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Carian v. Department of Fish and Wildlife

California Court of Appeals, Fourth District, First Division

March 9, 2015

BLAINE CARIAN, Plaintiff and Appellant,
v.
DEPARTMENT OF FISH AND WILDLIFE et al., Defendants and Respondents.

APPEAL from an order of the Superior Court of Riverside County No. INC1203600, Harold W. Hopp, Judge.

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COUNSEL

Redwine and Sherrill, and M. Eli Underwood for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Robert W. Byrne, Assistant Attorney General, Eric M. Katz, Ross H. Hirsch and Diana Vernazza, Deputy Attorneys General, for Defendants and Respondents.

OPINION

McDONALD, J.

Blaine Carian appeals a postjudgment order denying his motion for attorney fees pursuant to Code of Civil Procedure[1] section 1021.5. The trial court found he did not make a reasonable attempt to settle his dispute before filing the instant action against the state Department of Fish and Wildlife (Department) and Kimberly Nicol, a Department manager (together Defendants). On appeal, Carian contends the trial court erred in denying his motion for attorney fees because he gave the Department notice before filing his action, any attempt to settle the dispute would have been futile, and he satisfied all of the other requirements for an award of attorney fees under section 1021.5.

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FACTUAL AND PROCEDURAL BACKGROUND

In 1968, the Legislature enacted a statutory scheme to protect the State's ecological reserves to, in turn, protect threatened or endangered native plants, wildlife, or aquatic organisms. (Fish & G. Code, § 1580 et seq.) Under Fish and Game Code section 1580, the Fish and Game Commission (Commission) has the authority to "adopt regulations for the occupation, utilization, operation, protection, enhancement, maintenance, and administration of [the state's] ecological reserves." Except as the Commission's regulations allow, it is unlawful for persons to enter upon any ecological reserve.[2] (Fish & G. Code, § 1583.)

Apparently in or about 1975, the Commission adopted a regulation that designated Magnesia Spring Ecological Reserve (Reserve) in Riverside County as an ecological reserve. (Cal. Code Regs., tit. 14, § 630, subd. (b)(76).) That regulation states in part: "Visitor uses are dependent upon the provisions of applicable laws and upon a determination by the [C]ommission that opening an area to such visitor use is compatible with the purposes of the property. Visitor use is subject to the regulations below, in sections 550 and 550.5 of these regulations, as well as any other [Commission regulations that may apply." (Cal. Code Regs., tit. 14, § 630, subd. (a).) That regulation further provides that the Department owns and operates the Reserve and other ecological reserves listed in the regulation. (Cal. Code Regs., tit. 14, § 630, subd. (b).) In or about 1976, the Department apparently adopted a wildlife management plan for the Reserve, which provided that "[e]nforcement of laws pertaining to [the Reserve] should be the responsibility of the Department." In or about 2007, the Department apparently adopted a multi-species habitat conservation plan, which stated that "[u]se of trails on [the Department's] land is subject to [California Code of Regulations] Title 14 . ..." It also contemplated that the "Bump and Grind" portion (Trail) of the Mirage Trail would be decommissioned and removed by the Department in the future.

In January 2012, Assembly Bill No. 284 (2011-2012 Reg. Sess.) was introduced to enact a statute allowing access to the Trail. That bill apparently expired, or "died, " pursuant to the California Constitution for lack of timely passage. (Cal. Const., art. IV, § 10, subd. (c).) In March 2012, a new bill, Assembly Bill No. 880 (2011-2012 Reg. Sess.), was introduced that contained the same language as the prior bill to enact a statute (i.e., Fish & G. Code, § 1587) allowing access to the Trail. Assembly Bill No. 880 was

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ultimately passed, enacting Fish and Game Code former section 1587, [3] effective as of January 2013, which provided:

"(a) The Mirage Trail within the [Reserve] shall be open nine months of the year to recreational hiking, if the [C]ommission determines that the following conditions are met: [¶]... [¶]

"(b) The [C]ommission shall determine seasonal openings and closures of the trail that will not conflict with the use of the area by Peninsular bighorn sheep, consistent with subdivision (a)...." (Fish & G. ...


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