Roderick E. Walston

Of Counsel

Roderick E. Walston is at the center of many of the region’s most impactful and landmark water rights cases. Especially in times of drought, these cases and decisions affect everyone in California and beyond — from homeowners and developers to farmers and businesses. As of counsel in Best Best & Krieger LLP’s Litigation and Environmental & Natural Resources practice groups, and previously during his long career in the California Attorney General’s office, Rod has litigated many of California’s most important natural resources and environmental cases, particularly at the appellate level and seven before the U.S. Supreme Court. His practice includes:

• State Water Rights and Water Quality Laws
• Federal Reclamation Laws
• The Clean Water Act
• The Endangered Species Act
• Public Trust Issues
• Land Use Regulation
• Constitutional Taking Issues

Rod is of counsel in BB&K’s Walnut Creek office and has served as the top lawyer for the U.S. Department of the Interior, and as head of the California Attorney General’s Public Rights Division, which handles all litigation in the natural resources, environmental and water law areas.

In addition to handling historic, precedent-setting water rights cases, including California v. United States, 438 U.S. 645 (1978), which held that federal water projects must comply with state water laws and National Audubon Society v. Superior Court, 33 Cal.3d 419 (1983), which held that the public trust doctrine applies to regulation of water, Rod is working on important water rights cases that will have regional, statewide and even national impacts. They include: 

• Environmental Law Foundation v. State Water Resources Control Board and Siskiyou County.  Rod represents Siskiyou County in a case that will decide whether the public trust doctrine applies not only to surface water, but also to groundwater.  Groundwater supplies about 40 percent of the state’s water supply. Currently pending before the California Supreme Court, the case will decide whether groundwater is subject to regulation under the common law public trust doctrine or is instead regulated by the Legislature’s statutes, including its recently enacted groundwater legislation.

• Agua Caliente Indian Tribe v. Coachella Valley Water District and Desert Water Agency. The Supreme Court has held that when the government reserves land from the public domain, such as for an Indian reservation or a national park, the government impliedly reserves enough water to satisfy the purpose of the reservation. But the Supreme Court has applied this principle only to surface waters, like rivers, lakes and streams, and has never applied it to groundwater. In a case that could reach the U.S. Supreme Court, Rod represents the Desert Water Agency in a case that raises the question whether this principle applies to groundwater. 

• Desert Water Agency v. Department of the Interior. Rod represents Desert Water Agency in two different cases related to whether state and local taxes apply to leased lands on Indian reservations. The question in both cases is whether a recent regulation adopted by the Department of the Interior, which prohibits state and local agencies from applying their taxes on Indian-leased lands, is valid under federal law. 

• Texas v. New Mexico.  In an original jurisdiction case before the U.S. Supreme Court, Texas sued New Mexico over its rights in the Rio Grande, an interstate river that flows from New Mexico to Texas. Rod represents a water district in New Mexico, the Elephant Butte Irrigation District, which regulates all water in the disputed portion of the river. Rod has filed a motion on behalf of the District to intervene in the Supreme Court action. The other parties — Texas, New Mexico and the United States — opposed the motion. The motion, which is currently pending before the Supreme Court, raises an important question concerning whether an entity created under state law has the right to intervene in an original action before the Supreme Court.

Prior to joining BB&K, Rod served as deputy solicitor/acting solicitor of the U.S. Department of the Interior (2002-2004); general counsel of the Metropolitan Water District of Southern California (2000-2002); chief assistant of the California Attorney General’s Office (1999-2000); head of the California Attorney General’s Public Rights Division (1991-1999); and deputy attorney general of the State of California (1963-1991).

Best Lawyers in America lists Rod for Natural Resources and Water Law every year since 2008. The International Municipal Lawyers Association recognized him in 2015 with the Amicus Service Award for his work on Los Angeles County Flood Control District v. the Natural Resources Defense Council. The State Bar of California honored him with the “Public Lawyer of the Year Award” in 2004 and hereceived the United States Supreme Court "Best Brief Award" from the National Association of Attorneys General in 1997 (for brief submitted in Bennett v. Spear, 520 U.S. 154).

Rod received his law degree from Stanford Law School, where he served as editor for the Stanford Law Review. He graduated cum laude from Columbia University. Rod previously attended Boise Jr. College and served as student body president. He is admitted to practice in the State of California and is a admitted to the U.S. Supreme Court, California Supreme Court and the U. S. Court of Appeals (First, Second, Third, Ninth and Eleventh circuits, District of Columbia Circuit and Federal Circuit).

Education

• Stanford University, J.D.
• Columbia University, B.A.

Bar Admissions

• California

Court Admissions

• U.S. Supreme Court, U.S. Courts of Appeals
• U.S. Courts of Appeals
• California Supreme Court

Awards

• The Best Lawyers in America®, Natural Resources & Water Law (2008-2017)
• International Municipal Lawyers Association Amicus Service Award (2015)
• "Public Lawyer of the Year Award" from the State Bar of California (2004)

Speaking Engagements

• "Do Federally Reserved Water Rights Apply to Groundwater?”, Groundwater Law Conference, April 26, 2016
• “The Public Trust Doctrine as a Limit on Use”, Law Seminars International, June 6, 2016

Roderick E. Walston

Of Counsel

• California v. United States, 438 U.S. 645 (1978) (U.S. Supreme Court held that federal agencies must comply with state water laws in operating federal reclamation projects)
• California v. Sierra Club, 451 U.S. 287 (1981) (U.S. Supreme Court held that private parties cannot enforce Rivers and Harbors Act of 1899)
• California v. Federal Energy Regulatory Commission, 495 U.S. 490 (1990) (U.S. Supreme Court held that federally-licensed hydropower projects are not subject to state regulatory water laws)
• California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) (U.S. Supreme Court held that states cannot apply civil regulatory laws on Indian reservations and therefore cannot regulate on-reservation tribal gambling operations)
• California v. Texas, et al., 450 U.S. 977 (1981) (U.S. Supreme Court issued temporary restraining order preventing Texas and other states from imposing embargo against fruits and vegetables imported from California as result of infestation of Mediterranean fruit fly)
• Environmental Protection Agency v. California, 426 U.S. 200 (1976) (U.S. Supreme Court held that federal agencies are not required to comply with state permit requirements under Clean Water Act)
• National Audubon Society v. Superior Court, 33 Cal.3d 419 (1983) (California Supreme Court held that public trust doctrine applies to water rights, and state has right to modify past water rights decisions affecting Mono Lake to protect public trust values)
• O.W.L. Foundation v. City of Rohnert Park, 168 Cal.App.4th 568 (2008) (California Court of Appeal, in first appellate interpretation of California's water supply assessment statute, upheld City's assessment of water supplies).

Roderick E. Walston

Of Counsel

• "California Water Law: Historical Origins to the Present," 29 Whittier L. Rev. 765 (2008)
• "Judicial Deference to Agency Interpretations: The Ups and Downs of the Chevron Doctrine," 15 S.E. Env. L. Jour. 405 (2007)
• "The Supreme Court Limits the Scope of the Endangered Species Act: National Association of Home Builders v. Defenders of Wildlife," Calif. Water Law & Policy Reporter 3 (Oct. 2007)
• "The Federal Commerce and Navigation Powers: Solid Waste Agency’s Undecided Constitutional Question," 42 Santa Clara L. Rev. 699 (2002)
• "The Constitution and Property: Due Process, Regulatory Takings and Judicial Takings," 2001 Utah L. Rev. 359 (2001)
• "Reborn Federalism in Western Water Law: The New Melones Dam Decision," 30 Hastings L. Jour. 1645 (1979), reprinted in 17 Pub. Land and Res. L. Digest 10 (1979)
• "Western Water Law," 1 Natural Res. & Env. 6 (Winter 1986) (American Bar Association publication)
   

Roderick E. Walston

Of Counsel

• American Bar Association:
  • Council Member, Section on Environment, Energy and Resources (2003 - present)
  • Chairman, Water Resources Committee (1988-1990)
  • Co-founder and Chairman, annual Water Resources Conference (1983-1991)
• Western States Water Council (California legal representative; gubernatorial appointee) (1985-2002)
• Association of California Water Agencies, Member, Legal Affairs Committee (2000-2002)