Client Alerts

The California state legislature and courts as well as local governments are continuously changing the legal landscape.  Staying abreast of new laws, regulations and other legal developments, and analyzing their impact on local governments is what makes our attorneys some of the best in the state. In addition, we write timely alerts to keep our clients informed of developing legal news and analysis.

Client e-Alerts are emailed to our clients, and they can also be viewed on our website.  If you are interested in receiving our Client Alerts via email, please complete the subscription information in the left column.

Some of our most recent alerts are presented below grouped by their practice area. Older alerts are available in the Archives, which can be accessed via the links in the left column.

Environmental Law

Regulatory Scope of “Waters of the United States” to be Clarified

March 31, 2014, Gregory J. Newmark, Sarah Olinger

Last week, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (“Agencies”) jointly released a proposed rule that further defines the scope of waters protected under the Clean Water Act (“CWA”). The proposed rule revises the definition of “waters of the United States” and also adds new definitions for the terms “neighboring,” “riparian area,” “floodplain,” “tributary,” and “significant nexus.” The impetus behind this rule is an attempt to reduce the confusion and uncertainty generated in the wake of two U.S. Supreme Court decisions that added complexity, rather than clarity, to the determination of whether a water body was a jurisdictional “Water of the United States” regulated under the CWA. See Solid Waste Agency of N. Cook County (SWANCC) v. U.S. Army Corps of Eng’rs., 531 U.S. 159 (2001); Rapanos v. United States, 547 U.S. 715 (2006).  

The proposed rule's stated purpose is to clarify that most seasonal and rain-dependent streams are jurisdictional; that wetlands near rivers and streams are jurisdictional; and that other types of waters where the connections to downstream waters are unclear will be evaluated on a case-specific basis. For the first time, the rule also proposes to exclude certain categories of waters and features over which the Agencies have not traditionally asserted CWA jurisdiction. However, the longstanding permitting exemptions and exclusions for farming, silviculture, ranching, and other specified activities remain unchanged. As the Agencies explain, the proposed rule is intended to provide the long-awaited “clarity, certainty, and predictability for the regulated public and the regulators.” 

Regulatory Scope of “Waters of the United States” to be Clarified

March 31, 2014, Gregory J. Newmark, Sarah Olinger

Last week, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (“Agencies”) jointly released a proposed rule that further defines the scope of waters protected under the Clean Water Act (“CWA”). The proposed rule revises the definition of “waters of the United States” and also adds new definitions for the terms “neighboring,” “riparian area,” “floodplain,” “tributary,” and “significant nexus.” The impetus behind this rule is an attempt to reduce the confusion and uncertainty generated in the wake of two U.S. Supreme Court decisions that added complexity, rather than clarity, to the determination of whether a water body was a jurisdictional “Water of the United States” regulated under the CWA. See Solid Waste Agency of N. Cook County (SWANCC) v. U.S. Army Corps of Eng’rs., 531 U.S. 159 (2001); Rapanos v. United States, 547 U.S. 715 (2006).  

The stated purpose of the proposed rule is to clarify that most seasonal and rain-dependent streams are jurisdictional; that wetlands near rivers and streams are jurisdictional; and that other types of waters where the connections to downstream waters are unclear will be evaluated on a case-specific basis. For the first time, the rule also proposes to exclude certain categories of waters and features over which the Agencies have not traditionally asserted CWA jurisdiction. However, the longstanding permitting exemptions and exclusions for farming, silviculture, ranching, and other specified activities remain unchanged. As the Agencies explain, the proposed rule is intended to provide the long-awaited “clarity, certainty, and predictability for the regulated public and the regulators.” 

Labor and Employment

Retiree Medical Programs: Ninth Circuit Rules for Orange County

February 13, 2014, Arthur A. Hartinger, Jennifer Nock

In a decision issued today, the Ninth U.S. Circuit Court of Appeals affirmed a U.S. District Court’s grant of summary judgment in favor of the County of Orange in an important case involving the County’s retiree medical program.

U.S. Supreme Court Tells Us What “Changing Clothes” Really Means

January 30, 2014, Anya J. Freedman, Arthur A. Hartinger

In a unanimous opinion delivered by Justice Scalia, the Supreme Court on Monday decided that employers and unions could agree in collective bargaining agreements to exclude the time workers spend putting on and taking off protective clothing from the work time that is subject to the minimum wage and overtime protections of the Fair Labor Standards Act (FLSA). 

Under the FLSA, employees are entitled to time-and-a-half pay for each hour they work beyond forty hours in a week.  But a section of the FLSA (Section 203(o)) provides that if an employer and a union agree to make “time spent in changing clothes” noncompensable under a collective bargaining agreement, that time will not count for purposes of the statute’s minimum wage and overtime provisions. 29 U.S.C. § 203(o). The sole question before the high court in Sandifer v. United States Steel Corporation was whether—and under what circumstances—time spent donning and doffing protective clothing and equipment was time spent “changing clothes” within the meaning of the statute.

Land Use

Fifth District Court of Appeal Holds CEQA Challenges Seeking to Overturn LAFCO Approvals Are Subject to Reverse Validation Action Requirements

January 29, 2014, Edward Grutzmacher

In an opinion issued yesterday in Protect Agricultural Land v. Stanislaus County LAFCO, the Fifth District Court of Appeal ruled that any challenge to a Local Agency Formation Commission's ("LAFCO") approval of a reorganization or a sphere of influence amendment, whether brought under the California Environmental Quality Act ("CEQA") or the Cortese-Knox-Hertzberg Local Government Reorganization Act ("Reorganization Act") must be brought according to the procedural requirements of a reverse validation action.

Fifth District Court of Appeal Holds CEQA Challenges Seeking to Overturn LAFCO Approvals Are Subject to Reverse Validation Action Requirements

January 29, 2014, Edward Grutzmacher

In an opinion issued yesterday in Protect Agricultural Land v. Stanislaus County LAFCO, the Fifth District Court of Appeal ruled that any challenge to a Local Agency Formation Commission's ("LAFCO") approval of a reorganization or a sphere of influence amendment, whether brought under the California Environmental Quality Act ("CEQA") or the Cortese-Knox-Hertzberg Local Government Reorganization Act ("Reorganization Act") must be brought according to the procedural requirements of a reverse validation action.

2nd District: Coastal Development Oversight Can’t Be Forced on County

January 29, 2014, Deborah J. Fox, Peter S. Hayes

California’s landmark Coastal Act of 1972 provides more than one path for local agencies, such as cities and counties, to assume authority over Coastal Development Permits (CDPs). But the Act does not impose any time limit within which local agencies must assume that authority, according to a newly published decision favoring the State of California and the County of Los Angeles(Hagopian v. State of California). Deborah J. Fox and Peter S.

Municipal and Special District Law

Public Records Do Not Include E-mails and Text Messages to or from Public Officials, if on Private Electronic Devices and Accounts

March 31, 2014, Nicholaus W. Norvell, Ruthann G. Ziegler

On March 27, 2014, a California Court of Appeal held that when officers and employees of a public agency use private accounts and personal electronic devices to send or receive messages, the messages do not qualify as "public records" under the California Public Records Act ("CPRA"), even when the messages concern public agency business.  (City of San Jose v. Superior Court (Smith) (Mar. 27, 2014, H039498).)

In 2009, Ted Smith filed a request with the City of San Jose seeking public records related to downtown redevelopment.  The request sought several categories of records, including "voicemails, emails or text messages sent or received on private electronic devices" used by the Mayor and Council members.  When the City objected to this aspect of the request, Smith sought a court order for disclosure of the messages under the CPRA.

Fifth Appellate District Affirms Preliminary Injunctions Prohibiting Internet "Sweepstakes" Café Operations

March 14, 2014, Katherine A. Cook

Businesses that sell computer “time” in exchange for entries into on-line sweepstakes games likely violate California’s antigambling laws, the Fifth District Court of Appeal held last week.  In People v. Grewal (CON F065450/F065451/F065689), the Court upheld three preliminary injunctions that prohibit “sweepstakes” operations at Internet café businesses in Kern County.  The injunctions were previously granted to the Kern County District Attorney against specific businesses. Read the full opinion here.

Public Contracts

Court of Appeal Affirms the Discretion of a City in Waiving an Error in a Bid for a Public Works Project

February 14, 2014, Eric S. Casher, Benjamin T. Reyes

Meyers Nave Principal Benjamin Reyes and Associate Eric Casher successfully defended the City of San Leandro (“City”) in a legal challenge brought by a disappointed bidder in a major public works case. On January 28, 2014, the Court of Appeal, First Appellate District, affirmed the decision of the City in waiving a bid defect in the case, Bay Cities Paving & Grading v. City of San Leandro, et. al. The case was certified for publication on February 13, 2014. There, the Court held that the City did not abuse its discretion by accepting an immaterial deviation in the low bidder’s bid bond. In applying the substantial evidence standard of review, the Court evaluated the City’s actions and determined that it had properly complied with its procedures. Accordingly, the Court did not second guess the City’s decision in awarding the contract for the BART Pedestrian Interface Project to the low bidder, Gallagher & Burk, Inc.

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