# Ecological Rights Foundation v. Pacific Gas & Electric Co.

> Court of Appeals for the Ninth Circuit · April 3, 2013 · 713 F.3d 502

URL: https://www.frixlaw.com/law-library/cases/9505946

## Case

- **Full name:** ECOLOGICAL RIGHTS FOUNDATION, Plaintiff-Appellant, v. PACIFIC GAS AND ELECTRIC COMPANY; Pacific Bell Telephone Company, Defendants-Appellees
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** April 3, 2013
- **Citations:** 713 F.3d 502; 83 A.L.R. Fed. 2d 611; 43 Envtl. L. Rep. (Envtl. Law Inst.) 20079; 76 ERC (BNA) 1618; 2013 U.S. App. LEXIS 6692; 2013 WL 1319462
- **Precedential status:** Published
- **Opinion:** Concurrence by Hurwitz
- **Judges:** Tallman, Callahan, Hurwitz
- **Cited by:** 262 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9505946

## How later opinions describe it (automated extraction)

- explaining that the critical inquiry is “whether [the stormwa-ter] is allowed to run off naturally (and is thus a nonpoint source) or is collected, channeled, and discharged through a system of ditches, culverts, channels, and similar conveyances (and is thus a point source di…
- holding that “materials left to accumulate long after they had served their intended purpose” — specifically, five million pounds of lead bullets and 11 million pounds of clay target debris accumulated for nearly 70 years at a firing range — met RCRA’s statutory definition of …
- explaining a district courts’ discretion in 19 dismissing a complaint without leave to amend as based on five factors: “bad faith, undue 20 delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff 21 has previously amended the complaint”
- affirming lower court’s dismissal of complaint claiming that utility company had violated RCRA by treating utility poles with wood preservative, which was released over time and was in turn “discarded” by rain water falling on poles; concluding that such wood preservative was …
- finding notice letter sufficient where it did not provide exact locations of preservative-treated utility poles, but simply identified representative poles and ref *1182 erenced defendant’s superior knowledge of other pole locations

## Opinion text

HURWITZ, Circuit Judge,
concurring in part and concurring in the result:
I concur in the majority opinion except insofar as it holds that utility poles cannot be point sources for purposes of the Clean Water Act under circumstances not presented by this case. See supra pp. 508-10. Resolution of this difficult issue is entirely unnecessary, given the opinion’s conclusion — which I join — that the defendants’ utility poles are not “associated with industrial activity.” See supra pp. 511-14.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9505946. Public record. Not legal advice.