October 2010

By Cori M. Badgley

In League of Wilderness Defenders-Blue Mountains Biodiversity Project v. Allen 615 F.3d 1122; 2010 U.S. App. LEXIS 16770; 40 ELR 20224, the Ninth Circuit Court of Appeals focused on two well-known principles of NEPA review: 1) cumulative impacts may be evaluated using an aggregate effects approach; and 2) an agency is only required to adequately acknowledge and respond to comments raised by opposing parties, including opposing expert analysis.

Continue Reading Commercial Logging on Forest Lands Upheld by Ninth Circuit

By Glen C. Hansen

In Holmes v. Summer (2010) 188 Cal.App.4th 1510, the Court of Appeal for the Fourth Appellate District held that when a real estate agent or broker for a seller is aware that the amount of existing monetary liens and encumbrances exceeds the sales price of a residential property, so as to require either the cooperation of the lender in a short sale or the ability of the seller to put a substantial amount of cash into the escrow in order to obtain the release of the monetary liens and encumbrances affecting title, the agent or broker has a duty to disclose this state of affairs to the buyer, so that the buyer can inquire further and evaluate whether to risk entering into a transaction with a substantial risk of failure.

Continue Reading Seller’s Broker Has Duty to Inform Buyer That Property is so Over-Encumbered That Escrow Will Likely Not Close

By Emilio Camacho and Cori Badgley

In Western Watershed Project v. Kraayenbrink, (9th Cir. Sep. 1, 2010, No. 08-35360__F3d.__.), the Ninth Circuit Court of Appeals ruled that the Bureau of Land Management (“BLM”) violated the National Environmental Policy Act (“NEPA”) and the Endangered Species Act (“ESA”) in adopting the 2006 amendments to the BLM’s grazing regulations.

Continue Reading Grazing Cattle and the BLM’s Violation of NEPA and ESA

By Glen C. Hansen

Civil litigation involving boundary disputes often includes legal questions about whether one neighbor has the right to use the property of another neighbor for driveway, parking, landscaping or other purposes. While California courts may grant a prescriptive easement to a neighbor to use his or her neighbor’s property for a limited use, a prescriptive easement will not be granted for “exclusive” use of neighboring property. This article outlines the factors that courts consider when determining whether an intended use of neighboring property is “exclusive,” and therefore prohibited as a prescriptive easement.

Continue Reading Exclusive Prescriptive Easements “No”; Equitable Easements: “Maybe”

By Katherine J. Hart

On September 30, 2010, the Governor signed Senate Bill 1284 (Ducheny) into law (Chapter 645). Ever since their adoption, Mandatory Minimum Penalties or MMPs have created serious economic hardship for local wastewater agencies. While concerns remain about MMPs, the California Legislature and Governor granted some much needed relief to these local agencies.

Continue Reading Governor Schwarzenegger Signs Bill to Relieve POTWs of Some MMPs

By Cori M. Badgley

Attorneys’ fees under the private attorney general doctrine codified in Code of Civil Procedure section 1021.5 are treated as a birthright by petitioners after prevailing in a California Environmental Quality Act (CEQA) lawsuit. Two decisions in 2010 explore the limits of attorneys’ fees in CEQA cases, and the rulings illustrate both what it means to be a successful party for purposes of Section 1021.5 and the significant discretion given to the trial court in determining the amount awarded.

Continue Reading Are 1021.5 Attorneys Fees All or Nothing?