In re State Water Resources Control Bd.

73 Cal.Rptr.3d 842

161 Cal.App.4th 304

STATE WATER RESOURCES CONTROL BOARD CASES.

No. C055104.

Court of Appeal, Third District.

March 26, 2008.

Edmund G. Brown, Jr., Attorney General, Mary E. Hackenbracht, Senior Assistant Attorney General, Mark W. Poole and Clifford T. Lee, Deputy Attorneys General, for Defendant and Appellant State Water Resources Control Board.

Law Offices of Stephan C. Volker, Stephan C. Volker, Joshua A.H. Harris, Oakland, and Marnie E. Riddle, for Plaintiffs and Appellants Golden Gate Audubon Society, Marin Audubon Society, San Joaquin Audubon Society, California Sportfishing Protection Alliance, and Committee to Save the Mokelumne.

ROBIE, J.

In an earlier opinion in these coordinated cases—State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 39 Cal.Rptr.3d 189 (SWRCB Cases)—this court decided "eight appeals and three cross-appeals in seven coordinated cases" that "arose out of an omnibus water rights proceeding before the State Water Resources Control Board (the Board)" involving the San Francisco Bay/Sacramento-San Joaquin Delta Estuary. (Id. at p. 687, 39 Cal.Rptr.3d 189.) One of the seven coordinated cases was Golden Gate Audubon Society v. State Water Resources Control Board (Super. Ct. Alameda County, 2003, No. 825585-9), a mandamus proceeding brought by five nonprofit organizations (collectively the Audubon Society parties).¹ (SWRCB Cases, at pp. 718, 773, 39 Cal. Rptr.3d 189.) Another one of the coordinated cases was Central Delta Water Agency v. State Water Resources Control Board (Super. Ct. S.F. City and County, 2003, No. 311502), a mandamus proceeding brought by six parties with interests in the Central Sacramento-San Joaquin Delta (collectively the Central Delta parties).² (SWRCB Cases, at pp. 718, 724, 39 Cal. Rptr.3d 189.)

Ultimately, this court determined the Audubon Society parties and the Central Delta parties were entitled to essentially the same mandamus relief against the Board.³ (SWRCB Cases, supra, 136 Cal. App.4th at p. 844, 39 Cal.Rptr.3d 189.) On remand, after the trial court entered judgment in favor of the Audubon Society parties in compliance with this court's directive, they sought attorney fees under the private attorney general doctrine embodied in Code of Civil Procedure section 1021.5 (section 1021.5). The trial court denied their motion, concluding they had not shown that the necessity of private enforcement made a fee award appropriate. The trial court based this conclusion on the fact that the relief the Audubon Society parties obtained directed the Board to do nothing more than provide the relief the Central Delta parties had already obtained.

For reasons we will explain, we conclude the trial court erred in denying the Audubon Society parties' motion for attorney fees under section 1021.5. That the success they achieved was the same success the Central Delta parties achieved does not justify a denial of a fee award under the private attorney general theory, especially since the trial court granted the motion by two of the Central Delta parties for fees under section 1021.5. Where two parties achieve the same relief acting essentially as private attorneys general, even though one of the parties is a public entity, there is no rational basis to conclude that the public entity is entitled to be rewarded for its success under section 1021.5, but the private party is not. Accordingly, we will reverse the order denying the Audubon Society parties' fee motion and remand the matter for a determination of the amount of fees to which they are entitled.

FACTUAL AND PROCEDURAL BACKGROUND

I The 1995 Bay-Delta Plan And Decision 1641

Fortunately, the entire `background of these coordinated cases—which took up 30 pages in this court's earlier opinion—need not be repeated here. Suffice it to say that in May 1995, the Board adopted a new water quality control plan for the Bay-Delta (the 1995 Bay-Delta Plan) that, among other things, "set minimum monthly average flow rates on the San Joaquin River at Vernalis (the Vernalis flow objectives)." (SWRCB Cases, supra, 136 Cal. App.4th at pp. 701-702, 39 Cal.Rptr.3d 189.) The 1995 Bay-Delta Plan also "included a narrative objective for the protection of salmon, which provided: Water quality conditions shall be maintained, together with [other] measures in the watershed, sufficient to achieve a doubling of natural production of chinook salmon from the average production of 1967-1991, consistent with the provisions of State and federal law.'" (Id. at p. 703, 39 Cal. Rptr.3d 189.) The narrative salmon protection objective and the Vernalis flow objectives were established (along with various other objectives) to protect fish and wildlife uses served by the waters of the Delta. (Id. at p. 701, 39 Cal.Rptr.3d 189.)

In its program of implementation, the 1995 Bay-Delta Plan provided that the various flow objectives for the protection of fish and wildlife, including the Vernalis flow objectives, would be implemented through a water rights proceeding in which the Board would allocate responsibility for meeting those objectives among water rights holders in the Bay-Delta Estuary watershed. (SWRCB Cases, supra, 136 Cal.App.4th at p. 703, 39 Cal.Rptr.3d 189.) With respect to the narrative salmon protection objective, the Plan provided that "`in addition to the timely completion of a water rights proceeding to implement river flow and operational requirements which will help protect salmon migration through the Bay-Delta Estuary, other measures may be necessary to achieve the objective of doubling the natural production of chinook salmon from average 1967-1991 levels.'" (Id. at pp. 704-705, 39 Cal. Rptr.3d 189.)

In 1997, the Board commenced the water rights proceeding to "allocate responsibility for implementing the flow-dependent objectives of the 1995 Bay-Delta Plan." (SWRCB Cases, supra, 136 Cal.App.4th at pp. 705-706, 39 Cal.Rptr.3d 189.) Ultimately, as part of that proceeding, instead of allocating responsibility for meeting all of the Vernalis flow objectives to water rights holders in the watershed, the Board approved an arrangement under which, for a period of time, all of Vernalis flow objectives would be met except for one—the Vernalis pulse flow objective.⁴ (Id. at pp. 706-710, 39 Cal.Rptr.3d 189)

II The Underlying Litigation

In April 2000, the Central Delta parties filed their writ petition seeking to vacate the Board's decision in the water rights proceeding (Decision 1641).⁵ (SWRCB Cases, supra, 136 Cal.App.4th at p. 724, 39 Cal.Rptr .3d 189.) Included in that petition was a cause of action that "alleged, among other things, that in adopting Decision 1641, the Board `failed to implement the 1995 Water Quality Control Plan,' including ... the `Vernalis Fish Flow objectives.'" (Ibid.)

That same month (April 2000) the Audubon Society parties filed their own writ petition seeking to set aside Decision 1641. (SWRCB Cases, supra, 136 Cal.App.4th at p. 773, 39 Cal.Rptr.3d 189.) "In the first cause of action in their petition, the Audubon Society parties alleged Decision 1641 was `contrary to law and is not supported by substantial evidence because it' `purport[s] to authorize water rights inconsistent with applicable water quality objectives of the 1995 Bay-Delta Plan.' The Audubon Society parties further alleged that Decision 1641 `ignored' the salmon-doubling objective." (Ibid.)

In adjudicating the Central Delta parties' petition, "the trial court concluded that the Vernalis flow objectives were `the legal minimum flow objectives that must be satisfied unless changed in an appropriate proceeding to modify the 1995 Plan itself.'" (SWRCB Cases, supra, 136 Cal. App.4th at p. 724, 39 Cal.Rptr.3d 189.) Accordingly, the trial court entered judgment in favor of the Central Delta parties directing issuance of a writ of mandate to the Board requiring compliance with the Vernalis flow objectives. (Id. at p. 725, 39 Cal.Rptr.3d 189.) The court denied the petition on all other grounds. (Ibid.)

In adjudicating the Audubon Society parties' petition, the trial court concluded (as relevant here) that Decision 1641 "`supports and advances the narrative goal of doubling salmon survival.'" (SWRCB Cases, supra, 136 Cal.App.4th at p. 773, 39 Cal.Rptr.3d 189.) "Based on its rejection of this and other arguments by the Audubon Society parties ..., the trial court entered judgment" against them. (Ibid.)

III The Prior Appeals

Numerous parties, including the Board, appealed from the judgment in favor of the Central Delta parties. (SWRCB Cases, supra, 136 Cal.App.4th at p. 725, 39 Cal. Rptr.3d 189.) Those parties argued that "the 1995 Bay-Delta Plan allowed for staged implementation of the Vernalis pulse flow objective, and the Board's decision to adopt ... alternate flows during an interim, experimental stage was both authorized and reasonable." (Id. at p. 726, 39 Cal.Rptr.3d 189.) This court disagreed, concluding there was nothing in the Plan "that authorized [the Board] to implement a flow objective other than the Vernalis pulse flow objective, even temporarily." (Id. at p. 727, 39 Cal.Rptr.3d 189.) This court agreed with the trial court that "by adopting [an alternate] flow regime in lieu of the Vernalis pulse flow objective in Decision 1641, even on a temporary basis, the Board failed to fully implement the 1995 Bay-Delta Plan and instead accomplished a de facto amendment of that plan without complying with the procedural requirements for amending a water quality control plan." (Id. at pp. 733-734, 39 Cal. Rptr.3d 189.) Accordingly, this court affirmed the judgment in favor of the Central Delta parties to the extent it directed the issuance of a writ of mandate requiring the Board to commence further appropriate proceedings to either assign responsibility for meeting the Vernalis pulse flow objective or modify that objective.⁶ (Id. at pp. 734, 844, 39 Cal.Rptr.3d 189.)

On appeal from the judgment against them,...