Karuk Tribe of Northern California v. California Regional Water Quality Control Bd., North Coast Region, No. A124351.

CourtCalifornia Court of Appeals
Writing for the CourtRichman
Docket NumberNo. A124370.,No. A124351.,No. A124369.
PartiesKARUK TRIBE OF NORTHERN CALIFORNIA et al., Plaintiffs and Appellants, v. CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD, NORTH COAST REGION, Defendant and Respondent; PACIFICORP, Real Party in Interest and Respondent. KARUK TRIBE OF NORTHERN CALIFORNIA et al., Plaintiffs and Respondents, v. CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD, NORTH COAST REGION, Defendant and Appellant; PACIFICORP, Real Party in Interest and Respondent. KARUK TRIBE OF NORTHERN CALIFORNIA et al., Plaintiffs and Respondents, v. CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD, NORTH COAST REGION, Defendant and Respondent; PACIFICORP, Real Party in Interest and Appellant.
Decision Date30 March 2010
183 Cal.App.4th 330
KARUK TRIBE OF NORTHERN CALIFORNIA et al., Plaintiffs and Appellants,
v.
CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD, NORTH COAST REGION, Defendant and Respondent;
PACIFICORP, Real Party in Interest and Respondent.
KARUK TRIBE OF NORTHERN CALIFORNIA et al., Plaintiffs and Respondents,
v.
CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD, NORTH COAST REGION, Defendant and Appellant;
PACIFICORP, Real Party in Interest and Respondent.
KARUK TRIBE OF NORTHERN CALIFORNIA et al., Plaintiffs and Respondents,
v.
CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD, NORTH COAST REGION, Defendant and Respondent;
PACIFICORP, Real Party in Interest and Appellant.
No. A124351.
No. A124369.
No. A124370.
Court of Appeals of California, First District, Division Two.
March 30, 2010.

[183 Cal.App.4th 334]

Lozeau Drury, Michael R. Lozeau, Richard T. Drury and David A. Zizmor for Plaintiffs and Appellants and for Plaintiffs and Respondents.

Edmund G. Brown, Jr., Attorney General, Mary Hackenbracht, Assistant Attorney General, and John Davidson, Deputy Attorney General, for Defendant and Appellant and for Defendant and Respondent.

Latham & Watkins, Karl S. Lytz and Andrea H. Hogan for Real Party in Interest and Appellant and for Real Party in Interest and Respondent.

OPINION

RICHMAN, J.


These three appeals are the result of a rather unusual combination of administrative and judicial proceedings to determine whether state law regulating water quality can be applied to dams licensed by an agency of the federal government. A number of private parties asked the

183 Cal.App.4th 335

California Regional Water Quality Control Board, North Coast Region (Board), to enforce California's law governing waste discharge to several hydroelectric dam-reservoirs on the Klamath River. The Board—having twice attempted to assert state law on this very subject and having twice been decisively and unanimously rejected by the United States Supreme Court and the Ninth Circuit Court of Appeals—declined, on the ground that all power on the subject belonged to the federal government by virtue of the Federal Power Act (FPA; 16 U.S.C. § 791a et seq.). The trial court ultimately agreed with this view, refusing to issue a writ of mandate compelling the Board to enforce the state's law.

But before reaching that determination, and on its own initiative, the trial court sent the matter back to the Board so that it could reconsider its initial refusal in light of two decisions by the United States Supreme Court, which the court believed deserved "a more complete response" by the Board than appeared in its original resolution rejecting the private parties' request. The Board again concluded that it was powerless to act. This time the court agreed with the Board that federal law did indeed preempt state power. Nevertheless, after entering a final judgment denying plaintiffs any relief, the trial court awarded them $138,250 in attorney fees, half of which was to be paid by the Board and half by the dams' owner. The court determined that this award was proper under Code of Civil Procedure section 1021.5 (section 1021.5) because the litigation had resulted in the "important public benefit" of the Board making "a thoughtful and well-reasoned determination" concerning its lack of authority to enforce state law.

We affirm the judgment because the Board and the trial court correctly recognized that for at least half a century federal law has been supreme when it comes to the subject of regulating hydroelectric dams operating under a federal license.

We reverse the attorney fee order because three of the statutory prerequisites to an award under section 1021.5 are absent. First, the initiators of this litigation cannot qualify as the "successful" parties in that in no sense did they achieve their strategic objective. Second, this was not an action that "resulted in the enforcement of an important right affecting the public interest." And third, this is not a case where "a significant benefit ... has been conferred on the general public or a large class of persons." (§ 1021.5.) The best that can be said for the unorthodox proceedings that occurred here is that the Board, following what was in effect a remand from the trial court, augmented the reasoning behind its decision that it was without authority to grant the private parties' request that it enforce state law. Federal law was accepted as preeminent by the Board when this controversy began—and by the trial court when it ended. We conclude, as a matter of law, that it is not

183 Cal.App.4th 336

worth $138,250 to have a state agency polish up and augment the recitals and reasoning supporting a decision that was already more than legally sufficient.

BACKGROUND

The Klamath River is one of the most significant waterways in the far western continental United States. More than 260 miles long, it originates in Oregon but ends in California, when it joins the Pacific Ocean at Requa in Del Norte County. The river is also an important source of hydroelectric power. The Klamath Hydroelectric Project generates 161 megawatts of electricity. The project is comprised of five dams in both Oregon and California. The project is owned and operated by PacifiCorp, an Oregon corporation. On the California side, the Copco and Iron Gate reservoirs sit behind eponymous dams, both of which are located in Siskiyou County.1 At all relevant times, PacifiCorp's application for the project's relicensing was pending before the Federal Energy Regulatory Commission (FERC).2

In February 2007, a petition was filed with the Board by four plaintiffs: the Karuk Tribe of Northern California, Klamath Riverkeeper, Pacific Coast Federation of Fishermen's Associations, and Institute for Fisheries Research3 (hereinafter collectively, plaintiffs). The purpose of the petition was to get the

183 Cal.App.4th 337

Board to "order PacifiCorp to submit a Report of Waste Discharge (ROWD) for its discharges ... [of] pollutants from the Copco and Iron Gate Reservoirs, and issue waste discharge requirements (WDR) establishing appropriate restrictions and prohibitions safeguarding the beneficial uses of the waters of the Klamath River."

The Board conducted a public hearing on the petition, and denied it with resolution No. R1-2007-0028 in April 2007. The reason for the denial was that federal law preempted application of California law, specifically the Porter-Cologne Water Quality Control Act (Wat. Code, § 13000 et seq.; Porter-Cologne), which requires reports of waste discharge (ROWD's) and waste discharge requirements (WDR's). (Id., §§ 13260-13273.1.)4 Plaintiffs' request for review was denied by the State Water Resources Control Board in July 2007.

183 Cal.App.4th 338

In August 2007, plaintiffs filed a petition in superior court for either administrative or traditional mandate directing the Board to set aside the resolution and reconsider the issue in light of the trial court determining that there was no federal preemption. Plaintiffs alleged that the resolution was "invalid" because it was "based ... on the erroneous legal ground that [the Board's] authority to require reports of waste discharge or issue waste discharge requirements pursuant to the Porter-Cologne Act is preempted by the Federal Power Act." Plaintiffs also prayed for an award of attorney fees under section 1021.5.

The position of the Board and PacifiCorp was that federal preemption under the FPA was conclusively established by two decisions of the United States Supreme Court, First Iowa Coop. v. Power Comm'n., supra, 328 U.S. 152 (First Iowa), and California v. FERC, supra, 495 U.S. 490, and a subsequent decision by the Ninth Circuit, Sayles Hydro Assn. v. Maughan, supra, 985 F.2d 451 (Sayles Hydro).

Plaintiffs contended that these decisions were not dispositive because they did not address the authorization of enforcing state power laws such as Porter-Cologne enacted by Congress in the Federal Water Pollution Control Act, commonly known as the Clean Water Act. (33 U.S.C. § 1251 et seq.; see fn. 17 and accompanying text, post; see also Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. (2000) 528 U.S. 167, 174 [145 L.Ed.2d 610, 120 S.Ct. 693].)

Rather than issuing a flat order to the Board to enforce Porter-Cologne, as plaintiffs wanted, or denying the petition, as sought by the Board and PacifiCorp, the trial court apparently decided on a third option not suggested by any of the parties. Noting that all sides had cited a pair of United States Supreme Court decisions subsequent to California v. FERC that gave an expansive reading to state power under the Clean Water Act (S. D. Warren Co. v. Maine Bd. of Environmental Protection (2006) 547 U.S. 370, 386 [164 L.Ed.2d 625, 126 S.Ct. 1843] (S.D. Warren); PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology (1994) 511 U.S. 700 [128 L.Ed.2d 716, 114 S.Ct. 1900] (PUD No. 1)), the court decided to return the matter to the Board in order that it could "give a more complete response to [plaintiffs] as to the reasoning involved" in the Board's decision. Specifically, the court apparently thought the Board had not sufficiently considered the relationship of the Clean Water Act enunciated in these two decisions to federal authority under the FPA.

After reviewing the parties' trial briefs and hearing argument, the trial court issued what appears to have been an alternative writ of mandate directing the Board to revisit the issue. In its judgment of June 2008 directing issuance of

183 Cal.App.4th 339

the writ, the trial court stated that it was reserving "jurisdiction over [plaintiffs'] recovery of reasonable attorney fees and costs to be determined on noticed motion."5 In August, plaintiffs filed a motion requesting attorney fees of $218,206.98 under section 1021.5 from the Board and PacifiCorp, "jointly and severally."

The following month the Board responded to the writ with a 12-page ...

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46 practice notes
  • Caldera Pharms., Inc. v. Regents of the Univ. of Cal., No. A129727.
    • United States
    • California Court of Appeals
    • August 8, 2012
    ...federal law. (See Karuk Tribe of Northern California v. California Regional Water Quality Control Bd., North Coast Region (2010) 183 Cal.App.4th 330, 352, 108 Cal.Rptr.3d 40.) But the Federal Circuit is not just any circuit, at least when it comes to patent law. “Federal Circuit law governs......
  • Marin Ass'n of Pub. Emps. v. Marin Cnty. Employees' Ret. Ass'n, A139610
    • United States
    • California Court of Appeals
    • August 17, 2016
    ...statutory command” (Karuk Tribe of Northern California v. California Regional Water Quality Control Bd., North Coast Region (2010) 183 Cal.App.4th 330, 363, fn. 25 [108 Cal.Rptr.3d 40] ), and because “the determination of what items were to be included in ‘compensation earnable’ ... is not ......
  • Caldera Pharms., Inc. v. Regents of the Univ. of California, No. A129727.
    • United States
    • California Court of Appeals
    • April 24, 2012
    ...federal law. (See Karuk Tribe of Northern California v. California Regional Water Quality Control Bd., North Coast Region (2010) 183 Cal.App.4th 330, 352, 108 Cal.Rptr.3d 40.) But the Federal Circuit is not just any circuit, at least when it comes to patent law. “Federal Circuit law governs......
  • Cnty. of Butte v. Dep't of Water Res., C071785
    • United States
    • California Court of Appeals
    • September 5, 2019
    ...supra , 985 F.2d 451 ; Karuk Tribe of Northern California v. California Regional Water Quality Control Bd., North Coast Region (2010) 183 Cal.App.4th 330, 108 Cal.Rptr.3d 40.)The lead case is First Iowa. A state license issued for a hydroelectric dam bypassed the federal licensing system an......
  • Request a trial to view additional results
44 cases
  • Caldera Pharms., Inc. v. Regents of the Univ. of Cal., No. A129727.
    • United States
    • California Court of Appeals
    • August 8, 2012
    ...federal law. (See Karuk Tribe of Northern California v. California Regional Water Quality Control Bd., North Coast Region (2010) 183 Cal.App.4th 330, 352, 108 Cal.Rptr.3d 40.) But the Federal Circuit is not just any circuit, at least when it comes to patent law. “Federal Circuit law governs......
  • Marin Ass'n of Pub. Emps. v. Marin Cnty. Employees' Ret. Ass'n, A139610
    • United States
    • California Court of Appeals
    • August 17, 2016
    ...statutory command” (Karuk Tribe of Northern California v. California Regional Water Quality Control Bd., North Coast Region (2010) 183 Cal.App.4th 330, 363, fn. 25 [108 Cal.Rptr.3d 40] ), and because “the determination of what items were to be included in ‘compensation earnable’ ... is not ......
  • Caldera Pharms., Inc. v. Regents of the Univ. of California, No. A129727.
    • United States
    • California Court of Appeals
    • April 24, 2012
    ...federal law. (See Karuk Tribe of Northern California v. California Regional Water Quality Control Bd., North Coast Region (2010) 183 Cal.App.4th 330, 352, 108 Cal.Rptr.3d 40.) But the Federal Circuit is not just any circuit, at least when it comes to patent law. “Federal Circuit law governs......
  • Cnty. of Butte v. Dep't of Water Res., C071785
    • United States
    • California Court of Appeals
    • September 5, 2019
    ...supra , 985 F.2d 451 ; Karuk Tribe of Northern California v. California Regional Water Quality Control Bd., North Coast Region (2010) 183 Cal.App.4th 330, 108 Cal.Rptr.3d 40.)The lead case is First Iowa. A state license issued for a hydroelectric dam bypassed the federal licensing system an......
  • Request a trial to view additional results

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