Best Best & Krieger News Feedhttp://www.bbklaw.com/?t=39&format=xml&directive=0&stylesheet=rss&records=50Best Best and Krieger is a Full Service Law Firmen-us24 Apr 2014 00:00:00 -0800firmwisehttp://blogs.law.harvard.edu/tech/rssIP Transition and Net Neutrality: Why Local Government Careshttp://www.bbklaw.com/?t=40&an=29669&format=xml<strong><br /> When:<br /> </strong>Monday, May 19, 2014<br /> <br /> <strong>Location:<br /> </strong>Hilton Anchorage<br /> 500 West Third Avenue<br /> Anchorage, Alaska<br /> <br /> <strong>BB&amp;K Speaker:<br /> </strong>Joseph Van Eaton, Partner<br /> <br /> For more information about the seminar, please visit the <a href="http://www.imla.org/events/seminars/79-2014-mid-year-seminar-anchorage-ak">IMLA website</a>.Conferences & Speaking Engagements19 May 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29669&format=xmlHabitat Conservation Plans: How to Mitigate Endangered Species Impacts on Local Developmenthttp://www.bbklaw.com/?t=40&an=29671&format=xml<strong><br /> When:<br /> </strong>Monday, May 19, 2014<br /> <br /> <strong>Location:<br /> </strong>Hilton Anchorage<br /> 500 West Third Avenue<br /> Anchorage, Alaska<br /> <br /> <strong>BB&amp;K Speaker:<br /> </strong>Michelle Ouellette, PartnerConferences & Speaking Engagements19 May 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29671&format=xmlThe FCC's Cellular Tower Siting Rulemakinghttp://www.bbklaw.com/?t=40&an=29668&format=xml<strong>When:<br /> </strong>Sunday, May 18, 2014<br /> <br /> <strong>Location:<br /> </strong>Hilton Anchorage<br /> 500 West Third Avenue<br /> Anchorage, Alaska<br /> <br /> <strong>BB&amp;K Speaker:<br /> </strong>Joseph Van Eaton, Partner<br /> <br /> For more information about the seminar, please visit the <a href="http://www.imla.org/events/seminars/79-2014-mid-year-seminar-anchorage-ak"><span style="color: #0000ff">IMLA website</span></a>.Conferences & Speaking Engagements18 May 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29668&format=xmlRecent Developments in FirstNet and Public Safety Wireless Systems and other Public Safety Wireless Developmentshttp://www.bbklaw.com/?t=40&an=29670&format=xml<strong>When:<br /> </strong>Sunday, May 18, 2014<br /> <br /> <strong>Location:<br /> </strong>Hilton Anchorage<br /> 500 West Third Avenue<br /> Anchorage, Alaska<br /> <br /> <strong>BB&amp;K Speaker:<br /> </strong>Paul A. Cappitelli, PartnerConferences & Speaking Engagements18 May 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29670&format=xmlDevelopments in Cable TV Franchisinghttp://www.bbklaw.com/?t=40&an=29655&format=xml<strong><br /> When:<br /> </strong>Sunday, May 18, 2014<br /> <br /> <strong>Location:<br /> </strong>Hilton Anchorage<br /> 500 West Third Avenue<br /> Anchorage, Alaska<br /> <br /> <strong>BB&amp;K Speaker:<br /> </strong>Gail A. Karish, Of Counsel<br /> <br /> For more information about the seminar, please visit the&nbsp;<a href="http://www.imla.org/events/seminars/79-2014-mid-year-seminar-anchorage-ak"><span style="color: #0000ff">IMLA website</span></a>.Conferences & Speaking Engagements18 May 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29655&format=xmlAB 1825 Sexual Harassment Avoidance Training (April 28)http://www.bbklaw.com/?t=40&an=29354&format=xml<p>California's Fair Employment and Housing Act, pursuant to AB 1825, requires that employers with fifty or more employees in California provide at least two hours of Sexual Harassment Avoidance Training every two years to any employee that has a supervisory role in operations. This presentation is designed to satisfy those requirements.</p> <p>Joseph Ortiz will be presenting the training from the Riverside office. All other BB&amp;K offices will participate in the training via state-of-the-art video conferencing. The video conference is interactive, allowing attendees to ask questions and participate in other ways.</p> <p><strong>What will be covered:</strong></p> <ul type="disc"> <li>What constitutes sexual harassment or discrimination in the workplace</li> <li>How to recognize and avoid it</li> <li>What procedures to follow if you witness harassment or are harassed yourself</li> <li>The potential consequences - including personal liability - of sexual harassment</li> </ul> <strong>Who should attend:</strong><br /> <br /> <ul type="disc"> <li>Supervisors</li> <li>Human Resources Professionals</li> <li>Public Officials</li> <li>Managers &amp; Private Business Professionals with 50 or More Employees</li> </ul> <p><strong>When: </strong><br /> Monday, April 28<br /> 9:00 a.m. - 11:00 a.m.<br /> <br /> <strong>Registration:</strong><br /> The training will be also be held via video conference at the following BB&amp;K offices throughout California. To register, please click on the office in which you intend to attend the training.</p> <ul> <li><a href="http://events.constantcontact.com/register/event?llr=apf8yceab&amp;oeidk=a07e92ilu4x8e4f1769 ">Indian wells </a></li> <li><a href="http://events.constantcontact.com/register/event?llr=apf8yceab&amp;oeidk=a07e92ikck04a9b0260 ">Irvine</a></li> <li><a href="http://events.constantcontact.com/register/event?llr=apf8yceab&amp;oeidk=a07e92ik142c14495e7 ">Los Angeles </a></li> <li><a href="http://events.constantcontact.com/register/event?llr=apf8yceab&amp;oeidk=a07e92iiuzb32e32c77 ">Ontario</a></li> <li><a href="http://events.constantcontact.com/register/event?llr=apf8yceab&amp;oeidk=a07e92im5gq20a742bf ">Riverside</a> &ndash; Joseph Ortiz will be presenting from the Riverside office</li> <li><a href="http://events.constantcontact.com/register/event?llr=apf8yceab&amp;oeidk=a07e92ijc124031fe4e ">Sacramento </a></li> <li><a href="http://events.constantcontact.com/register/event?llr=apf8yceab&amp;oeidk=a07e92in74a921a8f79 ">San Diego</a></li> <li><a href="http://events.constantcontact.com/register/event?llr=apf8yceab&amp;oeidk=a07e92ihe1q893ecf8b ">Walnut Creek</a></li> </ul> <p><em><strong>Cost is $75 per person. *Payment by check must be received before or on the day of the session.<br /> </strong></em><br /> <strong>BB&amp;K Presenter:<br /> </strong>Joseph Ortiz, Partner, Labor &amp; Employment Practice Group in Riverside office<br /> <br /> <strong>QUESTIONS:<br /> </strong>Contact <a href="mailto:katey.lamke@bbklaw.com">Katey Lamke</a> if you have any questions about this event and/or about BB&amp;K upcoming seminars/events.<br /> <br /> If you are not currently receiving our Legal Alerts and would like to be added to our email distribution list, please visit our <a target="_blank" href="http://www.bbklaw.com/?p=2121">subscription page</a>.</p>Seminars and Webinars28 Apr 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29354&format=xmlBB&K April 24th Webinar: How Your Community Can Respond to the Comcast - Time Warner Mergerhttp://www.bbklaw.com/?t=40&an=29801&format=xml<p>On April 24th, <a href="http://www.bbklaw.com/?t=5&amp;LPA=456&amp;format=xml"><span style="color: #0000ff">BB&amp;K telecommunication attorneys</span></a> will discuss the proposed merger of Time Warner and Comcast and related concerns of consumers and local communities.</p> <p>This webinar will explore how communities can protect themselves and their citizens through local reviews of the proposed merger (where permitted by a local franchise or state law); and by filing comments with the Federal Communications Commission, to either deny the merger, or to establish merger conditions. In past proceedings, for example, the FCC has adopted conditions requiring protection of local public, educational and government programming, requiring operators to comply with &quot;net neutrality&quot; and other conditions.</p> <p><b>The webinar will cover:</b></p> <ul type="disc"> <li>how the transfer process works at the local and state levels;</li> <li>how the transfer review process works at the federal level;</li> <li>conditions that&nbsp;might be warranted for&nbsp;the proposed merger; and</li> <li>steps your community can take to protect your citizens</li> </ul> <p><b><br /> Who should attend:</b></p> <ul type="disc"> <li>Local elected officials</li> <li>Local government attorneys</li> <li>Cable administrators</li> <li>PEG operators and managers</li> </ul> <p><b><br /> When:</b></p> <p>Thursday, April 24th<br /> 3:00 - 4:00 p.m. ET<br /> 12:00 - 1:00 p.m. PT</p> <p><b>BB&amp;K Speakers:</b><br /> <br /> Joseph Van Eaton, Partner<br /> Nicholas Miller, Partner<br /> Gerard Lederer, Partner</p> <p><span style="color: #0000ff"><b><a href="https://bbklaw.webex.com/mw0401l/mywebex/default.do?nomenu=true&amp;siteurl=bbklaw&amp;service=6&amp;rnd=0.8002147253228408&amp;main_url=https%3A%2F%2Fbbklaw.webex.com%2Fec0701l%2Feventcenter%2Fevent%2FeventAction.do%3FtheAction%3Ddetail%26confViewID%3D1749045506%26%26%26%26siteurl%3Dbbklaw"><span style="color: #0000ff">CLICK HERE TO REGISTER</span></a></b></span></p> <p><b>QUESTIONS:</b></p> <p>Contact <a href="mailto:katey.lamke@bbklaw.com?subject=April%2024th%20Webinar"><span style="color: #0000ff">Katey Lamke</span></a> if you have any questions about this event and/or about BB&amp;K upcoming seminars/events.</p> <p>If you are not currently receiving our Legal Alerts and would like to be added to our email distribution list, please visit our <a href="http://www.bbklaw.com/?p=2121"><span style="color: #0000ff">subscription page</span></a>.</p>Seminars and Webinars24 Apr 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29801&format=xmlBB&K Police Bulletin: Police Can Stop Reckless Driver Based On Anonymous Tiphttp://www.bbklaw.com/?t=40&an=29897&format=xml<p><b>Overview: </b>The Supreme Court recently held that peace officers who conducted a traffic stop and searched a vehicle based on an anonymous tip did not violate the driver&rsquo;s Fourth Amendment rights &mdash; as long as the officers had reasonable suspicion of criminal activity based upon the totality of the circumstances.</p> <p><b>Training Points: </b>It is important to be mindful that an anonymous tip alone is not sufficient to make a case. However, if the facts warrant it, and under appropriate circumstances, an anonymous tip may be enough to provide reasonable suspicion to make an investigatory stop. Once the stop is made, the officer must build upon the probable cause to go further, as in any other case. Developing the proper sequence of events that led to the stop and subsequent action (search, arrest, etc.) must be articulated and properly documented. Officers must not assume that the anonymous information provides all the necessary probable cause. The anonymous information is merely the &quot;tip of the iceberg&quot; toward building the case.</p> <p><b>Summary Analysis: </b>In <i>People v. Navarette</i>, a 911 caller reported that a truck had run her off the road. The caller provided details about the truck, including the license plate number, to the dispatcher who then broadcast the information to law enforcement officers. Moments later, officers located the reported vehicle and immediately conducted a traffic stop without personally observing the erratic driving. As officers approached the truck, they smelled marijuana. A search of the truck bed revealed 30 pounds of marijuana. After charges were filed against the driver, Navarette, he moved to suppress the evidence, arguing the traffic stop violated his Fourth Amendment rights because officers lacked reasonable suspicion to conduct the traffic stop. The motion was denied and Navarette was convicted and sentenced.&nbsp;</p> <p>The Court found the anonymous call was reliable and created sufficient reasonable suspicion that Navarette might have been driving drunk because of the reckless manner of his driving. Since the anonymous call was found to have an &ldquo;indicia of reliability,&rdquo; the Court ruled the officers who conducted the traffic stop complied with the Fourth Amendment because, under the totality of the circumstances, the officers had reasonable suspicion the driver was intoxicated.&nbsp;</p> <p><b>Follow-Up Contact: </b>For questions regarding this case or its implications for your agency and public safety department, please contact one of the authors of this bulletin listed at right in the <a href="http://www.bbklaw.com/?t=5&amp;LPA=2532&amp;format=xml"><font color="#0000ff">Public Safety practice</font></a>, or your <a href="http://www.bbklaw.com/?p=2099"><font color="#0000ff">BB&amp;K attorney</font></a>.</p> <i>Disclaimer: BB&amp;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 communiqu&eacute;.</i>Legal Alerts23 Apr 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29897&format=xmlBB&K Police Bulletin: Civil Rights Action For Miranda Violation Not Barred If Conviction Reversedhttp://www.bbklaw.com/?t=40&an=29864&format=xml<p><b>Overview: </b>The Ninth Circuit Court of Appeal recently held that a criminal defendant convicted of murder at his second trial, whose first murder conviction was reversed based upon Fifth Amendment violations in his first trial, is not barred from filing a civil rights action. The court reasoned that the incriminating statements in violation of the defendant&rsquo;s <i>Miranda</i> rights were used in his first trial, which resulted in a reversal, not his second trial, which resulted in a conviction.</p> <p><b>Training Points: </b>This case is a reminder that providing suspects who are &ldquo;in custody&rdquo; and who are being &ldquo;interrogated&rdquo; with their <i>Miranda</i> warnings is not only essential to the successful admission of incriminating statements at the criminal trial, but the failure to provide the requisite warnings can also negatively impact any civil rights case that may be brought by the criminal defendant. California and federal law both have ways to prevent convicted criminals from bringing civil rights lawsuits after the fact. But those bars may not apply if the civil court finds any substantive problems with law enforcement&rsquo;s role in developing the criminal case. The actions of law enforcement can have a dramatic impact on future proceedings, often years into the future.</p> <p><b>Summary Analysis: </b>In <i>Jackson v. Barnes, et al.</i>, Frederick Jackson was convicted of rape and first degree murder. At his first murder trial in 1995, the prosecutor admitted a taped interview conducted by a sergeant who did not provide Jackson the required <i>Miranda </i>warnings. During the interview, Jackson admitted he &ldquo;happened to be&rdquo; at the scene of the murder. He was convicted of first degree murder.</p> <p>In 2004, Jackson appealed and his conviction was reversed based upon the <i>Miranda </i>violations. Before the second criminal trial, but after the first, Jackson filed a civil rights suit related to the <i>Miranda </i>violations. The district court dismissed the action under the ruling in <i>Heck v. Humphrey,</i> where the Supreme Court held that a criminal defendant (plaintiff in civil suit) who has been convicted or sentenced in a criminal matter is precluded from seeking damages in a civil action if success in their civil action would invalidate their criminal conviction or sentence (commonly referred to as the <i>Heck</i> bar). During Jackson&rsquo;s 2005 re-trial, the jury, without the admission of the illegally obtained evidence, found Jackson guilty of first degree murder.&nbsp;</p> <p>The court held Jackson was not barred by the holding in <i>Heck</i> and could maintain his civil rights action since the incriminating statements used against him in violation of <i>Miranda</i> were used in his first trial, not his second trial which resulted in his conviction. The court found that a judgment in Jackson&rsquo;s favor (in the civil suit) would not invalidate his murder conviction (from the second trial) since the conviction from the first trial had been reversed.</p> <p><b>Follow-Up Contact: </b>For questions regarding this case or its implications for your agency and public safety department, please contact one of the authors of this bulletin listed at right in the <a href="http://www.bbklaw.com/?t=5&amp;LPA=2532&amp;format=xml"><font color="#0000ff">Public Safety practice</font></a>, or your <a href="http://www.bbklaw.com/?p=2099"><font color="#0000ff">BB&amp;K attorney</font></a>.</p> <p><i>Disclaimer: BB&amp;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 communiqu&eacute;.</i></p>Legal Alerts21 Apr 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29864&format=xmlEPA Issues Proposed Rule Interpreting Jurisdictional Reach of Clean Water Acthttp://www.bbklaw.com/?t=40&an=29866&format=xml<p>The Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) formally issued a <a href="http://www2.epa.gov/uswaters"><font color="#0000ff">Proposed Rule</font></a> today designed to clarify their regulatory jurisdiction under the Clean Water Act. The Proposed Rule will potentially expand EPA and Corps jurisdiction to reach a far greater number of lands, drainage systems and development projects than are currently regulated under the Clean Water Act. Comments on the Proposed Rule are due by July 21 and can be filed electronically <a href="http://www.regulations.gov/"><font color="#0000ff">here.</font></a> Best Best &amp; Krieger is assembling a coalition of local governments and special districts to offer operational insights on the Proposed Rule. See our <a href="http://www.bbklaw.com/?t=40&amp;an=29642&amp;format=xml"><font color="#0000ff">previous legal alert on the Proposed Rule</font></a>.</p> <p>An expansion of Clean Water Act jurisdiction would make an increased number of projects and activities subject to the Clean Water Act&rsquo;s permitting requirements. These permitting requirements apply to discharges of pollutants as well as fill material and potentially impose discharge limitations, mitigation requirements and other limitations where they previously did not apply. Additionally, because Clean Water Act permits are enforceable by members of the public, any person or group who can establish standing can file a lawsuit to enforce the Act. An expansion of Clean Water Act jurisdiction will therefore result in an increased risk of litigation for those who find themselves subject to the Act.</p> <p>In the Proposed Rule, the agencies are seeking comment on how they should evaluate Clean Water Act application to &ldquo;other waters&rdquo; and whether waters in several &ldquo;ecoregions&rdquo; should be evaluated individually or systemically. For questions regarding the Proposed Rule, or to join &nbsp;the coalition to comment on the Proposed Rule, please contact <a href="mailto:shawn.hagerty@bbklaw.com?subject=EPA%20Proposed%20Rulke%20Re:%20Clean%20Water%20Act"><font color="#0000ff">Shawn Hagerty</font></a> in the firm&rsquo;s <a href="http://www.bbklaw.com/?t=5&amp;LPA=424&amp;format=xml"><font color="#0000ff">Water Quality practice</font></a>, or your <a href="http://www.bbklaw.com/?p=2099"><font color="#0000ff">BB&amp;K attorney</font></a>.</p> <p><i>Disclaimer: BB&amp;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 communiqu&eacute;.</i></p>Legal Alerts21 Apr 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29866&format=xmlBB&K Police Bulletin: Medicinal Marijuana and Probable Causehttp://www.bbklaw.com/?t=40&an=29828&format=xml<p><b>Overview:</b> A California Court of Appeal has ruled that a law enforcement officer&rsquo;s observation of any amount of marijuana in a vehicle establishes probable cause to search using the automobile exception, and that an individual&rsquo;s possession of a medicinal marijuana card does not affect that probable cause.</p> <p><b>Training Points: </b>This ruling confirms that the automobile exception to the warrant requirement is a powerful tool law enforcement officers can use in the detection of marijuana and the pursuit of criminals. As always, officers must properly document the chain of events that lead to establishing probable cause for a vehicle search.</p> <p><b>Summary Analysis:<span>&nbsp;&nbsp; </span></b>In <i>People v. Waxler</i>, a sheriff&rsquo;s deputy searched Waxler&rsquo;s car after the deputy smelled burnt marijuana coming from the car and observed a marijuana pipe with what appeared to be marijuana in the bowl sitting inside the car. The deputy&rsquo;s search uncovered a small amount of methamphetamine along with a pipe, and Waxler was subsequently convicted of possession of methamphetamine. On appeal, Waxler argued that the deputy lacked probable cause to search his car because Waxler presented the deputy with a medicinal marijuana card. Additionally, Waxler argued that the amount of marijuana the deputy observed was within the amount allowed by the Compassionate Use Act. The Court of Appeal disagreed, holding that the observation of <i>any</i> amount of marijuana establishes probable cause to search a vehicle pursuant to the automobile exception because a law enforcement officer may reasonably suspect that additional (illegal) quantities of marijuana may be found in the vehicle.</p> <p><b>Follow-Up Contact: </b>For questions regarding this case or its implications for your agency and public safety department, please contact one of the authors of this bulletin listed at right in the <a href="http://www.bbklaw.com/?t=5&amp;LPA=2532&amp;format=xml"><font color="#0000ff">Public Safety practice</font></a>, or your <a href="http://www.bbklaw.com/?p=2099"><font color="#0000ff">BB&amp;K attorney</font></a>.</p> <p><i>Disclaimer: BB&amp;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 communiqu&eacute;.</i></p>Legal Alerts16 Apr 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29828&format=xmlDigital Marketing/Technology Specialisthttp://www.bbklaw.com/?t=40&an=28996&format=xml<p>The Digital Marketing/Technology Specialist&nbsp;will manage technology-oriented marketing initiatives in order to achieve firm branding and business development goals. This individual will be responsible for developing and managing a proactive campaign for the firm's external Internet properties, including websites, microsites, blogs and other social media profiles. He/she will be responsible for managing the firm's client relationship management database and executing a strategy for its use, including sending frequent communications to targeted email lists. He/she will develop and participate in internal group and one-on-one trainings regarding the use of marketing technology. He/ she will be encouraged to stay on the cutting-edge of professional services marketing technology techniques in order to push the firm's initiatives to maximum efficiency and excellence. He/she will interface with our attorneys, firm management, other administrative departments, and external vendors. This position reports to the Marketing Director and works closely with all members of the marketing and business development team.</p> <p>Qualified applicants are invited to apply online by clicking the link below. Applicants must attach a resume and cover letter to be considered for employment. This self-apply feature is compatible with Internet Explorer 6, 7, 8 &amp; 9, Mozilla Firefox for Windows, or Safari for Macintosh.<br /> <br /> <a target="_blank" href="https://lawcruit.micronapps.com/sup/lc_supp_jobpost.aspx?%40Pl3%3cKWEX%40=2%3e4&amp;%3db8=%3a%40%3bA">lawcruit.micronapps.com/sup/lc_supp_jobpost.aspx</a></p> <p>Please address cover letters to:</p> <p>Debbie A. Prior<br /> Director of Human Resources<br /> Best Best &amp; Krieger LLP<br /> 500 Capitol Mall, Suite 1700<br /> Sacramento, CA 95814</p> <p><em><strong>No phone calls please</strong></em></p> <p><strong>Best Best &amp; Krieger LLP is an Equal Opportunity Employer</strong>.</p>Job Openings at BB&K16 Apr 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=28996&format=xmlHow To Shorten Your Documentshttp://www.bbklaw.com/?t=40&an=29796&format=xml<p>At least in the initial drafts, efforts to keep a document concise may stifle the flow of written words. If this is true, then let the words come freely and deal with wordiness later. Once the desired content is captured, a writer can turn to making the document shorter and otherwise more pleasing.</p> <p>There are a<a href="http://www.imla.org/blog/wp-content/uploads/2014/04/paper.jpg"><img style="width: 276px; height: 184px" class="alignright size-medium wp-image-650" border="0" hspace="15" alt="paper" vspace="15" align="right" width="276" height="184" src="http://www.imla.org/blog/wp-content/uploads/2014/04/paper-300x199.jpg" /></a> variety of ways to shorten the draft to meet page limits:</p> <ul> <li>Check the margins to be sure the lines extend to the full permitted width and length. Extend the block quote margins.</li> <li>Create at least a table of contents even if not required. The table follows the caption page which is not numbered, and the table will be page i, so the text can fill the full first page 1.</li> <li>Shorten the signature block. The signature block and date can appear on the same line.</li> <li>Scan through the sentences to see if the same subject is addressed in more than one place so that reordering and combining will reduce the length.</li> <li>Is there a passage that no longer is necessary to the document? A discussion of the facts, for example, may have been borrowed from another document and may contain facts not relevant to the current document. Trim the facts to those that matter for this motion or document.</li> <li>Is there an argument that seemed great originally that now seems weak? If so, decide if it should be eliminated. A really weak argument can be seen as grasping at straws and can diminish the power of the other, stronger arguments.</li> <li>Address each paragraph in turn and see if you can revise it to shorten it by one line. Substitute shorter words for long ones, simplify the sentence structure, and reduce nounification. Sentences that begin &ldquo;There is/are&rdquo; can often be reworded and shortened.</li> <li>Looking at each paragraph that has only a few words in the last line, revise the paragraph to eliminate that line.</li> </ul> <p>None of these changes affects the substantive content of the document. Many of these techniques are obvious to the judge and are not appreciated, so avoid using them unless necessary.</p> <p>Image courtesy of <a href="https://www.flickr.com/photos/36169570@N08/5624281846/in/photolist-9yZV3E-7xNfxe-dT2etP-dL6K9i-86AAki-8ZUCwq-9TdxYo-95gMni-9yWUDp-99D3ju-7EX3jf-7XP9vv-92AwD1-9rbp7W-gHgG6P-edQuUi-8vmqty-aRoPrr">Flickr</a> by <a href="https://www.flickr.com/photos/wiertz/with/5624281846/">Sebastien Wiertz</a> (<a href="https://creativecommons.org/licenses/by-sa/2.0/deed.en">creative-commons license, no changes made</a>).<br /> <br /> <em>* This blog post was originally published in </em><a target="_blank" href="http://www.imla.org/blog/2014/04/fourth-circuit-retirement-plan-discriminates-based-on-age/"><em>IMLA Appellate Practice Blog</em></a><em>, April 14, 2014. Republished with permission. Visit </em><a href="http://www.imla.org/blog"><em>www.imla.org/blog</em></a><em> to read additional IMLA Appellate Practice Blog posts and to subscribe by email.</em></p>Blogs14 Apr 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29796&format=xmlContract Attorney - Litigation - Irvine Officehttp://www.bbklaw.com/?t=40&an=29743&format=xmlOur Irvine Office has an immediate opening for a full-time contract attorney with 4-5 years of&nbsp;civil litigation experience.<br /> <br /> <p>Qualified applicants are invited to apply online by clicking the link below. Applicants must attach a resume, transcript and cover letter to be considered for employment. This self-apply feature is compatible with Internet Explorer 6, 7, 8 &amp; 9, Mozilla Firefox for Windows, or Safari for Macintosh.</p> <a target="_blank" href="https://lawcruit.micronapps.com/sup/lc_supp_jobpost.aspx?%40Pl3%3cKWEX%40=2%3e4&amp;%3db8=8_CG">lawcruit.micronapps.com/sup/lc_supp_jobpost.aspx</a><br /> <br /> <p>Please address your cover letter to:</p> <p><strong>Jill N. Willis<br /> </strong><em>Chief Talent Officer<br /> </em>Best Best &amp; Krieger LLP<br /> 300 South Grand Avenue, 25th Floor<br /> Los Angeles, CA 90071<br /> <br /> <em><strong>No phone calls please</strong></em><br /> <br /> <b><i>Best Best &amp; Krieger LLP is an Equal Opportunity Employer.</i></b></p>Job Openings at BB&K11 Apr 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29743&format=xmlMid-Level Litigation Associate - Municipal Law - Ontario Officehttp://www.bbklaw.com/?t=40&an=29737&format=xml<p>Our Ontario office&nbsp;has an immediate opening for an associate with 4-5 years of municipal civil litigation experience.</p> <p>Qualified applicants are invited to apply online by clicking the link below. Applicants must attach a resume, transcript and cover letter to be considered for employment. This self-apply feature is compatible with Internet Explorer 6, 7, 8 &amp; 9, Mozilla Firefox for Windows, or Safari for Macintosh.</p> <a target="_blank" href="https://lawcruit.micronapps.com/sup/lc_supp_jobpost.aspx?%40Pl3%3cKWEX%40=2%3e4&amp;%3db8=8_CG">lawcruit.micronapps.com/sup/lc_supp_jobpost.aspx</a><br /> <br /> <p>Please address your cover letter to:</p> <p><strong>Jill N. Willis<br /> </strong><em>Chief Talent Officer<br /> </em>Best Best &amp; Krieger LLP<br /> 300 South Grand Avenue, 25th Floor<br /> Los Angeles, CA 90071<br /> <br /> <em><strong>No phone calls please</strong></em><br /> <br /> <b><i>Best Best &amp; Krieger LLP is an Equal Opportunity Employer.</i></b></p>Job Openings at BB&K10 Apr 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29737&format=xmlNew Hurdles for Public Agencies: Accessing Property May Now Require Eminent Domain Actionshttp://www.bbklaw.com/?t=40&an=29740&format=xml<p>For the first time in 38 years, a court has declared part of California&rsquo;s statutory eminent domain law unconstitutional. The ruling, if upheld, will create additional hurdles for public agencies and may have unintended consequences for those the lawsuit sought to protect &ndash; property owners.</p> <p>On March 13, 2014, the Third Appellate District Court of Appeal, in <i>Property Reserve, Inc. v. Super. Ct. of San Joaquin County</i>, found that the pre-condemnation entry statutes violate the takings provisions of article I, section 19 of the California Constitution. The Appellate Court ruled that any entity wishing to conduct statutory pre-condemnation studies must do so in a direct condemnation action.</p> <p>The term &ldquo;condemnation&rdquo; is used to describe the formal act of the exercise of the power of eminent domain to transfer title to the property from its private owner to the government. Condemnation via eminent domain indicates the government is taking ownership of the property or some lesser interest in it, such as an easement.</p> <p>The State of California has begun a divisive project to build a tunnel through the Sacramento-San Joaquin River Delta to transfer water from north to south. As part of the project development, the State requires access to hundreds of parcels of property to determine if the parcels are environmentally and geologically suitable for the project.</p> <p>The entry statutes, enacted in 1976, permit a condemning agency to enter a property &ldquo;to make photographs, studies, surveys, examinations, tests, soundings, borings, samplings, or appraisals&rdquo; prior to actually condemning the property to be studied. While the entry statutes allow an entity to conduct these surveys prior to and without resorting to condemnation, they do provide the affected property owner with safeguards.</p> <p>For example, the entry statutes provide that any such agency must get the property owner&rsquo;s consent to conduct these studies, or, if consent is refused, get an order from a court. The entry statutes further provide a mechanism for the court to decide the probable compensation that the agency must make in order to have the access rights it requests.</p> <p>The water authorities also wanted to enter the properties to determine each parcel&rsquo;s botany and hydrology; the presence of sensitive plant and animal species; the existence of vernal pools, wetlands and other animal habitat; the extent of cultural resources and utilities; and potential for recreational uses.</p> <p>According to published reports, some of the owners challenged the proposed testing and investigation, claiming that the testing and inspections the State wanted to conduct constituted a taking, for which the owners were entitled to just compensation, along with the full panoply of procedural protections that California law affords to condemnees.</p> <p>In <i>Property Reserve</i>, the State of California petitioned for an order for entry to conduct two general categories of pre-condemnation activities: (1) geological activities (soil testing, boring and backfilling any holes with a cement grout mixture), and (2) environmental activities (take surveys, mapping, minor soil samples, and observe wildlife).</p> <p>On appeal, the Court ruled that the proposed geological activities constitute a taking per se. The Appellate Court further ruled that the environmental activities constitute a taking of a compensable property interest similar to an easement. Thus, the Appellate Court found that the pre-condemnation entry statutes were unconstitutional.</p> <p>This ruling apparently allows property owners to deny access unless, or until, the public agency files a condemnation action and follows the acquisition procedures of eminent domain law.&nbsp;However, this decision does not prevent a public agency and a property owner from entering into a voluntary agreement allowing for access and testing.</p> <p>Based on this ruling, an entity would have to condemn prior to conducting minimally invasive tests. As the dissenting opinion of Judge Blease states, the majority&rsquo;s opinion finding the entry statutes unconstitutional &ldquo;does so without according the statutes the simplest presumption of constitutionality.&rdquo;</p> <p>The California Supreme Court will likely review this case.&nbsp;It remains to be seen how courts will handle agencies&rsquo; access needs in the interim. If the Supreme Court does not overturn it, the ruling will inflict more work on condemning agencies and the courts. This decision could also negatively impact property owners because they may now need to defend against an eminent domain action instead of a less expensive, less time consuming petition under the entry statutes.</p> <p>The Court advised that the dilemma it found with the right of entry statutes does not necessarily mean that inspections must be preceded by a complete eminent domain action.&nbsp;Instead, the Court held that the Legislature could change the right of entry measures to ensure that the owner is given the necessary minimal constitutional protections.&nbsp;If efforts to obtain Supreme Court review are unsuccessful, the next dispute over this issue may take place in the Legislature.</p> <p><i>* This article first appeared on <a href="http://www.publicceo.com/2014/04/new-hurdles-for-public-agencies-accessing-property-may-now-require-eminent-domain-actions/"><font color="#0000ff">PublicCEO.com</font></a> on Apr. 10, 2014. Republished with permission.</i></p>BB&K In The News10 Apr 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29740&format=xmlGovernor's Office of Planning & Research Seeks Input to Improve California's Groundwater Managementhttp://www.bbklaw.com/?t=40&an=29713&format=xml<p>The Office of Planning &amp; Research (OPR) is seeking stakeholder input on actions to improve groundwater management in California, consistent with the Governor&rsquo;s January 27 California Water Action Plan. The Plan calls for legislation to provide local and regional agencies with comprehensive authority for groundwater management. It also proposes allowing the state to temporarily assume groundwater management responsibility if local agencies fail to achieve sustainable management. BB&amp;K attorneys attended the first of two OPR sustainable groundwater management workshops last month, and will attend the second workshop on April 16. All written comments are due to OPR by <b>April 25</b>.</p> <p>The state currently has no comprehensive authority for monitoring or regulating groundwater. Generally, control over groundwater has been left to local efforts or the courts. A major Plan objective is to establish a legal framework to expand groundwater storage capacity and improve groundwater management. In connection with that objective, OPR seeks answers to the following questions:</p> <ul> <li>What new or modified statutory authorities do local and regional agencies need to manage groundwater more effectively?</li> <li>What would help local agencies overcome financial barriers for conservation projects and programs?</li> <li>What types of governance structures are most effective for managing groundwater locally, and should these models be encouraged?</li> <li>What role should groundwater management plans (GWMPs) play, and does their content need to change?</li> <li>What specific data and information do local managers need to succeed? What should be done to help them obtain the data?</li> <li>What can be done to help local and regional agencies manage a basin or sub-basin that spans multiple jurisdictions?</li> <li>Are there improvements to the groundwater adjudication process that would make it more useful and cost-effective for local authorities?</li> <li>What incentives could be given to local and regional agencies to improve groundwater management?</li> <li>Should a formal process be in place that connects local groundwater management planning, land use decisions, county general plans, or integrated regional water management plans? If so, what kind of formal process?</li> <li>What metrics can be used to reflect sustainable management?</li> <li>What criteria or conditions should be present in determining whether a local groundwater management authority is unable to effectively manage the resource?</li> <li>What aspects of local groundwater management should be assumed by the State Water Resources Control Board?</li> </ul> <p>On March 24, BB&amp;K attended the first of two OPR sustainable groundwater management workshops facilitated by the California Environmental Protection Agency, the California Department of Food and Agriculture, and the California Natural Resources Agency to discuss the questions above. The workshop solicited ideas and approaches to groundwater management, and provided a broad based discussion regarding (1) the definition of sustainable groundwater management and measures of success, (2) tools, authorities, and incentives to help local agencies manage groundwater, (3) key funding mechanisms, barriers, and solutions, and (4) the state&rsquo;s role in assisting local agencies with groundwater management. Some stakeholders are arguing for fundamental changes in groundwater law that may impose new requirements on both landowners and local agencies.&nbsp;</p> <p>BB&amp;K is advising various private and public entities regarding sustainable groundwater management in California and the implications of these workshops. If you have questions or concerns about how your water rights may be affected or would like to provide input, please contact one of the attorney authors of this legal alert listed at right in the <a href="http://www.bbklaw.com/?t=5&amp;LPA=425&amp;format=xml"><font color="#0000ff">Water Rights group</font></a>, or your <a href="http://www.bbklaw.com/?p=2099"><font color="#0000ff">BB&amp;K attorney</font></a>.</p> <p><i>Disclaimer: BB&amp;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 communiqu&eacute;.</i></p>Legal Alerts09 Apr 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29713&format=xmlCalifornia Authorizes Alternative Procurement Method for Public Construction Projectshttp://www.bbklaw.com/?t=40&an=29663&format=xml<p>Effective January 1, 2014, all California counties are expressly authorized to use the &ldquo;construction management at risk&rdquo; project delivery method (CMAR) for any building projects over $1 million. This alternative procurement process has been in use by the private sector and other public agencies for many years. The CMAR project delivery method offers both benefits and risks for the project owner, which should be carefully evaluated.</p> <p>Proponents of CMAR commonly cite the following <b>benefits</b> for the owner: the opportunity to select the contractor who will lead the project based on factors other than price; getting a contractor&rsquo;s perspective during design; and a known price that is not automatically subject to increase on account of design deficiencies. Unlike design-build, the owner utilizing CMAR retains control of the entire design process.</p> <p><b>Risks</b> to the owner and criticisms of CMAR include the up-front cost of preconstruction services and the need for the agency to have sufficient expertise to evaluate cost proposals and assess the final project accounting. Agency staff also have to understand that the construction manager under a CMAR agreement is not a typical &ldquo;agency&rdquo; construction manager who works on the owner&rsquo;s behalf. Some agencies choose to retain an owner&rsquo;s representative to act on the owner&rsquo;s behalf during the project, which increases overall project cost.</p> <p>No project delivery method is fool-proof. One important key to a successful CMAR project is a contract that clearly identifies the risks the owner is shifting to the construction manager. Another is training the owner&rsquo;s staff to use the contract to enforce those responsibilities.</p> <p>Public Contract Code Section 20146 (SB 328) adds counties to the ranks of local public agencies that the Legislature has expressly authorized to engage a licensed contractor who provides preconstruction services and construction administration to deliver the project for a fixed construction cost. The CMAR contract can be awarded to the &ldquo;lowest responsible bidder&rdquo; or based on &ldquo;best value.&rdquo;</p> <p>On a CMAR project, the owner retains the construction manager during (or before) design. The construction manager provides a contractor&rsquo;s perspective during design, assists in value engineering, and performs quality control to reduce common design problems such as coordination and constructability issues. The construction documents are divided into &ldquo;trade packages&rdquo; suitable for competitive bidding as separate contracts. The construction manager selects the trade contractors through procedures established by the county, and is responsible for scheduling, coordinating and completing the project for a guaranteed maximum price.</p> <p>The construction manager is typically paid a fixed sum for its preconstruction services and receives a fee, calculated as a percentage of hard construction cost, for services during construction. The construction manager may also provide site services for the project, such as security and sanitation, and may, in some cases, perform portions of the work. If it does so, payment for that work may be in addition to the fee.</p> <p>The overall price for construction of the project, either a lump sum or guaranteed maximum price, is usually established late in the design phase or after all trade contracts have been bid. That price should change only if the owner modifies the project, if regulatory changes increase the cost of the work, or if unexpected site conditions appear.</p> <p>For further information about CMAR and whether it is appropriate for your project, please contact one of the attorney authors of this legal alert listed at right in the <a href="http://www.bbklaw.com/?t=5&amp;LPA=451&amp;format=xml"><font color="#0000ff">Public Contracts and Construction practice</font></a>, or your <a href="http://www.bbklaw.com/?p=2099"><font color="#0000ff">BB&amp;K attorney</font></a>.</p> <p><i>Disclaimer: BB&amp;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 communiqu&eacute;.</i></p>Legal Alerts07 Apr 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29663&format=xmlWaters of the US: EPA Seeks Input to Clarify Scope of Clean Water Acthttp://www.bbklaw.com/?t=40&an=29642&format=xml<p>The Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) released a <a href="http://www2.epa.gov/uswaters"><font color="#0000ff">Proposed Rule</font></a> designed to clarify their regulatory jurisdiction under the Clean Water Act. The Proposed Rule will potentially expand EPA and Corps jurisdiction to reach a far greater number of lands, drainage systems and development projects than are currently regulated under the Clean Water Act. Best Best &amp; Krieger is assembling a coalition of local governments and special districts to offer operational insights on the Proposed Rule.</p> <p>The changes to jurisdiction in the Proposed Rule are not benign. An expansion of Clean Water Act jurisdiction means an increased number of projects and activities will be subject to the Clean Water Act&rsquo;s permitting requirements. These permitting requirements apply to discharges of pollutants as well as fill material and potentially impose discharge limitations, mitigation requirements and other limitations where they previously did not apply. Additionally, because Clean Water Act permits are enforceable by members of the public, any person or group who can establish standing can file a lawsuit to enforce the Act. An expansion of Clean Water Act jurisdiction will therefore result in an increased risk of litigation for those who find themselves subject to the Act.</p> <p>In the Proposed Rule, the agencies are seeking comment on how they should evaluate Clean Water Act application to &ldquo;other waters&rdquo; and whether waters in several &ldquo;ecoregions&rdquo; should be evaluated individually or systemically. Comments on the Proposed Rule are due 90 days after it is officially published in the <u>Federal Register</u> and can be filed electronically <a href="http://www.regulations.gov/"><font color="#0000ff">here.</font></a></p> <p><b>Background</b></p> <p>The Clean Water Act grants the EPA and the Corps regulatory authority to protect the quality of &ldquo;the waters of the United States&rdquo; but leaves up to the agencies to define what constitutes &ldquo;the waters of the United States.&rdquo; A decade in the making, the agencies developed the <a href="http://www2.epa.gov/uswaters"><font color="#0000ff">Proposed Rule</font></a> to address regulatory uncertainty that arose from a pair of Supreme Court decisions in 2001 and 2006. In those cases, <i><a href="http://www.law.cornell.edu/supct/html/99-1178.ZS.html"><font color="#0000ff">Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers</font></a></i> and <i><a href="http://www.law.cornell.edu/supct/html/04-1034.ZS.html"><font color="#0000ff">Rapanos v. United States</font></a></i>, the Supreme Court established limits on what the EPA and the Corps can define as &ldquo;waters of the United States.&rdquo;</p> <p>In a 5-4 decision, the Court held in <i><a href="http://www.law.cornell.edu/supct/html/99-1178.ZS.html"><font color="#0000ff">SWANCC</font></a></i> that the Corps&rsquo; use of the long controversial &ldquo;migratory bird rule&rdquo; (that the Clean Water Act covers waters &ldquo;which are, or would be, used as habitat by... migratory birds that cross state lines&rdquo;) adopted by the Corps and the EPA to interpret the reach of their section 404 authority over discharges into &ldquo;isolated waters&rdquo; (including isolated wetlands), exceeded the authority granted by that section. In <i><a href="http://www.law.cornell.edu/supct/html/04-1034.ZS.html"><font color="#0000ff">Rapanos v. United States</font></a></i>, a divided Court could not agree whether the reach of the Clean Water Act extended to non-navigable waters and isolated wetlands. A plurality ruled that non-navigable waters are subject to Clean Water Act regulation only if they exhibit a relatively permanent flow and that wetlands are subject to Clean Water Act regulation only if they have a continuous surface water connection to a relatively permanent water body. The lack of a clear ruling means that regulators and the courts are not divided by a clear and universal policy, with some decisions resting on other court precedent and others relying on the concurring opinion of Justice Anthony Kennedy to set regulatory parameters.</p> <p>It would appear that the <a href="http://www2.epa.gov/uswaters"><font color="#0000ff">Proposed Rule</font></a> is largely guided by Justice Kennedy&rsquo;s concurring opinion and generally relies on his &ldquo;significant nexus&rdquo; test to define which waters are subject to Clean Water Act regulation. According to Justice Kennedy, an intermittent stream or isolated wetland has significant nexus to a navigable waterway if it, either by itself or through connections with other bodies of water, significantly affects the physical, chemical or biological integrity of a downstream navigable waterway.</p> <p>The Proposed Rule specifically defines &ldquo;waters of the United States&rdquo; as:</p> <ul> <li>All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide</li> <li>All interstate waters, including interstate wetlands</li> <li>The territorial seas</li> <li>All impoundments of a traditional navigable water, interstate water, the territorial seas or a tributary</li> <li>All tributaries of traditional navigable water, interstate water, the territorial seas or impoundment</li> <li>All waters, including wetlands, adjacent to traditional navigable water, interstate water, the territorial seas, impoundment or tributary</li> <li>On a case-specific basis, other waters, including wetlands, provided those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus to traditional navigable waters, interstate waters, or the territorial seas</li> </ul> <p>The Proposed Rule would maintain the following exemptions:</p> <ul> <li>Water treatment systems</li> <li>Prior converted cropland</li> <li>Ditches that are wholly excavated in uplands, drain only uplands and have less than perennial flow</li> <li>Ditches that do not contribute flow to traditional navigable waters, interstate waters, or the territorial seas</li> <li>A wide array of features, such as irrigated farmland, small ornamental waters and water-filled depressions incidental to construction work</li> </ul> <p>In the Proposed Rule, the EPA and the Corps are specifically seeking comment on new definitions for:</p> <ul> <li>Significant nexus</li> <li>Tributary</li> <li>Neighboring waters</li> <li>Floodplains</li> <li>Wetlands</li> </ul> <p>If your agency is interested in joining the coalition to comment on the Proposed Rule and help shape the regulatory process, please contact the attorney author of this legal alert listed at right in the firm&rsquo;s <a href="http://www.bbklaw.com/?t=5&amp;LPA=424&amp;format=xml"><font color="#0000ff">Water Quality practice</font></a>, or your <a href="http://www.bbklaw.com/?p=2099"><font color="#0000ff">BB&amp;K attorney</font></a>.</p> <p><i>Disclaimer: BB&amp;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 communiqu&eacute;.</i></p>Legal Alerts04 Apr 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29642&format=xmlFrom the Soil to the Rooftop: Emerging Trends and Issues Affecting Economic Developmenthttp://www.bbklaw.com/?t=40&an=29534&format=xml<font size="2"> <p>This panel will discuss what environmental practitioners need to know about the new issues, trends, and legal regimes facing economic development in the Post-Redevelopment era, including issues such as: the disposition of property assets held by designated successor agencies; new standards regarding toxics and site contamination, renewable energy and the new energy code; and economic incentives and green credits associated with development.</p> <p><strong>When:<br /> </strong>April 4, 2014<br /> 2:30 p.m. - 3:30 p.m.<br /> <br /> <strong>Location:<br /> </strong>Westin Bonaventure Hotel<br /> 404 South Figueroa Street <br /> Los Angeles, CA 90071<br /> <br /> <strong>BB&amp;K Speaker:<br /> </strong>Seth Merewitz, Partner<br /> <br /> For more information about the symposium, please visit the <span style="color: #0000ff"><a href="http://onlinestore.lacba.org/calendar/#ViewCalendarEvent.cfm?1=1&amp;CalendarEventID=4516">LACBA website</a></span>.</p> </font>Conferences & Speaking Engagements04 Apr 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29534&format=xmlFourth Circuit: Retirement Plan Discriminates Based on Agehttp://www.bbklaw.com/?t=40&an=29638&format=xml<p>A County retirement-benefit plan requires an employee to contribute a percentage of his salary to the plan.</p> <p>But not all employees contribute at the same rate.</p> <p>Instead, an older employee must contribute at a higher rate than a younger employee who enrolls at the same time.</p> <p><a href="http://www.imla.org/blog/wp-content/uploads/2014/04/Retirement.jpg"><img style="width: 209px; height: 225px" class="alignright size-medium wp-image-564" border="0" hspace="3" alt="Retirement" vspace="3" align="right" width="209" height="225" src="http://www.imla.org/blog/wp-content/uploads/2014/04/Retirement-300x300.jpg" /></a>Does this violate the <a href="http://www.law.cornell.edu/uscode/text/29/621">Age Discrimination in Employment Act</a>?</p> <p>The Fourth Circuit, in <a href="http://www.ca4.uscourts.gov/Opinions/Published/131106.P.pdf"><em>EEOC v. Baltimore County</em>, No. 13-1106 (Mar. 31, 2014)</a>, said that in the case of Baltimore County&rsquo;s plan, it does.</p> <p>In the court&rsquo;s view, the County&rsquo;s differing age-based rates were not justified by the &ldquo;time value of money,&rdquo; particulary since any employee could retire after a fixed number of years of service:</p> <blockquote> <p>If a 20-year-old correctional officer and a 40-year-old correctional officer enrolled in the plan at the same time, and both employees chose to retire after 20 years of service, the older employee contributed a larger percentage of his annual salary to the plan, despite receiving the same level of pension benefits as the younger employee. This disparity in the employees&rsquo; contributions would occur even though the County subsidized both employees&rsquo; pension benefits. The County&rsquo;s plan required that employees contribute in accordance with the age-based rates regardless whether they chose to retire after reaching retirement age or after working the required number of years. Therefore, the number of years until an employee reached retirement age could not have served as the basis for the disparate rates. Because those disparate rates were not motivated by either the &ldquo;time value of money&rdquo; or other funding considerations, we conclude that the plan treated older employees at the time of enrollment less favorably than younger employees &ldquo;because of&rdquo; their age.</p> </blockquote> <p>The court remanded the case for the district court to consider damages.</p> <p>The County has since <a href="http://washingtonexaminer.com/court-md.-county-pension-system-discriminated/article/feed/2126556">changed its plan</a> so that all employees contribute at the same rate.</p> <p>H/T <a href="https://twitter.com/AppellateDaily/statuses/450760131454971904">Michelle Olsen</a>.</p> <p>Image courtesy of <a href="https://www.flickr.com/photos/68751915@N05/6629001111/">Flickr</a> by <a href="https://www.flickr.com/photos/68751915@N05/">401(k) 2012</a> (<a href="https://creativecommons.org/licenses/by-sa/2.0/deed.en">creative-commons license, no changes made</a>).<br /> <br /> <em>* This blog post was originally published in </em><a target="_blank" href="http://www.imla.org/blog/2014/04/fourth-circuit-retirement-plan-discriminates-based-on-age/"><em>IMLA Appellate Practice Blog</em></a><em>, April 1, 2014. Republished with permission. Visit </em><a href="http://www.imla.org/blog"><em>www.imla.org/blog</em></a><em> to read additional IMLA Appellate Practice Blog posts and to subscribe by email.</em></p>Blogs01 Apr 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29638&format=xmlCPUC Issues Decision to Protect Solar Customers for 20 Yearshttp://www.bbklaw.com/?t=40&an=29542&format=xml<p>The California Public Utilities Commission (CPUC) recently ruled to protect all existing solar, biogas and wind customers under their current net-energy metering (NEM) contracts for a 20-year grandfathering period. The 20-year period will be calculated from the date of interconnection and will only be available for NEM customers who take service before the earlier of July 1, 2017 or when their utility reaches an existing statutory cap on eligible renewable projects. After the 20-year grandfathering period and after July 1, 2017 (or when their utility reaches an existing statutory cap on eligible renewable projects), NEM customers will be subject to new NEM rules that will be established by the CPUC in a separate proceeding.</p> <p>Best Best &amp; Krieger represented the Net Energy Metering Public Agency Coalition (NEM-PAC) -- consisting of nine California cities, water districts, school districts and private businesses -- in this proceeding to safeguard public agency investments in renewable energy projects.</p> <p>This decision is significant as it impacts <u>all</u> entities and individuals with rooftop or carport-mounted solar, wind or biogas installations that are net-energy metered, such as big box retailers, companies, schools, cities, special districts, and other customers (including residential). Net-energy metering is an important State program which allows renewable energy customers to receive full retail credit for the excess energy they produce and feed into the grid; allowing them to &ldquo;net&rdquo; out the energy produced versus that which is later consumed. Because of the intermittent and variable nature of solar, net-energy metering is particularly beneficial to solar customers, allowing them to use the utility grid as a &ldquo;battery,&rdquo; rolling their meters backwards during the day and then using the energy credits produced during the day later on at night or during cloudy days. The CPUC was responsible for establishing this grandfathering period under <a href="http://www.bbklaw.com/?t=40&amp;an=25062&amp;format=xml"><font color="#0000ff">Assembly Bill 327</font></a>. (See also <a href="http://www.bbklaw.com/?t=40&amp;an=28947&amp;format=xml"><font color="#0000ff">&ldquo;CPUC Proposes 20-Year Transition Period,&rdquo; 2-25-14</font></a> and <a href="http://www.bbklaw.com/?t=40&amp;an=28290&amp;format=xml"><font color="#0000ff">&ldquo;AB 327 Threatens Existing Solar and Renewable Projects,&rdquo; 2-10-14</font></a>.)</p> <p>The CPUC&rsquo;s decision also permits existing customers to modify or expand their systems by the greater of ten percent of capacity or one kiloWatt without affecting their grandfathering rights. This ensures that existing customers can conduct repairs and minor upgrades on their systems without losing their grandfathering rights.</p> <p>If you have any questions about the grandfathering period and how it may affect your projects, please contact one of the attorney authors of this legal alert listed at right in the <a href="http://www.bbklaw.com/?t=5&amp;LPA=479&amp;format=xml"><font color="#0000ff">Renewable Energy group</font></a>, or your <a href="http://www.bbklaw.com/?p=2099"><font color="#0000ff">BB&amp;K attorney</font></a>.</p> <p><i>Disclaimer: BB&amp;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 communiqu&eacute;.</i></p>Legal Alerts31 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29542&format=xmlNinth Circuit Upholds Constitutionality of Two San Francisco Firearm and Ammunition Regulationshttp://www.bbklaw.com/?t=40&an=29509&format=xml<p><b>Overview: </b>The Ninth Circuit Court of Appeal recently held that the San Francisco Police Code section requiring handguns be stored in a locked container at home or disabled with a trigger lock when not carried is not a violation of the Second Amendment since the regulation does not prevent a person from <i>possessing</i> a firearm. The court also found that another San Francisco Police Code regulation prohibiting the sale of hollow-point ammunition was constitutional since the purpose of the regulation is to reduce the lethality of ammunition. The Ninth Circuit affirmed the district court&rsquo;s denial of plaintiffs&rsquo; request for preliminary injunction.</p> <p><b>Training Points: </b>While this ruling only addressed the constitutionality of regulations specific to the City and County of San Francisco, police officers regularly deal with improperly stored handguns and may during an investigation come across a case involving the sale of hollow-point ammunition. It is important for officers to understand how a citizen&rsquo;s Second Amendment right to bear arms may be violated and whether their jurisdiction has regulations similar to those in San Francisco. There are several Penal Code sections that deal with weapons, including the sale of ammunition, which may, if investigated improperly or applied inconsistently, implicate Second Amendment concerns. Officers should follow their department&rsquo;s policies and procedures as it pertains to detaining, citing or arresting persons suspected of improperly storing handguns or selling ammunition deemed unlawful or illegal by statute. Municipalities should consider whether similar narrowly tailored regulations would be beneficial in their communities to prevent accidental or unintentional discharge of weapons, and/or catastrophic injuries caused by hollow-point bullets.</p> <p><b>Summary Analysis: </b>In <i>Jackson v. City and County of San Francisco, et al.</i>, handgun owners and citizens (as well as the National Rifle Association and the San Francisco Veteran Police Officers Association) challenged the validity of two Police Code sections claiming they were violations of their right to bear arms under the Second Amendment. In order to determine whether the regulations violated the Second Amendment, the court engaged in a two-step inquiry: (1) whether the challenged law burdens conduct protected by the Second Amendment and (2) if so, what level of scrutiny should be applied. The court held that if the challenged law does not implicate a core Second Amendment right, or does not place a substantial burden on the Second Amendment right, then the appropriate level of scrutiny to be applied is intermediate scrutiny.</p> <p>Although the court found the storage regulation burdens a person&rsquo;s Second Amendment rights, it found it is not a substantial burden since it does not prevent citizens from using firearms to defend themselves in the home, but rather only burdens the <i>manner </i>in which persons may exercise their Second Amendment rights. This finding was based on evidence that storing handguns in a locked container reduces the risk of both accidental and intentional handgun related deaths, including suicide.</p> <p>Turning to the second regulation prohibiting the sale of hollow-point ammunition, the court held that this regulation did burden the core of the Second Amendment. The court next considered the severity of this burden and found that there was no evidence indicating that ordinary bullets are ineffective for self-defense. Further, the court reasoned, the regulation only prohibits the sale of hollow-point ammunition within San Francisco, not the use or possession of such bullets. Additionally, the ban on the sale of certain types of ammunition does not prevent the use of handguns or other weapons for self-defense. This regulation, only limits the <i>manner</i> in which a person may exercise Second Amendment rights by making it more difficult to purchase certain types of ammunition. Again, applying the intermediate level of scrutiny, the court looked to the record which included evidence that San Francisco banned the sale of hollow-point ammunition because it is more lethal than other types of ammunition. Because the regulation is a reasonable fit for achieving San Francisco&rsquo;s goals of reducing the lethality of ammunition, the regulation was found to be constitutional.</p> <p><b>Follow-Up Contact: </b>For questions regarding this case or its implications for your agency and public safety department, please contact one of the authors of this bulletin listed at right in the <a href="http://www.bbklaw.com/?t=5&amp;LPA=2532&amp;format=xml"><font color="#0000ff">Public Safety practice</font></a>, or your <a href="http://www.bbklaw.com/?p=2099"><font color="#0000ff">BB&amp;K attorney</font></a>.</p> <p><i>Disclaimer: BB&amp;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 communiqu&eacute;.</i></p>Legal Alerts31 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29509&format=xmlHow FCC Rules Could Affect Wireless Siting in Los Angeles - And How You Can Affect Those Ruleshttp://www.bbklaw.com/?t=40&an=29482&format=xml<p><b>Date:<br /> </b>Saturday, March 29, 2014</p> <p><b>Time:<br /> </b>8:30am - 9:15am</p> <p><b>Where:<br /> </b>Surf and Sand Resort &amp; Spa <br /> 1555 South Coast Highway <br /> Laguna Beach, CA 92651</p> <p><b>BB&amp;K Speaker:<br /> </b>Gail Karish,&nbsp;Of Counsel&nbsp;(Ontario, CA / Washington DC)<br /> Joseph Van Eaton, Partner (Washington DC)</p>Conferences & Speaking Engagements29 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29482&format=xmlNinth Circuit: Local Governments May Regulate Handgun Storage and Hollow-Point Bulletshttp://www.bbklaw.com/?t=40&an=29492&format=xml<p>The <a href="http://www.law.cornell.edu/constitution/second_amendment">Second Amendment</a> confers an individual right to keep and bear arms.</p> <p>We know that now&mdash;after decades of uncertainty&mdash;because the Supreme Court said so in <a href="http://scholar.google.com/scholar_case?q=554+us+570&amp;hl=en&amp;as_sdt=2006&amp;case=2739870581644084946&amp;scilh=0"><em>District of Columbia v. Heller</em>, 554 U.S. 570 (2008)</a>.</p> <p>But how far does the Second Amendment extend? Does it prevent a City from regulating the storage of handguns in homes or the sale of ammunition that expands upon impact, referrred to as hollow-point bullets?</p> <p><a href="http://www.imla.org/blog/wp-content/uploads/2014/03/Handgun.jpg"><img style="width: 247px; height: 164px" border="0" hspace="5" alt="Handgun" vspace="5" align="right" width="271" height="168" size-medium="" src="http://www.imla.org/blog/wp-content/uploads/2014/03/Handgun-300x199.jpg" /></a>In a case decided this week, <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2014/03/25/12-17803.pdf"><em>Jackson v. City and County of San Francisco</em>, No. 12-17803 (Mar. 25, 2014)</a>, the Ninth Circuit ruled that those bringing a Second-Amendment challenge to the City and County of San Francisco&rsquo;s handgun and ammunition regulations were not likely to succeed on the merits.</p> <p>What exactly was at issue and how did the court reach its conclusions?</p> <p><strong><em>What Regulations Did the Plaintiffs Challenge?</em></strong></p> <p>The regulations address storing handguns in residences, and the sale of particular types of ammunition that expand upon impact. Specifically, they prevent a person from keeping a handgun within a residence unless the handgun:</p> <ul> <li>&ldquo;is stored in a locked container or disabled with&rdquo; an approved trigger lock, or</li> <li>&ldquo;carried on the person of an individual over the age of 18.&rdquo; San Francisco Police Code, art. 45, Section 4512(a), (c)(1).</li> </ul> <p>A separate regulation also prohibits the sale of &ldquo;hollow-point&rdquo; bullets, i.e., ammunition that: (1) has no sporting purpose; (2) is designed to expand upon impact to increase damage; and (3) is designed to fragment upon impact. San Francisco Police Code, art. 9, Section 613.10(g).</p> <p><em><strong>What Test Applies?</strong></em></p> <p>The Ninth Circuit found that after <a href="http://scholar.google.com/scholar_case?q=554+us+570&amp;hl=en&amp;as_sdt=2006&amp;case=2739870581644084946&amp;scilh=0"><em>Heller</em></a>, it must apply a two-step inquiry:</p> <ol> <li>Does the challenged law burden conduct protected by the Second Amendment?</li> <li>If so, what is the appropriate level of scrutiny, based on how close the law comes to the core Second-Amendment right, and how severely it burdens that right?</li> </ol> <p><em><strong>Do the Regulations Fall Within the Scope of the Second Amendment?</strong></em></p> <p>On the first question, the Ninth Circuit ruled that the regulations fall within the scope of the Second Amendment. It found that both restrictions fell outside of categories that <a href="http://scholar.google.com/scholar_case?q=554+us+570&amp;hl=en&amp;as_sdt=2006&amp;case=2739870581644084946&amp;scilh=0"><em>Heller</em></a> described as &rdquo;presumptively lawful&rdquo; regulations:</p> <ul> <li>prohibitions on the possession of firearms by felons and the mentally ill;</li> <li>laws forbidding the carrying of firearms in sensitive places such as schools and government buildings; and</li> <li>laws imposing conditions and qualifications on the commercial sale of arms</li> </ul> <p>The court also noted that although the Second Amendment does not explicitly protect ammunition, &ldquo;without bullets, the right to bear arms would be meaningless.&rdquo;</p> <p><em><strong>What Level of Scrutiny Applies?</strong></em></p> <p>The court applied intermediate, not strict, scrutiny to both regulations.</p> <p>The court ruled that the handgun-storage restriction &ldquo;burdens the core of the Second Amendment right&rdquo;:</p> <blockquote> <p align="left">[T]here are times when carrying a weapon on the person is extremely impractical, such as when sleeping or bathing. Therefore, as a practical matter, section 4512 sometimes requires that handguns be kept in locked storage or disabled with a trigger lock. Having to retrieve handguns from locked containers or removing trigger locks makes it more difficult &ldquo;for citizens to use them for the core lawful purpose of self-defense&rdquo; in the home.</p> </blockquote> <p align="left">The court declined to apply strict scrutiny, however. In the court&rsquo;s view, the regulation does not impose &ldquo;the sort of severe burden imposed by the handgun ban&rdquo; at issue in <em><a href="http://scholar.google.com/scholar_case?q=554+us+570&amp;hl=en&amp;as_sdt=2006&amp;case=2739870581644084946&amp;scilh=0">Heller</a>. </em>The court found that the regulation is akin to a time, place, and manner regulation under the First Amendment:</p> <blockquote> <p align="left">Unlike the challenged regulation in <em>Heller</em>, section 4512 does not substantially prevent law-abiding citizens from using firearms to defend themselves in the home. Rather, section 4512 regulates how San Franciscans must store their handguns when not carrying them on their persons. This indirectly burdens the ability to use a handgun, because it requires retrieving a weapon from a locked safe or removing a trigger lock. But because it burdens only the &ldquo;<em>manner</em> in which persons may exercise their Second Amendment rights,&rdquo; the regulation more closely resembles a content-neutral speech restriction that regulates only the time, place, or manner of speech.</p> </blockquote> <p align="left">The court distinguished cases from the Seventh Circuit &mdash; <a href="http://scholar.google.com/scholar_case?q=moore+madigan&amp;hl=en&amp;as_sdt=2006&amp;case=10665754353092136977&amp;scilh=0">here</a> and <a href="http://scholar.google.com/scholar_case?q=651+f3d+708&amp;hl=en&amp;as_sdt=2006&amp;case=17044109654189761463&amp;scilh=0">here</a> &ndash; that had applied higher levels of scrutiny to bans and prohibitions. The court found that this regulation was more analogous to the registration requirements <a href="http://scholar.google.com/scholar_case?q=670+f.3d+1255+heller&amp;hl=en&amp;as_sdt=2006&amp;as_ylo=2010&amp;case=8354949939576611637&amp;scilh=0">that the D.C. Circuit analyzed</a> under intermediate scrutiny.</p> <p align="left">The court ruled that the restriction on the sale of hollow-point bullets does not burden the core of the Second Amendment at all, and that it too is more akin to a time, place, and manner regulation.</p> <p align="left"><strong><em>Do the regulations survive intermediate scrutiny?</em></strong></p> <p align="left">The court said yes, and that the City and County were likely to succeed in defending their restrictions.</p> <p align="left">The court ruled that the locked-storage requirement serves a &ldquo;significant government interest&rdquo; by &ldquo;reducing the number of gun-related injuries and deaths from having an unlocked handgun in the home.&rdquo; The court also found that there is a reasonable &ldquo;fit&rdquo; between this regulation and the City and County&rsquo;s public-safety interest. The court stressed that the restriction need not be the <em>least</em> restrictive means of reducing handgun-related deaths, and found that the burden it imposes was not substantial.</p> <p align="left">The court also upheld the restrictions on hollow-point ammunition. It found that the City had an interest in reducing the fatality of shootings, and found that the regulation reasonably served that goal. Although the plaintiffs claimed that the governments had relied on &ldquo;bad science and erroneous assumptions,&rdquo; the court found that the evidence &ldquo;fairly supports&rdquo; their view:</p> <blockquote> <p align="left">San Francisco&rsquo;s evidence more than &ldquo;fairly supports&rdquo; its conclusion that hollow-point bullets are more lethal than other types of ammunition. At most, Jackson&rsquo;s evidence suggests that the lethality of hollow-point bullets is an open question, which is insufficient to discredit San Francisco&rsquo;s reasonable conclusions. Section 613.10(g) is a reasonable fit for achieving its objective of reducing the lethality of ammunitation because it targets only that class of bullet which exacerbates lethal firearm-related injuries.</p> </blockquote> <p align="left">Image courtesty of <a href="http://www.flickr.com/photos/kcdstm/2221475782/">Flickr</a> by <a href="http://www.flickr.com/photos/kcdstm/">Ken</a> (<a href="https://creativecommons.org/licenses/by/2.0/deed.en">creative-commons license, no changes made</a>).<br /> <br /> <em>* This blog post was originally published in </em><a target="_blank" href="http://www.imla.org/blog/2014/03/ninth-circuit-local-governments-may-regulate-handgun-storage-and-hollow-point-bullets/"><em>IMLA Appellate Practice Blog</em></a><em>, March 28, 2014. Republished with permission. Visit </em><a href="http://www.imla.org/blog"><em>www.imla.org/blog</em></a><em> to read additional IMLA Appellate Practice Blog posts and to subscribe by email.</em></p>Blogs28 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29492&format=xmlCommunications From Officials' Private Cell Phones and E-Mail Not Subject to Public Records Acthttp://www.bbklaw.com/?t=40&an=29498&format=xml<p>A California Court of Appeal ruled yesterday that public agencies are not required to disclose communications from officials&rsquo; private cell phones and e-mail accounts under the Public Records Act (PRA). In the same vein, public agencies have no duty to search officials&rsquo; and employees&rsquo; private devices and accounts in response to a PRA request. The case of <i><a href="http://www.courts.ca.gov/opinions/documents/H039498.PDF"><font color="#0000ff">City of San Jose v. Superior Court</font></a></i> confirms that agencies cannot be responsible for those records, in part because individual officials and employees are not subject to the PRA. Moreover, agencies have no access to those personal communications.</p> <p>According to the court, public agencies are free to adopt their own policies regarding access to private communications on public issues. The court also acknowledged broader policy issues in the case, including the public&rsquo;s right-to-know versus the administrative burdens agencies would face if they were forced to obtain individuals&rsquo; private communications. However, the court noted that the Legislature was better suited to address those policy concerns.</p> <p>The <i>San Jose</i> case was prompted after Ted Smith submitted a PRA request to the City of San Jose asking for &ldquo;any and all voicemails, emails, or text messages sent or received on private electronic devices&rdquo; used by the mayor, councilmembers and city staff regarding &ldquo;any matters concerning the City of San Jose.&rdquo; The city rejected the request because under the PRA, the city did not &ldquo;prepare, own, use, or retain&rdquo; messages from those private devices.</p> <p>Though <a href="http://www.bbklaw.com/?t=40&amp;an=18466&amp;format=xml"><font color="#0000ff">a trial court sided with Smith</font></a>, the Court of Appeal overturned that lower court ruling. In news reports, Smith&rsquo;s attorney has indicated that his client will petition the California Supreme Court to review the Appellate Court decision.</p> <p>For questions regarding this case or its implications for your agency, please contact one of the attorney authors of this legal alert listed at right in the <a href="http://www.bbklaw.com/?t=5&amp;LPA=489&amp;format=xml"><font color="#0000ff">Municipal Law practice group</font></a>, or your <a href="http://www.bbklaw.com/?p=2099"><font color="#0000ff">BB&amp;K attorney</font></a>.</p> <p><i>Disclaimer: BB&amp;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 communiqu&eacute;.</i></p>Legal Alerts28 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29498&format=xmlProtecting Your Agency from Contractor Claims, Implementing the California False Claims Act and Public Works Contracting Lessons Learnedhttp://www.bbklaw.com/?t=40&an=29355&format=xml<span itemprop="postalCode"> <p>Hear about lessons learned the hard way and their application to assist anyone responsible for managing public works contracts in California. Helpful tips to utilize the California False Claims Act are also covered. Techniques for avoiding claims or contractual provisions that protect public agencies along with how to handle and manage claims once they are submitted will be presented.</p> <p><b>When:<br /> </b>March 27, 2014</p> <p><b>Where:<br /> </b>Sheraton Grand Sacramento Hotel<br /> 1230 J Street <br /> Sacramento, California 95814</p> <p><b>BB&amp;K Speaker:<br /> </b>Scott Campbell, Partner (Los Angeles, CA)<br /> <br /> For more information about the event, please visit the <a href="http://www.cacities.org/Education-Events/Public-Works-Officers-Institute/For-Attendees/Sessions/Sessions">League of California Cities</a> website.</p> </span>Conferences & Speaking Engagements27 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29355&format=xmlSubstantial Rewriting of SMARA Proposed Bill Would Decrease Local Agencies' Rolehttp://www.bbklaw.com/?t=40&an=29419&format=xml<p>Under proposed Senate Bill 1270 (Pavley), the Surface Mining and Reclamation Act (SMARA) would be substantially revised, reducing the role of local agencies in regulating mines in their jurisdictions. Because SB 1270 would also place tighter and more expensive restrictions on the mining industry, the bill may adversely affect local economies that rely on revenues and economic activity created by mining operations. The bill is currently before the Senate Natural Resources and Water Committee. In response to SB 1270, several local agencies have submitted or are in the process of submitting letters of opposition to Senator Pavley&rsquo;s office.</p> <p>SB 1270 would directly affect local agencies by transferring some of their key responsibilities under the SMARA to the Office of Mine Reclamation (which would be renamed the &ldquo;Division of Mines&rdquo;). Specifically, local agencies would no longer be responsible for inspecting mines, as this would be done by the newly-created post of State Mine Inspector. Also, local agencies would no longer set the amount of the financial assurance required for a mine&rsquo;s reclamation, as this would be handled by the Director of the Department of Conservation. Furthermore, the bill would allow third parties to challenge (via the State Mining and Geology Board) the actions of a local agency in approving a reclamation plan, and would remove local agency discretion in issuing notices of violation to mines in their jurisdiction.</p> <p>Local mining operations could also be adversely affected by SB 1270. For instance, the bill would substantially increase annual reporting fees&nbsp;to $1,000 per acre, with no maximum. More importantly, a mine&rsquo;s listing on the AB 3098 list (which is a requirement in order to be able to sell materials to the state, such as concrete or asphalt to CalTrans) can be challenged by the public, which could give opponents of mining a means to economically injure a mine and, indirectly, a local economy.</p> <p>It is early in the legislative year and further amendments may limit the bill&rsquo;s effect on local agencies. BB&amp;K will continue to monitor this bill, and can offer assistance in preparing comment letters to the Legislature regarding SB 1270. For further information, please contact the attorney author of this legal alert listed at right in the <a href="http://www.bbklaw.com/?t=5&amp;LPA=420&amp;format=xml"><font color="#0000ff">Environmental Law &amp; Natural Resources</font></a> practice group, or your <a href="http://www.bbklaw.com/?p=2099"><font color="#0000ff">BB&amp;K attorney</font></a>.</p> <p><i>Disclaimer: BB&amp;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 communiqu&eacute;.</i></p>Legal Alerts25 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29419&format=xmlWhat Your City Should Know About E-Cigarettes... And How Other Cities are Dealing with this Growing Trendhttp://www.bbklaw.com/?t=40&an=29515&format=xml<p>By<b> G. Ross Trindle, III </b>and <b>Andrew Maiorano</b></p> <p>Electronic cigarettes have been promoted as a safer alternative to cancer-causing tobacco products that can wean heavy smokers off their habit. But this month, Los Angeles officials joined a growing list of cities that treat e-cigarettes just the same as regular cigarettes, banning their use in parks, restaurants and most workplaces.&nbsp;The decision came after an impassioned, and at times highly personal, debate (according to published reports) at a city council meeting that highlighted the backlash the smokeless cigarettes have generated as their popularity grows.</p> <p>Electronic cigarettes, often called e-cigarettes, are battery-operated devices designed to look like regular tobacco cigarettes. Like their conventional counterparts, electronic cigarettes contain nicotine.&nbsp;They were invented in the 1960s, but they didn&rsquo;t really take off until a decade ago. The Tobacco Vapor Electronic Cigarette Association now estimates that roughly four million Americans use the battery-powered cigs.</p> <p>Here&rsquo;s how they work: An atomizer heats a liquid containing nicotine, turning it into a vapor that can be inhaled and creating a vapor cloud that resembles cigarette smoke.&nbsp;Manufacturers claim that electronic cigarettes are a safe alternative to conventional cigarettes. Starter kits usually run between $30 and $100. The estimated annual cost of replacement cartridges is about $600, compared with the more than $1,000 a year it costs to feed a pack-a-day tobacco cigarette habit, according to the Tobacco Vapor Electronic Cigarette Association.</p> <p>More than 45 communities in California have included e-cigarette regulations in their smoking ordinances. Fifty-nine include e-cigarettes in their tobacco retailer license programs, meaning that those who want to sell e-cigarettes must obtain a license. Also, 21 jurisdictions have included e-cigarettes in smoking provisions that apply to housing complexes.&nbsp;Los Angeles follows in the footsteps of New York City, Washington D.C., Chicago and Boston, as well as five states that have restricted &lsquo;vaping&rsquo; in some way.&nbsp;L.A.&rsquo;s ban, however, will allow people to use e-cigarettes in vapor lounges, e-cigarette stores and for filming or theatrical purposes.</p> <p>Currently, the U.S. Food and Drug Administration&rsquo;s Center for Drug Evaluation and Research only regulates e-cigarettes that are marketed for therapeutic purposes.&nbsp;The FDA, however, plans to regulate e-cigarettes but has not yet issued proposed rules. Right now, the agency simply states on its website that &ldquo;e-cigarettes have not been fully studied so consumers currently don&rsquo;t know the potential risks of e-cigarettes,&rdquo; including how much nicotine or other chemicals are inhaled or if e-cigs &ldquo;may lead young people to try &hellip; conventional cigarettes.&rdquo;&nbsp;A Centers for Disease Control and Prevention study found nearly 1.8 million young people had tried e-cigarettes, and the number of U.S. middle and high school student e-smokers doubled between 2011 and 2012.</p> <p>Some municipalities are taking very aggressive positions.&nbsp;Poway, for example, recently chose to broaden the definition of &ldquo;smoking&rdquo; in its municipal code to include e-cigarettes, and to extend its existing prohibition on &ldquo;smoking&rdquo; to include public buildings, grounds, parks and trails. The practical result of such action appears to be a ban on the use of e-cigs in these public areas. In justification of the ban, Poway cited the unknown health risks associated with extended use of e-cigs, the increasing popularity of the devices with minors who may then turn to using traditional cigarettes and concerns about enforcing smoke-free ordinances due to the difficulty in distinguishing between regular cigarettes and e-cigs.</p> <p>The Long Beach City Council recently voted on an item requesting the city attorney draft an ordinance to include e-cigarettes and nicotine vapor devices in the municipal code&rsquo;s definition of tobacco products, require e-cigarette businesses retain a tobacco retailer&rsquo;s permit and ban the devices in designated &ldquo;No Smoking&rdquo; areas.</p> <p>On the plus side for e-cigarettes, there is evidence that they can be used to help quit smoking, and you can buy them with progressively lower levels of nicotine, working down to zero. This month the City Council in Yakima, Washington voted down a proposal to ban e-cigarettes in public places because the majority said there was a lack of evidence that the nicotine-infused fumes are dangerous. The number of e-smokers is expected to quadruple in the next few years as smokers move away from the centuries-old tobacco cigarette.</p> <p>While some in the medical industry argue that the tar and other chemicals in traditional cigarette smoke is what causes cancer, more definitive research is underway to determine the toxicity of e-cigarettes. The FDA and the National Institutes of Health recently issued grants to higher education institutions to conduct such research on the impact of e-cigarette vapor. One grantee is the University of Maryland, which received $19 million to provide scientific evidence as a baseline for the FDA to use in regulating e-cigarettes.</p> <p>The National Association of Convenience Stores (NACS) is doing its part to help by encouraging its members to adopt a policy of treating these products as age restricted and follow the same applicable federal, state and local laws for verifying the age of the purchaser. The NACS has also committed to work with all appropriate federal organizations to ensure that convenience stores continue to play a leadership role in establishing guidelines for e-cigarettes and other age-restricted products.</p> <p>California Health and Safety Code Section 119405 only prohibits the sale of e-cigarettes to minors, while expressly referencing that California law is subject to any federal regulation of the devices, including the regulations of the FDA. This current state of the law does not provide much guidance for local governments as they seek to deal with the growing popularity of vaping.</p> <p>Local governments in California do have options, ranging from taking no action until the state and federal government issue more guidance and regulations for the industry, to an outright ban on the sale and manufacturing. The question does not appear to be whether the popularity of e-cigarettes will continue to grow, but instead it is where and how such growth will occur. At least for now, the answer rests with local governments.</p> <p><i>* This article first appeared in <a href="http://www.publicceo.com/2014/03/what-your-city-should-know-about-e-cigarettes/"><font color="#0000ff">PublicCEO.com</font></a> on Mar. 25, 2014. Republished with permission.</i></p>BB&K In The News25 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29515&format=xmlBB&K Attorneys Speaking on Water, CEQA, Habitat Conservation Plans and Other Topicshttp://www.bbklaw.com/?t=40&an=29364&format=xml<span itemprop="postalCode"> <p><font color="#0000ff"><font color="#000000">Several BB&amp;K attorneys will be presenting on a variety of timely environmental law topics at the annual California Association of Environmental Professionals. The conference is attended by environmental-related professionals from throughout California, and will feature more than 35 AICP and MCLE conference sessions, mobile workshops, keynote speakers, and exhibitors.</font><br /> <br /> </font><font color="#000000"><strong>BB&amp;K Speakers:</strong></font></p> <ul> <li><a href="http://www.bbklaw.com/?t=3&amp;A=1650&amp;format=xml"><font color="#0000ff">Michelle Ouellette</font></a> will be holding an interactive &ldquo;Habitat Conservation Plan Jeopardy&rdquo; game the morning of March 24th.</li> <li><a href="http://www.bbklaw.com/?t=3&amp;A=1544&amp;format=xml"><font color="#0000ff">Steve Anderson</font></a> and <a href="http://www.bbklaw.com/?t=3&amp;A=5453&amp;format=xml"><font color="#0000ff">Joseph Byrne</font></a> are presenting &ldquo;Bay-Delta and Water Supply Issues: The Latest&rdquo; the afternoon of March 24th.</li> <li><a href="http://www.bbklaw.com/?t=3&amp;A=1678&amp;format=xml"><font color="#0000ff">Charity Schiller</font></a> and <a href="http://www.bbklaw.com/?t=3&amp;A=1547&amp;format=xml"><font color="#0000ff">Fernando Avila</font></a> are speaking on &ldquo;Preparing CEQA Administrative Records: What to Keep and What to Throw Away&rdquo; the afternoon of March 24th.</li> <li><a href="http://www.bbklaw.com/?t=3&amp;A=4176&amp;format=xml"><font color="#0000ff">Sarah Owsowitz</font></a> is presenting &ldquo;Is There Enough Water? Water Supplies per SB 610 and Beyond&rdquo; also on the afternoon of March 24th.</li> <li><a href="http://www.bbklaw.com/?t=3&amp;A=1570&amp;format=xml"><font color="#0000ff">Melissa Cushman</font></a> and <a href="http://www.bbklaw.com/?t=3&amp;A=5223&amp;format=xml"><font color="#0000ff">Jennifer Kunz</font></a> are participating on a panel entitled &ldquo;Consultants and Attorneys: Two Different Perspectives on CEQA?&rdquo; the morning of March 25th.</li> <li><a href="http://www.bbklaw.com/?t=3&amp;A=1544&amp;format=xml"><font color="#0000ff">Steve Anderson</font></a> is speaking on &ldquo;Mitigating for Species, Water, and Other Natural Resource Impacts: A Holistic Approach&rdquo; on the morning of March 25th.</li> <li><a href="http://www.bbklaw.com/?t=3&amp;A=1842&amp;format=xml"><font color="#0000ff">Alisha Winterswyk</font></a> is presenting &ldquo;CEQA on the Internet: The Lady or the Tiger?&rdquo; on the afternoon of March 25th.</li> </ul> <p style="margin: 0in 0in 0pt" class="MsoBlockText"><o:p></o:p></p> <p><strong>When:<br /> </strong>March 23-26, 2014</p> <p><b>Where:<br /> </b>Waterfront Beach Resort in Huntington Beach <br /> 21100 Pacific Coast Highway<br /> Huntington Beach, CA 92648<br /> <span style="display: none" id="1395425693760S">&nbsp;</span><strong><br /> </strong><span style="display: none" id="1395425706670S">&nbsp;</span>For more information on the conference or to register, please visit <a href="https://www.etouches.com/ehome/76426/156938/?&amp;"><font color="#0000ff">AEP&rsquo;s conference website</font></a>.</p> <p>&nbsp;</p> <p>&nbsp;</p> </span>Conferences & Speaking Engagements24 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29364&format=xmlBB&K Police Bulletin: Distracted Driving Updatehttp://www.bbklaw.com/?t=40&an=29384&format=xml<p><b>Overview: </b>A California Court of Appeal recently held that using a cell phone solely for its map function did <i>not</i> violate Vehicle Code section 23123. The court found that both the plain language of the statute and the legislative history showed that the law was meant to prohibit only <i>talking</i> on a cellphone unless using it hands-free. This ruling overturned the <a href="http://www.bbklaw.com/?t=40&amp;an=18491&amp;format=xml"><font color="#0000ff">decision of a lower court</font></a> that upheld the defendant&rsquo;s conviction.</p> <p><b>Training Points:</b> Although this ruling is only binding within the 5th District Court of Appeals (the counties of Fresno, Kern, Kings, Madera, Mariposa, Merced, Stanislaus, Tulare and Tuolumne), the ruling is instructive on how other courts may interpret Vehicle Code section 23123(a). The court&rsquo;s analysis pointed to a narrow prohibition of using cellphones for talking except in hands-free mode, but did not include using the cellphone for other purposes. Given this ruling, officers who observe motorists utilizing a device while driving will need to determine whether the motorist is legally using the navigation function or using the device for other purposes such as texting or talking. Clearly, the overarching concern is the driver&rsquo;s level of distraction when using the device, hence the prosecution of VC 23123 (a) cases will be challenging. Providing details about the driver&rsquo;s actions while using the device (looking away from the road for a prolonged period, crossing into other lanes abruptly, etc.) will be necessary to prove the elements of the violation and may also establish other Vehicle Code violations.</p> <p><b>Summary Analysis: </b>In <i>People v. Spriggs</i><span>, a California Highway Patrol officer cited Steven R. Spriggs for driving a motor vehicle while using a cell phone. Spriggs had been holding his phone to look at a map and he was not talking on the phone at the time. The Fresno County Superior Court upheld the citation. Spriggs appealed the decision to the Appellate Division, arguing that the statute prohibited hands-on use of a wireless telephone for <i>conversation only</i>, not when using a map application. The Appellate Division upheld his conviction and he appealed again to the Fifth District Court of appeal. The court agreed with Spriggs&rsquo; contentions, finding both the plain language of the statute and the legislative history in support of his interpretation. To rule differently, the court found, would make the language of the statute internally inconsistent and at odds with the legislative history, which showed a clear concern for people having two hands on the wheel while talking. The legislative history did not include a concern for people using their phones for other purposes, including using a map application. </span></p> <p><b>Follow-Up Contact: </b>For questions regarding this case or its implications for your city and police department, please contact one of the authors of this bulletin listed at right in the <a href="http://www.bbklaw.com/?t=5&amp;LPA=2532&amp;format=xml"><font color="#0000ff">Public Safety</font></a> practice, or your <a href="http://www.bbklaw.com/?p=2099"><font color="#0000ff">BB&amp;K attorney</font></a>.</p> <p><i>Disclaimer: BB&amp;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 communiqu&eacute;.</i></p>Legal Alerts24 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29384&format=xmlProposal May Help Cities Finance Projectshttp://www.bbklaw.com/?t=40&an=29399&format=xml<p>Infrastructure Financing Districts (IFDs) are receiving a lot of attention in Sacramento, and around the state, as several proposals, if approved, could make IFDs a valuable tool for cities and counties to use for financing infrastructure and economic development projects. Since the enactment of the Redevelopment Dissolution Act (RDA) in 2011, cities and other local public agencies have sought alternative incentives to help promote economic development.&nbsp;&nbsp;&nbsp;</p> <p>The Infrastructure Financing District Act (Government Code &sect;53395, et seq.) was approved in 1990.&nbsp;Under the IFD law, cities and counties can create IFDs to pay for regional scale public works. &nbsp;IFDs can utilize tax increment revenue (the increased property tax from the district from increased assessed valuation) for 30 years to finance highways, transit, water systems, sewer projects, flood control, child care facilities, libraries, parks and solid waste facilities. IFDs cannot pay for maintenance, repairs, operating costs or services. &nbsp;IFDs cannot levy taxes, but they may issue bonds to be repaid by the tax increment revenue.</p> <p>The only IFD examples in California, to date, are LEGOLAND and Rincon Hill. &nbsp;Carlsbad city officials formed a 200-acre IFD in 1999 to fund the public works for a new hotel located adjacent to the LEGOLAND theme park.&nbsp;However, no bonds were issued.&nbsp;In San Francisco, the Rincon Hill IFD grew out of the need for new infrastructure to support residential and commercial development.&nbsp;Debt was issued by the Rincon Hill IFD, but only as a private placement and not sold to the open market.</p> <p>Why so few IFDs?&nbsp;With the old redevelopment law, there was virtually no need for an alternative tool as redevelopment tax increment had a long, robust history and Constitutional authorization. Also IFDs include burdensome voter-approval processes to be formed, set appropriations limit and issue bonds.&nbsp;However, this is likely to change now that redevelopment agencies have been dissolved and cities are trying to address burgeoning demands for infrastructure and economic development.&nbsp;</p> <p>As part of California&rsquo;s 2014-2015 budget, Governor Jerry Brown has proposed the expansion and modification of the IFD law.&nbsp;The California Legislative Analyst&rsquo;s Office (LAO) reviewed the governor&rsquo;s proposal and made recommendations for improving the effort to broaden the use of IFDs in support of local infrastructure and economic development in a report released on March 11, 2014.&nbsp;</p> <p>The LAO analyzed the Governor&rsquo;s proposal and made several recommendations.&nbsp;While the LAO generally supports Governor Brown&rsquo;s proposal to enhance IFDs, the office did offer some critique.&nbsp;In short, the governor&rsquo;s proposal displays interest in assisting local economic development and infrastructure financing, but may not go far enough or even be Constitutionally valid.</p> <p><i>Click </i><a target="_blank" href="http://www.dailyjournal.com/"><i><font color="#0000ff">here</font></i></a><i> to read the entire article published on March 21, 2014 in the Daily Journal. (subscription required).</i></p>BB&K In The News24 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29399&format=xmlBB&K Police Bulletin: Red Light Camera Warningshttp://www.bbklaw.com/?t=40&an=29403&format=xml<p><b>Overview:</b> The California Supreme Court has ruled that the statutory provision requiring a city to make a public announcement and issue warnings instead of citations for 30 days after the installation of a red light camera applies each time a new camera is installed. However, a city&rsquo;s failure to provide the 30-day period of warnings and public notice does not preclude subsequent prosecution of individuals for violating the red light traffic law.</p> <p><b>Training Points:</b> For communities using red light camera enforcement systems, this ruling should support citations for intersections that began operation without compliance with the 30-day notice and warning period. However, the California Supreme Court made it clear that communities are required to comply with the notice and warning periods prior to each installation, not just for the first intersection.</p> <p><b>Summary Analysis:<span>&nbsp;&nbsp; </span></b>In <i>People v. Gray</i>, Gray was convicted of running a red light after a red light camera photographed him traveling through an intersection. The statute authorizing the use of red light cameras requires that their operation be preceded by a public announcement, as well as an initial 30-day period during which only warnings are to be issued. Gray argued that this statutory period applied to the installation of cameras at each additional intersection&mdash;not just the first intersection&mdash;and that the city&rsquo;s failure to comply invalidated the citation. While the California Supreme Court agreed with Gray that each installation required a separate notice and warning period, the Court still held that the city&rsquo;s failure to comply did not invalidate traffic citations. Compliance with the 30-day period was not a jurisdictional precondition to enforcement of the red light traffic law.</p> <p><b>Follow-Up Contact: </b>For questions regarding this case or its implications for your agency and public safety department, please contact one of the authors of this bulletin listed at right in the <a href="http://www.bbklaw.com/?t=5&amp;LPA=2532&amp;format=xml"><font color="#0000ff">Public Safety practice</font></a>, or your <a href="http://www.bbklaw.com/?p=2099"><font color="#0000ff">BB&amp;K attorney</font></a>.</p> <p><i>Disclaimer: BB&amp;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 communiqu&eacute;.</i></p>Legal Alerts24 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29403&format=xmlPlay-or-Pay Reprieve for Some Employershttp://www.bbklaw.com/?t=40&an=29510&format=xml<p><b>By Isabel C. Safie</b></p> <p>Certain employers may be eligible for a delay in implementing the Affordable Care Act&rsquo;s employer-shared responsibility mandate, also known as the play-or-pay rules, according to the final rules that were released in February.</p> <p>However, certain conditions have to be met to be eligible for this relief and it is only temporary.</p> <p>The play-or-pay rules were intended to go into effect on Jan. 1, 2014 for most large employers (those with at least 50 full-time-equivalent employees) during the prior calendar year. However, the first delay in the implementation of these rules came last year when the effective date was pushed back to the first day of the plan year beginning on or after Jan. 1, 2015.</p> <p>Aware of the burden that complying with the play-or pay rules has placed on employers yet committed to moving forward with this critical element of the Affordable Care Act, the administration has opted to de- lay the implementation of the play-or-pay rules one more year, to Jan. 1, 2016, for certain large employers.</p> <p>This additional delay allows for a gradual phase-in of the play-or-pay rules to ease the burden on some employers. For those employers who are eligible for the one year delay but which have already begun to comply with the rules, this delay merely offers an opportunity to further test out the sufficiency of their coverage.</p> <p>To determine if an employer is eligible to take advantage of the one-year delay, the government has determined that an employer must meet the following four requirements:</p> <div style="margin-left: 40px">1. The employer must have employed 50 to 99 full-time employees (including fulltime- equivalent employees) during 2014. For this purpose, the measuring period must be between 6 and 12 consecutive months. (Employers with less than 50 fulltime employees, including full-time equivalent employees, are not subject to the play-or-pay rules.)<br /> &nbsp;</div> <div style="margin-left: 40px">2. The employer cannot reduce the size of its workforce or the overall hours of service of its employees during the period of Feb. 9- Dec. 31, 2014, solely for the purpose of becoming eligible for this delay. A reduction in the number of employees or hours worked for legitimate business reasons, such as due to the loss of a contract, a downturn in the economy or poor employee performance, will not affect eligibility for this one-year delay.<br /> <br /> 3. The employer cannot eliminate or reduce the health coverage it offers to employees during the period beginning on Feb. 9, 2014 and ending on the last day of the plan year beginning in 2015 (e.g., Dec. 31, 2015 for calendar year plans). To comply with this requirement, the employer must generally maintain the same or better rate of contribution toward the cost of employee-only coverage. Additionally, the employee-only coverage offered to employees must cover at least 60 percent of the total cost of medical services provided under the plan. Also, the employer cannot alter the eligibility terms of the plan such that the class of employees to whom coverage was offered on Feb. 9, 2014 is reduced. <br /> <br /> 4. The employer must certify, on a form to be designated by the Internal Revenue Service, that it satisfies these requirements. Final rules on the information reporting obligations under the play-or-pay rules (released on March 10) confirm that this certification will be made on the same form used to satisfy these obligations. Therefore, employers who are eligible for the one year delay will still need to comply with the information reporting requirements by submitting the designated form in 2016 for plan years beginning in 2015.</div> <p>Notably, this delay may not be the last. A fact sheet released by the Treasury Department concurrently with the final rules suggests that compliance may continue to be a moving target as it advises that further delays may be warranted. With so much uncertainty on the timing of the implementation of these rules, it is important for employers to remain well-informed.</p> <p><i>* This article first appeared in The Press-Enterprise on Mar. 23, 2014. Republished with permission.</i></p>BB&K In The News23 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29510&format=xmlBB&K Police Bulletin: DNA Sampleshttp://www.bbklaw.com/?t=40&an=29370&format=xml<p><b>Overview: </b>The Ninth Circuit Court of Appeals recently upheld a California law requiring that all persons arrested for, or charged with, a felony or attempted felony submit DNA samples for inclusion in law enforcement databases. The constitutional challenge was brought by a class of individuals that provided cheek swabs after they were arrested, but never convicted of, a felony. They requested a preliminary injunction on behalf of a &ldquo;smaller class&rdquo; charged with less &ldquo;serious crimes&rdquo; and therefore &ldquo;not covered&rdquo; by a similar Maryland law upheld by the U.S. Supreme Court last year. The court rejected claimed distinctions between the laws, finding California&rsquo;s DNA collection scheme constitutional as applied to <i>anyone</i> &ldquo;arrested for, or charged with, a felony offense by state or local officials.&rdquo;</p> <p><b>Training Points:</b> This ruling reaffirms law enforcement's legal authority to collect DNA samples of everyone arrested on felony charges pursuant to California law. Obviously the collection of DNA samples aids law enforcement in the apprehension of past, present and future criminals and fulfills an important administrative function during the booking process. As always, officers should defer to department policy and procedure when collecting DNA samples as maintaining the chain of custody is essential for future DNA testing and prosecution.</p> <p><b>Summary Analysis: </b>In <i>Haskell v. Harris</i>, class action plaintiffs sought to bar application of California&rsquo;s DNA collection law to persons arrested for, but not convicted of, a felony offense. Under the California Penal Code, officers collected buccal swabs to create DNA profiles of arrestees. Although the plaintiffs tried to distinguish California&rsquo;s law from the one upheld by the U.S. Supreme Court in <i>Maryland v. King</i>, the Ninth Circuit found that the issue in both cases was &ldquo;essentially the same.&rdquo; California&rsquo;s DNA collection law was &ldquo;clearly&rdquo; constitutional as applied to the entire class, regardless of varying charges or felonies. Because <i>King </i>foreclosed arguments challenging the constitutionality of DNA collection, the plaintiffs would not likely succeed on the merits. Accordingly, the request for a preliminary injunction was properly denied.</p> <p><b>Follow-Up Contact: </b>For questions regarding this case or its implications for your city and police department, please contact one of the authors of this bulletin listed at right in the <a href="http://www.bbklaw.com/?t=5&amp;LPA=2532&amp;format=xml"><font color="#0000ff">Public Safety</font></a> practice, or your <a href="http://www.bbklaw.com/?p=2099"><font color="#0000ff">BB&amp;K attorney</font></a>.<br /> <br /> <i>Disclaimer: BB&amp;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 communiqu&eacute;.</i></p>Legal Alerts21 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29370&format=xmlBB&K Free Webinar: Private Employers and the NLRB - What You Need to Knowhttp://www.bbklaw.com/?t=40&an=28931&format=xml<p style="text-align: center"><strong>We're From the Government, and We Are Not Here to Help - Why You Need to Worry About the National Labor Relations Board Intruding Into Your Business</strong></p> <p>Until recently, non-union private employers had little interest in, or concern about, The National Labor Relations Board. Now, however, the Board is beginning to use the National Labor Relations Act more frequently against private non-union employers on behalf of non-union, private sector employees. Ignoring this trend can lead to substantial penalties and expense for a private employer.<br /> <br /> <strong>When:<br /> </strong>Thursday, March 20th</p> <p><strong>Recorded Version:</strong><br /> <a href="https://bbklaw.webex.com/bbklaw/lsr.php?RCID=696e5095ad7d79e85e95e2c300bdc35b "><span style="color: #0000ff">Click here to view a recording of the webinar</span></a><span style="color: #0000ff"><br /> </span><strong><br /> What&nbsp;was covered:</strong></p> <ul> <li>Mandatory Arbitration Clauses</li> <li>Class Action Provisions</li> <li>Employment Handbooks and Personnel Rules, Including At-Will Employment, No Solicitation Policies, and Prohibitions on Employee Gossip</li> <li>Confidentiality and Non-Disclosure Rules</li> <li>Social Media in the Workplace</li> <li>Employee Discipline and Personnel Investigations</li> </ul> <p><strong><br /> Audience:</strong></p> <ul> <li>Human Resources Representatives</li> <li>Labor Relations Representatives</li> <li>Management Personnel</li> </ul> <p><strong><br /> </strong><strong>BB&amp;K Speakers:</strong><br /> Roger Crawford, Partner<br /> Brian Reider, Partner</p>Seminars and Webinars20 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=28931&format=xmlPre-Condemnation Entry Statutes Found Unconstitutionalhttp://www.bbklaw.com/?t=40&an=29314&format=xml<p>For the first time in 38 years, a court has declared part of California&rsquo;s statutory eminent domain law unconstitutional. On March 13, the Third Appellate District Court of Appeal, in <em>Property Reserve, Inc. v. Super. Ct. of San Joaquin County</em>, found that the pre-condemnation entry statutes (Code of Civil Procedure sections 1245.010 et seq.) violate the takings provisions of article I, section 19 of the California Constitution. The Appellate Court ruled that any entity wishing to conduct statutory pre-condemnation studies must do so in a direct condemnation action. Assuming this decision is reviewed by the Supreme Court, it remains to be seen how courts will handle agencies&rsquo; access needs in the interim. If not overturned by the California Supreme Court, the ruling will impose more work on condemning agencies and the courts. Furthermore, this decision could also negatively impact property owners because they may now need to defend against an eminent domain action instead of a less expensive, less time consuming petition under the entry statutes.</p> <p>The entry statutes, enacted in 1976, permitted a condemning agency to enter a property &ldquo;to make photographs, studies, surveys, examinations, tests, soundings, borings, samplings, or appraisals&rdquo; prior to actually condemning the property to be studied. (Code of Civil Procedure section 1245.010.) While the entry statutes allow an entity to conduct these surveys prior to and without resorting to condemnation, they do provide the affected property owner with safeguards. For example, the entry statutes provide that any such agency must get the property owner&rsquo;s consent to conduct these studies, or, if consent is refused, get an order from a court. Further, these statutes provide that a deposit of probable compensation be made and ultimately paid to the owner for actual damages to the property and interference with its possession and use.</p> <p>In <em>Property Reserve</em>, the State of California petitioned for an order for entry to conduct two general categories of pre-condemnation activities: (1) geological activities (soil testing, boring and backfilling any holes with a cement grout mixture), and (2) environmental activities (take surveys, mapping, minor soil samples, and observe wildlife). On appeal, the court confirmed that the proposed geological activities constitute a taking per se. The Appellate Court further ruled that the environmental activities constitute a taking of a compensable property interest similar to an easement. Thus, the Appellate Court found that these pre-condemnation entry statutes were unconstitutional.</p> <p>Based on this ruling, an entity would have to condemn prior to conducting these minimally invasive tests. As the dissenting opinion of Judge Blease states, the majority&rsquo;s opinion finding the entry statutes unconstitutional &ldquo;does so without according the statutes the simplest presumption of constitutionality.&rdquo;</p> <p>For more information on this case and how it may affect your agency and projects, please contact one of the attorney authors of this legal alert listed at right in the <a href="http://www.bbklaw.com/?t=5&amp;LPA=493&amp;format=xml">Eminent Domain practice group</a>, or your <a href="http://www.bbklaw.com/?p=2099">BB&amp;K attorney</a>.</p> <p><em>Disclaimer: BB&amp;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 communiqu&eacute;.</em></p>Legal Alerts18 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29314&format=xmlNinth Circuit Upholds Delta Smelt Biological Opinion Pumping Restrictionshttp://www.bbklaw.com/?t=40&an=29315&format=xml<p>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&mdash;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 &ldquo;acutely aware of the consequences of this proceeding,&rdquo; 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.</p> <p>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&rsquo;s deadlines for completing this environmental review process.</p> <p>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.</p> <p>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&rsquo;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&rsquo;s estimation of the levels of &ldquo;entrainment&rdquo; of delta smelt at the CVP and SWP pumps, as well as the opinion&rsquo;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&rsquo; authority, or consistent with the project&rsquo;s purposes, as noted in the regulatory definition of a valid &ldquo;reasonable and prudent alternative&rdquo; under the Endangered Species Act.&nbsp;</p> <p>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&rsquo;s impacts pursuant to NEPA. However, the court upheld the district court&rsquo;s remand based on the Bureau of Reclamation&rsquo;s failure to comply with NEPA environmental review requirements before implementing the biological opinion.</p> <p>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 <a href="http://www.bbklaw.com/?t=5&amp;LPA=492&amp;format=xml"><font color="#0000ff">Environmental Law &amp; Natural Resources practice group</font></a>, or your <a href="http://www.bbklaw.com/?p=2099"><font color="#0000ff">BB&amp;K attorney</font></a>.</p> <p><i>Disclaimer: BB&amp;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 communiqu&eacute;.</i></p>Legal Alerts18 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29315&format=xmlFCC Seeks Additional Input to Improve E-Rate School & Library Technology Programhttp://www.bbklaw.com/?t=40&an=29305&format=xml<p>The Federal Communication Commission&rsquo;s Wireline Competition Bureau (WCB) released a <a href="http://www.fcc.gov/document/focused-comment-sought-e-rate-modernization"><font color="#0000ff">second public notice</font></a> seeking focused comment on three issues raised in the E-rate Modernization Notice of Proposed Rulemaking. (See prior <a href="http://www.bbklaw.com/?t=40&amp;an=22376&amp;format=xml"><font color="#0000ff">BB&amp;K legal alert</font></a> on this subject.) Comments in the proceeding are due by April 7, and reply comments are due by April 21 to address:</p> <ul> <li>How best to focus E-rate funds on high-capacity broadband, especially high-speed Wi-Fi and internal connections;</li> <li>Whether and how the Commission should begin to phase down or phase out support for traditional voice services in order to focus more funding on broadband; and</li> <li>Whether there are demonstration projects or experiments that the Commission should authorize as part of the E-rate program that would help the Commission test new, innovative ways to maximize cost-effective purchasing in the E-rate program.</li> </ul> <p>BB&amp;K will be assembling a coalition of local governments and local educators to provide input to the FCC. The BB&amp;K coalition will seek to answer these questions (paragraph of the <a href="http://www.fcc.gov/document/focused-comment-sought-e-rate-modernization"><font color="#0000ff">second public notice</font></a> is identified in parentheses):</p> <ul> <li>If the Commission is to expand funding for internal connections, what broadband equipment/software should the Commission fund? (&para; 11) If the Commission is to expand that funding, should the Commission: <ul> <li>retain the existing prioritization method, but limit upgrades to once every five years;</li> <li>only fund an applicant after all other applicants have received support or declined the opportunity to seek funding; or</li> <li>provide some support to all applicants every year? (&para;&para; 14-22)</li> </ul> </li> </ul> <ul> <li>Should the Commission undertake a limited initiative within the priority-one system to incent the deployment of high-capacity broadband connections to schools and libraries? If so, how? Raise the discount rate for all? Adopt a flat discount rate for all applicants? Give full support to schools and libraries in remote areas or tribal lands? (&para;&para; 24-29) <ul> <li>How should it identify schools and libraries that need support?</li> <li>How should it prioritize applications?</li> <li>Should it follow the current program&rsquo;s &ldquo;economic need&rdquo; approach? Or a different measure? (&para;&para; 30-33)</li> </ul> </li> </ul> <ul> <li>How can the Commission encourage consortium purchasing? <ul> <li>Should it require applicants seeking internal connections to provide a plan regarding their proposed use?</li> <li>How can the Commission best collect data on speed and quality of school connections, and on the cost-effectiveness of purchases? (&para;&para; 34-39)</li> </ul> </li> </ul> <ul> <li>How should the Commission reduce support for voice services&mdash;gradually, immediately, or just give it a lower priority? Should the Commission eliminate support for internal connections used for voice? Should it continue to support voice services in some areas? How can the Commission ease the administrative burdens related to reducing this support? (&para;&para; 40-54)</li> </ul> <ul> <li>Should the Commission develop any demonstration projects to test: <ul> <li>approaches to bulk purchasing,</li> <li>a technical-assistance program,</li> <li>temporary discounts for public-private partnerships,</li> <li>linking last-mile infrastructure to BTOP funded networks? (&para;&para; 55)</li> </ul> </li> </ul> <p>The <a href="http://www.fcc.gov/encyclopedia/universal-service"><font color="#0000ff">Universal Service Program</font></a> for schools and libraries (more commonly called the E-rate program) provides discounted telecommunications, Internet access and internal connections to eligible schools and libraries. It is the federal government&rsquo;s largest educational technology program. The program was established in the landmark Telecommunications Act of 1996, when only 14 percent of the nation's K-12 classrooms had access to the Internet. Today, virtually every library and school in the nation is connected to the Internet.</p> <p>Spending on the E-rate program is capped at $2.25 billion per year, indexed to inflation since 2010. For the 2013 funding year, schools and libraries sought E-rate funding in excess of $4.9 billion, more than twice the 2013 cap of $2.4 billion. Demand has exceeded the E-rate cap every year since the program's inception and FCC Chairman Wheeler recently announced that he would make an additional $1 billion in support available in 2014 and 2015.</p> <p>For more information on the FCC&rsquo;s Notice of Proposed Rulemaking and how your agency or school district can provide input, contact one of the attorney authors of this legal alert listed at right in the <a href="http://www.bbklaw.com/?t=5&amp;LPA=456&amp;format=xml"><font color="#0000ff">Telecommunications</font></a> or <a href="http://www.bbklaw.com/?t=5&amp;LPA=488&amp;format=xml"><font color="#0000ff">Education</font></a> practice groups, or your <a href="http://www.bbklaw.com/?p=2099" target="_blank"><font color="#0000ff">BB&amp;K attorney</font></a>.</p> <p><i>Disclaimer: BB&amp;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 communiqu&eacute;.</i></p>Legal Alerts17 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29305&format=xmlUpdate On New Employment Laws And Caseshttp://www.bbklaw.com/88E17A/assets/files/News/SDCAA spring conference.3.14.14.Arlene Prater.pdf&format=xml<div><b>Date:<br /> </b>March 14, 2014</div> <p><b>BB&amp;K Speaker:<br /> </b>Arlene Prater, Partner (San Diego Office)</p>Conferences & Speaking Engagements14 Mar 2014 00:00:00 -0800http://www.bbklaw.com/88E17A/assets/files/News/SDCAA spring conference.3.14.14.Arlene Prater.pdf&format=xmlSCOTUS: Federal Government Retains No Interest in Abandoned Railroad Rights-of-Wayhttp://www.bbklaw.com/?t=40&an=29282&format=xml<p>Congress grants a railroad a right-of-way across public land.</p> <p>The federal government then grants the land to a private landowner, who takes the parcel subject to the railroad right-of-way.<img style="width: 303px; height: 203px" border="0" hspace="4" alt="" vspace="4" align="right" width="303" height="203" src="http://www.imla.org/blog/wp-content/uploads/2014/03/RailroadROW.jpg" /></p> <p>The railroad later abandons the right-of-way.</p> <p>Does the right-of-way interest revert to the federal government? Or does the parcel owner gain full and unburdened rights to the property?</p> <p>This morning, in <a href="http://www.supremecourt.gov/opinions/13pdf/12-1173_nlio.pdf"><em>Brandt Revocable Trust v. United States</em>, No. 12-1173</a>, the Supreme Court ruled 8-1 that the federal government does not retain an interest in the abandoned right-of-way. As Chief Justice Roberts explained, under <a href="http://scholar.google.com/scholar_case?q=315+U.S.+262+&amp;hl=en&amp;as_sdt=2006&amp;case=7805902297301602875&amp;scilh=0"><em>Great Northern Railway Co. v. United States, </em>315 U.S. 262 (1942)</a>, the right-of-way was only an easement. When the railroad abandoned it, the underlying parcel simply became unburdened. The statute contained no implied revisionary interest.</p> <p>One question going forward: How will this affect many former railroad rights-of-way in which the federal government was previously thought to have retained an interest? Justice Sotomayor touches on the point in dissent:</p> <blockquote> <p>By changing course today, the Court undermines the legality of thousands of miles of former rights of way that the public now enjoys as means of transportation and recreation. And lawsuits challenging the conversion of former rails to recreational trails alone may well cost American taxpayers hundreds of millions of dollars.</p> </blockquote> <p>Image courtesy of <a href="http://www.flickr.com/photos/qnr/281106833/">Flickr</a> by <a href="http://www.flickr.com/photos/qnr/">Terry Ross</a> (<a href="http://creativecommons.org/licenses/by/2.0/deed.en">creative-commons license, no changes made</a>).<br /> <br /> <em>* This blog post was originally published in </em><a target="_blank" href="http://www.imla.org/blog/2014/02/use-space-in-documents/"><em>IMLA Appellate Practice Blog</em></a><em>, March 10, 2014. Republished with permission. Visit </em><a href="http://www.imla.org/blog"><em>www.imla.org/blog</em></a><em> to read additional IMLA Appellate Practice Blog posts and to subscribe by email.</em></p>Blogs14 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29282&format=xmlUpdate On New Employment Laws And Caseshttp://www.bbklaw.com/88E17A/assets/files/News/SDCAA spring conference.3.14.14.Arlene Prater.pdf&format=xml<div>&nbsp;</div> <p><b>BB&amp;K Speaker:<br /> </b>Arlene Prater, Partner (San Diego Office)</p>Presentations and Recordings14 Mar 2014 00:00:00 -0800http://www.bbklaw.com/88E17A/assets/files/News/SDCAA spring conference.3.14.14.Arlene Prater.pdf&format=xmlBB&K Police Bulletin: New Amendments to Gun Confiscation Lawhttp://www.bbklaw.com/?t=40&an=29233&format=xml<p><b>Overview</b>: Welfare and Institutions Code section 8102 requires a law enforcement agency to confiscate all firearms or other deadly weapons owned or controlled by someone who has been placed on a mental health hold under Welfare and Institutions Code section 5150.&nbsp;Recent amendments make important changes to the petition and disposition procedure.</p> <p>Upon release of a person placed on a mental health hold, the law enforcement agency has 30 days to petition the court for a hearing to determine whether the return of a firearm or other deadly weapon would likely endanger the person or others. Additionally, the law enforcement agency must inform the person that he or she has 30 days to respond to confirm his or her desire for a hearing, and that failure to respond will result in a default order forfeiting the weapons. Alternatively, if the person requests a hearing, and after the hearing the court determines that returning the weapons would likely endanger the detained individual or others, the agency may request an order forfeiting the deadly weapons and allowing the agency to dispose of them.</p> <p>The 2013 amendments to Welfare and Institutions Code section 8102 include:</p> <ul> <li>Under new subsections (e), (g) and (h): in the event of either an entry of a default order or after the court determines that the return of the weapon would likely endanger the detained person or others, <b>the law enforcement agency is required to hold the weapon(s) for 180 days from the date of entry of default or grant of the petition,</b> pursuant to Penal Code section 33875. Previously, Section 8102 was silent as to the amount of time the agency was required to hold the weapons before disposing of them.</li> <li>During the 180-day hold period, where the person is prohibited from possessing the weapons, <b>they may contact the law enforcement agency to facilitate the sale or transfer of the weapon(s) to a licensed dealer pursuant to Penal Code section 33870 &ndash; which prevents the destruction of the weapon(s).</b></li> <li><b>Upon confiscation, the peace officer or law enforcement agency</b> is now required to provide notice to the detained person of the procedure for the return of the weapon(s), <b>ANDmust also notify the individual of the procedure for sale, transfer or destruction of the firearm or other deadly weapon which has been confiscated</b>.</li> </ul> <p><b>Training Points</b>:</p> <ul> <li>Default orders and orders following grant of a petition should be updated to include a 180-day hold clause, during which time the person may contact the agency for a transfer or sale pursuant to Penal Code section 33870 to prevent the destruction of the weapon(s). Department policies and procedures should also be updated to reflect this change.</li> <li>Receipts/Notices of Rights with respect to confiscated firearms should be amended to comply with Section 8102 to notify the individual of the procedure for sale, transfer or destruction of the firearm or other deadly weapon which has been confiscated.</li> <li>Agencies should consider development and dissemination of training materials to inform all personnel of these important changes.</li> </ul> <p><b>Follow-Up Contact: </b>For questions regarding this amendment or its implications for your agency and public safety department, please contact one of the attorney authors of this bulletin listed at right in the Public Safety practice, or your BB&amp;K attorney.</p> <p><i>Disclaimer: BB&amp;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 communiqu&eacute;.</i></p>Legal Alerts14 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29233&format=xmlGovernor's Proposed Budget Modifies Tools Available to Local Agencies for Funding Economic Developmenthttp://www.bbklaw.com/?t=40&an=29224&format=xml<p>As part of California&rsquo;s 2014-2015 budget, Governor Jerry Brown has proposed the expansion of infrastructure financing districts (IFDs), a funding mechanism for communitywide infrastructure and development projects that has not been widely used since its inception in 1990. The California Legislative Analyst&rsquo;s Office (LAO) has reviewed the Governor&rsquo;s proposal and made recommendations for improving the effort to broaden the use of IFDs in support of local infrastructure and economic development. Since the enactment of the Redevelopment Dissolution Act in 2011, cities and other local public agencies have sought alternative incentives for economic development and funding for infrastructure projects.</p> <p>Under the current Government Code, approval by two-thirds of voters living within the IFD&rsquo;s boundaries is required for both the formation of an IFD and when an IFD proposes to issue long-term debt. Gov. Brown proposes to lower these approval thresholds for formation and issuance from two-thirds to 55 percent. The LAO raised the concern that a 55 percent threshold would not comply with Article XVI of the California Constitution, which requires two-thirds voter approval for issuance of long-term city and county debt. In the current form, IFDs cannot be autonomous because they are governed by the legislative bodies of the cities and counties that form them. While the LAO generally supports Gov. Brown&rsquo;s proposal to enhance IFDs, the LAO recommends that cities and counties be required to form autonomous IFDs. This would therefore allow a lower percentage vote required to form an IFD and issue bonds. The LAO also proposed as an alternative requiring approval by voters of neighboring agencies with jurisdictions overlapping with the IFD's boundaries.</p> <p>Gov. Brown also proposes to expand the scope of projects that are eligible for IFD financing. Currently, IFDs may finance construction, improvement or rehabilitation of various types of public facilities of &ldquo;communitywide significance,&rdquo; including highways, roads, sewage and water treatment facilities, flood control, child care facilities, libraries, parks, and solid waste disposal facilities. The public facilities must provide significant benefits to an area larger than the district&rsquo;s boundaries, and the financing cannot be used to fund the ongoing operation and maintenance of public facilities. Gov. Brown proposes to expand the scope to include the following, without the requirement that the projects be publicly owned or operated:</p> <ul> <li>Housing, retail and manufacturing facilities;</li> <li>Property development designed to meet sustainable communities goals established by Senate Bill 375 (Sustainable Communities and Climate Protection Act of 2008);</li> <li>Restoration of underused or abandoned sites contaminated by hazardous materials and other environmental mitigation projects;</li> <li>Military base reuse projects; and</li> <li>Telecommunications infrastructure.</li> <li>The LAO recommends against including retail facilities in the scope of IFDs, based on the risk that IFDs would incentivize the development of subsidized retail establishments and draw retailers away from neighboring jurisdictions.</li> </ul> <p>The Governor&rsquo;s proposal includes conditions. In order to form an IFD, a city or county must resolve all outstanding RDA-related litigation against the State and receive a &ldquo;finding of completion&rdquo; signifying that the city or county&rsquo;s liquid assets have been distributed to local governments. The city or county must also comply with any asset transfers ordered by the State Controller&rsquo;s Office. The LAO does not support these conditions, and contends that RDA-related lawsuits are not an appropriate reason to deny local governments access to a financial tool designed to help them respond to local infrastructure and economic development needs.</p> <p>The LAO strongly endorsed the Governor&rsquo;s proposal to enable IFDs to borrow from local agencies with overlapping jurisdictions. This interagency loan provision would enable local agencies to contribute funds to an IFD and would mitigate barriers to an IFD&rsquo;s formation and startup costs as a new autonomous public entity. The interest rate for these loans would be capped at the rate earned by the Local Agency Investment Fund.</p> <p>There are several other proposals to modify the IFD law that are still pending in the California Legislature. The usefulness of these proposals and any changes to the IFD law will depend on the final language approved.</p> <p><b><u>Background:</u></b></p> <p>In 1990, the enactment of Senate Bill 308 enabled cities and counties to form IFDs in order to finance communitywide infrastructure without excessively burdening new developments, especially for financing public works that benefit the broader community. IFDs were authorized to use tax increment&mdash;a portion of future property tax growth within the district&mdash;to fund specified infrastructure projects. IFDs are not authorized to levy taxes, but they may issue bonds to be repaid by tax increment. Local governments (except for school or community college districts) with jurisdictions overlapping the boundaries of an IFD may voluntarily elect to dedicate a portion of its property tax increment toward the IFD&rsquo;s financing for a particular project. Very few IFDs have been formed since 1990 as redevelopment tax increment was such a powerful tool for local agencies.</p> <p>If you have any questions about these proposals, or your agency&rsquo;s financing of infrastructure and economic development, please contact one of the attorney authors of this legal alert listed at right in the firm&rsquo;s <a href="http://www.bbklaw.com/?t=5&amp;LPA=489&amp;format=xml"><font color="#0000ff">Municipal Law</font></a> practice group, or your <a href="http://www.bbklaw.com/?p=2099"><font color="#0000ff">BB&amp;K attorney</font></a>.</p> <p><i>Disclaimer: BB&amp;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 communiqu&eacute;.</i></p>Legal Alerts13 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29224&format=xmlAdapting Existing Water Laws to Climate Changehttp://www.bbklaw.com/?t=40&an=28967&format=xmlBy <strong>Eric L. Garner</strong><br /> <br /> <p>Climate change is essentially a water problem. Whether it is drought, flood, changing hydrology or rising sea levels, the impacts of climate change all involve water to some extent. Even those who deny that human activities cause climate change must acknowledge that long-term drought cycles in the past (as evidenced by tree rings and other environmental indicators) and wide variations in hydrology can be expected to recur and may be recurring now. Based on the best evidence currently available, precipitation patterns in the near future are likely to be substantially different than in the recent past.</p> <p>Because of these ongoing changes, the importance of adapting existing legal regimes to changing hydrology cannot be overstated. The competition for water resources is keener now than it has ever been and will only get worse. The list of civilizations that has fallen due to drought is a long one and with more people, essentially no additional water supplies and different precipitation patterns from what occurred when most water laws were created, water users face significant challenges. This article discusses why conflict over water resources is inevitable; the significance of water as a different type of property and common resource; adapting existing laws and institutions to the changing environment, and the role of reasonableness and physical solution.<br /> <br /> Click <a target="_blank" href="88E17A/assets/files/Documents/BBK-RIV-Garner-ClimateChange-AdaptingWaterLaws-BloombergBNA(OfficialCopy)_2-26-14.pdf">here</a> to read the entire article.</p>BB&K In The News12 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=28967&format=xmlLitigation Associate - Business Services Practice Group - Riverside Officehttp://www.bbklaw.com/?t=40&an=29155&format=xml<p>Our Riverside office has an immediate opening for an associate with 3 to 4 years of complex litigation experience. Ideal candidate also has experience in bankruptcy (both transactional and litigation).&nbsp; Candidate must have excellent research, analytical and writing skills as well as experience taking and defending depositions, formulating discovery plans and drafting dispositive motions.&nbsp;</p> <p>Qualified applicants are invited to apply online by clicking the link below. Applicants must attach a resume, transcript and cover letter to be considered for employment. This self-apply feature is compatible with Internet Explorer 6, 7, 8 &amp; 9, Mozilla Firefox for Windows, and Safari for Macintosh.</p> <p><a target="_blank" href="https://lawcruit.micronapps.com/sup/lc_supp_jobpost.aspx?%40Pl3%3cKWEX%40=2%3e4&amp;%3db8=8_CG">lawcruit.micronapps.com/sup/lc_supp_jobpost.aspx</a></p> <p>Please address your cover letter to:</p> <p><strong>Jill N. Willis</strong><b><br /> </b><em>Chief Talent Officer</em><i><br /> </i>Best Best &amp; Krieger LLP<br /> 300 South Grand Avenue, 25th Floor<br /> Los Angeles, CA&nbsp; 90071<br /> <br /> <strong><i><span>No phone calls please.</span><span><br /> <br /> <b><i>Best Best &amp; Krieger LLP is an Equal Opportunity Employer.</i></b></span></i></strong></p>Job Openings at BB&K10 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29155&format=xmlNinth Circuit Denies En Banc Review in Newport Beach Casehttp://www.bbklaw.com/?t=40&an=29167&format=xml<p style="text-align: left"><img style="width: 303px; height: 205px" border="0" hspace="15" alt="" vspace="15" align="right" width="303" height="205" src="http://64.118.75.138/88E17A/assets/images/NinthCircuit.jpg" />The Ninth Circuit <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2014/03/04/11-55460.pdf">has denied</a> the sua sponte <a title="Update on Pacific Shores v. Newport Beach" href="http://www.imla.org/blog/2013/11/update-on-pacific-sores-v-newport-beach/">call</a> for <em>en banc</em> review in <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2013/09/20/11-55460.pdf"><em>Pacific Shore Properties, LLC v. City of Newport Beach</em>, No. 11-55460</a>, a case that we have written about previously <a title="Ninth Circuit: City Not Entitled to Summary Judgment on Housing Discrimination Claims" href="http://www.imla.org/blog/2013/09/ninth-circuit-city-not-entitled-to-summary-judgment-on-housing-discrimination-claims/">here</a>. Judge O&rsquo;Scannlain, joined by Judges Tallman, Callahan, Bea, and Ikuta, filed a dissental, that is, <a href="http://yalelawjournal.org/the-yale-law-journal-pocket-part/procedure/i-say-dissental,-you-say-concurral/">a dissent from the denial of <em>en banc</em> review</a>. It appears to be telegraphing that the Supreme Court should consider the case:</p> <blockquote> <p align="left">The panel&rsquo;s opinion in these consolidated cases invents an entirely unprecedented theory of actionable government discrimination: sinister intent in the enactment of facially neutral legislation can generate civil liability without evidence of discriminatory effect. Such unwarranted expansion of &ldquo;disparate treatment&rdquo; doctrine, moreover, recognizes no principled limit. A single member of any protected class will now be able to challenge a facially neutral&mdash;and evenly applied&mdash;municipal ordinance without having suffered any actual discrimination. Our Court, alone among the nation&rsquo;s appellate tribunals, has embarked on an uncharted and highly dubious course.&nbsp;</p> </blockquote> <p>[Disclosure: Kira Klatchko authored an amicus brief on behalf of the League of California Cities supporting Newport Beach in this case.]</p> <p>[Image courtesy of Flickr by <a href="http://www.flickr.com/photos/kenlund/">Ken Lund </a>(<a href="http://creativecommons.org/licenses/by-sa/2.0/deed.en">creative-commons license, no changes made</a>).]<br /> <br /> <em>* This blog post was originally published in </em><a target="_blank" href="http://www.imla.org/blog/2014/02/use-space-in-documents/"><em>IMLA Appellate Practice Blog</em></a><em>, March 7, 2014. Republished with permission. Visit </em><a href="http://www.imla.org/blog"><em>www.imla.org/blog</em></a><em> to read additional IMLA Appellate Practice Blog posts and to subscribe by email.</em></p>Blogs10 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29167&format=xmlMitigate Early and Often: Four Public Agency Strategies for Streamlining Projectshttp://www.bbklaw.com/?t=40&an=29137&format=xml<p>By Steven M. Anderson and Lucas I. Quass<br /> <br /> Like private development, public projects must frequently obtain and comply with a variety of state and federal regulatory permits. Too often developers, under pressure to complete projects as soon as possible, rush through the regulatory approval process and spend more time, effort and money on environmental mitigation than necessary. Public agencies sometimes fall into the same trap: Moving through the process with an eye on getting a new park, water pipeline or city hall built without an early focus on selecting and designing cost-effective options to mitigate impacts to endangered species, creeks and other natural resources. This lack of focus can haunt a public project when mitigation comes due.<br /> <br /> A shortsighted view of this aspect of the planning process can contribute to increased &ldquo;mitigation ratios,&rdquo; costly mitigation endowments and project delays. However, when public agencies engage in the process early they may be rewarded with more flexible and less costly mitigation. In fact, one of the key agencies that oversees mitigation regulations in California and the rest of the country has recently, for the first time, provided specific public guidance as to how it determines the amount of mitigation it will require and how &ldquo;mitigation ratios&rdquo; are calculated.<br /> <br /> Public agencies are well served to give mitigation obligations the same attention as the project itself. Here are four steps that can help achieve this goal and save your agency and staff some trouble.<br /> <br /> <b>Step 1: Understand Project Impacts.</b>&nbsp;<br /> Become keenly aware of existing conditions on your project site early on. This can be accomplished with the help of staff, public natural resource agencies, consultants or others. A proper baseline analysis of natural resource conditions on site, including vegetation mapping, species surveys and understanding which agencies regulate the area can help explain the resource impacts your project is likely to create.<br /> <br /> Avoid impacts to waterways and other natural resources if you can. A slight reconfiguration of your project, even if inconvenient from a design or engineering perspective, could save significant mitigation dollars in the long run. If project impacts to waters and species cannot be fully avoided, staff and consultants should evaluate mitigation options extensively before permit applications are even submitted to the regulatory agencies.&nbsp;<br /> <br /> <b>Step 2: Know the Agency Requirements.&nbsp;</b><br /> Common regulatory permits include:<br /> <br /> - Federal Clean Water Act &ldquo;Section 404&rdquo; permits regulating the discharge of dredge or fill material (Army Corps of Engineers).</p> <p>- &ldquo;Section 401&rdquo; water quality standards certifications, waste discharge requirements, &ldquo;NPDES&rdquo; or other permits designed to protect water quality (regional water quality control boards).<br /> <br /> - Fish and Game Code &ldquo;Section 1600&rdquo; (streambed alteration) or incidental take permits (state endangered species protection) issued by the California Department of Fish and Wildlife.<br /> <br /> - Biological opinions or incidental take permits to protect federally listed species (United States Fish and Wildlife Service).<br /> <br /> Each of these agency permitting documents generally has different requirements. What they have in common, however, is that permit conditions have typically become more stringent in the last 15 years or so, and continue to become more daunting as time goes on. Common high dollar items may include mitigation performance bonds, establishing buffer zones around the project site, drafting extensive mitigation plans, installing detention basins or other water quality measures, restoring habitat, permanently protecting land on or off site, establishing conservation easements, funding endowments for the long-term management of conserved sites, or purchasing credits in a mitigation bank or in lieu fee program.<br /> <br /> In most cases, the laws that apply will allow a project proponent to undertake its own mitigation, hire an expert such as a resource conservation district, land trust or consultant to assist, or legally transfer the mitigation responsibility to a third party such as a mitigation bank or in lieu fee program. However, there are pros and cons to each of these options, depending upon the circumstances of your project. This is why there is a need to be prepared.<br /> <br /> The regulatory agencies also have differing views on mitigation ratios. An instructive document recently circulated by the South Pacific Division of the Army Corps is the &ldquo;<span>Standard Operating Procedure for Determination of Mitigation Ratios</span><span>. </span>The document reveals a checklist of how mitigation ratios are typically calculated by that agency. Notably, the time lag between when project impacts occur (e.g., at time of site grading) and when replacement habitat is fully functioning (i.e., when restoration &ldquo;success criteria&rdquo; are proposed to be satisfied) can have a significant impact on the mitigation ratio.&nbsp;<br /> <br /> <strong>Step 3: Propose Mitigation.&nbsp;<br /> </strong>In many instances, public agency project proponents will submit permit applications to the regulatory agencies offering either no mitigation at all or unreasonably low mitigation. Whether this negotiation tactic will work can be debated. However, going this route is frequently disadvantageous. Agency project managers review mitigation proposals every day. They have a good idea of what is generally acceptable and what is not. Offering little or no mitigation is viewed by many regulators like denying that your project is affecting natural resources at all. This is not an offer they ordinarily expect or respect. (If your project really has no impacts, you don&rsquo;t need permits to begin with.)&nbsp;Agency project managers are unlikely to buy off on minor or no mitigation without solid baseline information. The agencies may also return permit applications as incomplete or put them on the bottom of the pile of what can already be a long process. Worse, offering no or limited mitigation leaves agency personnel to devise their own mitigation for your project. Generally, it is better to have a hand in your own mitigation requirement than leaving it to a regulator.<br /> <br /> Before proposing mitigation, project proponents should ask themselves: How much mitigation is needed for this project? What type(s) of mitigation will be acceptable? Who should implement the mitigation? Is it more cost effective for the agency to conduct the mitigation itself, or hand it off to a third party? Is the agency prepared to fund an endowment? Is there a way to split any duties associated with installation mitigation or managing it for the long-term? Can I design a mitigation project that will satisfy all of my permit obligations at one site or with a single conservation project? Is there a public relations benefit (or not) for the project proponent to conduct the mitigation itself?&nbsp;<br /> <br /> <b>Step 4: Negotiate.</b>&nbsp;<br /> As long as you are putting forth a reasonable proposal, there is no reason not to negotiate with the agencies. Most importantly, understand all your options before talking with them. Those who are prepared have a distinct advantage over those who are not. And, don&rsquo;t sign your permits without first reading and fully understanding their requirements and conditions. Also, be aware that your own agency&rsquo;s (and even your consultants&rsquo;) reputations may have some bearing on the way your proposals are received by the agency. Remember to take the long-view:&nbsp;this may not be the last time you have to work with the regulatory agency on one of your projects, so don&rsquo;t burn a bridge if you can help it.</p> <p><b>Take Away.&nbsp;</b><br /> Give mitigation requirements the same attention you bestow to the project itself. This approach will allow public agencies to decide on a cost-effective mitigation strategy early in the planning process and avoid unwelcome headaches and delays.</p> <p><em>This article was originally published in PublicCEO on March 4, 2014. Republished with permission.</em></p>BB&K In The News06 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29137&format=xmlBB&K Police Bulletin: Gang Members Who Carry Loaded Firearms Can Be Charged With A Felonyhttp://www.bbklaw.com/?t=40&an=28977&format=xml<p><b>Overview: </b>The California Supreme Court has ruled that possession of a firearm by a felon constituted &ldquo;felonious criminal conduct&rdquo; within the meaning of California&rsquo;s gang enhancement statutes, thereby elevating the ordinarily misdemeanor offense to a felony. In California, possession of a firearm by a felon is a felony. However, unlawfully carrying a concealed firearm and unlawfully carrying a loaded firearm in public are ordinarily misdemeanors.</p> <p><b>Training Points:</b> This ruling is beneficial to all law enforcement officers, particularly those assigned to gang enforcement. When dealing with a suspect who is a validated gang member and who is being charged with possession of a firearm by a felon, this case makes clear that carrying that same concealed firearm and/or carrying a loaded firearm in public elevates those misdemeanor charges to felonies for purposes of the gang enhancement condition requiring &ldquo;felonious criminal conduct.&rdquo;<span> </span></p> <p><b>Summary Analysis: </b>In <i>People v. Infante</i>, a search of Infante&rsquo;s vehicle revealed a loaded .22-caliber revolver and a loaded nine-millimeter semiautomatic pistol. At the preliminary hearing, a gang expert testified that Infante was an active gang member. After he was charged with several weapons offenses, he pled guilty to possession of a firearm by a felon and active participation in a street gang. Infante argued that his previous felony conviction for possession of a firearm could not be used to elevate the misdemeanor gun offenses to felonies because &ldquo;the same act of gun possession&rdquo; cannot be used to establish the substantive gang charge and elevate two other misdemeanor gun offenses to felony gun offenses.</p> <p>The California Supreme Court disagreed, holding that the &ldquo;felonious conduct&rdquo; requirement under the gang enhancement statutes&nbsp;did not have to be &ldquo;separate,&rdquo; &ldquo;distinct&rdquo; or &ldquo;different&rdquo; from the conduct supporting the misdemeanor gun offense. Therefore, a gang member who carries a loaded firearm in public can be charged with a felony.</p> <p><b>Follow-Up Contact: </b>For questions regarding this case or its implications for your agency and public safety department, please contact one of the authors of this bulletin listed at right in the <a target="_blank" href="http://bbklaw.com/public-safety">Public Safety practice</a>, or your <a target="_blank" href="?p=2099">BB&amp;K attorney</a>.</p> <p><i>Disclaimer: BB&amp;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 communiqu&eacute;.</i></p>Legal Alerts27 Feb 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=28977&format=xmlBB&K Police Bulletin: Warrantless Home Searchhttp://www.bbklaw.com/?t=40&an=28955&format=xml<p><b>Overview: </b>The Supreme Court has ruled that police officers can conduct warrantless home searches based upon one occupant&rsquo;s consent, despite previous objections by a suspect who was arrested and removed from the home. This case involves a robbery resulting in officers pursuing the suspect to his apartment. Although the suspect refused consent to a search of his apartment, police believed he had assaulted his female co-resident and arrested him. Later, officers returned and obtained the woman&rsquo;s consent to search their home. The search revealed a shotgun and gang-related paraphernalia. The court upheld the warrantless consent search despite the fact that the arrested resident had previously objected and was not &ldquo;physically present&rdquo; to object the second time.</p> <p><b>Training Points:</b> This ruling broadens an officer&rsquo;s ability to obtain consent from a co-resident over the objection of the suspect during an active investigation. Officers are reminded to include specific details of how consent was obtained, including words, gestures and other actions. Note that the facts of this case involved &ldquo;hot pursuit&rdquo; which provided officers with sufficient cause leading up to the consent to search of the apartment and the subsequent discovery of incriminating evidence. While this ruling does not expand the consent to search exception to the warrant requirement, it does demonstrate how consent can be obtained even in the face of a prior objection.</p> <p><b>Summary Analysis: </b>In <i>Fernandez v. California</i>, officers pursued the defendant, a robbery suspect, into his home. The suspect lived with his girlfriend, who appeared battered when she opened the door. The suspect refused to allow police inside the apartment. Suspecting that a domestic assault had occurred, officers removed the suspect from the home and placed him under arrest. An officer later returned and obtained the girlfriend&rsquo;s consent to search the home. The search revealed evidence tying the suspect to the robbery. The court upheld the warrantless consent search based upon the girlfriend&rsquo;s consent, even though the suspect was removed, no longer on the premises, and had objected previously.</p> <p><b>Follow-Up Contact: </b>For questions regarding this case or its implications for your city and police department, please contact one of the authors of this bulletin listed at right in the <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=2532&amp;format=xml">Public Safety group</a>, or your <a target="_blank" href="?p=2099">BB&amp;K attorney</a>.</p> <i>Disclaimer: BB&amp;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 communiqu&eacute;.</i>Legal Alerts26 Feb 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=28955&format=xml