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Monday, Jul 07 2014 11:57 AM

Kern County scores big wins in sludge lawsuit

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BY JAMES BURGER Californian staff writer jburger@bakersfield.com

The California Supreme Court dealt a serious blow Monday to southland sewage agencies’ eight-year legal campaign against Kern County’s ban on the land application of treated sewage sludge.

The seven justices unanimously overturned a state appeal court ruling that had granted a city of Los Angeles request to block enforcement of Measure E.

The court held that Los Angeles, the lead agency on the lawsuit, failed to file claims against voter-approved Measure E within a 30-day period following the dismissal of a similar federal lawsuit.

Los Angeles and the other municipal and private sewage handlers who sued argued that Measure E was trumped by the California Integrated Waste

Management Act and that Kern County hadn’t properly considered regional welfare when it used its police powers to ban the land application of treated sludge — known as biosolids — in unincorporated Kern.

The court didn’t hear the merit of those claims. Instead it ruled that Los Angeles had failed to file those claims soon enough after federal courts dismissed a lawsuit that contained the same claims, Kern County Counsel Theresa Goldner said.

Los Angeles had 30 days to file a suit that would preserve the two claims, the court ruled. The city took 78 days.

Goldner acknowledged that Kern won on a technicality Monday.

But it did win.

“I couldn’t be happier,” she said.

Los Angeles officials vowed to continue the fight.

NEXT ROUND

The long back-and-forth is not over yet. Three other claims remain to be argued in Tulare County Superior Court, Goldner said.

Los Angeles, she said, contends that Measure E violates the commerce clause of the U.S. Constitution — a claim that was rejected by the federal Ninth Circuit Court of Appeal but refiled in state court.

She said Los Angeles has also claimed that the Kern County ban violates commerce clause protections “implied” by the California Constitution — something she called “trying to make up a law.”

And it also charges that the ban — which only controls biosolids spread in unincorporated Kern County — unfairly targets Los Angeles spreading operations while failing to do anything about local biosolids spreading by other agencies including the city of Bakersfield, Goldner said.

Rob Wilcox, director of community engagement and outreach for the Office of the Los Angeles City Attorney, issued a statement indicating Los Angeles will continue to fight.

“It remains clear that Kern County's ban is unlawful, and the City will pursue a number of avenues to assure continued compliance with the state's environmental laws, including returning to the trial court to address the grounds on which the lawsuit was, in fact, timely,” he wrote in the statement.

Asked if the integrated waste management claim had been invalidated, Wilcox issued another statement.

“Today’s Supreme Court ruling addressed only the narrow issue of the interpretation of a federal law regarding the statute of limitations. It did not address the Court of Appeal’s ruling that the Kern County ban was unconstitutional and violated California’s law that mandates recycling,” he wrote.

The appeal court, however, only ruled that the injunction against Measure E was upheld, not that Los Angeles had prevailed on the merits of the waste management act claim.

BIG BLOW

Goldner said Los Angeles lost its two best arguments against Measure E on Monday.

The police powers and waste management act claims were what trial and appeal courts relied on when they ordered Kern County not to enforce Measure E until the merits of the full case had been argued at trial.

For example, 5th District Court of Appeal presiding Judge Rebecca A. Wiseman wrote in February 2013:

"We agree with both (federal district and superior) courts that plaintiffs were reasonably likely to succeed on two of their contentions: that Measure E is preempted by the California Integrated Waste Management Act, and that Measure E conflicted with a state constitutional principle known as the regional welfare doctrine and therefore exceeded Kern County's authority.”

Now a Tulare County Superior Court judge will have to decide if the other three claims are strong enough to force continuation of the injunction, Goldner said.

If the injunction is lifted, Kern County would be able to enforce Measure E and close down Green Acres Farm southwest of Bakersfield — where 75 percent of the city of Los Angeles’ treated sewage sludge is spread on cropland.

If the injunction stays in place, Goldner said, Kern County will likely challenge it.

Kern County Supervisor Leticia Perez said she was savoring the win Monday.

“For me it’s very much a David and Goliath story,” she said.

Los Angeles is the giant leaning over the Grapevine to tell little Kern County what to do, she said. But the courts didn’t turn a blind eye, Perez said, when Los Angeles flaunted the rules over when cases can be filed.

“I feel like we’re getting our fair day in court — that L.A. doesn’t dominate every institution in the state,” Perez said.

Former state Sen. Dean Florez, D-Shafter, a major force behind Measure E, also weighed in.

“A TKO is just as good as a KO in any fight,” he said in a statement. “L.A. attorneys need to realize Kern County voters spoke loud and clear and the courts will respect the voters despite L.A.'s shameless legal maneuvers."

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