More than 80 residents of a Cachagua mobile home park turned to the 6th District Court of Appeal in their quest to sue the county for failing to tell them for seven years that their water was contaminated with dangerous levels of naturally occurring fluoride.
If questions from the judges were any indication, the three-judge panel appearing in a special session at Monterey City Hall was sympathetic to the group’s pleas.
Deputy County Counsel Patrick McGreal argued that the county’s only legislative requirement is to make sure the operator of the water system at Jensen Camp conducts tests on the water quality and files reports to the county Health Department.
Justice Franklin Elia did not agree. Under state and federal law, he said, the county has “a responsibility to check and make sure the water is safe.”
“There’s no question this is a mandatory duty,” he said. “… This water is dangerous and if you fail in that duty, you should be sued.”
The residents of Jensen Camp sued the county and Rick Pinch of Jensen Camp Water Co. in 2004, one year after they learned by accident that their water was tainted.
The residents’ attorney, Brian Burchett of San Diego, told the appellate panel one of the residents went to the county in 2003 to complain about yellow water. A clerk opened the file on the property and said, “Oh crap” upon seeing that water-quality tests had shown fluoride contamination since 1995, he said.
The lawsuit against Pinch is still pending. Judge Kay Kingsley dismissed the case against the county in April 2006, ruling that the plaintiffs had not shown the county had a legal duty to protect their health. The plaintiffs appealed to the Sixth District.
In court Tuesday, McGreal argued the county’s only responsibility was to assist Pinch in meeting the “legislative intent” that he provide clean water to his customers.
“How, sir, are you going to do that when you don’t even look at the reports over four years?” Elia asked.
“What is (Pinch) supposed to do,” quipped Presiding Justice Conrad Rushing, “call back and say, ‘Did you see that (test result)?'”
Burchett, who was assisted in the case by Carmel Valley lawyer Richard Rosenthal, argued that state health and safety code and the Clean Water Act required the county to notify residents and force Pinch to retest the water on a quarterly basis.
In its arguments to Judge Kingsley, Burchett said, the county said it didn’t understand what the state meant in requiring the county to “review” water-quality reports submitted by Pinch and other system operators.
“All the county has to do is look at the side of the page that has printing on it and they will see the fluoride count at Jensen Camp was four to five times what it was supposed to be,” he said.
The panel, which also included Justice Eugene Premo, has 90 days to rule on the case.