Attorney's fees
Complainants seek attorney's fees. We have the power to award attorney's fees under the common fund theory in adjudicatory proceedings, as described in Consumers Lobby Against Monopolies v. Public Utilities Commission, (1979) 25 Cal. 3d 891 (CLAM).2 Our Advocates Trust Fund (created following the CLAM decision) provides for compensation of attorney's fees directly related to litigation or representation of consumer interests in quasi-judicial complaint cases. There are three situations in which parties may establish eligibility for such compensation: (1) if they generate a common fund but that fund is inadequate to meet reasonable attorney or expert witness fees; (2) if a substantial benefit has been conferred upon a party or members of an ascertainable class of persons but no convenient means are available for charging those benefited with the cost of obtaining the benefit; or (3) if they have acted as private attorneys general in vindicating an important principle of statutory or constitutional law, but no other means of fund is available for an award of fees. (See Karrison v. A&P Moving, Inc., D.01-07-034, 2001 Cal. PUC LEXIS 539.) Complainants have not established eligibility for award of attorney's fees under any of the three theories. Therefore, we deny their request.3
1. BNSF closed the Summit Truck Trail crossing on November 1, 2000.
2. BNSF failed to provide notice to the public and to the County Fire Department in advance of closing the Summit Truck Trail crossing.
3. On February 27, 2001, the assigned Commissioner and Administrative Law Judge granted complainants' request for a temporary restraining order and required BNSF to remove all barricades, gates, fences and padlocks it erected across the Summit Truck Trail crossing and to refrain from erecting any other obstruction until further order of the Commission.
4. The Summit Truck Trail is a dirt road that has existed for approximately 100 years. It is not in the County Maintained Road System.
5. Property north of the tracks includes private property, Bureau of Land Management lands, and utilities' property. Complainants' properties are not adjacent to or bisected by BNSF's right of way. The nearest landowner is approximately one half to one mile away.
6. BNSF relocated its tracks to that site 30 years ago after obtaining the parcel across the trail. The crossing which resulted from the relocation of the tracks was intended to be used by railroad maintenance crews, as well as Forest Service and Edison Power Company maintenance crews, and was considered by BNSF to be a private crossing.
7. Staff recommends closing the Summit Truck Trail crossing, citing policy that calls for a safety program for the elimination of railroad grade crossings and upgrading present grade crossing warning devices.
8. At the time of the closure, passive warning devices consisting of stop signs protected the crossing. Private crossing signs in accordance with General Order 75-C are placed near the crossing. At the Commission, the Summit Truck Trail is not listed as a public crossing.
9. Alternate routes to the Summit Truck Trail and the Summit Truck Trail crossing are two roadway main entrances to the Oak Hill properties provided from the north side of the subdivision from Mariposa Road.
10. The Summit Truck Trail and crossing are used by the County Fire Department to provide emergency response to the Oak Hills community. There is no other easily traversed crossing that emergency response can use.
11. Station 40, located north of the BNSF crossing, provides primary emergency response to complainants' properties. Station 48 is closer to the southern portion of Oak Hills. Station 40 responds to Oak Hills 20-25 times a year by itself. Station 48 responds to Oak Hills 30-40 times each year and historically has been able to beat Station 40 into the southern area of Oak Hills.
1. The TRO requiring BNSF to remove all barricades, gates, fences, and padlocks erected across the Summit Truck Trail is dissolved.
2. It is reasonable to require BNSF to keep open The Summit Truck Trail crossing for 120 days from the effective date of this order for the parties to consider a permanent solution consistent with guidance provided in the decision.
3. To determine that the Summit Truck Trail crossing is a private crossing under Pub. Util. Code § 7537 that should remain open is neither reasonable nor in the public interest under existing circumstances.
4. Existing circumstances do not make it reasonably necessary for the Summit Truck Trail crossing to remain open as a private crossing publicly used.
5. It is reasonable to give the County of San Bernardino 90 days from the effective date of this decision to file an application to convert the private crossing at the Summit Truck Trail to a public crossing, subject to the conditions discussed in this decision.
6. It is reasonable to require BNSF to close the Summit Truck Trail crossing 120 days after the effective date of this order if the County of San Bernardino does not file an application for a public crossing at the Summit Truck Trail. Such closure should be subject to stationing a security guard, as discussed in this decision.
7. Lynn R. and Roma Buehler's request for attorney's fees should be denied because they have not established eligibility for compensation.
8. Today's order should be made effective immediately so that the permanent status of the crossing at issue may be resolved as soon as possible.
IT IS ORDERED that:
1. The Burlington Northern & Santa Fe Railway Company (BNSF) shall not obstruct the Summit Truck Trail crossing for 120 days from the effective date of this order subject to the terms and conditions contained in this opinion and order.
2. The County of San Bernardino has 90 days from the effective date of this order to file an application for a public crossing at the Summit Truck Trail subject to the terms and conditions contained in this opinion and order.
3. If the County of San Bernardino does not file an application as set forth in Ordering Paragraph 2, BNSF shall close the Summit Truck Trail crossing permanently, subject to the terms and conditions contained in this opinion and order.
4. The complaint is granted to the extent set out in these ordering paragraphs and is otherwise denied.
5. This proceeding is closed.
This order is effective today.
Dated July 23, 2002, at San Francisco, California.
2 Besides CLAM, the Commission has authority under Pub. Util. Code §§ 1801-1812 to award attorney's and other fees and costs. However, the statutory fee award program applies only to our proceedings involving electric, gas, water, or telephone utilities; the program does not apply to a proceeding, such as this case, involving a railroad. 3 We note, in any event, that currently the Advocates Trust Fund is depleted.
