Roderick E. Walston

Of Counsel

roderick.walston@bbklaw.com

Tel: (925) 977-3304

Location(s)

At a Glance

Rod’s water rights victories have set impactful precedents at both the U.S. Supreme Court and the California Supreme Court levels.

Rod held high-level legal positions with both the California State government and the federal government.

Rod is honored by Best Lawyers in America as Natural Resources & Water Law as the annual pick since 2008.

Roderick E. Walston is litigating many of the nation’s most significant water rights cases, and has garnered impactful, precedent-setting victories at both the U.S. Supreme Court and the California Supreme Court. Having held several high-level legal positions within both the California and federal governments, Rod is now of counsel in Best Best & Krieger LLP’s Environmental & Natural Resources practice group. During his career, Rod has litigated many of California’s most important natural resources and environmental cases, particularly at the appellate level. His practice includes:

  • State Water Rights and Water Quality Laws
  • Federal Reclamation Laws
  • The Clean Water Act
  • The Endangered Species Act
  • Public Trust Issues
  • Land Use Regulation
  • Constitutional Taking Issues

 
Rod is of counsel in BB&K’s Walnut Creek office and served as the top lawyer for the U.S. Department of the Interior, and as head of the California Attorney General’s Public Rights Division, which handles all litigation in the natural resources, environmental and water law areas.
 
In addition to handling historic, precedent-setting water rights cases, including National Audubon Society v. Superior Court, 33 Cal.3d 419 (1983), which held that the public trust doctrine applies to regulation of water, and California v. United States, 438 U.S. 645 (1978), which held that federal water projects must comply with state water laws, Rod is working on important water rights cases that will have regional, statewide and even national impacts. They include:

  • Environmental Law Foundation v. State Water Resources Control Board and Siskiyou County. Rod represents Siskiyou County in a case that will decide whether the public trust doctrine applies not only to surface water, but also to groundwater. Groundwater supplies about 40 percent of the state’s water supply. Currently pending before the California Supreme Court, the case will decide whether groundwater is subject to regulation under the common law public trust doctrine or is instead regulated by the Legislature’s statutes, including its recently enacted groundwater legislation.
  • Agua Caliente Indian Tribe v. Coachella Valley Water District and Desert Water Agency. The Supreme Court has held that when the government reserves land from the public domain, such as for an Indian reservation or a national park, the government impliedly reserves enough water to satisfy the purpose of the reservation. But the Supreme Court applied this principle only to surface waters, like rivers, lakes and streams, and has never applied it to groundwater. In a case that could reach the U.S. Supreme Court, Rod represents the Desert Water Agency in a case that raises the question of whether this principle applies to groundwater.
  • Desert Water Agency v. Department of the Interior. Rod represents Desert Water Agency in two different cases related to whether state and local taxes apply to leased lands on Indian reservations. The question in both cases is whether a recent regulation adopted by the Department of the Interior, which prohibits state and local agencies from applying their taxes on Indian-leased lands, is valid under federal law.
  • Texas v. New Mexico. In an original jurisdiction case before the U.S. Supreme Court, Texas sued New Mexico over its rights in the Rio Grande, an interstate river that flows from New Mexico to Texas. Rod represents a water district in New Mexico, the Elephant Butte Irrigation District, which regulates all water in the disputed portion of the river. Rod has filed a motion on behalf of the District to intervene in the Supreme Court action. The other parties — Texas, New Mexico and the United States — opposed the motion. The motion, which is currently pending before the Supreme Court, raises an important question concerning whether an entity created under state law has the right to intervene in an original action before the Supreme Court.
     

Prior to joining BB&K, Rod served as deputy solicitor/acting solicitor of the U.S. Department of the Interior (2002-2004); general counsel of the Metropolitan Water District of Southern California (2000-2002); special counsel of the California Attorney General’s Office (1999-2000); chief assistant of the California Attorney General’s Public Rights Division (1991-1999); and deputy attorney general of the State of California (1963-1991).
 
Best Lawyers in America lists Rod for Natural Resources and Water Law every year since 2008. The International Municipal Lawyers Association recognized him in 2015 with the Amicus Service Award for his work on Los Angeles County Flood Control District v. the Natural Resources Defense Council. The State Bar of California honored him with the “Public Lawyer of the Year Award” in 2004 and he received the United States Supreme Court “Best Brief Award” from the National Association of Attorneys General in 1997 (for brief submitted in Bennett v. Spear, 520 U.S. 154).

While at Stanford Law School, he served as editor for the Stanford Law Review. He is admitted to practice in the State of California and is admitted to the U.S. Supreme Court, California Supreme Court and the U. S. Court of Appeals (First, Second, Third, Ninth and Eleventh circuits, District of Columbia Circuit and Federal Circuit).  

Education

  • Stanford University Law School, J.D.
  • Columbia University, B.A., cum laude 
     

Awards

  • The Best Lawyers in America®, Natural Resources & Water Law, 2008-2019
  • International Municipal Lawyers Association Amicus Service Award, 2015
  • “Public Lawyer of the Year Award” from the State Bar of California, 2004


Memberships

  • American Bar Association:
    • Council Member, Section on Environment, Energy and Resources, 2003 - present
    • Chairman, Water Resources Committee, 1988-1990
    • Co-founder and Chairman, annual Water Resources Conference, 1983-1991
  • Western States Water Council, California legal representative; gubernatorial appointee, 1985-2002
  • Association of California Water Agencies, Legal Affairs Committee, 2000-2002
Authored Articles & Publications Mar 16, 2017

Public Trust Doctrine & Water Rights

The Walker Case: Does the Public Trust Doctrine Apply to Water Rights Established in Judicial Decrees?

Federal Judge Halts Implementation of Waters of the United States Rule
Legal Alerts Aug 28, 2015

Federal Judge Halts Implementation of Waters of the United States Rule

Injunction Applies Only to 13 States That Are Parties to the Case

  • Does the Public Trust Doctrine Apply to Groundwater? The California Appellate Courts Will Soon Decide,” BBKnowledge, Jan. 5, 2016
  • Does the Public Trust Doctrine Apply to Groundwater? The California Supreme Court May Decide,” BBKnowledge, Jan. 5, 2015
  • “Nation’s Mayors, Cities, Counties & California Water Agencies File U.S. Supreme Court Amicus Brief In Permit Controversy,” BB&K Legal Alert, Dec. 16, 2013
  • “Ninth Circuit Says Los Angeles County Flood Control District is Liable for River Pollution,” BB&K Legal Alert, Aug. 9, 2013
  • “U.S. Supreme Court Rules Los Angeles County Is Not Responsible for Pollution from Stormwater,” BB&K Legal Alert, Jan. 9, 2013
  • “Dischargers Can Sue Over Clean Water Act Compliance Orders,” BB&K Legal Alert, March 22, 2012
  • “Court of Federal Claims Dismisses Water District Takings Lawsuit,” BB&K Legal Alert, Dec 7, 2011
  • “California Water Law: Historical Origins to the Present,” Whittier Law Review, 2008
  • “Judicial Deference to Agency Interpretations: The Ups and Downs of the Chevron Doctrine,” South East Environmental Law Journal, 2007
  • “The Supreme Court Limits the Scope of the Endangered Species Act: National Association of Home Builders v. Defenders of Wildlife,” California Water Law & Policy Reporter, October 2007
  • “The Federal Commerce and Navigation Powers: Solid Waste Agency’s Undecided Constitutional Question,” Santa Clara Law Review, 2002
  • “The Constitution and Property: Due Process, Regulatory Takings and Judicial Takings,” Utah Law Review, 2001
  • “Reborn Federalism in Western Water Law: The New Melones Dam Decision,” Hastings Law Journal, 1979
  • “Western Water Law,” Natural Resources & Environmental, Winter 1986

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