was michael excellent appearing today on behalf of the orange county water district i'd like to start with the race to the current issue with your permission and make three points that are i think you're going to emphasize i want to be sure was overseen by a number of agencies the da is not one of them typically the da prosecutes criminal cases here the da decided to take it upon himself to bring a public nuisance action which is permitted to do under section seven thirty one of the code of civil procedure but with that it's district attorney is not empowered to do is to enforce any private right and to usurp the responsibilities of the agencies that are responsible so and to complete my answer to the question about whether this has been remediated it is not shown b p did not put on any evidence because they have no evidence that the off site migration of m t b e at the four hundred plus sites that are in orange county has been remediated that m t b f your position that the consent decree was not at all it's our position that it was limited and that it did not involve the orange county water district or the rights of the orange county water district be remediated but is not being done under the auspices of the consent decree that is absolutely the case for hundreds uncontested that m t b e continues to migrate from hundreds of stations throughout the district and has not been remediated pursuant to the consent decree and the consent decree did not require that it be remediated they required only that shell and b p comply with the directions of the regional water quality control boards which are responsible for onsite remediation and that they spend some money to look at the extent of the contamination they say that the district attorney got a blank check and you're not going to find that in any of their consent decrees and in fact outside of this courtroom b p and shell would never make that statement that was a statement made by the time and the first up will be x on there will be a three week trial on the two exxon stations that are the subject of focus case discovery so if this case gets sent back it will get put in line shell and b p will be get put in district spends hundreds of millions of dollars and has spent years to get water that sufficient to meet the needs of two million people in southern california for clean potable water that has it had to go through a lengthy process with the state to perfect its rights to their water  it has superior legal rights that water and nobody can take that groundwater out of the arco for without paying the district a replenishment fee ask you this on the race to to cut a point what was the district attorney suing about with respect to that water at that site that's different from what your silly ass because i mean i understand that that water has been contaminated and different state entities might be the party to sue the district attorney sued why and why is your suit different it's different because there are multiple rights in th water and there are multiple types of right there public right in there are private right in the same order and that's not i don't know that the district attorney sued about covered all public rights all public rights  i don't have an answer that question your honor because there may be other public rights beyond what the district attorney's or these of your clients are there is your client suing only for private rights so we can start with back what what is the private right and what is its source speakers i would have thought that it was the rights of the people of the county and that that was covered by the district attorney  understand why not your honor if that was the case then anybody could take water without having to pay replenishment fee to the district or and the district wouldn't would be crazy to invest hundreds of millions of dollars in putting them out i don't understand how the district attorney could sue it all then if the right to that water was exclusively the counties but you're not disputing that the district attorney had the right to sue no or not but the right to sue out to serve the people of the county if i can give you an example of how you can have both a public right in a private right because it's set forth in the case that the digits in one sided and that the district that the defendants primarily rely on is the coast  and here you have another instance of where they're both private and public right in an easement to beach access although they rely on this case they don't quote the following from the case and i think it's important critical for race to cause race judicata purposes in that coste  court said the appellate has not pursued individual claims applicable only to its members in some way distinctive from the property rights of the public adjudicated in the preexisting case as necessary to avoid it there you had both a private and public interest in access to the beach i think here is you say you have the right to take the water to take it for the same public that the district attorney was suing on behalf or minus in some well i wouldn't say you're missing something your own are just think that they're in the nature water rights as you can have multiple rights in the same water you know what the district attorney did not have and could not pursue was the rights that the district has in the water that that's in the growth so the public has a general right he says you're saying you have an exclusive right to take that water then nobody has any other rights and i don't understand that everybody has a general public right your honor to clean water in california but that doesn't mean that's the end of the story how that gets carved up and who has the right to enforce different aspects of those rights is a very complicated question what's not complicated is that the district has are because that is a difference in the case that i understand here it's that the public at large has a right to clean water and you were going to take the water and get it to the public have a right to clean water that seems to me to be the same it is different your own of the public has a very generalized purgatory right to clean water how that water gets to them is a matter of very complicated state law but the district has in what the da did not have was an investment of hundreds of millions of dollars in putting that water in the ground of managing it to districts employees spend twenty four seven trying to figure out how to get good clean water to more than two million people at the right pressure a problem with a line of argument you're pursuing it seems to me and correct me if i'm wrong is that it just runs you headlong into the statue of limitations because your theory now is that you had a completely different constellation of interests to protect than the district attorney did you weren't permitted to intervene you knew about the contamination at least as of one thousand nine hundred nine and you sat down around a lot of three year statute daron act actually your honor the statue of limitations doesn't begin to run in california until you have a legal cause of action the problem with judge shoeless rulings below is that she said two contradictory things we said look your honor this is difference between on site and off site contamination there's a lot of temptation that occurs at gas stations that gets remediated by the regional water quality control board they're taking care of the problem it never gets off site it never threatens drinking water never threatens to get any public drinking water wells when that's the case the district can't bring a cause of action that's what judge sheindlin found in one opinion and then on the statute of limitations opinion she said well you were other gaited to bring that same cause of action anticipatory my guess is not a breach because you don't have a contract but you know it's coming but you can't sue on it till it gets there we're not allowed to speculate about when our gas stations were sitting on this one of the gas stations your sign was sitting on this water table right  there sitting on a water table that doesn't mean that the m t b e this in the shallow water just underneath the gas station is ever going to go anywhere it doesn't get we can't we can't sue on speculation that it's that the that the remediation isn't going to work  consent decree and found out that it was migrating the consent decree doesn't say that it's migrating your honor what the bill that decline and what the district attorney did was basically back up the regional water quality control boards that are responsible for on site remediation threaten some civil penalties and got some additional money so at some of these sites if they're not doing an adequate onsite remediation job the district attorney got some additional bucks to help out with that and that's it that did not take care of the off site migration of m t b e which under our continuing nuisance claim we have a new cause of action for every day that it is in the water and continues to migrate away from the station some of these plumes are thousands of feet we believe improperly drew an inference we explain this whole difference between on side not side migration to her and she said well but you see you're saying that if it gets up to five parts per billion in an off site monitoring well that is  sufficient evidence of horman you can bring your cause of action but i'm going to draw an inference that you're also harmed onsite that is a jury question in the city of promote a case with respect to the statute of limitations maybe a site meeting at a gas station meeting at the products and b p north america and your art what this case boils down to is whether or not a consent decree of which the orange county waters was well aware that was entered into between b p let me just address something at the outset that mr actually i was talking about which deals with this false dichotomy of on site and off site cleanup it is simply not the case that the district attorney's lawsuit got the award board some extra bucks to clean up on site contamination i'm going to quote from you to you from the record and this is in the appendix them cording from page eight dash forty three ninety one it's the clean up obligation that's contained in the shell consent decree and i'm quoting from that it says specifically that the shell of a defense are obligated to commence and complete all appropriate corrective and or remedial action to clean up any petroleum hydrogen car or compound contamination or other contamination to soil or groundwater whether on or off the subject sites so the notion that we were able to just stop at the gas station border and not clean up anything else and that this consent decree doesn't cover anything other than contamination at the gas station itself simply isn't correct it's not the case the consent decrees were broad they provided broad relief and they  covered exactly the claims that o c that it is asserting here are these remediation efforts ongoing they are your own is the water district also expending money trying to correct in a different motion that they were not expanding money that's recoverable under the orange county water district act which is what they were suing us under for those costs the district has indicated it's done some investigation but it is not and she's quite right about this is that the consent judgments are provided for the cleanup of the contamination in the ground and we are continuing to do that in some instances in some instances the clean up have been completed i hear well the five year period relates to certain injunctive relief that's contained in the shell consent decree that five year period doesn't relate necessarily to the cleanup correct we are obligated under california law to clean up and remediate stations for which we're the responsible party there's no talking about stations but stations that the fact that the station may have released your honor doesn't mean that we're allowed to stop at the station order if it's if the contamination continues beyond the station order we're obligated to clean it up there's no question yes we are router deep water wells i mean are we are checking it wells it depends on the site your honor there's certain spots  raised by the district attorney under the consent where there's a turn his job is to go out and clean up work it's not necessarily a cleanup warrior are but it is to enforce the consent decree and in fact in connection with this consent decree shell and  p were both required to fund an environmental consultant who was going to be selected by the district attorney's office who would monitor what we were doing in orange county as a result of this this consent decree  yes the dichotomy that mr actually tries to make between public and private rights i think is also false when the orange county water district is a governmental unit it's not suing here to enforce private rights and has a separate blue or has a separate forms part of their budget they also have a user fee component to their budget as well but they absolutely have a property taxes well in the orange county water district there's no question about that in addition the district is special district of the state of california as a result of that it's deemed to be an agency of the state and it says that in there i don't believe this is in the record but in their budgetary documents on their own website they call themselves a special district of the state and california  quite clear that that agencies of the same state of the same government are perfectly with each other because they represent not their own rights but the rights of the government and i think the panel had it exactly correct orange county  say to the statute allows the district attorney to bring a nuisance case public nuisance case in the name of the people of the state of california and specifically that's a government code section twenty six five twenty eight so yes in this instance i don't deal with the agencies californias frequently is the agencies of the states in our own circuit improve with one another i mean this is the case law that says they are agencies of the state or you just asking us to infer that from the fact that it's sues in the name of people of california there's no specific case law that i've seen dealing with the orange county water district on this point however there are numerous cases in california where you are might have been or that they're pretty because they're both parts of orange county not necessarily the state but my missing something water and put it to beneficial use oh c w t doesn't actually do that however the water is appropriated by individual water districts within the orange county water district orange county water district doesn't actually supply water to the public they supply it to other but under the circumstances there is a superior right in the people of the state of california in that water that's the interest that was removed the state of california can't go in and throw a cup down the well and say this is my water and i'm going to drink that's correct but they without paying them to do that or paying the person the entity to whom they supply the water to do that's that's correct no it's their water which they can then sell to the people of california they can't deny the people of california that but they've got a right in that water it seems to me and t user fee to the user districts that actually pump the water out of the ground and serve it to their customers but they're not actually doing the pumping and they're not actually appropriating the war themselves they are charged able to charge a fee for that but they're not actually taking possession a jury question for a couple reasons first off here are in this particular instance they rely heavily on the city of pomona case saying that that it's a reasonable question in the city you promote a case there wasn't a specific what they call maximum contaminant level  level at which the contamination violates the law until after the contamination had been discovered all parties in that case agree that once the contamination reached the natural maximum contaminant level that had been put in place by the california legislature subsequently that that was sufficient to run the statute limitations here it's not a reasonable reasonable is question because they were aware that there was m t b e in the groundwater at levels exceeding the n c l in california more than three years before they filed suit and that is sufficient under california law as harm to start the clock running on the injury and therefore as a result of that they were required to bring suit they didn't actually would be if the statute had run there would arguably be some claims for continuing nuisance in the case and to the extent they had any recoverable cost because the statute of limitations terms of the water district claims was a statement that the parties understood that the that the district attorney was taking the position that he wasn't representing the ward district that language was very very intentional and the reason is because we didn't agree with that pretty is a matter of law in california and these claims were being asserted on behalf of the public now as it also pointed out the consent judgment does have a number of exclusions from the places where we agreed to carve out certain claims from the scope of the consent judgment and when that happened that was made done very clearly and for example i can turn your attention to paragraph nine point zero where certain claims are carved out that were being asserted against texaco inc for example the other the other issue there were are pretty resolve injury that occurs after the consent that i'm not suggesting that they would be successful but it's a separate separate issue isn't it that is a separate issue and if i could just address that briefly there are two things number one the consent judgments for vide it for future work to be done to clean up contamination also california law provides that where a claim is brought for permanent nuisance and it's settled that there is no further continuing nuisance claim in addition the district was not a party to the d a s lawsuit and as mr connor an admitted the da said that he was not purporting to bring the case on behalf of the district he did effort in the in the shell case but also know in the b p cases well now they didn't specify the orange county water district but they said generally we're not acting on behalf of water districts here because they knew the political heat they would get if they purported to take over the is under the subject of very separate professional geologist your own or that geologist was a little kid i think maybe five million dollars and that's it to go out and do what the district attorney sued to remedy that's what you're suing to remedy complaining that the district attorney didn't do a good enough job and i understand the frustration with that but i don't see how the parties for the army are different you people you you are you represent private entities is that what you're telling us i represent a governmental entity that is completely independent of the county of orange and has nothing to do with that county new york city represents the people in different ways but my concern is you're you're the people of orange county the d a s the people of orange county what am i missing here the orange county water district represents the water purveyors for whom it obtains in protects this water and it is not a broad government let it be the only thing it does is manage the water basin that's the only thing it does it doesn't act on behalf of the people of orange county at all and certainly not in any context other than attending pickens they managed to manage it on behalf of the people within the orange county water district service area which is different than orange county  yes i would just like to make the point that i may make the point that with respect to the cases that mr connor lies on involving state you know whether just because you're both some subdivisions of the state there's necessarily  the cases that he cites don't say that the coast case that i quoted to you from is the main case that they rely on for that proposition there and they cite only three cases two of them are collateral estoppel cases they're not restricted cases and that is not a general principle if you look at the principles of privity they apply to state agencies just like any other entity and pretty doesn't apply here because we were not a party and none of the exceptions to holding somebody's account obligated under a prior case apply to the orange county water district they didn't re