First District, Division 2 Uses Hunting and Boxing Analogies in Reversing Fee Award.
The next decision we survey involves a reversal driven by the same apppellate court’s earlier decision in Karuk Tribe of No. Calif. v. Calif. Regional Water Quality Control Bd., 183 Cal.App.4th 330, 364-369 (2010) [discussed in our March 30, 2010 post]. There, the First District, Division 2 reversed a $138,250 fee award under Code of Civil Procedure section 1021.5 (the private attorney general statute) where a remand to an administrative agency for reconsideration based upon a procedural defect did not make the plaintiff a 1021.5 “successful party.” (The procedural defect was to have the agency make further findings on the merits of a supremacy argument, a task that was completed and did not change the bottom line outcome.)
About a year later, in Center for Biological Diversity v. Cal. Fish and Game Comm’n, Case No. A127555 (1st Dist., Div. 2 Apr. 8, 2011) (unpublished), the same appellate court reversed a 1021.5 fee award of almost $258,800 (out of a request of almost $283,000) in favor of a plaintiff non-profit group that sought mandate to have the American pika,
a mammal related to rabbits and hares at risk due to global warming, included on a certain endangered species listing. A lower court granted mandate after the Commission made certain determinations, principally that the Center did not present sufficient evidence to justify the listing. The basis for mandate was the trial court’s perception that the agency may have used an incorrect standard of review in making its determination. On remand, the Commission reiterated its earlier decision after following the mandate directive, still producing the fee award at the lower court level appealed by the State Commission.
The reversal of the $258,800 fee award was dictated by the reasoning in Karuk. Although the procedural error was different in Center for Biological Diversity, what actually occurred was not materially different in nature. The real thrust of Center’s mandate petition was that it had presented enough evidence to have the pika listed as endangered, but it never got this “bigger game” result. Rather, it only achieved a limited “do-over” that did not result in a listing of the pika. The merits of the petition were avoided by both the Commission and trial court in their rulings. The Center only obtained a procedural clarification of why it lost, much like the petitioner in Karuk.
However, because this was only an interim battle, the appellate court did not rule out the possibility that Center might be entitled to fees at a later juncture. However, it colorfully did determine that “round one” did not result in substantial benefit to the people of California so as to countenance a 1021.5 fee award to Center at the moment.