By Mark Waite
Utilities Inc. of Central Nevada simply agreed to abide by all state regulatory requirements by the Nevada Division of Environmental Protection, to settle a class action lawsuit up for approval by Senior Judge Miriam Shearing Jan. 11.
Both sides claimed a victory in the settlement agreement. Richard Cantino, Blair Childs and Ed Dodd signed on as plaintiffs to the suit filed Nov. 17, 2010.
The plaintiffs wanted a judgment declaring UICN illicitly discharged untreated or inadequately treated human fecal coliform from sewer plant No. 3 into the ponds at Willow Creek in violation of a number of local, state and federal laws and a court order enjoining the utility from doing so.
The plaintiffs’ attorney, Matthew Callister, sought to attract other property owners around the former golf course to join the suit.
The case involved a review of NDEP files for discharges from the sewer plant and retaining an expert engineer to review those files. Experts from NDEP and the Public Utilities Commission gave depositions, along with the Utilities Inc. of Central Nevada sewer plant operator and regional director. A couple of Nye County Commissioners also gave depositions.
The wording of the settlement states: “After an extensive exchange of information and discovery, plaintiffs and UICN agreed to a judgment to resolve this case that, if approved by the court, will result in dismissal of plaintiffs class action claims in this case and provide a final resolution of all class action claims raised. Such dismissal will release UICN from future liability for the acts and practices complained of.”
It adds, “UICN continues to deny all allegations of wrongdoing and denies liability to plaintiffs. UICN vigorously maintains that it has valid defenses to all claims raised in the case, that evidence revealed in discovery proved UICN never dumped raw sewage into the Willow Creek golf course pond and that UICN would prevail if the litigation were to proceed.”
The court didn’t rule on the merits of the plaintiffs’ claims or the utility company’s defense. Both parties weighed the cost of the litigation against the benefits and considered it desirable to resolve the class action claims, the agreement adds.
Neither UICN nor the plaintiffs are requesting an award of attorneys fees or expenses.
“They agreed they will never, ever, ever, do what we claimed they have done,” Callister said. “The bottom line is we stipulated to the court it will be reduced to a judgment promising they will never release sewage.”
The plaintiffs won’t receive a dime from Utilities Inc. but Cantino said it was never about the money.
“Initially all we ever wanted was a court injunction to prevent them from doing what they were doing any more. Later on it came to the point where the only way we could go to court is if we asked for money. It was never about money. We got exactly what we wanted,” Cantino said.
Callister’s court filings said each plaintiff should’ve been entitled to damages in excess of $20,000 for a decrease in property values, damages in excess of $40,000 for suffering the loss of enjoyment and use of their property, while reserving the right to calculate more damages.
The lawsuit sought four claims for relief: a declaratory judgment UICN was illicitly discharging untreated or inadequately treated human fecal coliform into the Willow Creek ponds; injunctive relief to prevent further discharges; declaration of a public nuisance and negligence based on breach of duty not to discharge effluent with a fecal coliform level in excess of the maximum amount allowed by law.
UICN said the plaintiffs alleged 200 residents around Willow Creek golf course repeatedly complained of extraordinarily foul odors but didn’t provide evidence..
Utilities Inc. attorney Laura Granier responded the plaintiffs failed to state a claim upon which relief can be granted; the discharge of treated effluent is compliant with contracted and legal rights under a tri-partite agreement; the plaintiffs failed to exhaust administrative remedies; the plaintiffs lacked standing to prosecute certain claims; the plaintiffs couldn’t satisfy prerequisites to establish a class action; the plaintiffs didn’t identify certain classes of plaintiffs; there isn’t a controversy because UICN doesn’t assert a right to discharge raw sewage and has never done so; the allegations were made in bad faith; the acts weren’t the cause of the damage and the harm was caused by a third party.
Utilities Inc. spokesman Tom Oakley said the results of depositions of the plaintiffs’ witnesses gave them confidence they would win the case. He said UICN was trying to make it as painless as possible for the people that chose to move a meritless action forward in court.
“First and foremost we are reaffirming that we have never discharged, and will never discharge, untreated sewage from wastewater treatment plant No. 3 and that all state agencies responsible for regulating us agree on that,” Oakley said in a statement.
“Second, as we have said on this and many other matters, litigation is not our option of first choice so we are trying to expedite a conclusion in this matter. Prolonging the action assures continued incurring of costs that will impact all ratepayers in UICN’s system, not to mention the diversion of resources required to defend ourselves from spurious allegations.”
While Utilities Inc. agreed to eat the legal costs, Cantino wouldn’t say what legal fees the plaintiffs will have to pay.
Initially 38 people joined the class action suit, Cantino said. But he added, “during the deposition phase they threatened everybody with a lawsuit, most of them backed up right then and there. That’s another reason we chose to do what we did. Another reason was, if we won it, they would’ve appealed it and appealed it and appealed it.”
Oakley said UICN laid out a solution that didn’t cost anybody anything and completely exonerated his company.
“We’re also not going after anybody for our costs. We’re going to eat our costs on this,” he said. “There has never, ever been an instance where anyone has been able to ultimately say we’ve done something wrong. We just haven’t. That’s made very clear in the settlement agreement. There’s been a lot of accusations against UICN. Last I checked none of our people went to jail. Mr. Scott did. This is hopefully the end of it.”
Oakley referred to Jim Scott, owner of the former golf course, who was jailed for 21 days last month for refusing to comply with a court order to clean up the Willow Creek ponds.
UICN filed a motion Oct. 8 to strike the demand for a jury trial because that request was filed too late. The bench trial had been scheduled for Dec. 4-7 in 5th District Court. The case number is CV-31294.