Center for Biological Diversity v. Cal. Fish & Game etc. 4/8/11 CA1/2

State: California

Court: California Eastern District Court

Docket No: A127555

Case Date: 05/05/2011

Plaintiff: Center for Biological Diversity

Defendant: Cal. Fish & Game etc. 4/8/11 CA1/2

Preview:Filed 4/8/11; pub. order 5/5/11 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff and Respondent, v. CALIFORNIA FISH AND GAME COMMISSION et al., Defendants and Appellants. Last year, this court determined that Code of Civil Procedure section 1021.5 (section 1021.5) would not support an award of attorney fees for a remand to an administrative agency to reconsider a previously decided matter, when the remand was for a perceived procedural defect and resulted in no demonstrable substantive change in the agencys position. We held that when the remand produces nothing more than an "augmented explanation" of the agencys decision, the plaintiff there did not meet the statutory requirements of being "a successful party" which had initiated litigation that resulted in enforcement of an important public right and a significant benefit to the public. We therefore reversed an award of $138,250. (Karuk Tribe of Northern California v. California Regional Water Quality Control Bd., North Coast Region (2010) 183 Cal.App.4th 330, 364-369 (Karuk).) Here, we are confronted with a situation where the administrative agency was ordered to reconsider a matter because it might possibly have applied an incorrect A127555 (San Francisco City & County Super. Ct. No. CPF-08-508759)

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standard of review. The agency reconsidered the matter and reiterated its earlier decision. Notwithstanding that the Agencys reiteration was not shown to be legally erroneous, the trial court, not having the benefit of our Karuk decision, made a fee award under section 1021.5 of almost $258,000. We independently review the record, conclude that Karuk governs, and reverse. BACKGROUND A concise statement of this dispute is set out in the pleading that started this litigation: "This lawsuit concerns the American pika, a remarkable mammal related to rabbits and hares that is at serious risk due to global warming. [The] Center for Biological Diversity (the ,,Center) challenges the refusal of [the] California Fish and Game Commission (the ,,Commission) to designate the pika as a candidate for possible protection under the California Endangered Species Act (,,CESA). (Fish & G. Code

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