Saratoga News

Photograph by Robert Scheer

Councilmember Jim Shaw thinks the city should install a creek caution sign at Wildwood Park.

Appeals court reverses district court decision

City could be held liable for pollution

By Sarah Lombardo

The California 9th Circuit Court of Appeals has reversed a district court decision stating that the city of Saratoga cannot be held liable for polluted discharges flowing from a storm drain owned by Caltrans.

In the March 5 ruling, the appeals court sent the issue back to the district court without making any decision about the liability.

"It doesn't resolve the issue of whether the city is liable. It says the city may be held liable," said Claudia Polsky, attorney for the Earthjustice Legal Defense Fund. Polsky, who represents the environmental groups San Francisco BayKeeper and the Friends of Santa Clara County Creeks in suing the city, said the appeals court simply decided that the district court did not make a complete decision. "I think it's very clear that the district court applied the wrong legal standard," she said.

City Attorney Mike Riback said he was surprised at how quickly the appeals court made a decision, but said he is disappointed with the ruling. "I think both sides would have preferred a decision," he said.

The city had argued before the appeals court Feb. 10 that the district made the correct ruling when it said the city could not be held liable for discharges from a storm drain it did not own located beneath the Saratoga-Sunnyvale Road overpass. The environmental groups countered that the city could be held liable because although the city is not the owner, it does operate the storm drain--an issue which district court Judge Edward Infante did not touch on in his decision. The issue of owners vs. operators, the appeals court said, needs to be clarified.

The ruling, Polsky said, not only sends the issue of the Saratoga-Sunnyvale Road outfall back to the district court, but also reinstates all the environmental groups' charges against the city. Filed in January 1995, the groups' original lawsuit against the city contained a number of counts covering discharges from several storm drains in Saratoga Village that empty into Saratoga Creek. The city, the suit contends, is responsible for the cleanup and prevention of the discharges, which the groups claim contain unreasonably high and unsafe levels of fecal coliform bacteria. Last April, both parties agreed to a summary judgment dismissing the suit and appealing it on the sole issue of the Saratoga-Sunnyvale Road outfall. In that agreement, the environmental groups agreed to dismiss 10 counts against the city on the condition that all counts would be reinstated if the appeals court reversed the district court's decision.

The city, although maintaining it is not responsible for the outfalls, has made moves to place signs along the banks of Saratoga Creek warning residents not to wade in the water. The wording on the signs was approved by the City Council March 4. The signs will read: "Caution: Do not wade or play in Saratoga Creek. Bacteria levels in excess of water quality objectives for water-contact recreation have been detected in Saratoga Creek. For more information, contact Coyote Creek Riparian Station, 408/262-9204. City of Saratoga."

Although the signs were applauded by residents who support the environmental groups, Vice Mayor Jim Shaw said he would like to see another sign placed in Wildwood Park, beside a storm drain near Fourth Street. The sign, he said, could further warn parents to keep children out of the creek. "It just seems reasonable," he said.

City Manager Larry Perlin said the suggestion would be given to city staff.

A status conference has been scheduled for April for both sides in the lawsuit to discuss the next step in the case.

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