Natural Resources & Mining

JMBM’s Natural Resources & Mining Group provides companies and trade associations with unparalleled counseling, compliance, and litigation services in nearly every area of federal and California natural resources and mining law. Our clients include a wide range of industries including hard rock mineral mining, common variety industrial and construction materials, water resources, and energy resources such as solar, wind, oil and gas, geothermal, and liquid natural gas.

We specialize in providing full-service legal representation, from the strategic planning required at the beginning of a project through the litigation and compliance required at the end. A typical project—whether for the development, sale, acquisition, or management of natural resources—requires some combination of counseling, strategic planning, transactional, legislative, and litigation services. Providing all of these services equally well requires deep legal expertise, multi-disciplinary skills, and an intuitive understanding of how companies establish, operate, and grow their businesses.

Our attorneys have developed these attributes from over twenty-five years of practice representing a wide range of industries. Our clients also benefit from our unique and diverse backgrounds —including as general counsel to a major industry trade association; counsel at the Environment & Natural Resources Division of the U.S. Department of Justice; and professionals at leading environmental consulting firms. As a nimble and integrated group, we are able to bring our collective experience and expertise to bear on our clients’ diverse and complex legal needs. We invite you to contact us to discuss your needs and how we can help.

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REPRESENTATIVE MATTERS

  • Permitting and defending the largest sand and gravel mining project on federal public lands in the United States. Between 2000 and 2006, we permitted and defended in multiple rounds of litigation a sand and gravel mine located in the Soledad Canyon area of Los Angeles County.

  • Permitting and defending large-scale renewable energy projects. Over the course of their careers, our attorneys have successfully secured rights-of-way and other permits for major geothermal, wind, and solar projects on public and private lands in California, Nevada, and Arizona, including:
    • A multi-billion dollar solar thermal facility in California, which we also successfully defended in federal court; and
    • A large-scale solar photovoltaic facility in Nevada, involving a contest proceeding over competing land rights.

  • Securing positive vested rights rulings from administrative agencies and the courts. For example, recently we have successfully secured vested rights determinations for:
    • An aggregate operation in the Yuba Goldfields, containing the largest aggregate deposit in California, and successfully defended that determination in state court;
    • A silver mine in San Bernardino County; and
    • A construction materials facility in Riverside County.

  • Helping to develop significant legislative updates. As counsel for the largest mining trade association in California, we recently played a leading role in developing AB 1142 (2016) and SB 209 (2016), the most significant amendments to the California Surface Mining and Reclamation Act of 1975 in the past 20 years.

  • Securing positive judicial precedents for our clients. We are accomplished litigators in the federal and state trial and appellate courts. For example, we recently secured a published opinion in favor of a significant in-stream mining operation in Save Cuyama Valley v. County of Santa Barbara.

  • Shepherding natural resources companies through bankruptcy. We recently served as counsel on environmental liabilities associated with the bankruptcy of a major mining operation in California, one of the only rare earth mines in the world.

  • Engaging with natural resource management agencies for positive outcomes. We have excellent relationships with federal, state, and local natural resource management agencies, as exemplified by our recent successes in negotiating mutually agreeable boundaries and policies for our clients’ projects within National Monuments and other landscape conservation areas.

  • Securing Positive Results in Dispute Resolution with Enforcement Agencies. We recently secured a settlement for nominal payment of claims filed by a District Attorney in northern California against our client for alleged contamination of state waters.

TYPES OF SERVICES

Permitting, regulatory compliance, and litigation

We regularly help clients sequence permit applications, strengthen environmental reviews, and make strategic business decisions. We excel at coordinating and collaborating with regulatory agencies, environmental groups, and other stakeholders. We have exceptionally strong experience in dealing with federal lands issues. We are experienced litigators and negotiators, with regular practice before the California and federal trial and appellate courts and in arbitrations and mediations. We have deep relationships with the leading environmental engineers, consultants, and public relations firms.

Our natural resources expertise extends to all of the major federal and California natural resources and mining statutes and topic areas. See our specific areas of natural resources expertise and mining expertise below.

Corporate and real estate transactions

JMBM’s attorneys are experienced in the acquisition, lease, merger and divestiture of mineral and natural resources and associated properties. We negotiate and document complex joint ventures or operating agreements for domestic and foreign energy development. We negotiate and document real property and extraction rights, mineral rights and operating rights. We are experienced in production royalties, severance taxes, depletion allowances, pipeline transmission tariffs, and fuel supply agreements. We assist independent operators in negotiating and contracting for services such as drilling and extraction. We also regularly work with title companies and clients to identify, negotiate, and secure real estate interests, rights, and authorizations for businesses and development projects.

Financing

Our lawyers represent clients in a wide range of project and other financings. We assist companies in sales and syndications of assets and commodities and financing through stock offerings, “roll ups” of partnerships, and conventional bank loans. We are experienced in structuring loans wholly or partially collateralized by field equipment, including drilling rigs. We have negotiated and implemented workouts with vendors to convert debt into equity participations in oil fields. We assist in workouts or foreclosures in the event of default.

Corporate defense and investigations

JMBM represents corporations, boards of directors, management and individuals in connection with a broad range of government investigations, enforcement actions, remediation and compliance, administrative proceedings, internal investigations and white collar criminal investigations and litigation.

Labor and employment

JMBM’s lawyers represent management in the full range of labor and employment issues, counseling them on the full range of workplace issues including disability and accommodation, discrimination, harassment, wage and hour issues, policies and procedures, unfair competition and privacy issues. We work with clients to help them avoid workplace problems, but where controversy is unavoidable we aggressively defend our clients’ interests, whether in single-plaintiff lawsuits or class actions. We have handled hundreds of jury trials, administrative trials and appeals before courts and administrative agencies nationwide.

Prevailing wages (California and federal)

Our attorneys are among the top legal experts in California and federal prevailing wage law. Prevailing wage claims can increase the cost of a major construction project by millions of dollars, and can be brought years after construction is complete. We advise and defend contractors and manufacturers, including businesses operating in natural resources, on the most challenging and complex prevailing wage matters. Our expertise extends to California SB 219 (2015), which extends California’s prevailing wage law to ready-mix concrete producers.

Bankruptcy

Our attorneys are skilled in insolvency and bankruptcy practice. We are recognized by U.S. News & World Report / Best Law Firms® with a Metropolitan First-Tier Ranking (San Francisco) for Bankruptcy Litigation, Bankruptcy and Creditor Rights/Insolvency and Reorganization Law. Our expertise extends to pre-petition planning, out-of-court workouts, restructuring real estate loans, maximizing relief in bankruptcy court, arbitration and mediation, buying and selling asserts, and other areas.

AREAS OF NATURAL RESOURCES EXPERTISE

  • Compliance with the National Environmental Policy Act (NEPA), and the California Environmental Quality Act (CEQA), including:
    • Helping clients select the best and most appropriate environmental consulting team for a given project;
    • Developing the legal strategy that best balances speed, efficiency, and legal defensibility;
    • Assisting in the preparation of environmental documents, including Negative Declarations, Environmental Impact Reports, Environmental Assessments and Environmental Impact Statements;
    • Helping clients navigate the environmental review process, including in responding to comments and drafting legal and factual findings; and
    • Representing clients through public hearings, administrative appeals, and judicial actions.

  • Compliance with the National Historic Preservation Act (NHPA), including Section 106 and Section 110 consultation.

  • Review and permitting under the federal and California Endangered Species Acts (ESA and CESA), including:
    • Section 7 consultation and federal nexus requirements;
    • Incidental take permits and statements; and
    • Compliance with habitat conservation plans and National Communities Conservation Plans, such as the San Bernardino Carbonate Habitat Management Strategy.

  • Clean Water Act (CWA) Section 401 (water quality certification) and Section 404 (dredge and fill permits) compliance.

  • California Fish & Game Code Section 1602 compliance (Streambed Alteration Agreements).

  • Compliance with, and permitting under, the public land laws, including the:
    • Federal Land Policy Management Act (FLPMA), including public land sales, land exchanges, and rights-of-way;
    • National Forest Management Act (NFMA);
    • Magnuson-Stevens Fishery Conservation and Management Act;
    • Marine Mammal Protection Act (MMPA);
    • Outer Continental Shelf Lands Act (OCSLA);
    • Revised Statute (R.S.) 2477;
    • Antiquities Act of 1906 (National Monuments); and
    • Williamson Act.

  • Securing, defending, and analyzing water rights, including:
    • Surface water rights (riparian and appropriative);
    • Groundwater rights (overlying, appropriative, and prescriptive);
    • California’s Sustainable Groundwater Management Act (SGMA); and
    • Federal reserved water rights.

  • Representation for the oil, gas and geothermal industries.
    • Transactions including acquisition, disposition and finance;
    • Leasing, production and distribution;
    • Patent applications, licensing, validity and infringement studies;
    • Representation before government and regulatory agencies.

  • Representation of clients providing alternative energy sources, including large- and small-scale solar, wind, hydroelectric, geothermal, and biomass energy projects.
    • Transactions including project finance, syndicated securities offerings, acquisition, and disposition of resources.
    • Compliance with public land energy laws and policies, including the Desert Renewable Energy Conservation Plan (DRECP).

  • Desalination.

  • Per se and regulatory takings and eminent domain.

  • Nuisance and trespass.

  • Public trust doctrine.

  • Related litigation.

AREAS OF MINING EXPERTISE

  • Securing entitlements for surface and hard rock mines under federal mining law, including the:
    • General Mining Law of 1872, including Section 3809 plans of operations, location and annual filings/compliance for unpatented mining claims, mineral patenting, validity examinations, locatability determinations, and contest proceedings;
    • Minerals Materials Act of 1947 and the Act of 1955, including competitive contract bidding and royalty negotiations and Part 3600 mining plans;
    • Mineral Leasing Act;
    • Federal Land Policy & Management Act (FLPMA);
    • Surface Mining Control and Reclamation Act (SMCRA); and
    • BLM regulations (43 C.F.R. Parts 3600 and 3800).

  • Securing entitlements, including vested rights, for virtually all construction materials, including aggregate, , cement, ready-mix concrete, industrial materials such as limestone, and decorative rock operations, as well as hard rock mining for gold, silver, and rare earth operations under the California Surface Mining & Reclamation Act (SMARA), SMARA regulations, and local mining ordinances, including:
    • Surface mining permits
    • Reclamation Plan approvals and amendments;
    • Financial Assurance Cost Estimates (FACEs);
    • Quarry annual inspections and reporting compliance;
    • Vested rights determinations and hearings;
    • Interim management plans; and
    • Enforcement orders.

  • Advising clients on recent SMARA changes (AB 1142 and SB 209);

  • Split estate and other severed mineral estate issues.

  • Mineral title examinations.

  • Valid existing rights determinations.

  • Assessing and protecting against liabilities in bankruptcy.

  • Legislative reform, including drafting and analysis.

  • Related litigation.

AGENCIES, COURTS, AND ADMINISTRATIVE TRIBUNALS WE REGULARLY PRACTICE BEFORE:

  • U.S. Department of the Interior, including:
    • Bureau of Land Management (BLM);
    • Interior Board of Land Appeals (IBLA)
    • Fish & Wildlife Service (FWS);
    • Solicitor’s Office; and
    • Regional Solicitor’s Offices.

  • U.S. Army Corps of Engineers.

  • U.S. Forest Service.

  • National Marine Fisheries Service (NMFS, also called NOAA Fisheries).

  • U.S. Environmental Protection Agency (EPA).

  • California Department of Conservation, including the State Mining and Geology Board and the Office of Mine Reclamation.

  • California Resources Agency, including:
    • Department of Fish & Wildlife;
    • Department of Water Resources (including the State Water Resources Control Board (SWRCB) and the Regional Water Quality Control Boards (RWQCBs));
    • California Coastal Commission;
    • California Energy Commission;
    • State Lands Commission; and
    • Central Valley Flood Protection Board.
  • Counties and cities, including planning commissions and mining programs.

  • Courts and administrative tribunals:
    • California Superior Courts (Riverside, Superior, Ventura, San Bernardino and Alameda Counties);
    • California Court of Appeal;
    • California Supreme Court;
    • U.S. District Courts (Southern, Central, Northern, and Eastern Districts);
    • U.S. Court of Appeals for the Ninth and Tenth Circuits; and
    • U.S. Department of the Interior Board of Land Appeals (IBLA).