OBOT Vs Oakland Filed Opinion
OBOT Vs Oakland Filed Opinion
FOR PUBLICATION
SUMMARY **
Breach of Contract
*
The Honorable Lawrence L. Piersol, United States District Judge
for the District of South Dakota, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
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The panel held that the district court did not clearly err
in finding that the City lacked substantial evidence of a
substantial danger to health or safety when it enacted its
resolution barring coal. Specifically, the panel held that the
district court did not err in finding that: (1) the City’s
estimates of dust emission from the transported coal were
unreliable; (2) the report showing that OBOT’s proposed
coal operation would cause particulate matter to exceed state
standards was flawed; (3) the evidence the City relied on to
show that any volume of coal emission was harmful did not
credibly establish a substantial danger; and (4) the City’s
evidence pertaining to the risk of coal fire was speculative,
contradicted by the record and lacking consideration of the
fire department’s oversight. The panel found that the other
expert evidence in the record suffered from the same flaws
that the district court plausibly identified in its findings of
fact.
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COUNSEL
OPINION
BACKGROUND
1
OBOT and its predecessor-in-interest, Prologis CCIG Oakland
Global, LLC, are together referred to here as “OBOT.”
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STANDARD OF REVIEW:
2
The dissent suggests that the Agreement barred the district court
from considering extra-record evidence for any purpose. No such
blanket restriction exists in the Agreement. Rather, Section 3.4.2 focuses
the breach of contract inquiry on whether the City relied on evidence that
was “substantial,” without limiting the tools a reviewing court may use
to make that assessment.
DISCUSSION
accounted for local wind and train speeds in its analysis. But
this only further undermines the validity of ESA’s emissions
estimates, as it reinforces that ESA could and should have
employed those variables. The court therefore did not
clearly err in this finding.
3
Appellants reference in passing the World Health Organization
standard of 10 μg/m3. But given that, according to PHAP, West Oakland
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4
Appellants also briefly reference reports that indicated OBOT’s
operations would cause daily exceedances of the national standard. The
court did not clearly err in rejecting that evidence for failure to
“meaningfully estimate” the number of exceedances that would result,
given that the standard allows for seven exceedances per year. As the
court noted, the expert reports are vague on this point, and do not engage
in any meaningful analysis.
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5
In the criminal context, “substantial danger” is commonly defined
as “a serious and well-founded risk.” See, e.g., People v. Superior Court
(Ghilotti), 27 Cal. 4th 888, 895 (2002). There is no indication that the
parties intended to adopt the criminal law formulation of that phrase. In
any event, this definition is more similar to the one articulated by the
district court than that urged by Appellants.
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on the air quality of West Oakland. Dr. Ostro made the same
mistake of failing to account for the different coal type used
in the Washington State study, and unlike PHAP did not
even appear to factor in local wind or train speeds. His
testimony was therefore less reliable than PHAP’s report,
which the court plausibly found lacked credibility.
& Hous. v. Lucent Techs., Inc., 642 F.3d 728, 741 (9th Cir.
2011) (citations omitted). We review limitations imposed
on permissive intervention for abuse of discretion. See id. at
742.
* * * * *
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AFFIRMED.
I respectfully dissent.
I. Background
B. Public Input
concluding that “the record before the City Council [did] not
contain enough evidence to support the City Council’s
conclusion that the proposed coal operations would pose a
substantial danger to people in Oakland.” Although the
court acknowledged that the City’s decision “may only be
justified on the basis of evidence that was before the City
Council at the time the decision was made,” it significantly
relied on extra-record evidence produced by OBOT in
rendering its decision. The court’s opinion focused on
OBOT’s critiques of the ESA report and largely did not
address other evidence amassed and reviewed by the City.
II. Analysis
1
The Ordinance at issue in this case concerns the health and safety
impacts of a particular land use—the storage and handling of coal in bulk
materials facilities within the City. Virtually all the evidence before the
City Council and the court dealt with health and safety issues.
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In the present case, it was error for the trial court to admit
and consider evidence pertaining to the health and safety
effects of coal handling and storage upon nearby residents
that was not submitted to the City. To allow otherwise
subverts the public proceedings of governmental entities and
makes their hearings a mere warm-up for when the heavy
artillery is brought out in a trial. 2 In the present case, once
2
The district court recognized, at least in theory, that even in this
breach of contract action, the “substantial evidence” standard is
“deferential” to the City. In its opinion, the district court stated that it
must confine its review to “whether the record before the City contained
substantial evidence that the proposed coal operations would pose a
substantial danger to health and safety” and may not substitute its own
determination for that of the City’s. Where the district court erred was
when it admitted extra-record evidence to supplement and contradict the
evidence that was before the City in rendering its decision.
The majority opinion does away with any deference to the City’s
determination. Because this action is styled as a breach of contract
action, the majority concludes that the “district court [ ] owed no
deference to the City’s factual determinations [ ] and did not err in
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