Saratoga News

City seeks dismissal of Saratoga Creek case

By Sarah Lombardo

Citing a recent Supreme Court ruling, the city of Saratoga filed a motion to dismiss the case between the city and two environmental groups over Saratoga Creek.

The motion, originally filed July 27, then withdrawn and refiled in federal district court on Aug. 28, cites the case of Steel Company vs. Citizens for a Better Environment, decided in March. The city claims the case against it over Saratoga Creek should be declared moot because the Friends of the Santa Clara County Creeks and BayKeeper can no longer seek injunctive relief against the city for Clean Water Act violations of a permit issued in 1990. That permit, the city argues, is no longer in effect--pointing out that a new NPDES permit, which superseded the 1990 permit, was issued to the city in 1995.

But Claudia Polsky, the Earthjustice Legal Defense Fund attorney representing the two environmental groups, contends that the city's motion doesn't hold water because the Clean Water Act violations were ongoing at the time her clients filed their lawsuit in January 1995. The city's current NPDES permit was issued a few weeks later. Polsky said it is unreasonable for the city to ask for a dismissal.

"Essentially, the city is asking for a very radical expansion of a Supreme Court ruling," she said. "It's one that we don't think is valid under the Clean Water Act, and one that the Supreme Court would never uphold."

Polsky filed an opposition memo in the case Sept. 1, and the city has until Sept. 21 to respond. A hearing to consider the city's motion to dismiss is scheduled for Oct. 5.

The moves are the latest in a case spanning almost four years. Friends and BayKeeper first filed their suit against the city on Jan. 25, 1995. The groups claim that discharges into Saratoga Creek contain unacceptably high levels of fecal coliform bacteria, a bacteria found in the digestive tracts of mammals that can indicate the presence of more harmful bacteria or sewage pollution. In their suit, the groups contend that the city should be held responsible for cleaning up Saratoga Creek and for finding and eliminating the source of the pollution.

The city, however, maintains that the creek is only as polluted as other urban creeks and that the city can't be held responsible for discharges into the creek.

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