In re Dep't of Water Res. Envtl. Impact Cases

79 Cal.App.5th 556

293 Cal.Rptr.3d 910

DEPARTMENT OF WATER RESOURCES ENVIRONMENTAL IMPACT CASES.

C091771

Court of Appeal, Third District, California.

Filed May 11, 2022

Somach Simmons & Dunn, Andrew M. Hitchings, Kelley M. Taber, Sacramento, and Ellen M. Simmons for Plaintiffs and Appellants County of Sacramento, Sacramento County Water Agency, and City of Stockton.

Lisa Ann Travis and William Corbin Burke, Los Angeles, for Plaintiffs and Appellants Sacramento County, Sacramento County Water Agency and Sacramento Regional County Sanitation District.

John Luebberke for Plaintiff and Appellant City of Stockton.

Law Offices of Stephan C. Volker, Stephan C. Volker, San Francisco, Alexis E. Krieg, Stephanie L. Clarke and Jamey M. B. Volker, Berkeley, for Plaintiffs and Appellants North Coast Rivers Alliance, Winnemem Wintu Tribe, Institute for Fisheries Resources, Pacific Coast Federation of Fishermen's Associations, and San Francisco Crab Boat Owners Association.

E. Robert Wright and John Buse for Plaintiffs and Appellants California Sportfishing Protection Alliance, Friends of the River, Center for Biological Diversity, Sierra Club California, California Water Impact Network, AquAlliance, Restore the Delta, Center for Food Safety, Friends of Stone Lakes National Refuge, Planning and Conservation League, and Save Our Sandhill Cranes.

Law Office of Adam Keats and Adam Keats for Plaintiff and Appellant Center for Food Safety.

Law Offices of Michael A. Brodsky and Michael A. Brodsky, Capitola, for Plaintiff and Appellant Save the California Delta Alliance.

Freeman Firm and Thomas H. Keeling, Stockton, for Plaintiffs and Appellants County of San Joaquin, Central Delta Water Agency, South Delta Water Agency, County of Contra Costa, Contra Costa County Water Agency, County of Solano, County of Yolo, County of Butte, County of Plumas, and Plumas County

Flood Control and Water Conservation District.

Soluri Meserve, Osha R. Meserve, Patrick M. Soluri, Sacramento, and James C. Crowder for Plaintiffs and Appellants County of San Joaquin, Central Delta Water Agency, South Delta Water Agency, County of Contra Costa, Contra Costa County Water Agency, County of Solano, County of Yolo, and Local Agencies of the North Delta.

The Law Offices of Roger B. Moore and Roger B. Moore for Plaintiffs and Appellants County of San Joaquin, Central Delta Water Agency, County of Contra Costa, Contra Costa County Water Agency, County of Solano, County of Yolo, County of Butte, County of Plumas, and Plumas County Flood Control and Water Conservation District.

James Mark Myles for Plaintiff and Appellant County of San Joaquin.

Nomellini, Grilli & McDaniel Law Office, Dante John Nomellini, Sr., Dante John Nomellini, Jr., Stockton, and Brett Baker for Plaintiff and Appellant Central Delta Water Agency.

Law Office of John H. Herrick, John H. Herrick, Stockton; Mohan, Harris, Ruiz, Wortmann, Perisho & Rubino, Mohan Harris & Ruiz and S. Dean Ruiz, Stockton, for Plaintiff and Appellant South Delta Water Agency.

Thomas Lawrence Geiger and Stephen Michael Siptroth for Plaintiffs and Appellants County of Contra Costa and Contra Costa County Water Agency.

Bernadette Shilts Curry and Daniel Martin Wolk, Fairfield, for Plaintiff and Appellant Solano County.

Philip John Pogledich and Eric May, Los Angeles, for Plaintiff and Appellant County of Yolo.

Bruce S. Alpert for Plaintiff and Appellant County of Butte.

Gretchen Stuhr for Plaintiff and Appellant County of Plumas and Plumas County Flood Control and Water Conservation District.

Downey Brand, Kevin M. O'Brien, Meredith E. Nikkel, Brian E. Hamilton and Austin C. Cho, Sacramento, for Plaintiff and Appellant North Delta Water Agency.

Rob Bonta, Attorney General, Robert W. Byrne, Assistant Attorney General, Tracy L. Winsor, Sierra S. Arballo, Colleen R. Flannery, Daniel M. Fuchs, Gwynne B. Hunter, Kelly A. Welchans, Deputy Attorneys General; Orrick, Herrington & Sutcliffe and Michael Weed, Sacramento, for Defendant and Respondent Department of Water Resources.

Marcia L. Scully, Los Angeles, Robert C. Horton and Bryan M. Otake, Los Angeles, for Defendant and Respondent The Metropolitan Water District of Southern California.

Best Best & Krieger, Christopher M. Pisano, Los Angeles, Charity B. Schiller, Riverside, and Ryan Guiboa, Los Angeles, for Defendant and Respondent The Metropolitan Water District of Southern California, State Water Contractors and Santa Clarita Valley Water Agency.

KRAUSE, J.

Plaintiffs in this coordinated proceeding appeal from postdismissal orders denying their motions for attorney fees under Code of Civil Procedure section 1021.5, the private attorney general statute. In 2017, plaintiffs filed petitions against defendant Department of Water Resources (DWR) challenging the California WaterFix (WaterFix), a proposal to improve the State's water supply infrastructure by constructing two 35-mile-long tunnels that would convey fresh water from the Sacramento River to pumping stations in the southern Sacramento–San Joaquin Delta (Delta). The lawsuits sought to compel DWR to rescind the WaterFix approvals, decertify the environmental impact report (EIR), and suspend activities related to the project until DWR complied with applicable laws. Most of the plaintiffs also filed answers opposing a separate action filed by DWR to validate the project's bond financing. Plaintiffs’ lawsuits were coordinated for trial with other lawsuits, and with DWR's validation action, as Judicial Council Coordination Proceeding No. 4942. ( Cal. Rules of Court, rule 3.550.)

In 2019, while the coordination proceeding was pending, California's newly elected Governor announced that he did not support WaterFix's dual tunnel proposal and directed DWR to instead pursue a single tunnel conveyance. Shortly thereafter, DWR decertified the EIR and rescinded the project approvals. Consequently, all pending actions, including the validation suit, were dismissed.

After the cases were dismissed, plaintiffs filed motions for attorney fees, asserting that they were "successful" parties under the catalyst theory because the litigation motivated DWR to voluntarily provide the relief sought in their petitions and answers. ( Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 560, 566, 21 Cal.Rptr.3d 331, 101 P.3d 140 ( Graham ).) The trial court denied the motions, concluding that although plaintiffs may have received the primary relief sought, the lawsuits did not cause DWR to provide that relief.

On appeal, plaintiffs argue that (1) the trial court failed to apply the correct legal standard in determining there was no causal connection between the litigation and the relief obtained; and (2) the trial court's finding of no causation is not supported by substantial evidence. We conclude that the trial court failed to apply the correct legal standard and therefore failed to consider all relevant evidence in the record. We shall reverse the trial court's order and remand for redetermination of the issue.

BACKGROUND FACTS AND PROCEDURE

Formed by the confluence of the state's two largest rivers, the Delta is a "critically important natural resource for California and the nation." ( Wat. Code, § 85002 ; Delta Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 1031, 262 Cal.Rptr.3d 445 ( Delta Stewardship ).)¹ It provides habitat for a vast array of aquatic and terrestrial species, offers a wide variety of recreational activities, supports extensive statewide infrastructure, and sustains a productive agricultural landscape rich in culture and history. (§§ 12981, subds. (a), (b), 85002, 85022, subds. (c), (d); Pub. Resources Code, §§ 29701, 29708 ; Delta Stewardship, supra , 48 Cal.App.5th at pp. 1027, 1030-1031, 1033, 262 Cal.Rptr.3d 445.)

The Delta also serves as the hub of California's water supply infrastructure. ( §§ 85002, 85004 ; Delta Stewardship, supra , 48 Cal.App.5th at p. 1033, 262 Cal.Rptr.3d 445.) "Two major water systems[,] the federal Central Valley Project ... and California's State Water Project ... [,] divert water from the Delta and convey water previously stored in upstream reservoirs through the Delta, primarily for urban and agricultural uses in ... the San Francisco Bay Area, Central Valley, Central Coast, and Southern California." ( Delta Stewardship , at p. 1033, 262 Cal.Rptr.3d 445, fn. omitted.) More than two-thirds of California residents and millions of acres of farmland rely on water exported from the Delta watershed. ( § 85004.) As a result, approximately half of the water that historically flowed into and through the Delta is now diverted for human use. ( Delta Stewardship , at p. 1033, 262 Cal.Rptr.3d 445.) Located on the southeast edge of the Delta, two sets of pumps, one each for the Central Valley Project (CVP) and the State Water Project (SWP), extract millions of acre-feet of water from the Delta and convey it through a system of reservoirs and canals to other parts of the state. ( Id . at p. 1033 & fn. 8, 262 Cal.Rptr.3d 445 ; In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1152-1153, 77 Cal.Rptr.3d 578, 184 P.3d 709.)

Competing demands for resources have left the Delta and California's water supply infrastructure in a state of crisis. ( § 85001, subd. (a) ; Delta Stewardship, supra , 48 Cal.App.5th at pp. 1027-1028, 1035, 262 Cal.Rptr.3d 445.) Problems include the declining health of the ecosystem, degraded water quality, subsidence of Delta lands, levee system integrity, and risks to water supply reliability. (See Delta Stewardship , at pp. 1032, fn. 6, 1034-1035, 262 Cal.Rptr.3d 445 ; In re Bay-Delta etc., supra , 43 Cal.4th at pp. 1151, 1153, 77 Cal.Rptr.3d 578, 184 P.3d 709.)

A. The twin tunnels proposal

To address the Delta's problems, in or about 2006, DWR began working on a proposal to modernize and improve the existing Delta water conveyance system. As originally proposed, the project—then known as the Bay Delta Conservation Plan—consisted of two components: a new water conveyance facility and a long-term habitat...