1 Deborah R.

Rosenthal (#184241)
drosenthal@simmonsfirm.com
2 Benjamin D. Goldstein (#231699)
3 bgoldstein@simmonsfirm.com
SIMMONS HANLY CONROY LLC
4 455 Market Street, Suite 1150
5 San Francisco, California 94105
Phone: (415) 536-3986
6 Fax: (415) 537-4120
7
Jessica Culpepper (pro hac vice) Elisabeth Holmes, Esq.
8 jculpepper@publicjustice.net eli.blueriverlaw@gmail.com
9 Leah Nicholls (pro hac vice) Blue River Law, P.C.
lnicholls@publicjustice.net P.O. Box 293
10 Public Justice, PC Eugene, Oregon 97440
11 1825 K Street NW, Suite 200 Phone: (541) 870-7722
Washington DC 20006
12 Phone: (202) 797-8600
13 Fax: (202) 232-7203
14 Attorneys for Plaintiffs
15
UNITED STATES DISTRICT COURT
16 FOR THE CENTRAL DISTRICT OF CALIFORNIA
17
BERNADETTE BLACKWOOD, ) Case No.: ED CV 14-00395 JGB SPx
18 individually and as guardian ad litem )
19 for K.B. and E.B., et al., ) PLAINTIFFS’ MEDIATION BRIEF
)
20 Plaintiffs, )
21 v. )
)
22 MARY DE VRIES, individually and )
23 dba N&M DAIRY (aka N&M )
DAIRY # 1 and N&M DAIRY # 2) )
24 and as trustee of the NEIL AND )
25 MARY DE VRIES FAMILY )
TRUST; et al., )
26 )
27 Defendants.
28
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PLAINTIFFS’ MEDIATION BRIEF
 1 TABLE OF CONTENTS
2 I. Introduction and parties .......................................................................................... 1
3 II. Factual background ................................................................................................. 4
4 A. Groundwater contamination ................................................................................... 5
5 B. Flies, fly residue, noxious odors and omissions,
6 and Plaintiffs’ loss of enjoyment of life and property ........................................... 6
7 III. Procedural background ......................................................................................... 8
8 IV. Liability under RCRA and California tort law ................................................. 10
9 A. RCRA Liability ..................................................................................................... 10
10 1. Excess manure produced .................................................................................... 11
11 2. Inadequate and substandard manure storage impoundments ............................. 11
12 3. Overapplication of manure ................................................................................. 13
13 B. Liability for nuisance and trespass ....................................................................... 16
14 V. Injuries and damages ............................................................................................. 17
15 A. RCRA Relief ......................................................................................................... 17
16 B. Trespass and Nuisance Claims .............................................................................. 19
17 1. Special damages.................................................................................................. 19
18 2. General damages ................................................................................................. 20
19 3. Punitive damages ................................................................................................ 22
20 VI. Risk/exposure ........................................................................................................ 24
21 A. Fees and costs ....................................................................................................... 24
22 B. Insurance coverage ................................................................................................ 25
23 VII. Conclusion ........................................................................................................... 25
24
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26
27
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 1 TABLE OF AUTHORITIES
2 Federal Law and Standards
3 Resource Conservation and Recovery Act (RCRA)
4 42 U.S.C. § 6901 ........................................................... 1, 8, 10, 14, 17, 18, 19, 24, 25
5 40 C.F.R. § 122.23(b)(4)(i) ......................................................................................... 3
6 U.S. Dep’t of Agriculture Nat’l Resource Cons. Serv. (NRCS) Standards
7 Standard 313 ............................................................................................................. 12
8 Standard 359 ............................................................................................................. 12
9 Standard 590 ............................................................................................................. 12
10
State Law
11
Statutes
12
Cal. Civil Code § 3479........................................................................................ 16, 17
13
Cases
14
Armitage v. Decker (1990) 218 Cal.App.3d 887 ...................................................... 16
15
Capogeannis v. Sup. Ct. (1993) 12 Cal.App.4th 668 ............................................... 16
16
Koll-Irvine Ctr. Prop. Owners Assn. v. County of Orange (1994)
17
24 Cal.App.4th 1036 ............................................................................................ 17
18
Martin Marietta Corp. v. Ins. Co. of No. Amer. (1995)
19
40 Cal.App.4th 1112 ............................................................................................. 16
20
21 Miscellaneous
22 Jury Instructions
23 California Civil Jury Instructions (CACI) 2000 ....................................................... 16
24 California Civil Jury Instructions (CACI) 2021 ....................................................... 17
25 USDC Decisions
26 Cmty. Ass’n for Restoration of the Env’t, Inc. v. Cow Palace, LLC (2015)
27 No. 13-CV-3016-TOR, 2015 WL 199345 ........................................................... 10
28
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 1
Journals
2
Environ. Health Perspect. Vol. 115, No. 2 ................................................................. 6
3
Epidemiology, Vol. 21 No. 3 ..................................................................................... 6
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
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 1 Plaintiffs respectfully submit this memorandum in preparation for the April 9-10,
2 2015, mediation in the above-captioned case. This brief addresses Defendants’ liability
3 under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901 et seq.,
4 and state tort law; RCRA injunctive relief and remediation; plaintiffs’ tort damages; and
5 the parties’ respective risk/exposure if this case does not resolve at mediation.
6
7 I. Introduction and parties
8 In March 2014, Plaintiffs initiated this lawsuit for declaratory and injunctive
9 relief and attendant fees and costs, and for compensatory and punitive damages, arising
10 out of Defendants’ unlawful and grossly negligent manure handling and storage
11 practices at a dairy site located in Helendale, California. Defendants’ egregious
12 conduct, occurring for more than decade, has polluted the Middle Mojave River Valley
13 groundwater basin, contaminated domestic water supplies with nitrates and other
14 contaminants, and caused swarms of flies and other pests, as well as foul odors and
15 noxious emissions, to invade Plaintiffs’ nearby homes and properties, depriving
16 Plaintiffs of their right to peacefully and comfortably enjoy their lives there. Although
17 Defendants ceased operations at the dairy in approximately July 2013, improving
18 nuisance conditions, Defendants left a contaminated site in their wake with no
19 acknowledgment for nor attempt to rectify the years they harmed the neighboring
20 community. Even today, manure still remains on the property, flies continue to invade
21 Plaintiffs’ homes, property damage from the fly infestations remains, and the
22 community’s wells continue to be contaminated.
23 Plaintiffs are the members of 11 households who reside within one mile of
24 N&M Dairy, an approximate 904-acre dairy facility that operated at or near 36001
25 Lords Road and 18200 Lords Road in Helendale, California.
26 The Ervin family, the Gray family, and the Piña family live in Barstow. The
27 Grays and Piñas are one mile southeast of the Dairy property, while the Ervins are one-
28 1
PLAINTIFFS’ MEDIATION BRIEF
 1 third of a mile from the Dairy. Members of the Ervin family have lived in the area for
2 generations. Plaintiffs are James and Kathren Ervin, James’s elderly mother Ofelia,
3 and James and Kathren’s adult son, James Dennis, who entered military service
4 approximately six weeks ago. Current residents of the Gray family property consist of
5 Susan and John Gray and Susan’s granddaughter, Ashlyn Kepley, who is 10 years old.
6 The Grays have lived there since the late 1980s, and Ashlyn has lived there since
7 approximately 2005. From the time she was born in 1995, until she moved out in May
8 2014, the Grays’ daughter Shawna also lived on the property. Jesus and Celia Piña,
9 husband and wife, have lived with their 35-year-old daughter Eva on their property
10 since 1987; and Eva’s fiancé, Amir Paniagua, has lived with them since 2007.
11 The Plaintiffs with properties closest to N&M Dairy are the Romero, Fritz, and
12 Morrison households. Wanda and Felix Romero purchased and moved to their
13 property, adjacent to the Dairy, in the early 1990s. The Romeros raised four children
14 there, and three of them—plaintiffs Ashley Romero, Jose Magaña, and Lisa Fritz—still
15 live there. Lisa now has her own household in a second home on the property. She
16 married her husband David in 2007, and they moved into the second home in 2008.
17 They have a two-year-old daughter, Jemma. Jose and Ashley live in the main house
18 with their parents and two family friends, Bradley Moratoya and Vanessa Araujo, who
19 joined the Romero household in 2008 and 2010 respectively. John and Lisa Morrison
20 have lived approximately one-quarter of a mile from N&M Dairy since 1998.
21 The five remaining households who are Plaintiffs in this lawsuit are: the
22 Blackwood family, the Snell/Ratican family, the Decker/Silva family, the Sprowl
23 family, and the Whittons. Plaintiffs Bernadette and Curtis Blackwood moved to their
24 Helendale home in 1999, with their daughter Kaitelyne, who is now 18 years old. Their
25 son Ethan was born in 2002 and has lived at the Helendale property all of his life. The
26 Blackwoods live approximately one-half mile from N&M Dairy, as do the Snells and
27 the Raticans. Garry and Lisa Snell moved to their property in Helendale in 2002. Their
28 2
PLAINTIFFS’ MEDIATION BRIEF
 1 daughter, Shelby Ratican, joined them there in 2008, with her two daughters, Heather
2 and Mia, currently ages 7 and 10. Fred Charles Whitton and his adult son, Dallas
3 Whitton, live on property that Fred Charles owns, approximately 0.7 miles from N&M
4 Dairy. Dallas has lived there since the end of 2006 and Fred Charles has lived there
5 since the end of 2008.
6 The Decker-Silva family and the Sprowl family each live approximately one-
7 third of a mile from N&M Dairy. Christina Decker and her husband, Carlos Silva,
8 moved to Helendale with their three young children, Nickoli, Jarred, and Kira (now
9 ages 11, 9, and 6, respectively), in August 2009. Christopher Sprowl and his wife
10 Nicole moved to Helendale with their two children, Chace and Atalaya, ages 7 and 9,
11 in September 2012.
12 To Plaintiffs’ knowledge, N&M Dairy was at all relevant times owned by
13 Defendants Mary DeVries, Neil DeVries, and/or the Neil and Mary DeVries Family
14 Trust, and operated by Neil and Mary DeVries with the help of their sons, defendants
15 Jim DeVries and Randy DeVries. Since the DeVrieses purchased the Dairy from its
16 former owner, they increased the size of the operation substantially. N&M Dairy
17 operated from approximately 1992 to 2013 as an industrial-sized concentrated animal
18 feeding operation (“CAFO”), 1 with an average number of animals of 8,754 and
19 producing more than 91,121 tons of dry manure per year, and 30,000 gallons of wet
20 manure per year. Ex. 1 § 2.2 and 2.3 at 9. 2
21 The DeVries family owns at least one other dairy in California and has at all
22 times been well aware of the government regulations and industry standards regarding
23 1 EPA defines “large” CAFOs as those with 700 or more mature dairy cows. 40 C.F.R. § 122.23(b)(4)(i).
24 According Defendants’ Comprehensive Nutrient Management Plan (“CNMP”), the Dairy had approximately
8,754 cows, more than twelve times larger than the threshold to qualify for EPA’s largest category of CAFOs.
25 EPA estimates that a 2,500 cow dairy produces as much waste as a city of 411,000 people. See EPA “Risk
Assessment Evaluation for Concentrated Animal Feeding Operations” (EPA/600/R-04/042) at 7 (May 2004).
26 This would imply that the Defendants produced the waste of 1,438,500 people.
2 Note that these manure quantities are only based on the manure “collected” in the production area of the
27 CAFO, it does not account for manure produced outside the production area. Ex. 1 § 2.3 n. 2 at 9.
28 3
PLAINTIFFS’ MEDIATION BRIEF
 1 dairy operations, including the proper and safe handling, storage, and disposal of
2 manure, dead animals, and other dairy waste. Defendants have been in communication
3 with the Lahontan Regional Water Quality Control Board (“LRWQB” or “the Board”)
4 with respect to the conditions at their Helendale Dairy since at least 2005 and with the
5 San Bernardino County Department of Public Health, Department of Vector Control,
6 with respect to conditions at the N&M Dairy, since at least 2011. (See, e.g., Ex. 11
7 Water Board, Facility Violation Report (Jan. 1, 2005) and Vector Control, Inspection
8 Report (May 18, 2011) (noting heavy wet manure, multiple dead animals, and adult fly
9 population increasing rapidly.)
10
11 II. Factual background
12 Helendale, California, is an unincorporated community in the Mojave Desert,
13 located along Route 66, between Barstow and Victorville. In terms of hydrogeology,
14 N&M Dairy and the neighboring residential properties in Helendale and Barstow share
15 the Middle Mojave River Valley groundwater basin. The principal sources of natural
16 recharge to the groundwater basin are the Mojave River, which primarily runs
17 underground, and, to a lesser extent, streams and washes. The Mojave River recharges
18 the aquifer system, as does surface water when sufficient surface water is present.
19 However, significant recharge occurs only during episodic stormflows, usually in the
20 winter. Because of the limited availability of surface water, water supply in the area is
21 derived entirely from groundwater. Soil in this area primarily consists of cobblestones,
22 sand, loam, and gravel, to a depth of at least 140 feet. These soils have high
23 permeability and are considered by the State of California to be at a high risk of nitrate
24 leakage.
25 Helendale consists of a more populated resort area called Silver Lakes
26 (approximately 5,623 people), which has manmade lakes and a community water
27 system, and a less populated area to the east of Silver Lakes, where Plaintiffs live and
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PLAINTIFFS’ MEDIATION BRIEF
 1 where the only natural water supply comes from wells drilled on the individual
2 properties. These wells draw groundwater from the same aquifer that underlies N&M
3 Dairy.
4 Since acquiring the dairy more than 20 years ago, Defendants engaged in
5 manure mismanagement acts and omissions that (1) saturated the soil with pollutants
6 and allowed these pollutants to leach into the groundwater basin below; (2) fostered
7 breeding grounds for flies and pests that then plagued the area for years; and (3)
8 generated noxious odors and emissions that emanated from dairy property and fouled
9 the nearby air.
10 A. Groundwater contamination
11 More than half of the Plaintiffs’ drinking-water wells are contaminated with
12 nitrates and other pollutants that leaked into the groundwater from manure that was
13 improperly and unlawfully stored and land-applied at N&M Dairy. 3 Due to its
14 numerous negative human health effects and toxicity, EPA and the State of California
15 have set the maximum contaminant limit (“MCL”) for nitrate in drinking water at 10
16 mg/L. 4 Research indicates that levels below the MCL may cause human health effects,
17
3 Plaintiffs thus far named in the RCRA Count are the members of the Fritz, Romero, and Piña households,
18 whose wells are contaminated with nitrates and total dissolved solids (TDS) that exceed the EPA-established
limits for safe drinking water. (TDS is a secondary water quality standard that affects aesthetic considerations
19 such as taste, color, and odor. TDS in water may dissuade people from drinking as much water as they
should.) Plaintiffs’ investigation to date suggests that the wells on the Morrison, Ervin, and Gray properties
20 also have elevated levels of nitrates, TDS, and other pollutants from Defendants’ dairy. Although not above
21 the EPA MCL, the fact that their wells are impacted in this way gives these Plaintiffs standing to join in the
RCRA claim against Defendants, and if this case does not resolve at mediation, they will be added as Plaintiffs
22 in the RCRA Count in an amended pleading that will be filed shortly.

4
23 Ingestion of nitrates can cause methemoglobinemia, also known as “blue baby syndrome” which can
seriously injure or kill infants. Nitrate is also known to cause other hematologic effects, cardiovascular effects,
24 thyroid problems, and reproductive and developmental effects, such as spontaneous abortion and neural tube
defects. Nitrates may increase the risk of developing diabetes mellitus, Raynaud’s disease, and peripheral
25 neuropathy. Nitrates are categorized as “probably carcinogenic to humans” under certain conditions. Chronic
exposure to nitrates in drinking water at levels below the MCL have been known to cause dangers to human
26 and animal health. See, e.g., U.S. Department of Health and Human Services, Agency for Toxic Substances
and Disease Registry, “ATSDR Case Studies in Environmental Medicine Nitrate/Nitrite Toxicity.” (2013).
27
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PLAINTIFFS’ MEDIATION BRIEF
 1 that even a “slight” increase above the MCL can exacerbate health effects, and that
2 chronic exposure to nitrates can increase the risk of adverse health outcomes. See, e.g.,
3 Burkholder, J. et al. “Impacts of Waste from Concentrated Animal Feeding Operations
4 on Water Quality.” Environ. Health Perspect. Vol. 115, No. 2, pp. 308-312 (Feb.
5 2007); Ward, M.H. et al. “Nitrate intake and the risk of thyroid cancer and thyroid
6 disease.” Epidemiology. Vol. 21, No. 3 pp. 389-395 (May 2010).
7 Nitrate is found in large quantities in cow manure as it decomposes. Nitrates in
8 manure are available to plants as a nutrient and to soil as conditioner, but plants are
9 only able to use a limited amount of nitrate as fertilizer, and soil only needs a limited
10 amount as conditioner. As a general matter, the amount needed depends on crop, soil,
11 and manure conditions, and is called the “agronomic rate.” More manure on a crop is
12 not better: a crop cannot take in more nitrate than it needs. The unused excess ceases to
13 serve any useful purpose as a nutrient and leaches through the soil, into groundwater,
14 where it becomes a public health hazard. The general flow of groundwater underneath
15 N&M Dairy is east, towards the wells of many of the Plaintiffs.
16 Groundwater samples taken at the dairy site beginning in February 2004 found
17 nitrate levels up to seven or more times greater than the EPA’s MCL. Sampling also
18 found levels of barium, chromium, copper, and mercury that exceeded the MCLs for
19 those elements. In addition, testing revealed excessive levels of secondary MCLs,
20 such as total dissolved solids (“TDS”).
21 B. Flies, fly residue, noxious odors and omissions, and Plaintiffs’ loss of
22 enjoyment of life and property
23 Defendants’ over-application and storage of excess manure at N&M Dairy, as
24 well as their mishandling of their herd, including dead animals, created excessive
25 ammonia emissions, odors, and pest invasion onto Plaintiffs’ properties. These
26 nuisance conditions gradually emerged as Defendants’ herd size and manure
27 mismanagement increased over the years, with problems estimated by various
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PLAINTIFFS’ MEDIATION BRIEF
 1 Plaintiffs as beginning in the mid-2000s and gradually worsening until, during the
2 2010 to 2013 time frame, problems were near daily, with some temporary
3 improvement during the coldest winter days and on windy days. 5
4 Plaintiffs all experienced excessive numbers of flies, both indoors and outdoors,
5 on their properties. The improperly stored liquid and solid manure at N&M Dairy, as
6 well as the lack of adequate cleaning of pens and corrals and improper disposal of dead
7 animals, created fertile ground for vector breeding and led to the invasion of Plaintiffs’
8 properties by various types of flies. The hordes of flies interfered with the Plaintiffs’
9 ability to live their everyday lives in a normal, peaceful, and enjoyable manner. Daily
10 activities such as cooking, eating snacks and meals, drinking, washing dishes,
11 watching television, recreating outdoors, and sleeping, all were made difficult and
12 unpleasant, on a near daily basis, by the vast numbers of flies that filled Plaintiffs’
13 homes. The adult Plaintiffs in this action are women and men who chose to live in the
14 high desert primarily to enjoy the outdoors, and to cultivate in their children an
15 appreciation for this unique and vibrant environment. The presence of an
16 overabundance of flies in the air, especially during warm weather, drove the Plaintiffs
17 indoors, where they were forced to live like prisoners in their homes. Once inside,
18 Plaintiffs still had no relief and spent countless hours on efforts to rid their homes of
19 the presence of these pests, using all manner of pest control methods, followed by
20 excessive cleaning. Often a terrible stench filled the air, as well as noxious emissions
21 that burned their eyes, noses, and throats. But by far the worst problem for the
22 Plaintiffs has been the terrible, unhealthy, frustrating, relentless presence of pests that
23 prevented them for many years from enjoying their homes, their families, and their
24 properties.
25
26
27 5 During the dismantling of the Dairy, fly incursions continued, well into 2014.
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PLAINTIFFS’ MEDIATION BRIEF
 1 The entry of these flies onto Plaintiffs’ properties and into their homes
2 constitutes trespass under California law; and the impact of these offensive conditions
3 on Plaintiffs’ ability to freely use their properties as they wished to, and to enjoy their
4 lives at home as they should be able to, constitutes nuisance, warranting damages
5 under tort law.
6
7 III. Procedural background
8 Plaintiffs bring this case after years of trying to work with Defendants and with
9 state agencies to urge Defendants to implement proper manure management
10 procedures and otherwise abate the water contamination and horrendous fly
11 infestations and odors that ruined Plaintiffs’ homes and lives for so many years. Over
12 the years, LRWQCB repeatedly inspected N&M Dairy and issued numerous Notices
13 of Violation (“NOVs”) and several Clean-Up and Abatement Orders (“CAOs”) in an
14 effort to get Defendants to comply with their statutory and regulatory obligations.
15 Defendants refused, ignoring the Board’s authority and expressing disdain for their
16 neighbors’ health and comfort and the negative impact that Defendants were having on
17 the environment.
18 RCRA requires citizens who are considering initiating a civil lawsuit to serve
19 90-day notice on potential defendants and potentially interested government agencies.
20 42 U.S.C. § 6972(b)(2)(A). Plaintiffs served their Notice of Intent to Sue on September
21 6, 2013. At the same time, the Board was contemplating a new CAO, in conjunction
22 with a settlement that it had reached with Defendants, and sought public comment
23 regarding its terms. Plaintiffs offered comments that articulated some shortcomings of
24 the proposed CAO (discussed further below), and the Board responded but did not
25 alter the settlement terms. In December 2013, the Board issued a final CAO and
26 entered into a Settlement Agreement and Stipulation for Entry of Order with Mary
27 DeVries and Neil DeVries. (“2013 CAO”). Pursuant to the 2013 CAO, Defendants
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PLAINTIFFS’ MEDIATION BRIEF
 1 must remove all remaining waste manure from the property, pay a fine of $376,850 to
2 the State, continue monitoring local groundwater, and provide uninterrupted
3 replacement drinking water to residents whose wells test at above the EPA MCL for
4 nitrates or TDS. Ex. 4 at 7 of the Order and 4-6 of the Settlement Agreement. The
5 2013 CAO also requires Defendants to turn a portion of the dairy site into a
6 conservation easement. Id. at 6-8 of the Settlement Agreement. The 2013 CAO notes
7 the Board’s conclusion that “N&M Dairy is a source of nitrate and total dissolved
8 solids (TDS) contaminants in groundwater that exceed Maximum Contaminant Levels
9 and adversely affect residential drinking water wells.” Id. at 1 of the Order (§ 3,
10 Discharge Findings).
11 Because the 2013 CAO left Plaintiffs’ harms unremedied, Plaintiffs filed this
12 lawsuit on March 5, 2014. Shortly thereafter, Plaintiffs filed a First Amended
13 Complaint, correcting the manner in which Plaintiffs had named the Trust as a
14 defendant.
15 Defendants filed a motion to dismiss in June 2014, asking the Court to abstain
16 from adjudicating the RCRA issue based on the Board’s administrative actions under
17 the 2013 CAO. Defendants also argued that the Board had primary jurisdiction over
18 the RCRA issue and that the Court should decline to exercise supplemental jurisdiction
19 over the state tort claims if it abstained from presiding over the RCRA claim. The
20 Court denied Defendants’ motion to dismiss in August 2014, finding that there was no
21 grounds for abstention; that the Board’s enforcement actions were not brought under
22 RCRA and did not address Defendants’ potential liability under RCRA; that the
23 federal courts were the sole courts with jurisdiction over Plaintiffs’ RCRA claim; and
24 that exercise of supplemental jurisdiction over the state tort claims was appropriate.
25 See Ex. 5, Order Denying Defendants’ Motion to Dismiss. Defendants subsequently
26 answered Plaintiffs’ complaint. Ex. 6, Plaintiffs’ Second Amended Complaint, and Ex.
27 7, Defendants’ First Amended Answer, the operative pleadings.
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PLAINTIFFS’ MEDIATION BRIEF
 1 Discovery is underway. Plaintiffs engaged in the first phase of a proposed two-
2 phase site inspection in July 2014 and seek to complete Phase Two of their inspection
3 this June 2015. The parties exchanged Fed. R. Civ. P. 26(a) initial disclosures in late
4 January 2015 and embarked on a first round of written discovery. Plaintiffs responded
5 earlier this month; Defendants’ responses are not yet due. Expert witnesses must be
6 designated by August 31, 2015; discovery closes October 26, 2015; and trial is set for
7 February 23, 2016.
8
9 IV. Liability under RCRA and California tort law
10 A. RCRA Liability
11 Defendants are liable under RCRA if they have contributed to the “past or
12 present handling, storage, treatment, transportation, or disposal of any solid or
13 hazardous waste which may present an imminent and substantial endangerment to
14 health or the environment.” 42 U.S.C. § 6972(a)(1)(B). RCRA defines “solid waste”
15 as “any garbage, refuse, sludge from a waste treatment plant…and other discarded
16 material, including solid, liquid, semisolid, or contained gaseous material resulting
17 from…agricultural operations….” 42 U.S.C. § 6903(27). Manure and its constituents
18 are a “solid waste” within the meaning of RCRA when they contaminate groundwater
19 due to improper storage and disposal methods. See Cmty. Ass'n for Restoration of the
20 Env't, Inc. v. Cow Palace, LLC, No. 13-CV-3016-TOR, 2015 WL 199345, at *36-9
21 (E.D. Wash. Jan. 14, 2015) (holding that manure applied “without regard to
22 fertilization needs,” or stored on permeable surfaces, including unlined lagoons and
23 manure or manure compost stored on permeable soils, constitutes a “discarded
24 material” under RCRA and becomes a “solid waste” when it leaves the bounds of the
25 property). Below, Plaintiffs provide some examples of improper storage and disposal
26 at Defendants’ facility.
27
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PLAINTIFFS’ MEDIATION BRIEF
 1 1. Excess manure produced
2 Like all industrial dairy CAFOs, N&M Dairy generated a significant amount of
3 solid and liquid manure waste. For example, in 2010, N&M Dairy confined
4 approximately 4,500 cows and heifers, which according to the Board, produced at least
5 15,600 tons of manure annually. Ex. 3, CAO 2010-0029 at 2.6 Defendants’ facility was
6 not equipped to handle this much waste, as their then-400 acres of cropland could only
7 use 1,440 tons of manure per year. Ex. 3, CAO 2010-0029 at 2. Board inspection
8 records document that this excess manure was simply left on the property in large
9 piles, in animal pens, strewn throughout the property, and left to decompose in various
10 impoundments. See, e.g., Ex. 2 (March 26, 2009 and Jan. 7, 2010 inspections). With
11 respect to the manure Defendants did apply to their cropland, their applications vastly
12 exceeded agronomic rates, thereby further contributing to groundwater contamination.
13 See, e.g., id.; see also Ex. 3, 2010-0029-A1 at 3 (overapplied manure by approximately
14 14,000 tons); Ex. 8, Jan. 11, 2010 Self-Monitoring Report at 2 (determined that the
15 facility overapplied manure from 7/1/2009-12/31/2009); Ex. 12 at 11 (Jan. 17, 2013
16 inspection) (“Two to three feet deep more than an acre area filled with manure… This
17 area is owned by N&M Dairy.”). These are just a sampling of the records documenting
18 Defendants overapplications.
19 2. Inadequate and substandard manure storage impoundments
20 As confirmed by numerous Board inspections, Defendants stored the liquid
21 manure waste in up to five unlined lagoons, impoundments of questionable capacity
22 and structural integrity.
23 Nearly a decade ago, the Defendants filed an Engineered Waste Management Plan
24 with the Board confirming their proposal to line their lagoons with an impermeable
25 plastic liner. Ex. 13 Nolte Correspondence (Oct. 21, 2002 and July 2, 2003). Plastic
26
6Note that “other support stock” and their manure are not included in the Board’s estimates, making the
27 Defendants’ manure management issues even more problematic.
28 11
PLAINTIFFS’ MEDIATION BRIEF
 1 liners minimize seepage of manure constituents into the soil and groundwater. 7
2 Defendants did not follow their own plan, and in 2011 Defendants were ordered to
3 install plastic or impermeable liners in new or modified lagoons. Ex. 3, CAO 2011-
4 0056 at 6. Defendants collected close to 30 millions gallons of waste and wash water
5 annually. Ex. 1 § 2.2 at 9; Ex. 14 Board, Inspection Forms, Regulatory Measures, and
6 Communications (May 22, 2012) (Aug. 8, 2011) (Aug. 5, 2011). Defendants’ own
7 CNMP indicates that its manure storage capacity is “NOT ADEQUATE” and is
8 “inadequate.” See, e.g., Ex. 1 at § 2.8. Board inspections repeatedly found that
9 Defendants operated their lagoons at or above capacity until the lagoons overflowed,
10 causing manure to spill onto the bare ground. See, e.g., Ex. 2, July 7, 2011, Inspection
11 Report at 3-6; see also CAO No. R6V-2011-0056 at 4 (noting that “[t]he dairy does
12 not have adequate storage [in its lagoons], and some of the ponds are discharging into
13 the adjacent area, which is very permeable, thus creating nuisance conditions and a
14 potential for groundwater degradation”). Inability to manage manure capacity could
15 also have led to nonagronomic applications. See, e.g., id. at 16 (“overapplication of
16 manure on bare land”). Board inspections also identified structural problems with
17 Defendants’ lagoons, and a 2011 CAO specifically addressed liners, design, and
18 integrity issues. See, e.g., Ex. 2, July 7, 2011, Inspection at 10 (“berm is not
19 constructed to engineering standards… and berm is leaking…” and adjacent pond is
20 “[n]ot constructed properly”); Ex. 12 (Jan. 17, 2013 Inspection at 3) (“connection
21 between two ponds”); Ex. 3 CAO 2011-0056 at 6.
22
23
7 U.S. Department of Agriculture National Resource Conservation Service (USDA NRCS) standards
24 recommend that manure lagoons should not be constructed above an aquifer that serves as a domestic water
supply. NRCS provides publishes voluntary best practices standards including, for example, waste storage
25 facility construction (NRCS Standard 313), waste treatment lagoon construction (NRCS Standard 359), and
nutrient management standards (NRCS Standard 590). Defendants’ 2011-2012 Nutrient Management Plan
26 was certified by NRCS-certified planners and by the Defendants; however, the evidence indicates that these
NRCS practices were not followed by Defendants in their day-to-day dairy operations nor in their manure
27 disposal methods.
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 1 In addition to the more permanent lagoons, Defendants also constructed
2 “temporary” ponds that were constructed with “no engineering standards” and no
3 drainage system for overflow. See e.g., Ex. 2, July 28, 2010, Board Enforcement
4 Action, citing Defendants for installing “two [n]ew ponds with no clay lining … one of
5 the ponds was full with less than 3 inches of freeboard.” Ex. 2, July 7, 2011,
6 Inspection Report at 4-5 (newly constructed ponds overflowing into the Mojave
7 River).
8 Defendants stored close to 100,000 tons of manure on site in large uncovered
9 stacks located on the bare ground. Ex. 1, N&M Dairy Comprehensive Nutrient
10 Management Plan (“CNMP”) § 2.2 at 9. During several 2009 inspections, the Board
11 found manure piles “all over the site” See, e.g., Ex. 2 Inspections on 1/7/2009,
12 3/26/2009, and 6/23/2009. In 2010, the Board observed that Defendants had taken no
13 measures to stop the manure from seeping into the ground. Ex. 3, CAO No. R6V-
14 2010-0029, at 3. This continued until the dairy’s closing. See, e.g., Ex. 12 (Jan. 17,
15 2013 at 1-2) (stockpiled manure in cow pens taller than a cow); (Feb. 19, 2013 at 1)
16 (compost piles without runoff controls). Storing manure in piles on permeable soils
17 with no design to catch leaching or precipitation ponding creates a pathway for
18 discharge of contaminants into groundwater.
19 From Plaintiffs’ evaluation of the records to date, and the July 2014 site visit, it
20 appears that Defendants never installed the promised plastic liners, redesigned the
21 lagoons, addressed lagoons’ capacity issues, nor addressed stockpiled manure and
22 never addressed nor abated the contamination that these practices caused.
23 3. Overapplication of manure
24 Defendants also over-applied manure to their crop fields. Fertilizing crops is a
25 beneficial way to safely use manure only if the amount applied is limited to the
26 appropriate agronomic rate. Factors that must be considered in determining the
27 agronomic rate for a particular parcel of cropland can include: (1) residual nitrate in
28 13
PLAINTIFFS’ MEDIATION BRIEF
 1 the soil from the prior years’ manure applications, (2) nitrate content of the manure,
2 wastewater, or other substance being applied, (3) method of application of manure, (4)
3 phase of the crop in its growing cycle, and (5) crop yields. Ex. 1, CNMP at §§ 6.5 to
4 6.8. The evidence indicates Defendants likely exceeded agronomic rates for
5 application of manure to their fields, thereby further contributing to groundwater
6 contamination.
7 When manure is over-applied to crops, stockpiled on bare land without barriers,
8 and stored in unlined lagoons to the point of overflowing, soil can become over-
9 saturated with nutrients, including nitrates, and those nutrients then descend into the
10 soil below the root zone, where they are destined to reach groundwater. Once the
11 nitrate has leached into the water table, it will follow the groundwater flow and migrate
12 from the source of the contamination into the water sources of nearby residents.
13 The aquifer under Defendants’ dairy is contaminated, and there should be no
14 dispute that Defendants’ operations and manure management practices contributed to
15 this contamination. 8Groundwater samples taken by the Board, by Defendants’
16 consultants, and by Defendants from at least 2004 to 2012, show elevated levels of
17 nitrates on dairy premises and in downgradient residential wells. See, e.g., Defendants’
18 Groundwater Monitoring Reports (Ex. 8 at 18-24; and Ex. 15 at Table 2 (Jan. 8, 2012
19 Groundwater Monitoring Report). In 2013, Defendants’ agent stated “Despite
20 numerous efforts made over the past several years… [n]itrate and TDS concentrations
21 in the various site monitoring wells have not shown a decreasing trend.” Ex. 15 at 5
22 (Feb. 1, 2013 Groundwater Monitoring Report for Second Half 2012). Meanwhile,
23 samples taken from wells that are upgradient from N&M Dairy show low levels of
24 nitrate. See, e.g., Ex. 3, Board Investigative Order No. R6V-2010-0044 at 2; Ex. 8 at
25
8Under RCRA, a plaintiff has met the legal standard for causation if it proves, by a preponderance of the
26 evidence, that a defendant “has contributed” or “is contributing …” to disposal which “may present an
imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1)(B) (emphasis
27 added). Plaintiffs need not prove “but for” nor “substantial factor” causation to prevail on a RCRA claim.
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PLAINTIFFS’ MEDIATION BRIEF
 1 18 (chart of historical self-monitoring results from monitoring wells at N&M Dairy).
2 Such data supports the inevitable conclusion that N&M Dairy contributes to the local
3 groundwater contamination.
4 Additionally, pursuant to LRWQCB order, Defendants have been monitoring
5 residential wells and paying to have bottled water delivered to residents with wells that
6 test over the EPA MCL for nitrates or TDS, for approximately three years. This is
7 further evidence that Defendants’ dairy operations and mismanaged site are the
8 primary, if not only, contributor to the nitrate contamination in the area’s groundwater
9 basin.
10 In 2010, the Water Board required Defendants to remove all excess manure
11 from the property by January 17, 2012.See Ex. 3 at CAO R6V-2010-0029-A2.
12 Defendants failed to do so, and this was one of the violations that led to the 2013 CAO
13 and settlement. See Ex. 4 at 2. Defendants ceased active dairy operations and removed
14 their herd from the property in July 2013. As of July 2014, all but one of the lagoons
15 had been drained. But manure remained on the property, and Plaintiffs believe that
16 substantial excess manure remains on the property to this day. Plaintiffs are unaware of
17 efforts by Defendants to plant new crops and churn the soil so as to alleviate the nitrate
18 burden. Without adequate remediation, which has neither been undertaken by
19 Defendants nor ordered by the Water Board, the soil and water will remain
20 contaminated for at least 70 years, and more likely well over 100 years.
21 The continued existence of this contamination constitutes an imminent and
22 substantial endangerment to public health and the environment. As set forth above,
23 scientific research shows that exposure to nitrates over time has negative health
24 consequences even below the EPA permissible limit of 10 mg/l. Additionally,
25 contamination of an aquifer in an arid region, in a drought ridden state, endangers the
26 environment, as does infiltration of manure through the soils.
27
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 1 B. Liability for nuisance and trespass
2 In this case, Plaintiffs will have no trouble establishing that Defendants’
3 misconduct with respect to their herd and the herd manure at N&M Dairy caused
4 significant and appreciable harm to each of the plaintiffs in the ways contemplated by
5 California’s trespass and nuisance laws.
6 Trespass is the unlawful interference with an owner’s or occupant’s possessory
7 interest in property, by unauthorized entry. Capogeannis v. Sup. Ct. (1993) 12
8 Cal.App.4th 668, 674. To establish their claim of trespass, Plaintiffs need only prove,
9 by a preponderance of evidence, that they owned or occupied their respective
10 properties; that Defendants’ negligent, reckless, or intentional misconduct caused flies,
11 particulate, or contaminants to enter their properties; and that plaintiffs did not give
12 their permission for the entry. To recover damages, Plaintiffs must also show that they
13 were harmed and that the Defendants’ conduct was a substantial factor in causing the
14 harm. See, e.g., California Civil Jury Instructions (CACI) 2000; Armitage v. Decker
15 (1990) 218 Cal.App.3d 887, 905-906. A trespass may be on the surface of land, above
16 it, or below it. Martin Marietta Corp. v. Ins. Co. of No. Amer. (1995) 40 Cal.App.4th
17 1112, 1132.
18 Nuisance is interference with a person’s interest in the private use and
19 enjoyment of property. Capogeannis, supra, 12 Cal.App.4th at 674. To establish
20 nuisance, Plaintiffs must show that Defendants, by acting or failing to act, created a
21 condition that Plaintiffs did not consent to, on property owned or occupied by
22 Plaintiffs, that was harmful to health, indecent or offensive to the senses, or obstructed
23 Plaintiffs’ free use of the property, so as to interfere with Plaintiff’s comfortable
24 enjoyment of life or property. This interference must be such that an ordinary person
25 reasonably would be annoyed or disturbed by it. Plaintiffs also must show that
26 Defendants’ conducted was a substantial factor in causing this harm and that the
27 seriousness of the harm outweighs the public benefit of Defendants’ conduct. See Cal.
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PLAINTIFFS’ MEDIATION BRIEF
 1 Civil Code § 3479; Koll-Irvine Center Property Owners Assn. v. County of Orange
2 (1994) 24 Cal.App.4th 1036, 1041; CACI 2021.
3 Here, the flies’ wrongful and unauthorized entry into Plaintiffs’ homes stemmed
4 directly from Defendants’ mismanagement of N&M Dairy. See Ex. 3 CAO No. R6V-
5 2011-0056, at 3-4; see also Ex. 9 (complaints by neighbors to Water Authority). The
6 flies left behind a sticky, brown residue on every surface of Plaintiffs’ homes. This
7 residue dotted Plaintiffs’ windows, walls, fixtures, appliances; it ruined shower
8 curtains and paint. This, in turn, forced Plaintiffs to perform excessive cleaning.
9 Plaintiffs suffered endless annoyance and discomfort as a result. In terms of
10 interference with enjoyment of life and property, a juror will readily understand, from
11 personal experience, the degree to which a mere handful of flies compromises the
12 enjoyment of a single outdoor dining experience. When the jurors hear about the daily
13 inconvenience, discomfort, and disgust that Plaintiffs suffered while confronting
14 seemingly endless swarms of flies in their homes, their cars, and elsewhere on their
15 properties, the question for the jury will not be whether Defendants are liable for
16 trespass and nuisance but how much it would take fairly compensate Plaintiffs for their
17 years of relentless suffering.
18
19 V. Injuries and damages
20 A. RCRA Relief
21 RCRA Plaintiffs seek a permanent solution to their water contamination
22 problem—a solution that restores the integrity of the Middle Mojave River Valley and
23 does not leave Plaintiffs’ access to clean drinking water at the mercy of Defendants
24 and their bottled water delivery company. Under RCRA, Defendants must eliminate
25 any present or future endangerment by ensuring that their land will be managed in a
26 way that minimizes future impacts to the groundwater and that affected parties will
27
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PLAINTIFFS’ MEDIATION BRIEF
 1 have access to a reliable, independent source of clean drinking water until the
2 groundwater basin returns to a healthful state.
3 Accordingly, Plaintiffs’ RCRA claim asks for the following from Defendants:
4 • That they cease all activities constituting imminent and substantial
5 endangerment to public health and the environment;
6 • That they cease storing manure on any portion of land that Defendants have not
7 first adequately lined with synthetic liners;
8 • That they capture, adequately treat, and sequester all contaminated soil, surface
9 water, and groundwater within their land, so that discharges of such water do not
10 contribute to violation of any applicable water quality standards in any water
11 resource that receives such discharge; 9
12 • That they fund an independent, comprehensive, scientific study to determine the
13 precise nature and extent of endangerment and harm caused by their manure
14 mismanagement at the Dairy, including a detailed examination of the fate and
15 transport of solid waste from the facility to the waters and soils of the
16 surrounding area, and from the water and soils to biological receptors;
17 • Once the study is complete, that they fund an additional study of appropriate,
18 effective, environmentally-sound means to eliminate the endangerment and
19 harm caused by their nitrate contamination and develop and implement an
20 appropriate and effective soil and/or groundwater remediation plan based on the
21 results of both studies; and
22 • That they provide an adequate, independent, and reliable source of clean, safe
23 drinking water to residents who rely on well water for consumption and for
24 other domestic uses.
25
26 9This includes regular and accurate sampling of nutrients and soils, growing crops to assist in cleaning the
soil, applying cleaner waters to flush the soil of nitrates, excavating compacted manure or leachate areas, and
27 using a combination of bacteria and plants to dissipate the nitrates currently in the soils.
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PLAINTIFFS’ MEDIATION BRIEF
 1 Plaintiffs understand that the purpose of mediation is resolution through
2 compromise and are open to hearing Defendants suggestions for how to address the
3 environmental harms at issue.
4 With respect to clean drinking water, Plaintiffs have begun to evaluate options. One
5 feasible solution is to connect Plaintiffs’ properties to the Silver Lakes Homeowners
6 Association’s existing community water system. This would require excavating and
7 installing a piping network that connected the aggrieved Plaintiffs’ properties to a
8 verified potable water system. Another option is for Defendants to fund the
9 construction of a community well for Helendale residents whose properties currently
10 draw their water supply from individual wells on their respective premises. Such a well
11 would be installed outside of the plume migration. Defendants would be required to
12 pay for the piping to connect RCRA Plaintiffs (current and future) to the well, while
13 those plaintiffs whose wells are outside the plume and plume migration could elect to
14 pay themselves to connect to the well.
15 B. Trespass and Nuisance Claims
16 Each Plaintiff has suffered significant harm as a result of each Defendant’s acts
17 and omissions with respect to manure mismanagement, mismanagement of dairy
18 operations, and misrepresentations to LRWQCB and other government officials
19 regarding Defendants’ efforts and intentions to improve conditions at the dairy site.
20 1. Special damages
21 Many of the plaintiffs have incurred out-of-pocket expenses to combat the fly
22 infestations in their homes, as well as losses resulting from damaged or ruined property
23 from the flies and fly residue. Nearly all of the adult plaintiffs have spent hundreds if
24 not thousands of dollars on insecticides and other methods of pest control, as well as
25 cleaning equipment and products to address the fly and pesticide residues that
26 continually covered surfaces inside their homes. Additionally, some of the plaintiffs
27 with pets have incurred costs related to alleviating the suffering that the flies have
28 19
PLAINTIFFS’ MEDIATION BRIEF
 1 caused their animals. These actual losses will be established primarily through
2 testimony; however, a few documents supporting the special damages claims of the
3 respective plaintiffs also exist. Attached as Exhibit 10 is a chart of the plaintiffs who
4 are claiming special damages at this time and the amount claimed, for purposes of
5 mediation and based on the evidence marshaled to date. To the extent supporting
6 documentation exists, it is included in the same exhibit.10
7 2. General damages
8 Plaintiffs seek damages to redress their years of suffering as a result of having to
9 live with the near-constant annoyance and discomfort brought about by fly swarms on
10 their properties. Although these damages will be assessed on an individual basis,
11 Plaintiffs all suffered in similar ways, including:
12 • In an effort to minimize the number of flies that entered their homes,
13 Plaintiffs avoided entering and leaving their homes normally and leaving
14 doors and windows open. The Grays and the Blackwoods stopped using
15 their front doors, because the sunny side of their houses attracted more
16 flies, and the Sprowl, Ratican, and Decker/Silva children were scolded
17 when they left a door open or tried to go in and out of the house too
18 frequently.
19 • None of the Plaintiffs could comfortably entertain guests. They either
20 dramatically cut back on inviting friends and family over to visit or
21 stopped entertaining altogether. The Morrisons gave up their weekly
22 poker game, Dallas Whitton stopped hosting an annual Memorial Day
23 weekend celebration, and the Blackwoods sought out distant venues to
24 host events such as graduation and birthday parties.
25
26
10Not all of the Plaintiffs’ special damages have been calculated as of this time, so this amount may increase
27 to conform to proof as adduced through Plaintiffs depositions or if additional documentation is located.
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PLAINTIFFS’ MEDIATION BRIEF
 1 • Plaintiffs could not enjoy the outdoors. The Ervins stopped using their
2 swimming pool, the Blackwoods got rid of their above ground pool, and
3 everyone either stopped barbecuing or barbecued far less frequently. Mrs.
4 Blackwood, Susan and Shawna Gray, Mrs. Morrison, and Mrs. Romero
5 stopped gardening, and the Morrisons abandoned their plans to add an
6 outdoor kitchen after partially building it.
7 • Plaintiffs could not enjoy their meals, could not leave food or drinks
8 uncovered, and often threw out food because flies had penetrated
9 packaging. Plaintiffs could not leave dishes out to dry; if they did, they
10 would have to re-wash the same dish or glass immediately before using it,
11 out of concern for the bacteria and other contaminants from flies landing
12 on them in the interim.
13 • Plaintiffs have spent excessive amounts of time cleaning up dust and
14 particulate, fly and other vector carcasses, and fly excretions from inside
15 their homes, garages, and cars. The Blackwoods, the Morrisons, the
16 Snells, the Sprowls, the Whittons, and the Romeros all have repainted
17 their walls to cover up fly residue and damage from scrubbing. The
18 Blackwoods and the Morrisons ultimately painted their walls a light
19 brown, to better hide the fly residue that no amount of cleaning seemed to
20 get rid of. Fly residue and pesticide residue on the surfaces of Plaintiffs’
21 homes has and continues to be a constant source of frustration, disgust,
22 and concern over these potentially unhealthy conditions.
23 • Fly bites, noxious emissions, and terrible odors that sometimes invaded
24 their properties have caused Plaintiffs discomfort, annoyance, and
25 distress. Often in the early morning hours, a powerful stench would
26 permeate Plaintiffs’ homes, even waking them from their sleep. It could
27 be hours before the smell dissipated. Also, periodic fires erupted at the
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PLAINTIFFS’ MEDIATION BRIEF
 1 dairy site, which filled the air with smoke and the smell of burning
2 manure. Plaintiffs have suffered headaches; bloody noses; allergy-like
3 symptoms; burning and soreness in their eyes, noses, and throats; and
4 difficult breathing.
5 • Extensive worry and concern about vector-borne illness, bacteria, and
6 other contaminants, and about the health and comfort of their family
7 members and their pets, have contributed to Plaintiffs’ loss of enjoyment
8 of life as a result of the flies.
9 Additionally, as to those Plaintiffs whose wells are contaminated, the potential
10 negative health consequences of bathing themselves and their children and
11 grandchildren in contaminated water has caused Plaintiffs distress. They also worry
12 about whether there will be enough clean water from one day to the next, and whether
13 one day the bottled water will simply stop coming.
14 General damages are difficult to quantify, but the degree and the extent of the
15 plaintiffs’ suffering, over an extended period of time, will be evident to the jury when
16 Plaintiffs tell their personal accounts of what they have lived through, as a result of the
17 Defendants’ misdeeds. Verdicts and settlements reached in other CAFO-related
18 trespass/nuisance cases have yielded compensatory damage awards ranging from
19 $80,000 for a family of five to $2.4 million for a couple, with numerous individual
20 awards in the $100,000 to $825,000 range. See Ex. 16. Plaintiffs’ counsel are familiar
21 with the nuisance conditions that existed in most of these cases and feel confident, in
22 light of the pervasive, severe, and extended nature of the fly and odor problems that
23 Plaintiffs suffered here, that the individual awards in this case will likely be on the
24 higher end of this range.
25 3. Punitive damages
26 In addition to the compensatory damages described above, this case is ripe for a
27 sizable punitive damages award against Defendants. Defendants’ conduct has been
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PLAINTIFFS’ MEDIATION BRIEF
 1 undeniably egregious: Defendants received at least four official CAOs and
2 Investigative Orders detailing exactly how Defendants’ manure management was
3 causing nuisance conditions and groundwater contamination that ruined the
4 neighboring community’s sole source of drinking water. Yet despite these notices,
5 Defendants continued to violate provisions of the California Civil Code, California
6 Health & Safety Code, California Water Code, and prior Board Orders. Defendants
7 refused to correct violations noted by the Board and by Vector Control. For years,
8 Defendants refused to change N&M Dairy’s manure management procedures, as
9 needed to bring N&M Dairy into compliance with the law and with Defendants’ own
10 Nutrient Management Plans. Defendants persisted in this willful misconduct for years
11 after learning of the unlawful and harmful nature of their acts and omissions.
12 Defendants’ conscious disregard for the rights and health of their neighbors is
13 documented in LRWQCB records and will undoubtedly emerge even more clearly as
14 witnesses are deposed. For example, during a September 2012 Board inspection, Neil
15 DeVries met Board Inspectors Jay Cass and Ghasem Pour-Ghasemi at the location of a
16 lagoon that had breached and was flowing into the Mojave wash. Mr. Pour-Ghasemi
17 explained that the lagoon breach constituted a violation. Mr. DeVries stated that “this
18 area … ain’t that bad,” and the water was fine to drink because “the cows haven’t died
19 from it.” When Mr. Pour-Ghasemi stated that the Board had determined that Mr.
20 DeVries’ manure mismanagement was the source of the neighbors’ groundwater
21 contamination, Mr. DeVries accused Mr. Pour-Ghasemi of encouraging “people down
22 the road who don’t have anything to do” to complain “because you can get blue babies
23 out here.” He disparaged the “folks who complain about shit” and went on to say, with
24 respect to properly managing his wastewater, that “even if I had the money I wouldn’t
25 do it anyway.” Ex. 2 (LRWQCB Inspection Report dated Sept. 12, 2012.)
26 When the Board later demanded that Defendants provide bottled water within 48
27 hours to any resident that had well water which tested above the MCL for nitrates,
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PLAINTIFFS’ MEDIATION BRIEF
 1 because of the obvious potential health effects, Defendants Neil and Mary DeVries
2 stated that their bottled water provider comes once every two weeks and is not willing
3 to make an extra trip for one or two residents. Defendants then requested that the
4 Board extend the 48-hour time requirement to a two-week time requirement, so that
5 Defendants would not incur additional costs. The Board agreed to Defendants’ request,
6 leaving residents exposed to contaminated water for up to two weeks before they
7 receive bottled water. See Ex. 3 CAO R6V-2011-0055-A1 at 3.
8 In short, each time Defendants were faced with an opportunity to address the
9 public health endangerment that they had created, they willfully failed or refused to do
10 so. Punitive damages are therefore appropriate here.
11
12 VI. Risk/exposure
13 A. Fees and costs
14 If this case does not resolve at mediation, costs will mount for both sides.
15 Dozens of depositions will have to be taken, and substantial expert work performed,
16 before the case reaches trial. Although RCRA does not provide for monetary damages,
17 if Defendants lose on this issue at trial, Plaintiffs will likely be awarded attorneys and
18 expert fees and costs incurred pursuant to RCRA’s fee shifting provisions. Over the
19 course of two years of litigation and through trial, this amount will be substantial.
20 Plaintiffs’ risk of losing at trial is minimal. 11 Records obtained from the Board,
21 including testing performed by Defendants’ own consultants, establish that Defendants
22 bear primary responsibility for contaminating the local groundwater supply.
23 Defendants cannot prevail on the argument that Board action or the closure of the
24 Dairy moots their liability under RCRA for several reasons. First, the Court already
25
11Even if Plaintiffs entirely lost on their RCRA claim, Plaintiffs are not likely to be required to pay
26 Defendants’ attorney and expert fees and costs, as traditionally courts only require Plaintiffs to do so where
there is substantial evidence that the claim was frivolous. For the reasons set forth herein, there is no question
27 that Plaintiffs’ claim has merit.
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 1 denied the motion to dismiss brought by Defendants on the basis that the Board actions
2 mooted Plaintiffs’ claims. Second, there is no dispute that the groundwater continues
3 to be contaminated, nor that manure remains at the N&M Dairy site, making the
4 environmental and public health dangers still present, substantial, and imminent. Third,
5 Defendants have not complied with the requirements imposed on them by the 2013
6 CAO: manure remains on N&M Dairy land, no conservation easement has been
7 granted, and Plaintiffs receiving bottled water have suffered a series of service gaps.
8 Most recently, the Romero, Fritz, and Piña households did not receive bottled water
9 delivery for approximately six weeks in December and January of this past winter.
10 When delivery resumed, the Piña family got only two-thirds of what they were getting
11 previously (8 five-gallon bottles instead of 12, intended to last until the next biweekly
12 delivery). This inadequate supply continued for the next six weeks, until Plaintiffs’
13 counsel brought it to Defendants’ counsel’s attention, and then delivery resumed with
14 11 five-gallon bottles. Clearly, bottled water delivery at Defendants’ whim is not a
15 satisfactory remedy.
16 B. Insurance coverage
17 Plaintiffs do not anticipate any coverage issues, other than the potential conflict
18 that may develop, as testimony is recorded, arising out of the very real threat of a
19 sizable punitive damages award that Defendants would be personally responsible for.
20 If early resolution is not achieved, Cumis counsel will be required, substantially
21 increasing defense costs.
22
23 VII. Conclusion
24 Plaintiffs understand that Defendants have sold their herd and have closed the
25 Dairy’s operations at the Lords Road location. However, simply selling its cows and
26 “closing shop” does not eliminate the pollution embedded deep in the soil and the
27 aquifer, nor does it absolve Defendants from liability under RCRA or for
28 25
PLAINTIFFS’ MEDIATION BRIEF
 1 compensatory and punitive damages for nuisance under California common law. The
2 contamination, and thus the imminent and substantial endangerment to human health
3 and the environment from Defendants’ operations, persists.
4 Plaintiffs proceed to mediation cognizant of Defendants’ business closure and of
5 the substantial additional time, effort, and expense involved in proceeding through
6 trial, while at the same time cognizant of Defendants clear liability and the huge risk
7 that Defendants face if this case proceeds. Plaintiffs are prepared to negotiate
8 reasonably and in good faith to try to reach a mutually agreeable plan for settlement at
9 this time.
10
11 Date: April 3, 2015 SIMMONS HANLY CONROY LLC

12
By
13 :
Deborah R. Rosenthal
14 Attorneys for Plaintiffs
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