Opposition Brief — Rock Creek Ltd. Partnership v. California State Water Resources Control Board

No. 92-785 O«ee

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1992

Rock CREEK LIMITED PARTNERSHIP,

Petitioner,

VS.

STATE WATER RESOURCES CONTROL BOARD, et al.,

Respondents.

On Petition For A Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

DANIEL E. LUNGREN

Attorney General

RODERICK E. WALSTON

Chief Assistant Attomey General

| WALTER WUNDERLICH

Assistant Attorney Genera!

CLIFFORD T. LEE

(Counsel of Record)

Deputy Attorney General

6200 State Building

455 Golden Gate Avenue

San Francisco, CA 94102

Telephone: (415) 703-2013

Attorneys for Respondents

ROWNE OF SAN FRANCISCO INC «© 343 Sansome St «+ S F CA 94104 + (415 362 2300

i

QUESTIONS PRESENTED

1. Whether attorneys’ fees are available under 42 U.S.C.,

§ 1988 for administrative and other proceedings that are fully

independent of an action brought under 42 U.S.C., § 1983.

2. Whether attorneys’ fees are available under 42 U.S.C.,

§ 1988 for administrative and other proceedings where the moving

party has not established that the action brought under 42 U.S.C.,

§ 1983 has materially altered the legal relationship between the

parties by modifying the defendant’s behavior in a way that

directly benefits the moving party.

ll

PARTIES

The petitioner is the Rock Creek Limited Partnership.

The respondents are the State Water Resources Control Board,

Darlene E. Ruiz, Edwin H. Finster, W. Don Maughan, Danny

Walsh and Eliseo V. Samaniego.

il

TABLE OF CONTENTS

Page

Pg Go 8 ol i

SEE A Sa il

ES ee eee eee ee ee ere I

PPE eee eee ee ee ee |

REASONS FOR DENYING THE WRIT............. 6

I

THIS COURT'S DECISIONS HAVE ALREADY RE-

SOLVED THE ISSUE RAISED BY THE PETI-

A EP eee 6

II

THE PETITIONER’S FEE CLAIM IS NOT SUSTAIN-

ABLE BECAUSE THE PETITIONER CANNOT ES-

TABLISH THAT ITS DISTRICT COURT ACTION

RESULTED IN ANY MATERIAL ALTERATION

OF THE LEGAL RELATIONSHIP BETWEEN THE

erst rer sh Sao toh ek sd bana bea 644 10% 8

iv

TABLE OF AUTHORITIES

Cases

Page

\_elifornia v. FERC, 495 U.S. 490 (1990) ............. y Me ©.

Farrar v. Hobby, __-. U.S. —___, 61 U.S.L.W. 4033

bi Seer er reer rrr ree Pree eye TT Tere ee 9,10

Hewitt v. Helms, 482 U.S. 755 (1987) ................. 8,9

New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980) 6, 7

North Carolina Department of Transportation v. Crest Street

Community Council, 479 U.S. 6 (1986) .............. 7

Pennsylvania v. Delaware Valley Citizens’ Council, 478 U.S.

Pe EE ce Pika aks cake aad ea oe cee eas 7

Rock Creek Limited Partnership v. State Water Resources

Control Board, 972 F.2d 274 (9th Cir. 1992).......... 5,6

Sablan v. Department of Finance, 856 F.2d 1317 (9th Cir.

PO i cus Saw ka tnwccak Sir eGR Ra RAAh eRe naa 9

State of California, et al. v. FERC, 877 F.2d 743 (9th Cir.

PE Senne kcw eck one C Cee ae ret) Oaie reagan ae 3,4

Sullivan v. Hudson, 490 U.S. 877 (1989) ............... 8

Webb v. Dyer County Board of Education, 471 U.S. 234

CRP vanes .cendve anes pee guanes sae eas renee aree 6, 7,8

Statutes

Rt oe 2. a ry pee rE rey Pe me See

Ot A 8. ci i, 5

No. 92-785

In the Supreme Court

United States

OCTOBER TERM, 1992

ROCK CREEK LIMITED PARTNERSHIP,

Petitioner,

VS.

STATE WATER RESOURCES CONTROL BOARD, et al.,

Respondents.

On Petition For A Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

RESPONDENT?’S BRIEF IN OPPOSITION

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Ninth Circuit is reported at 972 F.2d 274. The opinion of the

United States District Court for the Eastern District of California

is unreported.

STATEMENT

In this case, the petitioner sought relief from the terms and

conditions contained in the water right permits issued by the State

Water Resources Control Board (“State Board”) for the peti-

tioner’s hydroelectric power project under two strategies. First,

the petitioner filed an administrative petition for declaratory relief

with the Federal Energy Regulatory Commission (“FERC”).

Second, eight months later, the petitioner filed an action in U. S.

2

District Court under Section 1983 of the Civil Rights Act seeking

relief against the respondent. The district court stayed its pro-

ceedings pending the resolution of the administrative action

before FERC. Appeals from the FERC proceeding resulted in

this Court’s decision in California v. FERC, 495 U.S. 490 (1990),

a decision that confirmed Federal Power Act preemption over

conflicting state water nght requirements. At issue in this case is

whether the petitioner is entitled to attorneys’ fees under Section

1988 of the Civil Rights Act for the FERC proceedings and the

subsequent appeals, even though such proceedings were fuily

independent from the district court action.

1. The FERC Proceedings

On Apn! 29, 1983, FERC issued a license for the Rock Creek

Project, a hydroelectric facility located in El] Dorado County,

California, under the Federal Power Act. (Supplemental Ex-

cerpts of Record filed with the Ninth Circuit (“SEOR”) at 7.)

On June 12, 1984, the State Board issued state water night

permits for the project. These permits set interim, fishery bypass

flow levels identical to those contained in the FERC license.

(SEOR at 8.)

On July 9, 1986, eight months prior to the filing of the district

court action that is the subject of this petition, the petitioner filed

an administrative complaint for declaratory relief with FERC.

The complaint argued that the FERC’s “jurisdiction over the

license and the operation of the project under the license is

exclusive and preempts state authority.” (SEOR at 22.) On

February 13, 1987, the petitioner filed an emergency request with

FERC urging the agency to expedite the original petition. (SEOR

at 30.) On March 11, 1987, FERC responded by issuing a

declaratory order holding that FERC had the exclusive jurisdic-

tion to set fishery bypass flows for the petitioner's project. (SEOR

at 37-38.)'

‘ At no time prior to the issuance of this order did the petitioner serve

the State Board with any of its pleadings or did FERC inform the State

Board that the jurisdictional question was pending before FERC. (EOR,

Tab. 39 at 2.)

3

On March 16, 1987, the State Board received by mail a copy of

FERC’s March 11, 1987 order. (Excerpts of Record filed with the

Ninth Circuit (“EOR”), Tab 39 at 2.) On March 19, 1987, the

State Board amended the petitioner's water right permits to

increase the fishery bypass flows above the level established in the

FERC license. (SEOR at 42-91.) On April 9, 1987, the State

Board filed and served a motion to intervene in the FERC

proceeding and a request for rehearing. (SEOR at 12.)

On November 20, 1987, FERC issued an order denying the

State’s request and affirming FERC’s exclusive jurisdiction in

setting fishery bypass flows for the petitioner's project. (SEOR at

127.) On December 21, 1987, the State Board filed a petition for

review of the contested FERC orders with the 9th Circuit Court

of Appeals. (SEOR at 135.)

On June 6, 1989, the 9th Circuit Court of Appeals affirmed the

FERC orders. State of California, et al. v. FERC, 877 F.2d 743

(9th Cir. 1989). On December 4, 1989, this Court granted the

State of California’s petition for a writ of certiorari and on May

21, 1990 the Court issued a decision affirming the FERC orders

and the preemptive authority of the Federal Power Act over the

state’s fishery requirements. California v. FERC, 495 U.S. 490

(1990). On July 19, 1990, the State Board responded to this

Court’s decision by amending the fishery requirements in the

petitioner’s water right permits to conform with the decision.

(SEOR at 151.)

2. The District Court Proceedings

On April 9, 1987, the petitioner filed and served its complaint

for injunctive and declaratory relief in the district court. Like its

administrative complaint that it filed with FERC eight months

earlier, the district court complaint specifically contested the new,

State Board fishery requirements. (SEOR at 124-125.) However,

the complaint also raised claims under Section 1983 of the Civil

Rights Act. On May 18, 1987, the district court heard the

petitioner's motion for preliminary injunction against the state.

Upon completion of oral argument, the district court denied the

motion for preliminary injunction. (Reporter's Transcript filed

with Ninth Circuit (“RT”) at 21.) On September 18, 1987, the

4

district court heard the parties’ cross-motions for summary judg-

ment. (RT at 23.) The district court then took the motions under

submission. (RT at 58.)

On January 4, 1988, the State Board disclosed to the district

court the concurrent developments in the FERC proceedings by

way of a written status report. On April 5, 1988, the district court

conducted a status conference to determine the appropriate status

of the action in light of the State Board’s 9th Circuit appeal from

the contested FERC orders. (SEOR at 146.) At the status

conference, the district court requested the State Board to con-

sider waiving for the duration of the appeal any possible enforce-

ment action against the petitioner for noncompliance with the

state’s higher level of fishery protection.

In an April 14, 1988 letter to the district court, the State Board

agreed to waive enforcement action in order to ensure “more

rapid appellate resolution of the federal-state relationship issue.”

(SEOR at 143.) However, the State Board agreed to this waiver

only “for the duration of the appeal in the State of California v.

Federal Energy Regulatory Commission... action.” Id. More-

over, the Board’s letter limited the waiver with the following

conditions:

“2. The State Board agrees to the waiver of enforcement

authority as described in paragraph | solely for the purpose

of obtaining a stay of the trial court proceedings in this action

and, thus, encouraging the prompt resolution of the State of

California v. Federal Energy Regulatory Commission, 9th

Circuit action. This waiver of enforcement authority should

not be considered as precedent with respect to the State

Board’s general enforcement policy over other water right

permits. Morever, the waiver should not be considered as

precedent with respect to the State Board’s general enforce-

ment policy over other water right permits. Moreover, the

waiver should not be considered as an admission by the State

Board that the bypass flows set forth in Order No. 87-2 are

not necessary or otherwise required for the protection of the

fishery resources of Rock Creek.” Jd. at pp. 143-144.

5

In an April 25, 1988 order, the district court affirmed the State

Board’s temporary waiver of its enforcement powers. The district

court then vacated its submission of the cross-motions for sum-

mary judgment, stayed all proceedings pending resolution of the

state’s appeal in California v. FERC, and requested the State

Board to inform the Court when the appeal became final. (SEOR

at 146-147.) The order staying proceedings was subsequently

extended to include final action on the State Board’s appeal to

this Court.

As previously noted, on July 19, 1990 the State Board re-

sponded to this Court’s 1990 decision in California v. FERC by

amending the petitioner’s water right permits to conform to the

decision. On September 14, 1990, the district court dismissed the

petitioner’s action, including its Section 1983 claim, and entered

judgment in favor of the State Board on the grounds of mootness.

(EOR, Tabs 68 and 69.) On March 5, 1991, after notice and

hearing, the district court denied the petitioner’s attorneys’ fees

motion. (EOR, Tab 80.) The trial court concluded that

“[b]ecause no causal relationship exists between this district

court action and the invalidation of the Board’s order, plainiiff

Rock Creek Limited Partnership is not a prevailing party within

the meaning of 42 U.S.C. Section 1988 for the purposes of this

action.” (EOR, Tab 80 at 3.)

On appeal, the 9th Circuit Court of Appeals concluded that the

proceedings before FERC and the subsequent appeals were suffi-

ciently unrelated and independent from the district court action to

bar the award of fees for these proceedings under Section 1988 of

the Civil Rights Act. Rock Creek Limited Partnership v. State

Water Resources Control Board, 972 F.2d 274, 279 (9th Cir.

1992). The circuit court, however, also concluded that the peti-

tioner had obtained a temporary stay of proceedings before the

district court and that this result justified a remand to the trial

court for a determination of whether fees should be awarded for

the petitioner's activity before the district court. Jd. at 280. It is

from the circuit court’s decision to deny fees for the FERC

proceedings and the subsequent appeals that the petitioner has

filed the pending petition for a writ of certiorari.

6

REASONS FOR DENYING THE WRIT

I

THIS COURT’S DECISIONS HAVE ALREADY RE-

SOLVED THE ISSUE RAISED BY THE PETITIONER.

According to the 9th Circuit Court of Appeals, the petitioner's

FERC proceeding and the petitioner's district court proceeding

were “independent” avenues, either of which “could have resulted

in a decision on the question of FERC’s exclusive authority”.

Rock Creek Limited Partnership v. State Water Resources Con-

trol Board, 972 F.2d 274, 279 (9th Cir. 1992). The FERC

proceeding was not a condition precedent to the filing of the

district court action, nor was the proceeding an element of the

district court’s continuing authority on remand. Jd. The petitioner

in this case does not contest the circuit court’s characterization of

the petitioner's litigation strategy. In at least five decisions, this

Court has held that statutory attorneys’ fees are unavailable for

administrative or other proceedings that are fully independent of

the underlying district court action.

In New York Gaslight Club, Inc. v. Carey, this Court consid-

ered whether work done before state administrative or judicial

proceedings could justify a fee award in a federal employment

discrimination action under Section 706(k) of the Civil Rights

Act of 1964. New York Gaslight Club, Inc. v. Carey, 447 U.S. 54

(1980). In Carey, this Court concluded that a fee award was

appropriate because the federal statute required the “exhaustion

of state or local remedies”. Jd. at 64. According to the court,

“only authorization of fee awards ensures incorporation of state

procedures as a meaningful part of the Title VII enforcement

scheme.” Jd. at 65. The Carey decision therefore authorized fee

awards only where the alternate administrative proceedings were

“mandated” by federal statute. Jd.

In Webb v. Dyer County Board of Education, this Court

expressly affirmed the view that attorneys’ fees under Section

1988 of the Civil Rights Act were not available for work involving

independent administrative proceedings. Webb v. Dyer County

Board of Education, 471 U.S. 234 (1985). At issue in Webb was

whether fees were available for work involving the school board

7

proceedings that preceded the filing of a Section 1983 claim. /d.

at 239-240. In response, this Court expressly rejected an exten-

sion of Carey to include independent proceedings and held that:

“Because § 1983 stands “as an independent avenue of relief”

and petitioner “could go straight to court to assert it,” ibid.,

the School Board proceedings in this case simply do not have

the same integral function under § 1983 that state adminis-

trative proceedings have under Title VII.

Congress only authorized the district courts to allow the

prevailing party a reasonable attorney's fee in an “action or

proceeding to enforce [§ 1983].” Administrative proceedings

established to enforce tenure rights created by state law

simply are not any part of the proceedings to enforce § 1983,

and even though the petitioner obtained relief from his

dismissal in the later civil rights action, he is not automati-

cally entitled to claim attorney’s fees for time spent in the

administrative process on this theory.” Jd. at 241.

The Webb decision therefore unequivocally rejected the peti-

tioner’s contention that fees are available under Section 1988 for

work involving independent proceedings, such as the petitioner’s

FERC proceedings and the subsequent appeals.

The petitioner has attempted to buttress its fee argument by

referencing three subsequent decisions of this Court. However all

of these decisions affirm the holding in Webb. In Pennsylvania v.

Delaware Valley Citizens’ Council, this Court affirmed a fee

award for work before state and federal administrative agencies

because, “consistent with our opinion in Webb”, the work was in

furtherance of the district court’s consent decree and was “of a

type ordinarily necessary to secure the final results obtained from

the litigation.” Pennsylvania v. Delaware Valley Citizens’ Coun-

cil, 478 U.S. 546, 561 (1986). In North Carolina Department of

Transportation v. Crest Street Community Council, this Court

again affirmed the Webb decision and limited fee awards to

administrative proceedings “both useful and of a type ordinarily

necessary to advance the civil rights litigation.” North Carolina

Department of Transportation v. Crest Street Community Coun-

cil, 479 U.S. 6, 15 (1986).

8

Finally, in Sullivan v. Hudson, this Court again found that

attorneys’ fees were only appropriate as to work directly related to

the judicial action in which fees have been sought. Sullivan v.

Hudson, 490 U.S. 877, 888-889 (1989). According to the Court

in Sullivan:

“Our past decisions interpreting other feeshifting provisions

make clear that where administrative proceedings are inti-

mately tied to the resolution of the judicial action and

necessary to the attainment of the results Congress sought to

promote by providing for fees, they should be considered part

and parcel of the action for which fees may be awarded.” Jd.

at 888.

In approving the fee award, the Court observed that the adminis-

trative proceedings were “mandatory” and were crucial to the

“vindication of [respondent's] mghts.” Jd. at 889.

The petitioner’s effort to obtain attorneys’ fees for their work

involving the FERC proceedings is therefore fully inconsistent

with all available case authority from this Court. The circuit court

in this case found that the FERC proceedings were fully indepen-

dent from the district court action. As this Court established in

Webb, independent administrative proceedings that are not linked

to the federal court action cannot provide grounds for fee

generation.

Il

THE PETITIONER’S FEE CLAIM IS NOT SUSTAINABLE

BECAUSE THE PETITIONER CANNOT ESTABLISH

THAT ITS DISTRICT COURT ACTION RESULTED IN

ANY MATERIAL ALTERATION OF THE LEGAL RELA-

TIONSHIP BETWEEN THE PARTIES.

In Hewitt v. Helms this Court recognized that a “prevailing”

party within the meaning of Section 1988 of the Civil Rights Act

must establish that his or her civil mghts action resulted in a

_material alteration of the other party’s conduct to the prevailing

party’s benefit. Hewitt v. Helms, 482 U.S. 755, 761 (1987). In

Hewitt, a prisoner objected to a form of restrictive custody on due

9

process grounds. /d. at 757-758. In the course of the litigation, the

prisoner received a positive declaratory ruling from the court of

appeals on one aspect of his due process claim, the claim

challenging the use of unidentified informants in misconduct

proceedings. Jd. at 758. While the case was pending, the prisoner

was released on parole and, eventually, the prison officials altered

their disciplinary procedures regarding the use of unidentified

informants. Jd. at 759. Despite this judicial victory, this Court

denied the prisoner’s attorneys fee claim. As this Court explained:

“If the defendant, under the pressure of the lawsuit, pays

over a money claim before the judicial judgment is pro-

nounced, the plaintiff has “prevailed” in his suit, because he

has obtained the substance of what he sought. Likewise in a

declaratory judgment action: if the defendant, under pressure

of the lawsuit, alters his conduct (or threatened conduct)

towards the plaintiff that was the basis for the suit, the

plainuff will have prevailed.” Jd. 761.

Thus, this Court has confirmed the view of the 9th Circuit Court

of Appeals that a successful Section 1988 claim for fees must

establish that the “lawsuit was causally linked to the relief

actually obtained.” Sablan v. Department of Finance, 856 F.2d

1317, 1325 (9th Cir. 1988).

In the Court’s recent decision in Farrar v. Hobby, the Court

has further amplified on this causation requirement:

“[T]o qualify as a prevailing party, a civil rights plaintiff

must obtain at least some relief on the merits of his claim.

The plaintiff must obtain an enforceable judgment against

the defendant from whom fees are sought. Hewitt, supra, at

760, or comparable relief through a consent decree or settle-

ment, Maher v. Gagne, 448 U.S. 122, 129 (1980). Whatever

relief the plaintiff secures must directly benefit him at the

time of the judgment or settlement. See Hewitt, supra, at

764. Otherwise the judgment or settlement cannot be said to

“affec[t] the behavior of the defendant toward the plainuff.”

Rhodes, 488 U.S., at 4. Only under these circumstances can

civil rights litigation effect “the material alteration of the

legal relationship of the parties” and thereby transform the

aE

10

plainuff into a prevailing party. Garland, supra, at 792-793.

In short, a plaintiff ‘‘prevails’’ when actual relief on the

merits of his claim materially alters the legal relationship

between the parties by modifying the defendant's behavior in

a way that directly benefits the plaintiff.” Farrar v. Hobby,

US. — 61 US.L.W. 4033, 4035-4036

(1992) (Emphasis added).

In the present case, the petitioner has not received any benefits

from its district court action, aside from a temporary stay of

proceedings, nor did the petitioner's Section 1983 claim result in

the “material alteration of the legal relationship of the parties.”

As the circuit court in this case established, the petitioner

obtained its legal relief under the Federal Power Act through the

FERC proceedings, proceedings that were fully independent of

the district court action. The petitioner therefore cannot be

considered a prevailing party under Section 1988 for purposes of

its district court claims.

CONCLUSION

For the above reasons the respondent State Board respectfully

requests this Court to deny the petition for a writ of certiorari in

this case.

Dated: December 29, 1992

DANIEL E. LUNGREN

Attorney General

RODERICK E. WALSTON

Chief Assistant Attorney General

WALTER WUNDERLICH

Assistant Attorney General

CLIFFORD T. LEE

(Counsel of Record)

Deputy Attorney General

Attorneys for Respondents