BB&K In The News

BB&K is proud to be one of only 20 law firms in the state to make Law360’s California Powerhouse list.

By: David McAfee

Law360, Los Angeles (July 07, 2014, 4:29 PM ET) -- With California facing one of the most severe water shortfalls in the state’s history, Gov. Jerry Brown declared a drought state of emergency earlier this year, calling on Californians to conserve water in every way possible. Amid this resource crisis,Best Best & Krieger LLP, a firm that has been at the forefront of the state’s most important water rights cases, has risen to the challenge.

With 174 attorneys across eight offices in California, BB&K has become a go-to firm for public agencies on a variety of the state’s most important issues, including those related to medical marijuana and the use, rights and quality of water, earning it a place on Law360’s list of California Powerhouses.

BB&K managing partner Eric Garner says the firm, which was founded in the 1890s and has worked on a number of the Golden State’s highest-profile water rights cases since then, is busier as a result of the state’s new drought restrictions. The firm says it has continued to build upon its longstanding water law practice in California, which has expanded to include other practice areas and opened an office in Washington, D.C.

BB&K, which almost exclusively represents public agencies and municipalities, has an intimate familiarity with the state’s water history and is actively engaged in the future of water management in the state. Garner says the firm is involved with legislation that would authorize the issuance of more than $11 billion in bonds to overhaul California’s water system and that it may be the most significant water legislation in the state in a century.

“We have clients who are very interested in the water bond, which will likely be on the November ballot and contain billions of dollars. It would pay for projects to help California be more water sustainable,” Garner told Law360 in an interview. “We have clients who are very concerned about making sure that their future water supplies are sustainable, and, of course, there is a legal component to that.”

In one recent water rights victory for a BB&K client, the city of Santa Maria prevailed after a 16-year dispute when the U.S. Supreme Court said last year that it wouldn’t review a challenge to a groundwater basin plan for the city. A group of farmers sued Santa Maria in 1997, saying they had a prior right to the groundwater in the basin and that the city’s ability to pump water should be cut off during shortages.

“Not surprisingly, this was not acceptable to the city. The only way to resolve the dispute was to bring everyone who pumps from the basin into a lawsuit — several thousand users,” Garner said, noting that there is currently no statewide groundwater regulation but that such legislation is under consideration.

“Under California law, it’s basically pump until a judge orders you not to,” Garner said. “In its published opinion, the appellate court found that people have at least an equal right to crops in a water shortage, and the court importantly recognized that Santa Maria’s historical pumping can continue into the future and be protected during a shortage. Both the California Supreme Court and the U.S. Supreme Court declined to review.”

Garner said that was the first case in which all elements of “prescriptive” water rights were fully tried in California.

Even more recently, the firm and its municipal clients prevailed when the Orange County Superior Court in April rejected all six challenges to an environmental impact report certified by the Santa Margarita Water District in connection with Cadiz Inc.’s public-private partnership. The project allows Cadiz to pull an average of 50,000 acre-feet of water per year from Mojave Desert aquifers and pump it through a 43-mile pipeline to different parts of Southern California.

The Center for Biological Diversity and Delaware Tetra Technologies Inc. sought to overturn decisions by the SMWD and the county of San Bernardino approving a water purchase and sale agreement for the project, according to Michelle Ouellette, a partner in BB&K’s Riverside office.

“The court considered a variety of California Environmental Quality Act claims by the Center for Biological Diversity and Delaware Tetra Technologies, including arguments that the county should have served as lead agency for the project and that the [environmental impact report] did not fully consider and mitigate for the hydrological impacts of the project,” Ouellette said of the case, which is being appealed. “Ultimately, the court found that the petitioners were not entitled to any relief and, specifically, that the lead agency concerns ‘did not rise to the level of a CEQA violation.’”

BB&K says its environmental law and natural resources group also represents public agencies in handling tough legal issues beyond water rights and conservation. BB&K attorneys provide public, charter and special school districts and offices of education with guidance and oversight in implementing energy efficiency and renewable energy projects, the firm said.

The firm says it has also achieved success for clients in cases involving municipal law, labor and employment and telecommunications. BB&K has even helped cities in California navigate the legalities of medical marijuana shops, according to the firm.

After California voters passed the 1996 Compassionate Use Act, there was uncertainty as to whether the states, cities and counties could regulate medical marijuana dispensaries, according to Jeffrey V. Dunn, a partner in BB&K’s Irvine office. Dunn successfully argued to the California Supreme Court that cities could ban the dispensaries through zoning ordinances.

In a highly anticipated and politically charged decision last year, the state high court found that the city of Riverside had the right to enact a ban despite two California laws legalizing the use of medical marijuana within the state.

“On behalf of the city of Riverside, I argued that there is no state law preemption or limitation on municipal authority to regulate marijuana dispensaries,” Dunn said, noting that the California Supreme Court agreed and opened the doors for cities and counties to regulate dispensaries and collectives.

“What was at stake was the ability of local municipalities to act in the best interest of their communities to limit or ban businesses that may cause public safety issues,” Dunn added. “The ruling is likely to have far-reaching benefits for California cities and counties, leaving significant leeway to enact local safety and zoning ordinances in a broad range of areas.”

BB&K was founded in 1891 by Raymond Best in Riverside, an area then known for its citrus groves, according to Garner. Raymond Best’s son Eugene Best joined the firm in 1918 and was made partner in 1925.

In 1938, John G. Gabbert joined the firm, which became Best Best & Gabbert a few years later. James Krieger joined the group in 1946, and when a third judgeship was created in the Riverside County Superior Court and was offered to Gabbert, the firm became Best Best & Krieger.

“Krieger continued to build the water law practice started by Gabbert, and the firm earned statewide accolades for its work, which was carried on in later years by Arthur Littleworth and now myself, among others,” Garner said. “The firm has expanded to include a variety of practice areas that benefit public agency clients, as well as those in the private sector.”

Garner said BB&K’s telecommunications practice and water quality work have already expanded nationwide, and its environmental practice and aspects of its governmental practice are likely to follow suit. But the firm will continue to maintain a focus on California’s laws, which Garner called “among the most complex in the U.S.”

“Whether that’s because the state government has a predilection toward regulation or because of its large population is anyone’s guess, but there is no question that the legal issues are very challenging and interesting to work on,” Garner said.

While many of the matters the firm handles are governed by California law, especially in the areas of energy and natural resources and telecommunications, BBK also works on a number of cases governed by federal law, according to Garner.

“Even on matters involving California law, because California is frequently at the forefront of legal issues, many of the matters we work on will likely soon be coming to other states,” Garner said.

Along with BB&K’s growth nationwide comes new private clients, but the firm has continued to primarily represent government entities, according to Garner.

“The majority of BB&K’s clients are public agencies, but we also handle a substantial number of matters on behalf of private clients, which includes medium-sized businesses and specialty services for large, private clients,” Garner said. “The primary difference is that, when you represent a public agency, you are serving the public interest; whereas, often with private clients, the primary goal is monetary. Also, because the work is on behalf of the public, the legal work we do is more open and transparent than work for private clients.”

Garner added that the great thing about heading BB&K is that its mix of municipal representations and minor private matters makes the firm “unique.”

“The large public agency practice means that many of our attorneys get to work in the public interest and on many of the most challenging issues that our society faces today,” Garner said. “At the same time, because of the resources we have, we are able to affordably give small and medium-sized businesses a range of services that very few law firms can.”

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This article first appeared on www.law360.com on July 7, 2014. Reprinted with permission.

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