BRIAN E. GRAY


Professor of Law

University of California • Hastings College of the Law


200 McAllister Street

San Francisco, CA 94102


Telephone: (415) 565-4719

Email: grayb@uchastings.edu

Web Pages: http://brianegray.org



EMPLOYMENT


University of California, Hastings College of the Law, Professor of Law since 1990.  Harry and Lillian Hastings Research Professor, 1999-2000; Associate Academic Dean, 1994-96; Associate Professor, 1987-90; Assistant Professor, 1984-87. 


826 Valencia, Acting Executive Director, 2010-11 & 2012.


University of Leiden, Visiting Professor, Spring Semester 2003.


Howard, Rice, Nemerovski, Canady, Robertson & Falk, Associate, 1980-84; Of Counsel, 1984-85.


Stanford Law School, Lecturer in Water Law, 1983-84.


Judge Arlin M. Adams, U.S. Court of Appeals for the Third Circuit, Law Clerk, 1979-80.


EDUCATION


J.D., University of California, Boalt Hall School of Law, 1979.


Editor-in-Chief, California Law Review.


B.A., cum laude, in economics, Pomona College, 1976.


Phi Beta Kappa; Leland M. Backstrand Memorial Award in Economics; Pomona Scholar.



COURSES


Environmental Law; California Water Resources; Federal and Interstate Water Resources; Federal Public Lands and Natural Resources; Takings Law Seminar; The American West: Law, Culture, and the Environment; Property; American Indian Law; Environmental and Natural Resources Law Seminars.



PUBLICATIONS


Books and Monographs


Stress Relief: Prescriptions for a Healthier Delta Ecosystem (Public Policy Institute of California 2013)  (co-author with Ellen Hanak, Jay Lund, John Durand, William Fleenor, Josué Medellín-Azuara, Jeffrey Mount, Catrin Phillips & Barton Thompson).


Integrated Management of Delta Stressors: Institutional and Legal Options (Public Policy Institute of California 2013)  (co-author with Barton Thompson, Ellen Hanak, Jay Lund & Jeffrey Mount).


Where the Wild Things Aren’t: Making the Delta a Better Place for Native Species (Public Policy Institute of California 2012) (co-author with Peter Moyle, William Bennett, John Durand, William Fleenor, Ellen Hanak, Jay Lund & Jeffrey Mount).


Water and the California Economy (Public Policy Institute of California 2012) (co-author with Ellen Hanak, Jay Lund & Barton Thompson et al.).


Managing California’s Water: From Conflict to Reconciliation (2011) (co-author with Ellen Hanak, Jay Lund, Ariel Dinar, Richard Howitt, Jeffrey Mount, Peter Moyle & Barton Thompson).


California Water Myths (Public Policy Institute of California 2009) (co-author with Ellen Hanak, Jay Lund, Ariel Dinar, Richard Howitt, Jeffrey Mount & Barton Thompson).


Public Land Law: A Reader (2007) (co-author with Holly Doremus).


Institutional Arrangements for Conjunctive Water Management in California and Analysis of Legal Reform Alternatives, (University of California, Water Resources Center 1999) (co-author with Ella Foley-Gannon).


A Model Water Transfer Act for California (California Business Roundtable 1996).


Plowing New Ground: Using Economic Incentives to Control Water Pollution From Agriculture (Environmental Defense Fund 1994).


The Transferability of Water Provided By the State Water Project and the Central Valley Project: A Report to the San Joaquin Valley Drainage Program (Natural Heritage Institute 1990) (co-author with Bruce Driver and Richard Wahl).


West's Selected California Environmental Statutes (annual editions, 1986-present) (editor)


Water Trading:  Free Market Benefits for Exporters and Importers (California Assembly Office of Research 1985) (coauthor with Patricia Schifferle, Thomas Gossard, Richard Howitt & Charles Moore).



Articles


Fragmented Regulation of Multiple Stressors: A Cautionary Tale for Takings Law, 19 West·Northwest 341 (2013).


Ensuring the Public Trust, 45 U.C. Davis L. Rev. 973 (2012) (symposium issue).


Myths of California Water: Implications and Reality, 16 West·Northwest 3 (2010) (co-author with Ellen Hanak, Jay Lund, Ariel Dinar, Richard Howitt, Jeff Mount & Barton Thompson).


Global Climate Change: Water Supply Risks and Water Management Opportunities, 14 West·Northwest 1453 (2008).


Hetch Hetchy and the Paradoxes of Restoration, 13 West·Northwest 211 (2007).


The Endangered Species Act: Reform or Refutation?, 13 West·Northwest 1 (2007).


The Uncertain Future of Water Rights in California: Reflections on the Governor’s Commission Report, 36 McGeorge L. Rev. 43 (2005) (symposium issue).


Dividing the Waters: The California Experience, 10 West·Northwest 141 (2004).


The Property Right in Water, 9 West·Northwest 1 (2003).


The Battle for Hetch Hetchy Goes to Congress, 6 West·Northwest 199 (2000).


The Shape of Transfers to Come, 4 West·Northwest 23 (1996).


A Model Water Transfer Act for California, 4 West·Northwest 3 (1996).


Economic Incentives and Nonpoint Source Pollution: A Case Study of California’s Grasslands Region, 2 West·Northwest 185 (1995) (co-author with Chelsea Congdon & Terry Young).


The Market and the Community: Lessons From California's Drought Water Bank, 1 West·Northwest 17 (1994).


The Modern Era in California Water Law, 45 Hastings L.J. 249 (1994).


Promises from a Distant Past, Constitution, Vol. 5, No. 2, at 60 (1993).


The Transferability of Federal Reclamation Water: A Case Study of California's San Joaquin Valley, 21 Environmental Law 911 (1991) (co-author with Bruce Driver and Richard Wahl).


In Search of Bigfoot:  The Common Law Origins of Article X, Section 2 of the California Constitution, 17 Hastings Con. L.Q. 225 (1989) (symposium issue).


A Primer on California Water Transfer Law, 31 Ariz. L. Rev. 745 (1989).


A Reconsideration of Instream Appropriative Rights in California, 16 Ecology L.Q. 667 (1989). 


No Holier Temples:  Protecting the National Parks Through Wild and Scenic River Designation, 58 U. Colo. L. Rev. 551 (1988). 



Chapters in Books


The Federal Power Acts, in The Major Acts of Congress, Volume 2, Page 63 (Macmillan Reference 2003).


The Mineral Leasing Act of 1920, in The Major Acts of Congress, Volume 2, Page 275 (Macmillan Reference 2003).


The National Park Service Act of 1914, in The Major Acts of Congress, Volume 3, Page 42 (Macmillan Reference 2003).


The Yellowstone National Park Act of 1872, in The Major Acts of Congress, Volume 3, Page 293 (Macmillan Reference 2003).


Takings and Water Rights, in Annual Proceedings of the Rocky Mountain Mineral Law Foundation, Vol. 48, Ch. 23 (2002).


California Water Transfers: The System and the 1991 Drought Water Bank, in Sharing Scarcity: Gainers and Losers in Water Marketing, Chapter 2 (University of California 1994) (co-author with Ray Coppock & Edward McBean).


The Role of Laws and Institutions in California’s 1991 Water Bank, in Sharing Scarcity: Gainers and Losers in Water Marketing, Chapter 6 (University of California 1994).


A Reconsideration of Instream Appropriative Rights in California, Revised Version with Postscript, in Instream Flow Protection in the Western States, 2d ed., Chapter 10 (University of Colorado 1994).


Water Transfers in California: 1981-1989, in The Water Transfer Process as a Management Option for Meeting Changing Demand, Volume II, Chapter 2 (University of Colorado 1990).


No Holier Temples: Protecting the National Parks Through Wild and Scenic River Designation, in Our Common Lands, Chapter 13 (Island Press 1988).



Essays


Judicial Sensibilities, The Morning News, Mar. 18, 2010


Luke Cole, 16 West·Northwest 246 (2010)


Dispelling California’s Water Myths, San Francisco Chronicle, Dec. 14, 2009 (co-author with Ellen Hanak and Jay Lund)


An “Objective” Look at the Law School Exam, San Francisco and Los Angeles Daily Journals, May 12, 2009


You Are Not Cool, The Morning News, Mar. 24, 2009


Venality Bites, Truthout, Mar. 18, 2009


An Endangered Species Act, San Francisco and Los Angeles Daily Journals, Dec. 23, 2008


Citizen Obama, San Francisco and Los Angeles Daily Journals, Dec. 12, 2008


A Federal Bailout for Proposition 8, Los Angeles Times, November 17, 2008


Citizen McCain?, San Francisco & Los Angeles Daily Journals, Mar. 12, 2008.


Introduction and Dedication, 14 West·Northwest 29 (2008).


Inconvenient Federalism, San Francisco & Los Angeles Daily Journals, Jan. 7, 2008.


Downsizing the Great Writ, San Francisco & Los Angeles Daily Journals, Dec. 31, 2007.


Who Gets to Be Veep?, Los Angeles Times, July 31, 2007, at A19.


Introduction and Dedication, 57 Hastings L.J. 1237 (2006).


Introduction to "The Water Rights Jungle: What Principles Should Guide the Assignment of Responsibility to Water Users for Meeting Improved Bay/Delta Protections?," Bay on Trial, Vol. VI, No. 3, at 6 (1994).


Foreword: Some Thoughts on International Environmental Law from the Perspective of a Domestic Practitioner, 16 Hastings Int'l & Comp. L. Rev. 749 (1991).


On Not Knowing Who Your Friends Are: Some Thoughts on the Role of Intervention in Natural Resources Litigation, Western Natural Resource Litigation Digest, Spring 1985, at 8.



Testimony


Central Valley Project Improvement Act: Hearing Before the Subcommittee on Water and Power of the Committee on Energy and Natural Resources of the United States Senate, 102d Cong., 1st Sess., S. Hrg. No. 102-122, pp. 330-36 & 361-62 (1991) (testimony on CVPIA).


Additions to the National Wilderness System: Hearings on H.R. 34 and H.R. 4233 Before the Subcommittee on Public Lands of the House Committee on Interior and Insular Affairs, 99th Cong., 2d Sess., Serial No. 99-19, Part IV, pp. 91, 291, 357 (1986) (testimony on federal reserved water rights).



PROFESSIONAL ORGANIZATIONS


826 Valencia Board of Directors, 2008-2012, President, 2010-2012.


826 National Board of Directors, 2010-2012.


826 National Advisory Board, 2008-2010.


Natural Heritage Institute, Board of Directors, 1992-1997; Chair, 2007-2009.


American Law Institute, Member since 1990.


Berkeley Law Foundation Board of Directors, 1985-1989; Vice-Chair, 1987-1989.


State Bar of California Committee on the Environment, 1986-1989; Chair, 1988-1989; Vice-Chair, 1987-1988.


University of California Water Resources Center Boar of Advisors, 1985-1993; Chair, 1988-1993.



PROFESSIONAL AWARDS


William Rutter Award for Excellence in Teaching, 2005.


UC Hastings Outstanding Professor Award, 1996.


Nature Conservancy of California: Volunteer Service Award, 1995.



CONSULTING AND OTHER SELECTED LEGAL WORK


Litigated Cases


Counsel for the Regional Council of Rural Counties in Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings , 43 Cal. 4th 1143 (2008).  The Court rejected RCRC’s claim that the 2000 Programmatic EIS/EIR for the CALFED Bay-Delta program unlawfully failed to consider alternatives of limited or reduced water supply because of water quality and endangered species constraints on CVP and SWP exports from the Delta.


Counsel for Patrick Hayashi in Popov v. Hayashi, No. 400545 (San Francisco Supr. Ct. 2002).  At the request of the court, I served as an expert on the law of capture and first possession in this litigation to establish title to the baseball with which Barry Bonds set the single season major league home run record in 2001.


Expert witness in In re Pacific Gas & Electric Company, No. 01-30923 DM (U.S. Bankruptcy Court, N.D. Cal.).  I provided expert testimony on the applicability of the federal, state, and local environmental laws to the reorganized debtor.


Amicus curiae in Kremen v. Cohen, 337 F.3d 1024 (9th Cir. 2003).  I filed a friend of the court brief to advise the court of appeals of the applicability of California property law to the conversion of internet domain names and registrations.


Counsel for the Natural Resources Defense Council in Natural Resources Defense Council, 43 F.3d 457 (9th Cir. 1994).  NRDC et al. intervened in this case and successfully defended the Endangered Species Act and the Central Valley Project Improvement Act against challenges brought under NEPA and the Fifth Amendment.


Counsel for the Natural Resources Defense Council in Madera Irrigation District v. Hancock, 985 F.2d 1397 (9th Cir. 1993).  NRDC intervened in this case and successfully defended the constitutionality of pricing reforms for the Central Valley Project enacted by Congress in 1986.


Counsel for the County of San Mateo in In re Waters of San Gregorio Creek Stream System, No. 355792 (San Mateo Supr. Ct. 1992), a statutory adjudication of all surface water rights in the San Gregorio Creek watershed.


Counsel for the Natural Resources Defense Council in Peterson v. Department of the Interior, 899 F.2d 799 (9th Cir. 1990).  NRDC intervened in this case and successfully defended the constitutionality of the Reclamation Reform Act of 1982.


Counsel for the Environmental Defense Fund in County of Del Norte v. United States, 732 F.2d 1462 (9th Cir. 1984).  EDF intervened in this case and successfully defended Secretary of the Interior Cecil Andrus' designation of five Northern California Rivers as components of the National Wild and Scenic Rivers System.


Counsel for the City and County of San Francisco as amicus curiae in National Audubon Society v. Superior Court, 33 Cal. 3d 419 (1983), in which the California Supreme Court held that the public trust doctrine is an integral part of the California water rights system.


Counsel for the City and County of San Francisco in City of Palo Alto v. City and County of San Francisco, No. C 74 1997 RHS (N.D. Cal. filed Sept. 18, 1974).  Following ten years of litigation, the parties executed a twenty-five year water supply contract between San Francisco and thirty municipalities and water districts.



Other Consulting


Consultant to the California Delta Vision Task Force on the public trust doctrine (2007-08) and member of the Delta Vision Scientific Assessment Team (2008).


Consultant to the Senate Committee on Energy and Natural Resources on royalty legislation for oil and gas extraction from the Gulf of Mexico (2007).


Consultant to the County of Madera on water rights issues arising out of Holding Contracts for water supplied by the Friant Unit of the Central Valley Project (2006-07).


Consultant to the Natural Resources Defense Council on the Westlands Water District’s area-of-origin claims to water from the San Joaquin River before the California State Water Resources Control Board (2001).


Consultant to the Mojave Water Agency and other appellees in City of Barstow v. Mojave Water Agency, 23 Cal. 4th 1224 (2000), in which the California Supreme Court held that the principle of equitable apportionment may not be applied to override normal water rights priorities to groundwater.


Consultant to the Grasslands Water District on the renewal of its Central Valley Project water supply contract (2000).


Consultant to the County of Fresno in County of Fresno v. Widren Water District, No. 637832-7 (Merced Supr. Ct. 1999), an action to enjoin the transfer of all surface water supplied by the district to Tracy Hills in San Joaquin County.


Consultant to the California Law Revision Commission on the reorganization of California’s environmental and natural resources statutes (1997-2000).


Consultant to the California Business Roundtable and principal author of the Model Water Transfer Act, a proposal comprehensively to revise California’s water transfer laws (1995-1998).


Consultant to the Nature Conservancy’s Santa Margarita Watershed Restoration Project (1995).


Consultant to the Environmental Protection Agency during preparation of the regulatory impact analysis for the Bay-Delta water quality rulemaking (1994).


Consultant to the Senate Committee on Energy and Natural Resources on the constitutionality of the Central Valley Project Improvement Act (1992).


Consultant to the San Joaquin Valley Drainage Program (1989-1991).


Consultant to the Wilderness Society's Greater Yellowstone Ecosystem Project (1990).


Consultant to the City and County of San Francisco in the Bay-Delta Water Quality Hearings before the California State Water Resources Control Board (1987-1996).


Consultant to the Sierra Club Legal Defense Fund on federal reserved water rights for wilderness areas in Colorado and on the designation of the Clark's Fork of the Yellowstone River in Wyoming and the North Fork of the St. Vrain and Cache la Poudre Rivers in Colorado as components of the National Wild and Scenic Rivers System (1986).


Consultant to the Trust for Public Land on the designation of El Rio Chama in New Mexico as a component of the National Wild and Scenic Rivers System (1985).


Consultant to the State of Missouri on potential litigation before the United States Supreme Court involving equitable apportionment of the waters of the Missouri River (1985).


Consultant to the East Bay Municipal Utility District and the Contra Costa Water District on propose merger or joint powers agreement between the two agencies (1984).