Shaye
Diveley

Representative Experience

Sports and Entertainment Venues. Environmental defense of the venues and districts that anchor California downtowns and waterfronts.

• Howard Terminal Ballpark District – Appellate defense of the City of Oakland’s environmental review for a proposed waterfront ballpark and mixed-use development, including a 35,000-seat stadium, 3,000 residential units, 1.5 million square feet of office space, 270,000 square feet of retail, a 400-room hotel, and a 3,500-seat performance venue. Subject to expedited judicial review, the appellate decision issued in less than a year, and the published opinion gives guidance on deferred mitigation, exhaustion of administrative remedies, and speculative impacts.
• Golden 1 Center, City of Sacramento – Defense of the downtown arena EIR against challenges brought by two separate groups, producing two published court of appeal decisions. The first sustained the streamlining law the Legislature wrote for this one arena, the earliest appellate ruling to reach that question. The second affirmed the sufficiency of the EIR. All CEQA litigation finished inside the 270 days the statute allowed, and the Kings stayed in Sacramento.
• Sports Facility Approvals Counsel – Strategies for obtaining public agency approvals and minimizing legal risk on sports facility projects, presented to the Convention, Sports, and Entertainment Facilities Conference.

Ports, Rail, and Goods Movement. Environmental litigation and counseling for the freight system moving cargo through California.

• Southern California International Gateway – Defense of BNSF Railway’s near-dock rail transfer facility serving the Los Angeles and Long Beach port complex, a $700 million project, across seven lawsuits that were later consolidated, and their appeals, raising CEQA, federal preemption, and environmental justice claims. The yard is built to take roughly 1.3 million truck trips off regional freeways each year.
• Ships at Berth Emissions Regulation – Pacific Merchant Shipping Association v. Newsom (2021) 67 Cal.App.5th 711, addressing the state regulation governing emissions from vessels at berth.
• Regional Airport Authority Ground Leases – Summary judgment for a regional airport authority in a case involving breach of ground leases and a challenge to the master planning process.
• Transportation Company Mitigated Negative Declaration – Successful defense of a CEQA action challenging a mitigated negative declaration, resulting in a favorable court of appeal decision.

Housing and Mixed-Use Development. Defense of the approvals behind infill housing and mixed-use projects, including projects on the expedited statutory track.

• 8150 Sunset Boulevard – Defense of the Frank Gehry-designed, 330,000-square-foot mixed-use high-rise on the Sunset Strip against four separate CEQA lawsuits. Designated an Environmental Leadership Development Project, which required every challenge to be resolved within 270 days of approval. The project includes two residential buildings with affordable and low-income housing, retail and entertainment space, and public open space.
• Petrovich Development Company v. City of Sacramento – Defense of a sanctions motion and related motion practice on spoliation claims involving retention of text messages on private devices of key city officials, and of Public Records Act claims, resulting in only limited discovery orders. Published at (2020) 48 Cal.App.5th 963.
• Statutory Exemption Defense – Successful representation of a residential developer in a CEQA challenge to the use of a statutory exemption, before the trial court and the court of appeal.
• Residential Development Counseling – Advice to residential developers on CEQA and land use approvals, including water quality, climate change, and toxic air contaminant issues, along with the policy questions behind them.

Water Resources. Counseling and litigation for the agencies and owners that build, operate, and draw from California’s water systems.

• Bay Delta Biological Opinions – Advice to the Metropolitan Water District of Southern California in litigation over biological opinions restricting water exports from the Bay Delta based on alleged impacts to delta smelt, salmon, and other fish listed under the federal Endangered Species Act.
• Watershed Lands Conveyance – Counsel to a private non-profit organization on the conveyance of watershed lands in compliance with state and federal law, including CEQA, the authority of the federal land agencies to enter into land transactions, and California conservation easement and real property law.
• Gold Mine Reopening and NPDES Permitting – Counsel to a mining company reopening a gold mine in Northern California, including work with a regional water quality control board on National Pollutant Discharge Elimination System permitting, waste discharge requirements, cease and desist order compliance, and administrative penalties.

Wildlife and Natural Resources. Endangered species litigation, habitat obligations, and the permanent protection of land.

• Endangered Plants Citizen Suit – Successful defense of a developer in an Endangered Species Act citizen suit involving the removal of endangered plants, producing a favorable Ninth Circuit decision on an issue of first impression.
• Conservation Easement Counsel – Advice to a California non-profit public benefit corporation on conservation easements, management issues, and related real property matters, including the purchase and donation of 140 acres for habitat conservation and permanent open space.
• Joshua Tree Listing – Analysis of the California Department of Fish and Wildlife recommendation against listing the western Joshua tree under the California Endangered Species Act.

Timber and Forestry. A body of forestry litigation reaching the California Supreme Court, built around one of the largest habitat conservation transactions in the state.

• Headwaters Agreement Defense – Defense of a timber company in a challenge to the historic Headwaters Agreement, raising claims under CEQA, the state endangered species law, and the Fish and Game Code’s streambed alteration provisions, along with challenges to the Sustained Yield Plan, the Habitat Conservation Plan, and other timber harvesting approvals.
• Coordinated Timber Harvest and Greenhouse Gas Action – Defense of a timber company in a multi-district coordinated CEQA action challenging timber harvesting plans on greenhouse gas emission grounds, defeating motions for preliminary injunction and securing a trial court victory.
• Incidental Take Permit Challenge – Dismissal secured of a challenge under NEPA and the Endangered Species Act, among other statutes, to an incidental take permit and timber harvesting activities.
• False Claims Act Qui Tam Defense – Defense against federal and state qui tam actions under the False Claims Act alleging errors in timber reporting for the Headwaters Agreement transaction, including dismissal of the state lawsuit on a motion for judgment on the pleadings.
• Unfair Competition Defense – Successful defense of a timber company in an action under Business and Professions Code section 17200 alleging errors in timber reporting during the CEQA and Sustained Yield Plan process.

Mining and Reclamation. Access, reclamation, and permitting for active and closed sites.

• Reclamation Site Injunction – Temporary restraining order obtained for a mining company against a landowner interfering with reclamation work at a closed mining site.

Regulatory and Legislative Work. Drafting the rules, not only litigating them.

• Timber Rulemaking and Legislation – Drafted legislation and regulatory rulemaking on timber issues, including the review and approval process for timber harvesting plans, as well as water quality, land use, and transportation matters.
• Administrative Advocacy – Participation in rulemaking, administrative appeals, and other regulatory processes in environmental and land use matters, including comments and petitions for review.
• Regulatory Bodies – Litigation, permitting, land use, and entitlement work involving the San Francisco Bay Conservation and Development Commission, public trust and historic preservation issues, and negotiations and proceedings before the State Lands Commission, the Fish and Game Commission, and the Regional and State Water Boards.