For Immediate Release, October 4, 2011
||Douglas Carstens, Chatten-Brown & Carstens, (310) 314-8040
Dr. Hugh Bialecki, Save Our Forest Association, (909) 336-5103
Drew Feldmann, San Bernardino Valley Audubon Society, (909) 881-6081
Steve Farrell, SB Mountains Group of the Sierra Club, (661) 449-2867
Adam Keats, Center for Biological Diversity, (415) 436-9682 x 304
Groups Challenging Lake Arrowhead Development Awarded Attorney Fees
JOSHUA TREE, Calif.— Stating that “there were important rights involved” and “the litigation conferred significant benefits,” Superior Court Judge Frank J. Gafkowski, Jr. awarded attorney fees and costs to four nonprofit conservation groups under California’s citizen’s attorney general statute. The groups had successfully litigated a 2005 lawsuit that led to the overturning of a San Bernardino County approval of a controversial Lake Arrowhead housing development. The litigation involved hearings before three different trial courts judges and two appellate panels, including an opinion by the 4th District Court of Appeal that ruled the San Bernardino County Board of Supervisors had violated both county policies and state environmental laws in granting its approval to the Hawarden Development Project.
“The supervisors failed to acknowledge the significant land-use constraints of the mountain area, which must be treated differently from other urban development,” said Dr. Hugh Bialecki, president of the Save Our Forest Association. “All the problems were clearly pointed out to them, and yet they chose to ignore the facts, their own policies, and state law. Hopefully this case will help to end the kind of carelessness we have often witnessed in respect to mountain issues.”
Attorney fees are not automatic; they are awarded only when a lawsuit has conferred a significant benefit to the general public but was not brought for financial gain, and only in cases where private enforcement of the law was necessary due to inaction by the attorney general.
“The law is written this way to encourage citizen suits that promote the public good,” said Adam Keats, director of the Center for Biological Diversity’s Urban Wildlands program. “Without the possibility of getting fees reimbursed, it would be extremely difficult for ordinary Americans to ensure that our government obeys the law.”
The $757,451 fee award will be distributed first to the citizens groups, reimbursing them for the thousands of dollars they had invested in the case out-of-pocket. The bulk of the award will then be distributed to the lawyers who litigated and won the case. The Center, having assigned a staff attorney to the case, will be awarded approximately 10 percent of the total fee award while the rest will go to Chatten-Brown and Castens, the outside law firm that handled most of the litigation.
The Hawarden Development Corporation had indemnified San Bernardino county against lawsuits over its project, but before the conclusion of the litigation its status was suspended by the secretary of state. The county remains a responsible party for payment of any fees associated with the lawsuit, but can still seek reimbursement from Hawarden Development Corporation, which appears to have continued to conduct business after its status was suspended. The county has argued that the fees should be reduced to spare taxpayers, but this was rejected by Judge Gafkowski.
“That would negate the unfortunate lessons of this case,” said Drew Feldmann, conservation chair of the San Bernardino Valley Audubon Society. “If the county supervisors had not violated their own fire-safety rules and state law just to give the developer what he wanted, taxpayers would not be liable for such a huge amount of county funds. Hopefully the court’s decisions will be an object lesson for the supervisors: They should stop letting developers get what they want just because they’re developers.”
“County counsel’s belated concern for taxpayers would have been better directed at the supervisors by advising them against this illegal project in the first place,” said Steven Farrell, conservation chair of the Mountains Group of the Sierra Club. “Rather than punishing the nonprofit groups that had to offset both the supervisors’ and county counsel’s faulty judgment these past six years, the county should be working to get the owners of Hawarden and its land to pay up.”
In 2005 the Save Our Forest Association, San Bernardino Valley Audubon Society, Sierra Club and Center for Biological Diversity jointly challenged the unsafe Hawarden development project in Lake Arrowhead, a 52-lot subdivision on a steep 40-acre hillside. The project was flawed by lax fire-safety protection, lack of water supply, and significant harmful impacts to the natural resources of the local national forest.