SPAWN Fees Hearing Update

Judge zeroes in on salmon group's bid to bill taxpayers $917,000

Salmon run up in Lagunitas Creek. Attorneys want $917,000 from the county after winning a court order requiring the county to study how development affects salmon in the San Geronimo Valley

A Marin judge needs a few more days to sort out how much if anything taxpayers owe fishery group lawyers who won a court order requiring the county to study how development affects salmon in the San Geronimo Valley.

"The court remains engaged in detailed analysis of the billing records," Superior Court Judge Paul Haakenson said in a tentative ruling affirmed on Friday. "The court ... is compelled to engage in its own line-by-line examination of the many years of time entries by the many attorneys and interns who worked on the case."

Stanford Law School lawyers, interns and others who worked on behalf of the Salmon Protection and Watershed Network want $917,000, calling the tab a discount from the $1.6 million they say the law allows them. Deputy County Counsel David Zaltsman contends the county doesn't owe a penny because the litigation has not yet resulted in a significant public benefit.

Haakenson, who was scheduled to weigh the case a month ago, said then that he needed more time, and indicated Friday he needs a few more days to make a decision. The hearing will resume at 9 a.m. Wednesday.

Haakenson indicated the job of calculating how much cash if any to award is problematic because of a lack of information. "The county ... did not identify any particular fee entries that should be deducted from any award," he noted. Billing entries submitted by lawyers at times were "quite vague," he added. "In order to determine the relationship of the various billing entries to the issues litigated, the court is further challenged with examining the minutes of the superior court and the court of appeal, and correlate, if possible, billing entries with the issues litigated," he observed. "This task is necessary to determine what amount, if any, should be reduced from any total award."

If an award is granted, it won't be the first time cash has changed hands in the salmon controversy. Environmentalist David Schnapf settled his public records case for many of the records he sought - and got $40,000 in legal fees - earlier this year after suing to get details of behind-the-scenes maneuvers by county supervisors related to a creekside ordinance at the heart of the salmon controversy.

In the salmon case, the 1st District Court of Appeal in San Francisco ordered analysis of how development affects San Geronimo Valley's endangered coho salmon. The ruling by the appellate court reversed a Marin Superior Court decision, set aside 2007 countywide plan policies affecting the valley, and lifted a building ban pending study of the impact of development on salmon.

"What is missing in the present case is ... a meaningful analysis of the likely cumulative impacts of a widespread buildout, regardless of the details of individual projects," the court said, adding neither the countywide plan nor its environmental impact report go far enough in evaluating how creekside construction affects streams.
The county, noting the building ban sought by SPAWN was lifted, called it a "split decision." The salmon network declared a triumph, noting the court ordered more study.


Zaltsman, in a legal brief filed with Haakenson, argued that the appellate court's order requiring a supplemental report "for one species in one small sub-watershed" of the county was "minor and not sufficiently significant to support an award" of legal fees. Further, since the salmon network seeks development restrictions, until and unless restrictions are imposed, legal fees are not merited, he added. Finally, "the hours expended are grossly inflated" he said, adding attorneys at the law school
already get paid as faculty, and used the case as a class exercise.

Zaltsman called the fee an effort to get "the taxpayers of Marin County to subsidize one of the best endowed and most expensive law firms in the country."

Michael Graf of El Cerrito and Deborah Sivas of Stanford Law School, attorneys for the salmon network, told Haakenson in a brief that the lawsuit "conferred a significant benefit on the general public, and the necessity and financial burden of privately enforcing (an important public right) make the award appropriate." Even though it didn't "secure an interim suspension of development, SPAWN achieved its primary objective of obtaining supplemental environmental review and disclosure."
SPAWN has no personal stake in the lawsuit, the lawyers contended, and does not benefit financially from it.

Marin Independent Journal
By Nels Johnson
November 21, 2015