ELR Citation: ELR 21333
No(s). 90-3122-AAH (C.D. Cal. Mar 31, 1992)

The court holds that the United States and California must defend counterclaims seeking contribution and indemnification for natural resource damages and response costs pursuant to §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for polychlorinated biphenyl and DDT contamination of the ocean and harbors in and around Los Angeles. Ruling on motions to dismiss counterclaims against the federal government, the court first finds that the United States waived its sovereign immunity as to counterclaims seeking recoupment by filing its complaint in federal court, and because the Federal Tort Claims Act waives the United States' immunity as to indemnity claims. The court next holds that it has subject matter jurisdiction over counterclaims against the United States for negligence per se and public nuisance, but not for dangerous conditions of public property. The doctrine of negligence per se merely creates a rebuttable presumption of negligence upon a showing that a person violated a statute, and the counterclaim alleges a special injury as required by California public nuisance law. Ruling on motions to dismiss counterclaims against California, the court holds that California has waived both its Eleventh Amendment and sovereign immunities as to the tort counterclaims, because a state waives these immunities by filing a complaint in federal court. The court finds that the counterclaims are cognizable under the California Tort Claims Act, because the counterclaimants have suffered an identifiable injury under this Act by being singled out for potential CERCLA liability in monetary damages, and the necessary elements of each state tort claim have been properly alleged. However, the court has jurisdiction only over portions of the counterclaims that mirror the complaint, because the state has waived its immunity solely with respect to defensive-type claims for recoupment or setoff. Therefore, the court dismisses the counterclaims for affirmative relief beyond monetary damages. The court also holds that CERCLA is not an exclusive remedy, and that counterclaims based on both CERCLA and tort law may be brought. Regarding the CERCLA counterclaims against California, the court finds that they sufficiently state a cause of action. The court rejects the state South Coast Air Quality Management District's (SCAQMD's) request to dismiss the tort claims against it. SCAQMD is not immune from suit, because as an agency of the state its Eleventh Amendment immunity was waived when the state filed its complaint in federal court. Finally, the court rejects a motion by the state and state agency for the court to abstain from exercising jurisdiction over the state tort counterclaims, because the U.S. Supreme Court doctrine of abstention and CERCLA §113(f), which expressly contemplates that a person may bring an action based on state tort law, dictate that such actions be saved.

[Related pleadings in this action are digested at ELR Pend. Lit. 66108. A subsequent decision is published at 22 ELR 2327.]

Counsel for Plaintiffs
Adam M. Kushner
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Karl S. Lytz
Latham & Watkins
701 B St., Ste. 2100, San Diego CA 92101
(619) 236-1234