When Should Landowners Seek Permits for “Incidental Taking” of Endangered Species?

By David Ivester

Questions often arise whether land use and development activities would modify wildlife habitat in ways that “take” endangered species. The U.S. Fish and Wildlife Service has published a guidance memorandum explaining what landowners should consider when deciding whether they should apply to the Service for permits authorizing the “incidental take” of endangered species under the Endangered Species Act. As the guidance largely tracks existing law, it may serve as a handy resource for landowners and others in the regulated community. As the Service intends, it may serve as well to guide its staff to “apply correct and consistent interpretations” of the law. More

May 7, 2018
Corps of Engineers Seeks to Streamline Review of Projects’ Impacts on Historic Properties

By David Ivester

Before approving projects that entail filling waters or wetlands, the U.S. Army Corps of Engineers must take into account impacts on historic properties and consult with the pertinent state or tribal historic preservation officer (“SHPO” or “THPO”)—a process prone to delays, discord, and dismay. Aiming to streamline the process, the Corps has recently proposed two steps. First, Corps Headquarters has recommended that the Trump Administration resolve a long-simmering disagreement by issuing a statement clarifying that the Corps may follow the process specified in its regulations rather than a somewhat different process prescribed by the Advisory Council on Historic Preservation in its regulations.

March 16, 2018
State to U.S. : You Can’t Transfer Federal Lands, Unless We Say So

By John Briscoe

Jabbing a stick toward the eye of the Trump Administration, the California Legislature and Governor have proclaimed that the Federal Government, as of the first of this year, may not transfer federal property in California without the permission of the State. The State Lands Commission is delegated the authority to allow or disallow federal land dispositions. The law’s principal provisions are found in Public Resources Code Section 8560.

More specifically, the new law decrees that federal land conveyances are void if not previously approved by the State Lands Commission; it requires the Lands Commission to work with other state agencies to prevent “future unauthorized conveyances of federal public lands, or any change in federal public land designation”; and it provides severe civil penalties for persons, like citizens taking conveyances from the United States pursuant to contracts, who do not first offer the lands to the State.

March 1, 2018
Court Limits Authority of Water Board and BCDC

By Larry Bazel

In three wide-ranging statements of decision that could help the regulated community throughout California, the Solano Superior Court has overturned penalties of $3.6 million and limited the enforcement authority of the San Francisco Bay Regional Water Quality Control Board and the San Francisco Bay Conservation and Development Commission (“BCDC”).

The Court held that both agencies violated the Suisun Marsh Preservation Act, that dirt placed to repair a levee is not a “waste” subject to regulation under the Porter-Cologne Act, that cutting vegetation is not a “discharge”, that the Regional Board’s conclusory statement of need was not sufficient to require a report under Water Code section 13267, that the agencies did not provide fair trials, that the agencies violated the due-process prohibition on vindictive prosecution, and that the penalties were excessive fines in violation of the Eighth Amendment. More

January 3, 2018
Whistleblowers Can Win Big For Fraud In Government

By Peter Prows

“Where there is a wrong there is a remedy” has been a bedrock rule of the half of our law called “equity.” The other half, confusingly enough called “law,” has not always subscribed to that principle. The courts, at the urging of every administration, have constructed various elaborate legal barriers to justice for wrongdoing involving the government: sovereign immunity, standing, ripeness, mootness, justiciability. The current administration is not likely to buck that trend. While some constitutional law scholars and experts made headlines earlier this week in their effort to assert an alleged Emoluments Clause violation in federal court, the False Claims Act already provides a potent remedy. More

January 26, 2017
State Water Resources Control Board Ponders Widespread Criticism of its Proposed New Program to Regulate Wetlands

By David Ivester

The State Water Resources Control Board has gotten an earful about its recent proposal of a major new regulatory program to govern discharges of dredged or fill material into wetlands. More

November 10, 2016
New Groundwater Decision Hands Water Agencies a “Win” But Leaves Unanswered Questions

By Richard Wallace

It’s inevitable. With chronic water shortages in California, rights in groundwater are thrust to the limelight. In a past newsletter article, we reported about California’s new groundwater legislation . And a trial court in Sacramento County has ruled that the “Public Trust” doctrine can apply to groundwater , a ruling that seems destined for the appellate courts. More

June 28, 2016
Who Takes The Lead? Court Clarifies Which Is The “Lead Agency” For Environmental Review Of The Projects By Public-Private Partnerships

By Lisabeth Rothman

The California Environmental Quality Act (CEQA) calls on state and local agencies to review the environmental effects of projects before approving them. When an agency partners with a private entity to undertake a project for which other agencies must issue approvals, which agency should take the lead in conducting the environmental review? Getting this right is important if for no other reason than that project opponents may seek to undo a project’s approval by challenging the choice of lead agency. The Court of Appeal recently wrestled with just such a challenge in two cases about a water supply project and clarified how a public/private partnership should be analyzed under regulatory Guidelines governing selection of the correct lead agency, and when during the CEQA process agencies can delegate responsibilities for overseeing project operations. Taken together, the cases provide important guidance for how agencies can structure their relationships to enhance the likelihood that their decisions on these issues will be upheld. Lisabeth Rothman of Briscoe Ivester & Bazel was counsel of record in one of the cases and assisted with the briefing of the other. More

May 17, 2016
California Farmers And Builders Urge U.S. Supreme Court To Help Unmuddy The Clean Water Act

By Peter Prows

The Clean Water Act is so unconstitutionally vague as to require direct policing by the courts, a coalition of California farming and building groups told the U.S. Supreme Court this week in a brief filed by Briscoe Ivester & Bazel LLP. The case, United States Army Corps of Engineers v. Hawkes Co., presents the issue whether determinations made by the U.S. Army Corps of Engineers that a property contains wetlands regulated by the Clean Water Act may be challenged in court. The Ninth Circuit Court of Appeals, in an earlier case, held that such determinations (called “jurisdictional determinations” (or JDs)) cannot be challenged in court. But the Eighth Circuit Court of Appeals, in the Hawkes case under review, held that they can. More

March 4, 2016
New Regulations Up the Ante for California Water Diverters

By Peter Prows and Max Rollens

Beginning next January, a new State Water Resources Control Board regulation will impose strict new measuring and reporting requirements for water rights holders across California—with stiff daily penalties for noncompliance. In total, the new regulation will impact approximately 12,000 water users, reaching down to those who divert just 10 acre-feet per year or maintain stockponds with a mere 10 acre-feet capacity. Failure to meet the host of new requirements could leave people liable for penalties of up to $500 per day. More

February 29, 2016
Sylvia McLaughlin

By John Briscoe

Sylvia McLaughlin was godmother of the modern environmental movement in the United States. In that way I introduced her to audiences many times, including the time the Bay Planning Coalition presented her the Frank Boerger Award, to her everlasting delight.

But Sylvia would ever correct me by saying it was Kay Kerr and Esther Gulick who midwifed that movement beginning in 1960, a full 10 years before the first Earth Day, with only a bit of help from her. Sylvia was, in fact, the fiercest of those three tigresses but regardless, the three did usher in the movement when they founded the Save San Francisco Bay Association, which became remarkable for several reasons. More

February 1, 2016
California Coastal Commission Forces Constitutional Dilemma On Beachfront Property Owners

By Peter Prows and Max Rollens

For coastal homeowners, this year’s El Niño means heavy surf and greater-than-average rainfall, which, when combined, can wreak havoc upon beachfront properties. Although many homeowners sit protected behind adequate seawalls, others lie exposed, vulnerable to these winter storms. When the time comes to repair or replace a seawall, coastal property owners need to understand the complex policies and procedures of the Coastal Act—and, if the Coastal Commission gets its way in a pending California Supreme Court case, may also need to give up constitutional rights. (Briscoe Ivester & Bazel LLP is representing, as amici in the case, the organizations Coastal Property Owners of Santa Cruz County, Beach and Bluff Conservancy, Protect the Beach.org, and Seacoast Preservation Association. More

December 15, 2015
State Lands Commission to Make Itself Judge of Who Owns What Land

By John Briscoe

The State Lands Commission, charged with administering some of the tide and submerged lands owned by the State, is constructing its own administrative proceeding to decide who owns land the Commission claims is owned by the State. Boundaries of lands near water—or formerly near water, for that matter—are often difficult to ascertain. Ownership is equally often in legitimate dispute. Until now, the Commission would sue in an independent court to determine who actually owned the land it claimed. The proposed administrative proceeding, in which the Commission will be both prosecutor and judge, will have broad powers to extract fines of $1,000 per day or more from persons who do not readily acquiesce in the State’s land claims, and agree to give over their lands. More

June 5, 2015


Stay Informed

Subscribe to our e-Newsletter
Unsubscribe from our mailing list

View Archived Newsletters (2006 – 2014)