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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006

## Text

(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unpublished memorandum, the Ninth Circuit affirmed,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cuit’s unpublished decision, made any conclu-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 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1044%3A10. Public record. Not legal advice.