Court compels Marin to pay salmon lawyers $652,000 for ‘Significant Public Benefit’

By Nels Johnson, Marin Independent Journal
Posted: 12/11/15, 2:04 PM PST | Updated: 3 weeks, 5 days ago

Marin County must pay $652,544 to cover the legal fees of a San Geronimo Valley fishery group which “vindicated an important public right and conferred a significant public benefit” in getting a court order compelling environmental study involving the valley’s endangered coho salmon after a seven-year legal battle, a judge ruled Friday.

Superior Court Judge Paul Haakenson rejected a cascade of county arguments as groundless, including contentions that the Salmon Protection and Watershed Network merely achieved a “minor” public benefit. The judge said the assertion “does not withstand scrutiny.”

The network won an appellate court decision requiring study of how potential development in the San Geronimo Valley will affect salmon, enforcing an important public right after the county failed to obey state environmental law, the judge said. “An award of legal fees and costs … is entirely justified,” he reasoned.

But Haakenson did whittle the salmon network attorney team’s $917,000 fee request after a lengthy, meticulous examination of legal personnel involved and their roles, jobs done, prevailing wages and hourly fees, billings, court records, legal briefs and case law.

Haakenson reaffirmed his tentative ruling in the case Friday after listening to lawyers for both sides balk at portions or all of the 15-page ruling. “The court is convinced that the numbers here as I have crunched them” provide a “fair assessment,” Haakenson said, referring to detailed calculations of varying rates, who did what for how much and whether the effort was necessary. “It’s an unusual case and a lot of money,” he added of the fees, noting,”I have cut them significantly.”

Deputy County Counsel David Zaltsman argued for further fee reductions, repeating earlier arguments that the requirement for more study of how development affects salmon represents augmenting an existing report with a “minor” supplement that may have inconsequential results. Network attorneys Michael Graf and Deborah Sivas, director of the Stanford Law School’s Environmental Law Clinic, sought a fee judgment increase, saying work they did related to the case was inappropriately discounted by the judge.

Billing summaries for Graf and Sivas, another attorney and various law students reflect “a good faith effort to divide the duties to maximize efficiencies, keep billings as low as possible and to avoid unnecessary duplication,” the judge observed in his tentative ruling. “Nevertheless … the court is convinced that some unnecessary duplication or excessive fees were incurred.”

The judge approved $650 an hour fees for Graf and Sivas but made a series of adjustments in fees charged for others including interns, time spent on various tasks, and other matters, including two across the board “haircut” reductions related to aspects of the case. Graf was awarded $390,630; Sivas and the law clinic, $246,914. Another $15,000 was tossed in for preparing the legal motion seeking fee payment.

At the same time, the county is paying Berkeley consultants $192,000 to complete the supplemental salmon impact study ordered by the court. There was no immediate estimate of the cost of county counsel staff or legal consultant time devoted to the case, which has cost taxpayers well over $1 million. The county and the Marin Municipal Water District in recent years have spent roughly $1 million a year each on habitat and valley fish passage projects, as well as improvements that curb sediment, improve drainage and restore fishery habitat.

Todd Steiner, head of the salmon network, said poor decisions by the county have “left taxpayers holding the bag for more than $1 million in attorneys fees … an illegal environmental analysis, and another bill to prepare a proper environmental analysis.” Yet, “worst of all we still don’t have a stream protection ordinance” regulating development, he noted.

Peggy Sheneman, secretary of the San Geronimo Valley Stewards, a homeowners’ group at odds with the salmon network, said that no one monitored the work of the salmon lawyers, allowing them to run up exorbitant fees. “A private client would have never tolerated it … but this was other people’s money” spent without anyone tending the cash register, she said.

Supervisor Steve Kinsey expressed disappointment “that the county and SPAWN cannot find a shared policy path for protection of both salmon and the backyard enjoyment of longstanding residents.” He noted the attorney fees “would have made a significant difference for the fishery if the litigants had agreed to the county’s offer to increase our restoration investment beyond the millions already made.”

Attorney Zaltsman was circumspect. “Although I respectfully disagree with the level of discretion the court can exercise in reducing fees to compensate for the very limited success SPAWN obtained, under the constraints the court believes it was operating under, this was a thorough and thoughtful decision,” he said.

Sivas was cheered by the decision overall, although she wanted the judge to boost the fee award by about $100,000 to account for work done rebuffing legal efforts by the San Geronimo Valley Stewards to intervene in the case. “I’m glad the judge saw that this was not a minor effort,” she said.

The 1st District Court of Appeal in San Francisco ordered more analysis of how development affects valley salmon, reversed a Marin Superior Court decision, “set aside” the 2007 countywide plan and its environmental report in San Geronimo pending study of the impact of creekside building, and lifted a building ban in the valley.

“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 and thus fish.