Redevelopment Agency of City of Stockton v. BNSF
643 F.3d 668
9th Cir.2011Background
- 1968 Agreement relocated track and installed a french drain on the Property as part of freeway interchange work, with maintenance obligations by the Railroads; deed transfer occurred in 1983.
- 1988 Railroads sold their interest in the Property to the Redevelopment Agency, which later planned development; 2004 sale of Area 3 to a developer with indemnity for contamination costs.
- Contamination discovered in July 2004 along the french drain and groundwater; testing indicated the contamination was at least twenty years old, likely originating at the nearby L & M Site with 1970s spills.
- The french drain acted as a preferential pathway for petroleum migrating onto the Property.
- September 29, 2005, the Agency sued for cost recovery and an injunction, asserting liability under the Polanco Act and nuisance; the case was removed to federal court; summary judgment granted to the Agency on nuisance and Polanco-Water Code, with damages awarded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Railroads create or assist in creating a nuisance? | Agency contends Railroads created/assisted creation via french drain. | Railroads did not actively create the nuisance; drain installation unrelated to contamination. | Railroads did not create or assist in creation of the nuisance. |
| Are Railroads liable as possessors for failing to discover/abate a nuisance? | Agency argues possessor duty to discover/abate nuisance applies. | No duty to inspect subsurface given lack of knowledge and no control over adjacent contamination. | Railroads not liable as possessors for failure to discover/abate. |
| Liability under Polanco Act Water Code for discharge | Railroads liable for discharge via drain as conduit for contamination. | Discharge is merely a conduit; involvement too passive to be liability under 13304. | Not liable under Polanco Act Water Code. |
| Liability under Polanco Act CERCLA provision | Railroads as CERCLA 'owners' or 'operators' liable. | Railroads were not owners or operators; equitable ownership theories fail; easement status not enough. | Railroads not liable under CERCLA provision; not CERCLA owners. |
Key Cases Cited
- Selma Pressure Treating Co. v. Osmose Wood Preserving Co. of Am., 221 Cal. App. 3d 1601 (Cal. App. Dist. 3rd 1990) (creation or assistance in creation required for nuisance)
- City of Modesto Redevelopment Agency v. Superior Court, 119 Cal. App. 4th 28 (Cal. App. 4th Dist. 2004) (mere placement of hazardous substances in commerce not enough for nuisance)
- Lussier v. San Lorenzo Valley Water District, 206 Cal. App. 3d 92 (Cal. App. Dist. 1st 1989) (unreasonableness requirement for nuisance; active creation not required in every case)
- Leslie Salt Co. v. San Francisco Bay Conservation and Dev. Comm'n, 153 Cal. App. 3d 605 (Cal. App. Dist. 1st 1984) (landowner liability for nuisance on land he possesses when he knows or should know and fails to abate)
- Long Beach Unified Sch. Dist. v. Godwin Cal. Living Trust, 32 F.3d 1364 (9th Cir. 1994) (easement holder not an owner under CERCLA; operator liability separate)
- San Pedro Boat Works, 635 F.3d 451 (9th Cir. 2011) (distinguishes owner vs operator liability under CERCLA)
- United States v. Bestfoods, 524 U.S. 51 (U.S. Supreme Court 1998) (defines CERCLA operator liability standards)
- Modesto (cited for nuisance/13304 harmonization), 119 Cal. App. 4th 28 (Cal. App. 4th Dist. 2004) (restrains broad nuisance liability; interpretation of 13304)