kerry Shapiro and Patricia Belton Last week, the California Supreme Court handed down an important decision on prevailing wage law favorable to industry. On August 16, 2021, the California Supreme Court issued its decision in Mendoza v. Fonseca McElroy Grinding Co., Inc. S253574, answering the question whether prevailing wage must be paid for mobilization work, which involved transporting heavy machinery to and from a public works site under Labor Code section 1772. The Court held that section 1772 does not expand the categories of public work that trigger obligation to pay at least the pre ..read more

State Water  Board Announces Intent to Enforce 2019 Procedures for Discharges of Dredged or Fill Material as “State Policy” By Kerry Shapiro, Martin Stratte, and Daniel Quinley On February 3, 2021, the State Water Resources Control Board (“SWRCB”) issued a “Notice of Opportunity to Comment and Notice of Public Hearing and Consideration of Adoption” (“Notice”) of a resolution “to confirm that the State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State (Procedures) are in effect as state policy for water quality control.”  The Notice st ..read more

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 posi ..read more

By Kerry Shapiro, Martin Stratte and Daniel Quinley On December 18, 2020, the Sacramento County Superior Court prohibited the State Water Resources Control Board (“SWRCB”) from implementing California’s new wetlands and “waters of the state” protection program, and limited SWRCB’s application of the regulatory program to only waters already protected under the federal Clean Water Act. The court’s ruling essentially invalidates SWRCB’s nearly two-decade-long effort to fill the gap left by the shrinking scope of regulation under the federal Clean Water Act following the Supreme Court’s 2001 deci ..read more

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 find ..read more

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 critic ..read more