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April 6, 2023  |  Written by Alyson E. Ackerman, Ellen M. Moskal, Theresa C. Barfield

Sacramento-San Joaquin River Delta Water Districts to Receive Appellate Attorneys’ Fees as Private Attorneys’ General after Successfully Prosecuting the State Water Resources Control Board’s Curtailment Overreach in 2015

On April 4, 2023, the Santa Clara County Superior Court ordered the State Water Resources Control Board (State Board) to reimburse a group of California irrigation districts and water agencies (Districts) for substantial appellate attorneys’ fees incurred defending California water rights holders as private attorneys’ general against the State Board’s illegal curtailment actions in 2015 (Appellate Attorneys’ Fees Order). The Appellate Attorneys’ Fees Order is the most recent chapter in the chronicle of the California Curtailment Cases, initially filed seven years ago and coordinated for trial in the Santa Clara County Superior Court. The Districts slated to recoup attorneys’ fees for successfully defeating challenges by the State Board on appeal include Byron-Bethany Irrigation District, Banta Carbona Irrigation District, Central Delta Water Agency, Patterson Irrigation District, San Joaquin Tributaries Authority, South Delta Water Agency, and South San Joaquin Irrigation District. Although the final calculation of appellate attorneys’ fees is pending, the final award is estimated to be in excess of $735,000.

The Litigation

In 2015, the State Board sent notices to thousands of water rights holders, demanding – without hearing or notice – that they immediately stop diverting water due to asserted water unavailability and that any diversions made after receipt of the notice constituted a trespass subject to substantial monetary penalty. The Districts noted above, along with Oakdale Irrigation District, filed lawsuits against the State Board, alleging these curtailment actions were illegal because they violated due process and exceeded the authority the Legislature provides to the State Board under the Water Code (Litigation). In 2018, Santa Clara County Superior Court Judge Walsh (ret.) agreed with the Districts, ruling in their favor on both claims. Read our alert on the Litigation here.

Merits Appeal

The State Board appealed the Litigation Court’s ruling regarding the scope of its authority under the Water Code to the Sixth District Court of Appeal (Merits Appeal). The Sixth District Court of Appeal (Sixth DCA) affirmed the lower court’s ruling, holding that the State Board’s 2015 curtailment actions exceeded its statutory authority. Read our alert regarding the Merits Appeal here.

Attorneys’ Fees Appeal

In a separate, but related appeal, the Districts appealed the Litigation Court’s decision regarding the Districts’ entitlement to recover their attorneys’ fees incurred in the Litigation (Fees Appeal), under Code of Civil Procedure section 1021.5 (Section 1021.5). Section 1021.5 allows a court to award attorneys’ fees to a successful party in an action resulting in the “enforcement of an important right affecting the public interest” where specific and rigorous criteria are met. Again, the Sixth DCA ruled in favor of the Districts, determining that their pursuit of the Litigation met the exacting standards to recover attorneys’ fees under Section 1021.5. Read our alert regarding the Fees’ Appeal here. This Sixth DCA decision remands the case back to the Litigation Court to calculate the amounts the Districts are entitled to recover for the court litigation. The amounts recovered by the Districts for the court litigation will be in addition to the final appellate attorneys’ fees award.

Appellate Attorneys’ Fees Order

Following the Merits and Fees Appeals, the Districts filed post-appeal motions in the Litigation Court to recover their attorneys’ fees incurred in the Merits and Fees Appeals combined. The State Board opposed the Districts’ motion arguing, among other things, that the Sixth DCA’s opinion was “ambiguous.”

The Honorable Judge Kulkarni ruled against the State Board, ordering the Board to pay the Districts all of their attorneys’ fees incurred in the Merits Appeal, and 70 percent of their attorneys’ fees incurred in the Fees Appeal, stating:

The Board contends . . . the appellate court did not specify whether it was discussing the due process or the jurisdiction victory in trial court. However, in the Court’s view, this supposed ambiguity has no effect on the Court of Appeal’s clear statement above. Moreover, the Court of Appeal determined that the Districts satisfied the elements of Section 1021.5, and the Court should follow that determination.

This decision comports with the Sixth DCA’s opinion in the Fees Appeal and well-settled case law regarding recovery of attorneys’ fees under the private attorney general doctrine (i.e., Section 1021.5) on both merits and fee judgments.

Michael Vergara, Theresa Barfield, Alyson Ackerman, Jared Mueller, and Ellen Moskal of Somach Simmons & Dunn represent Byron-Bethany Irrigation District in the California Curtailment Cases. Jennifer Spaletta, Dante Nomellini Sr., Dante Nomellini Jr., and Daniel McDaniel represent Central Delta Water Agency. Jeanne Zolezzi and Lilliana Freeman represent Banta Carbona Irrigation District and Patterson Irrigation District. Valerie Kincaid and Timothy Wasiewski represent San Joaquin Tributaries Authority and South San Joaquin Irrigation District. S. Dean Ruiz and John Herrick represent South Delta Water Agency. Tim O’Laughlin represents Oakdale Irrigation District.

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