Best Best & Krieger News Feed

California Supreme Court Sides with Public Agencies on Precondemnation Access Issue

26 Jul 2016 00:00:00 -0800

Best Best & Krieger LLP Partner Kendall MacVey filed an amicus curiae brief with the California Supreme Court in a critical eminent domain case. The Court ruled that numerous statutes grant public entities the authority to enter and engage in official activities on private property, including activities related to precondemnation. The brief supported upholding the right-of-entry statute at issue in the dispute.

The ruling and the brief, filed on behalf of the Riverside County Transportation Commission, stem from Property Reserve, Inc. v. Superior Court, S217738. In a unanimous opinion issued July 21, 2016, the Court upheld the State’s precondemnation right of entry statutes as constitutional, reversing a March 2014 appellate court ruling. The Court’s opinion referred to the Third District Court of Appeal’s ruling as “counterintuitive,” and evades the need for extensive statutory changes in how agencies access properties for necessary inspections and testing prior to commencing eminent domain actions.

The ruling is important to public agencies like RCTC and the California Department of Water Resources, which was seeking access to private properties to conduct environmental and geological studies for a possible water transportation tunnel.

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

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.

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Appellate Court Dismisses Challenge to Cities’ Assessments

02 Oct 2015 00:00:00 -0800

On behalf of the cities of Ontario and Rancho Cucamonga, a team of Best Best & Krieger LLP attorneys successfully defeated an action challenging assessments levied by the Greater Ontario Tourism Marketing District. Attorneys Richard Egger and Thomas Rice represented the cities. The San Bernardino County Superior Court dismissed the case for lack of standing. On Sept. 30, the California Court of Appeal dismissed the follow up appeal by opponents of the Tourism Marketing District.

Formed pursuant to the Property and Business Improvement District Law, the Greater Ontario Tourism and Marketing District includes all lodging businesses in the two cities. Its purpose is to jointly promote the businesses as “tourist, meeting and event destinations.” The District uses assessments imposed on hotels located in the two cities to fund its promotional activities. The challenger in the case claimed the assessments violated the California Constitution. The trial court ruled, however, that the organization did not have standing to challenge the validity of the assessments.

The appeal was dismissed because it was not filed in a timely manner. In its opinion, however, the appellate court noted that it would have upheld the lower court’s decision to dismiss the case on the merits.

The full published opinion can be read by clicking here.

BB&K Files Successful Amicus Brief in Eminent Domain Case

26 May 2015 00:00:00 -0800

Best Best & Krieger LLP attorney Kendall H. MacVey filed a successful brief as amicus curiae counsel to a California appellate court, which found that the Mello-Roos Act can be used to finance acquisitions by eminent domain. (Golden State Water Company v. Casitas Municipal Water District, B255408)

The brief was filed on behalf of the Association of California Water Agencies, the League of California Cities, the California State Association of Counties and the California Special Districts Association, which collectively represent more than 2,000 public entities. The entities supported Casitas’ position that it had the right to acquire Golden State Water Company to provide water service in the City of Ojai.

In a Mello-Roos election held in Ojai, 87 percent of the voters approved using Mello-Roos property taxes to finance Casitas’ acquisition by eminent domain of Golden State’s Ojai water system. Golden State, declaring its system was “not for sale,” brought a legal challenge to set aside the voter approved Mello-Roos measure.

The Second District Court of Appeal affirmed that the Mello-Roos Act should be “liberally construed” to allow for the financing of the acquisition of facilities.

Casitas is seeking control of the for-profit regulated utility, which has a monopoly in providing water service in Ojai, out of concern for high water bills. Casitas believes the Ojai community would benefit from having its water utility run by a locally controlled entity rather than an out-of-area-corporation seeking to maximize profits for its owners. The Second District Court of Appeal affirmed that the Mello-Roos Act should be “liberally construed” to allow for the financing of the acquisition of facilities. The California Supreme Court declined Golden State’s petition to review.

BB&K Attorneys Win $57 Million in Transportation Fee Dispute on Behalf of WRCOG

10 Jun 2014 00:00:00 -0800

*Updated

Best Best & Krieger attorneys Jeffrey V. Dunn and Thomas J. Eastmond won a $43 million trial award on behalf of the Western Riverside Council of Governments in a transportation fee dispute with the City of Beaumont.

An Orange County Superior Court judge found that Beaumont failed to comply with its municipal ordinance requiring Beaumont to collect and remit transportation impact fees to WRCOG. The impact fees are part of the Transportation Uniform Mitigation Fee (TUMF) Program administered by WRCOG. Under the TUMF Program impact fees collected from new development in western Riverside County are remitted to WRCOG and allocated to build new transportation infrastructure to mitigate the impact of development on the regional transportation system.

During the four-week trial, BB&K provided evidence that Beaumont failed to comply with its TUMF obligations and, instead, created both tax and traffic burdens on Beaumont’s own residents. The court found that“ the evidence shows poor local transportation planning and execution.” The court went on to conclude that “[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. Had this been a typical civil trial I would have found fraud by clear and convincing evidence as against the city.” (*In May 2016, seven former top city officials were charged for misappropriating the funds.)

In addition to the $43 million, WRCOG will be awarded pre-judgment interest of at least $20 million. BB&K attorney Steven DeBaun, who is general counsel to WRCOG, also assisted with the case.

BB&K Wins Prop. 218 Case for Community Services District

02 Mar 2012 00:00:00 -0800

Best Best & Krieger attorney Piero Dallarda won a key court decision for the Salton Community Services District when a judge ruled that the district did not have to refund some $300,000 to a mobile home park.

The plaintiff, the Salton Sea Mobile Home Park in Salton City, alleged the district was violating Proposition 218 by charging a monthly fee for sewer service that was not being used by some of the park’s empty lots.

Dallarda argued that the Prop. 218 refund process can’t be applied to a community services district like it can to a city or county. In addition, he argued, it takes resources and money to make the service available, whether or not it is used, and charging a monthly fee for that investment of resources does not violate Prop. 218.

Imperial County Superior Court Judge Jeffrey B. Jones granted Dallarda’s motion for summary judgment, which prevented an expensive trial from moving forward.

Two Southern California Water Districts Win Federal Case Involving Camp Pendleton

05 Aug 2009 00:00:00 -0800

Los Angeles _ A federal judge yesterday ruled in favor of two Southern California water districts in a case that involved breach of contract and water rights claims brought against them by the U.S. government and a neighboring water district.

The 120-page ruling issued Tuesday by U.S. District Judge Consuelo B. Marshall ends years of legal action and disputes over the Santa Margarita River watershed, a large watershed that serves thousands of residents in Riverside and San Diego counties.

“The case resolves years of litigation and puts to rest a lot of issues that have been in contention for a very long time,” said Piero Dallarda, one of the attorneys for Best Best & Krieger who tried the case during a nine-week trial in 2008. The firm represented Rancho California Water District.

The judge found, among other things, that the plaintiffs, the United States Marine Corps Base at Camp Pendleton and the Fallbrook Public Utility District, failed to prove damages in their case against Temecula-based Rancho California Water District and Perris-based Eastern Municipal Water District.

The judge also found that the water management practices of Rancho California Water District did not endanger in any way the water supply at Camp Pendleton, as the plaintiffs had alleged.

“In summary, plaintiffs have not proven they are entitled to relief under their water rights claims, their breach of contract claims, or any other claims asserted at the trial of this matter,” Marshall wrote in her ruling.

Specifically, the judge found that Rancho California Water District did not breach the 1990 contract involving the amount of treated wastewater it sends into the river’s watershed, which flows downstream to Camp Pendleton. The Marine base uses the water from the river’s watershed as its water supply.

In the lawsuit filed in 2003, the plaintiffs had claimed the districts had breached the contract to place two million gallons of water a day into the river. The San Diego Water Quality Control Board had granted Rancho California Water District a permit to conduct a pilot project for five years but later denied the district a permanent permit.

Instead, the district intermittently sent its treated water in a pipeline to the Santa Ana River, where another pipeline takes it to the Pacific Ocean.

“We were able to show the judge that the district did its utmost to do everything it could to make this contract work and manages its water resources well,” Dallarda said.

The ruling prevents the defendants from having to spend $300 million to buy additional water sources for Camp Pendleton or to build a desalination plant sought by the base to remove the salt from the water in the river basin.

Case Win: Association of California Water Agencies v. Evans

21 Sep 2004 00:00:00 -0800

Best, Best & Krieger recently scored a major victory in the federal Ninth Circuit Court of Appeals under the Endangered Species Act

In a case brought on behalf of the Association of California Water Agencies, the State Water Contractors and others, the Court held that BB&K had established a right to substantial attorneys fees on behalf of its clients since it had successfully "enforced" those provisions of the ESA that require the federal Government to consider the economic effect of its actions when it designates critical habitat for threatened or endangered species. Rejecting arguments brought by the United States Department of Justice, the Court determined that fees sought by BB&K for its clients were properly awarded under the "catalyst theory" of attorneys fees (involving a finding that BB&K's action served as the catalyst that caused the Government to modify its prior practice of non-compliance with the requirements of the ESA) and that the catalyst theory of attorneys fees remains good law within the Ninth Circuit.

The effect of the decision is to confirm that, when it designates critical habitat for species listed under the ESA, the Government must undertake a meaningful analysis of the economic impacts and can no longer simply assume that the bulk of the impacts occurred at the time of listing and, therefore, need not be considered. The ruling will be of assistance to property owners throughout the state dealing with critical habitat issues. Gregory Wilkinson of BB&K's Natural Resources Practice Group should be contacted if there are questions about the decision or its application.

Case Win: Lake Arrowhead CSD v. Lake Arrowhead Country Club

01 Jan 1900 00:00:00 -0800

BB&K Successfully Defends CEQA Challenge to Lake Arrowhead Community Services District's Supplemental Water Supply Fee

The Lake Arrowhead Community Services District prevailed in a lawsuit filed by the Lake Arrowhead Country Club that challenged the implementation of a Supplemental Water Supply Fee. On June 8, 2005, the Superior Court of San Bernardino County denied the Country Club’s petition. This is the second time the District has prevailed in litigation challenging the Fee.

The District adopted the Fee after several years of drought had reduced the water elevation of Lake Arrowhead to historically low levels. The District adopted the Fee in connection with a policy to reduce and ultimately eliminate reliance on the Lake as the District’s sole source of water for the provision of water service.

The lawsuit alleged that the District’s adoption of the Supplemental Water Supply Fee violated the California Environmental Quality Act. The Country Club argued that the District failed to conduct an adequate environmental review of the projects that could be funded by the Supplemental Water Supply Fee before it adopted the Fee. The Country Club also argued that the Fee was intended to expand District water service, rather than maintain existing service. The Court rejected those arguments.

The Court found that the Supplemental Water Supply Fee was intended to maintain existing water service. Therefore, the Court concluded that the District’s adoption of the Fee was exempt from CEQA. The Court also held that there was no evidence to show that the imposition of the Supplemental Water Supply Fee would cause an adverse environmental impact.

The District’s General Counsel, Jeffry Ferre of Best Best & Krieger said, “We are pleased that for a second time, the District has successfully defended a challenge to the Fee. This Fee will fund important water resource projects for the Lake Arrowhead community.

Although the challengers may still appeal the trial court decision, the District’s environmental attorneys, Jeffrey Dunn, Jennifer Buckman and Mark Servino, also from Best Best & Krieger, believe such an appeal should not be successful based on the trial court’s reasoned analysis of the record and the arguments raised by the parties. The Country Club is also challenging the Fee in a second lawsuit which is currently pending against the District.