Opposition Brief — Campbell v. California

No. 97-1996 JUL if

IN THE SUPREME COURT OF THE UNITED STATES ee

OCTOBER TERM, 1997 .

ALBERT CAMPBELL, et al., Petitioner,

Vv.

STATE OF CALIFORNIA, et al., Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

DANIEL E. LUNGREN

Attorney General

RODERICK E. WALSTON

Chief Assistant Attorney General

THEODORA BERGER

Assistant Attorney General

KENNETH P. ALEX*

Supervising Deputy Attorney General

SANDRA GOLDBERG

Deputy Attorney General

(*Counsel of Record) is

2101 Webster St., 12th Floor

Oakland, CA 94612-3049

Telephone: (510) 286-3940

Counsel for Respondent the People

of the State of California

QUESTION PRESENTED

Whether this Court should grant a Petition for Writ

of Certiorari to review whether the United States Court of

Appeal for the Ninth Circuit properly upheld the factual and

evidentiary rulings made by the trial court in issuing an

injunction solely under state nuisance law to abate

environmental harm where the injunction was issued

pursuant to the proper exercise of the federal court’s pendent

jurisdiction?

LIST OF PARTIES

Appellants:

Albert Campbell and Charles Tackman, as the Executors of

the Estate of Victor Muscat

Appellants’ Attorneys: L. Burda Gilberg

Dale C. Campbell

Weintraub Genshlea & Sproul

Law Corporation

400 Capitol Mall, 11th Floor

Sacramento, CA 95814

Appellee:

State of California

Appellee’s Attorney: Kenneth P. Alex

Sandra Goldberg

Attorney General’s Office of

the State of California

2101 Webster St., 12th Floor

Oakland, CA 94612-3049

ili

TABLE OF CONTENTS

OPINION OR JUDGMENT BELOW

STATEMENT OF JURISDICTION

STATUTORY AND REGULATORY PROVISIONS

STATEMENT OF THE CASE

The District Court Proceeding

Proceedings Before the Ninth Circuit

REASONS FOR DENYING WRIT

I.

IT.

PETITIONER’S DISSATISFACTION

WITH FACTUAL FINDINGS AND

EVIDENTIARY RULINGS MADE BY

THE DISTRICT COURT AND UPHELD

BY THE NINTH CIRCUIT AFTER

CAREFUL REVIEW IS NOT GROUNDS

FOR ISSUANCE OF THE PETITION

THE PETITION SEEKS REVIEW OF

STATE LAW ISSUES AND DOES NOT

PRESENT ANY CONFLICT BETWEEN

THE CIRCUITS ON AN ISSUE OF

FEDERAL IMPORTANCE

CONCLUSION

10

11

12

15

iV

TABLE OF AUTHORITIES

Page

Cases

Branti v. Finkel

445 U.S. 507 (1980) 12

Carter v. Chotiner

210 Cal. 288

291 P. 577 (1930) 5

Fox Film Corp. v. Muller

296 U.S. 207 (1935) 12

Goodman v.m Lukens Steel Co.

482 U.S. 656 (1997) 12

Graver Tank & Mfg. Co., Inc. v. Linde Co.

336 U.S. 271 (1949) 11

Michigan v. Long

463 U.S. 1032 (1983) 12

Selma Pressure Treating Co., Inc.

v. Osmose Wood Preserving Inc.

221 Cal. App. 3d 1601

271 Cal. Rptr. 596 (1990) _

United States v. Johnston

268 U.S. 220 (1925) 11

Zobrest v. Catalina Foothills School Dist.

509 U.S. 1

113 S.Ct. 2462 (1993) 13

TABLE OF AUTHORITIES, CONT’D

Statutes

28 United States Code

§ 1254(1)

§ 1331

§ 1367(a)

42 United States Code

§§ 9601 et seq.,

§ 9606(a)

§ 9607(a)

§ 9613(b)

California Civil Code

§ 3494

Court Rules

Federal Rules of Civil Procedure

Rule 56(f)

if

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

No. 97-1996

ALBERT CAMPBELL, et al., Petitioner,

¥.

STATE OF CALIFORNIA, et al., Respondent.

Respondent, State of California, on behalf of the

California Department of Substances Control (State), submits

this opposition to the Petition for Writ of Certiorari

(Petition) filed by the executors of the Victor Muscat Estate,

hereinafter referred to as Petitioner. The Petition seeks

review of a decision of the Ninth Circuit Court of Appeals

upholding the issuance of an environmental cleanup

injunction issued solely under state nuisance law pursuant to

the proper exercise of the district court’s pendent

jurisdiction. The State respectfully requests that this Petition

be denied in its entirety because the Petition involves solely

a question of state law, disputes the trial court’s factual

findings and evidentiary rulings, which have been reviewed

thoroughly and affirmed by a federal appellate court, and

fails to present any issues where there exists a conflict

between federal circuit courts on a significant federal

question. This case merely involves the straight-forward

application of established state law to the facts of the case

and a challenge to factual and evidentiary rulings which are

within the sound discretion of the trial court.

ee Se eee

OPINION OR JUDGMENT BELOW

The opinion of the Court of Appeals for the Ninth

Circuit is reported at 138 F.3d 772 (9th Cir. 1998). A copy

is attached to the Petition as Appendix A.

STATEMENT OF JURISDICTION

The Court of Appeals entered judgment on

March 9, 1998. This Court has jurisdiction under 28 U.S.C.

section 1254(1).

STATUTORY AND REGULATORY PROVISIONS

The following statutory provisions are pertinent to

this Petition: 28 U.S.C. sections 1331 and 1367(a); 42

U.S.C. sections 9607(a) and 9613(b); and California Civil

Code section 3494.

28 U.S.C. section 1331. Federal question:

The district courts shall have original

jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States.

28 U.S.C. section 1367. Supplemental jurisdiction:

(a) Except as provided in subsections (b) and

(c) or as expressly provided otherwise by Federal

Statute, in any civil action of which the district

courts have original jurisdiction, the district courts

shall have supplemental jurisdiction over all other

claims that are so related to claims in the action

within such original jurisdiction that they form part

of the same case or controversy under Article III

of the United States Constitution. Such

supplemental jurisdiction shall include claims that

involve the joinder or intervention of additional

parties.

42 U.S.C. section 9607. Liability:

[CERCLA § 107]

(a) Covered persons; scope; recoverable costs

and damages...

Notwithstanding any other provision or rule of

law, and subject only to the defenses set forth in

subsection (b) of this section--

(1) the owner and operator of a vessel or a

facility,

(2) any person who at the time of disposal of

any hazardous substance owned or operated any

facility at which such hazardous substances were

disposed of, . . . from which there is a release, or

a threatened release which causes the incurrence of

response costs, of a hazardous substance, shall be

liable for --

(A) all costs of removal or remedial

action incurred by the United States

Government or a State or an Indian tribe

not inconsistent with the national

contingency plan;.. .

42 U.S.C. section 9613. Civil proceedings:

[CERCLA § 113]

(b) Jurisdiction; venue

Except as provided in subsections (a) and (h)

of this section, the United States district courts

shall have exclusive original jurisdiction over all

controversies arising under this chapter, without

regard to the citizenship of the parties or the

amount in controversy. Venue shall lie in any

district in which the release or damages occurred,

or in which the defendant resides, may be found,

or has his principal office. For the purposes of

this section, the Fund shall reside in the District of

Columbia.

California Civil Code section 3494. [Public actions]:

A public nuisance may be abated by any

public body or officer authorized thereto by law.

STATEMENT OF THE CASE

This case was initiated by the State as a cost

recovery action under the Comprehensive Environmental

Response, Compensation and Liability Act (CERCLA), 42

U.S.C. sections 9601 et seq., with pendent state claims for

injunctive relief under California public nuisance laws. In

the courts below, the State prevailed on a partial summary

judgment motion for a permanent injunction against

Petitioner to abate a nuisance caused by groundwater

contamination. Although the cost recovery action continues

in the district court, Petitioner seeks this Court’s review of

the issuance of the injunction, part of which is now moot.

ee ae ee ee a oe ee

eS ee

A. The District Court Proceeding

On April 12, 1993, the State initiated this action in

federal district court seeking cost recovery under CERCLA

and injunctive relief under state nuisance laws against Albert

Campbell and Charles Tackman, as Trustees of the Victor

Muscat Testamentary Trust (Trustees) and as Executors of

the Estate of Victor Muscat (Executors). The State sought

a permanent injunction under state laws, including California

Civil Code section 3494, to abate the public nuisance caused

by the trichloroethylene (TCE) contamination at and from the

hazardous substance site in Chico, California known as the

20th Street Site. There, Victor Industries operated for

decades and dumped large quantities of contaminants to the

soil.

The federal district court has jurisdiction over the

State’s cost recovery claims under the express provisions of

CERCLA, 42 U.S.C. sections 9607(a) and 9613(b), and

under 28 U.S.C. section 1331. The exercise of pendent

jurisdiction over the state law nuisance claims was

appropriate pursuant to 28 U.S.C. section 1367(a). Under

California law, polluted water is a public nuisance, Carter v.

Chotiner, 210 Cal. 288, 291, 291 P. 577, 578 (1930), and

those who create or help create and maintain a nuisance are

liable for its abatement and damages. Selma Pressure

Treating Co., Inc. v. Osmose Wood Preserving Inc., 221

Cal. App. 3d 1601, 1616-20, 271 Cal. Rptr. 596, 604-608

(1990).

Prior to filing the CERCLA lawsuit, the State

attempted to obtain voluntary compliance by Petitioner with

an administrative cleanup order, which was issued in May

1992 to the Trustees and Executors. The administrative

cleanup order required them to install a drinking water line

in the nearby Stanley Park housing subdivision (Stanley

Park),” where the TCE contamination had spread to private

wells, and to complete the investigation and cleanup of

hazardous substance releases at and from the 20th Street

Site. Because the Trustees and Executors failed to comply

with the administrative cleanup order, the State filed suit.

The State moved for partial summary judgment

against the Trustees and Executors on, inter alia, the state

law nuisance claims for injunctive relief under California

Civil Code 3494 to require them to undertake the remedial

measures detailed in the administrative order cleanup

order.* Petition App. B at B-57 to B-58. The existence of

groundwater contamination at the 20th Street Site and in the

wells located offsite in the downgradient direction from the

Site, in the direction of Stanley Park, was undisputed.

However, the Trustees and Executors disputed that the off-

site TCE contamination in the intermediate groundwater was

caused by releases from the 20th Street Site. Petition App.

B at B-54. They asserted that the Louisiana-Pacific

property, which is located between the 20th Street Site and

Stanley Park, was the source of the offsite contamination at

Stanley Park.

In support of its motion for a permanent injunction

to abate the public nuisance, the State filed: (a) affidavits by

former employees of Victor Industries whose uncontroverted

testimony stated that for almost two decades Victor

Industries dumped large quantities of TCE onto the ground

at the Site; (b) results of numerous groundwater, soil gas and

soil sampling taken at and near the 20th Street Site which

supported the finding that TCE had been dumped at the Site

1. The drinking water line was completed after the injunction

issued from the district court.

2. The State also moved for summary judgment to establish

defendant’s CERCLA liability, but not on the amount of costs.

aan nr oRTeree

and caused groundwater contamination that was flowing from

the Site in the direction of the nearby Stanley Park housing

subdivision wells; (c) the report of an environmental

consultant retained by the Trustees which also supported the

determination that TCE groundwater contamination at and

from the Site flowed in the direction of the housing

subdivision wells; (d) evidence from samples which

established that the groundwater was contaminated before it

reached the Louisiana-Pacific property; and (e) extensive

testing of soil and soil gas studies at the Louisiana-Pacific

property which found no source of TCE at that location.

In opposing the State’s motion for an injunction,

the Trustees and Executors requested a continuance claiming

that they needed more time for discovery to bolster their

theory that the Louisiana-Pacific property was a possible

source of contamination at Stanley Park. However, they did

not present an affidavit in support of the request for a

continuance as required by Fed. R. Civ. Proc. 56(f):; nor did

they serve any discovery. In an attempt to create a genuine

issue Of material fact, they did submit the affidavit of a

consultant.

At the hearing on the summary judgment motion,

the district court properly exercised its broad discretion and

rejected the request for a continuance noting that the

Trustees and Executors failed to make an adequate showing

that additional time to undertake discovery was warranted.

The district court proceeded to rule on the substantial record

before it.

In ruling on the affidavit of the consultant

submitted by the Trustees and Executors to support their

theory that the Louisiana-Pacific property was the source of

TCE contamination at Stanley Park, the district court found

that the consultant’s opinions were based on flawed

methodology and, thus, could not be accorded evidentiary

weight. Petition App. B at B-55 to B-56. Furthermore, the

consultant failed to controvert the fact that the groundwater

was already contaminated with TCE before it reached the

Louisiana-Pacific property.

Upon careful examination of the substantial

evidence presented, the trial court concluded that the State

had met its burden of establishing groundwater contamination

at the 20th Street Site and that the groundwater

contamination had extended downgradient from the Site to

Stanley Park. Thus, issuance of a permanent injunction was

warranted under well-established California public nuisance

law, California Civil Code section 3494, to abate the

groundwater contamination at and from the 20th Street Site.

Petition App. B at B-57 to B-60. Accordingly, on August 5,

1993, the district court granted the State’s request for an

injunction.* The injunction required construction of a

water line, as well as completion of the investigation and

cleanup of hazardous substance releases at and from the 20th

Street Site.

B. Proceedings Before the Ninth Circuit

On September 7, 1993, the Trustees and Executors,

raising a host of issues, filed an interlocutory appeal of the

district court’s summary judgment order. The Ninth Circuit

concluded it only had appellate jurisdiction to review the

challenge to the injunction--a determination made solely

under state law. Petition App. A at A-29.

3. The district court also found that the State had established that

the Trustees and Executors were liable parties under CERCLA.

Petition App. B. at B-56 to B-57.

The parties submitted extensive briefing to the

Ninth Circuit, including supplemental briefs requested by the

appellate court and diagrams explaining the groundwater

flows and location of monitoring wells at and near the 20th

Street Site. After careful review of the lower court record,

the appellate briefs and oral argument, the Ninth Circuit

affirmed the district court’s state law injunctive order to

abate the public nuisance.

The Ninth Circuit thoroughly examined the record and

applied well-established principles of law. It concluded that

the district court did not abuse its discretion in: (a) rejecting

Trustees’ and Executors’ request for a continuance under

Fed. Rule Civ. Proc. 56(f) because they failed to meet their

burden of demonstrating that a continuance was warranted

(Petition App. A at A-29 to A-35; A-40, n.3) and (b)

declining to give evidentiary weight to the opinions of

Petitioner's consultant because the consultant's opinions did

not create a genuine dispute. The Ninth Circuit properly

concluded that based on the substantial record before the

court "no reasonable juror could conclude that the Louisiana-

Pacific property, rather than the 20th Street Property, was

the source of contamination at Stanley Park." Petition App.

A at A-39 to A-40. Further, the Ninth Circuit concluded

that “there is no genuine dispute about which property

polluted the water at Stanley Park aud the other offsite

locations." Petition App. A at A-41. Thus, the Ninth

Circuit found that the district court did not err as a matter of

law when it determined that the requisite causation had been

demonstrated by the State. Thus, the Trustees and Executors

were liable under California’s nuisance laws and issuance of

the injunction directing them to abate the nuisance was

warranted under the facts. Petition App. A at A-45.

The Ninth Circuit added that for the State to

establish its claim under California public nuisance law it

sufficed to demonstrate that the groundwater under the 20th

10

Street Property was contaminated. Petition App. A at A-41

to A-43. There is no dispute that the groundwater at the

20th Street Property is contaminated. The appellate court

also concluded that the district court properly found that the

Trustees and Executors "maintained a nuisance by

administering property where hazardous chemicals were

polluting the water." Petition App. A at A-44 to A-45.

Accordingly, an injunction to abate the nuisance was

appropriately issued under state nuisance law.

REASONS FOR DENYING WRIT

The Petition should be dismissed in its entirety

because it challenges only the trial court’s factual findings

and evidentiary rulings, which were carefully examined and

affirmed by the Ninth Circuit, and also because it fails to

present any significant federal issues of federal law involving

a conflict between the circuits.

Vit oe). te BRE

11

I.

PETITIONER’S DISSATISFACTION WITH

FACTUAL FINDINGS AND EVIDENTIARY

RULINGS MADE By THE DISTRICT

COURT AND UPHELD BY THE NINTH

CIRCUIT AFTER CAREFUL REVIEW IS

NOT GROUNDS FOR ISSUANCE OF THE

PETITION

The bases for this Petition is Petitioner’s

dissatisfaction with factual and evidentiary rulings made by

the district court and upheld by the Ninth Circuit after

careful review. Petition 7-19. Specifically, Petitioner

objects to the rulings below pertaining to: (a) the request for

a continuance on the State’s summary judgment motion for

injunctive relief and (b) the opinions of Petitioner’s expert--

whether they sufficed to create a genuine dispute as to an

issue of material fact. The opinions of the courts below

confirm that both courts carefully considered the. same

arguments now raised by Petitioner, applied well-established

principles of law to the facts of the case, and properly

rejected these arguments.

A party’s dissatisfaction with the factual and

evidentiary rulings by the lower courts is not grounds for

issuance of a Petition by this Court, especially where, as

here, careful examination of these same issues now raised in

the Petition was given by the federal appellate court. It has

long been recognized that this Court "does not grant

certiorari to review evidence and discuss specific facts."

United States v. Johnston, 268 U.S. 220, 227 (1925).

Moreover, this Court, "rather than a court for correction of

errors in fact finding, cannot undertake to review concurrent

findings of fact of two courts below in the absence of a very

obvious and exceptional showing of error." Graver Tank &

Mfg. Co., Inc., v. Linde Co. , 336 U.S. 271, 274-75 (1949);

12

accord, Branti v. Finkel, 445 U.S. 507, 512 n.6 (1980);

Goodman v. Lukens Steel Co., 482 U.S. 656, 665 (1997).

Such a showing has not been, and cannot be made, in this

case.

II.

THE PETITION SEEKS REVIEW OF

STATE LAW ISSUES AND DOES NOT

PRESENT ANY CONFLICT BETWEEN

THE CIRCUITS ON AN ISSUE OF

FEDERAL IMPORTANCE

Denial of the Petition is also warranted because the

legal issue presented--whether the injunction issued solely

under state nuisance law should stand--is akin to those cases

where review is sought of a state court judgment based on

State law grounds. It is well established that this Court will

not review a state judgment that is based on adequate and

independent state grounds. Cf., Michigan v. Long, 463 U.S.

1032, 1037-1042 (1983); Fox Film Corp. v. Muller, 296

U.S. 207,10 (1935) ("Where the judgment of the state court

rests upon two grounds, one of which is federal and the

other non-federal in character, our jurisdiction fails if the

non-federal ground is independent of the federal ground and

adequate to support the judgment.").

As the Ninth Circuit underscored, issuance of the

injunction by the district court was based solely on

California nuisance law and was not intertwined with any

provision of CERCLA. Petition App. A at A-26 to A-28.

Because the state ground is the sole basis for issuance of the

injunction challenged in this Petition, this Court must decline

jurisdiction. The straight forward application of state law to

13

the undisputed facts of a case cannot serve as a basis to

trigger this Court’s extraordinary review.*

In an apparent attempt to craft an issue of federal

concern to entice this Court’s review, Petitioner now argues

for the first time that in federal court CERCLA is the sole

means to pursue injunctive relief for the cleanup of

environmental contamination, and, therefore, the district

court erred in issuing the injunction under California

nuisance law. Petitioner urges issuance of the Petition on

these grounds. Petition at 19-21.

The CERCLA argument presented in the Petition

was never raised to the courts below. The only issue

properly before the Ninth Circuit was the issuance of an

injunction under state law. No CERCLA issues were decided

on appeal. Thus, Petitioner’s attempts to create an issue

under CERCLA for review by this Court should be deemed

waived and rejected as a ground for issuance of this Petition.

See, Zobrest v. Catalina Foothills School Dist., 509 U.S. 1,

8, 113 S.Ct. 2462, 2465-66 (1993) (Court declines to

consider legal arguments of respondent neither raised nor

considered below.)

4. In a disingenous attempt to convince the Court that this case

presents a conflict with numerous other circuit court opinions,

Petitioner cites several opinions from other circuits for the proposition

that the Ninth Circuit’s opinion is at odds with those decisions.

Petition at 17-19. Petitioner is wrong. None of the cases cited

address an injunction issued under California public nuisance law. Of

the opinions cited by Petitioner, several involve personal injury or

business injury claims under various state law theories. Those cases

that do discuss nuisance claims were decided under laws other than

California public nuisance laws and are factually distinguishable.

Moreover, each of these decisions turned on its particular facts. In

sum, the Petition does not present an issue of significant federal

concern, let alone any issue presenting a conflict between federal

circuit courts.

14

Further, a review of section 106(a) of CERCLA

relied on by Petitioner demonstrates that CERCLA is an

additional tool available for the federal government to work

in concert with states to compel cleanup of a site--it is not

the exclusive means for injunctive relief by a regulatory

body as Petitioner would have this Court believe. See, 42

U.S.C. section 9606(a) (authorizing the federal government

to seek relief to abate an environmental nuisance in addition

to any other action taken by a state or local government).

Finally, nothing in CERCLA limits federal district courts

from exercising their pendent court jurisdiction over state

law claims that are properly brought before them, as was the

case here.

Petitioner’s efforts to craft a question of federal

import fail and the Petition should be denied.

SENG a ee

15

CONCLUSION

Because the Petition: (1) merely raises challenges

to evidentiary and factual determinations made within the

sound discretion of the trial court that were thoroughly

examined below and upheld by the circuit court; (2) presents

only a state law issue which is amply supported on adequate

and independent state grounds; and (3) is not relevant to any

substantial federal question or constitutional right, the

Petition should be denied.

Dated: July 10, 1998.

Respectfully submitted,

DANIEL E. LUNGREN

Attorney General

RODERICK E. WALSTON

Chief Assistant Attorney General

THEODORA BERGER

Assistant Attorney General

-)

KENNETH P. ALEX*

Supervising Deputy Attorney General

SANDRA GOLDBERG

Deputy Attorney General

(*Counsel of Record)

Aly.

Counsel for Respondent the People of the State of

California