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Karuk Tribe of Northern California v. California Regional Water Quality Control Board

March 30, 2010


(Sonoma County Super. Ct. No. SCV-241368). Trial Judge: Hon. Elaine Rushing.

The opinion of the court was delivered by: Richman, J.


These three appeals are the result of a rather unusual combination of administrative and judicial proceedings to determine whether state law regulating water quality can be applied to dams licensed by an agency of the federal government. A number of private parties asked the California Regional Water Quality Control Board, North Coast Region (Board) to enforce California's law governing waste discharge to several hydroelectric dam-reservoirs on the Klamath River. The Board-having twice attempted to assert state law on this very subject and having twice been decisively and unanimously rejected by the United States Supreme Court and the Ninth Circuit Court of Appeals-declined, on the ground that all power on the subject belonged to the federal government by virtue of the Federal Power Act (FPA). The trial court ultimately agreed with this view, refusing to issue a writ of mandate compelling the Board to enforce the state's law.

But before reaching that determination, and on its own initiative, the trial court sent the matter back to the Board so that it could reconsider its initial refusal in light of two decisions by the United States Supreme Court, which the court believed deserved " a more complete response" by the Board than appeared in its original resolution rejecting the private parties' request. The Board again concluded that it was powerless to act. This time the court agreed with the Board that federal law did indeed preempt state power. Nevertheless, after entering a final judgment denying the plaintiffs any relief, the trial court awarded them $138,000 in attorney fees, half of which was to be paid by the Board and half by the dams' owner. The court determined that this award was proper under Code of Civil Procedure section 1021.5 (section 1021.5) because the litigation had resulted in the "important public benefit" of the Board making "a thoughtful and well-reasoned determination" concerning its lack of authority to enforce state law.

We affirm the judgment because the Board and the trial court correctly recognized that for at least half a century federal law has been supreme when it comes to the subject of regulating hydroelectric dams operating under a federal license.

We reverse the attorney fee order because three of the statutory prerequisites to an award under section 1021.5 are absent. First, the initiators of this litigation cannot qualify as the "successful" parties in that in no sense did they achieve their strategic objective. Second, this was not an action that "resulted in the enforcement of an important right affecting the public interest." And third, this is not a case where "a significant benefit . . . has been conferred on the general public or a large class of persons." (Section 1021.5.) The best that can be said for the unorthodox proceedings that occurred here is that the Board, following what was in effect was a remand from the trial court, augmented the reasoning behind its decision that it was without authority to grant the private parties' request that it enforce state law. Federal law was accepted as preeminent by the Board when this controversy began-and by the trial court when it ended. We conclude, as a matter of law, that it is not worth $138,000 to have a state agency polish up and augment the recitals and reasoning supporting a decision that was already more than legally sufficient.


The Klamath River is one of the most significant waterways in the far western continental Unites States. More than 260 miles long, it originates in Oregon but ends in California, when it joins the Pacific Ocean at Requa in Del Norte County. The river is also an important source of hydroelectric power. The Klamath Hydroelectric Project generates 161 megawatts of electricity. The project is comprised of five dams in both Oregon and California. The project is owned and operated by PacifiCorp, an Oregon corporation. On the California side, the Copco and Iron Gate reservoirs sit behind eponymous dams, both of which are located in Siskiyou County.*fn1 At all relevant times, PacifiCorp's application for the project's relicensing was pending before the Federal Energy Regulatory Commission (FERC).*fn2

In February 2007, a petition was filed with the Board by four plaintiffs: the Karuk Tribe of Northern California, Klamath Riverkeeper, Pacific Coast Federation of Fishermen's Associations, and Institute for Fisheries Research*fn3 (hereinafter collectively, plaintiffs). The purpose of the petition was to get the Board to "order PacifiCorp to submit a Report of Waste Discharge (ROWD) for its discharges . . . [of] pollutants from the Copco and Iron Gate Reservoirs, and issue waste discharge requirements (WDR) establishing appropriate restrictions and prohibitions safeguarding the beneficial uses of the waters of the Klamath River."

The Board conducted a public hearing on the petition, and denied it with Resolution No. R1-2007-0028 in April 2007. The reason for the denial was that federal law preempted application of California law, specifically the Porter-Cologne Water Quality Control Act (Water Code, § 13000 et seq.), which requires ROWDs and WDRs. (Id., §§ 13260-13273.1.)*fn4 Plaintiffs' request for review was denied by the California State Water Resources Control Board in July 2007.

In August 2007, plaintiffs filed a petition in superior court for either administrative or traditional mandate directing the Board to set aside the resolution and reconsider the issue in light of the trial court determining that there was no federal preemption. Plaintiffs alleged that the resolution was "invalid" because it was "based . . . on the erroneous legal ground that [the Board's] authority to require reports of waste discharge or issue waste discharge requirements pursuant to the Porter-Cologne Act is preempted by the Federal Power Act." Plaintiffs also prayed for an award of attorney fees under section 1021.5.

The position of the Board and PacifiCorp was that federal preemption under the FPA was conclusively established by two decisions of the United States Supreme Court, First Iowa Coop. v. Power Comm'n. (1946) 328 U.S. 152 (First Iowa), and California v. FERC (1990) 495 U.S. 490, and a subsequent decision by the Ninth Circuit, Sayles Hydro Associates v. Maughan (9th Cir. 1993) 985 F.2d 451 (Sayles Hydro).

Plaintiffs contended that these decisions were not dispositive because they did not address the authorization of enforcing state power laws such as Porter-Cologne enacted by Congress in the Water Pollution Control Act, commonly known as the Clean Water Act. (33 U.S.C. § 1251 et seq.; see fn. 17 and accompanying text, post; see also Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. (2000) 528 U.S. 167, 174.)

Rather than issuing a flat order to the Board to enforce Porter-Cologne, as plaintiffs wanted, or denying the petition, as sought by the Board and PacifiCorp, the trial court apparently decided on a third option not suggested by any of the parties. Noting that that all sides had cited a pair of Supreme Court decisions subsequent to California v. FERC that gave an expansive reading to state power under the Clean Water Act (S.D. Warren Co. v. Maine Bd. of Environmental Protection (2006) 547 U.S. 370, 386 (S.D. Warren); PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology (1994) 511 U.S. 700 (PUD No. 1)), the court decided to return the matter to the Board in order that it could "give a more complete response to [plaintiffs] as to the reasoning involved" in the Board's decision. Specifically, the court apparently thought the Board had not sufficiently considered the relationship of the Clean Water Act enunciated in these two decisions to federal authority under the FPA.

After reviewing the parties' trial briefs and hearing argument, the trial court issued what appears to have been an alternative writ of mandate directing the Board to revisit the issue. In its judgment of June 2008 directing issuance of the writ, the trial court stated that it was reserving "jurisdiction over [plaintiffs'] recovery of reasonable attorney fees and costs to be determined on noticed motion."*fn5 In August, plaintiffs filed a motion requesting attorney fees of $218,206.98 under section 1021.5 from the Board and PacifiCorp, "jointly and severally."

The following month the Board responded to the writ with a 12-page "Supplemental Analysis To Accompany Resolution No. R1-2007-0028" that the court treated as a return that "complies with this court's Writ of Mandate." The gist of the analysis was that, under the FPA and the Clean Water Act as construed in S.D. Warren and PUD No. 1, the opportunity of a state to implement its water quality law was substantial but only in the context of federal licensing procedures.*fn6

Plaintiffs attacked the Board's supplemental analysis as mere "wordsmithing" of a single part of Resolution No. R1-2007-0028, not the complete de novo reconsideration ordered by the court, and submitted that the Board was simply reiterating its position that it was powerless to act. Plaintiffs requested the court to amend its judgment and vacate the Board's supplemental analysis in addition to the original resolution because both were "based on the . . . Board's incorrect conclusion that the FPA preempts the field of water quality regulation." At a brief hearing conducted on November 12, 2008, plaintiffs argued that the Board's latest action "teed up [the] challenge" to the trial court " so . . . we can get Your Honor to reopen the decision . . . via the return to decide the merits" of the preemption issue.

On December 8, 2008, the court entered a "Judgment Discharging Petition For Writ Of Mandate" in which it concluded: "In light of all the relevant law, including the Clean Water Act, the two recent United States Supreme Court cases upholding state water quality certification requirements for hydroelectric projects under Clean Water Act § 401 [i.e., PUD No. 1 and S.D. Warren], and the cases stating that the Federal Power Act preempts state water quality permitting requirements, Respondent [Board] was correct to determine that PacifiCorp is not required to submit a Report of Waste Discharge and/or issue Waste Discharge Requirements for the Copco and Iron Gate facilities." Plaintiffs appealed from the judgment (A124351).

Thereafter the court granted plaintiffs $138,250 in attorney fees under section 1021.5, with the Board and PacifiCorp each liable for half of this sum. The court concluded that the litigation had resulted in an important public benefit, in the form of "a well-reasoned determination" by the Board "as to whether California or federal law should apply to FERC projects with regard to Reports of Waste Discharge and Water Discharge Requirements." The Board and PacifiCorp commenced separate appeals from the fee order (A124369, A124370). We ordered the three appeals consolidated.*fn7


The Board Correctly Determined That It Had No Authority To Grant The Relief Sought By Plaintiffs

In Calif. Oregon Power Co v. Superior Court (1955) 45 Cal.2d 858 (Calif. Oregon Power), the State of California instituted a nuisance action against the existing Copco facilities and the planned Iron Gate facility, then owned by PacifiCorp's predecessor in interest. (See fn. 1, ante.) The Supreme Court agreed with the trial court that the action did not have to be dismissed because, among other reasons, exclusive jurisdiction over the dams and their operation was vested in federal hands, specifically the Federal Power Commission (FPC) administering the FPA.*fn8 After quoting extensively from First Iowa, supra, 328 U.S. 152 and other federal decisions, our Supreme Court held:

"Implicit in the foregoing opinions is the concept that the field is not exclusively occupied for all purposes by the Federal Power Act or the federal commission [i.e., the FPC]. There is a duality of control the extent of which is not specified. While it is clear the state laws may not `veto' projects licensed by the federal commission nor may the giving of a license be made contingent on the state's consent, that is, the state may not block the project completely, there is nothing therein indicating that regulatory state laws which do not achieve that end are not proper. There is nothing said about nuisances or danger to the public in the Federal Power Act . . . . Here we are concerned with the abatement of a nuisance, in a sense a local police measure. The federal commission has not purported to adjudicate that question or do anything about it except to have [the power company] apply for a license for its dams, Copco 1 and 2, which for many years it has maintained without any effort to obtain a license and the [FPC] has done nothing in regard to the problem . . . . The state has not even asked in the action that defendant cease operating its dams; it asks that they be so operated as to not create the danger to the public and the destruction of the fish." (Calif. Oregon Power, supra, 45 Cal.2d 858, 868-869.)

Plaintiffs stake everything on Calif. Oregon Power, which they deem "binding." To them, the Board's refusal to follow this decision amounts to an "abdication of its authority under State law," specifically, the Porter-Cologne Act, which "provide[s] a mechanism for the State of California to abate nuisances resulting from water pollution" and thereby "regulate water quality problems." As plaintiffs see it, according to established preemption principles and Calif. Oregon Power, the Board, and the trial court, failed to recognize that "Congress did not evince an intention, either expressly or implicitly, to occupy the field of water quality regulation pursuant to the FPA. . . . Congress did intend to comprehensively address water quality regulation in enacting the Clean Water Act. Although the FPA preempts some of the State's authority to regulate water flow through a federally-licensed hydropower facility, such preemption does not extend to the State's authority to regulate pollution releases to California's rivers." For plaintiffs, "There is no principled distinction between the California Supreme Court's [Calif. Oregon Power] ruling allowing a public nuisance action to proceed in the face of the FPA and the question before this Court as to whether the Regional Board should be allowed to proceed pursuant to its authority and duty to implement Porter-Cologne."

Plaintiffs' emphasis upon "water flow" and "pollution releases" is an attempt to differentiate their suit from, and break free from the gravitational pull of, two federal decisions, the one by the United States Supreme Court in California v. FERC, supra, 495 U.S. 490, and the one by the Ninth Circuit Court of Appeals in Sayles Hydro, supra, 985 F.2d 451. This approach does credit to their counsel's ingenuity, but it is ultimately unavailing. Understanding why requires some history.

"It is no longer open to question that the Federal Government under the Commerce Clause . . . has dominion, to the exclusion of the States, over navigable waters of the United States. [Citing, inter alia, First Iowa, supra, 328 U.S. 152.] Congress has elected to exercise this power under the detailed and comprehensive plan for the development of the Nation's water resources, which it prescribed in the Federal Power Act, to be administered by the Federal Power Commission. (First Iowa Hydro-Electric Cooperative v. Federal Power Comm'n . . . .)" (City of Tacoma v. Taxpayers (1958) 357 U.S. 320, 334, fn. omitted.) First Iowa is central to understanding the scope of federal preemption.

There, the FPC was willing to approve a pending application for development of a hydroelectric project on the Cedar River, but the State of Iowa intervened to demand that the applicant first secure a state permit. The United States Supreme Court held that the state demand was preempted by the FPA: "To require the [cooperative] to secure the actual grant to it of a state permit . . . as a condition precedent to securing a federal license for the same project would vest in . . . Iowa a veto power over the federal project. Such a veto power easily could destroy the effectiveness of the Federal Act. It would subordinate to the control of the State the `comprehensive' planning which the Act provides shall depend upon the judgment of the Federal Power Commission." (First Iowa, supra, 328 U.S. 152, 164.) "A dual final authority, with a duplicate system of state permits and federal licenses required for each project, would be unworkable. `Compliance with the requirements' of such a duplicated system of licensing would be nearly as bad. Conformity to both standards would be impossible in some cases and probably difficult in most of them." (Id. at p. 168.)

The court then considered the scope of section 27 of the FPC, which then and now provides: "Nothing contained in the chapter shall be construed as affecting or intending to affect or in any way to interfere with the laws of the respective States relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein." (16 U.S.C. § 821.) The court gave this provision a narrow construction: "The effect of § 27, in protecting state laws from supersedure, is limited to laws as to the control, appropriation, use or distribution of water in irrigation or for municipal or other uses of the same nature. It therefore has primary, if not exclusive reference to such proprietary rights. The phrase `any vested right acquired therein' further emphasizes the application of the section to property rights. There is nothing in the paragraph to suggest a broader scope . . . ." (First Iowa, supra, 328 U.S. 152, 175-176.)

After describing the FPA as "a major undertaking" intended "to secure a comprehensive development of natural resources," the court concluded: "The detailed provisions of the Act providing for the federal plan of regulation leave no room or need for conflicting state controls." (First Iowa, supra, 328 U.S. 152, 180-181, italics added.)*fn9

Notwithstanding this clear language, some California commentators were reluctant to accept it at face value, while others were openly hostile to the decision. (See Attwater & Markle, Overview of Cal. Water Rights and Water Quality Law (1997-1988) 19 Pac. L.J. 957, 990-991 [First Iowa "has been perceived as holding that the licensing of a hydroelectric project by the FERC operates to preempt state water rights laws, and that a FERC licensee may divert and use water for hydroelectric purposes without meeting state requirements"]; Walston, State Regulation of Federally-Licensed Hydropower Projects: The Conflict between California[ v. FERC] and First Iowa (1990) 43 Okla. L.Rev. 87, 88, 95 ["First Iowa's view that the FPA preempts state water laws is no longer persuasive" and "is of doubtful validity"]*fn10 ; Comment, Small Hydroelectric Projects and State Water Rights (1987) 18 Pac. L.J. 1225, 1236-1237 ["the interpretation of section 27 of the FPA in First Iowa is merely dicta"; "the decision did not resolve whether state water laws are preempted by the FPA"]; see also Plouffe, Forty Years After First Iowa: A Call For Greater State Control of River Resources (1985) 71 Cornell L.Rev. 833, 848 ["As long as First Iowa remains ...

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