Superior Court Awards Over $600,000 in Costs to Agency for Preparing an Administrative Record

July 16th, 2013

By: Thomas Law Group



In June 2012, petitioners, three local government agencies (Counties of Butte and Plumas, and Plumas County Flood Control and Water Conservation District), appealed a decision by the Yolo County Superior Court in County of Butte et al. v. Department of Water Resources et al. (2012, No. CV09-1258). The Superior Court had denied their petitions for writ of mandate to set aside an EIR prepared by the Department of Water Resources (DWR) for the relicensing of the Oroville Facilities, a component of the State Water Project. The agencies also appealed a judgment by the court awarding DWR $675,087 in costs incurred to prepare the administrative record required to proceed with the suit.

In awarding the costs, the court explained: “The questions here are whether the record preparation complied with the statute and whether the cost to prepare the record was reasonable and necessary.” The court first noted that CEQA requires broad inclusion of materials related to the project proceedings. Virtually all of the documents DWR included in the 327,261-page record fell into one of the mandatory categories set forth in Public Resources Code section 21167.6(e).

The only remaining question was whether DWR’s costs were necessary and reasonable. DWR provided extensive documentation on the staff time involved in obtaining, reviewing, organizing, and indexing the record, along with the hourly wage paid to the employees involved in record preparation. DWR appropriately outsourced a component of the record preparation to a consultant that had been involved in the original project and was therefore best suited to prepare the portion of the record related to its work on the project. The cost per page was calculated as $2.06. Based on the complexity and need for expert involvement in the preparation of this massive record, the court found DWR’s costs to be necessary and reasonable.

Lastly, the court noted a number of actions petitioners could have taken to limit record preparation costs, including preparing the record themselves or stipulating to the exclusion of any materials they deemed unnecessary to the prosecution of their case. Instead, petitioners failed to comment on the cost until receiving the final bill, despite multiple updates and solicitations for input by DWR during the record preparation process.

The case, County of Butte et al. v. Department of Water Resources et al. (C071785, app. pending), is currently pending before the Court of Appeal, Third District, with appellants’ reply brief due on July 30, 2013.