In a potentially important decision for environmental advocates, the Third District Court of Appeal has ruled that environmental groups are eligible for attorney's fees in a Bay-Delta water lawsuit, even though public agencies won similar litigation.

The success of the Central Delta Water Agency and the South Delta Water Agency in their lawsuit against the State Water Resources Control Board does not mean the environmentalists were automatically barred from receiving attorney's fees in a similar suit against the state, the court ruled. "That the success they achieved was the same success the Central Delta parties achieved does not justify a denial of fee award under the private attorney general theory," the court ruled.

In 1995, the State Water Resources Control Board (SWRCB) adopted the Bay-Delta plan that, among other things, established minimum monthly average flow rates on the San Joaquin River at Vernalis, a few miles west of Modesto. The flow rates were intended to help double the population of Chinook salmon in the river. A few years later, the board completed a water rights proceeding (called Decision 1641) that allocated responsibility for meeting the flow rates in the Bay-Delta plan. Decision 1641 essentially determined how the salmon's needs would impact water rights holders.

In 2000, the two Delta water agencies sued the SWRCB over Decision 1641, arguing it conflicted with the Vernalis flow objectives in the 1995 plan. At about the same time, the Golden Gate Audubon Society and a collection of other environmental groups also sued the board, arguing that Decision 1641 was illegal and "ignored" the salmon-doubling objective in the 1995 plan. A trial court ruled for the water agencies and directed the board to comply with the Vernalis flow objectives. However, the court ruled against the environmentalists.

After numerous parties appealed, the Third District ruled that the SWRCB had failed to implement the 1995 Bay-Delta plan and that Decision 1641 was effectively an improper amendment of the plan. The appellate court agreed with the environmentalists' contentions regarding minimum flows necessary to double the salmon population. The court directed the board to conduct further administrative proceedings either to assign responsibility for meeting the 1995 flow objective, or to modify the objective (State Water Resources Control Bd. Cases, (2006) 136 Cal.App.4th 674).

Back at the trial court, Central Delta Water Agency, South Delta Water Agency and the environmental groups all sought attorney's fees. Sacramento County Superior Court Judge Roland Candee granted the water agencies 40% of their fee request based on the "partial and limited success" of their litigation. Judge Candee rejected the environmentalists' request, concluding the Audubon Society and other organizations had not proven their role was necessary in light of the water agencies' victory. The environmentalists appealed, and the Third District overturned the lower court.

At issue was interpretation of the "private attorney general doctrine" in Code of Civil Procedure § 1021.5. The statute is intended to provide a bounty for pursuing public interest litigation. In 1993, the Legislature amended the law so that a public entity may receive attorney's fees. "In the wake of the 1993 amendment, the purpose of § 1021.5 is to encourage parties — whether public or private — who do not necessarily have adequate financial resources to do so to pursue important public interest litigation for the benefit of the public at large, or at least for the benefit of more than just themselves or their constituents," Justice Ronald Robie explained in the Third District's unanimous decision.

There was no doubt the litigation was a private attorney general action because, in fact, the attorney general's office was defending the SWRCB, the court noted. Judge Candee, however, refused to grant the environmentalists attorney's fees because the water agencies were enforcing the same public interest. The Third District, though, said it was impossible under the statute to call either the water agencies' or the environmentalists' roles in the litigation superfluous.

"[W]e conclude that where (as here) a public entity receives fees under § 1021.5 for succeeding in important public interest litigation, a private party who succeeded alongside that public entity cannot be denied a similar award of fees simply because the success might have been achieved by the public entity acting alone," Robie wrote.

The Third District sent the case back the trial court to determine the amount of fees the Audubon Society and the other environmental groups may recover.

The Case:
State Water Resources Control Board Cases, No. C055104, 08 C.D.O.S. 3461, 2008 DJDAR 4212. Filed March 26, 2008.
The Lawyers:
For SWRCB: Mark Poole, state attorney general's office, (415) 703-5582.
For the Golden Gate Audubon Society: Stephan Volker, (510) 496-0600.