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.

Environmental Groups to Sue Fish & Wildlife Service Over Listing of 417 Species

30 Aug 2016 00:00:00 -0800

In what could prove to have significant impacts to development and major public projects in California, the Center for Biological Diversity and other environmental groups recently filed a formal notice of intent to sue the U.S. Fish & Wildlife Service over alleged violations of the Endangered Species Act. According to the Center, the Service failed to make required findings on petitions to list 417 species as “threatened” or “endangered” under the Act.

In response to a petition for listing, the ESA generally requires the Service (or the National Marine Fisheries Service for most marine species) to make a finding within 90 days of receiving a petition as to whether or not there is “substantial information” indicating that the petitioned action may be warranted. Within one year of receipt of the petition, the Service must then make a further finding that the listing is either warranted or is not warranted.

Although the Service has made findings that ESA protection may be warranted for all of the 417 species petitioned, the Center alleges that the Service “failed to issue timely 12-month findings for any of the species.” If the Service does not make the required findings or “develop a legally binding timeline” for doing so within the next 60 days, the Center intends to file a lawsuit.

While the majority of the species targeted by the Center are southeastern aquatic and wetland species, the Center seeks listing of roughly 20 California species, ranging from the Arizona Toad to the Western Pond Turtle. This latest notice also comes on the heels of similar notices that have been sent to the U.S. Army Corps of Engineers and other entities over alleged impacts to Southern California species, including the Santa Ana sucker. Project proponents throughout the State should work closely with legal counsel to analyze how these actions may impact ongoing and future projects.

If you have any questions about this action or how it may impact your organization, please contact the attorney authors of this Legal Alert listed to the right in the firm’s Environmental Law & Natural Resources practice group, or your B B&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.

BB&K Files Appeal to U.S. Supreme Court in Threatened Santa Ana Sucker Case

24 Sep 2015 00:00:00 -0800

Best Best & Krieger LLP filed a petition to the U.S. Supreme Court on behalf of two cities and 10 water agencies, asking the high court to sort out the intersection of the nation’s endangered species and environmental policy laws. The long-running case stems from the designation of the so-called “critical habitat” for the threatened Santa Ana sucker fish. The following are links to news coverage and releases of the filing, which is being handled pro bono.

Riverside Press-Enterprise: “Environment: Santa Ana Sucker Case Appealed to Supreme Court”

The San Bernardino Sun: “Water Agencies Cite Concerns Over Sucker Fish Habitat Expansion”

Association of California Water Agencies: “Southern California Water Agencies File Appeal with U.S. Supreme Court Over Critical Habitat Designation for Santa Ana Sucker”

San Bernardino Valley Municipal Water District Press Release: “California Water Agencies petition Supreme Court to Require USFWS to Compy with Law”

Valley News (by City News Service): “Riverside: Sucker Suit – Water Fight Against Feds Goes to Supreme Court”

Courthouse News Service: “Water Suppliers Take Habitat Fight to SCOTUS”

E&E Publishing, "Endangered Species: Calif. Suit Over Fish Habitat Baits Hook for Supreme Court"

BB&K Press Release: “BB&K to File Appeal to U.S. Supreme Court in Threatened Santa Ana Sucker Case”

BB&K to File Appeal to U.S. Supreme Court in Threatened Santa Ana Sucker Case

22 Sep 2015 00:00:00 -0800

RIVERSIDE, Calif. - Two cities and 10 water agencies will file a petition for writ of certiorari in the U.S. Supreme Court on Tuesday, asking the high court to sort out the intersection of the nation’s endangered species and environmental policy laws. The petition by Best Best & Krieger LLP, which is serving pro bono as lead attorney on behalf of the petitioners, stems from a Ninth U.S. Circuit Court of Appeals decision over the designation of the so-called "critical habitat" for the threatened Santa Ana sucker — a small species of fish residing in the Santa Ana River. The lower court sided with the U.S. Fish and Wildlife Service in June, finding that adoption of a 2010 rule under the Endangered Species Act that doubled the size of the habitat of the fish, without consideration of the impacts of the designation on the human environment, did not violate the National Environmental Policy Act.

The agencies argue in the petition that the rule violates NEPA because the designation, itself, causes environmental impacts that were never examined by the FWS, including impaired water rights, reduced local water supplies, potential impairment of flood control efforts along the Santa Ana River and imposes greater pressure for increased exports from the Sacramento-San Joaquin Delta. In addition, the petitioners argue, the FWS failed to "cooperate with state and local agencies" to "resolve" water resource and species protection issues "in concert" in developing the habitat designation as required by the ESA and, for that reason, also violated the terms of that statute.

The petition asks the Court to answer two questions:

1. Whether the provisions of the ESA "displace" the provisions of NEPA or otherwise render NEPA analysis unnecessary, thus eliminating the requirement of environmental review when the FWS adopts a designation of "critical habitat" that has the potential to significantly affect the human environment.

2. Whether Section 2(c)(2) of the ESA is a meaningless, non-operative statement of policy that fails to create any substantive or enforceable rights regarding cooperation by FWS with state and local governmental agencies to resolve water resource issues arising from administration of the ESA in concert with conservation of endangered species.

The bottom-feeding freshwater fish found only in California was listed as a threatened species in 2000. In 2010, the FWS reversed a 2005 critical habitat designation that had excluded areas along the Santa Ana River that are unoccupied by the species or are already protected by the Western Riverside County Multi-Species Habitat Conservation Plan and, instead, included unoccupied areas below Seven Oaks Dam near Mentone, as well as areas covered by the MSHCP, to create thousands of acres of new critical habitat areas along the River. Much of the acreage is dry the vast majority of the time and is already protected through local efforts, and the designation dramatically limits the ability of local water agencies and municipalities to use locally captured runoff to recharge groundwater aquifers. Instead, the intent of the designation is to use precious local water supplies to simply push rocks and gravel to downstream areas actually occupied by the fish. The petitioners believe the environmental impacts of this wasteful use of local water supplies should have been considered by the FWS — but, were not — before the designation was adopted. They also argue that the FWS should have — but, did not —cooperate with local water suppliers in the designation process, as the ESA requires.

The BB&K team includes Gregory Wilkinson, Charity Schiller and Kira Johnson. The case is Bear Valley Mutual Water Co., et al v. Sally Jewell, et al, case number 12-57297, in the U.S. Court of Appeals for the Ninth Circuit.

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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.

Ninth Circuit Upholds Delta Smelt Biological Opinion Pumping Restrictions

18 Mar 2014 00:00:00 -0800

In a reversal potentially impacting the water supply to millions of Californians, the Ninth Circuit Court of Appeals recently upheld a biological opinion issued by the United States Fish and Wildlife Service (FWS) regarding the effect of California State Water Project (SWP) and federal Central Valley Project (CVP) operations on the delta smelt—a small fish located in the Sacramento-San Joaquin Delta. The Ninth Circuit held the biological opinion valid, largely based on general principles of deference to federal agencies. Although the court stated it was “acutely aware of the consequences of this proceeding,” its decision is likely to affect the availability of water to hundreds of thousands of acres of farmland and tens of millions of people throughout the state.

The Ninth Circuit upheld, however, a determination that the Bureau of Reclamation, as the federal operator of the CVP, failed to perform required analyses of human environmental impacts caused by implementing the biological opinion under the National Environmental Policy Act (NEPA). The court acknowledged that the district court will continue to actively manage Reclamation’s deadlines for completing this environmental review process.

In December 2008, FWS issued a biological opinion containing restrictions on SWP and CVP pumping in the Delta aimed at protecting the delta smelt. Several challenges were raised against the opinion and in 2010, the district court invalidated the restrictions, stating they were not based on the best available science and other requirements imposed by the Endangered Species Act and other federal laws.

In its current decision, the Ninth Circuit reversed, finding the analyses were supported by substantial evidence and were not arbitrary and capricious. The court deferred to FWS’s use of data, its setting of flow restrictions and its choice of salinity intrusion restrictions based on measuring locations. The court also deferred to FWS’s estimation of the levels of “entrainment” of delta smelt at the CVP and SWP pumps, as well as the opinion’s analyses of indirect effects on food supplies, water contaminants and other biological stressors. The court additionally held that FWS was not required to show whether its restrictions were economically and technologically feasible, within the implementing agencies’ authority, or consistent with the project’s purposes, as noted in the regulatory definition of a valid “reasonable and prudent alternative” under the Endangered Species Act.

The Ninth Circuit rejected arguments that FWS was required to distinguish between nondiscretionary and discretionary actions, or that it was required to perform environmental review of the biological opinion’s impacts pursuant to NEPA. However, the court upheld the district court’s remand based on the Bureau of Reclamation’s failure to comply with NEPA environmental review requirements before implementing the biological opinion.

For more information about this decision and its impact on your agency, please contact one of the attorney authors of this legal alert listed at right in the Environmental Law & Natural Resources practice group, or your BB&K attorney.

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.

Court Issues Long-Awaited Ruling Rejecting Delta Salmon Biological Opinion

21 Sep 2011 00:00:00 -0800

In a decision that could impact the water supply for millions of people, communities and farmers across California, a federal judge issued a ruling that will ease pumping restrictions on the state and federal water projects in the Sacramento-San Joaquin River Delta. The 279-page decision issued yesterday by soon-to-be-retired U.S. District Judge Oliver Wanger in Fresno confirms that the federal agencies must use the best available science and sufficiently justify their specific prescriptions aimed at protecting endangered species before imposing harsh restrictions on the Delta water projects. BB&K attorneys were among those lawyers who successfully argued before the judge.

The pumping restrictions on the federal Central Valley Project and the State Water Project were imposed as part of a biological opinion issued by the National Marine Fisheries Service (NMFS) in June 2009. The biological opinion concluded that pumping operations by the two projects were likely to jeopardize the continued existence and adversely affect the critical habitat of several salmon and other species that migrate through the Delta. As a consequence of this “jeopardy” opinion, NMFS imposed a “reasonable and prudent alternative” on the projects, and the U. S. Bureau of Reclamation agreed to adopt and implement the resulting restrictions on the timing and volume of water exports from the Delta. Several water agencies challenged the biological opinion, including the California Department of Water Resources, which operates the State Water Project.

In March 2010, the court determined that the federal agencies had violated the National Environmental Policy Act, by failing to evaluate the potential environmental consequences of their restrictions. Judge Wanger’s ruling yesterday concluded that the agencies also violated the Endangered Species Act and the Administrative Procedures Act by failing to rely on the best available science or sufficiently justify the prescriptions imposed against the projects.

Based on this decision, the federal agencies will be required to prepare and file a new biological opinion. In the interim, the court’s rejection of the biological opinion will likely allow the State Water Project and Central Valley Project greater latitude for pumping water from the delta. To find out more about the ruling, please contact Greg Wilkinson, Steve Anderson or your Best Best & Krieger LLP attorney.

BB&K's Gregory Wilkinson Named Among Top 100 Lawyers in California

21 Sep 2011 00:00:00 -0800

For Immediate Release: Sept. 27, 2011
Media Contact: Jennifer Bowles • 951.826.8480 • jennifer.bowles@BBKlaw.com

RIVERSIDE, Calif. _ The Daily Journal today named Gregory K. Wilkinson, an environmental and water attorney at Best Best & Krieger LLP for the last 25 years, as one of the Top 100 lawyers in California for 2011.

Wilkinson was singled out for successfully arguing before U.S. District Judge Oliver Wanger in Fresno that the federal government must fairly and honestly address the water needs of humans before reducing deliveries from the Sacramento-San Joaquin Delta, California’s largest water source, to cities and farmland in order to protect species listed under the Endangered Species Act.

“This is a tremendous honor and I feel extremely privileged to be selected among such distinguished company,” Wilkinson said.

The Daily Journal Corp., publisher of the Los Angeles and San Francisco Daily Journals, issued its list of the top 100 attorneys in a special supplement to today’s editions. According to the State Bar of California, there are more than 225,000 attorneys statewide.

Wilkinson was representing the State Water Contractors and, through them, the 25 million Californians who rely on the State Water Project to deliver water to their homes and businesses during two key arguments before U.S. District Judge Oliver Wanger in Fresno.

The arguments were won last year during ongoing cases involving the Delta smelt and various species of salmon that are protected by the U.S. Endangered Species Act.

In a ruling on May 18, 2010 in the so-called Consolidated Salmonid Cases, Wanger agreed with Wilkinson when he wrote: “Federal Defendants have acted arbitrarily and capriciously in formulating [Reasonable and Prudent Alternative] Actions to protect threatened species under the ESA that lack factual and scientific justification, while effectively ignoring the irreparable harm those RPA actions have inflicted on humans and the human environment.”

It was not the first time a court agreed with Wilkinson on this topic. In Bennett v. Spear, Wilkinson successfully argued before the U.S. Supreme Court that those facing negative economic impacts because of protections stemming from the Endangered Species Act have standing to sue. The court issued its ruling in 1997.

Before joining BB&K in 1986, Wilkinson served nine years as a deputy attorney general in California specializing in water law matters and four years as the chief of land and water resources law for the Development Law Service of the United Nations Food and Agriculture Organization in Rome, Italy.

In 2000 and 2001 he led a team of United Nations and World Bank experts in rewriting the water law of Namibia to eliminate apartheid-era rules regarding water allocation.

A longtime resident of Redlands, Wilkinson has been involved with the Second Harvest Food Bank of Riverside and San Bernardino counties for a number of years and is currently the president of the organization's board. The food bank provides about 25 million pounds of food each year and is feeding more than 300,000 people every month _ many of them Inland Empire children _ through a variety of churches, shelters and other community-based organizations.

Wilkinson, who grew up in Garden Grove, is a 1969 graduate of Claremont McKenna College in Claremont. He received his law degree from the University of California at Berkeley School of Law (Boalt Hall) in 1972.

BB&K Attorneys Walston, Calfee & Wilkinson Spoke at CLE's Endangered Species Act Conference

07 Apr 2011 00:00:00 -0800

BB&K attorneys Roderick Walston, Christopher Calfee and Gregory Wilkinson presented at CLE's Endangered Species Act Conference at the Hyatt Regency in Sacramento. Walston served as the conference program co-chair and presented "Constitutional Takings in the ESA Context: Recent Developments"; Calfee presented "Climate Change and the ESA: Durability of Permits"; and Wilkinson presented "Effects of the ESA on Individual River Systems".

For more information, please visit CLE's website.

Court of Appeal Finds Endangered Species Act Applies to State Agencies

21 Jun 2010 00:00:00 -0800

The California Court of Appeal for the First District recently held that a state agency is a “person” for the purposes of section 2080 of the California Endangered Species Act (CESA). The court has, therefore, confirmed that the section’s provisions prohibiting the import, export, taking, possession, purchase, or sale of endangered or threatened species without a permit, as required by section 2081(a) of the CESA, apply to state agencies.

Kern County Water Agency v. Watershed Enforcers is part of the ongoing dispute over operation of the State Water Project that is presently being litigated in several different cases. This case arose from the operation of the State Water Project’s Harvey O. Banks pumping plant by the California Department of Water Resources (DWR), which is a state agency.

The Court of Appeal stated that by reading sections 2081(a) and 2080 of the CESA together and noting the extension of other CESA provisions to state agencies, it is apparent that the Legislature intended for state agencies to be included within the provisions of CESA. The court then concluded that the policies of the Endangered Species Act and its goal of species preservation require that section 2080 be read to include state agencies to prevent the “unreasonable result that major actors . . . would be exempt from the general take provision.” DWR was ordered by the trial court to stop taking the fish species without permit authority. DWR has since complied with the order and obtained proper authorization from the Department of Fish and Game.

For more information on this decision and its potential impact on your agency or project, please contact your BB&K attorney or a member of the firm’s Environmental Law & Natural Resources practice group.

Disclaimer: BB&K e-Bulletins 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.

Court Grants Motion for Preliminary Injunction Against Delta Salmon Biological Opinion

19 May 2010 00:00:00 -0800

In a decision that will impact the water supply for millions of people, communities and farmers across California, Best Best & Krieger attorneys helped secure a federal district court ruling that will ease pumping restrictions in the Sacramento-San Joaquin River Delta (Delta). The court’s decision—issued yesterday after a two-week trial in March and April—not only represents a notable victory for water users, it suggests that the federal court is likely to strike down the entire opinion as not based upon the best available science.

The pumping restrictions on the federal Central Valley Project (CVP) and the State Water Project (SWP) were imposed as part of a biological opinion issued by the National Marine Fisheries Service (NMFS) in June 2009. The biological opinion concluded that pumping operations by the two projects were likely to jeopardize the continued existence of and adversely affect the critical habitat of several salmon and other species that migrate through the Delta. As a consequence of its “jeopardy” opinion, NMFS imposed a “reasonable and prudent alternative” on the projects, and the United States Bureau of Reclamation agreed to adopt and implement those restrictions. Several water agencies challenged the biological opinion, including the California Department of Water Resources, the operator of the SWP.

In March 2010, the court determined that the federal agencies had violated the National Environmental Policy Act by failing to evaluate the potential environmental consequences of their restricting CVP and SWP pumping. Yesterday, Judge Wanger of the Eastern District of California issued a ruling that the pumping restrictions were not shown to be necessary to protect salmon, and created undisputed significant impacts on humans. The court ruled that the federal agencies essentially relied on mere “guesstimations” for their restrictions.

The court found that equal protections were needed when balancing the harms suffered by water users against those suffered by the species, fishing industry and Native Americans. However, the federal agencies ignored the irreparable harm caused on humans and the human environment and failed to analyze alternative remedial measures that would minimize these injuries. Accordingly, the court held that injunctive relief was appropriate and was in the public’s interest, so long as it would not further jeopardize the species or their critical habitat.

Further hearings are pending to address implementation of the injunction that will potentially allow the State Water Project and Central Valley Project to increase water pumping from the Delta. To find out more about the ruling, please contact Greg Wilkinson, Steve Anderson or your BB&K attorney.

Disclaimer: BB&K e-Bulletins 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.