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

FILED |

JUN 16 2006

OFFICE OF THE CLERK

SUPREME COURT, U.S.

No. 05-1462

IN THE

Supreme Court of the Anited States

CITY OF SANTA CLARITA,

Petitioner,

Vv.

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 OF AMICI CURIAE IN SUPPORT OF

PETITIONER’S PETITION FOR WRIT OF

CERTIORARI

WENDY H. WI1LES*

* Counsel of Record

JEFFREY A. HOSKINSON

BOWIE, ARNESON, WILES & GIANNONE

4920 Campus Drive

Newport Beach, CA 92660

(949) 851-1300

Counsel} for amuct curiae

Newhall County Water District

Sulphur Springs Union School District

June 16, 2006 Wm. S. Hart Union High School District

dh

TABLE OF CONTENTS

Page

POU Oe PAL RRUPE EID. 5 0 ek ie vs ee eee ij

INTEREST OF AMICI CURIAE ............00005- 1

SUMMARY OF ARGUMENT ................0... 3

ERIE SA Meese ey PU Soe eS a ee 4

I. Application of the Consent Decree

to Bar The Defenses Of The City of

Santa Clarita Has Violated The

Rights Of The City Of Santa Clarita

And All Of Those Whose Interests

PI Cee ceva ee vasa wks 4

ll. Entry of the Consent Decrce

Without City Representation Has

Deprived The City And Those

Represented By Its Interests Of

Significant Legal Rights Without

I ee ws 6

It]. Benefits Of Party Settlement Of

Disputes Should Mot Be Permitted To

Overshadow Need To Ensure Fair

Representation Of Interests Of All

EC Ys santa oad 10

SNE 5 a. aida gia ys ae kG 4b wa ua eae 16

-ii-

TABLE OF AUTHORITIES

Page

Cases

Alvardo v. J.C. Penney Co., Inc.,

907 P.2a BG3 CG" Gar, WOR) ccc cc ic eas... 8

Harrisburg Chapter of the ACLU v. Scanlon,

500 Pa. GOB Gee ce ie cee ke eee ees. 11

Howsam v.Dean Witter Reynolds,

637 U.S, FRC heed cc wc eens 10

Kirkland v. New York State Dept. Of

Correctional Services, 711 F.2d 1117 (1988) .. 11

local Number 93, International Association

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

v. City of Cleveland, 478 U.S. 501 (1986) .... 15

Southern California Edison Company

v. Lynch, 307 F.3d 794 (9th Cir. 2002) ... 18-14

United States v. City of Hialeah,

140 F.34 968 (317 Giz. FOGB) ww... a... 8, 11

United States v. City of Hialeah,

899 F. Supp. 603 (S.D. Fl. 1994) ............ 8

United States v. City of Miami,

664 F.2d 435 (5" Cir. 1981) ......... 11,14-15

-ll-

Statutes

Pad, Bats Ce Pe Dey as lacs ors ve a ees 7

Cal. Code Regs. tit. 14, §§ 15080-15096

CGE exc eSb i cea O he eek Fae ee ae 4

Cal. Code Regs. tit. 14, § 15092 (2005) ............. 5

Cal. Code Regs. tit. 14, § 15093 (2005) ............. 5

Other Authorities

Laylock, Consent Decrees Without Consent:

The Rights of Nonconsenting Third

Parties, 1987 U. Chi. Legal F. 103 (1987) .... 11

Menger, Consent Decree Paradigms: Model

Without Meaning, 29 B.C. L.Rev. 291

A 5 hh oe a eee 10

-s

The Newhall County Water District, Sulphur

Springs Union School District, and Wiliam S. Hart Union

High School District’ respectfully submit this amici curiae

brief in support of the prayer of the City of Santa Clarita

(“City”) for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Ninth Circuit.

INTEREST OF AMICI CURIAE’

Sulphur Springs Union School District and

William S. Hart Union Uigh School District (collectively,

“Santa Clarita Schools”) are public school districts

organized under the laws of the State of California.

Collectively, the Santa Clarita Schools represent nearly

25,000 students in grades kindergarten through the grade

twelve throughout the Santa Clarita community. The

Newhall County Water District (“Newhall WD”) is a

county water district organized under the laws of the

State of California, supplying water to approximately

' Pursuant to Supreme Court Rule 37.6, Amici Curiae

state that no counsel for any party to this dispute authored

this motion or this brief in whole or in part and no person or

entity other than Amici Curiae, their members, or counsel,

made a monetary contribution to the preparation or

submission of this motion or this brief.

* The Santa Clarita Agencies received written consent

from the City of Santa Clarita, the County of Los Angeles, and

CEMEX, Inc., to file this brief. The United States Bureau of

ILand Management has consented to this filing, with the

representation by counse! that written consent will follow.

A

a

30,000 persons throughout the Santa Clarita community.

Both the Santa Clarita Schools and the Newhall County

WD serve constituents both within the City and in

unincorporated areas of the County of Los Angeles

(“County”) surrounding the City.

Despite the differing purposes and goals of the

Santa Clarita Schools and the Newhall WD (collectively,

“Santa Clarita Agencies”), the entities share a common

interest in the CEMEX case now before this Court. The

CEMEX Project (“Project”) threatens tremendous health

and economic impacts to the constituents served by the

Santa Clarita Agencies, as well as their respective

employees and, as applicable, students. The Santa

Clarita Agencies stand to be directly impacted by the

potential environmental effects of the Project, which are

at the core of the City’s challenge of the consent decree

entered into between the County and CEMEX (“Consent

Decree”). Consequently, the Santa Clarita Agencies will

be directly affected by the outcome of the case currently

pending before this Court, both in the potential adverse

health effects to their employees and students, as well as

the potential adverse economic impact» resulting from

required remedial measures necessary to protect their

students and employees from resulting environmental

pollution. In addition, Newhall County WD pumps water

downstream of the Project, such that it is vitally

interested im an adequate review of the effects of the

Project on the water supply.

3.

More important to the issue before the Court, the

Consent Decree in this case foreclosed necessary

additional environmental review of the Project, thus

denying the Santa Clarita Agencies crucial protection

from the potentially devastating threats imposed by the

Project. By excluding the City from the negotiations of

the Consent Decree, the voices of those most affected by

the impacts of the Project have been left unrepresented,

and, consequently silenced by parties at best nominally

interested in the consequences of their decisions. Such a

practice has no place in federal jurisprudence.

SUMMARY OF ARGUMENT

The Santa Clarita Agencies wish to express their

support for, and their desire to join in, the underlying

arguments of the City in its Petition for Writ of Certiorari

(“Petition”), filed before this Court on May 10, 2006. The

Santa Clarita Agencies urge the Court to grant certiorari

in this case, in light of the tremendous injustice inflicted

by the termination of the rights of intervening third-party

defendants, who, as a practical matter, are bound by

consent decrees in which they have given no consent,

refiecting settlements in which they had no voice. The

circumstances presented within the City’s Petition are

representative of such injustices, as the rights of the City,

and, by extension, the Santa Clarita Agencies, under

existing state environmental law were terminated

without an adversarial! determination on the merits. Due

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process demands that the interests of those most affected

by the impacts of consent decrees be considered and heard

before the binding consequences of such decrees (or in this

particular case the Project) are thrust upon them. As

such, justice requires that the Court consider this Case.

ARGUMENT

L. Application Of The Consent Decree To

Bar The Defenses Of The City of Santa

Clarita Has Violated The Rights Of The

City Of Santa Clarita And All Of Those

Whose Interests It Represents.

The Santa Clarit~. Agencies vehemently join in the

request of the City that the Court grant the petition for

writ of certiorari on the issue of whether the rights of a

nonconsenting intervenor-defendant may be set aside by

a consent decree entered into between a plaintiff and

defendant who have, at best, minimum adverse interests

in the underlying action.

In considering the Project under the California

Knvironmental Quality Act (“CEQA”), the County was

required to consult with affected agencies, prepare draft

environmental reports, receive comments, hold hearings,

and make certain required findings before otherwise

approving the Project. See generally CAL. CODE REGS. TIT.

14, §§ 15080. 15096 (2005). ‘The proper process mandates

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the opportunity for comments from not only the City, but

also the Santa Clarita Agencies and other interested

parties, which are to be reviewed and considered in

conjunction with and before any consideration and

approval of the Project.

Significant and damaging environmental impacts

resulting from the Project, including effects on air quality,

water quality, and traffic, all of which will have

significant adverse effects on the abilities of the Santa

Clarita Agencies to provide educational and water

services to their respective constituents, would have been

reviewed. Mitigation measures could then have been

imposed on the Project, as feasible to avoid the adverse

effects on the environment now complained of by the

Santa Clarita Agencies and the City. CAL. CODE REGS.

TIT. 14, § 15092 (2005).

Instead, the County, with a minimal interest in the

potential harmful environmental impacts to be generated

by the Project, and without any consultation with the

City, the Santa Clarita Agencies, or any other party

directly interested in the potential impacts, entered into

a consent decree which foreclosed any _ further

environmental review or consideration of impacts

presented by the Project. In essence, the County ignored

its responsibility to balance the economic benefits of the

Project against the unavoidable environmental risks, CAL.

CODE REGS. TIT. 14, § 15093 (2005), and _ blindly

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determined that the “benefits” of the Project outweigh the

environmental consequences, regardless of what those

consequences might be.

The County’s failure to represent the interests of

Santa Clarita has been magnified by both the United

States District Court and the Ninth Circuit Court of

Appeal, which have both taken the further step of

refusing the City, the party with a recognized interest as

an intervenor as of right, any say in the Consent Decree

that now determines their fate. Though the Consent

Decree may not by its terms purport to “bind” the City or

the Santa Clarita Agencies, its bypassing of the very

environmental process in which the concerns of the City

and other interested entities would be heard, considered,

and addressed has nonetheless deprived the City, the

Santa Agencies. and the citizens of Santa Clarita of vital

rights under the law—all without representation.

II. Entry of the Consent Decree Without

City Representation Has Deprived The

City And Those Represented By Its

Interests Of Significant Legal Rights

Without Representation.

By its very nature as a intervenor-defendant as of

right, the City represents an interest in the underlying

action in this case that (1) will as a practical matter be

impaired or impeded by the Consent Decree, and (2) is not

RB

otherwise adequately represented by the County as the

original defendant in this action. Fed Rule Civ. Proc.

24(a). The Ninth Circuit recognized the City’s position

when it reversed the District Court and mandated that

the City be joined in the action as a intervenor-defendant

by right.®

The Santa Clarita Agencies were situated such

that resolution of the action between CEMEX and the

County stood to impede or impair their environmental

interests. The City, however, having been admitted into

the action as an intervenor-defendant of right, adequately

represented those interests—and thus represented the

interest of the entire Santa Clarita community by its

presence in the action. Moreover, the concerns of the City

relative to the project, including air and water quality and

traffic impacts, coincided with the concerns of the Santa

Clarita Agencies.

* Federal Rule of Civil Procedure Section 24(a)

provides, in relevant part:

Upon timely application anyonc shall be

perniitted to intervene in an action... when

the applicant claims an interest relating to the

property or transaction which is the subject of

the action and the applicant is se situated that

the disposition of the action may as a practical

matter impair or impede the applicant's

ability to protect that interest, unless the

applicant's interest is adequately represented

by existing parties.

-8-

In light of the City’s recognized status as a party

representing interests not otherwise adequately

represented by the defendant County, common sense

would dictate that the City, as the representative of such

interests and a recognized intervenor-defendant of right

with rights as a full party to the action, should have been

included in any settlement of the matter in dispute

between the County and CEMEX. See Alvardo v. J.C.

Penney Co., Inc., 997 F.2d 803, 805 (10th Cir. 1993)

(noting that intervenors are generally entitled to have

claims litigated as if they were an original party).

The City should have been provided with a full

opportunity to participate in the formulation of the

proposed relief. See United States v. City of Hialeah, 899

F. Supp. 603, 611 (S.D. Fl. 1994). In the event settlement

of the dispute was not possible, based upon the concerns

represented by the City, then the defenses raised by the

City should have been adjudicated before any action by

the court to extinguish such defenses. United States v.

City of Hialeah, 140 F.3d 968, 976-78, 983 (1th Cir.

1998).

The City, however, was not given such an

opportunity. The County and CEMEX engaged in

negotiations without the City. The two parties agreed

upon the terms of the settlement to be outlined in the

Consent Decree that thereafter would be binding on all

parties. The County's agreement as to how it would

.

exercise its discretion to approve the Project and the

foreclosure of any further environmental review

essentially eliminated any rights of the City, or the Santa

Clarita Agencies to consult with or raise concerns to be

considered in such review.

As stated by the City within its Petition, the

District Court could have allowed for the County and

CEMEX to settle their issues, without terminating the

rights of the City in the process. The settlement could

have been structured not as a consent decree (which by its

nature implies consent of all parties), but rather as a

settlement between those two parties. Thereafter, the

County could very well have stepped aside and allowed

the City, at its discretion and at its cost, to litigate those

interests not otherwise represented by the County.

Instead, the City, as a genuinely recognized party

in the action, was ignored, and the consent decree was

entered into and approved by the District Court without

concern for the interests represented by the City.

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Ill. Benefits Of Party Settlement Of

Disputes Should Not Be Permitted To

Overshadow Need To Ensure Fair

Representation Of Interests Of All

Parties.

The issues presented by the City in its Petition are

not unique to this action, but rather present far-reaching

questions in all disputes in which original plaintiffs and

defendants potentially hold the power to terminate the

interests of third-parties. The application of consent

decrees to bind such third parties is a significant

detriment to the fair execution of justice in the federal

court system, and must be reversed.

The benefits offered by settlements and consent

decrees cannot be disputed —including often early

resolution of disputes, reduced litigation expenses, more

efficient use of judicial resources, and avoidance of

litigation risks. See, e.g., Menger, Consent Decree

Paradigms: Model Without Meaning, 29 B.C. L. Rev. 291,

327-31 (1988). Those benefits, however, should not be

allowed to overshadow the very goal of the judicial system

to provide not only expeditious, but fair, resolutions of

cases in controversy. See /Ilowsam v. Dean Witter

Reynolds, 537 U.S. 79, 95 (2002).

Such an overshadowing is particularly prevalent in

cases such as this, in which the interests of third-party

a“

intervening defendants or plaintiffs may so easily be

ignored in favor of consent decrees entered into by the

original litigants, who often may have more of an interest

in the quick resolution of the dispute rather than full and

fair adjudication of the interests presented within such

litigation. Such circumstances would appear to often

arise when the original defendant, such as here, is a

public entity brought into an action not because of a direct

interest in the controversy, but rather a mandated

statutory requirement or regulation causing it to become

involved despite its actual desires or interests. See

Laylock, Consent Decrees Without Consent: The Rights of

Nonconsenting Third Parties, 1987 U. Chi. Legal F. 103,

105-06 (1987) (hereinafter Laycock) (citing example of

Harrisburg Chapter of the ACLU v. Scanlon, 500 Pa. 549

(1983); see also City of Hialeah, 140 F.3d, at 983-84;

United States v. City of Miami, 664 F.2d 435, 442, 447;

Kirkland v. New York Staie Dept. of Correctional Services,

711 F.2d 1117, 1125-28 (1983). Such entities often lack

the financial, political, or personal motivation to fully

adjudicate such litigation, preferring instead to settle the

litigation in the cheapest and simplest manner possible

provided such resolution allows it to satisfy its obligations

under the law Laylock, at 105-06. The interest of such

entities is essentially similar to that of a “stakeholder in

an interpleader.” Jd.

Such interests are contrasted with those of the real

parties in interest that not only desire that the

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“stakeholder” public entity perform its obligations under

the law, but that it does so in a manner such that all

interests, or at least its personal or political interests, are

at least considered, and thus protected.

In this case, County is largely a party due to its

status as the governing agency charged with the approval

of any permits for the Project, which is situated within

the County’s planning jurisdiction. Under CEQA, the

County is mandated by State law to conduct proper

environmental analysis before it may consider the

approval of the Project. In this instance, however, it is

that requirement that concerns whe County—rather than

the direct environmental impacts of the Project that will

largely be felt by the City, the Santa Clarita Agencies, and

the people all of these agencies serve.

Consequently, it is the City, and not the County,

that is the party with the real interest in ensuring that

adequate environmental analysis is conducted prior to

any approvals of the Project. By excluding the City from

the resolution of this matter through the Consent Decree,

the real interests in the matter are ignored, in favor of the

limited interest of the County.

The consequences to the non-consenting third

parties are magnified by the judicial pretext that the third

parties are not bound by the terms of the consent decree.

In this particular case, it is true that the City is not, by

= i. %

the terms of the Consent Decree, “bound” to behave or act

in any certain way. Nevertheless, the City’s rights are

directly linked to the review under CEQA that was to

have been conducted by the County. Ifthe County has, by

decree, bypassed such review-then City’s right to

intervene and defend the need for specific CEQA review

for impacts caused by the Project is meaningless—and

there is by definition no environmental process for which

the City’s interests may be heard.

Numerous examples of circumstances in which the

rights and interests of third-party intervenors have been

ignored or conceivably set aside by proposed consent

decrees between plaintiffs and “stakeholder” defendants

can be found in existing case law.

In Southern California Edison Company v. Lynch,

307 F 3d 794 (9th Cir. 2002), the complaining energy

company, Southern California Edison (“Edison”), filed an

action against California Public Utilities Commission

(“CPUC”), seeking to recover certain wholesale energy

costs during a rate-freeze period in which Hdison was

prohibited from passing on costs of purchasing wholesale

energy costs on to consumers. Jd. at 801-02. A consumer

group, devoted to protecting the interest of residential and

small-commercial consumers, intervened in the action,

likely accurately anticipating that such consumers would

ultimately pay the price of any settlement. /d. at 802.

Edison and the CPUC in fact agreed to and obtained a

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stipulated judgment, in which the CPUC agyeed to allow

Edison to apply inflated rates to consumers for a period of

two years to recover its prior costs from its retail

consumers. /d. In rejecting a challenge by the consumer

group, the Ninth Circuit focused on the ability of the

intervenor-defendant to prevent the original partics from

settling, id. at 806-07, ignoring the fact that the consumer

group, as an intervenor-defendant and party representing

the interests of those who would be required to pay the

price of the original parties settlement, had an cognizable

interest in pursuing the litigation to adjudication on the

merits. Instead, a regulatory entity, as the original

defendant with little price to pay in terms of settlement

on its own, was permitted to pass costs of settlement on to

the non-consenting intervenor.

Similarly, with a different result, in United States

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

discrimination litigation was brought against the City of

Miami on behalf of minority and female police applicants.

Id. at 436. The US Attorney General and the City of

Miami settled their dispute by way of a consent decree,

which deprived members of the police union of certain

rights under a contractual promotion procedure. Jd. In

that case, however, the court acknowledged the

appropriateness of a consent decree only as to those

settled issues that do not otherwise affect the rights of a

nonconsenting party. /d. at 440. ‘The remaining issues

must otherwise be left to adjudication by the court, so that

o 1S

a decision on the merits of those disputed issues may be

reached. Id.

Additional examples of such attempts to

bilaterally settle multi-party disputes can be found

throughout the cases cited by the City. See Pet. at 18-19.

In each of the circumstances, however, the potential

damage of allowing neutral entities, merely seeking to

follow or fulfill statutory or regulatory obligations, to

settle and bind non-consenting third parties, who will

bear the real burden of the settlement, is demonstrated.

The injustice of any policy that would allow such a

binding settlement to be placed upon non-consenting

third-parties, when coupled with the split found in such

cases applying such principals and the confusion in

application of Local Number 93, International Association

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

U.S. 501 (1986) cited by the City within its Petition,

justify this Court’s review of this issue to clarify the

purpose and application of the consent decree designed to

protect the rights and interests of all parties—and allow

the adjudication of those rights truly in dispute.

CONCLUSION

For the above-stated reasons, the Court should

accept this case for review.

Dated: June 16, 2006

Respectfully submitted,

Wendy H-vite

WENDY H. W ILES*

JEFFREY A. HOSKINSON

* Counsel of Record

BOWIE, ARNESON,

WILES & GIANNONE

Counsel for amici curiae

Newhall County Water District

Sulphur Springs Union School

District

Wm. S$. Hart Union High School

District