Best Best & Krieger News Feed

Agua Caliente v. Coachella Valley Water District, et al.

29 Sep 2016 00:00:00 -0800

Best Best & Krieger LLP Of Counsel Roderick Walston will discuss Agua Caliente v. Coachella Valley Water District, et al. at CLE International's Tribal Water Law's 5th Annual Conference.

Rod will discuss differing perspectives of this case with Mark Reeves of Kilpatrick Townsend & Stockton of Washington, D.C.

When
Thursday, Sept. 29
11 a.m. - 12:15 p.m.

Where
Caesars Palace
3570 S. Las Vegas Blvd.
Las Vegas, NV 89109

For more information or to register, click here.

Corruption-McDonnell Decision

17 Sep 2016 00:00:00 -0800

Best Best & Krieger LLP Of Counsel Gary Schons will discuss the recent U.S. Supreme Court decision in the Virginia Gov. Bob McDonnell case, and give a historical perspective on the High Court’s track record in political corruption matters.

When
Saturday, Sept. 17

Where
Aria Resort
3730 S. Las Vegas Blvd.
Las Vegas, NV 89158

For more information or to register, click here.

Sweeping Six-Case Win For Water District Helps Secure Orange County’s Water Supply

24 Aug 2016 00:00:00 -0800

California and water: the two always have been, [and] always will be, inextricably linked. No resource is as vital to California’s urban centers, agriculture, industry, recreation, scenic beauty, and environmental preservation as its liquid gold.
~ Ramon Llamas & Emilio Custodio, Intensive Use of Groundwater: Challenges and Opportunities 1, 280 (2003).

In early May, the Fourth District Court of Appeal took an important step toward helping to secure Orange County’s water supply. It issued several opinions in response to challenges to a proposed public-private partnership project that seeks to pump groundwater, which would otherwise evaporate, from an aquifer in the Mojave Desert to agencies throughout Southern California. The victory for the Santa Margarita Water District (the District) was the result of years of hard work, consultation, and cooperation among various private and public entities and interests throughout the environmental review process, which resulted in the approval of a beneficial public project (the Project) that will serve Southern California citizens for decades to come.

Project Background
Cadiz Inc. is a private corporation that owns approximately 34,000 acres of land in the Cadiz and Fenner valleys in eastern San Bernardino County. Despite the location in the heart of the desert, underlying the land is a vast groundwater basin that holds an estimated 17-to-34 million acre-feet of fresh groundwater. Within this closed basin system, groundwater percolates from higher elevations and eventually flows to Bristol and Cadiz dry lakes. Once the fresh groundwater reaches the dry lakes, it evaporates—first mixing with the highly saline groundwater zone under the dry lakes so that the water is no longer fresh, suitable, or available to support freshwater beneficial uses.

In the interest of preventing the waste of a beneficial water source, Santa Margarita Water District worked in collaboration with Cadiz to develop a creative, comprehensive, and long-term groundwater management program for the basin. Under the groundwater conservation and recovery component of the Project, an annual average of 50,000 acre-feet of groundwater would be pumped from the basin over a fifty-year period. The water would then be transported via a forty-three-mile underground water conveyance pipeline to the Colorado River Aqueduct, where it would be transported to the District and other participating agencies.

Environmental Review and Project Approval
In March 2011, the District posted a notice informing the public that a draft Environmental Impact Report would be prepared under the California Environmental Quality Act. In June 2011, San Bernardino County, Cadiz and the District executed a Memorandum of Understanding that provided that the District would act as the designated lead agency for purposes of completing the Environmental Impact Report (EIR). The District and its legal counsel (Best Best & Krieger LLP), worked to produce an EIR that analyzed the Project’s potential environmental impacts, while also ensuring that the EIR was legally defensible in all respects. On July 31, 2012, the District certified the final EIR and approved the Project.

The Lawsuits and Successful Defense in the Trial Court
Shortly after the District approved the Project, numerous lawsuits were filed challenging the Project.[1] The Center for Biological Diversity, the San Bernardino Valley Audubon Society, the Sierra Club and the National Parks Conservation Association, among other groups, filed several petitions for writ of mandate, challenging the Project under CEQA as well as compliance with county requirements. Some of the arguments that were raised by these groups included:

the District was improperly designated as the lead agency for the Project;
the EIR’s project description was inaccurate and misleading;
the EIR was misleading because it did not provide an accurate duration for pumping; and
the Project would pump more water from the aquifer than contemplated by the EIR.

A private party, Delaware Tetra Technologies, Inc., also filed legal challenges against the Project. Delaware Tetra operates brine-mining facilities at the dry lakes, producing calcium chloride brine and sodium chloride salt. Delaware Tetra filed several petitions for writ of mandate challenging, among other actions, the District and the County of San Bernardino’s execution of the MOU designating the District as lead agency, the adequacy of the EIR, and whether the county followed applicable county requirements.

The trial court ultimately denied all of the petitions and ruled for the District, the county and Cadiz on all causes of action. The petitioners appealed the trial court’s rulings.

The Court of Appeal’s Review and the District’s Victory
On May 10, the court of appeal affirmed the trial court’s rulings and denied all of the petitions in a series of partially published and unpublished decisions. In evaluating the claims, the court of appeal considered whether the designation of the District, versus the County of San Bernardino, as lead agency for the Project violated CEQA. Under CEQA, the “lead agency” for a project is usually the “public agency which has the principal responsibility for carrying out or approving a project.” Pub. Res. Code § 21067; Cal. Code Regs., tit. 14, § 15051(a), (b). Here, the environmental groups and Delaware Tetra argued that the County of San Bernardino should be the lead agency for the Project, in part because the groundwater would be pumped from the county.

Rejecting this argument, the court of appeal considered State CEQA Guideline section 15051, the guideline that governs the designation of lead agency under CEQA, and held that where an agency is contemplating partnering with a private entity, “the agency that will serve as lead agency for purposes of the environmental review . . . may be (1) the public agency that is part of the public/private partnership, or (2) the public agency with the greatest responsibility for supervising or approving the project as a whole.” Center for Biological Diversity v. County of San Bernardino, 247 Cal. App. 4th 326, 340 (2016).

Therefore, the District “was correctly designated as the lead agency for the Project under either prong of this test.” Id. The court reached this conclusion based on the District’s involvement in the cooperative partnership with Cadiz in implementing, overseeing, and carrying out the Project. In particular, the court emphasized the District’s day-to-day responsibilities for managing, operating, and maintaining the Project, as well as its obligation to obtain financing for the costs of operation.

In addition, the court held that the parties had appropriately designated the District as lead agency by agreement. Where two or more public agencies will be involved with a project and each has a “substantial claim” to serve as lead agency, CEQA provides that the parties “may by agreement designate an agency as the lead agency.” Cal. Code. Regs., tit. 14, § 15051(d). Here, the parties had entered into an MOU that designated the District as lead agency, which the court found appropriate given the District’s substantial authority over the Project “as a whole.” Center for Biological Diversity, 247 Cal. App. 4th at 343-44. As a result, the court held that the District had appropriately been designated as lead agency. The court also found that the EIR fully complied with CEQA. Id.

With regard to Delaware Tetra’s claims regarding the approval of the MOU, the primary claim related to whether the District and the county should have completed environmental review before approving the MOU. Resolving this issue turned on whether the approval of the MOU constituted a “project” under CEQA. A “project” within the meaning of CEQA is a discretionary activity by a public agency “which may cause either a direct physical change . . . or a reasonably foreseeable indirect physical change in the environment” Pub. Res. Code § 21065. As the impetus for several other necessary governmental approvals, Delaware Tetra argued that the MOU was a “core component” of the Project for which CEQA review was required. Delaware Tetra Technologies, Inc. v. County of San Bernardino, 247 Cal. App. 4th 352, 362 (2016).

The court of appeal disagreed, finding in part that the MOU expressly reserved “all discretionary authority to approve, deny, or condition the [Project]” pending the completion of environmental review. Id. Thus, environmental review prior to MOU approval would have been premature.

Finally, in related cases, the court of appeal found that the county had complied with its requirements prior to taking action on the Project.

Conclusion
As public agencies continue to search for drought resilient water supplies, this case represents a major victory for both the District and the citizens of Orange County. In addition, it provides an excellent example of how public and private entities may coordinate to ensure that public infrastructure projects are successfully navigated throughout the regulatory and litigation processes to completion.

ENDNOTE
(1) Center for Biological Diversity et al. v. County of San Bernardino et al., Orange County Superior Court Case no. 30-2012-00612947; Center for Biological Diversity et al. v. County of San Bernardino et al., Orange County Superior Court Case no. 30-2012-00633936; Delaware Tetra Techs., Inc. v. Santa Margarita Water District et al., Orange County Superior Court Case no. 30-2012-00636391; Delaware Tetra Techs., Inc. v. County of San Bernardino et al., Orange County Superior Court Case no. 30-2012-00594355; Delaware Tetra Techs., Inc. v. County of San Bernardino et al., Orange County Superior Court Case no. 30-2012-0056715; Delaware Tetra Techs., Inc. v. County of San Bernardino et al., Orange County Superior Court Case no. 30-2013-00635215.

Michelle Ouellette is a partner in Best Best & Krieger LLP’s Environmental Law & Natural Resources practice group. Her practice emphasizes the California Environmental Quality Act, the National Environmental Policy Act, and state and federal endangered species laws. She can be reached at Michelle.Ouellette@BBKlaw.com.

###

This article originally appeared in the August 2016 edition of Orange County Lawyer magazine, a publication of the Orange County Bar Association. Reprinted with permission.

Public Agency Not Subject to 60-Day Limit

22 Aug 2016 00:00:00 -0800

Claims by a public agency seeking a court’s help in undoing a contract, because one of the parties to the agreement had a conflict of interest, are not time barred, a California appellate court has ruled. The 60-day validation statute does not apply, but, rather, the Government Code section that authorizes a four-year period for an interested party to bring suit to void a contract made in violation of the law does.

Two public agencies and a water company in Monterey County entered into a series of agreements to collaborate on a water desalination project. As the final agreement was being considered for approval by the Monterey County Water Resources Agency, one of its directors revealed for the first time that he had had a consultant agreement with the business that was selected as the project General Manager and was paid to advocate for the agreements. The director resigned and was later convicted of a felony violation of Government Code section 1090, a willful violation of the law.

More than two years later, California-American sued Monterey and the other water agency, Marina Coast Water District, to have the contracts declared void under section 1090. Eventually, Monterey filed a cross-complaint also seeking to have the agreements declared void under section 1090. Marina, alone, sought to “defend” the contracts by contending that the section 1090 claims were time barred because no party had sought to have the contracts declared void within 60 days of their execution as required by the validation statutes.

Government Code section 1090 is the powerful anti-conflict of interest statute that declares that any contract made by a government entity in which a member of the board or council of the entity has a financial interest is void. A related statute, section 1092, authorizes an interested party to bring suit to have a contract made in violation of the law voided, and provides a four-year period to bring such a lawsuit from the time of the discovery of the conflict.

A quite separate group of statutes create a process known as “validation.” Under these validating proceedings (CCP § 860 et seq.), a public agency may file a legal action to have a court determine the validity of any matter enacted by the agency. The validation process has a 60-day window and, even if the agency does not file an action seeking validation, a challenge must be filed within that same 60-day period or the validation is deemed to occur.

The tension, if not outright conflict, between section 1092’s four-year statute of limitations and the validation statutes’ 60-day window is evident. The First District Court of Appeal held that the validation statutes do not apply to a government entity who is a party to the contract. Therefore, Monterey’s lawsuit was timely because it was filed within the four years statute of limitations provided for in section 1092. The court went on to find that the director clearly had a prohibited financial interest in the contracts and they were accordingly void.

Of greater significance to future section 1090 litigation is what the court had to say about the conflict between section 1092 and the validation statutes, even ignoring its express language exempting a public agency. The court suggested, without deciding, that the validation statutes’ 60-day window should not apply to any action under section 1090.

Why does this matter? Two reasons. First, any party to a contract made in violation of section 1090 may bring suit within four years to have it declared void. Thus, a private entity who is a party to a contract, like the private water company in this lawsuit, may bring an action under section 1092 seeking to have a contract declared void. However, only a public agency contracting party is exempt from the validation statute, and its 60-day window, by the express terms of the statute. So, if the validation statutes do not apply to a section 1090 lawsuit, the private entity may seek to sue outside the 60-day window. Second, and more significantly, some appellate courts have recognized that taxpayers or citizen taxpayer groups have standing to sue under section 1092 to have a contract declared void, and even to name the public entity as a defendant. Here again, if the short validation 60-day window does not apply, these parties may sue within four years and this will serve to foster and promote this type of litigation.

If you have any questions about this opinion or how it may impact your agency, please contact the attorney author of this Legal Alert listed to the right in the firm’s Municipal Law practice group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

20 BB&K Attorneys Make Best Lawyers in America 2017 List

15 Aug 2016 00:00:00 -0800

For Immediate Release: August 15, 2016
Media Contact: Denise Nix • 213.787.2552 • denise.nix@bbklaw.com

RIVERSIDE, Calif. -- Best Best & Krieger LLP congratulates the 20 attorneys who were selected by their peers for inclusion on The Best Lawyers in America© 2017 list. In addition, Partner Edward J. Quinn, Jr. and Of Counsel Joseph Coomes are being recognized as Lawyers of the Year for their contributions to the legal industry, and their professional achievements. This is the second year in a row that Joe has earned this prestigious honor.

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For the 2017 edition, more than 83,000 leading attorneys globally were eligible to vote, and 7.3 million votes were analyzed. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. To learn more about Best Lawyers, click here.

Below are the BB&K attorneys included on The Best Lawyers list, by office, along with the practice areas they were recognized for:

Irvine

Sonia R. Carvalho, Municipal Law

Los Angeles

Eric L. Garner, Litigation – Environmental and Water Law

Ontario

John E. Brown, Municipal Law
Stephen P. Deitsch, Land Use and Zoning Law and Municipal Law

Riverside

Arthur L. Littleworth, Energy Law, Environmental Law, Litigation – Environmental, Natural Resources Law and Water Law
Michelle Ouellette, Energy Law, Environmental Law, Litigation – Environmental and Natural Resources Law
George M. Reyes, Corporate Law

Sacramento

Joseph E. Coomes, Jr., Land Use and Zoning Law and Municipal Law
T. Brent Hawkins, Municipal Law
Gary F. Loveridge, Health Care Law
Edward J. Quinn, Jr., Land Use and Zoning Law and Municipal Law
Ann Taylor Schwing, Appellate Practice
Harriet A. Steiner, Litigation – Municipal and Municipal Law
Iris P. Yang, Land Use and Zoning Law, Litigation – Municipal and Municipal Law

San Diego

Robert J. Hanna, Commercial Litigation
Shawn D. Hagerty, Land Use and Zoning Law
Arlene P. Prater, Employment Law - Management
Gary Schons, Ethics and Professional Responsibility Law

Walnut Creek

Gene Tanaka, Litigation - Environmental
Roderick E. Walston, Natural Resources Law and Water Law

###

Best Best & Krieger LLP is a national law firm that focuses on environmental, business, education, municipal and telecommunications law for public agency and private clients. With 200 attorneys, the law firm has nine offices nationwide, including Los Angeles, Sacramento, San Diego and Washington, D.C. For more information, visit www.bbklaw.com or follow @BBKlaw on Twitter.

Appellate Court Again Sides with BB&K Client in Groundwater Rights Dispute

14 Jul 2016 00:00:00 -0800

On behalf of the City of Santa Maria, Best Best & Krieger LLP Managing Partner Eric Garner and Partner Jeffrey Dunn secured an appellate victory in a long-running groundwater rights dispute. In an opinion certified for publication by the Sixth District Court of Appeal, handed down June 24, 2016, the court held that a lower court was correct to quiet title to a groundwater basin for a group of landowners.

The landowners unsuccessfully asserted that, for the trial court to quiet title, it must have quantified the proportionate prescriptive right to the pumped groundwater as to each property owner. The Appellate Court rejected the argument, finding that the quantification was unnecessary at the time of judgment — as the basin was not in overdraft. However, should there be future periods of overdraft, then the court could consider a quantification of each landowner’s groundwater right.

The opinion follows a 2012 published opinion that upheld the City’s prescriptive right to groundwater and court-imposed groundwater management plan by the City of Santa Maria and other groundwater users. The two decisions provide guidance to California courts as to how to allocate increasingly scarce groundwater supplies.

The case is City of Santa Maria et al v. Richard E. Adam, H041133

City Slapped Down on anti-SLAPP Claim

03 Jun 2016 00:00:00 -0800

In a decision that illustrates government entities’ limits of the anti-SLAPP process, an appellate court rejected the City of Carson’s use of the statute in defending against a broken contract claim. Carson hoped to lure an NFL franchise (or two) to town by developing a sports and entertainment complex, including a football stadium. To that end, the City entered into an exclusive agency agreement with Richard Rand and his Rand Resources to negotiate with the NFL for the franchise designation and stadium development. The relationship between the City and the mayor eventually soured, however, over an unrelated dispute.

Rand later alleged in a state court lawsuit against the City that the City violated the agreement and allowed Leonard Bloom and his company to begin to act as its agent and representative in negotiating with the NFL. The City and Bloom responded by filing an anti-SLAAP motion, asserting their communications regarding the proposed development of the NFL fell within the “public interest” portion of the statute.

The Legislature enacted the anti-SLAPP statute (CCP §425.16) in the 1990’s to provide an expedited pre-trial process to eliminate unmeritorious civil actions filed primarily to chill the exercise of political rights, such as the rights to free speech and to petition the government in connection with a public issue. Under this law, a defendant may move to have an action dismissed upon showing that the plaintiff’s cause of action arises from an act by the defendant in furtherance of the defendant’s right of petition or free speech in connection with a public issue. If established, the plaintiff must then demonstrate a likelihood of prevailing on the claim. Government entities soon deployed the anti-SLAPP process to ward off unmeritorious lawsuits challenging governmental decisions and actions, and the courts found that they were “persons” under the law and that government entities have “speech interests” as “governmental speakers.”

The trial court granted the anti-SLAPP motion and dismissed most of Rand’s lawsuit. He appealed. In a decision in Rand Resources v. City of Carson et al.on May 31, the Court of Appeal reversed the trial court’s order dismissing the various causes of action in Rand’s lawsuit. The court focused its analysis on what constitutes “an issue of public interest” under the statute. Critically, the court noted that, while the development of an NFL-worthy stadium and obtaining a team franchise for the City was a matter of “substantial public interest,” Rand’s lawsuit was predicated on commercial conduct, and in particular, who would represent the City in those negotiations. The court concluded that the identity of the City’s representative was not a matter of “public interest,” which must “go beyond the parochial particulars of the given parties.”

This decision demonstrates the limits of the anti-SLAPP process when deployed by a government entity. That is to say, not every act of a government entity is a matter of “public interest” under the statute, as that would sweep in a wide array of actions and decisions not comprehended by the law. As the appellate court observed, “[t]he part is not synonymous with the greater whole.” Thus, while there is great deal of fanfare and public interest in attracting an NFL franchise and developing an NFL stadium, the nitty gritty aspects of the deal are hardly what attracts and holds public interest.

If you have any questions about this opinion or how it may impact your local agency, please contact the attorney authors of this Legal Alert listed to the right in the firm’s Municipal Law practice group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Beaumont: Why City Still Owes Millions in Transportation Lawsuit

18 May 2016 00:00:00 -0800

Best Best & Krieger LLP attorneys Jeffrey Dunn and Thomas Eastmond won a $57 million trial award on behalf of the Western Riverside Council of Governments in a transportation fee dispute with the City of Beaumont. The court found that, had the case been one for fraud, it would have found fraud by clear and convincing evidence because “[t]he evidence and testimony reveals that city management and staff engaged in a pattern and practice of deception that transcends the typical give-and-take of dispute negotiation.” The case was years in the making with a painstaking gathering of evidence on the City’s convoluted finances. The court judgment opened the way to further investigation by local, state and federal officials. Partner Steven DeBaun, who serves as WRCOG general counsel, assisted with the case. (Read more about the case here.)

On May 17, the Riverside County District Attorney’s office announced that seven top city officials were charged for misappropriating those funds. The charges come nearly two years after BB&K provided evidence that showed Beaumont failed to comply with its Transportation Uniform Mitigation Fee Program obligations. The TUMF was administered by WRCOG.

The Riverside Press-Enterprise interviewed Jeff in connection to the charges.

BB&K Secures CEQA Appellate Victory in Water Project

13 May 2016 00:00:00 -0800

A team of Best Best & Krieger LLP attorneys, led by Partner Michelle Ouellette and including Sarah Owsowitz and Jennifer Lynch, helped to secure a sweeping appellate victory against six lawsuits challenging a proposed water transfer public-private partnership project. The Fourth District Court of Appeal upheld the project on May 10, 2016, finding that challenges brought under CEQA and other laws lacked merit.

The attorneys represent the Santa Margarita Water District, which is partnering with private landowner, Cadiz, Inc., to pump fresh groundwater from an aquifer in the Mojave Desert. The water would otherwise become unusable after mixing with highly salinated brine water and evaporating. The project will prevent the waste of water and transport it to water customers in Los Angeles, Orange, Riverside, San Bernardino and Ventura counties.

Lawsuits alleged the project was improperly approved under CEQA, and claimed the District was wrongly designated as the project’s lead agency. San Bernardino County’s approval of the project was also unsuccessfully contested. In a detailed analysis, the appellate court rejected the challenges — thus bringing the project closer to fruition at a time when the region is desperate for innovative projects like these to boost water supplies.

Read More

Sweeping Six-Case Win for Water District

11 May 2016 00:00:00 -0800

A proposed public-private partnership project to pump fresh groundwater, which would otherwise evaporate, from an aquifer in the Mojave Desert was upheld by a California Appellate Court on Tuesday. The project, a partnership between the Santa Margarita Water District and a private landowner, is to prevent waste of the water in the aquifer, and ultimately to transport the water to customers throughout southern California.

The Fourth District Court of Appeal issued several opinions in response to challenges alleging the District was not the proper agency to carry out the project’s environmental review under CEQA and that the project’s environmental impact report deferred mitigation, failed to analyze the final version of the Groundwater Management Plan adopted by the County of San Bernardino and contained a misleading and inaccurate project description. The lawsuits also alleged that a memorandum of understanding between the District, the County and landowner Cadiz, Inc. executed before certification of the EIR violated CEQA and the County’s Groundwater Management Ordinance. The court held for the District, the County and Cadiz on each point.

In a robust analysis, the court determined that the District was the proper lead agency to oversee the project’s CEQA review. Setting forth a two-prong test for designating a lead agency when a project is undertaken through a public-private partnership, the court determined the District was the proper lead agency on two separate grounds. First, the District was jointly carrying out the project with the private property owner and, second, it was the agency with principal authority for approving and supervising the project as a whole.

The court also concluded the EIR accurately described the project as conserving water, given that the project will conserve water otherwise lost to brine and evaporation, and will improve water supplies throughout California. The court further found that the EIR did not defer mitigation, as the adopted mitigation measures adequately addressed the project’s significant impacts. It went on to rule that those portions of the Groundwater Management Plan that were not included in the draft EIR did “not constitute significant new information requiring recirculation of the EIR.”

Finally, the court determined that the MOU did not violate CEQA or the County’s Groundwater Management Ordinance because its approval was consistent with the Ordinance and was not a “project” under CEQA, as it did not commit the County to any activity with direct or indirect impacts on the environment.

Best Best & Krieger LLP attorneys were part of the legal team that secured this decision on behalf of the Santa Margarita Water District.

If you have any questions about this opinion or how it might impact your agency, please contact one of the attorney authors of this Legal Alert listed at right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @bbklaw.