Photograph by Robert Scheer
Two riparian workers survey Saratoga Creek during the rainy season in January.
By Sarah Lombardo
The city may be calling the dismissal of the Saratoga Creek pollution case against the city a victory, but conservation groups involved say the fight is far from over and have filed an appeal.
Hank Bates, who represents the Friends of Santa Clara County Creeks and the San Francisco Baykeepers, said the dismissal and appeal are what he and his clients wanted to hasten the lawsuit, which has been ongoing since the groups first filed on Jan. 25, 1995.
"We decided instead of waiting for a trial on all the issues, what we agreed to do was what we call a procedural shortcut," Bates said. "We think we'll win on appeal. ... The city keeps claiming a victory. If you want to call a delay a victory, you can do that. We don't. I'd say we're all losing right now."
Michael Lozeau of Baykeepers also said the claim of victory was too early, saying that the groups' appeal was just a way to get the case settled more quickly.
"We're just trying to be efficient," Lozeau said. "The fact of the matter is, the process continues."
The appeal is to overturn a ruling in November by San Jose federal magistrate Edward Infante declaring that the city of Saratoga was not responsible for the discharge of contaminants, such as fecal matter, from storm drains owned by the California Department of Transportation. In the appeal, the environmental groups agreed to dismiss 10 counts of their suit against the city, under the condition that if the 9th Circuit Court of Appeals reverses Infante's judgment, all 10 counts will be reinstated as originally filed.
The storm drains in question flow into the Saratoga Creek from under a Saratoga-Sunnyvale Road overpass and at Big Basin Way and Third Street in the Saratoga Village. Baykeeper and Friends contend discharges out of these drains contain unreasonably high and unsafe levels of fecal coliform bacteria, organisms that live in the digestive tracts of mammals and can indicate the presence of sewage or more harmful bacteria in the water. The city, they said, is responsible for the cleanup and prevention of those pollutants. But the city has always claimed pollution levels in the creek are no worse than in other urban creeks and that they can't be held responsible. As it stands now, the courts agree.
The appeal process could take from nine months to a year to resolve. In the meantime, Friends and Baykeeper have served notice of intent to sue to the California Department of Transportation, which does own the storm drains in question. The notice, dated Mar. 31, states that the groups intend to sue Caltrans for violating the Federal Water Pollution Control Act unless Caltrans takes action to address the problem of the contaminated discharges.
The move, said Bates, is a formality in keeping with the district judge's ruling; the groups don't want to fight Caltrans, he said.
"Under the ruling, they are responsible for the problems," Bates said. "We don't agree with that. We think it's the city's responsibility. But if that's what the court says..."
Bates said he and his clients will follow through with a suit against Caltrans, however, if the agency drags its feet in relinquishing the 2.5 mile stretch of Saratoga-Sunnyvale Road where one of the storm drains is located.
Caltrans is currently in the process of preparing the road, old Highway 85, to be handed over to Saratoga. When it does, Saratoga will own the storm drain where contaminated discharges flow into the Saratoga Creek.
Under the California Streets and Highways Code, Section 73, the California Transportation Commission can relinquish any state highway superseded by relocation, but they must give the city 90 days' notice and have the road in good repair. When Caltrans does relinquish the road, said Whetstone, Friends and Baykeeper will be there to hold the city responsible for the pollution.
"When the city owns Saratoga-Sunnyvale Road," Whetstone said, "they will have no rock to hide behind."
But Rick Jarvis, the attorney representing the city in the creek lawsuit, said he doesn't think the city has to accept the road and, ultimately, responsibility for the discharges.
"If there is pending litigation concerning that road, the city would probably not accept it," he said.
This article appeared in the Saratoga News, April 9, 1997.
©1997 Metro Publishing, Inc. All rights reserved.