Appellate Court Upholds Attorney Fees Award in CEQA Litigation Challenging State Water Board Adoption of Instream Flow Policy

October 31st, 2014

By: Amy Higuera



In an unpublished opinion in Living Rivers Council v. State Water Resources Control Board, 2014 Cal. App. Unpub. LEXIS 7321, the California Court of Appeal for the First District affirmed an award of attorney fees to Petitioners Living Rivers Council as the prevailing party in a CEQA lawsuit challenging an instream flow policy adopted by the State Water Resources Control Board.

The Water Board’s policy was intended to ensure that instream flows needed to protect fishery resources would be maintained.  On the merits, the trial court entered judgment requiring the Water Board to rescind its approvals until it evaluated potential mitigation measures to address impacts associated with the increase in groundwater use that could result from implementation of the policy.  Living Rivers thereafter moved for $602,211 in attorney fees and the court awarded $445,005.

On appeal of the fee award, the Water Board first contended that fees were improper because Living Rivers was not the successful party. According to the Water Board, the trial court, and not Living Rivers, originated the legal theories on which they prevailed.  The court emphasized that courts take a broad approach to prevailing party concept under California Civil Procedure Code section 1021.5. A party is successful and entitled to attorney fees if the party succeeds on any significant issue that achieves some benefit the party sought in bringing the suit. But for the filing of Living Rivers’ petition, the trial court would not have concluded the Water Board’s environmental review was flawed.  The court therefore held that the trial court did not abuse its discretion in finding Liver Rivers the prevailing party.

Next, the Water Board contended that the litigation did not confer a significant benefit on the public because it resulted in a limited remand based on technical violations for minor revisions to the environmental analysis.  The court rejected this argument, noting that, although not every statutory violation authorizes an attorney fee award, the benefit need not be tangible. According to the court, the trial court was in accord with precedent when it concluded that compelling a government agency to conduct further environmental review constituted a significant benefit. 

The court also rejected the Water Board’s argument that the litigation was not necessary to achieve the results obtained. It did not matter that Living Rivers did not raise the specific relief it ultimately obtained during the administrative process or during settlement negotiations. As the court explained, settlement negotiations are not a prerequisite to an award of attorney fees, so the substance of negotiations is not dispositive. Living Rivers made reasonable efforts to resolve the case before incurring substantial attorney fees and the court could not conclude the trial court lacked a reasonable basis for finding the litigation was necessary.  

Finally, the court concluded that the trial court’s use of a multiplier to increase the attorney fees was not an abuse of discretion. The trial court initially reduced the award to reflect Living Rivers’ success on only one of its three initial claims, but the trial court still adopted a multiplier of 1.5 due to the contingent nature of the case and ultimate resolution of the case on the merits. The court was not persuaded by the Water Board’s argument that taxpayers will ultimately bear the burden of this attorney fee award. Accordingly, the court held the amount of attorney fees was within the trial court’s discretion.