Natural Resources Defense Council, Inc. et al v. County of Los Angeles et al
Filing
428
(IN CHAMBERS): ORDER RE: MOTION FOR PARTIAL SUMMARY JUDGMENT 389 ; MOTION TO DISMISS 394 ; AND MOTION FOR RECONSIDERATION 399 by Judge Beverly Reid O'Connell: The Court rules as follows: Defendants' motion for reconsideration is DE NIED; Defendants' motion to dismiss is GRANTED in part and DENIED in part on the basis that Plaintiffs' claims for injunctive relief are moot, but that Plaintiffs' claims for monetary civil penalties remain active; and Plaintiffs' motion for summary judgment is GRANTED in part and DENIED in part in accordance with the Court's ruling on Defendants' motion to dismiss and motion for reconsideration. IT IS SO ORDERED. (jloz)
LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
Present: The Honorable
BEVERLY REID O’CONNELL, United States District Judge
Renee A. Fisher
Not Present
N/A
Deputy Clerk
Court Reporter
Tape No.
Attorneys Present for Plaintiffs:
Attorneys Present for Defendants:
Not Present
Not Present
Proceedings:
(IN CHAMBERS)
ORDER RE: MOTION FOR PARTIAL SUMMARY JUDGMENT [389];
MOTION TO DISMISS [394]; AND MOTION FOR RECONSIDERATION [399]
I.
INTRODUCTION
This case is now in its seventh year of litigation. The parties have made several
trips to the Ninth Circuit Court of Appeals and even received an opinion by the United
States Supreme Court.1 Following the Supreme Court’s decision, the Ninth Circuit
issued a mandate to this Court, holding that Defendants—the County of Los Angeles and
the Los Angeles County Flood Control District—were liable as a matter of law for
violating the terms of their National Pollutant Discharge Elimination System permit.2
Currently pending before the Court are three motions. First, Defendants now move for
reconsideration of the Court’s March 2, 2010 order granting partial summary judgment
pursuant to Local Rule 7-18. (Dkt. No. 399.) Second, Defendants have also filed a
motion to dismiss Plaintiffs the Natural Resources Defense Council and Santa Monica
Baykeeper’s second, third, and fifth claims for relief. (Dkt. No. 394.) And third,
Plaintiffs have moved for partial summary judgment on issues discussed in the Ninth
Circuit’s mandate. (Dkt. No. 389.) After consideration of the papers filed in support of
and in opposition to each of these motions, and after hearing oral argument of counsel,
the Court hereby DENIES Defendants’ motion for reconsideration, GRANTS in part
and DENIES in part Defendants’ motion to dismiss, and GRANTS in part and
DENIES in part Plaintiffs’ motion for partial summary judgment.
1
See L.A. Cnty. Flood Control Dist. v. Natural Res. Def. Council, Inc., 133 S. Ct. 23 (2013).
2
See Natural Res. Def. Council, Inc. v. Cnty. of L.A., 725 F.3d 1194, 1210 (9th Cir. 2013).
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
II.
BACKGROUND
A. Factual Background
On March 3, 2008, Plaintiffs the Natural Resources Defense Council and Santa
Monica Baykeeper filed suit against Defendants the County of Los Angeles (the
“County”), the Los Angeles Flood Control District (the “District”), and the individual
County Supervisors and the Director of the Los Angeles County Department of Public
Works in their official capacities, alleging that the County and the District violated
several provisions in the National Pollutant Discharge Elimination System (“NPDES”)
Permit regulating municipal stormwater and urban runoff discharges within the County of
Los Angeles (the “Permit”).3
The municipal separate storm sewer system (“MS4”) in the Los Angeles County
basin carries urban runoff from local storm drains to inland rivers and eventually to ocean
waters. No treatment plant cleans the runoff before it enters the so-called receiving
waters of the region, so the runoff can contain a number of untreated pollutants it
acquires as it flows over streets, parking lots, commercial sites, and residential areas. The
MS4 is a complicated web, with thousands of miles of storm drains, hundreds of miles of
open channels, and hundreds of thousands of connections. The MS4 includes storm
drains operated by—and runoff coming from—eighty-four incorporated cities, in addition
to those from the County and District. The District owns, operates, and maintains
approximately 500 miles of open channel and 2800 miles of storm drains, an area which
comprises more of the MS4 than all eighty-four co-permittee cities combined. The
County owns and operates additional storm drains, separate from the District, that
connect to the MS4. The County has no central record of these storm drains and does not
know their complete extent.
The Regional Water Quality Control Board (“Regional Board”), an entity of the
State of California, issued collectively to the County, the District, and these eighty-four
cities a NPDES Permit required under the Clean Water Act. This Permit allows the
Permittees to discharge stormwater runoff from the MS4, contingent on meeting a
3
The Court’s summary of this dispute derives from the discussion of the undisputed facts in the Court’s
prior summary judgment order. (See Dkt. No. 280 at 1–5.)
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
number of conditions. Most notably, Part 2.1 of the Permit provides that “discharges
from the MS4 that cause or contribute to the violation of Water Quality Standards or
water quality objectives are prohibited.” The Permit incorporates water quality standards
from the Los Angeles Region Basin Plan for the Coastal Watersheds of Los Angeles and
Ventura Counties (the “Basin Plan”) and the California Ocean Plan (the “Ocean Plan”).
See Cal. Water Code §§ 13170.2, 13240.
The Permit sets forth a monitoring program, which includes a requirement for the
Principal Permittee (the District) to monitor the runoff flowing past seven specific mass
emissions stations. These mass emissions stations include the Malibu Creek, the Los
Angeles River, the San Gabriel River, and the Santa Clara River monitoring stations at
issue in this case. The Los Angeles and San Gabriel Rivers mass emissions monitoring
stations are located within the portion of the MS4 owned and operated by the District.
Monitoring data from the Los Angeles River and San Gabriel River mass emissions
stations indicate that water quality standards have repeatedly been exceeded for a number
of pollutants, including aluminum, copper, cyanide, fecal coliform bacteria, and zinc.4
The Permit’s monitoring program also includes a requirement that water quality
samples be taken five times per week at Surfrider Beach, a beach within the Santa
Monica Bay. This monitoring shows that the water at Surfrider Beach has exceeded
bacterial limits (including limits on total coliform, fecal coliform, and enterococcus) on
dozens of occasions during summer dry weather seasons. The Regional Board has issued
Notices of Violation to the County and the District (and the eighty-four cities that
discharge to the MS4) indicating that discharges from the MS4 are causing or
contributing to bacterial exceedances at Surfrider Beach.
The California Ocean Plan prohibits the discharge of waste into the Malibu Area of
Special Biological Significance (“ASBS”), which covers the four-mile coastline from
Latigo Point in Malibu to Laguna Point in Ventura. Plaintiffs assert, and this Court found
in its prior order, that this prohibition has been incorporated into the Permit. The District
and the County own and operate drains (at least thirteen District drains and eight County
drains) that discharge to the Malibu ASBS. County sampling of eleven of these drains in
4
At summary judgment, neither party provided the Court with monitoring data from the other mass
emissions monitoring stations.
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
2004 indicated that every single wet-weather event (rainstorm) sampled had discharges
exceeding bacteria limits. Sampling data collected by the Santa Monica Baykeeper
covering at least 2004 to 2006 show numerous instances of discharge from these drains
exceeding applicable water quality standards.
The Permit also requires Permittees to submit to the Regional Board annual
Receiving Water Limitations Compliance Reports describing the Permittee’s plan to
remedy violations of the Permit “[u]pon a determination by either the Permittee or the
Regional Board that discharges are causing or contributing to an exceedance of an
applicable Water Quality Standard.” Defendants did not submit any Compliance Reports
in 2003, 2004, or 2005. Defendants submitted Compliance Reports in 2006, 2007, and
2008, but the parties have disagreed as to whether these Reports satisfied the
requirements under the Permit.
B. Procedural Background
In their First Amended Complaint, which remains the operative complaint in this
matter, Plaintiffs allege six causes of action under the Clean Water Act, 33 U.S.C.
§§ 1251, et seq., for: (1) causing and contributing to exceedances of water quality
standards in the Santa Clara River watershed; (2) causing and contributing to
exceedances of water quality standards in the Los Angeles River watershed; (3) causing
and contributing to exceedances of water quality standards in the San Gabriel River
watershed; (4) causing and contributing to exceedances of water quality standards and
Total Maximum Daily Load (“TMDL”) violations in the Malibu Creek watershed and at
Surfrider Beach; (5) illegally discharging waste into the oceanic ASBS between Mugu
Lagoon in Ventura County and Latigo Point in Los Angeles County; and (6) failing to
submit adequate Receiving Water Limitations Compliance Reports. (Dkt. No. 55.)
On September 8, 2009, Plaintiffs moved for partial summary judgment regarding
liability as to claims two and three (as to the District); as to the Surfrider Beach violations
in claim four; and as to all of claims five and six. (Dkt. No. 87.) On September 14, 2009,
Defendants filed their motion for summary judgment as to all counts. (Dkt. No. 113.)
On March 2, 2010, the Court granted in part and denied in part each of these motions.
(Dkt. No. 280.) Specifically, the Court denied summary judgment for both parties as to
the watershed claims (claims one, two, three, and the Malibu Creek portion of claim
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
four); the Court granted summary judgment to Plaintiffs on claim five and on the
Surfrider Beach portion of claim four; the Court granted summary judgment to
Defendants on all portions of claim six except for the adequacy of the 2008 Compliance
Reports’ treatment of Surfrider Beach; and the Court denied summary judgment to both
parties as to the adequacy of the 2008 Compliance Reports’ treatment of Surfrider Beach.
(Dkt. No. 280.) The Court then entered final judgment on the watershed claims pursuant
to Federal Rule of Civil Procedure 54(b), (Dkt. No. 307), and Plaintiffs appealed this
judgment to the Ninth Circuit, (Dkt. No. 315).
On March 10, 2011, the Ninth Circuit affirmed the district court’s grant of partial
summary judgment in Defendants’ favor.5 Several months later on July 13, 2011, the
Ninth Circuit withdrew this opinion upon denial of rehearing en banc, and this time
affirmed in part and reversed in part the Court’s partial summary judgment order.6 The
Supreme Court granted certiorari to determine “a single question: Under the Clean Water
Act, does the flow of water out of a concrete channel within a river rank as a ‘discharge
of a pollutant’?” L.A. Cnty. Flood Control Dist., 133 S. Ct. at 711. Finding the answer to
be “no,” the Supreme Court reversed the Ninth Circuit’s ruling and remanded the case for
further proceedings. Id. at 713–14. On remand, the Ninth Circuit reversed the district
court’s March 2, 2010 summary judgment order, finding as a matter of law that
Defendants were liable for violating the terms of the Permit on the basis that the results of
their pollution monitoring conclusively demonstrated that pollution levels in the Los
Angeles and San Gabriel Rivers were in excess of those allowed under the Permit.
Natural Res. Def. Council, 725 F.3d at 1210. The court then issued a mandate to this
Court on May 5, 2014 to conduct further proceedings consistent with that opinion,
“including a determination of the appropriate remedy for . . . Defendants’ violations.” Id.
(Dkt. No. 371 at 33–34).
On May 13, 2014, the case was reassigned from the Honorable A. Howard Matz to
this Court. (Dkt. No. 372.) Plaintiffs then filed the instant motion for partial summary
judgment on January 14, 2015. (Dkt. No. 389.) Defendants opposed this motion on
February 23, 2015, (Dkt. No. 412), and Plaintiffs replied on March 9, 2015, (Dkt. No.
420). Defendants also filed their motion to dismiss and motion for reconsideration on
5
Natural Res. Def. Council, Inc. v. Cnty. of L.A., 636 F.3d 1235 (9th Cir. 2011).
6
Natural Res. Def. Council, Inc. v. Cnty. of L.A., 673 F.3d 880 (9th Cir. 2011).
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
January 14, 2015. (Dkt. Nos. 394, 399.) Plaintiff opposed each of these motions on
February 23, 2015, (Dkt. Nos. 408, 410), and Defendants replied on March 9, 2015, (Dkt.
Nos. 422, 425). The Court then heard oral argument on March 23, 2015.
III.
LEGAL STANDARD
A. Motion for Reconsideration
A party may move for reconsideration pursuant to the Local Rules. Under Local
Rule 7-18, a motion for reconsideration must be founded upon one of three bases: (1) “a
material difference in fact or law from that initially presented to the Court” of which the
party could not have learned by exercising reasonable diligence prior to the Court’s
order; (2) “the emergence of new material facts or a change of law occurring after the
time” of the Court’s order; or (3) “a manifest showing of a failure to consider material
facts presented to the Court before such decision.” C.D. Cal. L.R. 7-18. A court’s local
rules have the force and effect of law, so long as they are not inconsistent with statute or
the Federal Rules. See Atchison, Topeka & Santa Fe R.R. v. Hercules Inc., 146 F.3d
1071, 1074 (9th Cir. 1998). A court should not depart from its local rules unless the
effect on the substantial rights of the parties would be “so slight and unimportant that the
sensible treatment is to overlook [it].” Prof’l Programs Grp. v. Dep’t of Commerce, 29
F.3d 1349, 1353 (9th Cir. 1994) (internal quotation marks omitted).
B. Motion to Dismiss
Under Rule 8(a), a complaint must contain a “short and plain statement of the
claim showing that the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a). If a
complaint fails to do this, the defendant may move to dismiss it under Rule 12(b)(6).
Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible on its face “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. “Factual allegations must be
enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). Thus, there must be “more than a sheer possibility that a
defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. “Where a complaint pleads
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line
between possibility and plausibility’” that the plaintiff is entitled to relief. Id.
Where a district court grants a motion to dismiss, it should provide leave to amend
unless it is clear that the complaint could not be saved by any amendment. Manzarek v.
St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
C. Motion for Summary Judgment
Summary judgment is appropriate when, after adequate discovery, the evidence
demonstrates that there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56. A disputed fact is material
where its resolution might affect the outcome of the suit under the governing law.
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). An issue is genuine if the
evidence is sufficient for a reasonable jury to return a verdict for the non-moving party.
Id. The moving party bears the initial burden of establishing the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The
moving party may satisfy that burden by showing “that there is an absence of evidence to
support the non-moving party’s case.” Id. at 325.
Once the moving party has met its burden, the non-moving party must do more
than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the
non-moving party must go beyond the pleadings and identify specific facts that show a
genuine issue for trial. Id. at 587. Only genuine disputes over facts that might affect the
outcome of the lawsuit will properly preclude the entry of summary judgment. Anderson,
477 U.S. at 248; see also Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919
(9th Cir. 2001) (holding that the non-moving party must present specific evidence from
which a reasonable jury could return a verdict in its favor). A genuine issue of material
fact must be more than a scintilla of evidence, or evidence that is merely colorable or not
significantly probative. Addisu v. Fred Meyer, 198 F.3d 1130, 1134 (9th Cir. 2000).
A court may consider the pleadings, discovery, and disclosure materials, as well as
any affidavits on file. Fed. R. Civ. P. 56(c)(2). Where the moving party’s version of
events differs from the non-moving party’s version, a court must view the facts and draw
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
reasonable inferences in the light most favorable to the non-moving party. Scott v.
Harris, 550 U.S. 372, 378 (2007).
Although a court may rely on materials in the record that neither party cited, it
need only consider cited materials. Fed. R. Civ. P. 56(c)(3). Therefore, a court may
properly rely on the non-moving party to identify specifically the evidence that precludes
summary judgment. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996).
Finally, the evidence presented by the parties must be admissible. Fed. R. Civ. P.
56(e). Conclusory or speculative testimony in affidavits and moving papers is
insufficient to raise a genuine issue of fact and defeat summary judgment. Thornhill’s
Publ’g Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Conversely, a genuine
dispute over a material fact exists if there is sufficient evidence supporting the claimed
factual dispute, requiring a judge or jury to resolve the differing versions of the truth.
Anderson, 477 U.S. at 253.
IV.
DISCUSSION
The Court has three motions to resolve, two from Defendants and one from
Plaintiffs. Because Defendants’ motions—which request reconsideration of the Court’s
prior partial summary judgment order in addition to dismissal of several of Plaintiffs’
claims—impact the Court’s analysis on Plaintiffs’ motion, the Court will address
Defendants’ motions first before turning to Plaintiffs’ motion.
A. Motion for Reconsideration
To begin, Defendants argue that, pursuant to Local Rule 7-18, the Court should
reconsider the order issued by Judge Matz granting Plaintiffs partial summary judgment
on their fifth claim of relief because new evidence and developments reflect material
changes in both fact and law.7 (See Dkt. No. 400.) Specifically, Defendants argue that
7
“The authority of a district judge to reconsider a previous ruling in the same litigation, whether a ruling
made by him or by a district judge previously presiding in the case, including (because the case has
been transferred) a judge of a different court, is governed by the doctrine of the law of the case, which
authorizes such reconsideration if there is a compelling reason, such as a change in, or clarification of,
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
the Court’s finding on this issue rested on its determination that a provision in the
California Ocean Plan prohibiting the discharge of waste to ASBSs (the “ASBS discharge
prohibition”) is a “water quality standard” within the meaning of Part 2.1 of the Permit,
and that new evidence they have discovered undercuts this determination. This new
evidence is comprised of the following three documents:
A 2012 resolution of the California State Water Resources Control Board
(the “State Board”) authorizing an “exception” to the ASBS discharge
prohibition, as well as the resolution’s accompanying Programmatic
Environmental Impact Report (“EIR”), the latter of which comprises
“Revised Responses to Comments” prepared by State Board staff and
includes a statement indicating that the ASBS discharge prohibition “is not a
water quality standard,” (Dkt. No. 401 at 14);
An October 7, 2004 letter from the United States Environmental Protection
Agency (“EPA”) to the Executive Director of the State Board, opining that
the EPA “believe[s] that the prohibition against discharges of waste into any
ASBS . . . is neither a water quality standard nor a policy generally affecting
the application and implementation of a water quality standard,” (Dkt. No.
402 at 5); and
A July 8, 2009 letter from the Chief Deputy Director of the State Board to
the EPA referencing the 2004 letter from the EPA and stating that “[t]he
[ASBS discharge] prohibition is an implementation tool that is intended to
prevent undesirable alterations of natural water quality, rather than a water
quality standard,” (Dkt. No. 402 at 9).
According to Defendants, these documents, which were unknown (in the case of the 2004
and 2009 letters) or unknowable (in the case of the 2012 exception) to Defendants at the
time of the Court’s prior March 2010 order, disprove the Court’s conclusion that the
ASBS discharge prohibition is a water quality standard.
law that makes clear that the earlier ruling was erroneous.” Santamarina v. Sears, Roebuck & Co., 466
F.3d 570, 571–72 (7th Cir. 2006) (emphasis added).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
Even a cursory review of these documents demonstrates a conflicting view on this
issue. As Defendants argue, the Court’s prior holding relied in large part on its
conclusion that “the Ocean Plan’s prohibition on discharge into an ASBS is a water
quality standard that is covered by the Permit’s prohibition on ‘discharges from the MS4
that cause or contribute to the violation of the Water Quality Standards or water quality
objectives.’” (Dkt. No. 280 at 16 (emphasis added).) The documents presented here by
Defendants illustrate that the authors of the 2004 and 2009 letters—the Director of the
Water Division of the EPA and the Chief Deputy Director of the State Board,
respectively—in addition to the State Board staff who prepared the comments in the 2012
resolution’s EIR, disagree with the Court’s conclusion. Despite Defendants’ arguments
to the contrary, however, the views expressed in these documents are not determinative.
As noted in the Court’s prior order granting Plaintiffs partial summary judgment
on this issue, the State Board issued a precedential order shortly before the Permit was
issued in 2001.8 (Dkt. No. 280 at 16 (citing In re Cal. Dep’t of Transp., Order No. WQ
2001-08, 2001 WL 36247991 (Cal. St. Wat. Res. Bd. Apr. 26, 2001) [hereinafter
Caltrans]).) In this order, the State Board stated unequivocally that “[t]he Ocean Plan
discharge prohibition is a water quality standard.” Caltrans, 2001 WL 36247991, at *5.
Thus, as this Court explained, “[b]ecause this was a precedential order, the Regional
Board was bound to follow it when issuing the Permit, and therefore, the prohibition on
waste discharge in an ASBS is a water quality standard for purposes of the Permit.”
(Dkt. No. 280 at 16 (emphasis added).) As the italicized portion of this quote illustrates,
the Court was focused not on determining in a vacuum whether the ASBS discharge
prohibition constitutes a water quality standard, but rather on determining whether it was
a water quality standard as defined in the Permit itself.
8
See Matter of Fishery Prot. & Water Right Issues of Lagunitas Creek, Order No. WR 96-1, 1996 WL
82542, at *12 (Cal. St. Wat. Res. Bd. Jan. 18, 1996) (designating “all decisions or orders adopted by the
[State Water Resources Control Board] at a public meeting to be precedent decisions, except to the
extent that a decision or order indicates otherwise, or is superseded by later enacted statutes, judicial
opinions, or actions of the [State Water Resources Control Board]”); see also Cal. Gov’t Code
§ 11425.60 (“An agency may designate as a precedent decision a decision or part of a decision that
contains a significant legal or policy determination of general application that is likely to recur.”).
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
Defendants assert that the issue in this motion is limited to whether the ASBS
discharge prohibition actually constitutes a water quality standard. (See, e.g., Reply at 1.)
For example, Defendants argue in reply that Plaintiffs “miss the point” by arguing in
opposition that the 2012 Resolution and the 2004 and 2009 letters do not overrule
Caltrans. (Reply at 6.) The point, Defendants contend, is that these newly discovered
documents demonstrate that the language in Caltrans indicating that the discharge
prohibition was a water quality standard was actually only dicta and thus should not have
been followed by the Court in its prior order. Yet the Court’s analysis in determining
what the Permit allowed focused on how the Permit’s language should be interpreted
based on the law as it existed at the time the Permit was issued. And as the Court
reasoned in its prior order, the Regional Board was bound to follow the precedential
order of Caltrans when it issued the Permit in 2001. Defendants’ argument that this new
evidence demonstrates that the relevant language from Caltrans was dicta is flawed for
obvious reasons: opinions and resolutions from 2004, 2009, and 2012 could not have
informed the Regional Board’s interpretation of Caltrans in 2001 when it issued the
Permit. So even if the Court were to accept Defendants’ position that these later
documents prove that the Caltrans language is dicta, it does not change the Court’s prior
determination that “the prohibition on waste discharge in an ASBS is a water quality
standard for purposes of the Permit.” (Dkt. No. 280 at 16 (emphasis added).)
Defendants’ next argument—which they raise for the first time in their reply to this
motion— is that a water quality standard cannot be effective until the EPA has reviewed
and approved it. In support of this argument, Defendants cite to Alaska Clean Water
Alliance v. Clarke, No. C96-1762R, 1997 WL 446499, at *3 (W.D. Wash. July 8, 1997),
in which a Washington district court found that a “water quality standard” cannot be
effective until it has been approved by the EPA. The court there analyzed the section of
the Clean Water Act that governed water quality standards (section 303) and determined
that “the language of 303(c)(3) clearly and unambiguously states that ‘if’ EPA approves
state standards, they shall ‘thereafter’ be the applicable standards,” and that,
consequently, “Congress did not intend new or revised state standards to be effective
until after EPA had reviewed and approved them.” Id. For similar reasons to those
discussed above, however, this argument also fails. That is, even assuming the Regional
Board had read this unpublished opinion by an out-of-state federal district court, its
interpretation of section 303 implicitly conflicted with that of Caltrans, which was
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
binding on the Regional Board. Thus, presented with the conflicting interpretations of
this provision presented in Alaska Clean Water Alliance and Caltrans, the Regional
Board was required to adopt the view in Caltrans.
Alternative grounds exist to deny this motion for reconsideration. As Plaintiffs
argue, “[m]otions for reconsideration should not be freely granted,” Bloch v. Prudential
Ins. Co. of Am., No. CV05-1589-DT(MCX), 2005 WL 6141292, at *3 (C.D. Cal. Aug. 9,
2005); indeed, they are typically granted “only in rare circumstances,” Collins v. D.R.
Horton, Inc., 252 F. Supp. 2d 936, 938 (D. Ariz. 2003). Moreover, “[a]lthough Local
Rule [7-18] does not specify a time period within which a party may seek
reconsideration, the Court interprets this Rule as providing for a reasonable time within
which to seek reconsideration.” Meredith v. Erath, No. 99CV13100, 2001 WL 1729626,
at *1 (C.D. Cal. Sept. 19, 2001); accord Selectron Indus. Co. v. Selectron Int’l, No.
CV04-4146-PLA, 2007 WL 5193735, at *3 (C.D. Cal. Sept. 25, 2007) (“Although Local
Rule 7-18 does not expressly set a time frame in which to file a motion under that
provision, ‘the rule has been read to provide for a reasonable time within which to seek
reconsideration.’” (internal quotation marks and modification omitted) (quoting United
States v. Comprehensive Drug Testing, Inc., 473 F.3d 915, 928–29 (9th Cir. 2006))); Mut.
Life Ins. Co. of N.Y. v. Pointe Tapatio Resort Props. No. 1 Ltd. P’ship, 206 F.R.D. 495,
497 (D. Ariz. 2002) (“Absent a Local Rule on the timeliness of filing a motion for
reconsideration, Courts apply the reasonable-time standard set forth in Rule 60(b).”).
Here, Defendants contend that they could not reasonably have discovered these
documents prior to the March 2010 summary judgment order, and that they did not learn
of the existence of the 2004 and 2009 letters until October 2011. (Mot. at 12; Burhenn
Decl. ¶¶ 4, 6.) Even assuming this is true, however, Defendants still waited three years
and three months (from October 2011 to January 2015) to file this motion based on this
“newly discovered” evidence.9 Courts have routinely rejected motions for
reconsideration brought such a long time after discovery of new facts. See, e.g.,
Selectron Indus., 2007 WL 5193735, at *3 (finding four months to be too long a delay);
9
The case was stayed during part of this time. (See, e.g., Dkt. No. 347.) As Plaintiffs argue, however,
Defendants could have moved to lift the stay to file this motion for reconsideration, a tactic they
employed successfully in seeking partial summary judgment on Plaintiffs’ claims in January 2011. (See
Dkt. Nos. 324, 345.)
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CIVIL MINUTES – GENERAL
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
Mut. Life Ins. Co. of N.Y., 206 F.R.D. at 498 (finding twenty months to be too long);
Meredith, 2001 WL 1729626, at *1 (“Eleven months is not reasonable.”).10 Defendants
argue that this delay caused Plaintiffs no prejudice, but prejudice is not the standard.
Rather, Defendants must file a motion for reconsideration within a reasonable time.
Defendants have failed to provide an adequate explanation as to how waiting over three
years was reasonable here. As a result, the Court finds that Defendants’ motion for
reconsideration should be denied for lack of timeliness as well.11
B. Motion to Dismiss
The next motion before the Court is Defendants’ motion to dismiss Plaintiffs’
second, third, and fifth claims for relief or, in the alternative, to strike Plaintiffs’ prayer
for injunctive relief. (Dkt. No. 394.) In their motion, Defendants contend that Plaintiffs’
second, third, and fifth claims for injunctive relief have been rendered moot by a new
municipal stormwater permit issued by the Regional Board in 2012 and a resolution
providing an exception to Defendants from the prohibition against waste discharges into
ASBSs. Defendants further claim that these developments render Plaintiffs’ prayer for
civil penalties moot as well.
1. Plaintiffs’ Claims for Injunctive Relief Are Now Moot
To begin, Plaintiffs’ remaining claims allege that Defendants caused or contributed
to exceedances of water quality standards in the Los Angeles and San Gabriel Rivers in
violation of 33 U.S.C. §§ 1311(a), 1342(p). On appeal, the Ninth Circuit found
Defendants liable on these claims “[b]ecause the results of County Defendants’ pollution
monitoring conclusively demonstrate[d] that pollution levels in the Los Angeles and San
10
See also Dais v. Lane Bryant, Inc., 203 F.R.D. 115, 117 (S.D.N.Y. 2001) (finding a year and a half to
be too long); Sec. Mut. Cas. Co. v. Century Cas. Co., 621 F.2d 1062, 1068 (10th Cir. 1980) (sustaining
denial of Rule 60 relief where the moving party did not file for three months); West v. Gilbert, 361 F.2d
314, 316 (2d Cir. 1966) (upholding denial of Rule 60 relief based on a delay of approximately three
months); Stonewall Ins. Co. v. Nat’l Gypsum Co., No. 86 Civ. 9671, 1992 WL 51567, at *6 (S.D.N.Y.
Mar. 9, 1992) (finding delay of more than a year to be unreasonable).
11
Because the Court finds that the motion should be rejected for alternative grounds, the Court need not
consider the parties’ dispute over whether Defendants were diligent in discovering this information.
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
Gabriel Rivers [we]re in excess of those allowed under the Permit.” Natural Res. Def.
Council, 725 F.3d at 1210. As Defendants argue, however, this ruling concerned only the
2001 permit and thus does not establish that Defendants are liable under the 2012 permit.
See id. at 1199 & n.7 (stating that “the version of the Permit at issue in this litigation
came into force on December 13, 2001” and noting that, “[o]n November 8, 2012, the
Regional Board issued a new NPDES permit to the County Defendants and various other
permittees”); id. at 1205 (noting that the court’s “sole task at this point of the case is to
determine what Plaintiffs are required to show in order to establish liability under the
terms of this particular NPDES permit”). And although the parties dispute the extent of
the changes, the parties agree that the 2012 Permit changed various provisions of the
2001 Permit. Accordingly, the Court must determine whether the changes to these
provisions in the 2012 Permit render Plaintiffs’ claims for injunctive relief moot, which
they would if Defendants are now in compliance and “it is ‘absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to recur.’” Gwaltney of
Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 66 (1987) (quoting United
States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203 (1968)); accord Natural
Res. Def. Council, Inc. v. Texaco Ref. & Mktg., Inc., 2 F.3d 493, 502 (3d Cir. 1993).12
Plaintiffs correctly note that “where the limits contained in a superceded permit are
incorporated into or made more strict in the new permit, there is no reason to allow a
defendant to avoid enforcement of those limits.” Natural Res. Def. Council, Inc. v.
Texaco Ref. & Mktg., Inc., 719 F. Supp. 281, 290 (D. Del. 1989), order vacated in part
on other grounds, 906 F.2d 934 (3d Cir. 1990); accord Natural Res. Def. Council v. Sw.
Marine, Inc., 236 F.3d 985, 992 & n.2 (9th Cir. 2000) (upholding injunction based on
provisions in three different stormwater permits that were issued during pendency of
litigation because the provisions at issue “remained essentially consistent” throughout).
As Defendants argue, however, “where the relevant governmental authorities have
relaxed the NPDES standards, a plaintiff’s claims for violations of the superceded permit
12
Both parties provide incomplete statements of the standard from Gwaltney. Defendants argue that
they need only demonstrate that “there is no reasonable expectation that the wrong will be repeated,”
whereas Plaintiffs contend that Defendants must establish that it is “absolutely clear” that Defendants
will not violate the permit again. The correct standard incorporates both of these concepts, requiring
Defendants to establish that it is “absolutely clear” that no violations can “reasonably be expected to
recur.” Gwaltney, 484 U.S. at 66.
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
do indeed become moot.” Mass. Pub. Interest Research Grp. v. ICI Ams. Inc., 777 F.
Supp. 1032, 1035 (D. Mass. 1991). This rule is settled as to claims for injunctive relief
because, as the Supreme Court has noted, “the interest of the citizen-plaintiff is primarily
forward-looking.” Gwaltney, 484 U.S. at 59. The parties thus dispute whether the
changes in the permit enhanced or relaxed the standards, whether Defendants are
currently in compliance with those standards, and whether it is “absolutely clear” that
Defendants’ violations could “reasonably be expected to recur.” Id. at 66.
a. Changes in the 2012 Permit
Plaintiffs’ second, third, and fifth claims are based on one provision of the 2001
Permit—which the parties refer to as the “receiving water limitations” provision—that
prohibits “discharges that cause or contribute to violations of Water Quality Standards.”13
(See FAC ¶¶ 64, 283, 307–08, 316–17, 338.) While Defendants agree that the 2012
Permit retained “in substantial form the 2001 permit’s original receiving water limitation
provision[],” they argue that the 2012 Permit “modified in fundamental ways the manner
in which permittees comply with this provision.” (Mot. at 1, 12.) Specifically, the 2012
Permit created new programs known as Watershed Management Programs (“WMPs”)
and Enhanced Watershed Management Programs (“EWMPs”) and added requirements
relating to TMDLs, which represent the “level[s] necessary to implement the applicable
water quality standards.” 33 U.S.C. § 1313(d)(1)(C). Consequently, while Defendants
concede that the Ninth Circuit’s ruling interpreting the 2001 Permit made clear that
Permittees are liable as a matter of law when their pollution monitoring conclusively
demonstrates that the pollution levels are in excess of those allowed in the permit, see
Natural Res. Def. Council, 725 F.3d at 1210, they contend that the 2012 Permit provides
that such exceedances do not constitute violations if the Permittee is otherwise in
compliance with a WMP, an EWMP, or the Permit’s TMDL provisions.
The purpose stated in the 2012 Permit for introducing these new methods of
compliance is “to allow Permittees the flexibility to develop Watershed Management
Programs to implement the requirements of this Order on a watershed scale through
customized strategies, control measures, and BMPs.” (Dkt. No. 396 at 35.) And, as
13
Plaintiffs’ fifth claim is also predicated on the permit’s incorporation of the Ocean Plan’s prohibition
against discharges into an ASBS.
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
Defendants argue, the Regional Board observed in its accompanying Fact Sheet that this
marked a divergent approach from that taken in the 2001 Permit:
There are several reasons for this shift in emphasis from Order No.
01-182. A watershed based structure for permit implementation is consistent
with TMDLs . . . .
An emphasis on watersheds is appropriate at this stage in the region’s
MS4 program to shift the focus of the Permittees from rote program
development and implementation to more targeted, water quality driven
planning and implementation.
(Dkt. No. 396 at 79.) Defendants thus argue that the 2012 Permit has changed the lens
through which pollutants in stormwater are viewed in Los Angeles County. They argue
that “[i]nstead of viewing stormwater solely through the lens of water quality, WMPs and
EWMPs constitute a watershed-based approach to implementing water quality
improvements and EWMPs emphasize the use of stormwater as a resource.” (Mot. at 1–
2; accord Mot. at 13.)
Importantly, the 2012 Permit also made clear that a Permittee who complies with
the WMP, EWMP, and TMDL programs shall be in compliance with receiving water
limitations for purposes of the provision at issue here. For example, Section VI.C.2.b of
the Permit states: “A Permittee’s full compliance with all requirements and dates for their
achievement in an approved Watershed Management Program or EWMP shall constitute
a Permittee’s compliance with the receiving water limitations provisions in Part V.A. of
this Order for the specific water body-pollutant combinations addressed by an approved
Watershed Management Program or EWMP.” (See Dkt. No. 396 at 40; accord Dkt. No.
396 at 41 (Section VI.C.3.a) (“A Permittee’s full compliance with all requirements and
dates for their achievement in an approved Watershed Management Program or EWMP
shall constitute a Permittee’s compliance with provisions pertaining to applicable interim
water quality based effluent limitations and interim receiving water limitations.”).) As
for TMDLs, Section VI.E.2.c.ii states: “A Permittee’s full compliance with the applicable
TMDL requirement(s), including compliance schedules, of this Part VI.E. and
Attachments L through R constitutes compliance with Part V.A. of this Order for the
specific pollutant addressed in the TMDL.” (Dkt. No. 396 at 59.)
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Page 16 of 43
LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
Plaintiffs themselves have recognized this effect of the 2012 Permit in their
petition to the State Board challenging the Permit. There, Plaintiffs stated:
Rather than maintaining the 2001 Permit’s prohibition against
discharges that cause or contribute to an exceedance of water quality
standards, the 2012 Permit creates safe harbors that exempt compliance with
the Receiving Water Limitations for Permittees that elect to participate in a
WMP or an EWMP. . . .
The 2012 Permit creates safe harbors by deeming a Permittee to be in
compliance with the Permit’s [Receiving Water Limitations] (which was
required by the 2001 Permit), both once a WMP or an EWMP has been
approved by the Regional Board and during plan development.
(Dkt. No. 398 at 5 (emphasis added).) Plaintiffs thus concede not only that the 2012
Permit provides Permittees with other methods of compliance, but also that those
Permittees are deemed to be in compliance while they are developing a WMP or EWMP,
provided that the Permittee meets all relevant deadlines and criteria required by that plan.
The same is true with regard to TMDLs. As the Regional Board’s Fact Sheet
accompanying the 2012 Permit states:
The Regional Water Board recognizes that, in the case of impaired waters
subject to a TMDL, the permit’s receiving water limitations for the
pollutants addressed by the TMDL may be exceeded during the period of
TMDL implementation. Therefore, this Order provides, in Part VI.E.2.c,
that a Permittee’s full compliance with the applicable TMDL requirements
pursuant to the compliance schedules in this Order constitutes a Permittee’s
compliance with the receiving water limitations provisions in Part V.A. of
this Order for the particular pollutant addressed by the TMDL.
(Dkt. No. 396 at 78 (emphasis added).)14 Accordingly, pursuant to the changes in the
2012 Permit, a Permittee can now demonstrate its compliance by initiating a watershed
14
(See also Dkt. No. 396 at 78 (“A Permittee’s full compliance with all requirements and dates for their
achievement in an approved Watershed Management Program or enhanced Watershed Management
Program constitutes compliance with the receiving water limitations provisions in Part V.A. of the Order
CV-90 (06/04)
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
program such as a WMP or EWMP or by establishing its TMDLs, provided that it meets
the requirements and deadlines identified by the Regional Board in the 2012 Permit.
b. Defendants Are Currently in Compliance
Defendants argue that the introduction of these programs renders them in
compliance with the new Permit because, “unlike the 2001 permit, the 2012 permit gives
permittees time to accomplish compliance with water quality standards in light of the
new TMDL requirements and as an incentive to design and implement WMPs and
EWMPs.” (Mot. at 2.) Indeed, the 2012 Permit allows Permittees eighteen and thirty
months, respectively, to submit draft WMPs and EWMPs, and it makes clear that they are
in compliance during the implementation of these plans provided that they keep up with
all requirements and deadlines.
Here, it is undisputed that Defendants have filed WMP and EWMP work plans for
all watersheds into which they discharge and which are monitored by the 2012 Permit.
(See Mot. at 21; Opp’n at 13; see also George Decl. ¶¶ 3–5; Dkt. No. 426 (George
Deposition) at 11–21.) Defendants have also submitted a declaration by the Assistant
Deputy Director of the Los Angeles County Department of Public Works indicating that
Defendants are complying with all TMDL Permit requirements related to the Los
Angeles and San Gabriel Rivers (the subjects of these claims). (George Decl. ¶ 5.)
Neither party suggests that Defendants have at this point failed to meet any of the
requirements or deadlines imposed by the 2012 Permit. Accordingly, it appears that
Defendants are currently deemed to be in compliance with the 2012 Permit at least based
on their participation in WMP and EWMP work plans.
As discussed above, to find that this case no longer retains a justiciable case or
controversy, the Court must determine that “it is ‘absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur.’” Gwaltney, 484 U.S. at
66. Plaintiffs make two arguments as to why the Court should conclude that it is not
absolutely clear.
for the specific water body-pollutant combinations addressed by an approved Watershed Management
Program or enhanced Watershed Management Program.”).)
CV-90 (06/04)
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
First, Plaintiffs’ primary argument is that Defendants could fall out of compliance
anytime by failing to meet deadlines for their WMP or EWMP programs or their TMDL
requirements, a possibility which, by itself, makes it unclear that Defendants’ violations
will not recur. For example, Plaintiffs argue that there is no guarantee that the Regional
Board will approve each of Defendants’ watershed programs. (Opp’n at 13.) In support
of this argument, they note that Defendants submitted draft WMPs to the Regional Board
last summer, and that the Board provided comments and “necessary revisions” to be
made to those drafts. (Opp’n at 13.) Plaintiffs suggest that the need for revisions
demonstrates the likelihood (or at least reasonable possibility) that Defendants’ watershed
programs will not be approved. But the need for revisions suggests no such thing; in fact,
Plaintiffs note that “defendants submitted revised, final WMPs” in January 2014. (Opp’n
at 13 (emphasis added).) That Defendants at least revised their programs in response to
the Regional Board’s comments and revisions suggests (even if it does not establish) a
commitment to compliance more than a likelihood of falling out of compliance.
Plaintiffs’ related arguments regarding the many requirements and deadlines that
Defendants must meet to have their watershed programs eventually approved are
similarly speculative. (See Opp’n at 14–16.) It is not disputed that the watershed
programs require Permittees to meet certain requirements and deadlines, but the fact that
Defendants may fail to meet a requirement or deadline in the future is not enough to
demonstrate any expectation that Defendants will fall out of compliance. See Miss. River
Revival, Inc. v. City of Minneapolis, Minn., 319 F.3d 1013, 1016–17 (8th Cir. 2003) (“We
refuse to speculate that these public bodies will allow the resumption of discharges
without a permit. Thus, the only violations alleged by plaintiffs cannot reasonably be
expected to recur.”). In fact, Plaintiffs’ argument on these bases could be extended to
find a justiciable case or controversy over the compliance of any Permittee seeking to
demonstrate its compliance through these watershed programs, as it is just as possible for
any other Permittee to fail to have its watershed program approved in the future. While
the burden remains with Defendants to prove that it is absolutely clear that they are not
reasonably likely to fall out of compliance, following Plaintiffs’ argument would
transform this burden from “heavy” to impossible. The Court is unwilling to follow this
reasoning, particularly in light of evidence that Defendants intend to abide by all
requirements to remain in compliance. (George Decl. ¶¶ 4–6; Dkt. No. 426 at 17–21.)
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
Second, Plaintiffs argue that the State Board could overturn the Regional Board’s
2012 Permit and change the requirements for compliance. (See Opp’n at 6–7.)
Specifically, Plaintiffs contend that if the State Board adopts its tentative resolution of the
pending appeal regarding the 2012 Permit, “[e]ven permittees successfully implementing
an EWMP, therefore, would need to implement additional measures to achieve final
TMDL limits in fact.” (Opp’n at 7.) But there is no reason to suspect that Defendants
would not comply with any additional measures required by the State Board. Rather, as
discussed above, all evidence before the Court suggests that Defendants will meet any
such compliance requirements mandated by the Regional Board. Consequently, the
Court finds nothing in the record to indicate a reasonable expectation that Defendants
will fall out of compliance with the 2012 Permit.
Reaching a contrary conclusion would effectively usurp the position of the
Regional Board in evaluating Defendants’ compliance with measures it has adopted.
Unlike in the 2001 Permit, Defendants now have multiple methods by which to
demonstrate their compliance. The Ninth Circuit has already determined that
Defendants’ admitted exceedances violated the 2001 Permit as a matter of law, but that
decision explicitly considered only the terms of the 2001 permit. See Natural Res. Def.
Council, 725 F.3d at 1205 (stating that the court’s “sole task at this point of the case is to
determine what Plaintiffs are required to show in order to establish liability under the
terms of this particular NPDES permit”). Under the 2012 Permit, Defendants can now
demonstrate their compliance by participating in a watershed program or by establishing
the TMDLs, as discussed above. The Board has not determined that Defendants have
failed to comply with any requirements or deadlines mandated by these programs, and the
Court has been provided with no evidence that Defendants will not comply to the fullest
extent. Of course, if Defendants fall out of compliance by, for example, failing to meet
the requirements for their WMP and EWMP programs, a justiciable case or controversy
will arise, and Plaintiffs may serve an appropriate notice letter pursuant to 33 U.S.C.
§ 1365(b)(1). At this stage, however, the Court finds that Defendants are currently in
compliance with the applicable permit, and that it is absolutely clear that Defendants
cannot reasonably be expected to fall out of compliance. Gwaltney, 484 U.S. at 66. As a
result, the Court finds Plaintiffs’ remaining claims for injunctive relief to be moot. See
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
id.; Mass. Pub. Interest Research Grp., 777 F. Supp. at 1035; Texaco Ref. & Mktg., 2
F.3d at 502.15
2. Plaintiffs’ Claims for Civil Penalties Are Not Moot
Although the Court has found that Plaintiffs’ claims for injunctive relief are moot,
whether that determination should also moot Plaintiffs’ claims for civil penalties based on
past violations is not well settled. As the parties concede, the Supreme Court has not
explicitly addressed this issue, and there is no consensus among the federal courts on how
to resolve it. “As is ordinarily the case with monetary relief, liability for civil penalties
under the Clean Water Act attaches at the time the violations occur, not at the time of the
judgment.” Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1153 (9th Cir.
2000). In Ecological Rights Foundation, the Ninth Circuit was confronted with an
argument that the case had become moot because a new permit superseded the permit on
which the complaint was based. Id. Although it did not decide that issue, the court
nevertheless reasoned: “Even if the plaintiffs’ claims for injunctive or declaratory relief
for violations of the earlier General Permit became moot when the 1997 General Permit
went into effect—an issue we do not decide—the plaintiffs’ claims for civil penalties and
attorneys’ fees would remain viable.” Id. As the court explained, “such monetary
penalties continue to fulfill their purpose after the issuance of a new permit: Civil
penalties deter future violations of the Clean Water Act even when injunctive relief is
inappropriate.” Id. (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 185 (2000) (“[C]ivil penalties in Clean Water Act cases do more than
promote immediate compliance by limiting the defendant’s economic incentive to delay
its attainment of permit limits; they also deter future violations.”)).
Consequently, the Ninth Circuit has joined other circuits in holding that the
issuance of a new permit that moots injunctive relief claims under the Clean Water Act
does not automatically moot civil penalty claims as well. Id.; see also Texaco Ref. &
Mktg., 2 F.3d at 503 (“[We] hold that claims for damages are not moot because an
15
Because the Court finds Plaintiffs’ claims for injunctive relief to be moot for alternative reasons, it
need not consider Defendants’ arguments that the Ninth Circuit’s mandate relied on monitoring
provisions that are no longer applicable or that Plaintiffs’ fifth cause of action fails in light of the
Regional Board’s 2012 exception to the Ocean Plan’s ASBS waste discharge prohibition.
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Page 21 of 43
LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
intervening NPDES permit eliminates any reasonable possibility that Texaco will
continue to violate specified parameters.”); Atl. States Legal Found., Inc. v. Pan Am.
Tanning Corp., 993 F.2d 1017, 1021 (2d Cir. 1993) (“We hold . . . that a defendant’s
ability to show, after suit is filed but before judgment is entered, that it has come into
compliance with limits on the discharge of pollutants will not render a citizen suit for
civil penalties moot.”); Atl. States Legal Found., Inc. v. Tyson Foods, Inc., 897 F.2d
1128, 1135 (11th Cir. 1990) (“[I]f the parties are able to make a valid request for
injunctive relief at the time the complaint is filed, then they may continue to maintain a
suit for civil penalties, even when injunctive relief is no longer appropriate.”);
Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 890 F.2d 690, 696 (4th Cir.
1989) (“[T]he penalty factor keeps the controversy alive between plaintiffs and
defendants in a citizen suit, even though the defendant has come into compliance and
even though the ultimate judicial remedy is the imposition of civil penalties assessed for
past acts of pollution.”). But see Miss. River Revival, 319 F.3d at 1016 (“The Clean
Water Act authorizes the EPA to seek civil penalties for past violations, and such a claim
would not be mooted by the defendant’s subsequent compliance. But the Act limits
citizen suit plaintiffs to remedies that will redress ongoing and future injury, so the
Laidlaw mootness standard applies.” (internal citation omitted)).
Nevertheless, Defendants argue that this case is distinguishable from Ecological
Rights Foundation—which involved the introduction of a stricter permit—because
“[t]his is not a case in which civil penalties would serve a deterrent purpose.” (Mot. at
24.) Defendants further argue that the Ninth Circuit here did not base its finding of
liability on any evidence related to Defendants’ conduct, holding Defendants liable solely
because they were Permittees whose monitoring program demonstrated that they were in
violation of the Permit. The Court finds this argument unpersuasive. As Plaintiffs argue,
the Ninth Circuit found Defendants liable as a matter of law based on self-reported water
sampling data that “conclusively demonstrate that the County Defendants are not ‘in
compliance’ with the Permit conditions.” Natural Res. Def. Council, 725 F.3d at 1206–
07. In fact, the Ninth Circuit explicitly rejected Defendants’ argument, based on “their
perception of the evidentiary burden,” “that they cannot be held liable for Permit
violations based solely on the data published in the District’s monitoring reports.” Id. at
1204. More importantly, even if, as Defendants argue, the Ninth Circuit did not
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
determine that Defendants were responsible for those violations, that would not render
the issue moot; it would simply require further determination.
For the reasons discussed above, Defendants’ motion to dismiss is GRANTED in
part and DENIED in part. Plaintiffs’ claims for injunctive relief are moot because they
are based on a permit that has been superseded and because Defendants are now in
compliance with the new permit. Plaintiffs’ claims for monetary civil penalties, however,
are not mooted by the issuance of this new permit.
C. Motion for Partial Summary Judgment
Finally, the Court will address Plaintiffs’ motion for summary judgment. In this
motion, Plaintiffs ask that the Court (1) enumerate Defendants’ already-adjudicated
violations of the 2001 Permit, (2) grant Plaintiffs partial summary judgment on
Defendants’ continued violations of the 2001 Permit after 2009 (which have not yet been
determined), and (3) strike Defendants’ demand for a jury trial.
1. Defendants’ Enumerated Violations
Defendants’ primary argument in opposition to Plaintiffs’ request to enumerate
Defendants’ violations is that Plaintiffs have not yet established Defendants’
responsibility for any violations. In support of this argument, Defendants rely on one
sentence from the Ninth Circuit’s mandate, in which the court held that “a finding of
liability against the County Defendants would not, as defendants argue, hold any County
Defendant responsible for discharges for which they are not ‘the operator.’” Natural Res.
Def. Council, 725 F.3d at 1206. As Plaintiffs argue, however, this statement referred to
the Court’s role in fashioning a remedy, not in establishing the violations for which
Defendants may be liable. Indeed, the Ninth Circuit explicitly rejected the argument that
only those entities responsible for a particular violation can be liable for it:
Reading the clause that “[e]ach permittee is responsible only for a discharge
for which it is the operator” to preclude use of the mass-emission monitoring
data to “assess [] compliance with this [Permit]” would render the
monitoring provisions of the Permit largely meaningless. Under the County
Defendants’ reading of the Permit, individual Permittees could discharge an
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
unlimited amount of pollutants from the LA MS4 but never be held liable for
those discharges based on the results of the mass-emissions monitoring, even
though that monitoring is explicitly intended to assess whether Permittees
are in compliance with Part 2’s discharge limitations. We are unwilling to
accept such a strained interpretation.
Id. (modifications in original). Thus, while any remedy fashioned by the Court must
require a Permittee in violation of the Permit to “take appropriate remedial measures with
respect to its own discharges”—a requirement that is irrelevant now that the Court has
determined Plaintiffs’ claims for injunctive relief to be moot—the Ninth Circuit’s holding
makes clear that Defendants are still liable for any Permit exceedances exhibited by
Defendants’ monitoring stations. Id. at 1206–07.
Next, Defendants raise several arguments as to why the 147 Permit violations
listed by Plaintiffs overstate the number of exceedances in the Los Angeles and San
Gabriel Rivers. (Opp’n at 5–16.) Specifically, Defendants argue that eleven fecal
cloriform exceedances should be excused due to the weather conditions at the time, that
the presence of aluminum did not violate the 2001 Permit, and that various copper and
zinc discharges were not in excess of the applicable standards. As Plaintiffs argue,
however, the Ninth Circuit issued its mandate in reliance on Defendants’ self-reported
exceedances submitted in this Court’s prior summary judgment proceedings. In fact, in
remanding to this Court for the appropriate remedy, the Ninth Circuit explicitly
concluded “that the pollution exceedances detected at the County Defendants’ monitoring
stations [we]re sufficient to establish the County Defendants’ liability for NPDES permit
violations as a matter of law.” Natural Res. Def. Council, 725 F.3d at 1197.
Plaintiffs correctly argue that Defendants cannot now, on remand, argue that the
reports do not accurately reflect the exceedances for which they should be liable. This is
true for two reasons. First, to the extent that Defendants are arguing that the reports do
not accurately reflect the data (a characterization of Defendants’ argument that
Defendants dispute), they are prohibited from doing so by Sierra Club v. Union Oil Co.
of California, in which the Ninth Circuit held “that when a permittee’s reports indicate
that the permittee has exceeded permit limitations, the permittee may not impeach its own
reports by showing sampling error.” 813 F.2d 1480, 1492 (9th Cir. 1987), vacated on
other grounds, 485 U.S. 931 (1988), judgment reinstated and amended, 853 F.2d 667
CV-90 (06/04)
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
(9th Cir. 1988). Second, to the extent that Defendants are raising arguments regarding
their liability for these discharges (including whether these discharges constituted
exceedances), they forfeited these arguments by never disputing the accuracy of their
self-reported exceedances until now. See Brass v. Cnty. of L.A., 328 F.3d 1192, 1198
(9th Cir. 2003) (finding district court’s exclusion of arguments made for the first time on
remand to be proper). “An argument bypassed by the litigants, and therefore not
presented in the court of appeals, may not be resurrected on remand and used as a reason
to disregard the court of appeals’ decision.” Barrow v. Falck, 11 F.3d 729, 730 (7th Cir.
1993). That is precisely what is happening here; having lost at the circuit level,
Defendants are attempting to raise new arguments in an attempt to avoid the liability that
the Ninth Circuit has already ordered this Court to impose.
Accordingly, the Court finds it appropriate to enumerate the violations previously
found by this Court and the Ninth Circuit. In doing so, the Court is guided by the Ninth
Circuit’s mandate, which held: “Because the results of County Defendants’ pollution
monitoring conclusively demonstrate that pollution levels in the Los Angeles and San
Gabriel Rivers are in excess of those allowed under the Permit, the County Defendants
are liable for Permit violations as a matter of law.” Natural Res. Def. Council, 725 F.3d
at 1210. As a result, Defendants are liable for the 147 exceedances described in
Defendants’ monitoring reports, which the Ninth Circuit found were conclusively
demonstrated to be Permit violations by Defendants’ own pollution monitoring. These
violations are enumerated in Appendix A.
For similar reasons, and because the Court has denied Defendants’ motion for
reconsideration of the Court’s prior order granting Plaintiffs’ summary judgment on their
fifth cause of action, the Court also enumerates the 48 Permit violations caused by
Defendants’ discharges of waste from District storm drains to an ASBS in 2004, which
are enumerated in Appendix B.
2. Defendants’ Continued Violations After 2009
Next, Plaintiffs request that the Court grant them partial summary judgment on
additional, self-reported exceedances which they claim constitute permit violations as a
matter of law based on this Court’s holdings and the Ninth Circuit’s mandate. The Court
agrees in part. As the Court explained above, the issuance of the 2012 Permit rendered
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
moot Plaintiffs’ claims for injunctive relief because there is no evidence that Defendants
have not been in compliance with that Permit. Up until the issuance of that Permit,
however—or, more accurately, until that Permit went into effect on December 28, 2012,
(see Dkt. No. 393-2 at 10)—any exceedances reported by Defendants’ pollution
monitoring constitute violations of the 2001 Permit as a matter of law. See Natural Res.
Def. Council, 725 F.3d at 1210. From the time that Plaintiffs submitted their motion for
summary judgment in September 2009 until the 2012 Permit went into effect on
December 28, 2012, Defendants disclosed 66 pollution limit violations in the Los
Angeles and San Gabriel Rivers for cyanide, pH, dissolved copper, dissolved zinc, fecal
coliform, and E.coli bacteria. (Defs.’ Response to Pls.’ Separate Statement of
Undisputed Facts (Dkt. No. 413) ¶ 1.) Under the Ninth Circuit’s ruling, these
exceedances constitute permit violations as a matter of law for which Defendants are
liable. See Natural Res. Def. Council, 725 F.3d at 1210. Accordingly, the Court hereby
GRANTS Plaintiffs’ summary judgment on the additional watershed violations, which
are enumerated in Appendix C.
Plaintiffs also request partial summary judgment on additional ASBS waste
discharge violations that allegedly occurred in 2012 and 2013. As the Court has already
explained, any discharges after December 28, 2012 (when the 2012 Permit went into
effect) are not actionable. Nevertheless, that leaves 24 alleged dry weather discharges—
11 by the County and 13 by the District—that Plaintiffs claim Defendants reported prior
to December 2012. (See Dkt. No. 389-1 at 11–12.)
Defendants argue first that the March 2012 State Board Resolution authorizing an
“exception” to the ASBS discharge prohibition exempts them from these violations. As
Plaintiffs argue, however, the Resolution does not apply to dry weather discharges such
as those alleged by Plaintiffs here. (See Dkt. No. 393-8 at 4 (“Only storm water and
nonpoint source waste discharges by the applicants listed in Attachment A to this
resolution are covered by this resolution. All other waste discharges to ASBS are
prohibited, unless they are covered by a separate, applicable Ocean Plan exception.”).)
Defendants also contend that the majority of these remaining discharges do not
actually qualify as “discharges” under the meaning of the Ocean Plan because they never
reached the ocean; they merely reached the beach. (Opp’n at 17–18; see also Dkt. No.
393-6 at 47–48.) Indeed, from the tables Plaintiffs rely on to support their additional
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
ASBS violations, it appears that only two of the “flows” reached the ocean. (See Dkt.
No. 393-6 at 47–48.) In support of Defendants’ theory that this fact prohibits the
remaining flows from constituting “discharges,” however, Defendants rely on a glossary
definition in the 2012 Resolution, which, as explained above, applies only to “storm
water and nonpoint source waste discharges.” (Dkt. No. 393-8 at 4.) Moreover,
Plaintiffs cite a decision by Judge Matz in a parallel proceeding, in which Judge Matz
interpreted Caltrans (which, as discussed above, see supra n.8 and accompanying text, is
a binding, precedential order) to conclude that “the simple act of discharges falling onto a
beach abutting the ASBS constituted a violation of the Ocean Plan.” See Santa Monica
Baykeeper v. City of Malibu, No. CV 08-1465 AHM (PLAx) (C.D. Cal. Aug. 2, 2010)
(Dkt. No. 144 at 17) (attached herein as Dkt. No. 393-7 at 6). Indeed, in Caltrans, the
State Board explicitly rejected Defendants’ argument, stating:
Caltrans argues that because its storm water pipes discharge directly above
the high tide line, that the discharges are not “into” the ASBS. In fact, the
findings in the CDO and the discharge prohibition in the Ocean Plan refer to
discharges “to” ASBS, and not discharges “into” ASBS. The Regional
Water Board responds that the discharges, which terminate on bluffs above
the beach, are in fact “to” the ASBS. We find that this interpretation of the
discharge prohibition is reasonable. Indeed, if it were not upheld, the only
discharges that would be prohibited would be ocean outfalls from major
facilities.
Caltrans, 2001 WL 36247991, at *3. As a result, Defendants have failed to point to a
triable issue that these additional “flows” do not constitute the type of ASBS discharges
that the Court has found to be Permit violations.16 The Court therefore GRANTS
Plaintiffs summary judgment on this issue and finds that the County is liable for the 11
additional discharges enumerated in Appendix D and that the District is liable for the 13
additional discharges listed in Appendix E.
16
For the same reasons discussed above, Defendants’ arguments regarding who caused or was
responsible for the discharges are irrelevant for purposes of determining liability. Such arguments are
appropriate for determining a remedy, but the Ninth Circuit found that Defendants’ pollution
monitoring—by itself—“conclusively demonstrate[d] that the County Defendants are not ‘in
compliance’ with the Permit conditions.” Natural Res. Def. Council, 725 F.3d at 1206–07.
CV-90 (06/04)
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
3. Defendants’ Demand for a Jury Trial
As discussed above, Defendants’ liability in this matter has already been
established by the Ninth Circuit. See Natural Res. Def. Council, 725 F.3d at 1210. The
only issue Defendants raise in support of maintaining their right to a jury trial is the
notion of responsibility. But this issue relates only to the appropriate remedy that the
Court must fashion for Defendants’ established violations, and not whether Defendants
are indeed liable. As a result, the only remaining issue to be resolved is what civil
penalties to award for Defendants’ violations. And in the context of the Clean Water Act,
“Congress intended that trial judges perform the highly discretionary calculations
necessary to award civil penalties after liability is found.” Tull v. United States, 481 U.S.
412, 425 (1987). Accordingly, because no triable issue remains for the jury to determine,
the Court hereby STRIKES Defendants’ demand for a jury trial.
V.
CONCLUSION
For the foregoing reasons, the Court rules as follows:
Defendants’ motion for reconsideration is DENIED;
Defendants’ motion to dismiss is GRANTED in part and DENIED in part
on the basis that Plaintiffs’ claims for injunctive relief are moot, but that
Plaintiffs’ claims for monetary civil penalties remain active; and
Plaintiffs’ motion for summary judgment is GRANTED in part and
DENIED in part in accordance with the Court’s ruling on Defendants’
motion to dismiss and motion for reconsideration.
:
IT IS SO ORDERED.
Initials of Preparer
CV-90 (06/04)
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rf
Page 28 of 43
LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
Appendix A
Date
River
10/28/2003
Cyanide
Los Angeles River
10/28/2003
Cyanide
San Gabriel River
10/28/2003
Fecal Coliform
Los Angeles River
10/28/2003
Total Copper
Los Angeles River
10/31/2003
Cyanide
Los Angeles River
10/31/2003
Fecal Coliform
Los Angeles River
10/31/2003
Fecal Coliform
San Gabriel River
10/31/2003
Total Aluminum
Los Angeles River
10/31/2003
Total Copper
Los Angeles River
10/31/2003
Total Zinc
Los Angeles River
12/25/2003
Fecal Coliform
Los Angeles River
12/25/2003
Fecal Coliform
San Gabriel River
12/25/2003
Total Copper
Los Angeles River
1/1/2004
Fecal Coliform
Los Angeles River
1/1/2004
Total Copper
Los Angeles River
1/13/2004
Cyanide
Los Angeles River
1/13/2004
Total Zinc
Los Angeles River
10/17/2004
Fecal Coliform
Los Angeles River
10/17/2004
CV-90 (06/04)
Constituent
Fecal Coliform
San Gabriel River
CIVIL MINUTES – GENERAL
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
10/17/2004
Los Angeles River
10/17/2004
Total Copper
Los Angeles River
10/17/2004
Total Copper
San Gabriel River
10/17/2004
Total Zinc
Los Angeles River
10/26/2004
Cyanide
Los Angeles River
10/26/2004
Fecal Coliform
Los Angeles River
10/26/2004
Fecal Coliform
San Gabriel River
10/26/2004
Total Aluminum
Los Angeles River
10/26/2004
Total Copper
Los Angeles River
10/26/2004
Total Zinc
Los Angeles River
11/16/2004
Cyanide
Los Angeles River
11/16/2004
Total Copper
Los Angeles River
12/5/2004
Fecal Coliform
Los Angeles River
12/5/2004
Fecal Coliform
San Gabriel River
12/5/2004
Total Aluminum
Los Angeles River
12/5/2004
Total Aluminum
San Gabriel River
12/5/2004
Total Copper
Los Angeles River
12/5/2004
Total Copper
San Gabriel River
12/5/2004
Total Zinc
Los Angeles River
1/7/2005
Fecal Coliform
Los Angeles River
1/7/2005
CV-90 (06/04)
Total Aluminum
Fecal Coliform
San Gabriel River
CIVIL MINUTES – GENERAL
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
1/7/2005
Los Angeles River
1/7/2005
Total Aluminum
San Gabriel River
1/7/2005
Total Copper
Los Angeles River
1/7/2005
Total Copper
San Gabriel River
3/17/2005
Cyanide
Los Angeles River
3/17/2005
Fecal Coliform
Los Angeles River
3/17/2005
Total Copper
Los Angeles River
10/17/2005
Fecal Coliform
Los Angeles River
10/17/2005
Fecal Coliform
San Gabriel River
10/17/2005
Total Aluminum
San Gabriel River
10/17/2005
Total Copper
Los Angeles River
10/17/2005
Total Copper
San Gabriel River
10/17/2005
Total Zinc
Los Angeles River
10/17/2005
Total Zinc
San Gabriel River
12/31/2005
Fecal Coliform
Los Angeles River
12/31/2005
Fecal Coliform
San Gabriel River
1/14/2006
Dissolved Copper
Los Angeles River
1/14/2006
Fecal Coliform
Los Angeles River
1/14/2006
Fecal Coliform
San Gabriel River
1/14/2006
Total Copper
Los Angeles River
1/14/2006
CV-90 (06/04)
Total Aluminum
Total Zinc
Los Angeles River
CIVIL MINUTES – GENERAL
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
1/24/2006
Los Angeles River
1/24/2006
Fecal Coliform
Los Angeles River
1/24/2006
Fecal Coliform
San Gabriel River
2/17/2006
Cyanide
Los Angeles River
2/17/2006
Fecal Coliform
Los Angeles River
2/17/2006
Total Copper
Los Angeles River
2/17/2006
Total Zinc
Los Angeles River
4/25/2006
Cyanide
Los Angeles River
4/25/2006
Fecal Coliform
Los Angeles River
4/25/2006
Total Copper
Los Angeles River
4/25/2006
Total Copper
San Gabriel River
11/1/2006
Cyanide
Los Angeles River
11/1/2006
Fecal Coliform
San Gabriel River
11/1/2006
Total Copper
Los Angeles River
11/1/2006
Total Copper
San Gabriel River
12/9/2006
Fecal Coliform
Los Angeles River
12/9/2006
Fecal Coliform
San Gabriel River
12/9/2006
Total Aluminum
Los Angeles River
12/9/2006
Total Aluminum
San Gabriel River
12/9/2006
Total Copper
Los Angeles River
12/9/2006
CV-90 (06/04)
Cyanide
Total Copper
San Gabriel River
CIVIL MINUTES – GENERAL
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
12/9/2006
Los Angeles River
12/9/2006
Total Zinc
San Gabriel River
2/10/2007
Total Aluminum
San Gabriel River
2/10/2007
Total Copper
San Gabriel River
2/19/2007
Cyanide
Los Angeles River
2/19/2007
Cyanide
San Gabriel River
2/19/2007
Fecal Coliform
Los Angeles River
2/19/2007
Fecal Coliform
San Gabriel River
2/19/2007
Total Aluminum
Los Angeles River
2/19/2007
Total Copper
Los Angeles River
2/19/2007
Total Copper
San Gabriel River
2/19/2007
Total Zinc
Los Angeles River
2/22/2007
Cyanide
Los Angeles River
2/22/2007
Fecal Coliform
Los Angeles River
2/22/2007
Fecal Coliform
San Gabriel River
2/22/2007
Total Aluminum
Los Angeles River
2/22/2007
Total Aluminum
San Gabriel River
2/22/2007
Total Copper
Los Angeles River
2/22/2007
Total Copper
San Gabriel River
2/22/2007
Total Zinc
Los Angeles River
4/2/2007
CV-90 (06/04)
Total Zinc
Total Copper
San Gabriel River
CIVIL MINUTES – GENERAL
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
4/9/2007
Los Angeles River
4/9/2007
Fecal Coliform
Los Angeles River
4/9/2007
Total Copper
Los Angeles River
9/21/07-9/22/07
Cyanide
Los Angeles River
9/21/07-9/22/07
Fecal Coliform
Los Angeles River
9/21/07-9/22/07
Fecal Coliform
San Gabriel River
9/21/07-9/22/07
Total Aluminum
Los Angeles River
9/21/07-9/22/07
Total Aluminum
San Gabriel River
9/21/07-9/22/07
Total Copper
Los Angeles River
9/21/07-9/22/07
Total Copper
San Gabriel River
9/21/07-9/22/07
Total Zinc
Los Angeles River
10/12/07-10/13/07
Total Aluminum
Los Angeles River
10/12/07-10/13/07
Total Copper
Los Angeles River
10/12/07-10/13/07
Total Zinc
Los Angeles River
11/25/07-11/26/07
Fecal Coliform
Los Angeles River
11/25/07-11/26/07
Fecal Coliform
San Gabriel River
11/25/07-11/26/07
Total Aluminum
San Gabriel River
11/29/07-12/01/07
Dissolved Copper
Los Angeles River
11/29/07-12/01/07
Dissolved Zinc
Los Angeles River
11/29/07-12/01/07
Fecal Coliform
Los Angeles River
11/29/07-12/01/07
CV-90 (06/04)
Cyanide
Fecal Coliform
San Gabriel River
CIVIL MINUTES – GENERAL
Page 34 of 43
LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
11/29/07-12/01/07
Los Angeles River
11/29/07-12/01/07
Total Aluminum
San Gabriel River
11/29/07-12/01/07
Total Copper
Los Angeles River
11/29/07-12/01/07
Total Zinc
Los Angeles River
12/06/07-12/08/07
Fecal Coliform
Los Angeles River
12/06/07-12/08/07
Fecal Coliform
San Gabriel River
12/06/07-12/08/07
Total Aluminum
San Gabriel River
12/06/07-12/08/07
Total Copper
Los Angeles River
12/06/07-12/08/07
Total Copper
San Gabriel River
12/06/07-12/08/07
Total Zinc
San Gabriel River
12/18/07-12/20/07
Total Aluminum
Los Angeles River
12/18/07-12/20/07
Total Copper
Los Angeles River
12/18/07-12/20/07
Total Zinc
Los Angeles River
11/4/2008
Fecal Coliform
Los Angeles River
11/4/2008
Fecal Coliform
San Gabriel River
1/12/2009
Fecal Coliform
Los Angeles River
1/12/2009
Fecal Coliform
San Gabriel River
2/12/2009
Fecal Coliform
San Gabriel River
2/13/2009
Dissolved Copper
Los Angeles River
2/13/2009
Dissolved Zinc
Los Angeles River
2/13/2009
CV-90 (06/04)
Total Aluminum
Fecal Coliform
Los Angeles River
CIVIL MINUTES – GENERAL
Page 35 of 43
LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
3/23/2009
Los Angeles River
3/23/2009
CV-90 (06/04)
Cyanide
Fecal Coliform
San Gabriel River
CIVIL MINUTES – GENERAL
Page 36 of 43
LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
Appendix B
Date
Number of flow
2004 2 wet weather flows
Number of flow
Outfall
2 dry weather flows
PD 306 – Line A
2004 3 wet weather flows
2004 2 wet weather flows
PD 306 – Line B
1 dry weather flow
PD 1174
2004 2 wet weather flows
PD 1184 – Line A
2004 2 wet weather flows
PD 1184 – Line B
2004 2 wet weather flows
MTD 622 – Line 1
2004 2 wet weather flows 10 dry weather flows
MTD 622 – Line 3
2004 2 wet weather flows
MTD 622 – Line 4
2004 2 wet weather flows
3 dry weather flows
MTD 622 – Line 4A
2004 3 wet weather flows
9 dry weather flows
MTD 622 – Line 5
2004
CV-90 (06/04)
1 wet weather flow
CIVIL MINUTES – GENERAL
MTD 622 – Line 6
Page 37 of 43
LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
Appendix C
Date
River
10/13/2009
Cyanide
San Gabriel River
10/13/2009
Dissolved Copper
Los Angeles River
10/13/2009
Fecal Coliform
Los Angeles River
12/1/2009
Cyanide
Los Angeles River
12/1/2009
Cyanide
San Gabriel River
12/1/2009
pH
Los Angeles River
12/7/2009
Cyanide
Los Angeles River
12/7/2009
Dissolved Copper
Los Angeles River
12/7/2009
pH
Los Angeles River
12/11/2009
Fecal Coliform
Los Angeles River
1/17/2010
Dissolved Zinc
San Gabriel River
3/23/2010
Fecal Coliform
San Gabriel River
3/23/2010
pH
Los Angeles River
9/21/2010
Fecal Coliform
Los Angeles River
9/21/2010
pH
Los Angeles River
10/5/2010
Cyanide
Los Angeles River
10/5/2010
Dissolved Zinc
Los Angeles River
10/5/2010
Fecal Coliform
Los Angeles River
10/30/2010
CV-90 (06/04)
Constituent
Fecal Coliform
Los Angeles River
CIVIL MINUTES – GENERAL
Page 38 of 43
LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
10/30/2010
San Gabriel River
11/19/2010
Dissolved Zinc
Los Angeles River
11/19/2010
Fecal Coliform
Los Angeles River
12/17/2010
Dissolved Zinc
Los Angeles River
12/17/2010
pH
Los Angeles River
12/17/2010
pH
San Gabriel River
1/24/2011
pH
Los Angeles River
2/16/2011
Dissolved Zinc
Los Angeles River
2/16/2011
Fecal Coliform
Los Angeles River
2/16/2011
pH
San Gabriel River
9/20/2011
pH
Los Angeles River
10/5/2011
Dissolved Copper
Los Angeles River
10/5/2011
Dissolved Zinc
Los Angeles River
11/11/2011
Dissolved Copper
Los Angeles River
11/11/2011
Dissolved Zinc
Los Angeles River
11/11/2011
Fecal Coliform
Los Angeles River
11/20/2011
Dissolved Copper
Los Angeles River
11/20/2011
Dissolved Copper
San Gabriel River
11/20/2011
Dissolved Zinc
Los Angeles River
11/20/2011
Dissolved Zinc
San Gabriel River
1/9/2012
CV-90 (06/04)
Fecal Coliform
Fecal Coliform
San Gabriel River
CIVIL MINUTES – GENERAL
Page 39 of 43
LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
1/9/2012
Los Angeles River
1/21/2012
Dissolved Copper
Los Angeles River
1/21/2012
Dissolved Zinc
Los Angeles River
3/16/2012
Dissolved Copper
Los Angeles River
3/16/2012
Dissolved Zinc
Los Angeles River
10/9/2012
E. Coli
Los Angeles River
10/11/2012
Dissolved Copper
Los Angeles River
10/11/2012
Dissolved Copper
San Gabriel River
10/11/2012
Dissolved Zinc
Los Angeles River
10/11/2012
Dissolved Zinc
San Gabriel River
10/11/2012
E. Coli
San Gabriel River
10/11/2012
pH
Los Angeles River
11/17/2012
Dissolved Copper
Los Angeles River
11/17/2012
Dissolved Zinc
Los Angeles River
11/17/2012
pH
San Gabriel River
11/30/2012
Dissolved Copper
Los Angeles River
11/30/2012
Dissolved Zinc
Los Angeles River
12/2/2012
Cyanide
San Gabriel River
12/2/2012
Dissolved Copper
Los Angeles River
12/2/2012
Dissolved Zinc
Los Angeles River
12/2/2012
CV-90 (06/04)
pH
E. Coli
Los Angeles River
CIVIL MINUTES – GENERAL
Page 40 of 43
LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
12/13/2012
Los Angeles River
12/13/2012
E. Coli
Los Angeles River
12/18/2012
Dissolved Copper
Los Angeles River
12/18/2012
Dissolved Zinc
Los Angeles River
12/18/2012
CV-90 (06/04)
Dissolved Copper
E. Coli
Los Angeles River
CIVIL MINUTES – GENERAL
Page 41 of 43
LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
Appendix D
Date
Outfall
February 2012
4 dry weather flows
ASBS-004
February 2012
1 dry weather flow
ASBS-023
March 2012
4 dry weather flows
ASBS-004
April 2012
1 dry weather flow
ASBS-004
April 2012
CV-90 (06/04)
Number of flow
1 dry weather flow
ASBS-023
CIVIL MINUTES – GENERAL
Page 42 of 43
LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 08-01467 BRO (PLAx)
Title
NATURAL RESOURCES DEFENSE COUNCIL, INC. ET AL. V. COUNTY OF
LOS ANGELES ET AL.
Date
March 30, 2015
Appendix E
Date
Outfall
January 2012
1 dry weather flow
ASBS-001
February 2012
2 dry weather flows
ASBS-001
February 2012
3 dry weather flows
ASBS-002
February 2012
1 dry weather flow
ASBS-030
March 2012
2 dry weather flows
ASBS-001
March 2012
2 dry weather flows
ASBS-002
April 2012
1 dry weather flow
ASBS-001
April 2012
CV-90 (06/04)
Number of flow
1 dry weather flow
ASBS-002
CIVIL MINUTES – GENERAL
Page 43 of 43
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