Envtl. Prot. Info. Ctr. v. Cal. Dep't of Forestry

Decision Date15 December 2010
Docket NumberNos. A108410, A108478.,Certified for Partial Publication. ,s. A108410, A108478.
CourtCalifornia Court of Appeals Court of Appeals
PartiesENVIRONMENTAL PROTECTION INFORMATION CENTER et al., Plaintiffs and Respondents, v. CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION et al., Defendants and Appellants. United Steelworkers of America et al., Plaintiffs and Respondents, v. California Department of Forestry and Fire Protection, Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary E. Hackenbracht, Assistant Attorney General, John Davidson and William N. Jenkins, Deputy Attorneys General, for Defendants and Appellants.

Law Offices of Sharon E. Duggan, Sharon E. Duggan, San Francisco; Lippe Gaffney Wagner, Brian Gaffney, San Francisco; Law Offices of Richard M. Pearl and Richard M. Pearl, Berkeley, for Plaintiffs and Respondents Environmental Protection Information Center et al.

Paul Whitehead; Altshuler Berzon, Jonathan Weissglass and Peder J. Thoreen, San Francisco, for Plaintiff and Respondent United Steelworkers of America.

SIMONS, J.

In Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 80 Cal.Rptr.3d 28, 187 P.3d 888 ( EPIC II),the California Supreme Court resolved the merits of a long-running legal dispute surrounding the logging of 211,000 acres of timberland owned by Pacific Lumber Company (Pacific Lumber) in Humboldt County. ( Id. at pp. 470, 472, 80 Cal.Rptr.3d 28, 187 P.3d 888.) Respondents EnvironmentalProtection Information Center and Sierra Club (hereafter, collectively, EPIC) and the United Steelworkers of America (the Steelworkers) had challenged various administrative approvals issued to Pacific Lumber by California's Department of Forestry and Fire Protection (CDF) and the Department of Fish and Game (DFG).1 EPIC and the Steelworkers prevailed in the trial court; and, in September 2004, the trial court awarded them attorney fees under Code of Civil Procedure section 1021.5 (section 1021.5).

The Agencies and Pacific Lumber appealed the trial court's judgment and the attorney fee awards to this court; and, in late 2005, we issued an opinion that substantially reversed the trial court's judgment on the merits. EPIC and the Steelworkers successfully sought review in the California Supreme Court, and we stayed briefing in the appeal from the attorney fee awards pending the Supreme Court's decision. In light of that decision resolving the merits of the underlying cases, we address the Agencies' appeals from the fee awards.

The Agencies argue that, in view of the outcome of the appeals in the underlying litigation, respondents are no longer entitled to attorney fees. The Agencies further argue that even if respondents are entitled to fees, the amounts awarded must be reduced to account for respondents' ultimate lack of success on the merits. Finally, the Agencies contend the trial court made a number of errors in determining the amount of the fees it awarded.

We agree with the Agencies that the fee awards must be reevaluated in light of the final outcome of the underlying litigation. We reverse the attorney fee orders and remand the matter to the trial court for redetermination of respondents' entitlement to fees and the appropriate amount of any fee award. To narrow the scope of the issues to be decided on remand and for the guidance of the trial court in the further proceedings, we resolve many of the issues raised by the parties in these appeals.

FACTUAL AND PROCEDURAL BACKGROUND

The factual and procedural history of the underlying litigation is set forth in detail in the California Supreme Court's opinion in the merits appeals. (See EPIC II, supra, 44 Cal.4th at pp. 470-478, 80 Cal.Rptr.3d 28, 187 P.3d 888.) Part of our recitation of the facts is drawn from that opinion, but we discuss only those matters relevant to the appeals from the fee awards.

The Headwaters Agreement and the Administrative Proceedings

The underlying litigation arose from an agreement (the "Headwaters Agreement") among Pacific Lumber, the State of California, and the United States. ( EPIC II, supra, 44 Cal.4th at p. 470, 80 Cal.Rptr.3d 28, 187 P.3d 888.) The Headwaters Agreement "was intended to settle matters of litigation and public controversy surroundingthe intensive logging of old growth redwoods and other trees on Pacific Lumber's property in Humboldt County." ( Ibid.) Under the Headwaters Agreement, the state and federal governments purchased a small portion of the property, and Pacific Lumber was permitted to log the remainder, provided it obtained certain regulatory approvals from state and federal agencies. ( Ibid.) These approvals are "supported by a document or documents that are to some degree interrelated with the others." ( Id. at p. 471, 80 Cal.Rptr.3d 28, 187 P.3d 888.)

Pacific Lumber submitted for approval: (1) a Sustained Yield Plan (SYP) under Public Resources Code section 4551.3; (2) a state Incidental Take Permit under the California Endangered Species Act (CESA) (Fish & G.Code, § 2050 et seq.); and (3) an application for a Streambed Alteration Agreement under Fish and Game Code former section 1603, and (4) as required by federal law, a Habitat Conservation Plan (HCP). ( EPIC II, supra, 44 Cal.4th at pp. 471-472, 80 Cal.Rptr.3d 28, 187 P.3d 888.) As part of the approval process, the federal and state agencies decided to prepare for the state SYP and the federal HCP a joint environmental impact report (EIR) under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) and an environmental impact statement (EIS) under the National Environmental Policy Act of 1969 (42 U.S.C. § 4321 et seq.). ( EPIC II, at p. 472, 80 Cal.Rptr.3d 28, 187 P.3d 888.) Congress required Pacific Lumber to obtain these approvals by March 1, 1999. (Appropriations Act of Nov. 14, 1997, Pub.L. No. 105-83, § 501(b), 111 Stat. 1543, 1611 (hereafter, Appropriations Act).) "The approvals were timely obtained, in some cases right at the March 1 deadline." ( EPIC II, at p. 470, 80 Cal.Rptr.3d 28, 187 P.3d 888.)

Respondents' Actions for Administrative Mandamus

On March 31, 1999, EPIC filed an action for administrative mandamus seeking to set aside four agency decisions: (1) CDF's approval of the SYP, (2) DFG's issuance of the Incidental Take Permit, (3) DFG's approval of the Streambed Alteration Agreement, and (4) CDF's and DFG's findings and certification of the EIS/EIR prepared for the SYP, the Incidental Take Permit, and the Streambed Alteration Agreement. It also prayed for an injunction prohibiting the Agencies and Pacific Lumber from authorizing or engaging in any timber operations pursuant to any Timber Harvest Plan (THP) that relied on the SYP or the Streambed Alteration Agreement. Finally, EPICrequested reasonable attorney fees under section 1021.5 On that same date, the Steelworkers filed a petition for administrative mandamus challenging only the SYP on grounds similar to those EPIC raised. Like EPIC, the Steelworkers requested an award of attorney fees. Both EPIC and the Steelworkers later filed amended petitions that are the operative pleadings in this case.

On July 22, 2003, the trial court issued separate statements of decision ruling on the two petitions. It found both EPIC and the Steelworkers entitled to issuance of writs of mandate. The trial court rejected respondents' arguments that the Agencies' decisions were unsupported by substantial evidence, but ruled in respondents' favor on virtually every other issue raised. It concluded "that the SYP was deficient on a number of grounds, and that the Incidental Take Permit, Streambed Alteration Agreement and CEQA findings were all inadequate and represented a failure to comply with the law" on the Agencies' part. ( EPIC II, supra, 44 Cal.4th at pp. 477-478, 80 Cal.Rptr.3d 28, 187 P.3d 888.) The trial court later issued supplementalstatements of decision enjoining "timber operations conducted pursuant to any post-July 22[, 2003] THP which relied upon the SYP, [Incidental Take Permit] or Streambed Alteration Agreement."

The Attorney Fee Awards

After issuance of the statements of decision, EPIC and the Steelworkers moved for awards of attorney fees under section 1021.5. The Agencies opposed both motions. On September 24, 2004, the trial court issued similar orders in both cases, awarding attorney fees to EPIC ($4,279,915.74) and the Steelworkers ($1,787,806.21).

In its orders, the trial court found that EPIC and the Steelworkers had satisfied all of section 1021.5's conditions for entitlement to an award of fees.2 Specifically, it found respondents were successful parties and determined their actions had vindicated important rights affecting the public interest. It further found their actions had conferred a significant benefit on the general public and that private enforcement of the rights vindicated in the actions was necessary.

In calculating the amount of the awards, the trial court allowed respondents to recover fees for some of the time their counsel had spent in the administrative proceedings prior to the commencement of the litigation. In addition, in setting the lodestar amount, the court chose to use the prevailing hourly rates for attorneys in San Francisco, where respondents' counsel were located, rather than the rates prevailing in Humboldt County. After considering a number of factors, the court enhanced the fee award by applying a lodestar multiplier of 2.0.

The Appeals on the Merits

The trial court entered judgments and issued peremptory writs of mandate on October 31, 2003. The Agencies timely appealed to this court from both the underlying judgments and the related attorney fee orders. We consolidated the appeals for briefing, argument, and decision.

On December 12, 2005, we issued our opinion in Environmental Protection Information Center v. California...

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    ...limited success achieved by appellants." (Ibid. )Similarly, in Environmental Protection Information Center v. Department of Forestry and Fire Protection (2010) 190 Cal.App.4th 217, 222–224, 118 Cal.Rptr.3d 352 (EPIC III ), the court addressed attorney's fees after the plaintiff environmenta......

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