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Natural Resources & Mining

JMBM’s Natural Resources & Mining Group provides companies and trade associations with unparalleled counseling, compliance, transactions, and litigation services in nearly every area of federal and California natural resources and mining law. Our attorneys also provide mining companies with representation in Latin America. 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.

As a resource for the mining industry, we publish the Natural Resources and Mining Law Blog, which provides timely legal news on mining and natural resources issues.

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 over many years of practice representing a wide range of industries. Our clients also benefit from the unique backgrounds of our members —including as general counsel to a major industry trade association, as country general counsel of a multinational mining company, and as professionals at leading environmental consulting firms. We invite you to contact us to discuss your needs and how we can help.

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REPRESENTATIVE MATTERS, CALIFORNIA AND FEDERAL

  • 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, 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 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 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 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 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 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.

REPRESENTATION IN LATIN AMERICA

Members of JMBM’s Natural Resources & Mining Group actively represent clients' interests in Latin America. Fluent in Spanish, Portuguese and French, one of our attorneys has lived or worked in virtually every country in the region, and has vast experience dealing with matters in these civil law jurisdictions.

Over the past two decades members of our group have created and refined two related and equally vital legal disciplines which have become invaluable tools in determining whether a contemplated mining transaction is both a viable and worthwhile investment: 1) Conducting Effective Legal Diagnoses and 2) Conducting Effective Diagnoses of Social Licenses to Operate.

Our team of Latin American experts has the experience, knowledge and resources to perform both an effective legal diagnosis and an effective social license to operate, providing in-house mining counsel, executives, and boards of directors with independent perspectives and assessments that are protected by the attorney-client relationship.

Conducting Effective Mining Legal Diagnoses

In order to identify the risks associated with the Latin American operations, projects and affairs of competing mining companies, it is imperative that a buying / selling / merging (or even “staying put”) mining company conduct one or more effective legal diagnoses. Language, cultural, and geographic barriers – as well as the misunderstandings that arise between the civil law environment of Latin American countries and the common law expectations of North American attorneys – can make an effective diagnosis difficult. But the absence of an effective and thorough legal diagnosis when entering into a transaction has resulted in mining companies leaving significant amounts of capital on the table, and often leaving these companies without the protections they need to conduct business with confidence. 

Conducting Effective Diagnoses of Social Licenses to Operate

It is widely accepted within the industry that the mining sector needs to redefine itself as a sustainable and responsible source of the world’s minerals. To accomplish this, mining companies need to earn a Social License to Operate (SLO) within all their stakeholder communities. Stakeholders include not only shareholders, customers, and foreign governments, but also local communities, indigenous peoples, environmental groups, and others. 

Gaining an SLO requires immediate direct and local interaction – ideally, before sending in an exploration team or before making the decision to develop a mineral deposit. Understanding what social risks and challenges the mining company faces and what issues matter to the local community are vital to the success of a mining project.

REPRESENTATIVE MATTERS, LATIN AMERICA

JMBM's mining lawyers have represented clients in the following matters:

  • Serving as Country General Counsel for one of the world's largest gold mining companies. We were responsible for all legal matters associated with the Pierina Gold Project, from initial acquisition of mining rights to commencement of operations, including: negotiating surface and land access rights with affected indigenous communities; acquiring title to all surface and mining rights, and coordinating defense of lawsuits and administrative challenges; acquiring all necessary permits and licenses; preparing and implementing a USD$300 million engineering, procurement, construction and management (EPCM) contract; participating in the Pierina Project Environmental Impact Study (EIS); creating an electric transmission company and obtaining all government permits concerning its operation and negotiating over 5,000 third party easements for its construction; constructing a fuel station and negotiating the supply and transportation of fuel. 
  • Conducting a legal audit of the land holdings and mining interests of major gold mining company's operating mines in Central America. 
  • Preparing and implementing an operating plan for the purchase of land. We represented a mid-tier silver mining company’s interests in Peru.
  • Negotiating, structuring and drafting (in both Spanish and English) over a dozen joint venture projects. We handled all in-country and off-shore documentation associated with the creation of joint venture projects in Colombia by one of the world’s largest gold mining companies.
  • Structuring and implementing a company’s acquisition of mining properties. We represented a large private silver company in the acquisition or mining properties in Mexico.
  • Coordinating due diligence for the acquisition of active gold mining operations. We handled all due diligence in connection with the Arrangement Agreement of two mid-tier gold mining companies in a Central American country.
  • Advising companies as to importation and transportation of toxic material. We represented the world’s largest producer of sodium cyanide in the product's importation into Chile and its transportation to various mining projects.
  • Negotiating land acquisitions with indigenous communities. We negotiated land acquisitions, drafted all exploration, option, joint ventures and other business arrangements, as well as all major supply agreements, in connection with a junior mining company’s zinc operations in Guatemala.
  • Developing a multi-jurisdictional Corporate Social Responsibility (CSR) strategy. For a Canadian gold exploration company, we developed a CSR strategy that could be scaled and adapted to each of its Latin American jurisdictions.
  • Negotiating with governmental officials in Guatemala. Negotiated the procurement of all rights, concessions and export licenses associated with the mining, manufacturing, and marketing of a major jade discovery in Guatemala.

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.

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)
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 assets, 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);
    • Mining in the Parks Act; 
    • 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 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);
    • National Park Service (NPS);
    • 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).