On May 5, 2011, the First District Court of Appeal ordered the publication of its decision in Center for Biological Diversity v. California Fish and Game Commission (2011) 195 Cal.App.4th 128. In this decision, the First District Court of Appeal concluded attorney’s fees should not be awarded where no significant benefit to the general public resulted despite the trial court ordering the agency to reconsider a matter because the agency might have employed an incorrect standard in making its decision.
In 2007, the Center for Biological Diversity (CBD) filed a petition with the Fish and Game Commission (Commission) to list the California pika, or alternatively five pika subspecies, under the California Endangered Species Act (CESA). In 2008, the Commission refused to protect the pika under CESA and found CBD’s petition did not provide sufficient information to indicate that listing the pika may be warranted.
The CBD sought a writ of mandate to force the Commission to set aside its initial decision and issue a new decision designating the pika as a candidate for CESA protection, or alternatively to direct the Commission to reconsider the petition consistent with CESA. The trial court granted CBD’s petition on the grounds that the Commission’s Notice of Findings incorrectly stated the applicable legal standard and the analysis was closely related to this incorrect language. On October 1, 2009, the Commission adopted new findings reaffirming its 2008 decision to not list the pika under CESA. In September of 2009, CBD requested attorneys’ fees, which the trial court ultimately granted in the amount of $257,675.
In Karuk Tribe of Northern California v. California Regional Water Quality Control Board, North Coast Region (2010), 183 Cal.App.4th 330, the First District Court of Appeal held that Code of Civil Procedure section 1021.5 (section 1021.5) did not support an award of attorneys’ fees for a remand to an agency to reconsider a matter for a perceived procedural defect. (Id. at pp. 364-369.) The plaintiffs in Karuk attempted to compel the regional water quality control board to enforce the California Porter-Cologne Water Quality Control Act regarding dams on the Klamath River. The board opposed this effort because two cases in the United States Supreme Court and the Ninth Circuit had already established that federal law preempted California law in regulating dams on navigable waters. (Id. at p. 337-338.) Although the trial court issued a writ of mandate directing the board to reconsider its decision in light of two United States Supreme Court decisions, the board reached the same conclusion that the field was exclusively under federal jurisdiction. (Id. at pp. 338-341.) Consequently, the court concluded the plaintiff’s efforts did not change anything and had no impact on the agency’s position. (Id. at p. 365.) Thus, a fee award was not justified because there was no “significant benefit” or enforcement of an “important right affecting the public interest” within the meaning of section 1021.5. (Id. at p. 369.)
In this case, the trial court’s decision to grant attorneys’ fees came before Karuk was decided. Nonetheless, the appellate court concluded that Karuk was controlling and looked to the “impact of the action, not the manner of its resolution” as the “critical fact.” (See Karuk Tribe, supra, 183 Cal.App.4th at p. 362.) Noting the trial court’s remand was a purely procedural one, the court concluded that a fee award was not justified since the Commission simply revised its previous decision and did not change its position. The court did, however, leave open the possibility that CBD would be granted fee awards in the future if further proceedings produced a substantial benefit to the public.