Private Attorney General: Petitioner Winning First Round Of San Francisco Bay Mineral Extraction Lease Dispute, Getting Paid Under A Settlement, Did Not Get Any Further CCP § 1021.5 Fees By Failing To Succeed In The Second Phase

Future Losses Can Change The Private Attorney General Analysis.

            Petitioner in San Francisco Baykeeper, Inc. v. Cal. State Lands Commission (Hanson Marine Operations, Inc.), Case No. A159693 (1^st Dist., Div. 4 Sept. 17, 2021) (unpublished) did initially prevail in a dispute with the Commission over approval of several 10-year mineral extraction leases that authorized real party in interest Hanson to dredge mine sand from under the San Francisco Bay.  The trial judge earlier denied the challenge, but the First District reversed in a published decision, with petitioner obtaining fees under a settlement agreement with other parties.  However, Commission basically won in another go-around when a different panel of the First District found no public trust was implicated.  Petitioner moved again for fees, but the lower court denied them.  This denial was affirmed on appeal, given that success at early stages does not mean private attorney general entitlement for a party not ultimately succeeding in subsequent stages of a case.  (See National Parks & Conservation Assn. v. County of Riverside, 81 Cal.App.4^th 234, 240 (2000) [“it is not true that a previously successful party is entitled to fees for postjudgment litigation regardless of the outcome of that litigation”]; see also Ebbettts Pass Forest Watch v. Dept. of Forestry & Fire Protection, 187 Cal.App.4^th 376, 387 (2010).)