Rock Creek Ltd. Partnership v. State Water Resources Control Bd.

• Decision Date: 05 August 1992
• Docket Number: No. 91-15538,91-15538
• Citation: 972 F.2d 274
• Parties: 23 Envtl. L. Rep. 20,052 ROCK CREEK LIMITED PARTNERSHIP, a California limited partnership, Plaintiff-Appellant, v. STATE WATER RESOURCES CONTROL BOARD, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 274

972 F.2d 274

23 Envtl. L. Rep. 20,052

ROCK CREEK LIMITED PARTNERSHIP, a California limited partnership, Plaintiff-Appellant, v. STATE WATER RESOURCES CONTROL BOARD, et al., Defendants-Appellees.

No. 91-15538.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 1992.

Decided Aug. 5, 1992.

Louis L. Touton, Jones, Day, Reavis & Pogue, Los Angeles, Cal., for plaintiff-appellant.

Clifford Lee, Deputy Atty. Gen., San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of California.

Before: FLETCHER, POOLE, and NELSON, Circuit Judges.

T.G. NELSON, Circuit Judge:

The California Water Resources Control Board (Board) imposed minimum flow conditions on a hydroelectric project inconsistent with those contained in the project license issued by the Federal Energy Regulatory Commission (FERC). The position of the Board was rejected by this court in affirming a FERC declaratory order in State of California, ex rel. State Water Resources Board v. FERC, 877 F.2d 743 (9th Cir.1989), and by the United States Supreme Court in California v. FERC, 495 U.S. 490, 110 S.Ct. 2024, 109 L.Ed.2d 474 (1990). The project sponsor here appeals the district court's denial of an award of attorneys fees in its 42 U.S.C. § 1983 action filed shortly after the Board issued its order. We vacate the order and remand.

FACTS AND PROCEEDINGS BELOW

Rock Creek Limited Partnership (Rock Creek) is the project sponsor of a small hydroelectric project on Rock Creek, which is a tributary of the South Fork of the American River near Placerville, California. In April, 1983, Rock Creek received a FERC license, which established minimum flows past the project diversion of eleven cubic feet per second (cfs) May to September, and fifteen cfs October through April. The license permitted FERC to change the minimum flow following completion of long-term studies the licensee was to complete in conjunction with the California Department of Fish and Game.

In February, 1984, the Board issued a permit for the project with interim flows duplicating those of FERC. The permit reserved Board jurisdiction to set permanent flow rates after completion of the long-term studies. In 1986, the Board held After the Board's rejection of Rock Creek's argument, Rock Creek filed a petition for declaratory order with FERC, seeking an order declaring that FERC's authority to set flow conditions at the project preempted the authority of the Board. In March, 1987, FERC issued an order as requested by Rock Creek, holding that the Board "has no authority to set minimum flows for the project that conflict with those in the license...." 38 FERC p 61,244 (1987).

hearings concerning the possible imposition of higher minimum flows, and rejected Rock Creek's objections based on its FERC license.

A few days after Rock Creek's receipt of the FERC order, the Board issued its Order No. WR 87-2, which set permanent flows of sixty cfs from March through June and thirty cfs July through February. The State of California then intervened in the FERC proceedings on behalf of the Board, challenging FERC's declaratory order. The result was a final FERC order rejecting California's position, which was affirmed on appeal to this court in State of California ex rel. Water Resources Board v. FERC, 877 F.2d at 750. The Supreme Court of the United States granted certiorari and affirmed in California v. FERC, 495 U.S. at 496, 110 S.Ct. at 2028.

In April, 1987, shortly after the Board issued Order No. 87-2, and contemporaneously with California's intervention at FERC, Rock Creek filed this action in the federal district court under 42 U.S.C. § 1983. Rock Creek sought to enjoin the Board from enforcing Order No. 87-2 and from regulating or asserting jurisdiction to regulate project operations or from interfering with the project's use of water rights for the project. The complaint included a request for attorneys fees pursuant to 42 U.S.C. § 1988. At the same time it filed the complaint, Rock Creek asked for a temporary restraining order and preliminary injunction against enforcement of Order No. 87-2.

The parties stipulated, and the district court ordered, that upon withdrawal of Rock Creek's motion for a temporary restraining order, the Board would refrain from enforcing Order No. 87-2, pending a hearing on the motion for preliminary injunction. Following hearing on that motion in May, 1987, the district court ruled that low flow conditions due to drought, which precluded project operation no matter what the minimum flow requirement was, rendered a preliminary injunction unnecessary. The court urged the parties to schedule a summary judgment hearing on the merits for September, 1987, in view of the potential for sufficient rain to permit operation of the project. Cross-motions for summary judgment were briefed and argued on September 18, 1987. As part of the summary judgment proceedings, the parties stipulated that Order No. 87-2 was in effect and subject to enforcement.

The district court did not rule on the motions for summary judgment, but at a status conference in April, 1988, asked whether the Board would consider waiving enforcement actions against Rock Creek for failure to comply with the state mandated flows. Counsel for the Board stated in a letter to the district court:

1. For the duration of the appeal in the State of California v. Federal Energy Regulatory Commission, 9th Circuit Docket No. 87-7538 action, the State Board agrees not to exercise its enforcement powers ... against the [project] for any violation of the bypass flow set forth in the State Board's water right Order No. 87-2 for the protection of the fishery resources of Rock Creek.

2. The State Board agrees to the waiver of enforcement authority as described in paragraph 1 solely for the purpose of obtaining a stay of the trial court proceedings in this action and, thus, encouraging prompt resolution of the ... 9th Circuit action.

On April 22, 1988, the district court entered an order which noted that the appellate proceeding in the Ninth Circuit involved the same preemption issue raised by the action then pending in the district court, vacated the submission of the cross-motions for summary judgment and all Following the 1989 decision of this court, the parties stipulated to continuation of the stay pending a decision on California's Petition for Certiorari in the United States Supreme Court. Following the Supreme Court decision, the Board issued Order No. WR 90-10 which amended the project's water appropriation permits to conform with the bypass levels finally adopted by FERC.

stayed proceedings pending resolution of the appeal.

In September, 1990, the district court granted the Board's motion to dismiss the case, but retained jurisdiction to hear Rock Creek's motion for an award of attorneys fees for its efforts in the FERC proceeding and in the district court. After briefing, the motion was heard in January, 1991, and the district court held that Rock Creek was not a prevailing party within the meaning of 42 U.S.C. § 1988.

Although [Rock Creek] has received the relief it sought in this case, there is no causal link between this litigation and the relief. [Rock Creek's] goal when commencing this action was the removal of the threat posed to [Rock Creek's] federal rights by the California State Water Resources Control Board's order. This goal was achieved when the Board withdrew its order pursuant to the Supreme Court's ruling in California v. FERC, U.S. , 110 S.Ct. 2024, 109 L.Ed.2d 474 (1990). This Court finds that the litigation in this Court has no causal relationship to the court's decision in California v. FERC, or the invalidation of the Board's order.

Rock Creek perfected a timely appeal to this court, contending that it was, in fact, a prevailing party and entitled to attorneys fees.

DISCUSSION

Awards of attorneys fees pursuant to 42 U.S.C. § 1988 are reviewed for abuse of discretion, but any elements of legal analysis and statutory interpretation which figure in the district court's decision, and the legal standards applied by the district court, are subject to de novo review. Cabrales v. County of Los Angeles, 935 F.2d 1050, 1052 (9th Cir.1991); Carson-Truckee Water Conservancy Dist. v. Secretary of the Interior, 748 F.2d 523, 524 (9th Cir.1984), cert. denied, 471 U.S. 1065, 105 S.Ct. 2139, 85 L.Ed.2d 497 (1985). A final determination favoring the plaintiff is not a precondition for a fee award under Section 1988. Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2574, 65 L.Ed.2d 653 (1980). However, the party seeking fees must establish that the party's lawsuit acted as a catalyst which prompted defendants to take action. Am. Constitutional Party v. Munro, 650 F.2d 184, 187 (9th Cir.1981); Braafladt v. Bd. of Governors, 778 F.2d 1442, 1444 (9th Cir.1985). The moving party has the burden of establishing "some sort of clear, causal relationship between the litigation brought and the practical outcome realized." Rutherford v. Pitchess, 713 F.2d 1416, 1419 (9th Cir.1983) (quoting Am. Constitutional Party, 650 F.2d at 188) (emphasis in original).

In Sablan v. Department of Finance, 856 F.2d 1317 (9th Cir.1988), we established a two-part test:

First, we must determine what Sablan sought to accomplish in bringing his lawsuit and then determine whether the lawsuit was causally linked to the relief actually obtained. Second, there must be a legal basis for the Sablan's claim--it must not be "frivolous, unreasonable, or groundless."

856 F.2d at 1325 (internal citations omitted). As to the causation prong of the test, we said it was "nothing more than inquiry into factual causation." Id.

The Rock Creek attorneys fees claim has two parts: that relating to the activities before FERC, including the subsequent appeals, and that relating to efforts before the district court in this action. We will address the two parts...