Metropolitan News-Enterprise


Tuesday, July 8, 2014


Page 1


S.C. Says City Waited Too Long to Challenge Sludge Ordinance




The City of Los Angeles and others involved in its biosolids recycling program waited too long sue to refile a suit in state court over a Kern County initiative banning application of the sludge to land in unincorporated areas of that county, the state Supreme Court ruled yesterday.

In a unanimous decision, the high court reversed the Fifth District Court of Appeal, rejecting its interpretation of a federal statute that allows a plaintiff a limited amount of time to refile in state court after a suit is dismissed in federal court.

Justice Kathryn M. Werdegar, writing for the high court, concluded that 28 U.S.C. §1367(d) gives a plaintiff just 30 days to refile in state court after a federal district judge declines to exercise supplemental jurisdiction and dismisses claims based on state law.

The Fifth District, like a number of other courts around the country, had favored a more liberal interpretation, giving the plaintiff whatever time remained in the applicable limitations period at the time of the federal filing, plus 30 days.

The statute says “[t]he period of limitations for any claim asserted under subsection (a) … shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”

C.A. Ruling

The Fifth District last year  struck down Measure E, banning the application of biosolids—residual organic materials produced by the treatment of municipal wastewater—to land in unincorporated areas of the county. The measure was approved by 83 percent of Kern County voters in 2006.

The city and others filed suit, charging that Kern acted “arbitrarily based on vague and emotional speculation regarding biosolids” in adopting the ban, intending specifically to bar operations at a farm that the city owns and uses for land application of Los Angeles’ biosolids.

Green Acres Farm, located 15 miles southwest of Bakersfield, has been the site of the city’s land application program since the mid-1990s. 

The city had begun working with Kern County farmers in the early 1990’s to land apply biosolids, in response to a 1987 consent decree that barred the city from dumping biosolids in the ocean, and to the Integrated Waste Management Act enacted by the state Legislature in 1989, which required localities to reduce the amount of solid waste going into landfills. 

After several years of successful land application at the Green Acres site, where biosolids are used to grow crops sold as animal feed, Los Angeles purchased the farm in 1999 at a cost of $9.63 million. At the time it filed suit, the city noted that it also had spent $16 million on upgrades of its wastewater treatment plants to meet heightened county requirements, and incurred additional cost to operate wastewater treatment plants in Hyperion and Terminal Island that generate the biosolids recycled in Kern, and the costs of employing a full-time staff of farm workers, contractors and employees to oversee the farm’s operations.

Tortured Path

The case has followed a path from federal district court, where the plaintiffs initially prevailed; to the Ninth Circuit, which reversed on standing grounds; back to the district court, which dismissed; to the Kern Superior Court, where the action was refiled and which ruled for the plaintiffs; to the Court of Appeal, which affirmed the Superior Court ruling, and to the Supreme Court, which handed down yesterday’s ruling.

Because the case involves interpretation of a federal statute, it could finally go to the U.S. Supreme Court.

The Ninth Circuit, when it reversed, said the plaintiffs lacked standing to sue under the dormant Commerce Clause, sending the case back to the district judge to exercise his discretion to hear the remaining claims under supplemental jurisdiction, or to dismiss.

The Court of Appeal agreed with the plaintiffs that under that language, the statute of limitations stops running while the claim is pending in federal court and for 30 days after it is dismissed; then the statute of limitations begins to run again from the point where it left off. 

High Court Reverses

The Supreme Court granted review, limited to the statute-of-limitations issue.

Werdegar yesterday said that while split among courts is about even, the stricter interpretation is more consistent with congressional intent and less intrusive upon state sovereignty.

“Section 1367(d) is no paragon of clarity, but among those readings plausible from the text, the grace period construction cleaves closest to the goal of avoiding the loss of claims that otherwise would be barred, while impinging least on state sovereign prerogatives to establish statutes of limitations,” she wrote. “In the absence of evidence Congress intended any more, we must adopt that interpretation.”

The case is City of Los Angeles v. County of Kern, 14 S.O.S. 3427.


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