The Select Conference on Industry Litigation was held on May 3 and 4 in Squaw Valley. This semiannual conference is a gathering of industry litigators and land use practitioners for a high-level roundtable discussion of pending litigation and new regulatory developments.

Coastal Commission

  • The Bowman case discussed above was a major source of discussion.
  • Coastal Commission staff is in the process of preparing guidance relating to sealevel rise. No good is likely to result.
  • The speedy approval of the Santa Monica Mountains LCP was also discussed as an unusual circumstance.

Delta Litigation and Water Supply

  • The science upon which restrictions on pumping from the Delta are premised is faulty. Notwithstanding the acknowledgement of the flaws in the studies, the Ninth Circuit Court of Appeals held that reliance on flawed data was within the discretion of U.S. Fish and Wildlife. Contrast this holding with the willingness of courts to invalidate the analysis of regulatory agencies when the challenge is brought by environmental advocacy groups.

Redevelopment

  • AB 440, enacted last year, is designed to replace the Polanco Act protections for property acquired by local government that may be affected by hazardous materials.
  • AB 243, pertaining to infrastructure districts, may now have the support of the Governor’s office and would make tax increment funding available under certain circumstances for infrastructure projects.

Prevailing Wages

  • This administration’s aggressive approach to making prevailing wage determinations, particularly with regard to the calculation of fair market value, is of growing concern.

CEQA

  • As is the usual circumstance, there was an extensive discussion of CEQA cases and trends in the courts.
  • OPR is also preparing new guidelines to address traffic impacts. Apparently, the focus will become vehicle miles traveled (VMT) as opposed to Line of Sight calculations. While this will further the sustainability agenda, it will be difficult to mitigate impacts based on VMT analysis.

Wetlands Enforcement Actions

  • The Army Corps of Engineers was dealt a setback by an Eastern California District Court order holding that a cease and desist order cannot be issued without affording the party with a due process hearing. How the Corps will react is yet to be seen as other agencies build in such procedures which the Corps could adopt. At the same time, the court’s ruling was based on the Corps’ extensive references to criminal and civil penalties that could apply if the order is ignored.