California Licensed Foresters Assn. v. State Bd. of Forestry

• Decision Date: 22 November 1994
• Docket Number: No. C017076,C017076
• Citation: 30 Cal.App.4th 562,35 Cal.Rptr.2d 396
• Court: California Court of Appeals Court of Appeals
• Parties: CALIFORNIA LICENSED FORESTERS ASSN., Plaintiff and Respondent, v. CALIFORNIA STATE BOARD OF FORESTRY, et al., Defendants and Appellants.

Page 396

35 Cal.Rptr.2d 396

30 Cal.App.4th 562

CALIFORNIA LICENSED FORESTERS ASSN., Plaintiff and Respondent, v. CALIFORNIA STATE BOARD OF FORESTRY, et al., Defendants and Appellants.

No. C017076.

Court of Appeal, Third District, California.

Nov. 22, 1994.

As Modified on Denial of Rehearing Dec. 20, 1994.

Review Denied Feb. 2, 1995.

Ronald A. Zumbrun, Robin L. Rivett, Jennifer M. Deming, Pacific Legal Foundation, Sacramento, for plaintiff and respondent.

Daniel E. Lungren, Atty. Gen., Roderick E. Walston, Chief Asst. Atty. Gen., Walter E. Wunderlich, Sr. Asst. Atty. Gen., M. Anne Jennings, Deputy Atty. Gen., for defendants and appellants.

PUGLIA, Presiding Justice.

Defendants appeal from an order of the trial court granting plaintiff's motion for attorney fees following voluntary dismissal of the underlying action. ¹ We shall conclude the cost of litigation was not out of proportion to plaintiff's individual stake in the outcome, and therefore plaintiff was not functioning as a private attorney general. (See Code Civ.Proc., § 1021.5.) Accordingly, we shall reverse.

I

The underlying dispute involves a challenge to emergency regulations and guidelines adopted without notice or public hearing by defendant California State Board of Forestry (Board) pursuant to its rule making powers under the Z'berg-Nejedly Forest Practice Act of 1973 (Pub.Res.Code, § 4511 et seq., hereafter the Forest Practice Act). The Forest Practice Act governs harvesting of timber on non-federal land within the State of California (Pub.Res.Code, §§ 4513, 4526) and is designed "to encourage prudent and responsible forest resource management calculated to serve the public's need for timber and other forest products, while giving consideration to the public's need for watershed protection, fisheries and wildlife, and recreational opportunities alike in this and future generations." (Pub.Res.Code, § 4512, subd. (c).)

Under the Forest Practice Act, logging on covered timberlands cannot proceed without approval of a "timber harvest plan" (THP) by the Director of the California Department of Forestry (CDF). (Pub.Res.Code, § 4581; Environmental Protection Information Center, Inc. v. Johnson 1985) 170 Cal.App.3d 604, 609, 216 Cal.Rptr. 502.) "The THP is an informational document designed to serve as an 'abbreviated' environmental impact report, setting forth proposed measures to mitigate the logging operation's potential adverse impact on the environment. CDF and public review of the THP prior to approval is intended to ensure that the adverse environmental effects are substantially lessened, particularly by the exploration of feasible less damaging alternatives to the proposed harvesting project." (Environmental Protection Information Center, Inc. v. Johnson, supra, 170 Cal.App.3d at pp. 609-610, 216 Cal.Rptr. 502.)

The Board is required by the Forest Practice Act to adopt rules and regulations relating to all phases of timber operations, including the preparation of THPs. (Pub.Res.Code, §§ 4551, 4551.5.) ² These rules and regulations must be reviewed continuously and may be revised as necessary to meet changing circumstances and to further the intent and purposes of the Forest Practice Act. (Pub.Res.Code, § 4553.)

Normally, the Board may not adopt or revise rules or regulations without first providing notice and a public hearing. (Pub.Res.Code, § 4554.) However, "[i]f the [B]oard finds that the intent of [the Forest Practice Act] has not been provided for in the rules and regulations, the [B]oard shall act to amend the rules by emergency regulation in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. The [Director of Forestry] shall act upon the plan within 15 days of the [B]oard's action. Emergency regulations adopted pursuant to this section shall be effective for not more than 120 days. The regulations may be made permanent if the [B]oard acts to adopt or revise its rules and regulations pursuant to procedures established in this article for the adoption of other than emergency regulations." (Pub.Res.Code, § 4555.)

A Board determination that an emergency exists requiring immediate regulatory action must be supported by a written statement containing the information specified in Government Code section 11346.5, subdivisions (a)(2) through (a)(6), as well as "a description of the specific facts showing the need for immediate action." (Gov.Code, § 11346.1, subd. (b).) ³

On October 16, 1991, the Board invoked its emergency rule-making powers and adopted temporary regulations (the emergency regulations) purportedly increasing the requirements of a THP and shifting the emphasis of the Forest Practice Act from production of lumber to protection of wildlife. ⁴ These emergency regulations became effective on November 25, 1991.

Plaintiff California Licensed Foresters Association (CLFA) filed this action on December 31, 1991, claiming the emergency regulations adversely affect the livelihood of its members and are not supported by a bona fide emergency. CLFA is a non-profit association of "registered professional foresters" and related professionals who provide services to private timberland owners in connection with the preparation of THPs. Two large timberland owners, Arcata Redwood Company (Arcata) and Louisiana-Pacific Corporation (Louisiana-Pacific), filed separate lawsuits challenging the regulations. The three matters were ultimately consolidated by the trial court.

CLFA moved for a preliminary injunction barring enforcement of the emergency regulations. The trial court granted the motion on February 18, 1992, concluding CLFA is likely to prevail on the merits of its claim that the Board's statement of emergency is inadequate and the balance of equities favors CLFA.

Eight days later, the Director of CDF issued a memorandum entitled "California Department of Forestry and Fire Protection Timber Harvesting Plan Evaluation Guidelines." An updated version of this memorandum was issued on March 10, 1992. These documents (hereafter collectively the "guidelines") were purportedly intended as directives to CDF in performing its THP review functions.

CLFA, Louisiana-Pacific, and Arcata filed an application for order to show cause re contempt regarding the guidelines, claiming they were an attempt to circumvent the injunction. The court denied the request, concluding "the thrust of the guidelines is fundamentally different from that of the enjoined regulations." The court also denied Arcata's motion for temporary restraining order regarding enforcement of the guidelines, concluding Arcata is not likely to prevail on the merits.

On June 22, 1992, CLFA filed an amended complaint containing allegations that the guidelines are an attempt to evade the injunction and were not enacted in accordance with the Administrative Procedures Act. The trial court denied cross-motions for summary adjudication and the matter was set for trial. On March 3, 1993, following adoption of permanent regulations, CLFA filed a request for voluntary dismissal. CLFA then sought and obtained an award of attorney fees in the amount of $42,940. ⁵

II

The Board contends the circumstances of this case do not warrant an award of attorney fees under Code of Civil Procedure section 1021.5 (hereafter section 1021.5). In the alternative, the Board urges a reduction in the amount of the award commensurate with the extent of CLFA's lack of success on its claims.

Section 1021.5 codifies the "private attorney general" doctrine under which attorney fees may be awarded to successful litigants. ⁶ "The doctrine rests upon the recognition that privately initiated lawsuits are often essential to the effectuation of the fundamental public policies embodied in constitutional or statutory provisions, and that, without some mechanism authorizing the award of attorney fees, private actions to enforce such important public policies will as a practical matter frequently be infeasible. [Citations.]" (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933, 154 Cal.Rptr. 503, 593 P.2d 200.) Entitlement to fees under section 1021.5 requires a showing that the litigation: "(1) served to vindicate an important public right; (2) conferred a significant benefit on the general public or a large class of persons; and (3) imposed a financial burden on plaintiffs which was out of proportion to their individual stake in the matter." (Baggett v. Gates (1982) 32 Cal.3d 128, 142, 185 Cal.Rptr. 232, 649 P.2d 874.)

The decision whether to award attorney fees lies within the discretion of the trial court and will not be disturbed on appeal absent a prejudicial abuse of discretion resulting in a manifest miscarriage of justice. (Baggett v. Gates, supra, 32 Cal.3d at pp. 142-143, 185 Cal.Rptr. 232, 649 P.2d 874.) However, "discretion may not be exercised whimsically and, accordingly, reversal is appropriate 'where no reasonable basis for the action is shown.' [Citation.]" (Marini v. Municipal Court (1979) 99 Cal.App.3d 829, 837, 160 Cal.Rptr. 465.)

The Board contends none of the prerequisites to an award of attorney fees is satisfied here. According to the Board, the suit produced no lasting results, only a premature expiration of the emergency regulations. This, the Board argues, was neither a substantial benefit nor of value to a large class of persons over and above the CLFA membership. The Board further contends the cost of litigation, amounting to approximately $60 per member, ⁷ was not out of proportion to CLFA's stake in the outcome. We shall address the latter contention first.

In its order awarding attorney fees, the trial court explained its reasoning as follows: "The burden on plaintiff in seeking enforcement of these rights should not be borne by them or passed on to their members. The Court finds that plaintiff successfully fought a governmental regulatory body's arbitrary proceedings [and stopped]...