Aiello v. Browning-Ferris, Inc.

No. C-93-0466 MHP (N.D. Cal. November 2, 1993)

The court holds unripe takings claims under the Fifth and Fourteenth Amendments to the U.S. Constitution against a California county landfill operator by residents and property owners living near, or owning property adjacent to, the landfill, and holds time barred civil rights claims under 42 U.S.C. §§ 1983 and 1985 against the county for locating the landfill where a high proportion of the county's minorities reside. The court first holds that plaintiffs' taking claims are unripe because plaintiffs failed to avail themselves of adequate state procedures for obtaining just compensation from the landfill operator. Despite plaintiffs' claim that no action for inverse condemnation will lie against the landfill operator under California law, it is far from clear that California courts would not recognize an inverse condemnation action against a private entity acting as a state actor. The court also finds that plaintiffs have failed to demonstrate that they have been denied just compensation from the county, although such a cause of action exists under California law.

Turning to plaintiffs' civil rights claims against the county, the court notes that the parties agreed that a one-year statute of limitations applies. The court holds that the "continuing wrong" exception to the statute of limitations does not apply, because the gravamen of plaintiffs' complaint is that it was the decision to site the landfill that was discriminatory. That decision was made in 1988, five years before plaintiffs filed their complaint. At most, any discriminatory conduct continued only until approval of the landfill plan in 1989. This is not a case, however, where there is an allegedly continuing pattern of intentional wrongdoing, or where repeated acts each constitute an illegal act. Rather, this is a case where there was one allegedly unlawful act, from which other consequences flowed. Plaintiffs' claims that they continue to be exposed to noise and harmful windborne substances may constitute continuing torts, and may be the effect of a § 1983 or § 1985 violation, but such injury does not constitute a continuing civil rights violation. Also, it is clear from plaintiffs' complaint that any allegedly discriminatory intent by defendants occurred well before construction on the landfill began in late 1989. The court rejects plaintiffs' argument for application of the "speculative damages" exception to the rule that a civil rights cause of action accrues when the plaintiff knows or has reason to know of the injury that is the basis of the action. The court holds that although the nature and extent of plaintiffs' damages might not have been known with precision one year before they filed their complaint, sufficient injury existed by that time to begin the running of the statute of limitations. By that time, not only had the siting decision been made, but construction on the landfill had already begun. Also, according to plaintiffs' original complaint, soon after construction began in 1991, the public began making a steady stream of complaints about the landfill. Finally, the court holds that because plaintiffs' federal takings claim is unripe and their federal civil rights claim is time barred, the court lacks supplemental jurisdiction over plaintiffs' state-law claims.

Counsel for Plaintiffs
William Kershaw
Kronick, Moskovitz, Tiedemann & Girard
400 Capitol Mall, 27th Fl., Sacramento CA 91814
(916) 321-4500

Counsel for Defendants
Scott Gordon
Bruen & Gordon
1990 N. California Blvd., Walnut Creek CA 94596
(510) 295-3131

[24 ELR 20771]

Patel, J.:

Memorandum and Order

This is a class action brought by and on behalf of residents and property owners of a section of the city of Pittsburg, California, located in east Contra Costa County. Plaintiffs live and own property adjacent to the Keller Canyon Landfill and have filed claims against the County of Contra Costa and the County's Board of Supervisors (collectively, "the County"), under 42 U.S.C. § 1983 and 42 U.S.C. § 1985, alleging that the County violated their constitutional rights in making a racially discriminatory decision to locate and approve the landfill in a part of the County where a high proportion of the County's minorities reside.

In addition, the plaintiffs have sued Browning-Ferris, Inc., Browning-Ferris Industries of California, and Keller Canyon, Inc. (collectively, "BFI"), the operators of the landfill, for the alleged taking of their property without just compensation in violation of their rights under the Fifth and Fourteenth Amendments to the United States Constitution and under 42 U.S.C. § 1983 and 42 U.S.C. § 1985.¹

The case is before the court on BFI's motion to dismiss plaintiffs' takings claim, and on the County's motion to dismiss plaintiffs' civil rights claims. Having carefully considered the papers submitted by the parties, the court enters the following Memorandum and Order.

Background

Plaintiffs allege that in January 1987, the Contra Costa County Board of Supervisors appointed a Landfill Siting Task Force to recommend future landfill sites for the County. Plaintiffs further allege that in June 1987, the task force ranked the present site last among 13 potential landfill sites, in part because of its proximity to residential and commercial areas. One location that ranked higher than Keller Canyon was in the Tassajara section of the county. That potential site, contend plaintiffs, would have been farther away from residential areas; however, the closest residential population to that site is primarily white.

On November 10, 1988, the Board of Supervisors voted to endorse the siting of the landfill at Keller Canyon. Construction of the landfill began in November 1991, and operations began in May of the following year. According to plaintiffs, the construction and operation of the landfill caused and continues to cause dust, unnamed toxic substances, odors, and trash to blow over into the residential area where plaintiffs live. In addition, plaintiffs complain of the noise of heavy machinery and the steady stream of trucks to and from the landfill. Plaintiffs allege that the wind-borne substances cause respiratory problems for the nearby residents and may cause other medical problems in the future. Plaintiffs also allege that the proximity to the landfill has reduced the value of their property.

Plaintiffs filed suit in federal court on February 8, 1993. Plaintiffs originally stated their civil rights claim and their takings claim against all defendants, but subsequently dismissed the County from the takings claim and dismissed BFI from the civil rights claim.

Legal Standard

A motion to dismiss for failure to state a claim will be denied unless it appears that the plaintiff can prove no set of facts which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Fidelity Financial Corp. v. Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1435 (9th Cir. 1986), cert. denied, 479 U.S. 1064 (1987). All material allegations in the complaint will be taken as true and construed in the light most favorable to the plaintiff. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 [16 ELR 20749] (9th Cir. 1986). Although the court is generally confined to consideration of the allegations in the pleadings, when the complaint is accompanied by attached documents, such documents are deemed part of the complaint and may be considered in evaluating the merits of a Rule 12(b)(6) motion. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).

On any other motion to dismiss under Rule 12(b), the court may consider matters outside the pleadings, but must accept as true all material allegations of the complaint and construe the complaint in favor of the plaintiff. See Fed. R. Civ. P. 12; Warth v. Seldin, 422 U.S. 490, 501-02, 95 S. Ct. 2197, 2206-07 (1975) (considering the issue of standing). Each ground for dismissal will be considered in turn.

Discussion

I. Takings Claim

"The Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation." Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194, 105 S. Ct. 3108, 3120 (1985). Accordingly, if a state provides an "adequate" procedure for seeking compensation for taken property, the [24 ELR 20772] property owner must seek and be denied compensation under that procedure before claiming a Fifth Amendment violation. Id. at 195, 105 S. Ct. at 3121. Otherwise, the claim is not ripe for adjudication, and a federal court must dismiss the claim for lack of subject matter jurisdiction. United Public Workers of America v. Mitchell, 330 U.S. 75, 89-91, 67 S. Ct. 556, 564-65 (1947); Austin v. City and County of Honolulu, 840 F.2d 678, 682 (9th Cir.), cert. denied, 488 U.S. 852 (1988); Jama Constr. v. City of Los Angeles, 938 F.2d 1045, 1047-48 (9th Cir. 1991), cert. denied, U.S. , 112 S. Ct. 1293 (1992).

A party that has not first brought a takings claim in state court must demonstrate that no state procedure exists or that the procedure is inadequate. Austin, 840 F.2d at 680-81. The burden is on the property owner to establish that the state remedies are inadequate. Id. at 680; Del Monte Dunes v. City of Monterey, 920 F.2d 1496, 1506-07 (9th Cir. 1990); Norco Construction, Inc. v. King County, 801 F.2d 1143, 1146 (9th Cir. 1986). It is insufficient for the property owner to demonstrate that it is uncertain, given the state of the law, whether procedures exist by which he could obtain just compensation in state court. Austin, 840 F.2d at 681. Rather it must be clear that such procedures are unavailable under any circumstances. Id.

The California Constitution provides that "[p]rivate property may be taken or damaged for public use only when just compensation . . . has first been paid to . . . the owner. . . ." Cal. Const., art. I, § 19. California Code of Civil Procedure § 1245.260 provides the statutory basis for recovering just compensation. Under that provision, a property owner may bring an inverse condemnation action against a "public entity" that has taken his property without compensation. Cal. Civ. Proc. Code § 1245.260(a).

Plaintiffs concede that they have not sought just compensation from BFI in state court. They allege in their complaint that "no action for inverse condemnation will lie against the BFI Defendants." Second Amended Complaint P 61. In support of this proposition, plaintiffs cite to cases in which property owners attempted to bring inverse condemnation suits against both the public entity that allegedly "took" their property and the private contractor who performed the work for the public entity. In such cases, the California courts have held that the private party cannot be held liable for inverse condemnation. See Sheffet v. County of Los Angeles, 3 Cal. App. 3d 720, 736 (1970) (county, and not subdivider, is liable for inverse condemnation where construction on subdivision causes water and mud to flow onto plaintiff's land); Heimann v. Los Angeles, 30 Cal. 2d 746, 756 (1947) (public agency authorizing construction of viaduct, and not private contractor that actually performs the work, is liable in an inverse condemnation suit), overruled on other grounds, County of Los Angeles v. Faus, 48 Cal. 2d 672 (1957).

In none of these cases, however, did the property owner allege that the private party was acting under color of state law, as plaintiffs allege of BFI. Second Amended Complaint P 55. It is certainly not "well-established," as plaintiffs claim, that in such a case a plaintiff could not proceed against the private party for inverse condemnation. Neither the California Constitution nor the inverse condemnation statute specifically rule out the possibility that a private actor, acting under color of state law, could be held liable in an inverse condemnation action.

Apparently the California courts have yet to address this issue squarely. At most, the courts have said that private parties are generally not appropriate parties in inverse condemnation actions. However, even the Sheffet case, on which plaintiffs rely most heavily, indicates that there are circumstances under which a private entity could be sued for inverse condemnation under California law. See Sheffet, 3 Cal. App. 3d at 735 (public entity, and not private contractor, is the appropriate defendant in an inverse condemnation action "[i]n the absence of something in the nature of a protective covenant"). Moreover, California courts are often guided in their interpretation of the takings clause of the California Constitution by federal Fifth Amendment precedent. See Gilbert v. State of California, 218 Cal. App. 3d 234, 253-54 (1990). Federal courts, of course, have recognized that private parties may be "state actors" for purposes of takings claims, see, e.g., Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 102 S. Ct. 2744 (1982); indeed that is the crux of plaintiffs' argument as to how BFI can be sued on a takings claim in federal court.

This uncertainty in California law, as to whether a property owner may bring an inverse condemnation suit against a private entity that acts as a state actor, does not obviate the need for the property owner to seek relief in state court. Austin, 840 F.2d at 681; Del Monte Dunes, 920 F.2d at 1506-07. In Austin, the property owner argued that his takings claim was ripe even though he had not first brought an inverse condemnation action in Hawaii state court. He argued that since Hawaii had never recognized a cause of action for inverse condemnation, such an action would be futile. The Ninth Circuit rejected the property owner's argument:

Although we find no case that recognizes inverse condemnation as a cause of action, neither do we find one that rejects it. [] Until the state courts establish that landowners may not obtain just compensation through an inverse condemnation action under any circumstances, Hawaii procedures are adequate within the terms of Williamson County and [the property owner's] failure to use them cannot be excused.

Austin, 840 F.2d at 681 (footnote omitted). The Austin court noted that Williamson County's ripeness hurdle has been imposed "even when state courts have expressed unwillingness to award damages in inverse condemnation actions." Id. at 680-81 (citing Littlefield v. City of Afton, 785 F.2d 596, 609 (8th Cir. 1986) (takings claim unripe even where Minnesota Supreme Court's inverse condemnation rulings indicate property owner may be barred from such a remedy); see also Culebras Enters. Corp. v. Rivera Rios, 813 F.2d 506, 512-15 (1st Cir. 1987) (takings claim unripe where it is uncertain whether Puerto Rico recognizes inverse condemnation remedy).

The Ninth Circuit has thus decisively ruled that the onus of any uncertainty in the state law falls upon the property owner seeking to avoid going to state court to obtain just compensation. Because it is far from clear that California courts would not recognize an inverse condemnation action against a private entity, acting as a state actor, the court holds that plaintiffs have not availed themselves of adequate state procedures for obtaining just compensation from BFI, and therefore their claim is not ripe for adjudication.

Moreover, plaintiffs concede that they have not previously brought an inverse condemnation action against the County, although it is clear that such a cause of action does exist under California law. Plaintiffs cannot claim that they have been denied unjust compensation before pursuing this avenue, since such a suit could result in the compensation they now seek against BFI. Thus plaintiffs' takings claim against BFI is doubly premature: not only have plaintiffs failed to exhaust their state court remedies against BFI, they have also failed to demonstrate that they have been denied just compensation from the County.²

For these reasons, plaintiffs' takings claim against BFI is dismissed as unripe.

II. Civil Rights Claim

Plaintiffs' civil rights claims are brought under 42 U.S.C. § 1983 and 42 U.S.C. § 1985. Where Congress has not established a time limitation for a federal cause of action, federal courts rely on state law to determine the length of the statute of limitations. Hoesterey v. City of Cathedral City, 945 F.2d 317, 318 (9th Cir. 1991) (citing Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938 (1985)). The parties agree that, applying relevant California law, the statute of limitations for plaintiffs' federal civil rights claims is one year. See McDougal v. County of Imperial, 942 F.2d 668, 672-74 (9th Cir. 1991). Plaintiffs filed their complaint on February 8, 1993.

Defendant County has moved to dismiss plaintiffs' action as time barred. The County maintains that plaintiffs' complaint alleges only that the decision as to where to locate the landfill was discriminatory. This decision, claims the County, took place in July 1990. Alternatively, the County argues, the decision must have been made by November 1991, when construction on the landfill began. Either date precedes February 8, 1992, the date which is one year before this action commenced.

Plaintiffs counter in two ways. First, they argue that under the "continuing wrong doctrine," a cause of action does not accrue until[24 ELR 20773] the time of the final wrongful act. Second, they argue that the statute of limitations should not begin running until after an aggrieved party has had time to assess the full extent of its losses.

A. The Continuing Wrong Exception

The "continuing wrong" exception to statutes of limitations provides that where a challenged practice is a continuing one, the plaintiff need only allege one occurrence of the practice that falls within the statute of limitations. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-81, 102 S. Ct. 1114, 1125 (1982). In Havens, the plaintiffs brought suit under the Fair Housing Act of 1968, 42 U.S.C. § 3604, alleging "racial steering" in the rental of apartment units. Id. Four of the five specific instances complained of fell outside the applicable limitations period. The Court concluded, however, that "where a plaintiff, pursuant to the Fair Housing Act, challenges not just one incident of conduct violative of the Act, but an unlawful practice [] that continues into the limitations period, the complaint is timely" as long as the last asserted occurrence of the practice falls within the limitations period. Id. at 1125 (footnote omitted). See also Rapf v. Suffolk County, 755 F.2d 282, 289 (2d Cir. 1985) (allegation that county is not performing a continuing duty to maintain jetties not barred).

A somewhat different situation arises, however, where the sole wrong complained of falls outside the limitations period, and where it is only the effects of that wrong continue into the limitations period. In such a case, there is no "continuing wrong" and the plaintiff is time barred. Delaware State College v. Ricks, 449 U.S. 250, 101 S. Ct. 498 (1980). In Ricks, the plaintiff brought suit under Title VII of the Civil Rights Act of 1964 and under 42 U.S.C. section 1981, alleging that the college where he was employed had denied him tenure on the basis of his national origin. The adverse tenure decision was initially made in February 1973 and approved in March 1974; the plaintiff was not actually terminated, however, until June 1975. The question before the Court was whether the applicable date for purposes of the statute of limitations was the date on which the decision was made, or the date on which plaintiff was actually terminated.

The Court held that "termination of employment . . . [was] a delayed, but inevitable consequence of the denial of tenure." Id. at 257-58. The only alleged discriminatory act was the denial of tenure, which fell outside the applicable limitations period. The Court held that "[t]he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful." Id. at 258 (citing Abramson v. University of Hawaii, 594 F.2d 202, 209 (9th Cir. 1979) (emphasis added by Ricks Court).

The instant case falls more squarely within the Ricks line of cases than the Havens line of cases. The gravamen of plaintiffs' complaint of discriminatory conduct continues up until approval of the landfill plan in 1989. This is not a case, however, where there is an allegedly continuing pattern of intentional wrongdoing, or where repeated acts each constitute an illegal act. Rather, this is a case where there was one allegedly unlawful act, from which other consequences flowed.

It is critical to remember that it is plaintiffs' civil rights causes of action that they claim fall under the "continuing wrong" exception. The Supreme Court has made clear that the wrong addressed by sections 1983 and 1985 is intentional discrimination, and that disparate impact alone is insufficient to state a claim under those provisions. United Brotherhood of Carpenters v. Scott, 463 U.S. 825, 829, 103 S. Ct. 3352, 3356 (1983) (42 U.S.C. § 1985); Village of Arlington Heights v. Metropolitan Hous. Dev., 429 U.S. 252 (1977) (42 U.S.C. § 1983). Plaintiffs have alleged such intentional discrimination, at least in regard to the siting decision. The "wrongs," if any, that "continue," however are plaintiffs' tort claims, not their civil rights claims. Plaintiffs' claims that they continue to be exposed to noise and harmful wind-borne substances may constitute continuing torts, and may be the effect of a section 1983 or a section 1985 violation, but such injury does not constitute a continuing civil rights violation.

It is clear from plaintiffs' complaint that any allegedly discriminatory intent by defendants occurred well before construction on the landfill began in late 1989. In their class action allegations, plaintiffs state that members of the class have all "suffered injuries, losses or deprivation of civil rights as a result of the County Defendants' discriminatory siting decision." Second Amended Complaint P 12(a) (emphasis added). In their claim for relief on their civil rights claim, plaintiffs allege that "[t]he County Defendants' conduct in the planning, siting, permitting and approval of the [landfill]" deprived plaintiffs of their civil rights. Id. P 49.³

Moreover, the only evidence of intent that plaintiffs cite is evidence of discriminatory intent in the siting decision. See id. P 51. Plaintiffs list the following evidence to demonstrate that their civil rights have been violated: 1) a comment by a county supervisor that discrimination may have played a part in the siting decision; 2) the disparate impact on minority residents of the siting and operation of the landfill; 3) the historical background of the siting decision; and 4) the fact that the County knew that locating the landfill where they did would result in substances being carried by wind over to the residential areas. See id. Only the second piece of evidence even refers to the operation of the landfill, to allege that the operation has a disparate impact on plaintiffs. Not only is such an allegation wholly dependent on the siting decision,⁴ it is also insufficient to state a claim under section 1983 or section 1985, which require more than disparate impact alone. See Arlington Heights, 429 U.S. at 264-65.

Plaintiffs now contend in their opposition papers that the County continues to violate their civil rights by permitting the landfill to continue to operate. They have not alleged in their complaint, however, that once the siting decision had been made, there was anything further in the County's conduct [sic] was intentionally discriminatory. As the Supreme Court stated in Ricks, it is necessary to allege that some later discrimination occurred in order to delay the commencement of the limitations period. See Ricks, 449 U.S. at 257-58, 101 S. Ct. at 504 ("[i]n order for the limitations period to commence with the date of discharge, Ricks would have had to allege and prove that the manner in which his employment was terminated differed discriminatorily from the manner in which the College terminated other professors who also had been denied tenure."); United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S. Ct. 1885, 1889 (1977) (no continuing violation based on "mere continuity" without any "present violation") (emphasis in original).⁵

Plaintiffs' reliance on takings cases is unhelpful, since in such cases it is often the effects or duration of the initial act by the government that determines whether a taking has occurred at all. For instance, in Lockary v. Kayfetz, 587 F. Supp. 631 (N.D. Cal. 1984), cited by plaintiffs, the property owners alleged that an "emergency" water moratorium lasting 12 years was a taking. In holding that the claim was not time barred, the court noted that "it is the unlawful duration of the moratorium which constitutes the continuing wrong." Id. at 636. Thus it was the very continuation of the conduct that turned the conduct into an illegal act. See also United States v. Dickinson, 331 U.S. 745, 748-49, 67 S. Ct. 1382, 1385 (1947) (takings claims do not necessarily accrue at the time of the initial action by the government).

The court finds that plaintiffs have alleged only that the siting decision and approval of the landfill was discriminatory. Those events fell outside of the limitations period. The operation of the landfill is not a continuing wrong, but rather is an effect of the allegedly discriminatory decision.

B. Speculative Damages

Plaintiffs' second argument is that a cause of action does not accrue on the date of injury if the damages are speculative. See [24 ELR 20774] Airweld, Inc. v. Airco, Inc., 742 F.2d 1184, 1190 (9th Cir. 1984), cert. denied, 469 U.S. 1213 (1985). This rule is an exception to the well-established rule that a civil rights cause of action accrues when the plaintiff "knows or has reason to know of the injury which is the basis of the action." Norco Construction, Inc. v. King County, 801 F.2d 1143, 1145 (9th Cir. 1986) (citation omitted).

Although plaintiffs attempt to characterize this exception as providing that a cause of action does not accrue until the plaintiffs are able to assess the full extent of their losses, this overstates the exception. As the cases to which plaintiffs cite indicate, this exception derives from antitrust cases in which it would be too speculative, at the time of the wrongful act, to determine the nature and extent of the injury. See Airweld, 742 F.2d at 1189-91 (citing In re Multidistrict Vehicle Air Pollution, 591 F.2d 68, 71 (9th Cir.), cert. denied, 444 U.S. 900 (1979)). In such a case, courts have held that it would be unfair to hold that a party is barred from bringing an action at the time that it is injured because damages would be too speculative, and then is barred from bringing an action when damages are accrued based on a statute of limitations. See Multidistrict Vehicle, 591 F.2d at 73.

In general, the speculative nature of damages that delays the accrual of a cause of action in antitrust cases is uncertainty as to whether there will be damages at all, rather than uncertainty as to the extent of such damages. See Bigelow v. RKO Pictures, Inc., 327 U.S. 251, 264 (1946); Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 565-66 (1931). Even in antitrust cases, it is possible to bring suit based on uncertain damages, as long as a jury will not be forced to resort to "speculation or guesswork" to determine the extent of damages. Bigelow, 327 U.S. at 263, 66 S. Ct. at 579-80.

The appropriate question before the court is therefore whether in February 1992, plaintiffs knew or should have known that they would be damaged by the siting of the landfill, and what the nature of that damage would be. By that point, not only had the siting decision been made, but construction on the landfill had already begun. Moreover, according to plaintiffs' original complaint, "soon after construction began" in 1991, the public began making a steady stream of complaints about the landfill. Although the nature and extent of plaintiffs' damages might not have been known with precision by February 1992, there was certainly sufficient injury by that time to begin the running of the statute of limitations. See Compton v. Ide, 732 F.2d 1429, 1433 (9th Cir. 1984) (plaintiff need not have knowledge of all the details of the wrongful conduct at issue for his or her cause of action to accrue).

III. Supplemental Jurisdiction

Because this court has determined that plaintiffs' federal takings claim is unripe and that plaintiffs' federal civil rights claim is time barred, there is no federal claim left upon which to support supplemental jurisdiction over plaintiffs' state-law claims. Accordingly, plaintiffs' state-law claims are dismissed for lack of jurisdiction.

Conclusion

For the foregoing reasons, IT IS HEREBY ORDERED that plaintiffs' second claim for relief, alleging an unconstitutional taking of property without just compensation in violation of the Fifth and Fourteenth Amendments to the Constitution and 42 U.S.C. §§ 1983 and 1985, is DISMISSED for lack of ripeness;

IT IS FURTHER ORDERED that plaintiffs' first claim for relief, alleging violations of civil rights under 42 U.S.C. §§ 1983 and 1985, is DISMISSED WITH PREJUDICE, as barred by the statute of limitations.

IT IS FURTHER ORDERED that plaintiffs' remaining claims, alleging various state-law violations, are DISMISSED WITHOUT PREJUDICE since this court declines jurisdiction under 28 U.S.C. § 1367(c)(3).

IT IS SO ORDERED.

1. Plaintiffs have also alleged a number of state law torts against BFI, and a state-law cause of action for inverse condemnation against the County. Plaintiffs ask this court to exercise supplemental jurisdiction over these claims.

2. As explained below, the court declines to exercise supplemental jurisdiction over plaintiffs' state-law claim for inverse condemnation against the County, since the court has determined that both of plaintiffs' federal claims must be dismissed.

3. Contrary to plaintiffs' contentions, their Second Amended Complaint does not allege that the County continues affirmatively to violate plaintiffs' civil rights by inadequate enforcement of regulations and permit conditions governing the landfill's operations. Plaintiffs' claims for negligent operation of the landfill are against BFI only.

4. See Second Amended Complaint P 29 ("As a result of the discriminatory decision to site the Garbage Dump at Keller Canyon, Plaintiffs have been forced to bear a disproportionate share of the public burden of waste disposal.") (emphasis added).

5. What plaintiffs have essentially alleged in their complaint is that defendants' inaction constitutes a continuing wrong. Such an argument would gut the Supreme Court's rulings in Ricks and United Air Lines, and is untenable.

Plaintiffs alleged for the first time at oral argument that defendants have refused to use technology at their disposal (or at least at BFI's disposal) to ameliorate the adverse effects of the landfill. Plaintiffs suggest that this refusal is discriminatory, although they do not cite any evidence to support this suggestion. At any rate, these allegations do not appear in plaintiffs' complaint. Plaintiffs have already amended their complaint twice. Because the allegation of the additional facts raised at oral argument would not be "consistent with the challenged pleading," but rather would add an entirely new set of facts and an entirely new legal theory, it is proper to dismiss without leave to amend. See Albrecht v. Lund, 845 F.2d 193, 195 (9th Cir.), amended, 856 F.2d 111 (9th Cir. 1988).