For a second time, a state appeals court has breathed new life into a lawsuit pitting Monterey County against residents of a Cachagua mobile home park over a water system contaminated with fluoride.

In a ruling this week that could have statewide impacts on cities and counties, the 6th District Court of Appeal said the county has a mandatory duty to protect water consumers from violations of the state Safe Drinking Water Act.

It was the second time the appellate court said the lawsuit could go forward. The suit alleges the county was negligent because about 100 residents of the Jensen Camp park were kept in the dark about dangerous levels of fluoride in their water system between 1995-2003.

“The county has tried to wriggle out of their duty,” said Richard Rosenthal, an attorney for the plaintiffs.

But a county lawyer said he will appeal the ruling to the state Supreme Court, which previously reversed a similar ruling about the county’s duty to warn park residents about the fluoride contamination.

“I think (the decision) is nonsense,” said Deputy County Counsel Patrick McGreal. “I think they went out further on the limb than they did before.”

The Jensen Camp residents sued the county and a former owner of the camp in 2004. They won the suit against the former camp owner, but the suit against the county has been stymied in pretrial proceedings over its duty to monitor the camp’s water system. The county regulates about 1,250 drinking water systems that serve under 200 customers. The state handles bigger water systems.

A Monterey County Superior Court judge agreed with the county that the residents didn’t have a cause of action because the safe water act doesn’t impose a mandatory duty on the county to notify water system customers.

In a 2007 decision, a three-judge panel of the 6th District Court of Appeal ruled that state regulations contained an “implied duty” for the county to alert customers.

The state Supreme Court reversed that ruling, but sent the case back to the appellate court to decide whether the regulations contain an “express mandatory duty” that the residents’ lawsuit could proceed upon.

Rosenthal said the case is being closely watched by local governments, many of whom contract with the state to administer the safe water act.

“It’s a very important environmental case statewide,” Rosenthal said. “It’s the first case of a mandatory duty of public agencies that oversee small water systems.”

Camp residents have been using bottled water since they became aware of the contamination in 2003 after the former owner sold it to one of the residents, Javier Guzman. He won punitive damages in the suit against the former owner, Rosenthal said, and is the lead plaintiff in the case against Monterey County.

Use of bottled water continues today while the water system is being renovated, Rosenthal said. The park was purchased in September 2008 by Howie Hugo, a Monterey pastor seeking to improve the 10-acre camp.

McGreal said the appellate decision didn’t take into consideration facts already established, including evidence that the former water system operator didn’t provide the county with test results showing the water contamination.

“There are a number of facts that, ultimately, would get the county out of it after a long and expensive trial,” he said. But the issue on potential liability is an important one, he said.

If the appellate court ruling stands, he said, “the state will be doing its own supervision” of small water systems.

“The county couldn’t assume liability for every water system operator who didn’t do what he is supposed to do,” he said.

Rosenthal said the county is taking the position that water system operators must be self-monitoring.

“That’s the kind of thinking that got us in this financial (crisis),” he said.

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See also

June 24, 2009: Water quality disclosure not government’s job, San Francisco Chronicle

September 19, 2007: Lawsuit over 7 years of dangerous levels of naturally occurring fluoride at a Cachagua mobile home park, The Herald (Monterey County)

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