Judge Refuses to Dismiss Border Pollution Lawsuit

SAN DIEGO (CN) – Finding the federal agency tasked with diverting polluted Mexican waters from fouling San Diego beaches does not have sovereign immunity to dodge a lawsuit alleging Clean Water Act violations, a federal judge Tuesday denied dismissal of the groundbreaking case.

U.S. District Judge Jeffrey Miller suggested at a court hearing last month more discovery was needed in the novel case brought by the Surfrider Foundation, cities of Imperial Beach and Chula Vista and the San Diego Unified Port District against the federal operator of wastewater infrastructure along the U.S.-Mexico border which has allegedly allowed sewage and pollutants from Tijuana, Mexico to foul U.S. waters.

Miller confirmed that suggestion in Tuesday’s order finding at this stage, the case could not be dismissed.

Attorney Matt Edling of Sher Edling in San Francisco, representing the cities and port district, said in an interview that Tuesday’s order couldn’t be timelier to underscore the importance of the litigation: the U.S. Section of the International Boundary and Water Commission, USIBWC, announced Tuesday six to seven million gallons of sewage a day from Tijuana, Mexico has breached the infrastructure intended to treat it and is now flowing into the Tijuana River and Estuary out to the Pacific Ocean.

“Our lawsuit is intended to prevent those types of spills from occurring and to get the IBWC to capture, control and treat those types of incidents,” Edling said.

“The court’s analysis of the United States’ attempts to avoid liability for violating the U.S. Clean Water Act laws were summarily denied,” he added.

Miller ruled Tuesday on multiple motions to dismiss the litigation, finding in the case brought by Surfrider against the USIBWC the question of whether the claim for Clean Water Act violations will affect or impair the 1944 Treaty between the U.S. and Mexico which created the binational International Boundary and Water Commission to settle disputes “cannot be answered by the pleadings or evidence before the court.”

“USIBWC fails to present sufficient evidence for the court to find that compliance with the [Clean Water Act] would affect or impair the 1944 Treaty,” Miller wrote in his 10-page order.

Surfrider attorney Margaret “Peg” Warner with McDermott Will & Emery of Washington said in a statement: “This case is not only important for Surfrider’s members, but for all residents of the San Diego region who cherish the Tijuana River wetland, and clean surf and beaches.  We are so grateful that the border pollution issues in this matter will receive the careful attention they deserve.”

In a second 25-page order Tuesday on the case brought by the cities and port district, Miller partially dismissed some of their claims but found the municipalities properly provided notice of their intent to sue the USIBWC for alleged pollution discharges.

“The ultimate harm alleged as a result of these actions is the discharge of waste and pathogens from the canyon collectors and flood control conveyance during high flow events. The [Notice of Intent] discusses this discharge of waste in detail and, like the [second amended complaint], states that the waste eventually reaches the Tijuana River, Estuary, and Pacific Ocean where human exposure is likely,” Miller wrote.

However, the Miller found the court does not have jurisdiction over additional claims in the second amended complaint which claimed “dried and waste-laden sediment” could be carried by the wind.

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