notice of motion and motion for under … · notice of motion and motion to intervene as defendants...

NOTICE OF MOTION AND MOTION TO INTERVENE AS DEFENDANTS UNDER FEDERAL RULE OF CIVIL PROCEDURE 24; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF -- Case No. CV 13-2827 KAW

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Deborah A. Sivas (CA Bar No. 135446) Alicia E. Thesing (CA Bar No. 211751) Matthew J. Sanders (CA Bar No. 222757) Anuja D. Thatte (CA Student Bar No. 31750) ENVIRONMENTAL LAW CLINIC Mills Legal Clinic at Stanford Law School 559 Nathan Abbott Way Stanford, California 94305-8610 Telephone: (650) 723-0325 Facsimile: (650) 723-4426 [email protected] [email protected] [email protected] Attorneys for Movant-Intervenors MAXINE CURTIS. MICHAEL HEADLEY, EARL MCGREW, MIMI AND BOB STEPHENS, NORTHCOAST ENVIRONMENTAL CENTER, and SMITH RIVER ALLIANCE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

PACIFIC SHORES PROPERTY OWNERS ASSOCIATION; and WILLIAM A. RITTER, Petitioners and Plaintiffs, v. FEDERAL AVIATION ADMINISTRATION; BORDER COAST REGIONAL AIRPORT AUTHORITY; and DOES 1 – 100, Respondents and Defendants.

Case No. CV 13-2827 KAW NOTICE OF MOTION AND MOTION FOR LEAVE TO INTERVENE AS DEFENDANTS UNDER FEDERAL RULE OF CIVIL PROCEDURE 24; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: November 20, 2013 Time: 9:00 a.m. Courtroom: 3, Hon. Phyllis J. Hamilton

MAXINE CURTIS; MICHAEL HEADLEY; EARL MCGREW; MIMI AND BOB STEPHENS; NORTHCOAST ENVIRON- MENTAL CENTER; and SMITH RIVER ALLIANCE, Movant-Intervenors.

Case4:13-cv-02827-PJH Document22 Filed10/16/13 Page1 of 25

NOTICE OF MOTION AND MOTION TO INTERVENE AS DEFENDANTS UNDER FEDERAL RULE OF CIVIL PROCEDURE 24; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF -- Case No. CV 13-2827 KAW - 1 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

NOTICE OF MOTION

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

NOTICE IS HEREBY GIVEN that Maxine Curtis, Michael Headley, Earl McGrew, Mimi and

Bob Stephens, Northcoast Environmental Center, and Smith River Alliance (collectively “Applicants”)

by and through their counsel of record, do hereby move to intervene as defendants in the above-

captioned case. Pursuant to the applicable local rules, counsel for Applicants has conferred with

counsel for the parties. Defendant Border Coast Regional Airport Authority does not oppose

Applicants’ intervention; Plaintiffs oppose Applicants’ intervention; and Defendant Federal Aviation

Administration did not indicate its position by the time this motion was filed. See Declaration of

Deborah A. Sivas (“Sivas Decl.”) ¶¶ 2(a)-2(c). This motion is based on this Notice of Motion and

Motion, the supporting Memorandum of Points and Authorities filed concurrently herewith, the

Declarations of Applicants and of their counsel of record, and all such other supporting materials as

have been or may be filed in this action. This motion will be heard in Courtroom 3 of the United States

District Court for the Northern District of California, Oakland Division, located at 1301 Clay Street,

Oakland, California, on November 20, 2013 at 9:00 a.m., or as soon thereafter as the Court may hear it.

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

This case is an effort in obstruction. The Border Coast Regional Airport Authority (“Airport

Authority”) wants to purchase private lots in an undeveloped and undevelopable coastal lagoon system

and return them to a natural condition. Doing so will satisfy the mitigation requirements for a

federally-mandated runway safety improvement project at the Del Norte County Regional Airport.

Plaintiffs Pacific Shores Property Owners Association and William Ritter (“Plaintiffs”) have filed this

suit against the Airport Authority and the Federal Aviation Administration in an effort to stop the

purchase of private parcels from willing sellers, including Applicant-Intervenors, and undermine the

airport mitigation plan. That plan has already been conditionally approved by the California Coastal

Commission and must be fully implemented by 2015 to satisfy federal funding requirements.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Plaintiffs purport to represent the interests of all of the people who own property in the Pacific

Shores Subdivision (“Subdivision”) at issue here, but they do not. Applicant-Intervenors Maxine

Curtis, Michael Headley, Earl McGrew, Mimi and Bob Stephens, Northcoast Environmental Center,

and Smith River Alliance (collectively “Applicants”) all own parcels within the Subdivision and all

very much want to sell (or retain the option to transfer) their properties to the Airport Authority. This

lawsuit would frustrate, if not completely extinguish, their ability to realize any economic benefit from

their land. Thus, to protect their unique interests in this litigation, Applicants move to timely intervene

as a matter of right as defendants under Federal Rule of Civil Procedure 24(a)(2). In the alternative,

Applicants move for permissive intervention under Federal Rule of Civil Procedure 24(b)(1)(B).

II. FACTUAL BACKGROUND

The Pacific Shores Subdivision is located on the coast of Del Norte County, and on the natural

floodplain for Northern California’s Smith River. The Smith River is the only remaining free-flowing

river system in the state. Declaration of Patricia McCleary (“McCleary Decl.”) ¶ 4. The Subdivision

lies adjacent to Lakes Earl and Tolowa, which together drain a 32-square-mile watershed and

constitute the largest estuarine coastal lagoon in the contiguous United States. Id. ¶ 6. This lagoon is

highly dynamic; it floods during the rainy season, rising more than 10 feet in the winter and causing its

surface area to more than double. Id. Absent any human intervention to drain the lagoon, therefore,

some parcels within the subdivision are naturally inundated as storm water runoff drains seaward. Id.

¶¶ 6-7.

During the dry season, the Subdivision was originally used as pastureland for cattle ranching.

In 1963, a land developer purchased the 1,486-acre area and subdivided it into 1,524 half-acre parcels.

Complaint ¶ 4. Potential purchasers were told that because of the Subdivision’s floodplain location,

the lots lacked essential utility services and could be subject to zoning restrictions on development.

Despite these disclosures, the developer was able to sell all of the subdivided parcels within two years,

primarily to individuals in Southern California hoping to build vacation or retirement homes. Id.

Due to the Subdivision’s unique ecology and terrain, development has never proven feasible.

Id.; see also McCleary Decl. ¶ 7; Declaration of Mimi Stephens (“Stephens Decl.”) ¶ 3; Declaration of



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Michael Headley (“Headley Decl.”) ¶ 5; Declaration of Maxine Curtis (“Curtis Decl.”) ¶ 4;

Declaration of Earl McGrew (“McGrew Decl.”) ¶¶ 4-5; Declaration of Dan Ehresman (“Ehresman

Decl.”) ¶ 15. Indeed, fifty years since the Subdivision’s creation, no potable water system, sewage

system, or other infrastructure has ever been installed. The only exception is a crude road system

paved 50 years ago by Del Norte County. The county does not maintain the road system, apart from a

main road that accesses a recreational boat launch. McCleary Decl. ¶ 7.

Despite the lack of any water or sewer infrastructure in the area, subdivision lot owners were

assessed annual Water District fees beginning in 1990. These fees were not used to develop water or

sewage services, and they may have been used for other, improper purposes. Curtis Decl. ¶¶ 3-12, 14-

15. The Water District was finally dissolved in 2008, in part due to the efforts of disgruntled

landowners like Ms. Curtis; that dissolution was upheld by the trial and appellate courts. Id. ¶¶ 22-23;

Ehresman Decl. ¶¶ 6-13. Meanwhile, many of the lots have fallen into deplorable condition; illegal

trespass and dumping are frequent, and lot owners fear for their safety. Ehresman Decl. ¶ 5.

Applicants’ hopes for either developing or selling their lots have continued to diminish over

time. In the past, the State of California spearheaded a lot-purchase program, buying slightly more

than half of the lots within the Subdivision before the program was terminated in 2008 after the Del

Norte County Board of Supervisors adopted a resolution discouraging further state or federal

acquisition of county land. Curtis Decl. ¶ 25. These events have left lot-owners like Applicants “in

limbo” about how to sell their lots. McGrew Decl. ¶ 4. Conservation groups, meanwhile, have not

been able to raise enough money to buy lots from willing sellers. See, e.g., Headley Decl. ¶¶ 4-5.

Over the years, Applicants have had to pay property taxes and water district fees despite being unable

to realize any economic or other benefit from their property. McGrew Decl. ¶ 4; Ehresman Decl. ¶¶ 2,

4; Curtis Decl. ¶ 4.

Recently the Federal Aviation Administration required, or at least encouraged, the Airport

Authority to implement a runway safety improvement project at the Del Norte County Regional

Airport. To make that project a reality, the Airport Authority must mitigate impacts that the project

will have on nearby wetlands by purchasing suitable lands elsewhere and converting them into



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

replacement wetlands. Accordingly, the Airport Authority has proposed to purchase lots in the

Subdivision from willing landowners. Curtis Decl. ¶ 24; see also Complaint ¶¶ 29-32. This proposal

finally provides the landowners an opportunity – and perhaps the only foreseeable opportunity – to sell

their undevelopable parcels or otherwise achieve their conservation-related objectives. See McGrew

Decl. ¶ 6; Curtis Decl. ¶¶ 25-27; Stephens Decl. ¶ 3; McCleary Decl. ¶ 10; Ehresman Decl. ¶¶ 15-16;

Headley Decl. ¶ 5.

Applicant Michael Headley is a prime example of landowners who wish to sell. He was

originally “concerned about the government taking over all the Subdivision parcels and locking the

citizens out of yet another ‘protected’ area.” However, he has “now owned [his] lot for some time”

and has “seen several failed attempts” to allow Subdivision lot owners to sell or develop their

property. He also realizes that “the Subdivision has never been suitable for any type of housing.”

Accordingly, “it occurs to me,” he testifies, “that it may be time to turn my lot over to someone with

enough resources to actually do something productive with the area.” Headley Decl. ¶ 5. Like all of

the Applicants, Mr. Headley “do[es] not believe that the [Pacific Shores Property Owners Association]

has any authority or right to dictate my or any other landowner’s ability to sell.” Id. ¶ 6. All of the

Applicants are like Mr. Headley: They believe that there is not, and has never been, any realistic

chance to develop their property, that the Airport Authority’s plan is a viable option for selling (or

pursuing the transfer of) their land, and that the Airport Authority’s offer constitutes just

compensation.

III. ARGUMENT

A. Applicants Are Entitled to Intervene as of Right.

An applicant is entitled to intervene as of right where: (1) the application for intervention is

timely; (2) the applicant claims a “significantly protectable” interest relating to the property at issue in

the action; (3) the action may impair or impede the applicant’s interest; and (4) the existing parties

may not adequately represent the applicant’s interest. Fed. R. Civ. P. 24(a)(2); Wilderness Society v.

United States Forest Service, 630 F.3d 1173, 1177 (9th Cir. 2011). The Ninth Circuit construes Rule

24(a)(2) liberally in favor of potential intervenors because “[a] liberal policy in favor of intervention



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

serves both efficient resolution of issues and broadened access to the courts.” United States v. City of

Los Angeles, 288 F.3d 391, 397-98 (9th Cir. 2002). Thus, courts should be “guided primarily by

practical and equitable considerations” when evaluating motions to intervene as of right, id. at 398,

and accept as true all non-conclusory allegations made in support of an intervention motion, Southwest

Center for Biological Diversity v. Berg, 268 F.3d 810, 819 (9th Cir. 2001).

1. Applicants’ Motion to Intervene is Timely.

In evaluating timeliness, the Ninth Circuit considers “the stage of the proceeding, prejudice to

other parties, and the reason for and length of the delay.” Idaho Farm Bureau Federation v. Babbitt,

58 F.3d 1392, 1397 (9th Cir. 1995). Applicants’ motion is timely because it has been filed at the very

outset of proceedings. See id. (holding that intervention motion was timely because it “was filed at a

very early stage, before any hearings or rulings on substantive matters”). Only one other preliminary

motion has been filed in this case so far. Specifically, Plaintiffs filed their initial complaint on June

19, 2013, the existing parties submitted a Joint Case Management Statement on September 12, 2013,

and Defendant Federal Aviation Administration filed a Motion to Dismiss on October 10, 2013. No

case management conference has yet been held, nor have any pre-trial motions or hearings been

scheduled or adjudicated. As such, Applicants’ intervention will not delay proceedings or prejudice

other parties.

2. Applicants Have a Significantly Protectable Real Property Interest in the Subject of the Action.

An applicant for intervention must “claim an interest relating to the property or transaction

which is the subject of the action.” Fed. R. Civ. P. 24(a)(2). “It is generally enough that the interest is

protectable under some law, and that there is a relationship between the legally protected interest and

the claims at issue.” Wilderness Society, 630 F.3d at 1177. Each of Applicants satisfies this prong of

the intervention test.

This lawsuit directly implicates Applicants’ significant real property interests. As described

above, Applicants are Subdivision landowners who want to sell, or at least retain the option to sell,

their land to the Airport Authority as part of the Authority’s mitigation plan for the runway safety



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

project. They also are landowners who have few (if any) alternatives for divesting themselves of their

property. This lawsuit is Plaintiffs’ latest effort to forestall that mitigation plan and prevent the sale of

any more Subdivision lots. Real property interests such as Applicants’ are “squarely in the class of

interests traditionally protected by law.” Sierra Club v. U.S. EPA, 995 F.2d 1478, 1483 (9th Cir.

1993); see also Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 122, 129 (1967)

(“Interests in property are the most elementary type of right that Rule 24(a) is designed to protect.”);

Southern Pacific Co. v. City of Portland, 221 F.R.D. 637, 640 (D. Or. 2004) (permitting residents’

associations to intervene in a lawsuit challenging the enforcement of an injunction against a railroad

company because the residents held “significantly protectable interest[s] in real property” that the

injunction would affect). Applicants are precisely the type of party Rule 24(a)(2) is designed to

protect.

3. This Action May Impair or Impede Applicants’ Interests.

“If an [applicant] would be substantially affected in a practical sense by the determination

made in an action, he should, as a general rule, be entitled to intervene.” Fed R. Civ. P. 24 Advisory

Committee’s Note to 1966 Amendment. There is no question that a ruling in Plaintiffs’ favor in this

case would substantially impede Applicants’ ability to consummate the sale of their undevelopable

parcels.

If Plaintiffs succeed in blocking the Airport Authority’s ability to purchase lots within the

Subdivision, Applicants’ interest in selling their land will be impaired or extinguished. Applicants’

lots have proven undevelopable due to the natural circumstances of the surrounding coastal

environment, including wetlands, sand dunes, a high groundwater table near the surface of sandy soil,

flooding from the Smith River, the dynamic nature of the coastal lagoon, and risks of tsunamis.

Indeed, in the half-century since these lots were first subdivided and sold, there has been no lawful

residential or commercial development on any lot. The only apparent way for Applicants to realize

any reasonable value from their property is by selling or conveying it for conservation purposes. That

has proven extraordinarily difficult, not least because of the efforts by Plaintiffs and other parties to



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

stymie such transfers. The Airport Authority’s mitigation plan is the only real chance for Applicants

to finally sell their lots.

Plaintiffs’ claims in this case could, if successful, serve to prevent, or at least delay, the Airport

Authority’s plan to purchase Subdivision properties as mitigation for the safety improvement project.

For example, Plaintiffs’ successful claims of inverse condemnation and/or violations of due process

could preclude or discourage the Airport Authority from acquiring Subdivision properties, particularly

since Plaintiffs indicate that they will seek to, among other things, “enjoin any action of the Authority

to further acquire private property within the subdivision.” See Complaint ¶¶ 64-76. Applicants

should be given the opportunity to defend against these claims.

4. Existing Parties Cannot Adequately Represent Applicants’ Interests.

An applicant who meets the first three intervention criteria must be permitted to intervene as of

right unless existing parties to the litigation adequately represent his or her interest. Fed. R. Civ. P.

24(a)(2). The applicant need only show that representation of its interests by existing parties “may be”

inadequate. Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003). In evaluating adequacy of

representation, courts consider: (1) whether the interest of a present party is such that it will

undoubtedly make all of a proposed intervenor’s arguments; (2) whether the present party is capable

and willing to make such arguments; and (3) whether a proposed intervenor would offer any necessary

elements to the proceeding that other parties would neglect. Id. None of the existing parties to this

suit can adequately represent Applicants’ interests.

First, Plaintiffs plainly do not represent Applicants’ interests. Although invoking the moniker

of a “property owner’s association,” Plaintiffs do not represent the dozens of property owners within

the Subdivision who have agreed to sell their parcels to the Airport Authority. Sivas Decl. ¶ 3. In

fact, Applicants’ interest in selling their parcels for project mitigation is diametrically opposed to

Plaintiffs’ interest in enjoining the sale of all Subdivision parcels by willing owners. See Complaint at

13 (seeking injunctive relief).

Second, neither of the named agency Defendants adequately represents Applicants’ property

interests. A government agency’s representation of the public interest cannot be assumed to be



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

identical to the private interest of a particular member of the public merely because both entities

occupy the same posture in the litigation. The Ninth Circuit recognizes that agency interests and

private interests can diverge, even when the agency and the applicant for intervention share the same

ultimate objective. See, e.g., Southwest Center for Biological Diversity, 268 F.3d at 824 (explaining

that, in a suit challenging a city’s environmental practices, construction industry intervenors “would

likely offer important elements to the proceedings that the [city] would likely neglect”); see also Utah

Association of Counties v. Clinton, 255 F.3d 1246, 1248 (10th Cir. 2001) (explaining that, in litigating

on behalf of the general public, agencies are “obligated to consider a broader spectrum of views, many

of which may conflict with the particular interest of the would-be intervenor”).

Here, the Airport Authority and Applicants do not have the same stakes in this litigation. The

Airport Authority wishes to secure mitigation for its federally-mandated runway safety project. If the

Authority cannot secure lots in the Pacific Shores Subdivision as mitigation, particularly on whatever

timeline the Federal Aviation Administration has set forth, the Authority may look (and in fact is

looking) elsewhere for mitigation lands. Like any public agency, the Airport Authority is subject to

political and economic considerations that are absent or different for Applicants. Applicants,

meanwhile, have no apparent opportunity to sell or transfer their land except to the Authority as

mitigation for the runway safety project. These differences may cause the Authority to litigate this

case differently from Applicants.

Likewise, Applicants’ property and transactional interests are not adequately represented by

the Federal Aviation Administration. That Defendant represents the interests of the federal

government in ensuring timely completion of the runway safety improvement project. The agency has

no particular interest in, or knowledge about, the status of property within the Subdivision. Its interest

in completion of the runway project in the shortest time possible could, therefore, diverge significantly

from the interests of Applicants in selling their parcels for project mitigation.

In short, unless Applicants are permitted to participate in this litigation, there will be no party

involved who can advocate for their interest as private landowners. If Applicants remain absent from

participating in this case, there is a serious risk that the Airport Authority will resolve this matter on



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

terms that are unacceptable to Applicants. Importantly, the Airport Authority does not oppose this

motion or Applicants’ intervention into the case to protect their interests. Sivas Decl. ¶ 2(a).

B. Alternatively, Applicants Should Be Permitted to Intervene under Federal Rule of Civil Procedure 24(b)(1)(B).

Federal Rule of Civil Procedure Rule 24(b)(1)(B) provides for permissive intervention where

applicants file a timely motion and raise a common question of law and fact between their claim or

defense and the main action. Fed. R. Civ. P. 24(b)(1)(B); Freedom From Religion Found., Inc. v.

Geithner, 644 F.3d 836, 843 (9th Cir. 2011). Even if the Court were to find that Applicants do not

have a right to intervene under Rule 24(a), permissive intervention is warranted and appropriate in the

circumstances of this case.

Applicants satisfy both requirements for permissive intervention. First, as explained above,

this motion to intervene is timely. Second, Applicants seek to defend the option to sell or transfer their

Subdivision lots, which option Plaintiffs challenge. In other words, Applicants and Plaintiffs are

concerned with the same Subdivision and the same potential transactions for parcels within the

Subdivision. Applicants therefore will address questions of law and fact in common with those raised

in Plaintiffs’ complaint.1 A copy of Applicants’ proposed Answer to Plaintiffs’ “Petition and

Complaint for Writ of Mandate, Injunctive Relief, Damages” is attached as an appendix hereto.

IV. CONCLUSION

For the foregoing reasons, Applicants are entitled to intervene as of right under Federal Rule of

Civil Procedure 24(a)(2). In the alternative, the Court should permit Applicants to intervene pursuant

to Rule 24(b)(1)(B).

Dated: October 16, 2013 Respectfully submitted,

ENVIRONMENTAL LAW CLINIC Mills Legal Clinic at Stanford Law School By: /s/ Deborah A. Sivas _ Deborah A. Sivas

1 Because Applicants are not raising any new claims, there is no requirement that they have an independent jurisdictional ground for getting into federal court. See Freedom From Religion Found., 644 F.3d at 844 (“Where the proposed intervenor in a federal-question case brings no new claims, the jurisdictional concern [about introducing state law claims into federal court] drops away.”).


Appendix


DEFENDANT-INTERVENORS’ ANSWER TO PLAINTIFFS’ PETITION AND COMPLAINT FOR WRIT OF MANDATE, INJUNCTIVE RELIEF, AND DAMAGES – Case No. CV 13-2827 KAW - 1 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Deborah A. Sivas (CA Bar No. 135446) Alicia E. Thesing (CA Bar No. 211751) Matthew J. Sanders (CA Bar No. 222757) Anuja D. Thatte (CA Student Bar No. 31750) ENVIRONMENTAL LAW CLINIC Mills Legal Clinic at Stanford Law School 559 Nathan Abbott Way Stanford, California 94305-8610 Telephone: (650) 723-0325 Facsimile: (650) 723-4426 [email protected] [email protected] [email protected] Attorneys for Defendant-Intervenors MAXINE CURTIS, MICHAEL HEADLEY, EARL MCGREW, MIMI AND BOB STEPHENS, NORTHCOAST ENVIRONMENTAL CENTER, and SMITH RIVER ALLIANCE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

PACIFIC SHORES PROPERTY OWNERS ASSOCIATION; and WILLIAM A. RITTER, Petitioners and Plaintiffs, v. FEDERAL AVIATION ADMINISTRATION; BORDER COAST REGIONAL AIRPORT AUTHORITY; and DOES 1 – 100, Respondents and Defendants.

Case No. CV 13-2827 KAW DEFENDANT-INTERVENORS’ ANSWER TO PLAINTIFFS’ PETITION AND COMPLAINT FOR WRIT OF MANDATE, INJUNCTIVE RELIEF, AND DAMAGES

MAXINE CURTIS; MICHAEL HEADLEY; EARL MCGREW; MIMI AND BOB STEPHENS; NORTHCOAST ENVIRON-MENTAL CENTER; and SMITH RIVER ALLIANCE,

Defendant-Intervenors.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Defendant-Intervenors answer the allegations set forth in Plaintiffs’ Petition and Complaint for

Writ of Mandate, Injunctive Relief, Damages (“Complaint”) as follows:

ANSWER TO INTRODUCTORY ALLEGATIONS

1. Paragraph 1 consists of Plaintiffs’ characterization of the nature of the case for which no

response is required. To the extent that a response is required, Defendant-Intervenors deny those

allegations.

2. Defendant -Intervenors deny the allegations in paragraph 2.

3. Defendant -Intervenors are informed and believe that the Defendants have satisfied any

applicable notice requirements. The remaining allegations in paragraph 3 consist of Plaintiffs’

characterization of the case and require no response. To the extent that a response is required,

Defendant-Intervenors deny those allegations.

4. Paragraph 4 consists of Plaintiffs’ characterization of the nature of the case for which no

no response is required. To the extent that a response is required, Defendant-Intervenors deny those

allegations.

5. Defendant-Intervenors deny the allegations contained in paragraph 5.

6. Paragraph 6 consists of conclusions of law for which no response is required. To the

extent that a response is required, Defendant-Intervenors lack sufficient knowledge or information to

form a belief as to the truth of the allegations and on this basis deny the allegations contained in

paragraph 6.

ANSWER TO ALLEGATIONS REGARDING PARTIES

7. The allegations contained in paragraph 7 refer to an entity other than Defendant-

Intervenors and, therefore, Defendant-Intervenors lack sufficient knowledge or information to form a

belief as to the truth of the allegations and on this basis deny them.






1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9. Defendant-Intervenors lack sufficient knowledge or information to form a belief as to

the truth of the allegations contained in paragraph 9 and on this basis deny them.













16. Paragraph 16 contains a statement regarding Plaintiffs’ request for relief for which no

response is required. To the extent that a response is required, Defendant-Intervenors deny that

Petitioner is entitled to damages, injunctive or declaratory relief, or any other relief requested in their

complaint.

ANSWER TO ALLEGATIONS REGARDING JURISDICTION AND VENUE

17. Paragraph 17 contains conclusions of law for which no response is required. To the

extent that a response is required, Defendant-Intervenors deny that Plaintiffs have alleged sufficient

claims to establish federal court jurisdiction.

18. To the extent that Plaintiffs have adequately established federal court jurisdiction,

Defendant-Intervenors admit that venue would be proper in the United States District Court for the

Northern District of California.

ANSWER TO GENERAL ALLEGATIONS

19. Paragraph 19 does not contain factual allegations for which no response is required.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




21. Defendant-Intervenors admit that the Pacific Shores subdivision was originally

subdivided in 1963. To the extent that the allegations contained in paragraph 21 set forth Plaintiffs’

characterization of the subdivision documents, those documents speak for themselves and are the best

evidence of their content. Defendant-Intervenors lack sufficient knowledge or information to form a

belief as to the truth of the remaining allegations contained in paragraph 21 and on this basis deny

them.


the truth of the allegations contained in paragraph 22 and on that basis deny them.





25. The allegations contained in paragraph 25 refer to individuals other than Defendant-


belief as to the truth of these allegations and on this basis deny them.


the truth of these allegations contained in paragraph 26 and on that basis deny them.



28. Paragraph 28 sets forth Plaintiffs’ characterization of a separate legal proceeding and,

therefore, no response is required. Defendant-Intervenors respectfully refers the Court to the cited

court cases for the full and accurate statement of their contents.





1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

30. Defendant-Intervenors are informed and believe that the Defendants’ runway safety

improvement plan was initiated to address public safety concerns. Defendant-Intervenors lack

sufficient knowledge or information to form a belief as to the truth of remaining allegations contained

in paragraph 30 and on that basis deny them.



32. The allegations contained in paragraph 32 set forth Plaintiffs’ characterization of a

document that speaks for itself and is the best evidence of its contents. Defendant-Intervenors refer the

Court to the cited document for the full and accurate statement of its contents. To the extent that the

allegations in paragraph 32 are inconsistent with these documents, Defendant-Intervenors deny them.



34. The reference in paragraph 34 to “the owners of Pacific Shore property” is vague and

ambiguous in that it is unclear whether Plaintiffs are referring to all property owners or only some of

them. Defendant-Intervenors are informed and believe that Defendants complied with all applicable

notice requirements for Environmental Impact Report and on that basis deny the allegations contained

in paragraph 34.

35. Defendant-Intervenors are informed and believe that Defendants complied with all

applicable notice requirements for the Environmental Impact Report. Defendant-Intervenors lack

sufficient knowledge or information to form a belief as to the truth of the allegations as to the date on

which other owners within the Subdivision obtained actual notice and on that basis deny the allegations

contained in paragraph 35.

36. Defendant-Intervenors are informed and believe that on February 13, 2013, the Airport

Authority held a public meeting to answer questions about the runway safety improvement project.





1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



39. The allegations contained in paragraph 39 set forth the Plaintiffs’ characterization of

documents that speak for themselves and are the best evidence of their contents. To the extent that the

allegations contained in paragraph 39 are inconsistent with these documents, the allegations are denied.



41. The allegations contained in paragraph 41 refer to the actions of an entity other than

Defendant-Intervenors and, therefore, Defendant-Intervenors lack sufficient knowledge or information

to form a belief as to the truth of these allegations and on that basis deny them.



43. Defendant-Intervenors are informed and believe that the Airport Authority made offers

to purchase property to some owners of property at the Pacific Shores subdivision. Defendant-

Intervenors lack sufficient knowledge or information to form a belief as to the truth of the remaining

allegations in paragraph 43 and on that basis deny them.

44. Defendant-Intervenors are informed and believe that some parcel owners have expressed

interest in selling their parcels by responding to the Airport Authority’s offer to purchase, including

some of Defendant-Intervenors. Defendant-Intervenors lack sufficient knowledge or information to

form a belief as to the truth of the remaining allegations in paragraph 44 and on that basis deny them.

45. Paragraph 45 consists of conclusory statements regarding Plaintiffs’ belief about

potential future action by entities other than Defendant-Intervenors and, therefore, Defendant-

Intervenors lack sufficient knowledge or information to form a belief as to the truth of the allegation

and on that basis deny them.

46. Paragraph 46 consists of conclusory statements referring to parties other than

Defendant-Intervenors and, therefore, sufficient knowledge or information to form a belief as to the

truth of the allegation and on that basis deny them.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

47. The allegations contained in paragraph 47 set forth the Plaintiffs’ characterization of

documents that speak for themselves and are the best evidence of the contents. To the extent that the


48. The allegations contained in paragraph 48 set forth the Petitioners’ characterization of



49. Paragraph 49 consists of conclusory statements rather than factual allegations for which

no response is required. In addition, the allegations contained in paragraph 49 set forth Plaintiffs’

characterization of documents that speak for themselves and are the best evidence of the contents. To

the extent that the allegations contained in paragraph 49 are inconsistent with these documents, the

allegations are denied.

50. The allegations contained in paragraph 50 set forth Plaintiffs’ characterization of





to form a belief as to the truth of these allegations. Moreover, the allegations in paragraph 51 are vague

and ambiguous, and therefore, Defendant-Intervenors lack sufficient knowledge or information to form

a belief as to the truth of these allegations and on this basis deny them.






to form a belief as to the truth of these allegations. Moreover, paragraph 53 sets forth Plaintiffs’

characterization of a document that speaks for itself and is the best evidence of its contents. To the

extent that the allegations are inconsistent with this document, the allegations are denied.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

54. The allegations contained in paragraph 54 are vague and ambiguous in that Plaintiffs do

not identify the “confusing or misleading statements” to which they refer and, therefore, no response is

required. To the extent that a response is required, Defendant-Intervenors deny those allegations.

55. The allegations contained in paragraph 55 are vague and ambiguous conclusory

statements for which no response is required. To the extent that a response is required, Defendant-

Intervenors deny those allegations.

56. The allegations contained in paragraph 56 are vague and ambiguous conclusory

statements for which no response is required. To the extent that a response is required, Defendant-

Intervenors deny those allegations.

ANSWER TO FIRST CAUSE OF ACTION

57. Defendant-Intervenors’ answers to paragraphs 1 through 56 are incorporated by

reference as though fully set forth herein.

58. Paragraph 58 consists of a characterization of the provisions of the Uniform Relocation

Assistance and Real Property Act. The act speaks for itself and provides the best evidence of its

contents and, therefore, no response is required.

59. Paragraph 59 consists of a characterization of the provisions of the Uniform Relocation

Assistance and Real Property Act. The act speaks for itself and provides the best evidence of its

contents and, therefore, no response is required.




61. The allegations contained in paragraph 61 are speculative, conclusory, vague and

ambiguous and on this basis Defendant-Intervenors deny them.

62. The allegations contained in paragraph 62 are conclusory statements rather than factual

allegations and, therefore, no response is required. To the extent that a response is required, Defendant-

Intervenors deny the allegations contained in paragraph 62.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

63. Paragraph 63 consists of Plaintiffs’ characterization of their claims for which no

response is required. To the extent that a response is required, the allegations contained in paragraph

63 refer to the actions of an entity other than Defendant-Intervenors for which Defendant-Intervenors

lack sufficient knowledge or information to form a belief as to their truth, and on this basis Defendant-

Intervenors deny them.

ANSWER TO SECOND CAUSE OF ACTION



65. Paragraph 65 consists of Plaintiffs’ characterization of their claims for which no

response is required. To the extent that a response is required, the allegations contained in paragraph

65 refer to the actions of an entity other than Defendant-Intervenors for which Defendant-Intervenors

lack sufficient knowledge or information to form a belief as to their truth, and on this basis Defendant-

Intervenors deny them.

66. Paragraph 66 contains a statement of Plaintiffs’ request for relief for which no response

is required. To the extent that a response is required, Defendant-Intervenors deny that Plaintiffs are

entitled to damages, injunctive or declaratory relief, or any other relief requested by their complaint.

ANSWER TO THIRD CAUSE OF ACTION

67. Defendant-Intervenors’ answers to paragraphs 1 though 66 are incorporated by

references as though fully set forth herein.

68. Paragraph 68 contains a characterization of the constitutions of the United States and

California. Those documents speak for themselves and provide the best evidence of their contents and,

therefore, no response is required.

69. Paragraph 69 consists of conclusory statements concerning the nature of Plaintiffs’

grievances for which no response is required. To the extent that a response is required, Defendant-

Intervenors deny each and every one of the allegations contained in paragraph 69 and each of its

subsections.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



Plaintiffs are entitled to damages, injunctive or declaratory relief, or any other relief requested by their

complaint.

ANSWER TO FOURTH CAUSE OF ACTION



72. The allegations contained in paragraph 72 include conclusory statements concerning the

actions of an entity other than Defendant-Intervenors and, therefore, Defendant-Intervenors lack

sufficient knowledge or information to form a belief as to the truth of these allegations and on this basis

deny them.

73. The allegations contained in paragraph 73 are conclusory statements of law rather than

factual allegations and, therefore, no response is required. To the extent that a response is required,

Defendant-Intervenors deny those allegations.



belief as to the truth of these allegations and on this basis deny them.

75. Paragraph 75 consists of conclusory statements concerning the nature of Plaintiffs’

grievances and, therefore, no response is required. To the extent that a response is required, Defendant-

Intervenors deny each and every one of the allegations contained in paragraph 75 and each of its

subsections.


response is required. To the extent that an answer is necessary, Defendant-Intervenors deny that

Plaintiffs are entitled to damages, injunctive or declaratory relief, or any other relief requested in their

complaint.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ANSWER TO FIFTH CAUSE OF ACTION



78. Paragraph 78 contains a characterization of the California constitution. That document

speaks for itself and provides the best evidence of its contents and, therefore, no response is required.

79. Defendant-Intervenors deny the allegations contained in paragraph 79.

80. Paragraph 80 contains conclusory statements for which no response is required. To the

extent that a response is required, Defendant-Intervenors deny the allegations contained in paragraph

80.

81. Paragraph 81 contains conclusory statements and, therefore, no response is required. To

the extent that a response is required, Defendant-Intervenors deny the allegations contained in

paragraph 81.



Plaitniffs are entitled to damages, injunctive or declaratory relief, or any other relief requested in their

complaint.

RESPONSE TO PLAINTIFFS’ PRAYER FOR RELIEF

Defendant-Intervenors deny that Plaintiffs are entitled to any relief whatsoever.

GENERAL DENIAL

Defendant-Intervenors deny any allegations of Plaintiffs’ complaint, whether express or

implied, that are not specifically admitted, denied, or qualified herein.

AFFIRMATIVE DEFENSES

Defendant-Intervenors allege as separate and distinct affirmative defenses to the complaint, and

each cause of action therein, individually and separately, the following affirmative defenses.

1. Plaintiffs’ complaint fails to allege facts sufficient to state a claim upon which relief can

be granted.

2. Plaintiffs’ complaint is barred the applicable statute of limitations.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3. Plaintiffs’ complaint is barred by the doctrine of estoppel.

4. Plaintiffs’ complaint is barred by the doctrine of waiver.

5. Plaintiffs’ complaint is barred by the doctrine of laches.

6. Plaintiffs’ complaint is barred, in whole or in part, for lack of standing.

7. Plaintiff Pacific Shores Property Owners Association’s claims in this lawsuit are barred

because the Association has failed to obtain lawful consent to file this case in accordance with the laws

of the State of California.

8. Plaintiff Pacific Shores Property Owners Association’s claims in this lawsuit are barred

because the Association is not, and at the time of filing this complaint was not, in compliance with

applicable corporate governance requirements of the State of California.

9. Plaintiffs’ complaint fails for lack of adherence to Cal. Gov. Code § 900 et seq., claims

against public entities.

10. Plaintiffs’ complaint fails because Plaintiffs failed to timely pursue their administrative

remedies under CEQA. Cal. Pub. Res. Code § 21177.

11. Plaintiffs’ complaint alleges damages that may take place in the future rather than

damages that have already occurred, and therefore fails under the doctrine of ripeness.

12. Plaintiffs’ complaint fails as a tortious attempt to induce a breach of contract or interfere

with prospective business relations between property owners in the Pacific Shores Subdivision and

Defendants.

14. Defendant-Intervenors reserve the right to assert additional affirmative defenses at such

time and to such extent as warranted by discovery and the factual developments in this case.

PRAYER FOR RELIEF

WHEREFORE, Defendant-Intervenors pray for judgment and relief as follows:

1. That Plaintiffs take nothing by this complaint;

2. That this Court deny every item of relief requested in the complaint;

3. That this Court dismiss the complaint with prejudice;

4. That judgment be entered in favor of Defendants and Defendant-Intervenors;



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5. For the award of reasonable attorneys’ fees and costs of against Plaintiffs;

6. For such other relief as the Court may deem just and proper.

Dated: October 16, 2013 Respectfully submitted,

ENVIRONMENTAL LAW CLINIC Mills Legal Clinic at Stanford Law School

By: /s/ Deborah A. Sivas _ Deborah A. Sivas

Attorneys for Proposed Intervenor-Defendants MAXINE CURTIS. MICHAEL HEADLEY, EARL MCGREW, MIMI AND BOB STEPHENS, NORTHCOAST ENVIRONMENTAL

CENTER, and SMITH RIVER ALLIANCE



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

VERIFICATION

I am the attorney for Defendant-Intervenors in this matter, Case No. CV 13-2827 KAW. None

of Defendant-Intervenors reside in Santa Clara County where I have reside and have my law offices;

most reside hundreds of miles away in Del Norte County or outside the state of California and for that

reason I provide this verification on their behalf. I have read and am familiar with the contents of this

Answer, and I am informed and believe that the matters stated herein are true and correct to the best of

my knowledge.

I declare under the penalty of perjury that the foregoing is true and correct and that I executed

this declaration on this 16th day of October, 2013 at Stanford, California.

By: /s/ Deborah A. Sivas _

Deborah A. Sivas

Attorney for Proposed Intervenor-Defendants MAXINE CURTIS, MICHAEL HEADLE, EARL MCGREW, MIMI AND BOB STEPHENS, NORTHCOAST ENVIRONMENTAL

CENTER, and SMITH RIVER ALLIANCE


notice of motion and motion for under … · notice of motion and motion to intervene as defendants...

Documents