Opposition Brief — City of Santa Clarita, California v. Los Angeles County, California (No. 05-1462)

(4) FILED

No. 05-1462 JUN 1 6 2006

—DOFPRICE-OF THE CLERK

SUPREME COURT, U.S.

In The

Supreme Court of the Anited States

¢

CITY OF SANTA CLARITA,

Petitioner,

v.

COUNTY OF LOS ANGELES, CEMEX, INC., AND

UNITED STATES BUREAU OF LAND MANAGEMENT,

Respondents.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

*

BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

¢

KERRY SHAPIRO

Counsel of Record

PATRICIA S. BRODY

ScoTtr N. CASTRO

JEFFER, MANGELS, BUTLER & MARMARO LLP

Two Embarcadero Center, 5th Fleor

San Francisco, CA 94111-3824

(415) 398-8080

Counsel for Respondent CEMEX, Inc.

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT 402) 442 28351

COUNTERSTATEMENT TO

QUESTION PRESENTED

The Ninth Circuit allowed Petitioner City of Santa

Clarita limited intervention in the underlying District

Court action to protect its rights of consultation under the

California Environmental Quality Act in light of a Consent

Decree proposed by the existing parties, Respondents

herein. The City of Santa Clarita objected to the Consent

Decree, but the District Court, reviewing an extensive

factual record, concluded that the City of Santa Clarita’s

right of consultation had been fully exercised and was not

impacted by the terms of the Consent Decree. In an

unpublished memorandum, the Ninth Circuit affirmed,

concluding that the Consent Decree was fair, adequate

and reasonable to all concerned. Neither the District Court

nor the Ninth Circuit made any conclusions as to the

collateral effects of the Consent Decree.

1. Whether the City of Santa Clarita properly peti-

tions the Supreme Court to address purported

concern regarding the Circuit Courts’ application

of Firefighters v. Cleveland, when the City of

Santa Clarita failed to raise this claim at the

District Court or Ninth Circuit;

2. Whether the City of Santa Clarita properly peti-

tions the Supreme Court to address premature,

and thus unripe, claims of purported collateral

effects of the Consent Decree, given that neither

the District Court’s decision, nor the Ninth Cir-

cuit’s unpublished decision, made any conclu-

sions on this issue;

ii

COUNTERSTATEMENT TO

QUESTION PRESENTED - Continued

Whether the City of Santa Clarita properly peti-

tions the Supreme Court to address a purported

misunderstanding or misapplication of Firefighters

v. Cleveland, where no confusion as to Firefight-

ers exists;

Whether the Court of Appeals correctly con-

cluded that the Consent Decree — which was ne-

gotiated in a contentious settlement process —

was fair, adequate and reasonable where the

District Court made factual determinations,

based on extensive records, that Petitioner City

of Santa Clarita’s right of consultation under the

California Environmental Quality Act had been

fully exercised, and that the County had gained

significant environmental concessions.

ill

PARTIES TO THE PROCEEDINGS

No statement regarding the parties to this proceeding

was provided by the City of Santa Clarita.

The petitioner in this case is the City of Santa Clarita

(hereinafter “Santa Clarita”). The respondents are the

United States of America, the County of Los Angeles, and

CEMEX, Inc. The caption of Santa Clarita’s petition

identifies the Bureau of Land Management as a respon-

dent. This is in error; the United States is the proper

respondent in this matter.

lv

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, counsel for

Respondent CEMEX, Inc. certifies the following:

Respondent CEMEX, Inc. is a publicly traded com-

pany having its principal place of business in Houston,

Texas. Respondent CEMEX, Inc.’s parent corporation is

CEMEX, S.A. de C.V., with its principal place of business

in Monterrey, Mexico. No publicly-held company owns ten

percent or more of the stock of CEMEX, Inc.

TABLE OF CONTENTS

Page

COUNTERSTATEMENT TO QUESTION PRE-

SA MUNN os hick sdsnien n't scosatcaaacichei ba thacacsntkcsnsansnuksnceaaneuuees i

PARTIES TO THE PROCEEDINGS .....................004 ili

CORPORATE DISCLOSURE STATEMENT ............. iv

Petals SP SORPOG RE 0 is ose cess pciecengesecsgueteccmivipidisands Vv

ERIE SIE PUFA EP AUREL CD so nkkavands is eesiusdisnenryccioanens vii

Ae a TATE ee aT so eden owsaccsaakaqecedibiacesenassineasmateed 1

A. The Soledad Canyon Sand and Gravel Min-

RE AIG Bids aie pcahiadsccessctavetiainin recom ans 1

B. Deptrict Court Proceeding oiiciiccscccssccccievcsesnaes 4

C. The Court of Appeals’ Decision....................... 7

D. Current Litigation Being Pursued By Santa

Shas chs Since se cicgancativelceisaian cece aedaaeataabaat 8

SUMMARY OF ARGUMENT. .vscsccccccscsccsccecassccccuscesess 10

PE biden sas vawacbnnis de hsaabackancbancasinepetaenes 12

A. Santa Clarita Did Not Challenge the Appli-

cation of Firefighters Below....................0e0se00 12

B. The Decision Below is Unpublished and Has

PRG FP POCORMIIRIAD Blt ices... cdssercecsccocssisssencsancs 13

C. Santa Clarita’s Arguments, if Ever Appropri-

ate for Review, Are Now Premature and its

Remedies Lie Before Other Courts................. 13

D. Even if Properly Raised Before this Court,

There is No Conflict Between the Circuits

Nor any Indication that Firefighters v. Cleve-

land is Being Misapplied...........................0005- 14

TABLE OF CONTENTS -— Continued

Page

E. The Issues Presented to the District Court

and Affirmed by the Ninth Circuit are Inex-

tricably Fact Based and Were Correctly De-

i isidnseck ck ccgacishacanss unngirdaiaceassekneaainiunce 19

1. Santa Clarita’s Right is one of “Consul-

tation” and it Has Been Satisfied............. 19

2. Santa Clarita’s “Right to Judicial Re-

view” is Satisfied by its soececiaed District

CINE SRA Aa PDUIRG oc isic aces cnsacecdiecsuscavens 22

3. Santa Clarita’s “Rights” as a Surface

Owner and as a Municipality Are Pre-

PUIG cichidclantntadciaabthensadvcacauvebassosntcsbeun iene 23

4. The District Court and Ninth Circuit

Fully Addressed All Appropriate Legal

Claims Raised by Santa Clarita............... 24

F. The Use of Consent Decrees to Settle Envi-

ronmental Disputes is Well Established......... 27

I oe eo cc nh can Ranwun ab naes 28

vii

TABLE OF AUTHORITIES

: Page

CASES

Center for Biological Diversity, et al. v. U.S. Fish

and Wildlife Service, et al., _. F.3d __, 2006

WE hg: ROE Er Ce ee I inactive cssien sissies 8

Citizens for a Better Environment v. Gorsuch, 718

F.2d 1117 (D.C. Cir. 1983), cert. denied, 467 U.S.

REAR Sicipecris jinsidssegnccectassicias ncicse sane 25, 28

Johnson v. Lodge #93 of Fraternal Order of Police,

303 F.3d 1006 (10th Cit. 2O06).....ic.. cc cccssscscsesccevsess 18,19

Kirkland v. New York State Department of Correc-

tional Services, 711 F.2d 1117 (2nd Cir. 1983)............. 16

Lawyer v. Department of Justice, 521 U.S. 567

SR kes scccdsinbicoubadsad sucant Bich innsdniabentialnied iva tectabins 14, 27

Local Number 93, International Association of

Firefighters, AFL-CIO C.L.C. v. Cleveland, 478

ae, EE Rich sists. cusdectacucaindecdeatecucievoneuicecleneiaes passim

Officers for Justice v. Civil Serv. Commission, 688

F.2d 615 (9th Cir. 1982), cert. denied sub nom.

Byrd v. Civil Service Comm'n, 459 U.S. 1217 (1983) ... 7, 15

Ragsdale v. Turnock, 941 F.2d 501 (7th Cir. 1991).......... 17

Sanguine, Ltd. v. United States Department of

Interior, 798 F.2d 389 (10th Cir. 1986).............000... 16, 18

Sierra Club Inc. v. Electric Controls Design, Inc.,

908 F .20 1380 (Oth Cie. TRG) ocean 15, 25, 28

Southern California Edison Co. v. Lynch, 307 F.3d

SU GE I Pe Resiiccene aan eee 17

United States v. Armour & Co., 402 U.S. 673 (1971)....... 27

United States v. City of Hialeah, 140 F.3d 968 (11th

Sa RE oiiconsn nssesinainas ices seal telaagepeiooamsaakncneomccione 16, 18

viil

TABLE OF AUTHORITIES — Continued

Page

United States v. City of Miami, 664 F.2d 435 (5th

Enh NAP osias p cadedancovestaadakibicguts Sealyachabanomavaciesnns 16, 18, 26

United States v. Cannons Eng’g Corp., 899 F.2d 79

Sy Ae MUNI disci dorsi adigressbaos docnecsevcaay ava duccanisioninowetnakinavenies 28

United States v. Comunidades Unidas Contra La

Contaminacion, 204 F.3d 275 (1st Cir. 2000)............... 17

United States v. Montrose Chem. Corp., 50 F.3d 741

ERIN PIED iki Ciacci vitas daca Utpicis nice takennendcitenasnciaicaiendap 15

United States v. Oregon, 913 F.2d 576 (9th Cir.

1990), cert. denied, 501 U.S. 1250 (1991).............. . 15, 25

Wheeler v. American Home Products Corporation,

See a MR COPGUE GU RIED oa rcns skdtanaiecscicachorscaniinnee 16

Youakim v. Miller, 425 U.S. 231 (1976)..........0ccccccccccsceses 12

FEDERAL STATUTES

Endangered Species Act,

Ae se ne Oy ankikn asic dsccntinnicceaibopaeccnlinnns 8

Mineral Materials Act of 1947,

re ee i NS hci eri ci ciccchlic eni ccs eaatbianeinieon 1

National Environmental Policy Act (“NEPA”),

ie SR ee Gs io cakoncniverreiatbinccanneaasaeiasbsabameess 2

STATE STATUTES

California Environmental Quality Act (“CEQA”),

California Public Resources Code § 21000 et seq. .....passim

California Public Resources Code, § 21153(a) .............. 20

California Surface Mining and Reclamation Act,

California Public Resources Code § 2710 et seq.............. 3

TABLE OF AUTHORITIES — Continued

Page

ADMINISTRATIVE DECISIONS

Sierra Club, Santa Clarita Chapter, et al., 156

CERT AA TA Ciara Be ace a sk unishnchnksovinptsciosscccsers 3

RULES AND REGULATIONS

U.S. Supreme Court Rules

BRR BO s,s cavvarovnsbcaiguse ca iia eed NEA Rea encadanwinostiicn nese: 10

SRE BOG isivecccca sven soles bss dasha sah nd dsnceeess iv

Federal Rules of Appellate Procedure

TFB. Siempre prey oc 2: AE 13

Ninth Circuit Court of Appeals Rules

BURMA DOM) oss <avtecrocebocnce ch cate neencas in vaecsskix inn dveonsess 13

STATEMENT OF CASE

Following well over a decade of environmental review

under federal, state and local laws, CEMEX, Inc. (“CE-

MEX”) filed the underlying lawsuit in early 2002 to compel

the County of Los Angeles (“County”) to complete its

environmental review of the Soledad Canyon Sand and

Gravel Mining Project (“Project”). The United States

subsequently intervened as a plaintiff to support its

interests in the Project as owner of the mineral estate to

be mined by CEMEX pursuant to federal contracts issued

in 1990, and to represent the Bureau of Land Management

(“BLM”) as the federal agency charged with implementa-

tion of the Mineral Materials Act of 1947, 30 U.S.C. § 601

et seq. The parties entered into the Consent Decree in 2004

to settle disputes relating to the interplay of federal and

County jurisdiction over the Project. Santa Clarita, having

been allowed limited intervention by the Ninth Circuit

based on its right of consultation under the California

Environmental Quality Act (“CEQA”), California Public

Resources Code § 21000 et seg., protested the entry of the

Consent Decree. Based on an extensive factual record, the

District Court found the Consent Decree to be fair, reason-

able and adequate, and specifically found that Santa

Clarita had fully exercised its right of consultation during

the review processes for the Project, and that the Consent

Decree in no way impacted its rights of consultation. The

Ninth Circuit upheld the District Court’s decision.

A. The Soledad Canyon Sand and Gravel Mining

Project

The underlying action involves the United States’ and

CEMEX’s efforts to implement the Project. The facts

recited herein were independently reviewed by the District

Court and affirmed in its decision, and are set forth in

2

detail in the Consent Decree. Petitioner’s Appendix (here-

inafter “App.”) C-38-50. The Project site is in the Soledad

Canyon area of unincorporated Los Angeles County,

approximately 30 miles north of downtown Los Angeles

and over 1% miles from the municipal boundary of Santa

Clarita. Ninth Circuit Supplemental Excerpts of Record,

“SER,” 97-98. The United States owns the minerals at the

site and the property is administered through the BLM.

The BLM, by virtue of a federal Court approved settlement

in 1988:' (a) made the decision to sell the mineral materi-

als in 1989 through competitive bidding; (b) awarded

federal contracts to CEMEX’s predecessor in 1990 allowing

it to mine aggregate on the site; (c) completed an inde-

pendent environmental review of the project under the

National Environmental Policy Act (“NEPA”), 42 U.S.C.

§ 4231 et seq., from 1995 to 2000; (d) completed a 2,000

page Environmental Impact Statement (“EIS”) under

NEPA; and (e) issued a final Record of Decision (“ROD”) in

2000.

Santa Clarita participated extensively in the BLM

process, including the submission of voluminous written

comments and in person meetings with the BLM. SER

709-10, 733-36, 2058-62. In addition, Santa Clarita ap-

pealed the ROD to the Interior Board of Land Appeals

(“IBLA”). Following Santa Clarita’s filing of multiple

briefs, the IBLA issued an order precluding Santa Clarita

from submitting additional briefs. SER 27-28. The IBLA

' Prior to the settlement, the site was being mined by Ben Curtis,

the surface owner at the time, and his unsuccessful litigation regarding

his continued mining operations resulted in two appeals to the Ninth

Circuit. United States of America v. Canyon County Enterprises, 9th Cir.

No. 90-55302 and United States of America v. Canyon County, 9th Cir.

No. 98-56042.

3

then issued an order affirming the ROD and the BLM’s

environmental analysis, rejecting in full Santa Clarita’s

claims. Sierra Club, Santa Clarita Chapter, et al., 156

IBLA 144 (January 8, 2002).

The County’s involvement in the Project began in

1989 as well. The County’s activity under California’s

Surface Mining and Reclamation Act (“SMARA”), Califor-

nia Public Resources Code § 2710, et seg., and CEQA,

began formally in May of 1991 when CEMEX’s predecessor

submitted an application for a surface mining permit.

Under CEQA, the County was the lead agency. The

County began CEQA proceedings by issuing u Notice of

Preparation (“NOP”) for an environmental impact report

(“EIR”) on November 6, 1991. It was not until 1999, eight

(8) years after CEMEX had submitted its application to

the County, that a completed draft EIR was publicly.

circulated for nine months of public review and comment.

The County’s professional planning staff issued a staff \

analysis for the Project that recommended approval. SER

1041-59, 2460. As found by the District Court, the County

held over nineteen continued public hearing sessions on

the Project, both before the Regional Planning Commis-

sion, and before the Board, including at least ten public

hearing sessions with public comment and/or testimony,

giving the County ample opportunity to hear the public’s

concerns with, comments on, and opposition/support for,

the Project. App. C-122: see also SER 1062-93, 1098-1229,

1231-33, 1235-60, 1309-10, 1312-44, 1351-22, 1454-15339,

1546-86, 1602-70, 1725-30, 1765-84. The District Court

also found that Santa Clarita participated in at least nine

(9) of these public hearings. App. C-122; see also SER

1061, 1098-1101, 1225-29, 1316-25, 1354-91, 1456-1527,

1558-78, 1602-08, 2080-85.

Following these public hearing sessions, the Los

Angeles County Regional Planning Commission voted to

deny the Project on grounds CEMEX believes were pretex-

tual.

B. District Court Proceedings

The County’s denial of the Project was appealed to the

County Board of Supervisors and ultimately necessitated

the filing of the lawsuit -by CEMEX against the County

which outlined in detail the environmental review of the

Project for over a decade. On January 25, 2002, CEMEX

filed the underlying lawsuit in the U.S. District Court,

Central District of California, challenging the County’s

repeated and continued delay and obstruction of the

Project. CEMEX alleged that the County’s environmental

review was complete under CEQA, and that denial of the

permit was pretextual and without basis. Thus, CEMEX’s

Complaint alleged that the County engaged in a process

designed to result in a “de facto” denial of the Project

through a seemingly endless politically-driven review

process before the County, including nearly a decade of

environmental review, multiple series of delays, changing

and inconsistent environmental review standards, and

excessive, unreasonable and infeasible proposed Project

conditions. Preemption of the County process was sought

as an alternative basis for relief. The United States

intervened as a plaintiff in the action. Santa Clanta

sought intervention, but was initially denied intervention

by the District Court. Santa Clarita appealed this denial

to the Ninth Circuit.

After the filing of the lawsuit, the parties were ordered

(pursuant to local rules) to participate in a mediation

conducted by a retired federal judge that, after almost a

year of hard fought negotiations, resulted in the Consent

Decree approved by the District Court and affirmed by the

Ninth Circuit Court of Appeals. The mediation process was

ordered in December of 2002 and Santa Clarita was aware

of settlement negotiations. SER 162, 224.

The claim that the Consent Decree disregards years of

environmental review, Petition at 12, is not true. The

Consent Decree navigates the interplay between federal

and County jurisdiction over the Project, allowing for

County environmental review under CEQA, while main-

taining the integrity of the federal mineral materials

program and the specific BLM decisions relating to the

Project. The Consent Decree also allows the County to

complete its environmental review process, and to impose

on the Project a host of environmentally and socially

beneficial conditions otherwise not required. App. C-63-78.

The Consent Decree does not truncate environmental

review, but rather directs that after a decade of environ-

mental review at both the federal and state level, the

County must issue a surface mining permit, thereby

allowing the next phase of the Project to begin. The Dis-

trict Court considered, and rejected, the argument that

any significant new information existed that warranted

further analysis. App. C-110-118.

After the parties submitted the Consent Decree to the

District Court, the Ninth Circuit reversed the District

Court and granted Santa Clarita limited intervention

relating to its rights of consultation under CEQA. App. B-

3-8. The Ninth Circuit specifically directed that Santa

Clarita took the case as it found it, and could only address

prospective matters in the case: “the City shall be entitled

to be heard concerning the court’s approval of any consent

decree proposed between the original parties, and to

6

appeal the approval of any such decree, but shall not be

entitled to reopen any issues already decided in the case.”

App. B-9.

Santa Clarita then filed an extensive opposition to the

Consent Decree. The District Court reviewed the volumi-

nous factual record supporting the Consent Decree, com-

prised of an Administrative Record of over 30,000 pages.

Ninth Circuit Excerpts of Record, “ER,” 928. In addition,

in reviewing the proposed Consent Decree, the District

Court reviewed additional documents either judicially

noticed or supported by declaration. In this review, the

District Court considered in detail the extent to which

Santa Clarita participated in the process. In its Order

Approving the Entry of the Consent Decree, the District

Court concluded as follows:

This Court is not persuaded with the City’s ar-

gument that it was excluded from the process.

The record is clear that the City has actively par-

ticipated throughout the framing, analysis and

development of this Project. In fact, the County

encouraged the City’s participation as a com-

menting party on the Project. However, unsatis-

fied with its role as a commenting party, it

appears now that the City has adopted a no-

holds barred approach to do whatever is in the

City’s power to either stop the Project or continue

with this never ending review process. This

Court will not allow the City to usurp the

County’s CEQA process simply to stop or further

delay the Project. App. C-109-110.’

* The voluminous factual record considered by the District Court

revealed that Santa Clarita: (1) spent over $4,000,000 to oppose the

Project, SER 2387; (2) constantly shifted its environmental concerns; (3)

(Continued on following page)

7

The District Court’s Order entering the Consent Decree

was detailed, App. C-85-123, and specifically found that,

based on an extensive Administrative Record before the

Court and the long history of environmental analysis

conducted for the Project, the Consent Decree sets forth a

Project that “fully identifies significant environmental

effects and feasible mitigations, and which, in fact, pro-

vides additional environmental and other benefits to the

‘County as a whole and the City in particular.” App. C-107.

C. The Court of Appeals’ Decision

In reviewing the Consent Decree, the Court of Appeals

focused on whether it was “fair, reasonable and adequate

to all concerned.” App. A-2, citing Officers for Justice v.

Civil Serv. Comm’n, 688 F.2d 615, 625 (9th Cir. 1982), cert.

denied sub nom. Byrd v. Civil Service Comm’n, 459 U.S.

1217 (1983). In an unpublished opinion, the Court deter-

mined that: (1) CEMEX’s underlying lawsuit was “based

on a plausible legal claim — that further county environ-

mental review of the project was preempted”; (2) the

County “had sole authority to settle the case”; (3) the

Project had “undergone more than a decade of state

environmental review”; (4) the “parties negotiated the

consent decree in good faith and at arm’s length”; and (5)

the County “obtained significant environmental conces-

sions.” App. A-2. The Court emphasized that the “whole

point of a consent decree is that the court need not adjudi-

cate the merits[,]” and specifically concluded only that the

district court acted “well within its discretion” in approv-

ing the Consent Decree. App. A-2.

did not seek environmenta] compliance but rather to block all CEMEX

permits and to destroy its business, SER 83-84; and (4) repeatedly stated

its “willingness to spend whatever it takes” to stop the Project, SER 2347.

8

D. Current Litigation Being Pursued By Santa

Clarita

At this time Santa Clarita is currently still litigating

three lawsuits in the federal courts (two of which are

pending before the Ninth Circuit Court of Appeals) that

advance environmental challenges to the Project.’ Given

this, Santa Clarita’s statement in the Petition (p. 12) that

the Consent Decree effectively forecloses “Santa Clarita’s

efforts to insure a complete and thorough environmental

review” is inaccurate at best.*

Santa Clarita’s pending federal court cases include:

(a) City of Santa Clarita, et al. v. U.S.

Dept. of Interior, et al., Ninth Circuit

Court of Appeals, No. 06-55006 (U.S.

District Court, Northern District of

California, No. CV-02-00697 DT) an ac-

tion challenging the Project under the

Endangered Species Act, 16 U.S.C.

§ 1531 et seg., -— summary judgment

granted against Santa Clarita by Order

dated November 21, 2005 with 34 pages

* A non-Santa Clarita challenge to the Project was brought as well.

The Ninth Circuit Court of Appeals recently issued a published opinion

upholding a decision by Judge Takasugi of the U.S. District Court,

Central District of California, favorable to the Project, finding no error

by the U.S. Fish and Wildlife Service in the issuance of a biological

opinion for the Project in 1998 pursuant to the Endangered Species Act,

16 U.S.C. § 1531 et seg. See Center for Biological Diversity, et al. v. U.S.

Fish and Wildlife Service, et al. F.3d ___, 2006 WL 1521120 (9th

Cir. 2006).

* Santa Clarita’s statement that it is precluded from seeking

“additional mitigation measures|,]” Petition at 12, fails to acknowledge

that the Consent Decree actually includes many mitigation measures

and conditions suggested by Santa Clarita that were not legally

required for the Project, ER 905.

(b)

(c)

9

of Findings of Fact and Conclusions of

Law dated January 30, 2006;

City of Santa Clarita v. U.S. Dept. of In-

terior Board of Land Appeals et al., Ninth

Circuit Court of Appeals, No. 06-55225,

consolidated with Case No. 06-55006

(U.S. District Court, Northern District of

California, No. CV 04-1572 DT), an ac-

tion challenging the Project under

NEPA -— summary judgment granted

against Santa Clarita by Order dated

January 3, 2006, with 37 pages of Find-

ings of Fact and Conclusions of Law

dated February 8, 2006; and

City of Santa Clarita v. Los Angeles

County Board of Supervisors, U.S. Dis-

trict Court, Northern District of Cali-

fornia, No. CV-04-7356 DT, an action

challenging the Project under CEQA

which is still pending; contrary to

Santa Clarita’s characterization, the

district court stayed the CEQA action

while the Consent Decree was on ap-

peal to the Ninth Circuit recognizing

that “In making its determination [to

stay] this Court is by no means finding

that all issues in the Cemex and CEQA

actions are identical ... For those legal

and factual issues not affected by the

Appeal, the City will have its opportu-

nity to address and litigate them.” App.

J-21.

10

SUMMARY OF ARGUMENT

Santa Clarita seeks further review of the Consent

Decree, even though there are no legal issues warranting

review. The District Court concluded the Consent Decree

to be ‘air, reasonable and adequate, and specifically, that

Sant.. Clarita’s right of consultation had been fully exer-

cised and was not impacted by entry of the Consent

Decree. The Court of Appeals affirmed. Now, Santa Clarita

alleges a host of rights purportedly abridged by the Con-

sent Decree, and seeks review by the Supreme Court of

issues that were never raised in the prior proceedings, a’'e

not presented by the facts of this case, or are premature

and thus unripe.

Under this Court’s standard for granting certiorari,

Santa Clarita must show that the Ninth Circuit Court of

Appeals: (1) issued a decision in conflict with that of

another Court of Appeals; (2) decided an important ques-

tion of federal law that has not been settled by this Court;

or (3) decided an important federal question in conflict

with relevant decisions of the Supreme Court. Supreme

Court Rule 10. None of these bases apply.

The underlying decisions by the District Court and

Court of Appeals were largely factual decisions that

present no novel or significant legal issues worthy of

review by this Court. The District Court and Court of

Appeals applied well-settled standards for consent decrees

— whether they are fair, reasonable and adequate — to an

extensive administrative record of over 30,000 pages, to

make a factual determination that Santa Clarita’s right of

CEQA consultation had been exercised and is not impaired

by the Consent Decree. In fact, Santa Clarita concedes in

11

its Petition that “the City actively participated in the

CEQA review process[.]” Petition p. 3.

Santa Clarita struggles to construct legal issues

worthy of this Court’s review. This effort fails in its en-

tirety. For example, Santa Clarita alleges a “routine, now

doctrinal confusion” regarding the application by the

Circuit Courts of this Court’s opinion in Local Number 93,

International Association of Firefighters, AFL-CIO C.L.C.

v. Cleveland (“Firefighters”) 478 U.S. 501 (1986). Yet Santa

Clarita never raised this argument below, and is precluded

from raising it for the first time here. Mere importantly,

even if properly raised, the claim fails; there is no conflict

between the Circuits and no indication that Firefightei's

has resulted in injustice or has been misapplied.

Similarly, Santa Clarita protests the purported

collateral effects of the Consent Decree, yet the Ninth

Circuit expressly did not address such effects of the

Consent Decree. In fact, as discussed above, Santa Clarita

has other litigation currently pending — including two

other Ninth Circuit appeals and a U.S. District Court

CEQA action — that challenge the environmental review of

the Project. The extent to which the Consent Decree has

collateral impact on these other cases will be determined

in the first instance in these other pending cases. Santa

Clarita’s protests regarding purported collateral effects of

the Consent Decree are at best premature and unripe, and

certainly not properly raised before this Court.

¢

12

ARGUMENT

A. Santa Clarita Did Not Challenge the Applica-

tion of Firefighters Below

Santa Clarita’s main attempt to interest this Court in

the Petition is a purported Circuit conflict in the applica-

tion of Firefighters. However, at no point in the briefing

before either the District Court or the Ninth Circuit Court

of Appeals did Santa Clarita assert the arguments it

makes here. There was no challenge to the application of

Firefighters in any briefing before the Petition was filed,

and it was not cited by either the District Court, App. C-

85-123, or the Ninth Circuit Court of Appeals, App. A-1-3.

In fact, at no time in any briefing or argument before the

Ninth Circuit did Santa Clarita even cite to Firefighters.”

Having failed to challenge the application of the Firefight-

ers decision below, Santa Clarita is precluded from chal-

lenging it for the first time in this Petition. Youakim v.

Miller, 425 U.S. 231, 234 (1976). Thus, the purported

Circuit conflict (which in any event, as discussed below,

does not exist) is not properly raised to this Court.

* Santa Clarita’s only cite to Firefighters before the District Court

was a one-line statement that because a consent decree is both a

settlement and a final judgment, its dual character “has resulted in

different treatment for different purposes” citing Firefighters. Santa

Clarita’s Opposition to Motion to Enter Consent Decree, at 46, lines 13-

15. Santa Clarita did not cite Firefighters in its Ninth Circuit briefs,

and notably, it is not cited at all in the portion of Santa Clarita’s brief

submitted in support of the Petition where it argues the Consent

Decree infringes on its right to consultation. App. I-7-8. Only one

amicus party before the Ninth Circuit cited Firefighters, and in no > way

criticized the application or interpretation of it.

13

B. The Decision Below is Unpublished and Has

No Precedential Effect

Further undermining Santa Clarita’s Petition is the

fact that the Ninth Circuit’s Memorandum is unpublished.

App. A-l. Pursuant to Ninth Circuit Rule 36-3(a),

“luJnpublished dispositions and orders of this Court are

not binding precedent, except when relevant under the

doctrine of law of the case, res judicata, and collateral

estoppel.” Thus, the decision establishes no precedent, and

has no impact on the decisions of other panels of the Ninth

Circuit or District Courts within that Circuit.®

C. Santa Clarita’s Arguments, if Ever Appropriate

for Review, Are Now Premature and its Reme-

dies Lie Before Other Courts

As detailed herein, Santa Clarita is currently involved

in no less than three lawsuits, two of which are currently

pending before the Ninth Circuit Court of Appeals, regard-

ing Santa Clarita’s complaints about the environmental

review of the Project. Whatever collateral effect there may

be from the Consent Decree on these other challenges.

will be litigated in those actions.’ Nothing in the Ninth

* We note that the Supreme Court recently adopted an amendment

to Federal Rule of Appellate Procedure 32.1 that will be effective on

December 1, 2006, providing in relevant part that “[a] court may not

prohibit or restrict the citation of federal judicial opinions, orders,

judgments, or other written disposition that have been ... designated

as ‘unpublished,’ ‘not for publication,’ ‘non-precedential,’ ‘not precedent,’

or the like ... issued on or after January 1, 2007.” (Emphasis added).

Thus, Circuit Court Rules prohibiting the citauon of unpublished

decisions, including the Ninth Circuit Rule 36-3, will remain in effect

for all decisions issued prior to January 1, 2007.

” See, e.g., Firefighters, wherein the Supreme Court noted that the

district court’s retention of jurisdiction regarding the consent decree left

(Continued on following page)

14

Circuit’s unpublished Memorandum purports to address

the collateral effects of the Consent Decree. Accordingly, it

is premature and unripe for Santa Clarita to seek to have

this Court address the impact of the Consent Decree which

will be addressed in the first instance in other pending

cases.

D. Even if Properly Raised Before this Court,

There is No Conflict Between the Circuits Nor

any Indication that Firefighters v. Cleveland is

Being Misapplied

Santa Clarita’s reliance on a purported misapplication

of Firefighters by subsequent courts is misplaced. Even if

Santa Clarita properly raised this argument below, which

it did not, cases following Firefighters have not resulted in

any need for the opinion to be reexamined by this Court."

Rather, subsequent case law is notable for its general

harmony in examining consent decrees and their effects on

third parties.

Initially, the Supreme Court has not substantively

revisited Firefighters since 1997, and then, only in the

context of deciding whether an underlying case must be

adjudicated before entry of a consent decree, and this Court

concluded it did not. In 1997, in Lawyer v. Department of

Justice, 521 U.S. 567 (1997) the majority opinion held that

a settlement between the United States Department of

that forum open for the petitioner to press whatever claims it might

have as to the effect of the consent decree on the petitioner’s legal

rights. 478 U.S. 501, 514, n. 5; also 478 U.S. at 530.

* Santa Clarita’s reliance on commentators no more recent than

1988, Petition at 24, reveals a lack of concern or topicality on the points

upon which its Petition seeks review by this Court.

15

Justice and the State of Florida regarding voting district

configuration could not be blocked by the objections of one

of the plaintiffs who demanded that the legality of the

original redistricting plan be determined before the

settlement could be approved. The majority ruled that the

district court was not required to adjudicate the underly-

ing liability before approving the settlement.

In reviewing the Consent Decree here, the District

Court below relied upon, inter alia, United States v.

Oregon, 913 F.2d 576 (9th Cir. 1990), cert. denied, 501 U.S.

1250 (1991) and Sierra Club Inc. v. Electric Controls

Design, Inc., 909 F.2d 1350 (9th Cir. 1990), App. C-95. The

Ninth Circuit relied upon, inter alia, United States v.

Montrose Chem. Corp., 50 F.3d 741, 746 (9th Cir. 1995),

App. A-2. Each of these cases was decided after Firefight-

ers and evidences no confusion or misapplication of its

holding or analysis.

Santa Clarita contends that the circuit courts are

“confused” regarding the meaning of Firefighters, and

more specifically, about the “process due an objecting third

party in cases involving consent decrees.” Petition at 18.

Yet in truth, the circuit courts have not expressed any

such confusion. The string citation of cases offered by

Santa Clarita, Petition at 18-19, offers nothing other than

examples of cases where consent decrees were either

entered or rejected in light of challenges from non-

consenting third parties. In fact, not one of the cases cited

by Santa Clarita offers any evidence of confusion on the

* Both courts also relied upon Officers For Justice v. Civil Service

Comm'n, supra, 688 F.2d 615, a case which predates the Firefighters

decision but is consistent with its analysis and holding.

16

part of the court in question regarding the application or

effect of Firefighters. Indeed, Santa Clarita’s failure to

engage in any analysis of these cases (other than one-line

parenthetical summaries) is not surprising, given that the

cases do not demonstrate any confusion by the courts or

conflicts between Circuits regarding Firefighters.

In fact, Santa Clarita’s list of citations purportedly

showing conflict between the Circuits relating to the

application of Firefighters flatly misstates the law. First,

because a number of the cases cited by Santa Clarita pre-

date Firefighters, they clearly cannot show confusion as to

its application. See, e.g., Wheeler v. American Home Prod-

ucts Corporation, 582 F.2d 891 (5th Cir. 1977); United

States v. City of Miami, 664 F.2d 435 (5th Cir. 1981) (en

banc); Kirkland v. New York State Dept. of Correctional

Services, 711 F.2d 1117 (2nd Cir. 1983).

Second, in other cases cited by Santa Clarita, the

courts have applied Firefighters and its logic with consis-

tency. Thus, in United States v. City of Hialeah, 140 F.3d

968 (11th Cir. 1998), the Eleventh Circuit found a consent

decree between the United States and the City of Hialeah

invalid to the extent it adversely affected the legal rights

of unions and other objecting parties. The Eleventh Circuit

expressly found that the consent decree would adversely

affect legal rights conferred on police and firefighters via

collective bargaining agreements. 140 F.3d at 981-82. In

Sanguine, Ltd. v. United States Department of Interior,

798 F.2d 389, 391 (10th Cir. 1986), the Tenth Circuit

upheld the district court’s vacating of a prior consent

decree because of the adverse effects that the consent

decree would have upon tribal members’ rights: “this case

presents a unique situation in which prejudice to the

intervenors can be avoided only by setting aside the prior

17

judgment and allowing the opportunity to litigate the

merits of the case.”

The cases cited by Santa Clarita in which there was

no impairment of third party rights have also been re-

solved in harmony with Firefighters. For example, in

Ragsdale v. Turnock, 941 F.2d 501, 504 (7th Cir. 1991), the

Seventh Circuit upheld the district court’s denial of inter-

vention to several parties who protested the terms of a

consent decree settling claims challenging Illinois’ abortion

laws, concluding in part that their interests were ade-

quately represented by the state, and that “[pjrejudice to

the intervenors (or other members of the proposed class) if

intervention is denied ... is problematic at best.” Simi-

larly, in Southern California Edison Co. v. Lynch, 307 F.3d

794 (9th Cir. 2002), the Ninth Circuit upheld entry of a

consent decree, recognizing that under Firefighters, a non-

consenting party cannot block a settlement between other

parties by withholding consent, but also acknowledging

that Firefighters provides an exception where “nonconsent-

ing intervenors” have brought “valid claims” that are

“properiy raised.” Jd. at 807. From this, the Ninth Circuit

concluded that the intervenor did not raise “valid claims”

within the Firefighters exception because the exception

only applies where an intervenor can maintain claims that

are independent from those of the settling parties. Jd. at

807. So too, in United States v. Comunidades Unidas

Contra La Contaminacion, 204 F.3d 275, 279 (1st Cir.

2000), the First Circuit addressed claims that Firefighters

required an evidentiary hearing, but found that require-

ment to be limited to employment discrimination cases,

and that no such absolute right to an evidentiary hearing

applied in other contexts.

18

Finally, Johnson v. Lodge #93 of Fraternal Order of

Police, 393 F.3d 1096 (10th Cir. 2004) directly undermines

Santa Clarita’s mischaracterization of Circuit conflict in

the interpretation or application of Firefighters. There, in

addressing whether a consent decree adversely affected a

union’s interests, the Eleventh Circuit, citing Firefighters,

stated that a non-consenting intervenor may block ap-

proval of a consent decree only if the decree adversely

affects its legal rights or interests, citing directly the

holdings in United States v. City of Hialeah, supra, 140

F.3d at 975 and United States v. City of Miami, supra, 664

F.2d at 447. Jd. at 1107. The Eleventh Circuit’s reference

to and reliance on these decisions thus undermines the

City’s assertion of conflict among the circuits and, in fact,

directly contradicts the City’s assertion that Johnson uv.

Lodge #93 of Fraternal Order of Police is in conflict with

City of Miami and City of Hialeah. See Petition at 18.

Rather, in contrast to Santa Clarita’s portrayal, unlike the

courts in City of Miami and City of Hialeah, the Eleventh

Circuit in Johnson found that the consent decree did not

affect the union’s legal rights. Jd. at 1107.

Johnson v. Lodge #93 of Fraternal Order of Police also

undermines the City’s claims because the Court also

considered the union’s assertion that a trial on the merits

was necessary in race discrimination cases. 393 F.3d at

1108. The union relied in part on Sanguine, supra, 798

F.2d 389 (also a Tenth Circuit decision), but the Johnson

Court clarified that:

In Sanguine, we held that because “issues essen-

tial to the intervenors were resolved by consent

decree and not adversary litigation, [the] case pre-

sents a unique situation in which prejudice to the

intervenors can be avoided only by setting aside

the prior judgment and allowing the opportunity to

19

litigate the merits of the case.” ... The case is

distinguishable. The intervenor in Sanguine was

not granted intervenor status prior to entry of

the decree and thus was unable to effectively

present its objections to the decree. In contrast,

here, the district court permitied [the union] to

intervene prior to settlement negotiations, to file

written objections to the consent decree in the dis-

trict court, and to participate in the fairness hear-

ings as a full party to the litigation. Accordingly,

as was the case with the intervening union in

[Firefighters] Local No. 93, [the union] was af-

forded “all the process that [it] was due.”

Id. at 1108-09 (citations omitted) (emphasis added). The

participation in the consent decree review process afforded

the union in Johnson v. Lodge #93 of Fraternal Order of

Police mirrors that afforded to Santa Clarita.

That courts have entered or rejected consent decrees

based on third party challenges does not reflect confusion;

to the contrary, it demonstrates that the courts under-

stand when entry of a consent decree is or is not appropri-

ate in light of a third party challenge. The discussion

below demonstrates that Santa Clarita received all that it

was entitled to in the Consent Decree review process.

E. The Issues Presented to the District Court and

Affirmed by the Ninth Circuit are Inextricably

Fact Based and Were Correctly Determined

1. Santa Clarita’s Right is one of “Consultation”

and it Has Been Satisfied

Every administrative body or court which has consid-

ered the arguments of Santa Clarita has concluded that its

20

right to consultation under CEQA has been fully exercised.

The “right” about which Santa Clarita complains was

specifically described in the 2004 Ninth Circuit opinion

allowing Santa Clarita to proceed as 2n intervenor as the

right of consultation under CEQA. App. B-5. CEQA confers

upon Santa Clarita a right to consultation with the

County, the local lead agency:

[E]very local lead agency shall consult with, and

obtain comments from, each responsible agency,

any public agency that has jurisdiction by law

with respect to the project, and any city or county

that borders on a city or county within which the

project is located... .

California Public Resources Code § 21153(a). Santa Clarita

has repeatedly and consistently characterized the right

which it argues the Consent Decree infringes on as the

right_te CEQA consultation. See, e.g., Santa Clarita Oppo-

sition to Motion to Approve Consent Decree pp. 49-50; App.

I-7-8.

Based on an extensive factual record, the District

Court noted that “the City and the public had ample

opportunity to review and comment on the Project(,]”

based on Santa Clarita’s submittal of at least nine (9)

comment letters on various drafts of the County’s Envi-

ronmental Impact Report, and participation in at least

nine (9) County public hearings on the Project. App. C-121-

122. The District Court further noted that, even after the

formal close of public commenting on the Project, the

“County requested that CEMEX meet with the City and

other public groups to attempt to address all community

concerns over the Project.” App. C-122. The Ninth Circuit,

in ordering Santa Clarita’s intervention in 2004, also

concluded that Santa Clarita “exercised its CEQA right of

21

consultation and strongly opposed CEMEX’s plans to

proceed with gravel mining in Soledad Canyon.” App. B-2.

As an intervenor, Santa Clarita fully vetted its arguments

concerning potential effects of the Consent Decree on its

consultation rights under CEQA.

The District Court also concluded that Santa Clarita

was aware of settlement negotiations between the parties

as early as November of 2002 despite representations to

the contrary. SER 162, 224. Yet at that time, Santa Clarita

did not seek to expedite its appeal of the intervention

ruling that was pending before the Ninth Circuit. In other

words, Santa Clarita’s statement in its pending Petition

that it was excluded from the negotiating process leading

up to the Consent Decree fails to recognize the timing was

of Santa Clarita’s own making.

So, too, in the unpublished Memorandum of the Ninth

Circuit affirming the entry of the Consent Decree, the

Court concluded that the County, acting as the lead agency

under California law, had the sole authority to settle the

case and that when the settlement occurred, the Project

had undergone more than a decade of state environmental

review. App. A-2. It was argued to the Ninth Circuit in

papers submitted and in oral argument that the Consent

Decree expressly recognizes that other permits will be

required before the Project can become operational and

that the Consent Decree does noi ;: «clude continuing

oversight of the Project by applicable regulatory agencies.

Under the Consent Decree, the County also retains full

authority to enforce all Project conditions and environ-

mental mitigation measures (now and in the future) and to

take lawful action in response thereto. App. C-11-12. The

Ninth Circuit was aware of the other pending environ-

mental challenges by Santa Clarita to the Project and

22

specifically stated in its unpublished Memorandum that

“the panel retains jurisdiction over all future appeals

involving this mining project.” App. A-3.

During oral argument before the Ninth Circuit, the

panel stated that the complaints of Santa Clarita as to its

role in the environmental review process should be di-

rected to the California State Legislature for, in fact,

Santa Clarita’s true complaint was that it wanted a

greater role in the CEQA process than the statute pro-

vides. Santa Clarita, throughout the environmental review

process, both at the federal and County level, established

that it wanted to control decisions properly within the

County’s province relating to the Project.

The point simply is that the “right” which Santa Clarita

seeks to assert and complains it is precluded from enjoying

is a right of consultation which the substantial factual

record before the District Court (and the Ninth Circuit)

established was amply exercised and not precluded by

the Consent Decree about which Santa Clarita complains.”

2. Santa Clarita’s “Right to Judicial Review” is

Satisfied by its Pending District Court CEQA

Lawsuit

Santa Clarita has a pending lawsuit challenging on

CEQA grounds the County’s actions implementing the

*° The Consent Decree is not a bilateral agreement of a trilateral

dispute simply because it settles only disputes between CEMEX and

the United States against the County. Any separate, i.e., third, dispute

that Santa Clarita might have against the County or CEMEX and the

United States, may be raised elsewhere. Moreover, the Consent Decree

concludes the CEQA process, and in doing so, was found not to impact

Santa Clarita’s right of consultation under CEQA.

23

terms of the Consent Decree. As discussed above, the

impact of the Consent Decree on those claims has not been

adjudicated by either the District Court or the Ninth

Circuit, and will be determined in the first instance by the

District Court when the CEQA lawsuit is litigated. Santa

Clarita’s claims in its Petition that the District Court’s

entry of the Consent Decree “denied Santa Clarita its day

in court[,]” Petition at 10, is thus untrue because its day in

court relating to its CEQA lawsuit and other matters has

yet to come.”

3. Santa Clarita’s “Rights” as a Surface Owner

and as a Municipality Are Preserved

Santa Clarita also contends that it has “proprietary

interests” as owner of the Project’s surface estate, which

Santa Clarita will readily admit it recently bought, App.

G-5, for the sole purpose of enhancing its standing to

object to the Project, as owner of municipal property

purportedly affected by the Project, and as an employer.

'' Moreover, any suggestion that the Consent Decree precludes

Santa Clarita generally from opposing the Project and voicing its

concerns rings hollow. In addition to its litigation efforts, Santa Clarita

has a pending application to the Los Angeles Local Agency Formation

Commission to annex the Project site into Santa Clarita’s municipal

boundaries (again, the site is currently within County territory), an

effort admitted by Santa Clarita to be designed to aid in blocking the

Project. Santa Clarita is also currently lobbying for passage of federal

legislation designed to specifically preclude only this Project by

canceling the mineral contracts that the BLM issued to CEMEX’s

predecessor, Transit Mixed Concrete, in 1990. In fact, Santa Clarita is

on record regarding its intent to “lalttack all subsequent agency

permits[ |” for the Project, SER 83, and to jdjevelop [a] package of

measures to interfere with TMC’s business plan,” SER 84. Santa

Clarita thus is not lacking in stratagems, or in venues, in which to

challenge the Project.

24

Petition at 11. Santa Clarita fails to state how these

purported state law rights — which were not identified by

the Ninth Circuit as a basis for granting limited interven-

tion, App. B-1-10 — are affected by the Consent Decree.

Again, however, what impact, if any, the Consent Decree

has on these other purported state law “rights” has not yet

been adjudicated.

4. The District Court and Ninth Circuit Fully

Addressed All Appropriate Legal Claims

Raised by Santa Clarita

In 2004, the Ninth Circuit explicitly directed that

Santa Clarita was to take the case as it found it:

We note that the District Court may move for-

ward with a consent decree between CEMEX and

the County. ... the City shall be allowed to in-

tervene as of the date of this disposition, and to

be treated as an intervenor party from that date

forward. ... Thus, the City shall be entitled to be

heard concerning the court’s approval of any con-

sent decree proposed between the original par-

ties, and to appeal the approval of any such

decree, but shall not be entitled to reopen any is-

sues already decided in this case.

App. B-8-9. Accordingly, it was clear from the moment that

intervention was granted in 2004 that Santa Clarita was

limited to arguing legal claims or defenses directly chal-

lenging the Consent Decree itself, but not relating to the

underlying merits of CEMEX’s complaint. Any Santa

Clarita complaint as to the propriety of this limited grant

of intervention is undermined by the fact that Santa

Clarita never further appealed the scope of intervention

ordered by the Ninth Circuit over two (2) years ago, App.

25

B, either by seeking en banc review or petitioning this

Court for review.

Though Santa Clarita protests the adequacy of a

“fairness hearing”’ to address its concerns relating to the

Consent Decree, what it really laments is that its legal

theories relating to the Project were not adjudicated in its

favor. However, this lament is in direct contradiction to the

very purpose of the consent decree process, namely to

reach compromise between parties without the need for

full adjudication of the underlying legal issues. A district

court should enter a consent judgment if the court decides

that it is fair, reasonable, and equitable and does not

violate the law or public policy. Sierra Club, Inc. v. Elec-

trenic Controls Design, Inc., supra, 909 F.2d 1350, 1355;

see also United States v. Oregon, supra, 913 F.2d 576. The

consent decree must also conform to applicable laws. See

United States v. Oregon, 913 F.2d at 580. Additionally,

where a consent decree may affect the public interest,

there is a heightened responsibility on the court to protect

that interest, but “the court need not require that the

“decree be ‘in the public’s best interest’ if it is otherwise

reasonable.” Jd. at 581 (citations omitted). Ultimately, in

approving a consent decree, the “court need only be satis-

fied that the decree represents a reasonable factual and

* This language is used by Courts approving Consent Decree in all

cases — not merely class actions. See, e.g., Sierra Club v. Electronic

Controls Design, Inc., supra, 909 F.2d 1350, 1355 (Consent decree

challenge involving Clean Water Act citizen suit by Sierra Club against

private party), citing Citizens for a Better Environment v. Gorsuch, 718

F.2d 1117, 1125-26 (D.C. Cir. 1983), cert. denied, 467 U.S. 1219, 104

S.Ct. 2668, 81 L.Ed.2d 373 (1984) (Involving dispute as to consent

decree in multi-party litigation under the Clean Water Act).

26

legal determination.” Id. citing United States v. City of

Miami, supra, 664 F.2d 435, 441.

Santa Clarita claims that the “fairness hearing”

looked only to whether the Consent Decree was “fair,

reasonable and equitable” as to the consenting parties,

and relied upon the “arm’s length” negotiations among

those parties as the basis for entry of the Consent Decree.

Petition at 13. Santa Clarita concludes that this process

“illustrates the routine, now-doctrinal confusion of courts

substituting the test of fairness to settling parties for an

inquiry into the rights of non-settling parties.” Ibid.

This claim is remarkable for its misstatement of the

actual factual review conducted by the District Court.

Santa Clarita filed lengthy objections to the Consent

Decree, App. C-100-123; I-1-8, and the Court considered

them at a lengthy hearing. The bulk of the District Court’s

Order granting the motion for entry of the Consent De-

cree, App. C-85-123, addresses Santa Clarita’s numerous

arguments in opposition to the Consent Decree. Santa

Clarita contends that “[w]hen the court reviews a proposed

consent decree to which a party has not consented, it

should be asking whether the consenting parties are

taking away from the nonconsenting party to whom they

are adverse that which may not be summarily taken.”

Petition at 14. Yet this is precisely the inquiry that was

conducted. As discussed above, the District Court noted

that “[t]he record is clear that the City has actively par-

ticipated throughout the framing, analysis, and develop-

ment of this Project.” App. C-109. The District Court

further assessed in detail whether the Consent Decree

would impair public interests, including inter alia, Santa

Clarita’s first amendment right to petition government

and the public right of review under CEQA. App. C-120-

121.

27

Santa Clarita’s claim that the District Court “extin-

guished” Santa Clarita’s rights based on a finding that the

parties to the Consent Decree “‘negotiated the consent

decree in good faith and at arm’s length[,]’” Petition at 15,

is far from the truth. The District Court went far beyond

an assessment of whether the Consent Decree was fair

and reasonable to the consenting parties, and actually

adjudicated the host of claims raised by Santa Clarita in

opposition to its entry. Thus, the District Court did reach a

“ruling on the merits” of Santa Clarita’s arguments in

opposition to the Consent Decree. See Petition at 16-17. In

fact, Santa Clarita’s discussion of Lawyer v. Department of

Justice, supra, 521 U.S. 567, Petition at 16 n. 6, actually

provides support for this conclusion. As admitted by Santa

Clarita, the “fairness hearing” in Lawyer allowed the non-

consenting plaintiff to raise challenges to the consent

decree and to present evidence in support of those claims.

521 U.S. at 574-75. The District Court afforded Santa

Clarita the very same opportunity, which Santa Clarita

embraced in full. Santa Clarita’s “claims” relating to the

Consent Decree thus were adjudicated in full.

F. The Use of Consent Decrees to Settle Environ-

mental Disputes is Well Established

Santa Clarita’s attempt to find error in the case law is

further undermined by the reality that the use of consent

decrees is firmly established. See, e.g., United States v.

Armour & Co., 402 U.S. 673, 681-82 (1971) (“Naturally, the

agreement reached normally embodies a compromise; in

exchange for the saving of cost and elimination of risk, the

parties each give up something they might have won had

they proceeded with the litigation.”)

28

It is precisely for this reason, i.e., avoidance of pro-

longed litigation and the possibility of environmental

concessions, that in the environmental arena, Courts have

upheld the use of consent decrees. See, e.g., United States

v. Cannons Eng’g Corp., 899 F.2d 79, 88 (1st Cir. 1990)

(environmental cleanup matter; deference to agency

required because of its expertise and need for flexibility in

forging appropriate resolution); Sierra Club v. Electronic

Centrols Design, Inc., supra, 909 F.2d 1350, 1355 (consent

decree challenge involving Clean Water Act citizen suit by

Sierra Club against private party); Citizens for a Better

Environment v. Gorsuch, supra, 718 F.2d 1117, 1125-26

(involving dispute as to consent decree in multi-party

litigation under the Clean Water Act).

@

7.

CONCLUSION

The Petition for Certiorari should be denied.

Respectfully submitted,

KERRY SHAPIRO

(Counsel of Record)

PATRICIA S. BRODY

Scott N. CASTRO

JEFFER, MANGELS, BUTLER &

MARMARO, LLP

June 2006