Record Preparation Expense Rejected As Out Of Proposition, Unsubstantiated

An appellate court has overturned an award of $33,000 to an irrigation district for the preparation of the administrative record in a California Environmental Quality Act (CEQA) case. The court found that the district’s request for more than $8 per page for preparing the record was out of line with other CEQA cases, that the record included documents prepared after the administrative process concluded, and that the district did not justify the expense.

The underlying lawsuit was filed by farmers in Stanislaus County against Modesto Irrigation District (MID), which, in addition to water, provides electricity in four counties. During late 2004, MID certified an environmental impact report and approved construction of new high-voltage transmission lines from a switching station near Westley to a substation near Modesto. The transmission line corridor traverses an orchard owned by Wagner Farms, which sued over the project’s environmental review.

Wagner Farms lost its CEQA suit in Stanislaus County Superior Court, and the Fifth District Court of Appeal upheld the decision in an unpublished opinion (, No. F049311). After the Fifth District issued its decision, MID submitted a request to the Superior Court for $33,422 for preparing the administrative record of proceedings (ROP). (It is common for the public agency being sued in a CEQA case to compile the record, as Wagner Farms requested here.) Wagner Farms opposed the requested amount, arguing that the cost was exorbitant and not supported by MID. Superior Court Judge William Mayhew awarded MID the whole amount.

The case then returned to the Fifth District only on the issue of costs, and the unanimous three-judge appellate panel overturned Judge Mayhew.

The district apparently based the $33,422 figure on time spent by its staff and by the EIR consultant (Electrical Consultants, Inc., of Billings, Montana), as well as actual copying costs. The Fifth District, however, noted that the price for the 4,107-page record averaged $8.14 per page. In three other published cases, the amount awarded for preparing the record ranged from about 73 cents per page in , (2004) 123 Cal.App.4th 1, to $2.61 per page in, (2005) 128 Cal.App.4th 176. Initially, the court also cited three unpublished cases where costs of between 47 cents and $2 per page were awarded; however, the court later deleted the portion of the opinion concerning unpublished cases.

The costs submitted by MID appear “disproportionately high when compared to the costs awarded” in other cases, the court ruled.

The court then noted that the last two pages of the administrative record contained maps drawn in March 2005. This was, according to the court, “ the board of directors and MID approved the proposed project and the final EIR in November 2004 — in fact, they were created after plaintiffs filed their petition for writ of mandate on December 22, 2004. The documents, thus, are not a reflection of the agency as they actually happened. As documents created after the proceedings were over, they cannot be considered a proper part of the ‘record of proceedings.’

“Because the documents were not a part of the actual proceedings that led to the approval of the project and therefore are not properly part of the ROP, it necessarily follows that MID’s claim for costs in preparing the ROP was excessive,” Justice Betty Dawson wrote for the court. “Furthermore, given the scant amount of evidence regarding how time claimed by MID was spent, there is no basis in the record for separating the time necessary for preparation of the ROP and the time claimed by MID that went beyond that merely related to preparing the ROP.”

The Fifth District returned the case to the Superior Court, and said the lower court may — or may not — permit MID to attempt to justify its claimed expense.

Attorney Michael Zischke, who was not involved in the litigation, said the court’s ruling regarding the proportionality of costs — based on a per-page amount — is important for CEQA practitioners to understand. At the same time, the court ruled that it was appropriate for a district consultant to help prepare the record, and that the consultant’s cost could be considered, said Zischke, of Cox, Castle & Nicholson.

The Case: , No. F049966, 06 C.D.O.S. 11227, 2006 DJDAR 15978. Filed December 6, 2006. Modified January 5, 2007 at 2007 DJDAR 244. The Lawyers: For Wagner Farms: David M. Gilmore, Gilmore, Wood, Vinnard & Magness, (559) 448-9800. For MID: Joel S. Moskowitz, (310) 373-9790.