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?
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 has litigated — and 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.
Rod has handled several 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 has recently handled, or is working on, other important water rights cases that will have regional, statewide and even national impacts. These cases include:
- Agua Caliente Tribe v. Coachella Valley Water District and Desert Water Agency, 849 F.3d 1262 (9th Cir. 2017), which held that the federal reserved water rights doctrine applies to groundwater;
- Environmental Law Foundation v. State Water Resources Control Board and Siskiyou County, 26 Cal.App.5th 844 (2018), which held that California’s public trust doctrine applies to groundwater;
- Agua Caliente Tribe v. Riverside County, et al., 749 Fed.Appx. 650 (9th Cir. 2019), which held that county possessory interest taxes are valid as applied to non-Indian lessees on Indian reservations and
- Mineral County v. Lyon County et al., No. 75917, pending in the Nevada Supreme Court, addresses whether Nevada’s public trust doctrine authorizes reallocation of water rights.
Rod has written numerous amicus briefs in the U.S. Supreme Court on behalf of states, national governors and county associations, and water agencies, and others, addressing significant issues concerning federal environmental laws — as in Rapanos v. United States, 547 U.S. 715 (2006), which established the circumstances under which the Clean Water Act applies to non-navigable waters, such as wetlands, and Nat’l Ass’n of Homebuilders v. Defenders of Wildlife, 551 U.S. 644 (2007), which held that the Endangered Species Act does not override Clean Water Act requirements that federal permit programs must be transferred to states.
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 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
Admissions
- California
Awards
- Litigation – Municipal Lawyer of the Year in Oakland, Best Lawyers®, 2023
- The Best Lawyers in America®, Environmental, Natural Resources & Water Law, 2008-2023
- 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
- “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
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“Ninth Circuit Says Los Angeles County Flood Control District is Liable for River Pollution,” BB&K Legal Alert, Aug. 9, 2013
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“U.S. Supreme Court Rules Los Angeles County Is Not Responsible for Pollution from Stormwater,” BB&K Legal Alert, Jan. 9, 2013
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“Dischargers Can Sue Over Clean Water Act Compliance Orders,” BB&K Legal Alert, March 22, 2012
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“Court of Federal Claims Dismisses Water District Takings Lawsuit,” BB&K Legal Alert, Dec 7, 2011
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“California Water Law: Historical Origins to the Present,” Whittier Law Review, 2008
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“Judicial Deference to Agency Interpretations: The Ups and Downs of the Chevron Doctrine,” South East Environmental Law Journal, 2007
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“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
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“The Federal Commerce and Navigation Powers: Solid Waste Agency’s Undecided Constitutional Question,” Santa Clara Law Review, 2002
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“The Constitution and Property: Due Process, Regulatory Takings and Judicial Takings,” Utah Law Review, 2001
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“Reborn Federalism in Western Water Law: The New Melones Dam Decision,” Hastings Law Journal, 1979
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“Western Water Law,” Natural Resources & Environmental, Winter 1986
