Ctr. for Biological Diversity v. Cal. Fish & Game Comm'n

195 Cal.App.4th 128

124 Cal.Rptr.3d 467

11 Cal. Daily Op. Serv. 5439

2011 Daily Journal D.A.R. 6499

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff and Respondent,

v.CALIFORNIA FISH AND GAME COMMISSION et al., Defendants and Appellants.

No. A127555.

Court of Appeal, First District, Division 2, California.

April 8, 2011.

Rehearing Denied June 2 2011.

Review Denied Aug. 17, 2011.

Deborah S. Reames, Earthjustice, San Francisco, Gregory Cahill Loarie, Oakland, for Plaintiff and Respondent.

Edmund G. Brown, Jr., Attorney General, Kathleen Kenealy and Mary Hackenbracht, Senior Assistant Attorneys General, John Davidson, Supervising Deputy Attorney General, William K. Jenkins, Daniel S. Harris, and Michael M. Edson, Deputy Attorneys General, for Defendants and Appellants.

RICHMAN, J.

Last year, this court determined that Code of Civil Procedure section 1021.5 (section 1021.5) would not support an award of attorney fees for a remand to an administrative agency to reconsider a previously decided matter, when the remand was for a perceived procedural defect and resulted in no demonstrable substantive change in the agency's position. We held that when the remand produces nothing more than an “ augmented explanation” of the agency's decision, the plaintiff there did not meet the statutory requirements of being “a successful party” which had initiated litigation that resulted in enforcement of an important public right and a significant benefit to the public. We therefore reversed an award of $138,250. ( Karuk Tribe of Northern California v. California Regional Water Quality Control Bd., North Coast Region (2010) 183 Cal.App.4th 330, 364–369, 108 Cal.Rptr.3d 40( Karuk ).)

Here, we are confronted with a situation where the administrative agency was ordered to reconsider a matter because it might possibly have applied an incorrect standard of review. The agency reconsidered the matter and reiterated its earlier decision. Notwithstanding that the Agency's reiteration was not shown to be legally erroneous, the trial court, not having the benefit of our Karuk decision, made a fee award under section 1021.5 of almost $258,000. We independently review the record, conclude that Karuk governs, and reverse.

BACKGROUND

A concise statement of this dispute is set out in the pleading that started this litigation:

“This lawsuit concerns the American pika, a remarkable mammal related to rabbits and hares that is at serious risk due to global warming. [The] Center for Biological Diversity (the ‘Center’) challenges the refusal of [the] California Fish and Game Commission (the ‘Commission’) to designate the pika as a candidate for possible protection under the California Endangered Species Act (‘CESA’). (Fish & G.Code §§ 2050–2115.5.)

[¶] ... [¶] “Of the 36 American pika subspecies that inhabit North America, five can be found in the mountains of eastern California. On August 21, 2007, the Center petitioned the Commission to protect California's pika under CESA by listing them as ‘threatened’ due to global warming. Alternatively, the Center asked the Commission to list California's five pika subspecies as either ‘threatened’ or ‘endangered.’ “CESA sets forth a two-step process whereby the Commission must evaluate whether a species should be listed as threatened or endangered. In the first step, the Commission determines whether the listing petition, when considered together with other information in the Commission's possession, provides sufficient information to indicate that listing may be warranted. (Fish & G.Code § 2074.2.) If this first hurdle is cleared, the Commission designates the species as a ‘candidate’ for listing and the Department of Fish and Game (the ‘Department’) begins a comprehensive year-long review of the species' status.¹ ( Fish & G.Code § 2074.6.) Only after the Department completes its scientific review does the Commission decide whether the species indeed warrants listing as threatened or endangered. ( Fish & G.Code § 2075.5.) [¶] ... [T]he Commission concluded on April 10, 2008 that the Center's petition does not provide sufficient information to indicate that listing the pika may be warranted. The Commission adopted written findings with that decision on June 27, 2008.

“The Commission prejudicially abused its discretion in rejecting the Center's petition to list California's pika under CESA.... misconstrued fundamentally CESA's listing process, and ... ignored and misrepresented substantial information indicating that listing may be warranted. The Center therefore asks this Court to issue a writ of mandate setting aside the Commission's rejection of the Center's petition and directing the Commission to designate California's pika as candidates for listing under CESA.”

Tracking the grounds for issuance of a writ of administrative mandate (see Code Civ. Proc., § 1094.5, subd. (b)), the Center alleged causes of action that the Commission failed (1) to proceed in the manner required by the CESA, (2) to adopt a decision supported by its findings, and (3) to adopt findings that are supported by substantial evidence. The relief sought by the center in all three causes of action was “that the Court issue a writ of mandate commanding the Commission to set aside its prejudicial actions of April 10, 2008 and June 27, 2008 and issue a new decision accepting the Center's petition to list California's pika and advancing the pika to candidacy; or, alternatively, a writ of mandate directing the Commission to reconsider the petition consistent with CESA, and make a timely new decision supported by substantial evidence.”

The Commission and the Department responded that the Center was entitled to no relief: “The Commission found that the [Center's administrative] petition was ‘clearly deficient’ due to the absence of required scientific information about population abundance, population trend, distribution, range, and degree and immediacy of threat. In short, there was no evidence the pika in California is being negatively impacted by global warming. Putting aside this lack of evidence, the petition was properly rejected because the evidence in the record was too conflicting, uncertain or speculative to lead a reasonable person to conclude that listing could occur. Accordingly, the Commission respectfully requests that the petition for writ of mandate be denied and dismissed in its entirety and the Commission's decision be upheld in all respects.”

After hearing argument, the trial court decided to grant the Center's petition. The relevant portions of its judgment of May 2009 give the court's reasoning:

“The legal standard the Commission must apply in determining whether to accept or reject a petition to consider listing a species under CESA is whether ‘the petition provides sufficient information to indicate that the petitioned action may be warranted....’ (Fish & G.Code, § 2074.2, subd. (a)(2).) This statutory language has been interpreted to mean ‘that amount of information, when considered in light of the Department's written report and the comments received, that would lead a reasonable person to conclude that there is a substantial possibility that the requested listing could occur.’ ( Natural Resources Defense Council v. Fish & Game Com. (1994) 28 Cal.App.4th 1104, 1125 [33 Cal.Rptr.2d 904]( NRDC ).)

“In the second paragraph of Section III of [the Commission's] Notice of Findings, entitled ‘Reason for Finding,’ it states: ‘In order to accept the petition, the Commission is required to determine that it has information to persuade a reasonable person that there is a substantial possibility that the American pika will be listed.’ (Admin. Rec., Vol. II, at p. 329; see also Id. at 330 [‘The Commission is not persuaded that the decimation of some pika populations in the Great Basin constitutes sufficient information to warrant listing pikas....'].)

“The above-quoted portions of the Notice of Findings do not correctly state the applicable legal standard under NRDC. While the correct legal standard is set forth elsewhere in the Notice of Findings, the Court concludes that [the Commission] failed to apply, at least in part, the correct legal standard in making its decision because the incorrect language quoted above is more closely connected to the analysis that [the Commission] conducted. As a result, the Court finds that [the Commission] did not proceed in the manner required by law. (Code Civ. Proc., § 1094.5, subd. (b).)

“A peremptory writ of mandamus shall issue from this Court, remanding the proceedings to [the Commission] and commanding [the Commission] to set aside its Notice of Findings, adopted on June 27, 2008. The writ shall further command [the Commission] to reconsider its action in light of this Court's Judgment and to take any further action specially enjoined on it by law; but nothing in this judgment or in that writ shall limit or control in any way the discretion legally vested in [the Commission].

“[The Center] may submit a Memorandum of Costs and request for attorney's fees.”

The Center did so in September 2009, seeking “an award of $247,953.93. This ... includes $197,197.50 incurred on the merits of this lawsuit, $49,870.00 incurred to date pursuing the instant claim for attorneys' fees, and $886.43 in out-of-pocket expenses.”

The following month, on October 16, the Commission and the Department filed opposition to the Center's attorney fee application, asserting that all of the “required elements ... for a section 1021.5 fee award” were absent. Three days earlier, in its return to the writ filed October 13, the Commission advised the court that it had set aside its decision, prepared and adopted new findings on October 1, 2009, thereby “reaffirming its decision of April 10, 2008, to reject [the Center's] petition to list the American pika as threatened or endangered under the California Endangered Species Act.” ²

The trial court conducted a brief hearing on the Center's fee request, which had...