Kern wins again as U.S. Supreme Court refuses to hear sludge case
| Tuesday, Jun 01 2010 04:29 PM
Last Updated Tuesday, Jun 01 2010 04:29 PM
Kern County won another round Tuesday in its ongoing legal battle with the city of Los Angeles and Orange County over Measure E, the voter-approved ordinance that bans the spreading of treated human and industrial waste on farmland in unincorporated Kern.
The U.S. Supreme Court refused to hear claims from the city of Los Angeles that the Kern County sludge ban violated the interstate commerce clause of the U.S. Constitution.
"This is a significant victory for Kern County but the case is far from over," said Kern County Counsel Theresa Goldner.
Approved in 2006, Measure E made it illegal to spread treated sewage waste -- known as sludge or biosolids -- on farmland as fertilizer.
Los Angeles, Orange County and the businesses that haul and spread their waste here filed a lawsuit with a number of claims against Measure E.
The legal battle has raged on since then.
Tuesday's Supreme Court decision not to take L.A.'s case leaves in place a previous victory for Kern County in the form of rulings by the 9th Circuit Court of Appeals that declared Measure E did not illegally hamper interstate commerce protections.
Ted Jordan, assistant city attorney for Los Angeles, said Los Angeles is not reading anything into the Supreme Court's decision other than the fact that the nation's highest court can only take so many cases.
The Supreme Court action removes the last federal claim against Measure E -- leaving only two state-level legal challenges to the sludge ban's validity: a claim that Measure E violated state recycling rules in the Integrated Waste Management Act and that Kern County overstepped its police powers by creating a law that polices another government entity.
The big question now is how the courts will resolve those final two claims against Measure E.
Goldner said the case now goes back to the 9th Circuit -- which is expected to send the case back to the original trial judge in the case, U.S. District Court Judge Gary Feess.
Feess will have a couple options, she said.
He can rule that the remaining issues are state issues and, since he is a federal judge, the case doesn't belong in his courtroom.
If Feess makes that ruling, he would need to dismiss the federal case against Measure E entirely.
Then Los Angeles could refile the other claims in state court, Goldner said.
Feess could, alternatively, decide to keep the case and rule on the merits of the claims.
Jordan said Los Angeles believes Feess should keep the case in his courtroom.
"We'll go back to Judge Feess. We're asking that he retain jurisdiction," Jordan said. "We don't think it would make any sense to go to another judge and rebrief and reargue the same issues."
In the original decision in the case, Feess ruled in favor of Los Angeles on both the interstate commerce clause and integrated waste management issues.
While this battle continues in the courts, Southern California sludge continues to be shipped to Kern County and spread on farmland.
Los Angeles continues to send 25 to 26 truckloads of the black material to its Green Acres farm daily, according to statements made in March by Los Angeles Deputy City Attorney Keith Pritske.
State Sen. Dean Florez, D-Shafter, who wrote Measure E, applauded the Supreme Court's decision and urged the county to continue fighting for the initiative.
"This is a great victory for the people of Kern County, who took action and got out the vote to oppose being dumped on by Los Angeles, and who for too long have been left wondering whether urban clout trumped their right to be protected from these dangerous contaminants in their soil," Florez said in a news release.
