Otay Land Co. v. United Enterprises Ltd.

dissenting:

The majority holds that Otay’s case isn’t ripe because it failed to show that its clean-up actions are consistent with the National Contingency Plan. In the majori-t/s view, this failure makes Otay’s claims “speculative” and “premature.” But we held in Cadillac Fairview/California Inc. v. Dow Chemical Co. that the question of “whether a response action is necessary and consistent with the criteria set forth in the contingency plan is a factual one to be determined at the damages stage of a section 107(a) action....” 840 F.2d 691 , 695 (9th Cir.1988). Defendants must therefore wait until “trial to express their concern that the costs incurred by” the plaintiffs “were unnecessary or inconsistent with the national contingency plan.” Id.

None of the defendants moved for summary judgment on ripeness, nor does the district court’s order rest on it. See Otay Land Co. v. United Enterprises, Ltd., 440 F.Supp.2d 1152, 1174 (S.D.Cal.2006) (“[T]he CERCLA action may not yet be ripe for determination, and therefore, subject to dismissal.”) (emphasis added). Consequently, Otay never had the chance to produce evidence on the issue. It strikes me as unfair and inappropriate to…

MEMORANDUM *

Plaintiffs/Appellants Otay Land Co. and Flat Rock Land Co. (collectively, Otay), current owners of the subject property, challenge the district court’s grant of summary judgment in favor of Defendants/Ap-pellees, former owners/operators of the subject property. Otay alleged that the former owners/operators of a shooting range on the subject property were responsible under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA) for costs of removing lead and other pollutants deposited on the land. Otay also appeals the award of costs to Defendants/Appellees.

Defendants/Appellees United Enterprises, Ltd., United Enterprises, Inc., John T. Knox, Otay Ranch L.P., Baldwin Builders, Sky Communities, Inc., Sky Vista, Inc., Olin Corporation, Ray Enniss, Phil Scott, and Patrick Patek cross-appeal the district court’s denial of attorneys’ fees. Because no public agency has indicated the need for remediation of the subject property and Otay has not demonstrated a reliable basis for its claimed remedial costs, this case is not ripe for judicial review.

“Private parties have the burden of proving…