Not often does a case already decided by the state Court of Appeal return to the same court for an interpretation of who won. However, the Fifth District Court of Appeal has issued a second ruling on a California Environmental Quality Act (CEQA) case from Merced County, making it perfectly clear that environmentalists won and the county lost.

The case stems from Calaveras Materials’ proposal for a 450-acre gravel quarry on farmland next to the Merced River. Environmentalists led by the group Protect Our Water (POW) sued, arguing that the environmental impact report was defective. In a ruling issued two years ago, the Fifth District overturned the project approval because, the court said bluntly, Merced County’s administrative record was such a mess that the justices could not even find CEQA essential documents. (Protect Our Water v. County of Merced, 110 Cal.App4th 362; see CP&DR Legal Digest, September 2003.)

When the case returned to Merced County Superior Court, POW attorney Rose Zoia requested attorney fees under Code of Civil Procedure § 1021.5. In an early 2004 ruling, Superior Court Judge William Ivey ordered the county to set aside its approval of the project as required by the Fifth District. But Judge Ivey found that the appellate court’s decision did not require the county to set aside the EIR, and he refused to award attorney fees to POW.

The case returned to the Fifth District, where POW argued that it was entitled to fees because it was the prevailing party in the litigation and because its victory resulted in a significant benefit to the public — namely, the preparation of an adequate record of environmental review. The Fifth District agreed with POW.

“Reduced to basics, the county was the loser,” Justice Nickolas Dibiaso wrote for the court. “POW sought an order setting aside the county’s approval of the project. Our opinion directed exactly that result. POW also sought an order setting aside the county’s certification of the EIR. Although this court did not direct that result because we did not reach the merits on appeal, and although the trial court concluded that our opinion did not require such a result, we did state that the administrative record as it stood was inadequate to support the certification. This was tantamount to a determination that the certification could not stand on the then current record.”

The county pointed out that POW took it upon itself to prepare the administrative record. Thus, the county argued, POW should not benefit from the inadequate record. The court had little patience for this contention, however.

“We unequivocally stated in our opinion and during oral argument that the county, not POW, bore the primary responsibility for the inadequate record,” Dibiaso wrote. “Although our opinion and comments at argument included complaints about the poor organization and lack of index in the record — for which POW was to blame — we stated explicitly that the critical inadequacy of the record was more fundamental than organizational.”

As for a public benefit, the court noted that it published its 2003 opinion and that the decision should have prompted the county to improve its methods of creating and managing CEQA records. Hence, there was “no reasonable basis” for denying POW’s request for attorney fees.

The Fifth District sent the case back to Superior Court with the direction to award the attorney fees.

The Case:
Protect Our Water v. County of Merced, No. F044896, 05 C.D.O.S. 5422, 2005 DJDAR 7395. Filed May 25, 2005. Modified and ordered published June 21, 2005.

The Lawyers:
For POW: Rose Zoia, (707) 526-5894.
For the county: James Fincher, deputy county counsel, (209) 385-7564.
For Calaveras Materials: William Gnass, Mason, Robbins, Gnass & Browning, (209) 383-9334.