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Michael Sherman focuses his practice on land use, transactional, and federal and state wildlife issues for developers, farmers, and mining and oil and gas companies. His experience includes examining title for unpatented mining claims, negotiating mining leases, conducting acquisition due diligence, permitting new mines and expansions under SMARA, and resolving compliance issues and enforcement actions by local lead agencies, the SMGB and OMR. Michael also represents upstream oil and gas companies with operations in California, addressing land use, endangered species and regulatory issues and assisting clients with oil and gas title issues, including resolving disputes with mineral and royalty owners and issuing drilling title opinions and division order title opinions.

California’s State Mining and Geology Board had a busy 2017 with ongoing rulemakings to implement SMARA reform enacted in 2016.  The Board’s 2018 will be busy and one to closely watch too, in particular, because the Board plans to address the unintended environmental consequences created by the adoption fifteen years ago of what is known as the “Backfill Regulation.”

For those who fled California in the wake of the Backfill Regulation, here’s a quick refresher on why you packed your bags and haven’t returned.  The Backfill Regulation has two key requirements for open pit metallic mineral mines.  First, the regulation requires all open pit excavations to be backfilled to the original surface elevation.  Second, any excess material must be graded with the resulting topography not to exceed the pre-mining surface elevation by more than 25 feet.

Overall, the Backfill Regulation has been bad news for the California mining industry and the environment as explained in this February 2016 Update on the Regulatory Environment for Metallic Mines in California.  In a nutshell, the Backfill Regulation requires moving material twice (increasing GHG emissions), fails to address the proper storage and handling of waste materials (jeopardizing water quality), and can cause greater ground disturbances (impacting habitat for sensitive species).Continue Reading California Mining Board to Address Environmental Problems Created by Backfill Regulation Affecting Gold and Other Metallic Mineral Mines

Okay, maybe slightly longer than 60 seconds.  The point being, though, that CEQA case updates really should not read like law school case briefs.  Long discussion of the lower court’s findings?  No thank you.  Point/counterpoint for each and every argument made by petitioners?  No one has time for that.  Get in, get out and move on with some useful knowledge — that’s the goal for this update on CEQA cases in the first quarter of 2017.

If we had to pick a theme for first quarter CEQA cases, it would be simple: don’t stick your head in the sand, do explain yourself, and all will be fine.  Why this theme?  Continue reading and find out in these case summaries.
Continue Reading First Quarter CEQA Update in Under 60 Seconds

As the sands shift on federal climate change policy, California’s cap-and-trade program survives to fight another day.  Yesterday, a California Court of Appeal upheld the program because it does not impose a tax subject to the two-thirds supermajority vote requirement under Proposition 13.  The Court also affirmed the California Air Resources Board’s (CARB) authority to auction GHG emissions allowances.  For the ins and outs of the decision and prior coverage of the case, pop on over to Renewable + Law for a great post by my colleagues, Allison Smith and Parissa Florez.

Now, stating the obvious here: a lot is riding on this case.  The cap-and-trade program has generated billions of dollars in fees and the program plays a crucial role in California’s goal to cut GHG emissions.  Those fees don’t get paid with monopoly money, but instead hit the bottom line of companies across many different industries.  Of course, some consider the fees to be a small price to pay to prevent flooding, the sixth mass extinction, and in their view, the end of the world. On a level that hits closer to home for many readers of this blog, the challenge to the cap-and-trade program has added to the uncertainty of how to address GHG emissions for development projects subject to CEQA.  As previously discussed by my colleague, Tom Henry, reliance on the cap-and-trade program appears to be one of the few approaches to a legally defensible CEQA GHG analysis.Continue Reading CARB Wins Again on Cap-and-Trade, But Is It Really in Any Danger of Losing?

I should start writing a regular segment titled “On the Chopping Block this Week.” While Congress’ hands seem to be tied, the President surely doesn’t have the same problem with overturning policies from the Obama Administration.  This week was no exception, with the release of Trump’s Executive Order on Energy Independence and Interior Secretary Zinke’s

Newton’s Third Law apparently not only applies in physics, but in politics as well.  Last week, the California Senate leadership unveiled the “Preserve California” legislative package to oppose the rollback of federal environmental protections by President Trump and the GOP-controlled U.S. Congress.  The package included California State Senate Bill 49, aka the “California Environmental Defense Act,” which would adopt pre-Trump federal environmental and safety regulations as the minimum standards under California law.

Specifically, Senate Bill 49 would apply to the pre-Trump federal regulations issued under the federal Clean Air Act, Clean Water Act, Endangered Species Act, Safe Drinking Water Act, Fair Labor Standards Act, Occupational Safety and Health Act, and Mine Safety and Health Act.  The bill was introduced because Trump and the GOP have “signaled a series of direct challenges to these federal laws and the protections they provide ….”  Right on cue, President Trump released his plan yesterday to significantly limit the definition of waters of the United States protected by the Clean Water Act.
Continue Reading California to Thwart Trump’s Rollback of Federal Environmental Protections, Including Waters of US Deregulation

True to his word, Governor Jerry Brown signed two bills, AB 1142 and SB 209, into law on Monday to reform California’s Surface Mining and Reclamation Act (SMARA).  Now, before getting too excited, keep in mind that the new laws are nowhere near the “top to bottom” reform called for by Brown in 2013.  Local control with state oversight still remains at the heart of SMARA.  However, the new laws will have some real impacts on operators and lead agencies during inspections and state-review of reclamation plans and financial assurances.  The most significant reforms include:

New Name but No Changes in Responsibilities

The Office of Mine Reclamation (OMR) will be renamed the “Division of Mine Reclamation” and the Director of OMR will be the “Supervisor of Mine Reclamation.”  Despite a new name and title, the oversight role and responsibility of the renamed Division of Mine Reclamation and Supervisor of Mine Reclamation remain very much the same as before this reform.

Reform Is Expensive

Maximum annual fees imposed on operators will increase from $4,000 to $6,000 in 2017 to $8,000 in 2018 and to $10,000 starting in 2019.

Reclamation Plan Contents Clarified

The new laws clarified the required contents of reclamation plans for new surface mining operations.  The most significant change requires all engineering, geologist, or land surveyor related maps, diagrams or calculations to include a signature and seal from a California-licensed professional.  This has long been the policy of OMR, based on a policy adopted by the State Mining and Geology Board; however, that policy was never formally adopted through a rule making process applicable to all mines.  As a result, the policy frequently caused confusion as to its applicability during OMR’s review process for reclamation plans.
Continue Reading New Laws Reform California’s Surface Mining and Reclamation Act

El Niño has recently brought lots of rain to California, but it’s not quite time to start loading the animals two-by-two. However, the California Fish and Game Commission (Commission) did its part yesterday to save a potentially imperiled species by designating the Humboldt marten as a candidate species under the California Endangered Species Act (California ESA).

Humboldt marten, a mammal in the weasel family, can currently be found in forested areas in Northern California. Candidacy listing means the Humboldt marten now has full protection under the California ESA pending the review to list as threatened or endangered.  Those who work near Humboldt martens–mostly timber companies–now have two options during the candidacy period: (1) obtain authorization from the California Department of Fish and Wildlife (CDFW) to take Humboldt martens, which can be a time consuming process; or (2) assume the risk of an enforcement action for take violations if Humboldt martens are not avoided.

While this listing may appear to only affect a small geographic area, the decision has much broader implications for species listings throughout the state.
Continue Reading California Fish & Game Commission Adopts “Very, Very Low” Standard for Candidacy under California ESA

Looks like Christmas came early, again, for the Center for Biological Diversity (CBD).  Based on a petition submitted by CBD, the California Fish and Game Commission voted earlier this month to designate the tricolored blackbird as a candidate species under the California Endangered Species Act (ESA).  The tricolored blackbird now enjoys the same legal protections, including the “take” prohibition, that apply to endangered or threatened species under the California ESA.

Within the next 12 months, the Department of Fish and Wildlife will prepare a status report with a listing recommendation.  Based on staff comments at the candidacy hearing, it appears that report will take the full 12 months to prepare.  Consequently, the Commission would likely make its final determination to list (or not to list) the tricolored blackbird as endangered at a public hearing in early 2017.
Continue Reading Your Tricolored Blackbird Problem Just Got Worse With Candidate Listing Under the California ESA

While many of us were busy hitting refresh for those great Cyber Monday deals, the California Supreme Court quietly issued its decision on the Newhall Ranch project.  In a decision reminiscent of the snail darter era, the Court held that “fully protected fish” are just that — fully protected under California law from all forms of incidental “take” resulting from a development project.  The Court also found that project opponents had exhausted their administrative remedies by submitting comments during an “optional comment period.”  Further, the Court found inadequacies in the “business-as-usual” analysis of GHG impacts from the project.  Stay tuned for a post later this week from one of my air quality colleagues on the implications of the GHG analysis.

I won’t bore you with the long history of this litigation again and again, but in 2010 the California Department of Fish and Wildlife (CDFW) issued an incidental take permit and master streambed alteration agreement to facilitate the build out of the Newhall Ranch project, a mixed-use development project on nearly 12,000 acres in LA County.  Permitting and litigation for the project has been ongoing for over 15 years.

The opposition’s battle cry has consistently been the project’s potential negative impacts to multitudes of fauna and flora.  The showdown before the Court, however, involved only one tiny fish: the unarmored threespine stickleback (stickleback).  While the name may not scream “poster species,” the stickleback has “fully protected” status under California law.  Consequently, the California Fish & Game Code prohibits the “take” of stickleback, i.e. a person may not “hunt, pursue, catch, capture, or kill” or attempt any of those actions.
Continue Reading Take of Fully Protected Fish Stops Large Housing Development Project in LA County