Environmental Plaintiffs’ Partial Success Conferred Public Benefit Sufficient to Justify Award of Fees Under Private Attorney General Doctrine

In Environmental Protection Information Center v. California Department of Forestry and Fire Protection (2010) 190 Cal.App.4th 217 (A108410, Nov. 19, 2010), the First Appellate District, in the published portion of its opinion, held that the partial success of two plaintiffs groups (an environmental group and a labor union) conferred a sufficient public benefit to warrant an award of attorneys’ fees under the private attorney general doctrine (Code Civ. Proc. §1021.5), even though their success at trial was not upheld in its entirety on appeal. The court reversed post-judgment orders awarding attorney fees following the original trial court judgment and remanded the case to the trial court to determine whether the environmental plaintiffs’ actions were necessary within the meaning of section 1021.5 and the amount of any reasonable fee award.

In 1999, the Environmental Protection Information Center and Sierra Club (collectively, EPIC) and the United Steelworkers of America challenged various administrative approvals issued by California’s Department of Forestry and Fire Protection (CDF) and the Department of Fish and Game (DFG) concerning the logging of timberland by Pacific Lumber Company in Humboldt County. EPIC sought to set aside: (1) CDF’s approval of a sustained yield plan (SYP); (2) DFG’s issuance of an incidental take permit; (3) DFG’s approval of a streambed alteration agreement; and (4) CDF’s and DFG’s findings and certification of the environmental impact statement (EIS) and environmental impact report (EIR). The steelworkers challenged the SYP only. Both parties sought attorneys’ fees under the private attorney general doctrine, codified at Code of Civil Procedure §1021.5. EPIC and the steelworkers prevailed in the trial court. In September 2004, the trial court awarded EPIC ($4,279,915.74) and the steelworkers ($ 1,787,806.21) in attorneys’ fees. CDF, DFG and Pacific Lumber appealed the trial court’s judgment and the fee awards.

In late 2005, the court of appeal issued an opinion substantially reversing the trial court’s judgment on the merits (EPIC I). Thereafter, the Court stayed the attorney fees award. EPIC and the steelworkers sought review in the California Supreme Court, which affirmed in part and reversed in part the decision of the court of appeal. (Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459 (EPIC II.) The Court set aside CDF’s approval of the SYP, agreeing with EPIC that the SYP was required to include individual watershed planning analyses, but rejected the remaining challenges to the SYP. The Court ruled further that certain “no surprises clauses” included in the state incidental take permit were inconsistent with Fish and Game Code §2081(b)(2), but rejected the remainder of EPIC’s challenges to the permit and its challenges to the streambed alteration agreement. The Court upheld the EIS/EIR against all challenges raised against it. Following issuance of EPIC II, the court of appeal lifted the stay in these appeals and the parties completed briefing.

The First Appellate District initially determined it was better positioned to determine whether an appellate decision has conferred a significant benefit than the trial court. Therefore, it proceeded to decide this issue and provide guidance to the trial court on remand of the orders. The court then evaluated whether the Supreme Court’s decision had conferred a significant benefit warranting an award of fees under §1021.5 and found a significant benefit to the environment did result from the litigation. This was the first time the Supreme Court had ever addressed the sufficiency of a SYP, and EPIC II’s statement regarding the need for creating a single, integrated SYP would enhance effective public review, increase participation in environmental decisionmaking and improve CDF’s procedures. The Supreme Court’s assessment of the “no surprises clauses” also conferred a significant benefit by setting a precedent that will apply to future state incidental take permits issued under CESA. Finally, the court found that, because the portion of EPIC I finding error in the DFG’s advance issuance of permits for 13 unlisted species was not challenged in the Supreme Court, new permits would have to be sought in the future should these species become listed; thus, a significant benefit results from the additional protection for these currently unlisted species.

The court nonetheless agreed with the state agencies that EPIC and the steelworkers were required to show the necessity of private enforcement, including prelitigation settlement efforts. The court found that exhaustion of administrative remedies was not enough, standing alone, to determine the issue of necessity, as litigation could still ensue if the agency agrees with some of a party’s objections but disagrees with others. The court directed the trial court, on remand, to consider the question of settlement efforts in determining whether private enforcement was sufficiently necessary to justify an award of fees.

In considering the amount of the fee award, the court held that it was necessary to take into account the plaintiffs’ limited success in setting the lodestar. The court applied the two-part approach set forth in Hensley v. Eckerhart (1983) 461 U.S. 424: (1) whether the plaintiff failed to prevail on claims that were unrelated to the claims on which he succeeded, and, (2) if successful and unsuccessful claims were related, whether the plaintiff achieved a level of success “that makes the hours reasonably expended a satisfactory basis for making a fee award.”

The court held, at the outset, that a common administrative record and a common procedural history were not sufficient on their own to establish that claims on which EPIC and the steelworkers failed to succeed were related to those on which they prevailed. The court ultimately found the steelworkers’ action did not involve unrelated claims, because the steelworkers challenged the SYP approval only and they obtained the relief sought.

With regard to EPIC, it succeeded in two of its litigation objectives—invalidating the approval of the SYP and invalidating the incidental take permit due to the “no surprises” clauses—but it was unsuccessful in its others. In the unique circumstances of this case, however, because the SYP and HCP contained overlapping and interrelated analysis and provisions, the court concluded the successful and unsuccessful claims were related because the relief EPIC sought on the unsuccessful claims did not seek to remedy a course of conduct entirely distinct and separate from that underlying its successful claims. The court left to the trial court on remand the second step of the Hensley analysis, whether the fee awards should be reduced by the hours spent on litigating unsuccessful theories.

Finally, the court found no error in the trial court’s application of San Francisco attorney rates, rather than the lower rates charged in Humboldt County, finding that EPIC and the steelworkers met their burden of showing that hiring local counsel was impracticable because they were either unavailable, unwilling or lacked the skills necessary to litigate the case.